Per Curiam
-- A man has to do something for a livin' these days

-- Bloggin' ain't much of a living, boy
Friday, March 19, 2004
Buried story: It hasn't really been buried, but I've been surprised by the lack of attention given to the near-assassination of Taiwan's President and Vice-President, just days before the Taiwan election.

This seems huge, and yet almost no one is talking about it - in the blogosphere as well as the media. The two top elected leaders of a democracy are almost killed together (they were actually both hit by bullets in the attack). If this attack had succeeded, wouldn't there be chaos in Taiwan? Isn't anyone wondering whether the Chinese, who apparently just attempted to intimidate the Taiwanese through joint exercises with the French Navy?

Or maybe someone (terrorists, the Chinese, the opposition party in Taiwan, a lone pair of nuts) thinks they've learned the lesson that so many people were worried would be drawn from the bombings in Spain. Commit an atrocity right before an election,
and have the resulting harms blamed on the party in power -- in this case, on President Chen's flirtation with independence from the PRC and its strong opposition from mainland leaders.

Of course, given the refusal of the world's democracies to support self-determination for Taiwan, and the January warning by President Bush against moves towards independence (remember when this administration's policy towards Taiwan looked promising?), the world reaction even if this was an attempt by China to intimidate Taiwan is likely to be muted. And surprisingly, this is one area of President Bush's foreign policy on which many in the media are not aggressive critics.

Thursday, March 18, 2004
Fun with Lexis: With the NCAA on TV, I thought I'd test the hypothesis that Justice Scalia is routinely cast as "the angry dissenter," so I ran a few searches on Lexis. While these results are hardly scientific, they're certainly illustrative.

I examined 7 prominent newspapers: the New York Times, Washington Post, Boston Globe, Christian Science Monitor, San Francisco Chronicle, Los Angeles Times, and USA Today, and their stories about Supreme Court justices since 1990, to see how often Supreme Court Justices and their opinions were described as "angry."

Not surprisingly, Justice Scalia was the "angriest" Justice, according to Big Media, with his dissents described in this way 21 times -- almost every year. And it's not just one or two opinions, but a regular label: I found this description in 1990, 1992, 1994, 1996, 1998, 1999, 2000, 2002, and 2003. And again this year, although that wasn't included in my results. Indeed, it appears that it's becoming an annual tradition, although it was well-described by Tony Mauro in one story in USA Today back in 1994: "Scalia often finds himself in the role of angry dissenter."

What surprised me was the contrast between Justice Scalia and all of the other Justices. Chief Justice Rehnquist was described as angry in only three stories in these prominent newspapers. Justice Thomas - three times as well. Actually, Justice Kennedy and Justice Stevens were tied for second place, with 5 stories each. Justice O'Connor had 2, Justices Breyer and Souter had 1 each, and Justice Ginsburg was never honored in this way.

For those keeping score, Justice Scalia outpaces the rest of the Court collectively over this period: 21-20. A narrow win, but teams have been demonstrating that a win is a win, all day long.
Justice Scalia wins by a wider margin when one looks at all descriptions of the Justices in these papers, and not just how their opinions are described.

Perhaps Scalia is the Justice who's always angry. Or perhaps this is another good illustration of the tendency of major-newspaper journalists to tell the same story again and again, without regard to accuracy.

Originally posted at Ex Parte.

We're from the government, and we're here to help: Last week, the FDA issued a report recommending strengthened food labeling and consumer education to help combat obesity. These recommendations have attracted little attention, and a modicum of criticism.

I have little sympathy for the critics who complain that these recommendations are for voluntary compliance, not strict requirements. Consider, for example, the regulation that has received the most attention: encouraging manufacturers to implement more appropriate serving-size standards (labeling a 20 oz. bottle of Coke as a single serving, rather than 2.5 servings, for example). While the FDA currently permits this, a 2001 warning to Reebok has made many companies cautious about implementing more-realistic serving sizes. While the FDA eventually withdrew its warning, this highlights the tendency of regulations to fall behind changing concerns, especially when the government charges itself with making recommendations about the correct labeling for every food product sold in America.

In that light, while the FDA describes it as a "voluntary" program, I'm skeptical about the FDA's recommendation that nutrition-labeling requirements be extended into restaurants. The specific recommendation is that "in the short-term, [the] FDA urge the restaurant industry to launch a nation-wide, voluntary, and point-of-sale nutrition information campaign for customers." "Point-of-sale" appears to mean "on menus," so that customers can see the information at the moment they order.

As the FDA points out in its report:
"[t]he restaurant industry has voiced concern that requiring nutrition labeling for all menu items is infeasible because recipes change frequently, and patrons often request customization of their meals and the number of options available for customization is large.
The FDA dismisses this concern, however, suggesting that "nutrient composition databases" make it easier than ever before to calculate this information for any given food item.

I don't think that response is completely on-point. Undoubtedly, the FDA is thinking about fast-food restaurants where portions are preassembled and shipped to the restaurant, or large chain restaurants where meals are precisely assembled according to corporate recipes. But think about the burden this imposes on your neighborhood restaurant, where each meal is prepared from scratch, based in part on the ingredients that are freshly available that day. Small businesses, especially restaurants, are already faced with tremendous compliance burdens: health codes, employment laws, estimation of tipping for tax purposes, and so forth. Adding the "recommendation" that nutrition information be constantly calculated will be a significant additional burden. It is also likely to lead many to surrender a principal advantage over bland chain eateries, and convert to standardized recipes and unchanging menus. And then there are the restaurants with talented chefs, who really do customize the meals as they're cooked and prepared. How should they label their menus?

Even in fast-food chains, though, the suggested addition of more food-labeling makes me grimace. Menus are already crowded – even in McDonalds, it’s not easy to find the Chicken Fajita item to check out its price, especially at locations that don't put it on the Dollar Menu. Adding calories and grams of fat to names and prices is likely to be ugly and confusing. And while most people issue complaints about food packaging copy, many manufacturers do use their packages for interesting speech (like Snapple lids). Proposals to add more labeling, and in larger type, as the FDA recommendations also suggest, ensure that we’ll get less reading material of interest on our boxes and cans.

The FDA also suggests that consideration be given to replacing "detailed numeric information" with "a graphical representation that conveys the same information using a picture or symbol." This seems to be a trend in labeling, and it’s one that undercuts the value of the labels. Have you tried to decipher the care instructions on clothing labels when they use pictures instead of text? It’s difficult even to search the Internet for the answer when what one has is an indecipherable cartoonish icon. I can just imagine it: instead of text labels, food items will have a measuring cup or a pie chart representing the percentage of recommended daily grams of fat in the product. If you cut out each of the charts and rearrange them, you can then tell how close to your full day's supply you've consumed.

One good idea in the recommendations is that manufacturers should be encouraged to make greater use of "appropriate comparative labeling statements" that encourage "healthy substitutions," such as "instead of cherry pie, try our delicious low fat cherry yogurt - 29 percent fewer calories and 86 percent less fat." Because of qualifiers such as "appropriate," I suspect many manufacturers will be reluctant to comply, largely because of strict FDA enforcement about claims of healthfulness. Until the government gives up the idea that it should review and interpret every suggestion about a food product's nutritional value, this sort of claim will remain rare. This is one place where a recommendation may not be enough: how about an actual "safe harbor" for manufacturers whose substitution suggestions are based on the actual nutrition information that they’re already putting on their packages?

Duck-hunting, anyone?: It's official. Justice Scalia has done the right thing, refusing to recuse himself in the Cheney case. His memorandum is here. His descriptions are great:
Our friend and host, Wallace Carline, has never, as far as I know, had business before this Court. He is not, as some reports have described him, an “energy industry executive” in the sense that summons up boardrooms of ExxonMobil or Con Edison. He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico... Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters. Hunting was in two- or three-man blinds. As it turned out, I never hunted in the same blind with the Vice President.
Justice Scalia may well be the last Justice on the Court that wouldn't take offense at having to share a room while the VP received a single! Other highlights:
[Quoting the Sierra Club's recusal motion]: Because the American public, as reflected in the nation’s newspa-per editorials, has unanimously concluded that there is an appearance of favoritism, any objective observer would be compelled to conclude that Justice Scalia’s impartiality has been questioned... [Scalia's response]: The implications of this argument are staggering. I must recuse because a significant portion of the press, which is deemed to be the American public, demands it.
The motion attaches as exhibits the press editorials on which it relies. Many of them do not even have the facts right...

While Sierra Club was apparently unable to summon forth a single example of a Justice’s recusal (or even motion for a Justice’s recusal) under circumstances similar to those here, I have been able to accomplish the seemingly more difficult task of finding a couple of examples estab-lishing the negative: that recusal or motion for recusal did not occur under circumstances similar to those here.

Justice Scalia's chronicling of inaccurate press accounts is truly remarkable -- and I bet few, if any, of the newspapers in question have ever corrected their misstatements.

Nonetheless, despite the weight of evidence that Justice Scalia amasses - analysis of the law of recusals, examples of recusals and non-recusals, my prediction is the press will utterly ignore the castigation they received in favor of lengthy quotations from the Sierra Club and prominent liberals about how conflicted Scalia is, and how this casts the Court in disrepute.

The furor over Justice Scalia is one of the reasons that I dislike the political speech jurisprudence in Buckley and McConnell. These cases have codified the idea that the mere "appearance of impropriety" is a constitutional issue and inspired the charges being leveled against Justice Scalia here.

Update: Phil Carter has links to several perspectives on the issue, and David Letterman's excellent Top Ten list, to boot.

Google Local: a Cambridge test: So far, I'm not impressed. Conceptually, it's a good idea to link web pages and phone-directory results for a local area. But the Google effort falls short in intuitiveness, usefulness, and visual design.

The local search screen doesn't offer much guidance about what to do, and yet it's less clear what sort of input is required. In the left box, should I be entering yellow-pages terms? Should I treat it just like the regular Google box? The text suggests that the search is for "local businesses and services." What constitutes a service? Right now, it does seem to be defined by phone books, and not website content. Here are the results for a search for "tutoring" in the Harvard area. It's not smart enough to bring up Harvard's peer tutoring program, despite the zip code label on that page.

As far as usefulness, the reliance on yellow-pages labels makes it difficult to find some of the things that you might really want. Suppose I'm out of town, and one of my friends who has been served Zoe's sublime Chinese food (by far the best delivery option for HLS students" opines Alex Sundstrom). Will they find it? Not even close! Also floating just outside the realm of businesses and services, but extremely useful in the local context, would be an events search. This is a tougher problem -- the system's logic would have to be a little smarter to find this. For example, Google Local won't find Saturday night's Mr. Sparkle performance at the Kirkland. Instead, it brings up this listing, which features a date that has already passed us by, followed by (see for yourself!) Sen. John Kerry. Now there's a Mr. Sparkle for you.

I'm still thinking about the design of the site and its results. I don't find it helpful, or an intuitive way to receive information, but I'm not yet sure what I'd suggest.

Wednesday, March 17, 2004
Who Really Makes "Law"?: Today my esteemed institution hosted Senator Paul Sarbanes (D-Md.), the fifth-term Senator who serves as the Ranking Member of the Banking and Finance Committee and the co-sponsor of the famed Sarbanes-Oxley bill. In short, he is a man with considerable influence on making the laws of this country. He is also a graduate of this school and had been honored the night before with a Public Service Lifetime Achievement award. However, judging by the audience, you would have thought he was a city councilman, or perhaps a local business executive.

In sum, there was almost nobody there. In my estimate, there were approximately 30 law students, many encouraged to attend by an e-mail the event's organizer sent the night before. If it had not been for the 30 or so business school students in attendance, the room would have seemed empty. Most notably, not one Harvard Law professor made an appearance, including the ten or so Corporate and Business Law experts that had been individually invited by the organizers.

I could not help but think, if a Supreme Court justice was speaking, or even a prominent Circuit Court judge, would there have been the same indifference? Absolutely not. The room would have been packed with professors and students alike. The event might even have been broadcast into an "overflow" room to accommodate the demand.

But if you think about it, the man speaking before us has considerable more impact on "the law" than does any judge, including a Supreme Court justice. Each Congress passes hundreds of laws, most of which are never reviewed by any court. These include the tax code, which affects every single American, housing regulations, anti-discrimination statutes, etc. Senator Sarbanes recently lent his name to the biggest reform in corporate law since perhaps 1934. But no "legal" scholars seemed to care about what he had to say.

I suppose there are several reasons for this. For one, there seems to be a bit of snobbery in legal academia that judges decide the "important" law. The very method of study in law school is the "case method," which focuses on judge-made law and not on the process of drafting and passing legislation. Even in Administrative Law, which deals with federal agencies, the focus is on cases and the rulings of the judiciary. The importance of the judiciary cannot be questioned, but is it more important than Congress when it comes to "law?" I am not certain.

In addition, there seems to be a type of bias present against the "political" legal process. Politicians seem to be viewed as a lower form of lawmakers at elite legal institutions. Congress responds to constituent pressure and the swing of the majoritarian pendulum (in the form of lobbyists, interest groups and campaigning). As a result, their law is not "pure" and must be reviewed by a higher body. Thus, the appointed judiciary, free of influences and separate from the masses, swoops in and makes the "real" law that should be studied in legal academia.

I, too, cannot proclaim innocence in this bias. While I attended the speech , I admit that I did so only because of a personal request. In addition, I had the privilege of speaking with the Senator at a reception beforehand. Rather than being excited about the unique opportunity, I found myself viewing it as an obligation. You can be certain, however, that if it was Justice Breyer or Judge Posner, I would have been dancing a jig of happiness down the corridors of Pound Hall.

The double standard troubles me. Granted, law schools are not representative of the community as a whole, but these schools are charged with shaping the future of the legal profession. And if you examine where the law really comes from, you must ask yourself, is the legal community more concerned with drafting laws right the first time or with telling others they have done so incorrectly?

Tuesday, March 16, 2004
In Miami Herald v. Tornillo, the Supreme Court considered and rejected arguments that barriers to entry in the newspaper business have made newspapers into virtual monopolies.

More recently, deep thinkers have alternately embraced and rejected the idea that the Web has re-democratized speech in America, empowering anyone (even poor law students) to spread their message far and wide... or within a narrow, blog-reading elite, as the case may be.

I was reminded of these two trends a few minutes ago when I spotted this seemingly-bizarre Miami Herald story on Google News. This happens all the time, as automated newsfeeds at national newspaper chains suck in inappropriate content. But this highlights the appeal of weblogs, whether liberal, conservative, or nonpartisan: you get genuine editorial decisions, as well as original commentary, not arbitrary selection of mass-produced generic stories.

Is Your NCAA Tournament Pool Illegal?: Who do you have in the Elite Eight? Which #12 will upset a #5? Do you think Pitt can win it all? If it is March, it must be NCAA Tournament pool time. Along with flowers blooming and spring training, plucking down $5 and agonizing over the 7-10 matchups has become a rite of spring. Some experts predict that more than $1.5 billion in productivity will be lost over the next three weeks as workers schedule out-of-office "meetings" and cheer for the mighty Davids, so long as their alma mater is not the Goliath.

But gambling is illegal in the United States, isn't it? Sure, there are exceptions, like Nevada, Atlantic City and Indian reservations-- but doesn't this country frown on such moral turpitudes? The short answer is yes, but you are probably ok anyway. In most states, gambling, even in a small-stakes pool, violates state anti-gambling laws and could subject you to a misdemeanor. If you take the initiative to organize the pool, you could be subject to a felony in some states, or possibly even liability under federal law. In the research I have done, only Montana has turned up as allowing tournament pools under a de minimis exception to the gambling laws, and Texas law appears to permit the pools so long as the organizer does not take a cut or fee for his/her troubles.

So, should you flee the state for your illicit activities? Most police and government officials say no. In most cases, the government is not interested in cracking down on $100 pools (though your employer may have a different opinion). Usually, the police do not get involved unless (1) you have ignored your employer's request to stop, (2) your pool is so large that substantial sums of money are involved or (3) there are minors implicated. Other than that, you could get fired (remember Rick Neuheisel?) but you will probably not be arrested.

However, some state officials, including those in Charlotte, have warned that offenders could be prosecuted, no matter how small the stakes. In addition, everyone should remember that gambling on the Internet remains illegal under federal law (see below). Thus, before making your presence as the local kingpin too well known, check and see if your local law enforcement is cracking down.

Finally, gambling can cause legal problems in one final, but often forgotten manner: income tax. Gambling winnings must be reported as income on your federal income tax sheet. The chances of an audit turning up that $100 won in a cash pool are not high, but you never know.

So, while many states turn a blind eye to the illegal madness of March, keep in mind that this does not have to be the case. Now, where did I put my bracket?

Note: Please keep in mind that this is intended for amusement or research purposes only. In no way should this be construed as legal advice or counsel. I am not (yet) a lawyer and I am not representing myself as one. If you get arrested, I hope you can read this Blog in prison, but I am not responsible. Thank you.

On the Pledge Case: This is not an earth-shattering development, but USA Today (see?) had an article on the custody battle underlying the Pledge of Allegiance case going before the Supreme Court. I am not alone in my belief that the Supreme Court may use this standing issue as a convenient way to dismiss the case on the grounds that cert was improvidently granted. This may be conspiracy theory-esque, but Justice Scalia would not have recused himself had he believed his vote would be decisive. The Court cannot want to decisively rule on this case and it appears that Newdow's family struggles have given them an out.

Monday, March 15, 2004
On Speaking Extrajudicially: In the wake of Justice Scalia's infamous romp in the woods with Vice President Cheney, and Justice Ginsburg's revealed ties to the NOW Legal Defense, an advocacy group that often argues before the Court, the topic of extrajudicial activity has become front and center in the national discourse. Numerous newspapers across the country have chimed in with editorials calling on Scalia to recuse himself, and the intensity is growing as the argument grows close. As the critics say, the Justices are supposed to be impartial arbiters of the cases in front of them, and their activities throw a shadow across the appearance of impartiality.

Extrajudicial speech, however, does not present the grave danger predicted by critics. In fact, the speeches and activities of the Justices can in fact serve as vital indicators, both of the Justice's beliefs on an issue and in ensuring the nation's top judges remain in close contact with the public and legal communities.

In reality, judges are humans and humans have opinions and beliefs. Judges are not nominated to a federal bench, much less the Supreme Court, without having extensively studied the law and formed numerous beliefs on issues. The judges activities, rather than shaping these beliefs, actually tend to reflect them. Keeping Justice Ginsburg away from NOW will not cause her to be any less concerned with women's rights issues. However, this does not imply that she will not act impartially if and when NOW appears in front of the Court. Yes, she may vote in favor of NOW, but that vote may have been secured forty years ago in a Columbia law school classroom. Those that argue for recusal are in fact arguing that the Justices cannot be trusted to impartially review the facts and make an independent judgment in a proceeding. If this is the case, though, it will occur anytime a Justice has a particular belief, whether or not they are associated with a like-minded organization.

On the other hand, a Justice's ties with a particular group could prove beneficial to advocates before the Court. If a lawyer is concerned about a particular swing vote, he could tailor his/her argument to this swing vote based on his knowledge of the Justice's beliefs. Many times, affiliations with organizations allow parties to identify judges' beliefs on issues that have never been argued before them, and on which they have never written.

Furthermore, a lifetime appointment results in little accountability for federal judges and perhaps the tendency to lose touch with mainstream society. By interacting with certain segments of the population, either by giving speeches, attending meetings of legal organizations or engaging in certain social functions, judges can keep tabs on the pulse of both society and the legal community. Federal judges, especially the Supreme Court, should not sit like Zeus on Mt. Olympus. While they should be shielded from majoritarian influences, the members of the judiciary must also be knowledgeable of current events and social pulses in order to adequately represent the changing law of the times.

In the end, arguments about extrajudicial speech come down to beliefs on judicial impartiality. Judges nominated to the federal bench should be trusted to rule without bias on cases, or be corrected by their peers if they cannot. However, a judge's ability to be impartial is not tied to his/her extrajudicial activities, as these activities largely reflect already-held beliefs. Judges must remain pillars of ethics in the legal community, but like all people, they should be able to represent their beliefs in a manner open to all.

Murder? No Problem. Drugs? Not Welcome: Over the weekend, the New York Times highlighted a federal law that has been used to deny financial aid to prospective students convicted of drug-related offenses. This would be bad enough, but to top it off, the law does not apply to those convicted of non-drug crimes, including murder and armed robbery in some cases. The author of the bill says it has been misapplied; the Department of Education responds that the bill was poorly written.

My question is: could this be viewed as a violation of the ex post facto clause? Many of the "offenders" were convicted and completed their sentences long before this law was passed. However, anyone attempting to challenge the law could have an uphill battle. Last term, the Supreme Court held in Smith v. Doe that the Alaska "Megan's law" (which requires registration for sex offenders, even those convicted before the law was passed) was not punitive and thus did not violate ex post facto. Under similar logic, this law would be viewed as regulatory, and thus, could be upheld. In addition, the government could pose this not as a penalty, but as a non-subsidy, as there is no right to receive federal financial aid.

No matter the relevant legal doctrine, the policy behind the law is dead wrong. A lot of teenagers make mistakes and experiment with drugs. Those doing so should not be denied the chance for the education that will improve their lives. Congress has plans to re-write the law, and it should do so quickly.

Diversity jurisdiction in Guam: I've been meaning for a while to take up Professor Hay - er - Lawson Fite's suggestion that I highlight Chase Manhattan Bank v. South Acres Development Corporation, but it took Eugene Volokh's post on hands as a deadly weapon in Guam (if their owner is trained in karate) to get me to act.

South Acres, 434 U.S. 236, is the most recent Supreme Court case ruling on the scope of subject-matter jurisdiction of the U.S. District Court of Guam, holding that "Congress has neither explicitly nor implicitly granted diversity jurisdiction to the District Court."

Yes, that's most recent case. In South Acres, the Court references its earlier decision in Guam v. Olsen, 431 U.S. 195, ruling on the extent of federal question jurisdiction in Guam. Civil procedure geeks will nod approvingly at the Court's rejection of the lower court's logic that a cause of action with diverse parties is encompassed by "arising under" jurisdiction because 28 U.S.C. § 1332 is "a law of the United States."

The Court rightly observed that, "[b]y this logic, any cause of action with diverse parties under § 1332 would be within the scope of federal-question jurisdiction."

Usually we don't think much about the differences between Article III and Article IV courts, but this case gives us reason to. It's worth thinking about this distinction, too, in light of the questions over the power of Article III courts to review the status of Guantanamo Bay detainees.

It's no Queen Mary 2, but...: The nation's travel sections celebrated the recent launch of the Queen Mary 2, with its superb restaurants. Tagline: "The best restaurants on land... at sea..."

Less dramatic, but more important for some of our servicemen and servicewomen, are new and improved U.S. Navy kitchens. Installed first (in the Pacific Fleet, anyway) on the U.S.S. Mobile Bay, these kitchens do away with the Navy's legendary deep-fat fryers in favor of better (and probably, healthier) food preparation techniques. Although I'm sure many sailors will be forever nostalgic for deep-fried cherry pie, fried cabbage, and deep-fried ham sandwiches.

Protests Enhance U.S. Security: Yep, a "man bites dog" story here. Following several years of protests, in early 2001 President Bush agreed to end the Navy's use of the Vieques, Puerto Rico bombing range.

The Vieques decision was sharply criticized by many in the military and in Congress as potentially damaging to U.S. military preparedness (and by others for failing to end the Navy's presence soon enough).

Since Feb. 21, the U.S.S. Kennedy and seven other warships have been engaged in the first, post-Vieques era training exercise in the Atlantic. And the result has been a spectacular success:
"The training is much, much better now," said Capt. Mark Guadagnini, commanding officer of Carrier Airwing Group 17...

"The quality of training we're receiving today as compared to two years ago is, I would say, 50 to 60 percent better," Guadagnini said. "It's more intense and that will carry over longer."
The improvement is the result of innovation by the Navy in the wake of the Vieques closure -- rather than striking the same targets in a small area of Puerto Rico repeatedly within the same exercise and year-to-year, Navy pilots have taken aim at constantly-changing targets from Virginia to Florida. In addition, a new "virtual target" system is expected to enable the Navy to train "much more frequently," without needing special trips to Puerto Rico.

It's hardly surprising -- bureaucracies, even well-managed ones, tend to fall into safe, predictable habits. It's much easier to bomb Vieques year-after-year than to put time and effort into developing challenging training exercises. The need to shake the armed services from their post-Cold War complacency is an important driver of the defense transformation that Secretary Rumsfeld and President Bush have been fighting for -- and in this case, it looks like they got some help from unexpected allies.

Meanwhile, Eugene Volokh argues convincingly that what happened in Spain may undermine the case for permitting other countries to veto our foreign policy actions. He's right, but let me strengthen his case against one criticism I anticipate. He writes:
A third [justification for allowing other countries a veto] relates to foreign support being probative of the need for action: if we don't fully trust our government's judgment, then we might consider other countries' judgment as evidence of whether the action is practically and morally justified...
[This reason is] pretty weak if we think foreign countries are likely to be influenced by the risk of terrorist retaliation. The foreign countries' decisions may simply be probative of their own desire not to be attacked, not of what's the morally right thing to do in the abstract, or what's the practically right thing to do for us (or even what's in the aggregate interests of humanity generally). And I don't see why we should ascribe to a view of legitimacy that makes our actions illegitimate whenever the terrorists are able to force other countries to oppose us.
I think many so-called "multilateralists" (scare quotes because they are often isolationists in multilateralist clothing) would argue that the fact that "foreign countries'... desire not to be attacked" is exactly why we should pay attention to them: that our moral justification should take into account the fact that others will pay the price for our actions, and should have a say in what we do.

I don't think there's a satisfactory answer to this one, except to point out that allowing other countries a veto makes them more vulnerable as a result of our actions, not less. If terrorists can pick off weaker actors to manipulate, and through them, manipulate us, other countries will always be in danger from our actions.

Sunday, March 14, 2004
Did the terrorists win? Amidst the mix of good and not-so-good arguments about whether we should be worried about the apparent impact of the 3/11 attacks on the Spanish elections, I thought I'd describe why I'm unconvinced and unconcerned.

By "unconcerned," I don't mean to sound callous. I grieve for the murder victims in Madrid, and my sympathy goes out to their friends and family, and to the wounded. And I continue to fear that we will see more, and deadlier attacks here in the United States and abroad. But the simple truth is that we faced those dangers on March 10 just as much as we face them today.

Those who fear that the apparent election-changing results of terrorism will inspire more terrorism are applying a form of the "no negotiations" argument: that if terrorists can get something they want, they will commit more terrorism to get more of what they want. If they can encourage a more-favorable election result, they can continue to engage in terrorism to encourage a more-favorable set of policies.

Applied here, this argument misapprehends the problem. The terrorist threat we face from al Qaeda is not goal-oriented. Just as it cannot be appeased by, say, withdrawing American troops from the Middle East, it cannot be discouraged simply with an iron will and a lowered shoulder. Doing nothing to encourage the terrorists will not discourage them.

This isn't enough, of course. But it seems to me that an argument that the will of voters in Spain will encourage further attacks timed to influence elections suggests that one of the limiting factors for terrorists is a lack of opportunities to create mayhem. I couldn't disagree more. One of the lessons of 9/11 is that it isn't enough to assume, as we traditionally have, that the threat of terrorism menaces us most at special events: the Super Bowl, say, or the Olympics.

Sure, there is a threat that terrorists may target elections. Just like at Christmas, however, we can raise our level of alertness and work harder at preventing attacks at that time (we won't always succeed - the Spanish were alerted because they feared an ETA attack - but we can try). The black smoke against the blue sky over Manhattan - on a day when nothing seemed amiss and we had nothing special to worry about - those are the attacks that are most worrisome to me.

This highlights that a lack of opportunity is not the limiting principle that our enemies face. I don't know how we've been fortunate enough to avoid a repeat of the same scenes of carnage in the United States for so long. It seems unlikely, however, that there just hasn't been the right moment yet.

One more thing: the more goals that al Qaeda seeks to accomplish, the harder they may find it to maximize their success at each individual goal. So an attempt to maximize the political impact of an attack may make it harder to maximize the number of casualties. It may be possible to do both - but I would rather see attacks that are designed to achieve goals other than maximizing murder.

High Schoolers and the NBA: On Sports Law, I have a review of "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft," an article by Michael McCann which discusses the economic and legal implications of a proposed ban on high schoolers entering the NBA draft.