Per Curiam

2004-10-13T11:23:00.000-04:00

P.J. O'Rourke:No, it turns out Saddam Hussein didn't have weapons of mass destruction. And how crazy does that make Saddam? All he had to do was tell Hans Blix, "Look anywhere you want. Look under the bed. Look beneath the couch. Look behind the toilet tank in the third presidential palace on the left, but keep your mitts off my copies of Maxim." And Saddam could have gone on dictatoring away until Donald Rumsfeld gets elected head of the World Council of Churches.

2004-10-10T23:44:00.000-04:00

Reach out to Egypt?

John Kerry, in today's New York Times:

"A new presidency with the right moves, the right language, the right outreach, the right initiatives, can dramatically alter the world’s perception of us very, very quickly.

I know Mubarak well enough to know what I think I could achieve in the messaging and in the press in Egypt,” Kerry went on.

Ah, so Sen. Kerry believes the problem with Egypt is "perception" and "messaging." Let's quote some Egyptians, from the Jerusalem Post:

General (Ret.) Muhammad Abdel Fattah Omar, a former senior official with the Egyptian Ministry of Interior, which is responsible for the country's security services, was one of the first Egyptians to accuse Israel of masterminding the attacks.

"In each operation, we should first try to find out who benefits from it," he said. "Israel is the only party that benefits from the Sinai attacks. The Israelis and their agents are the only ones who are able to enter this area without difficulty."...

Abdullah al-Ashal, a former top official with the Egyptian Foreign Ministry, said he had no doubts that Israeli hands were involved in the bombings. "Israel's ultimate plan is to bring Egypt to its knees and eliminate its regional role," he told the IslamOnline Web site.

Ashal, who served as assistant foreign minister, went on to claim that by pointing a finger at al-Qaida, Israel was seeking to include Egypt in the US-led war on terror...

Diaa Rashwan, an expert in the Islamic movements affairs in Al-Ahram Center for Strategic Studies, an Egyptian think-tank, also agreed that Al-Qaeda was not a likely culprit.

No wonder the Israelis are sweating a Kerry victory. In the Times article, Kerry continued by saying:

"I mean, you ever hear anything about the ‘road map’ anymore?" he asked, referring to the international plan for phasing in peace between Israel and the Palestinians, which Kerry supports. “No."

I can tell you why we don't hear about the road map, but I'd rather let President Bush tell you. From Friday night's presidential debate:

Question: You know, I've made some decisions on Israel that's unpopular. I wouldn't deal with Arafat, because I felt like he had let the former president down, and I don't think he's the kind of person that can lead toward a Palestinian state.

And people in Europe didn't like that decision. And that was unpopular, but it was the right thing to do.

I believe Palestinians ought to have a state, but I know they need leadership that's committed to a democracy and freedom, leadership that would be willing to reject terrorism.

In the vice-presidential debate, Vice-President Cheney made the same point:

In respect to Israel and Palestine, Gwen, the suicide bombers, in part, were generated by Saddam Hussein, who paid $25,000 to the families of suicide bombers.

I personally think one of the reasons that we don't have as many suicide attacks today in Israel as we've had in the past is because Saddam is no longer in business.

We've been strong supporters of Israel. The president stepped forward and put in place a policy basically that said we will support the establishment of two states. First president ever to say we'll establish and support a Palestinian state nextdoor to Israelis.

But first, there has to be an interlocutor you can trust and deal with. And we won't have that, we don't have it now, in a Yasser Arafat. There has to be reform of the Palestinian system.

Sen. Edwards followed up with one of his most amazing remarks of the night:

No, I did talk about it, Israel. He's the one who didn't talk about it.

2004-10-10T23:35:00.000-04:00

The inconsistency at the heart of it all: Jason Van Steenwyck nails the unrealistic wishful thinking that has Democrats believing that they can simultaneously attack President Bush for doing too much in Iraq and not enough in Iran:

How in the WORLD would we convince Iran to give up it's own nuclear program so long as it was the considered opinion of Iran, Israel, the United States, the senior leadership of the Iraqi army, and every reputable intelligence agency in the world that Iraq was still keeping WMDs? Why would Iran ever THINK of dismantling its nuclear program? Indeed, it would be stupid to do so, given Saddam Hussein's demonstrated intent.

2004-10-08T23:41:00.000-04:00

Why I still like Glenn Reynolds (despite the effort required to mold his Nanotechnology: Three Futures article into publishable form):

From tonight's live-blog of the presidential debate:

WHO WOULD YOU NAME TO THE SUPREME COURT? Bush foolishly doesn't say "Eugene Volokh."

But President Bush already has my vote.

Later in the entry, Prof. Reynolds notes that "Kerry voted to confirm Scalia." Unfortunately, this doesn't count as an example of a flip-flop -- not after President Bush announced tonight that he considers some of his appointments to be, in hindsight, mistakes.

2004-10-06T17:38:00.000-04:00

If you don't tear it down, I will: Nothing has infuriated me more in this election cycle than reports from my friends that their bumper stickers (and, in some cases, the rest of the car) have been vandalized because of their support for President Bush and Vice-President Cheney. I would like to show my support on the streets of Cambridge, where there is hardly a car without a sticker declaring that "Bush Lied, People Died," or some such nonsense.

I've been meaning to do a count, actually, of anti-Bush stickers vs. pro-Kerry/Edwards stickers. I think the number might actually be close.

In response, several people who live outside the People's Republic have suggested "That's what you get for living in Cambridge."

Nope. Political intolerance is everywhere. And it's growing.

I wish I had some empirical sense for how common these sorts of incidents have been during my lifetime: my sense is not very common. Particularly given how often we've heard (completely unsubstantiated) complaints about "voter suppression" in Florida in 2000 -- I tend to think that if these sorts of things were happening a lot to Democrats, it would be headline news. I think I'll start keeping a running list:
(From Jim Geraghty, 10/6/04):

Howard County, Maryland:

The political season has turned ugly in Howard County, with an Ellicott City homeowner reporting a late-night fire that burned two Republican campaign signs in his back yard.
In addition, local Republicans say scores of other campaign signs have been destroyed or vandalized in the past couple of weeks, most of them along major highways.

"It's absolutely outrageous," said Howard Rensin, chairman of the county Republican party. He said about $1,500 worth of GOP signs have been destroyed.

"We're talking about dozens and dozens and dozens of signs. We think we may be looking at a concerted effort here," Rensin said. "If people want to express their political views, they ought to do so at the polls." ...

Over the weekend, county police conducted a surveillance operation prompted by the spate of sign destruction. On Sept. 25, police spotted a man on Route 40 cutting down with a power tool a sign urging voters to re-elect President George W. Bush and Vice President Dick Cheney.

Police arrested Corey Robert Cooke, 33, of Ellicott City and charged him with destruction of property.

Pfc. Dave Proulx, a county police spokesman, said Cooke has not been charged in any of the other incidents.

The most dramatic incident so far involved the burning of the 4-foot-by-8-foot Bush-Cheney sign and a smaller sign endorsing U.S. Senate candidate E. J. Pipkin in Ellicott City.

James McQuarrie said he awoke shortly after 1 A.M. Sept. 25 and saw a fire burning in the yard of his home in the 10100 block of Old Frederick Road.

"I saw a big flame outside my window," McQuarrie said. He rushed to fight the fire with a hose, then county firefighters arrived to help. The fire also burned part of his yard fence and a nearby pile of wood, McQuarrie said.

Another case in the same neck of the woods:

Howard County's spate of political sign destruction led to the arrest late Friday of a Randallstown couple accused of using a bayonet to cut the centers out of two Bush/Cheney campaign signs on U.S. 40 near Ridge Road in Ellicott City, according to court files and county police.
Peter Lizon, 30, and his wife, Stephanie Louise Lizon, 34, of the first block of Valdivia Court, were each charged with destruction of private property. Peter Lizon faces weapons charges. He is free on $3,500 bail and Stephanie Lizon on $3,000 bail.

Duluth, Minnesota:

"We did it."
Three Duluth teenagers walked into the Duluth News Tribune on Wednesday afternoon, opening with these three words. The boys said they were responsible for vandalizing Bush campaign signs and painting a swastika and the word "Nazi" at a London Road residence last weekend.

An hour later, the three boys traveled to the Lakeside-Lester Park police station, where Sgt. Scott Campbell was waiting to talk to them.

The teenagers told the News Tribune they meant no harm to Bob James, the homeowner and Bush-Cheney supporter who erected the signs. They said they spray painted the signs and the swastika on James' sidewalk but had nothing to do with the vandalism of two of James' vehicles.

Friends and supporters of James and the Republican Party of Minnesota had offered a $2,000 reward for the arrest and conviction of those responsible for the vandalism.

While the teenagers were remorseful for what they did to James, they stood by their contempt for President Bush. They said they left a phone message for James on Wednesday and twice went to his house to apologize, but he wasn't home. They planned to try again later Wednesday.

"It was not an act of hate," said Dustin "Dusty" Dzuck, 17, a senior at Denfeld High School. "My mom called me a terrorist. It wasn't terrorism; it was activism. It was for a cause.... The whole thing is, basically, I just wanted to get the word out there that in my opinion Bush isn't doing this country any good."

Dzuck said his actions bothered him more when he learned James is an Army veteran.

Nashville, Tennessee:

Police said a Nashville teenager and his friends stole 71 Bush-Cheney yard signs because he was mad at President Bush for sending his brother to Iraq.
Andrew Thurman, 18, told police that he and 19-year-old Frederick Stevenson stole the signs from several west Nashville neighborhoods because his brother, a U.S. marine, was sent to Iraq.

"It's not unusual to see the isolated theft of campaign signs in local, state and federal elections," Nashville police spokesman Don Aaron said. "However, this is the first time I can recall that someone who admits responsibility for the theft has linked it to the war in Iraq."

Thurman, Stevenson and two other teens were riding in a Honda Accord when they were stopped by police. Officers searched the car and found the signs, along with three pistols.

Thurman and Stevenson were cited for misdemeanor charges of theft and unlawful weapon possession. The other teens, who were both minors, face only the weapon charge.

Officials say this presidential campaign has triggered more reports of stolen campaign signs than in previous elections.

Rapid City, South Dakota:

The battle over political yard signs continued in Rapid City on Friday night, and the Republicans seemed to get the worst of it.
Signs supporting Republican candidates John Thune and Larry Diedrich were spray painted, stolen or destroyed up and down West Boulevard, as well as on several streets nearby. West Boulevard resident Ellen Drabek said Saturday that she lost two signs from her yard during the night.

"Mine weren't painted. Mine were stolen. And there were two large Thune signs up at St. Patrick Street that were broken up. All the rest of them were spray painted," Drabek said. "None of the Democratic signs were touched."

The vandalism and thefts occurred about two weeks after three Rapid City teenagers were caught after they were spotted in the act of stealing a large yard sign for Democrat Stephanie Herseth from a West Boulevard yard. Signs for Democrat Tom Daschle also had been taken.

From Jim Geraghty, 10/5/04:

September 2, 2004: Huntington, West Virginia:

Republican supporters in Huntington were watching their candidate accept the party's nomination when a gunshot rang out right in the middle of George W. Bush's speech.

"We heard a small snap, and felt glass come sliding by us. We looked up and saw a hole in our window and realized somebody was shooting at us", said Paula Stewart.

Witnesses tell police that someone fired a shot at the Republican Headquarters office at 1402 4th Avenue around 10:30pm Thursday night.

Today, Knoxville, Tennessee:

An unknown gunman fired several shots into the Bearden, Tenn., Bush-Cheney campaign office Tuesday, WBIR-TV in Knoxville reported.

According to Knoxville police officers on the scene, it is believed that the two separate shots were fired from a car sometime between 6:30 a.m. and 7:15 a.m. One shot shattered the glass in one front door and the other cracked the glass in another of the front doors.

Today, Orlando, Florida:

A group of protestors caused a commotion Tuesday afternoon at the Bush-Cheney Headquarters at SR436 & the 408. The protestors rushed the front door and Orlando police spokesman, Sgt. Brian Gilliams says.

Once inside, the protestors used a marker to draw on posters and scribbled remarks. O-P says one employee at the office was slightly injured and police are considering whether to file misdemeanor battery charges against the unidentified protestor.

From Instapundit, 10/5/04:

Swastika Burned Into Grass On Bush-Cheney Supporter's Lawn
Homeowner: 'My Signs Are Going Right Back In The Yard'

POSTED: 11:57 am CDT October 1, 2004
UPDATED: 12:31 pm CDT October 1, 2004

MADISON, Wis. -- Madison homeowners are livid after vandals defaced their homes.

Homeowner Rob Schaeffer

Someone burned an 8-foot-by-8-foot Nazi swastika on a home's lawn near where Bush-Cheney signs were posted. The vandals used grass killer to spray the symbol.

Several nearby homes were vandalized -- all were within a two-block radius on the West Side, near Ice Age Trail, News 3 reported.

State Republican Party officials claim it's the latest in a series of desperate acts by Democrats.

Homeowners are angry, but resolute in what they plan to do next.

AVON, Co:

AVON — Enough of the burning Bush and enough of the Avon chain saw massacre.

Vandals trespassing on his property to chainsaw the middle out of Republican campaign signs spurred landowner Magnus Lindholm Wednesday to offer a $5,000 reward for information leading the arrest of those responsible.

Earlier this week, somebody chain-sawed the middle out of two Bush signs on his property in Avon at the William Post Boulevard exit on Interstate 70. A “Bush/Cheney ’04” campaign sign was burned in Wolcott.

The Avon signs had been torn down previously, and others around the state have been damaged. Also targeted were campaign signs in other parts of the state promoting the U.S. Senate campaign of Pete Coors, also a Republican.

No signs promoting Democratic presidential hopeful John Kerry or Senate hopeful Ken Salazar have been reported damaged.

We'll see if this continues... I'm as much keeping track of this for myself as for anyone else.

2004-09-26T13:26:00.000-04:00

Infuriating: It's become a mantra for peaceniks ever since the first Gulf War. "We support the troops. We're just against the war." Thousands of pages of ink have been spilled regarding whether this position contradicts itself, or not. For the record, given Sen. Kerry's oft-quoted testimony about Vietnam ("Who wants to be the last man to die for a mistake?"), and the desire of our enemies abroad to kill our servicemen solely to change American public opinion, I come down on the contradictory side. But writers to today's Boston Globe make clear that for many Massachusetts liberals, the "support our troops" mantra is a lie:

I use Route 3 from 128 to 495 every day; then 495 north to Lawrence," Robert wrote. "The overpasses are turning into a serious distraction. I am as patriotic as anyone else, but this has gotten out of control. Flags, sheets with all types of messages hand-painted on them are all beginning to really look cheesy. Save it for your front lawn."

Peter of Ipswich wrote about the same issue in June.

"On Route 128 in Woburn the overpass at Mishawum is covered end to end with flags. This is state property. I find it distracting and am perplexed. The State Police removed a couple of signs at an overpass on [I-95] in the Byfield-Newburyport area some time ago and explained that it was a distraction to drivers. Also state property. What's the difference? Do the State Police make decisions based on politics?"

"I thought posting signs/banners on highway overpasses created a driving hazard and is illegal, and yet the number of overpasses decorated with American flags, memorials, and military flags seem to multiply each day," wrote Susan of Groton last month. "Can I post my peace flags on the overpass of my choice?"

Ridiculous.

First, I drive a lot. In the last month, I've covered much of the Massachusetts length of I-90, I-93, I-95, I-495, I-290, Route 2, and Route 3. Most of the signs and messages to which these writers are referring are not just "patriotic displays" of the flag, but specific messages to soldiers, Marines, or airmen (relatively few sailors, based on my observation), usually welcoming them home from Iraq, Afghanistan, or other overseas postings. If these people aren't interested in welcoming home the men and women who have volunteered to put their lives on the line, in what way, exactly, are they "as patriotic as anyone" or willing to "support our troops?"

Apparently, these navel-gazers think that the flags and "welcome home" messages are aimed at persuading them to change their opinions on the war. They couldn't possibly be directed towards the people that they are, usually, explicitly addressed to. If "Susan of Groton" is worried about the "driving hazard," and not her offended political sensibilities, she sure as heck wouldn't be talking about adding to the visual clutter with peace flags.

I do want to make one positive observation -- at least the letter-writers have chosen to express themselves by speaking out and writing. One hopes that they won't contemplate vandalism as an alternative.

2004-09-21T17:06:00.000-04:00

Baby steps towards space tourism: Here's a first-hand account (with pictures!) of a ride on the Zero-Gravity Corporation's parabolic weightlessness trip:

And then, when the weight is worst, the invisible hands cramming your spine into the plane's padded floor lose interest and lift away. What was concrete becomes cotton. The hands reach beneath you, and lift you up into nothing, and you float. And all there is to do when this happens for the very first time is to laugh. Because it's impossible. Because it's unnatural.

But the joke in your bones is that it feels perfectly natural, like all your life you were intended to float. After all, just before you came into the world, that's what you were doing in liquid. And when your life ends and you leave, there you are again, becoming vapor. Breaking down from matter to dust to air. Floating...

As I sit here, I can still feel it in my body. It comes in waves. I want to hit "post," shut the application, close the laptop lid. Then bend my knees a little and shove off, push up into the air above my desk. Do the superman. Do a backflip. Bust a "crouching tiger hidden dragon" move, karate-chop martian foes mid-air. And float away into bed. It's natural now, and will remain that way forever. I miss it already.

It may be a while before I can afford to give it a try, but it sounds like they'll have a lot of customers... and great word of mouth.

2004-09-21T16:55:00.000-04:00

Baby steps towards space tourism: Here's a first-hand account (with pictures!) of a ride on the Zero-Gravity Corporation's parabolic weightlessness trip:

And then, when the weight is worst, the invisible hands cramming your spine into the plane's padded floor lose interest and lift away. What was concrete becomes cotton. The hands reach beneath you, and lift you up into nothing, and you float. And all there is to do when this happens for the very first time is to laugh. Because it's impossible. Because it's unnatural.

But the joke in your bones is that it feels perfectly natural, like all your life you were intended to float. After all, just before you came into the world, that's what you were doing in liquid. And when your life ends and you leave, there you are again, becoming vapor. Breaking down from matter to dust to air. Floating...

As I sit here, I can still feel it in my body. It comes in waves. I want to hit "post," shut the application, close the laptop lid. Then bend my knees a little and shove off, push up into the air above my desk. Do the superman. Do a backflip. Bust a "crouching tiger hidden dragon" move, karate-chop martian foes mid-air. And float away into bed. It's natural now, and will remain that way forever. I miss it already.

It may be a while before I can afford to give it a try, but it sounds like they'll have a lot of customers... and great word of mouth.

2004-09-18T16:38:00.000-04:00

Kerry: President Should Watch TV: OK - I freely admit this is a cheap shot. But Sen. Kerry deserves it, for saying this in his stump speech: "With all due respect to the president, has he turned on the evening news lately?... Is he talking about the same war that the rest of us are talking about?"

Are you kidding? The evening news? Maybe the reason that President Bush and Sen. Kerry have different perspectives (or do they?) on the war in Iraq is because President Bush isn't foolish enough to rely on information from CBS News.

But maybe Sen. Kerry does get his information from the evening news. If I recall correctly (I do!) Sen. Kerry has passed up official intelligence briefings because he doesn't have time.

My fondest wish for 2008 is that we could have two serious candidates for President. And that one of them would be fiscally conservative.

2004-09-17T08:49:00.000-04:00

The Civil War lingers: I've often been mocked for the fact that I mix the word "y'all" in with an occasional "you all" in my speech. After all, I come from Indiana, a state that's clearly part of the North. Some even take offense -- liberal northern intellectuals because they'd prefer to paint all who use "y'all" in broad spokes as moral degenerates; Southerners because (to paint/tarnish in ridiculous broad strokes) they can't stomach that someone who won the Civil War can have a claim to "their word."

My usual response talks about Indiana as a transportation hub, of the passage of the National Road through Indianapolis and its role as a dividing line, migration patterns, etc. But another factor is that parts of the Midwest share enough cultural elements with parts of the South that it's a naturally-receptive ground for Southern culture. Fried chicken (Hoosier-style, of course) is the main event at many celebrated restaurants. The Brickyard 400 helped launch NASCAR's nationwide expansion when it came to Indianapolis in 1994. And now, more proof: The Mississippi-based quick-casual chain McAlister's Deli has opened to great success. Mmm. Sweet tea. I think I may need to make a stop there on my next trip home.

2004-09-16T13:22:00.000-04:00

Sen. Kerry - a man of the 80s: First came the comparisons between Sen. Kerry and Gov. Dukakis (FWIW, I think the Kerry campaign has a lot more life left in it than this comparison would suggest). Now, David Adesnik compares Sen. Kerry to Lt. Col. Oliver North: "[I]t just goes to show that you shouldn't put a war hero in charge of our nation's foreign policy."

Ouch.

But "Kerry, 80s Man" makes a ton of sense to me. In the 80s, we still had a national obsession with Vietnam. Popular television shows like "Magnum, PI" and "The A-Team" focused on Vietnam-era war heroes and the continuing effects of Vietnam on their lives. In the 80s, Democrats obsessed over a conservative president who they saw as a more serious threat to America than our true threats abroad (and their domestic agents). As a man who married into money (twice), Sen. Kerry also exemplifies personal values of the era.

No wonder this election is stuck in the past.

2004-09-14T22:00:00.000-04:00

Religious exclusion: An event scheduled for this Friday at Six Flags Great Adventure in New Jersey is sparking controversy:

The Muslim Youth Division of the Islamic Circle of North America and the Muslim American Society, two of the largest Muslim organizations in America, have arranged exclusive use of Six Flags Great Adventure in Jackson, N.J., for the entire day Friday.

The ICNA website boasts, "First Time Ever – All Day – Entire Park Exclusively for Muslims!"...

Debbie Nauser, vice president of public relations for the Six Flags theme park, confirmed the park would be open only for "Muslims and their friends."

Six Flags has previously hosted other event days, including an annual Passover theme in which the park is predominantly filled with Orthodox Jews, but the venue is still open to outsiders and seasonal ticket holders, and organizers of previous events have never claimed exclusivity of the park.

Question: If the park is open for "Muslims and their friends," then that's not "exclusively for Muslims," is it?

Daniel Pipes asks: "One wonders how the organizers know who is a Muslim or not. Need one recite the shahada to enter the fairgrounds?"

More: The Islamic Circle of North America's website notes that a number of nearby schools will be closing for the day so that their students can attend.

It will be interesting to see whether this stirs up controversy beyond watchdogs like Dan Pipes and the Middle East Forum. Undoubtedly one reason that it's been watched closely is that the ICNA is associated with jihadists and radical beliefs, and has invited some sinister speakers to past events.

It's not exactly extraordinary to see a self-sponsored segregated event in America. After all, the Baptist boycott of Disney is driven in part by the annual Gay Days at Disney World. Fortune 500 companies, such as one of my summer employers, rent theme parks for private use all of the time. I'm sure church organizations and racial-pride groups must do the same. And if you're renting the park, it makes sense that you get to choose who stays in and stays out.

One legal issue, though... unlike traditional rental events, it appears from the ICNA website that Six Flags will continue to sell tickets that day -- from the Q&A: "Will the ticket price be $20.00 at the gate on the event day? Answer: NO, tickets will be sold at a higher price on the day of the event at the Six Flags ticket booths. We therefore recommend you to buy the tickets well in advance for this event."

If that means that Six Flags is selling tickets, regardless of whether someone has been invited by the sponsoring organization, the theme park would seem to be retaining its character as a public accommodation (See 1964 Civil Rights Act, defining a public accommodation to include "any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment"). If so, the park cannot turn visitors away on the basis of their religion any more than they could hold a "whites-only" day and turn away people of other races.

I'll look into this further when I get the chance...

2004-09-11T13:42:00.000-04:00

Remembering 9/11: Jason Van Steenwyck returns from a hurricane relief mission just in time to post this poem:

First fight. Then fiddle. Ply the slipping string
With feathery sorcery; muzzle the note
With hurting love; the music that they wrote
Bewitch, bewilder. Qualify to sing
Threadwise. Devise no salt, no hempen thing
For the dear instrument to bear. Devote
The bows to silks and honey. Be remote
A while from malice and from murdering.
But first to arms, to armor. Carry hate
In front of you and harmony behind.
Be deaf to music and to beauty blind.
Win war. Rise bloody, maybe not too late
For having first to civilize a space
Wherein to play your violin wiith grace.

Gwendolyn Brooks
1949

2004-09-10T18:31:00.000-04:00

At Ex Parte, I've suggested that quick, decisive action in response to a Beslan-style hostage taking requires setting objectives in advance. As I think about it more, I wonder if one of the lessons of the Beslan attack hasn't been lost in the media (and official) focus on Russian miscues, as opposed to the terrorist tactics.

Consider how the climax of the attack unfolded: Russian officials now believe the first explosion was triggered as the terrorists tried to rearrange the explosives.

And that some of the explosives were reportedly suspended from basketball hoops, high above the gym, while others were planted in such a way as to collapse the structure.

And that the leader of the terrorist showed a willingness to detonate the explosives strapped to individual terrorists.

It's a diabolical setup, really, and anyone contemplating how to "react decisively" to this type of attack should try to envision how the Hollywood ending goes: if Bruce Willis and the Dirty Dozen were trying to kill the terrorists, and free the hostages, what would it take to succeed?

If the terrorists have time to set up this sort of arrangement, I can't figure it out. One possibility is a rapid response, not allowing the terrorists time to set up such a complex explosive arrangement. But it's hard to imagine whether we could really respond that quickly. And so I think this poses a really hard tactical problem, which in turn affects the strategy for dealing with it.

2004-09-09T08:54:00.000-04:00

More lives saved by firearms? The Boston Globe reports that Boston drivers dodged a buffalo yesterday. No, it didn't fly -- it escaped from a livestock trailer. Fortunately, the driver was armed and, alerted by the honking of other drivers, rapidly shot the beast.

The best part of the story? The animal's name: Houdini.

Alas, there's no way to blame this on the incompetence of the state or local highway departments. Unless, perhaps, the trailer became unlatched when it hit a pothole?

2004-09-08T21:46:00.000-04:00

Business-trip blogging: While some of my fellow HLS bloggers spent the last weeks of their summer on vacation in Eastern Europe, Western Europe, or simply celebrating blogging anniversaries, I decided to work for my scenery. Most law students are aware that big law firms will treat them to tremendous social experiences over the summer. When my interest in having real responsibility upon graduation and having the freedom to practice in multiple practice areas led me to an in-house counsel's office, I didn't imagine that it would include a business trip to Hawaii. And it almost didn't -- it required extending my work commitment by a week and cancelling my vacation plans. Like those on vacation, however, I do have pictures to share:

Sunrise over Maui, viewed from Haleakala

Trees at sunset on Makena Beach

2004-09-08T21:39:00.000-04:00

HLS Classes Begin Tomorrow: And if you didn't know that, and you're reading this blog right now, you've got some time on your hands.

I'm back... perhaps Greg will be soon, too.

Whatever this headline means, it can't be good:
One in Five Germans Wants the Berlin Wall Back

From Reuters:

Fourteen years and a trillion euros after reunification one in five Germans would like to see the barrier that split the country during the Cold War put back, a survey found Wednesday.

A poll by the Forsa institute found a quarter of western Germans wishing the 15 million east Germans were cut off again by the Berlin Wall, living in a different state, while 12 percent of eastern Germans wanted out of the united Germany.

Many westerners said they were disgruntled because they have had to foot the bill for reunification -- 24 percent said they had suffered financially as a result.

In the formerly communist east, which has twice the unemployment as in the west and where wages are still below western levels, one-third said they were no better off financially because of unification and the end of communism.

I suppose it's a good sign that more West Germans favor returning the East to the repressive, totalitarian state of Erich Honecker. And it's good news that 2/3 of East Germans consider themselves better off financially. Hmm.

Hat tip: BlackFive

2004-05-13T14:34:00.000-04:00

Gun-happy culture: Afghan weddings are not the only place where the idiotic tradition of firing guns in the air as a celebration is prevalent. Iraqis celebrated yesterday's 3-1 victory over Saudi Arabia in soccer (which qualified them to play in the Olympics) by doing the same:

Fans glued to television screens erupted in traditional Iraqi manner, blasting Kalashnikov rifles and machine guns into the air when Hawar Taher made it 3-1 a minute from time.

Carloads of men drove crazily round Baghdad, horns blaring.

"We are all ecstatic," national Olympic coach Adnan Hamed said in Amman.

"Iraq has a bright future before it. I'm sure we'll do well in the Olympics."

Sen. Kerry has called the war in Iraq "a failure." I'll say -- we haven't even managed to instruct them on basic gun safety.

2004-05-12T23:24:00.000-04:00

What's the sound of no one laughing? Just tune in to... So, not only has Air America harmed radio diversity across the country, it's managed to progress from unfunny to creepy in a very short period of time.

To continue an emerging theme about the collapse of good taste -- the New York Daily News appears to be the only media outlet that's covered this:

Defense Secretary Donald Rumsfeld "ought to be tortured." President Bush should be taken out and shot.

Those are a few nutso nuggets from the hosts of Air America Radio...

Rock bottom came when [Randi Rhodes] compared Bush and his family to the Corleones in the "Godfather" saga. "Like Fredo, somebody ought to take him out fishing and phuw," she said, imitating the sound of gunfire.

During a day of torture by radio, I heard ads for Hewlett-Packard, Greyhound and, especially, General Motors. I asked GM why it appeared in such shows.

Ryndee Carney, GM's manager of marketing communications, said the ads were wrongly picked up from an earlier deal with WLIB. She said the station was ordered to "cease and desist" yesterday, and added: "GM will not advertise on any Air America affiliates."

Rhodes is supposedly a comedian, so I think it's safe to assume this was a joke. A very bad, unfunny joke, but still.

Originally posted at Ex Parte. Apologies for the cross-posting, but I wanted to build in the bit about reduced programming diversity in honor of today's Communications Law final.

And now, it's off to bed. Like others around Cambridge, my night was marked by tossing and turning. It must have something to do with living in a town where it regularly gets hot and humid, yet no one has air-conditioning.

2004-05-11T23:19:00.000-04:00

Back off, man. I'm a...: What do you call someone with too much time on his hands? An object of curiosity on the Internet. In this case, a demonstration of the principle that you really can buy anything on eBay, if you're willing to pay enough. The current bid of $660 is not enough to buy you this completely accurate replica of the costume from Ghostbusters, right down to a 35-pound "proton pack" and accurate sound and light effects. Buy this, and you're sure to be the hit of your Halloween party, even if you're not doomed to be visited by a demon from the Dimension of Pain.

2004-05-11T09:54:00.000-04:00

Evidence: Good, Bad, or Ugly: FrontPage Magazine carries a breathless headline from controversial scholar Laurie Mylroie: The Saddam-9/11 Link Confirmed.

Unless familiar with the exaggeration embodied by headlines like these, one might expect dramatic revelations in an article like this. Instead, Ms. Mylroie reports on the emergence of a new piece of intelligence information corroborating the meeting of 9/11 ringleader Mohammed Atta and Iraqi intelligence official Ahmed al-Ani in Prague in April, 2001.

What is this corroborating piece of evidence? According to Ms. Mylroie, Czech intelligence has confirmed that al-Ani's appointment calendar refers to a meeting with a "Hamburg student." Previously, it had been uncovered that Atta had applied for a visa to the Czech Republic as a "Hamburg student." Got it?

Where does this bold new piece of evidence come from? It isn't clear -- it's chronicled by Edward Jaye Epstein on his website, which assembles assorted evidence, attempting to answer such questions as "Were the anthrax attacks and the 9/11 attacks linked?"

This article has attracted my attention for two reasons, however. First, while the conclusion that Ms. Mylorie draws is pretty broad for the evidence provided (even if this meeting occurred, if this is the only meeting between Iraq and Atta that we can demonstrate, why would we then conclude that this is a link between Iraq and 9/11?), the tenor of debate around Iraq, North Korea, al Qaeda, 9/11, etc. never seems to understand that this is how most intelligence-gathering works. You're rarely in an ideal world where you can "know" what the other side is doing. Instead, the name of the game is reconstructing relationships and motivations based on a smattering of facts mined from an enormous sea, and uniting these facts with a broader understanding of the intelligence target, its methods, and goals.

Second, while the evidence Ms. Mylroie has its weaknesses, it is evidence. It may not be incontrovertible evidence, it may not lead inexorably to a particular conclusion, but it is evidence. Its existence highlights the fact that one of the media elite's chestnuts about Iraq is misstated at best, and untrue at worst. Time and again, we have heard that there is "no evidence" of an Iraq/al Qaeda link --

Richard Clarke: "There's absolutely no evidence that Iraq was supporting al Qaeda, ever."

Sen. Max Cleland: "The vice president trying to justify some connection [between Iraq and 9/11] is ludicrous."

CNN: "No evidence links Iraq to those attacks."

The fact that 69% of Americans, or some similar number, believe there was a link between Iraq and 9/11 has been repeatedly cited by Democrats as evidence that the White House is lying, that the American people are dumb, and so forth. But the difference between "no evidence" and "some evidence" in deciding how to evaluate such a view is huge: it creates a disputed question of fact, exactly the sort of question that in a judicial context, we trust juries to decide.

2004-05-10T17:56:00.000-04:00

Government Policy Pointless? From the Detroit Free Press:

I see absolutely no point to this. This is going too far to try and repair a part of history that cannot be repaired. What exactly will the county do if a contractor finds records of past slave activity? Not do business with them? Pay them less? All based on events that happened over 150 years ago? This seems to be both economically inefficient and a horrible way to try and repair the damage done by slavery. The Free Press agrees and said so in this editorial.

And while they are at it, why doesn't Wayne County make anyone disclose any past abuses and mass slaughters of Native American tribes. They won't have to look far -- Wayne County sits on land occupied by American Indians until European settlers drove them out.

2004-05-08T16:46:00.000-04:00

Divisions in Iraq: U.S. news sources have focused heavily on al-Sadr's call for retaliation for the prisoner abuses. Relatively few have mentioned the signs that al-Sadr's support is weakening. The latest report, from the Beirut Daily Star (second half of the article):

Meanwhile in Iraq, Moqtada Sadr's month-long uprising took a double battering Friday as Najaf's Shiite religious establishment told the rebel cleric's militiamen to go home.

An unequivocal denunciation of Sadr's Mehdi Army by respected cleric Sheikh Sadreddin Kubbanji was the clearest indication yet that time was running out on Sadr's insurrection, and as the US Army picked off his foot soldiers.

"Listen to the advice of the learned ones. You are our beloved youth and we care about you, but go back to your home where you came from and fight the occupation and the Baathists there," Kubbanji told thousands of worshippers at the Imam Ali Mausoleum, one of the most revered shrines in Shiite Islam.

"The Najafis will be responsible for protecting Najaf."

US soldiers later killed 12 of Sadr's militiamen in clashes around Najaf, a US military spokesman said.

Kubbanji's sermon came after 150 Shiite religious and tribal leaders met Tuesday in Najaf and called on Sadr to end his rebellion.

2004-05-08T09:48:00.000-04:00

National missile defense advances: Well, this report certainly seems like good news:

Northrop Grumman-Built High-Energy Laser Destroys Large-Caliber Rocket in History-Making Test
The U.S. Army's Mobile Tactical High Energy Laser (MTHEL) testbed destroyed a rocket on May 4 that's larger, faster and that flies higher than previous threats destroyed by the laser weapon demonstrator. Northrop Grumman Corporation (NYSE:NOC) built the demonstrator for the Army and the Israel Ministry of Defence (IMoD).

Tuesday's successful intercept and destruction of the large-caliber rocket carrying a live warhead took place at 12:45 p.m. MDT during a live-fire test of the MTHEL testbed at the Army's White Sands Missile Range, N.M.

The large-caliber rocket is capable of twice the range, achieves more than three times the altitude, and carries a much larger warhead than previous targets. Many countries already possess large-caliber rockets. The destroyed rocket is representative of threats faced by U.S. and Israeli forces.

the MTHEL prototype will give the Army its first deployable laser weapon system. Northrop Grumman began work on the existing testbed in 1996 when it was called the THEL/Advanced Concept Technology Demonstrator (ACTD).

MTHEL will be the first tactical and mobile, directed-energy weapon capable of shooting down rockets and other tactical targets in flight to protect deployed forces and civilians of the U.S. and its friends and allies.

In testing to date, the MTHEL testbed has destroyed 28 Katyusha rockets and five artillery shells in flight.

The very idea of shooting down rockets and missiles in-flight has been ridiculed by the press and by Democrats since President Reagan first proposed it to the nation some two decades ago. Yet despite significant obstacles thrown in the development path by a Democratic Congress and then President Clinton, it seems that missile-defense programs are finally making advances.

It's true that in our current war with al Qaeda and other terrorist groups of global scope, we face other threats that have more immediacy than missile defense is designed to combat. But it's nice to be making progress against old dangers as well. And with the recent news that North Korea has successfully developed a missile that can strike U.S. territory in Guam, and possibly Hawaii, it seems wiser and wiser to have embarked on a course that can protect us from the threat of desperate madmen.

2004-05-07T00:10:00.000-04:00

Elsewhere in Israel...: The Navy has recommenced port visits to the city of Haifa, with a call by USS Thorn, a Spruance-class destroyer.

At one time, Haifa was one of the U.S. Navy's favorite Mediterranean ports of call, with dozens of ships visiting every year. After the bombing of the USS Cole by al Qaeda terrorists in Aden in 2000, however, the Navy has been staying away.

Does this mean:
1. Improved confidence by the Navy in its ability to provide security in harbor situations?
2. A show of support by the U.S. for Israel?
3. A rebalancing between terrorist threats and convenience?

2004-05-07T00:08:00.000-04:00

Water wars: Well, the pre-9/11 conventional wisdom was always that water shortages would trigger conflicts in the 21st century. Now, the United States has indeed turned to water as a weapon of sorts, but triggered by Palestinian terrorism. As the Jerusalem Post reports, the U.S. is suspending American assistance for water development projects in the Gaza Strip. This move comes in response to last year's attack by Palestinian terrorists on a U.S. convoy.

The Jerusalem Post story spins it as a response to Palestinian failure to round up those responsible, ignoring the reports last month that the U.S. had established that Yasir Arafat had approved the attack to "send a message" to the United States.

Looks like the message was received, loud and clear.

2004-05-06T20:15:00.000-04:00

It looks like Greg was right in his recent post, Reason #415 Why Massachusetts Sucks.

According to a recently-released study by The Road Information Project, the Boston area is in the bottom five in road conditions in America. According to their recent study, Bumpy Roads Ahead:

The ten urban regions with at least 500,000 people, which includes the city
and its surrounding suburbs, with the greatest share of major roads and
highways with pavements in poor condition are: Los Angeles – 66%, San
Jose – 65%, San Francisco-Oakland – 61%, San Diego – 60%, New
Orleans – 56%, Boston – 54%, Sacramento – 50%, Riverside-San
Bernardino – 42%, Tulsa – 41% and Philadelphia – 40%.

In addition to the vehicle excise tax that Greg complained about, the average Boston driver is paying $547 in extra vehicle maintenance costs.

The report emphasizes that new methods of paving roads and filling potholes have been developed since the 1980s to improve the repair of roads, but that many cities and municipalities have not yet updated them. It wouldn't surprise me if one reason they haven't done so in Boston is graft: it's long been rumored that contracts for road maintenance are steered towards those with political or familial connections to local government.

Most appallingly, drivers aren't the only ones paying for roads that haven't been repaired. According to this editorial, Boston has $22 million collected from utilities companies (which dig pothole-causing trenches in roads and pay into a pot to fix them) sitting idle, waiting to be used. There are signs it may be tapped soon: a biker's recent misfortune has attracted significant attention, and even triggered a special hearing by one of Boston's city councilors:

It wasn't a huge pothole by Boston standards. But it was enough to cause Tove Madsen to flip off of her mountain bike on Monday morning and land face-first on the gritty pavement of Cambridge Street near City Hall.

With her face bleeding, a dazed Madsen walked to the emergency room at Massachusetts General Hospital.

With the Democratic National Convention coming to town, Boston has extra incentives to shape things up. Cambridge and Somerville are likely to trail far behind.

2004-05-06T16:33:00.000-04:00

Dog bites man: Stereotypical news rarely gets the coverage that it deserves. In this case, it's politician hugs child, but it's a moving photo and a good story, courtesy of Power Line and the Cincinnati Enquirer:

n a moment largely unnoticed by the throngs of people in Lebanon waiting for autographs from the president of the United States, George W. Bush stopped to hold a teenager's head close to his heart.

Lynn Faulkner, his daughter, Ashley, and their neighbor, Linda Prince, eagerly waited to shake the president's hand Tuesday at the Golden Lamb Inn. He worked the line at a steady campaign pace, smiling, nodding and signing autographs until Prince spoke:

"This girl lost her mom in the World Trade Center on 9-11."

Bush stopped and turned back... "He looked right at her and said, 'How are you doing?' He reached out with his hand and pulled her into his chest."

"I could hear her say, 'I'm OK,' " he said. "That's more emotion than she has shown in 21/2 years. Then he said, 'I can see you have a father who loves you very much.' "

2004-05-06T10:55:00.000-04:00

Why Osama bin Laden Futures are a bad investment:

At Tradesports.com, the last trade of contract Osama.Capture.Sep04 was at 30.0, which means that a bet that bin Laden will be captured by September 30 currently pays 10-3. The December 04 contracts are going for 43.0, or a little better than 2.5-1 odds.

For all the hoopla about "futures markets" when the Pentagon proposed using them to forecast world events, to be successful predictors of anything, they require not only good information, but liquidity and rationality. And in my opinion, there's some rationality lacking in this market -- undoubtedly because so many Democrats seem to believe Madeline Albright's possibly tongue-in-cheek statement that President Bush knows where bin Laden is and is just waiting to unleash an "October surprise."

The United States, and many expert commentators believe that bin Laden is hiding out in Pakistan, in the ungoverned areas along the Afghanistan border. The latest U.S. offensive has focused on this area, supposedly with Pakistani cooperation. This week, U.S. News has a lengthy update on just how challenging a task confronts us:

More difficult still is Musharraf's delicate political situation. The day after it was revealed that the eight Pakistani troops had been executed at point-blank range, there were demonstrations across Pakistan, and most of Parliament walked out. A three-day jirga of tribal elders in Peshawar concluded that it would oppose any further military operations in their territories... [T]he tribal lands, which stretch for 1,000 miles along the border of Pakistan and Afghanistan and hold some 6 million people, are roughly equivalent to American Indian reservations, where federal intervention is legally permissible but only under certain circumstances.

In trying to draw a comparison to something familiar to readers, the article seems to be stretching here. Imagine if a significant portion of the FBI and American military were unwilling to confront American Indians because of familial ties, and then imagine that the Indians were nearly as well armed as the Army:

Family ties between members of the Pakistani 11th Corps, which has conducted some operations in the tribal areas, and Pashtuns who live in the areas resulted in advance warning of several early raids on sanctuaries in the borderlands, U.S. officials say. "Before, it was a week's warning before they were going to go in, then it was four days," says a senior U.S. official, "and the last [time] I think it was one day." After that fight, soldiers of the 88th Brigade discovered a mile-long tunnel leading to the Afghan border, the entrance to which was concealed in a high, mud-walled compound with dug-in fighting positions.

And recall that elite troops from the Pakistani Army, as the article recounts, suffered tremendous losses when they closed in on an al-Qaeda position that they believed contained Ayman al-Zawahiri.

The real problem, however, is the fragility of Gen. Musharraf's position, and our resultant total reliance on these unreliable Pakistani forces.

Musharraf has felt that he cannot allow any American presence in these areas, at least officially, and Pentagon officials emphasize that they are observing his wishes. "I'm not sure anybody else can hold [Pakistan] together," a senior U.S. commander says. ". . . There's probably no more critical ally to us in the global war on terrorism than Pakistan." Adds another: "We've hooked our wagon to Musharraf because he's our only hope."

Still, Pentagon officials say, their troops have been frustrated. On several occasions in Afghanistan, after picking up what they believed to be the trail of senior al Qaeda members--at least once including bin Laden--U.S. forces had to halt their pursuit after the men they were chasing vanished across the border into Pakistan. "We've been on what we thought was the tail of senior leaders only to lose them in some part of the game," a senior commander said, "and they, you know, skirted across the border." One instance prompted Pentagon brass to offer Musharraf an AC-130 Spectre gunship and crew. The AC-130 is one of the most lethal weapons in the U.S. arsenal, a heavily armed, low-flying attack plane fitted out with 25-, 40-, and 105-millimeter guns and advanced, forward-looking infrared radar. Musharraf was intrigued, but when it was explained that the AC-130 functioned most effectively with a forward air controller on the ground, calling in the plane's withering sheets of fire, he declined. No American boots on Pakistani soil.

My advice: sell Osama futures short. This hunt isn't going to be over anytime soon.

2004-05-05T20:18:00.000-04:00

More on foundations, universities, and terrorism: Eugene Volokh has done the heavy-lifting and commented on one of the WSJ articles that I mentioned yesterday (I guess he's taking time out from grading exams. And thanks to Harvard's generous, faculty-friendly grading policies, he's still able to defer grading my paper from last semester, too!).

Alas, he ignores one of the elements of the article that really bothered me: the ol' bait-and-switch that the universities are doing. According to the Journal, the nine schools "are challenging antiterrorism language that the Ford and Rockefeller Foundations recently added to their standard grant agreements." Ford's language is much broader, targeting "violence, terrorism, bigotry or the destruction of any state." Rockefeller's is narrower, focusing on "directly or indirectly engage in, promote or support other organizations or individuals who engage in or promote terrorist activity."

The universities are using the Ford language to make the threat to academic freedom sound broad and pernicious. It's easy to defend academic endeavors that advocate "destruction of any state," as Volokh does, by highlighting the example of North Korean independence. It's harder to defend those that promote terrorist activities.

The controversy is also somewhat overblown -- the foundations may include this in their "standard grant agreement," but universities are major (and sophisticated) recipients of foundation grants (in many ways, given the foundations' desire to support high-profile activities, they're almost partners). It seems likely that these nine schools probably have the bargaining power to change the default terms in the grant agreements, and to reach a more-detailed agreement about what activities the foundations are concerned about.

And there's a legitimate problem underlying the foundations' actions that extends well beyond the Durban affair. Sympathy and support for terrorism at American universities, particularly in the Israeli-Palestinian context, has a respectability that it doesn't deserve. The Ford and Rockefeller Foundations would like to use their treasuries to solve that problem. It's certainly a more worthwhile undertaking than many other causes with which they could involve themselves.

2004-05-05T19:07:00.000-04:00

It's hard to feel sorry for terrorists, Part II: (From Reuters -

Israeli soldiers shot dead a senior Hamas militant leader, Imad Mohammed Janajra, 31, in an olive grove in the northern West Bank, witnesses said.

An Israeli military source said Janajra was shot when soldiers spotted him armed and approaching them near his village of Talousa. The source said troops also detonated a bomb planted nearby.

Is this a sign that Israel's assassination campaign is working? "Senior" leaders know that if they lead from behind the front, the Israelis are likely to kill them, so they have an incentive to lead by example, in which case the Israelis... kill them. Anyone care to bet that Hamas claims Janajra should be classified as an "assassination"-type killing, whatever the circumstances of the incident actually were? Meanwhile, the Israelis were active on another front:

Israel has released a co-founder of Hamas to the Gaza Strip... Mohammed Taha, 68, had been the highest ranking Hamas figure from Gaza in Israeli custody.

It was not immediately clear exactly why Taha was released at a time when Israel has stepped up operations against Hamas, having assassinated two leaders of the group -- Sheikh Ahmed Yassin and Abdel Aziz Rantissi -- since March...

Taha, received by thousands in Bureij who gave him a triumphant welcome, vowed to avenge Janajra's death.

Well, if this is a test, Taha fails. If he plans to lead the vengeance, this undermines Hamas' strategy of trying to keep the identities of its leaders a secret. Perhaps his release indicates that the Israelis are having some difficulties identifying the leaders after all?

2004-05-04T23:42:00.000-04:00

Rich bloggers: With the Dallas Mavericks' poor playoffs showing, Mark Cuban's blog will predictably shift its focus to his reality show, as he eagerly anticipates the payoff -- "I am going to really enjoy giving the check for 1mm dollars."

This led me to wonder: is Cuban the wealthiest blogger out there? Is there anyone but Cuban who has that much money and would be willing to squander his (presumably valuable) time on a blog? Just an idle thought...

2004-05-04T13:45:00.000-04:00

In the news: There's a lot more in today's Journal that I wish I could comment on, but my studies preclude it, so I'll just mention them here.

- As a response to the discovery last year that the Ford and Rockefeller Foundations funded the anti-Semitic activities at the UN conference in Durban, the foundations have included new language in their grants that prohibit the expenditure of funds to promote terrorism and violence. Now, liberal universities (like Harvard) are complaining that this is an attack on "academic freedom." More proof that liberals in academia are actually sympathetic to terrorism, and not just dumb. On the bright side, the ACLU says it has no problem with the conditions.

- My 1/2 summer employer, Procter & Gamble, has reported success in Phase III Clinical trials of a testosterone "patch" to treat sexual dysfunction in women. The target market for this drug: nearly 11 million women. Comment: New cross-marketing opportunities for the Dole family.

- A U.S. general criticized Pakistani commitment to fighting al Qaeda in this year's offensive. Comment: Who could possibly be surprised?

- Good news for the economy and state budgets: 39 states' revenues are on target or better in 2004

- U.S. per capita consumption of carbonated soft drinks is down from 54 gallons in 1998 to 52 1/4 today. Must be all those dot.coms no longer giving away free drinks.

- Quattrone convicted. If I hear one more complaint from bloggers and conservatives about how "unfair" it is that he and Stewart were busted for obstructing justice and other ancillary crimes, I'm going to sic Al Capone on them.

2004-05-04T13:28:00.000-04:00

Missing the point: Today's Journal carries a story on Greg Storey's redesigned Presidential Daily Brief, a genius idea that has undoubtedly earned this "information architect" beaucoup bucks in new projects.

Mr. Storey transformed the impenetrable "wall of text" in the PDB into a document that highlights key items with titles, subtitles, bold-face text, bullet points, and shorter paragraphs. He also assigned a "threat matrix" number, in large size at the top of the document, to emphasize the level of threat.

Undoubtedly, the Bush administration (or the Kerry campaign) should hire him to ensure that more-useful information makes its way to the President, although the Journal also includes a critique from Edward Tufte, apparently an academic expert in information design (!), who argues that "Mr. Storey's redesign of the PDB [is] an example of using 'cute type' or 'content-free decoration' 'to attract attention to itself and weaken the pursuit of truth.'"

A fine line, as anyone who has worked in a Powerpoint-driven industry like consulting can surely attest.

But both of these experts are missing the point. The real reason that it's hard to draw conclusions from the text-heavy memos that are circulated through bureaucracies everywhere is the culture of avoiding responsibility. No CIA analyst wanted to put "Bin Laden Will Strike Soon" in a report, cause intensive expenditures to be made, and then have nothing happen. Drawing conclusions on the basis of incomplete data, while important, is always a high-risk undertaking. It's why one of the most important skills of leaders and managers is being able to work these assessments out of their subordinates - usually in-person, and orally (oral communications feel less risky than written ones, even if they're recorded, because formal written documents convey a more authoritative sense, and hedging is easier when speaking).

Without a corporate/governmental culture that rewards risk-taking, the people writing the PDB, or the daily economic advisor, or the documents on any other issue will always find a way to conceal the risky substance, whatever the form of the document. This culture, not "document design" is what governments and companies should be focused on (after all, if someone has a really important message to communicate, they're likely to find a way to get it across regardless of the form of the memo).

The final, related point. The culture of avoiding responsibility is in part caused by the "culture of finger-pointing." Too much accountability can lead to evasion of responsibility, and sophisticated ways of concealing information as a hedge. Governments often suffer from this problem as well, because of public and political pressure that "someone must be held accountable" if a mistake is made. Television shows like "The Apprentice" only feed the popular desire to "fire those who screwed up." Yet we all know that the way that people learn is through trial-and-error. If you want good intelligence information in the future, the answer to the failure to predict 9/11, or the overstatement of Iraqi weapons "stockpiles", is not to fire everyone that touched the data. Perhaps the Bush administration understands this: after all, George Tenet and other intelligence officials (and, presumably, lower-level analysts) have been allowed to keep their jobs. (Or maybe they've been protected by an overbearing sense of "loyalty," - who can tell?)

2004-05-03T16:48:00.000-04:00

Tentative steps forward in the Arab world: Last week, Nicholas Kristof made the bizarre claim that "indigenous Arab experiments in democratic elections in places like Bahrain" signal that the Arab world is well on its way to democracy, without the benefit of outside help. His thesis seemed to be wishful thinking, relying on a few well-chosen facts and disputed by every Bahraini he could find to be quoted:

I asked people what they thought of the democratic reforms here. Nearly all of them scoffed.

"There's totally no democracy," said a businessman, Khalil Ibrahim, with disdain. "It's just a show."

Kristof also quoted an editor-in-chief of one of the newly free newspapers as saying that true democracy -- "that's centuries away."

It's certainly true that the changes in Bahrain, like those throughout the Middle East (like the student protests in Iran and the emergence of al-Jazeera) highlight the undercurrents of change that exist.

Unfortunately, the United States can't wait for hundreds of years. And the scope of the task is immense. Consider this story in the Beirut Daily Star:

A new foundation headed by prominent Arab intellectuals is planning to pave the way for regional modernization through the revival of Arab thought, one of its founders said Sunday...

Foundation members - including respected intellectuals like Egypt's Nasr Hamid Abu Zeid, Syria's George Tarabishi, Algeria's Mohammed Arkon, Jordan's Leila Sharaf and others - chose Beirut to announce the establishment and objectives of the foundation, but it will be based in Switzerland.

"The safest place for the foundation to operate freely is Europe ... but it's set up for the sake of Arabs and that's why we are holding the conference here in Beirut," Houni said.

Freedom of thought, it appears, is alive and well among Arabs, it appears, as long as they're not in the Arab world.

While the effort of modern thinkers to organize and expand is excellent, I wonder whether the "modern thought" that they see as a precondition for Arab-world reform is as vital as they seem to believe. Kristof's interviews with Bahrainis suggest that they understand the concepts of freedom of speech, of the press, of ideas, and of democracy perfectly well -- they're just obstructed by a government unwilling to engage in that level of reform. And Iraqis have been clamoring to be allowed to vote. Those that have, as Jonathan Steeler reports, have "in almost every case [chosen] secular independents and representatives of non-religious parties." (Note: this is an intriguing story about the success of elections in one province of Southern Iraq, where U.S. administrators have combated the election fraud problem by using "ration cards" as identification. Hat tip: Mickey Kaus).

It may be true that culture and history make parts of the Middle East more hostile to democracy than Europe or the United States. But it's also true that "modern understanding" is only one thing holding back democracy. With the removal of Saddam Hussein, the U.S. has the opportunity to let the Iraqis attempt democratic self-governance, and a chance to separate itself from the repressive governments of surrounding countries. We'll see what happens.

2004-05-03T09:33:00.000-04:00

Blogging Fun: A game that is being passed around the blog-o-sphere.

Ok, here goes: "When complex litigation procedures involve greater case aggregation, federalism concerns often arise."

I am studying for exams, you will have to forgive me.

2004-05-02T10:51:00.000-04:00

Laura Bush, truant:This morning's Boston Globe has a great little piece cribbed from the First Lady's commencement speech yesterday at Miami Dade College:

To prepare for her speech, she had tried to remember the advice given at her graduation from the University of Texas in 1973. The problem was that ''I hate to admit it -- I skipped the ceremony."

When she looked up the name of the speaker, ''you can imagine my surprise when I discovered that it was some guy named George Bush," she said to the laughter of her audience." Four years after that speech, I married his son."

I'm more curious about why she skipped the ceremony -- shocking behavior for a librarian, really.

2004-05-01T10:22:00.000-04:00

Breathless non-story of the day: FBI Got Records on Air Travelers, screams the New York Times. Apparently, the reason this story receives a headline is that:

Airline industry officials said they could not remember another such sweeping request. In the past, airlines have routinely provided data to the F.B.I., but typically requests concerned the passengers on a single flight, or the travel patterns of an individual passenger...

[T]he disclosure that airlines had handed over such an enormous trove of data directly to government criminal investigators... raised red flags among privacy advocates."

Uh huh. And can anyone remember "another such sweeping" terrorist attack? We grounded every airplane in the United States for days -- does anyone really think that searching the manifests of single flights would have been an appropriate investigative technique?

Supporters of privacy sometimes have good things to complain about. In this case, they're making it hard for anyone to take them seriously. I'm left wondering if they even remember 9/11.

2004-04-30T12:23:00.000-04:00

The conservative obsession with french fries: It's not clear to me why, but french fries appear to be near-and-dear to the hearts of many conservatives. First was the "Freedom Fries" circus during the early stages of the Iraq war -- despite many jokes, I never saw anyone actually serve "Freedom toast" or "Freedom roast coffee" at breakfast.

Now comes the media coverage of students at Lancaster Middle School in Texas. Sixth-grade girls are fighting to keep the state Department of Agriculture from eliminating fries from public school lunch menus. And in just a couple of days, they've received considerable attention - primarily from the conservative media.

Today's WSJ Taste page had the story, and a Google News search reveals the following other sources: Fox News, Washington Times, New York Post. Hmm.

I can understand why banning fries might be a heartfelt issue: manyof us probably have enough a significant amount of arterial deterioration attributable to the fries we've consumer. But why conservatives are particularly attached? I don't know.

2004-04-29T21:27:00.000-04:00

Obscure government official of the day: Hilda Gay Legg - Administrator of the Rural Utilities Service, which appears to focus on bringing broadband Internet service, digital public television, and surplus fire trucks to rural areas. At least it's no longer called the Rural Electrification Administration.

2004-04-29T14:33:00.000-04:00

Jordan plot: The Journal is spot-on with today's editorial wondering how the foiled terrorist attack, employing chemical weapons in Jordan has received so little coverage in the U.S. media.

Here's a description of the planned attack from Jane's News Service:

Statements released by the Jordanian government have revealed an elaborate plot by Al-Qaeda associated terrorists to first attack the Jordanian General Intelligence Department (GID), the Jordanian Prime Ministry and the US Embassy in April of 2004 with a massive Vehicle Borne Improvised Explosive Device (VBIED) and to then disseminate chemical agents that would affect a much broader area of Amman.

According to statements released by the Jordanian government, the perpetrators planned to use rocket propelled grenades to suppress the GID compound's perimeter defences while simultaneously driving a large truck through its protective barricades and into the heart of the compound. The truck's explosives would then be detonated, incapacitating or killing all security personnel and leaving the compound open to the second phase of the planned attack.

The second phase would involve carefully positioned vehicles laden with chemical agents. Vehicles laden with agents could be driven slowly due to the fact that security personnel would be incapacitated by the initial blast. After the vehicles were carefully positioned, chemical agents could then be dispersed into the compound and the surrounding area.

Such a release, according to Jordanian security officials, would have resulted in the deaths of most of those who survived the initial explosion as well as many others in the city surrounding the GID. Outside of the compound, officials estimated that as many as 80,000 people may have been killed with an additional 160,000 wounded. This potential for loss of life is comparable to that which occurred during the fire bombings of Dresden and Tokyo during the Second World War

Here's one theory why news coverage has been limited, however: like many of the other semi-autocratic regimes that we count as our "allies" in the Middle East, Jordan significantly limits press freedoms. As a result, the only information coming out of Jordan, whether by the U.S. media or anyone else's, is carefully controlled by the government. Ironically, Jordan used to be a more open society: this report, by Freedom House, chronicles some of the changes.

2004-04-29T14:19:00.000-04:00

Hedging your bets: As criticism of Sen. Kerry widens over his tendency to "straddle" or "hedge," I'm starting to wonder about the overlap between his critics, and those that criticize the Bush administration for creating an excessive appearance of certainty about intelligence conclusions.

In theory, there's an intellectually-coherent position that would allow the Kerry campaign to portray their candidate's attempts to have things both ways as a more truthful way to deal with the American people, especially in situations where facts are uncertain, or issues are unclear. Especially on close decisions, a position taken contextually may be better than one that strives for consistency across all situations.

It's troublesome for politicans, though -- because a lack of consistency leaves them vulnerable to an interpretation that they are engaged in poll-driven leadership, and Americans generally hunger for candidates who are principled, even to the point of near-absurdity. That explains why President Bush can get away with his inability to articulate the mistakes that he's made, while Sen. Kerry even gets attacked for noting (fairly) that "we may yet find" WMD in Iraq.

2004-04-29T12:05:00.000-04:00

A Tale of Two Drug Busts: One need only look to today's New York newspapers to have an idea why drug laws could be considered racist, or at the very least, biased based on class. In short, these laws impose massive penalties, often much higher than murder, but only against the poor (often minorities) that cannot afford high-priced legal defenses.

Consider the case of Elaine Bartlett. In the early 1980s, she was a 26-year old mother of four scraping by through work as a hairdresser. She decided to make a quick $2500 by transporting four ounces of cocaine from New York City to Albany. The deal was set up by a drug dealer acting as a police informant and she was arrested. With no prior convictions, Bartlett was sentenced to 20 years in prison, and she served 16.

Now, I am not making excuses for committing crimes. Bartlett should not have been given a free pass merely because she was poor and had children -- this describes many law-abiding people.

But contrast the story of Julia Diaco. Diaco is an 18-year old freshman at NYU. She comes from an extraordinary wealthy family whose patriarch is a construction mogul. She was raised in a $2 million mansion and was treated to private rock concerts, lavish vacations and every amenity a child could want. Diaco was arrested earlier this week for running a drug dealing operation from her NYU dorm room. The police got wise to her operation, because of the many complaints coming from fellow residents, and set-up an undercover sting operation to catch her. Diaco fell right into the trap, selling undercover officers marijuana, cocaine, acid and hallucinogenic mushrooms on a number of different occasions. Diaco was finally arrested on Tuesday while delivering $1,000 worth of marijuana to an undercover officer. In addition, this is not Diaco's first drug arrest -- she was collared in her home state of New Jersey for possession last year.

Looking at these two cases, it is clear who the greater offender is. Young woman, no priors, one incident done out of desperation. Young woman, one prior, multiple incidents, done for fun and to buy expensive items. But equally clear is the fact that Diaco will escape with a much lesser sentence than Ms. Bartlett. She is the product of wealth -- her family has hired a high-priced Manhattan attorney to defend her. The chances of her being sentenced to 20 years are so slim that she was laughing and joking with reporters after she posted bail. Diaco is a cocky young girl, and with good reason -- she is going to get off with a slap on the wrist.

In many ways, Bartlett's conviction ruined her family by depriving her children of a mother and a potential role model. Was her action wrong? Absolutely. But one need look no further than the case of spoiled Julia Diaco to see that the system that convicted her is much, much worse.

2004-04-28T17:06:00.000-04:00

More just desserts: Ordinarily, I have sympathy for the victims of suicide terrorists, and not much for them, or their leaders. In this case, however, it seems that everyone involved received what was coming:

Robbers killed by suicide bomber
A Hamas suicide bomber blew up two armed Palestinians who tried to rob him in the Gaza Strip, it emerged yesterday.

Rather than give up his bomb, the Hamas member detonated it, killing himself and the two robbers near the border fence between Gaza and Israel.

Er... why wouldn't he give up his bomb? Wouldn't it have been better to let them steal it, so that he could kill Israelis, not Palestinians? Maybe the robbers would have blown themselves up as martyrs, too.

A Hamas spokesman masterfully spins the decision, labeling the hapless criminals as legitimate targets: "Anyone who tries to stop a fighter from doing his work is a collaborator," he said.

In any case, the errant detonation is good news for Mahmoud Zahar, identified this week as the new Hamas leader. The Israelis have said that he can escape the fate of his predecessors, but only "if the militant group halts suicide attacks."

2004-04-28T12:04:00.000-04:00

It's About Time the Liberals Got Their Due: Law.com has thankfully identified a growing problem in the American legal system and the creation of the organization that will counter it: the American Constitution Society (ACS).

Thank goodness someone is finally standing up for the liberal ideology on law school campuses! If the ACS does not do it, who will? Law schools campuses, especially at the elite schools, represent some of the most conservative groups anywhere in the United States. Just this year, Harvard Law doubled the number of right-of-center professors on its campus by hiring John Manning. What the hell has happened to this place? Liberal thought used to be protected in these hallowed halls, but now the Federalist Society has become a Leviathan, swallowing students whole and blinding them from the fact that we elite law students know better than the majority of the people in this country.

The ACS is here to protect liberal thinking once and for all. Professor Peter Rubin:

Yes, just like on gay marriage. Those damn Federalists stepped up and tried to impose gay marriage on a country where over 60% of the people were in opposition. Not just civil unions, mind you, that's not enough. The term 'marriage.' It's good that the ACS was there to fight for the beliefs of the American people. More from Rubin:

Now that I think about it, he is right. Being as generous as possible, there are FIVE "conservatives" on the Supreme Court. There are only FOUR liberals. Look at the dominance. It is a wonder that our society has not devolved into fascism. Almost half of the circuit court judges are "conservative" as well --the inmates are running the asylum!

I praise the ACS for stepping up and working to counter the plague that is sweeping the American legal system. Right-minded "left" thinkers must have a refuge from the overwhelming conservative tilt of our law schools and the courts. Only by defeating these insurgents can the law truly be saved from tyranny, oppression and the American people.

2004-04-22T23:46:00.000-04:00

Today at HLS: This afternoon, the Alliance of Independent Feminists, the Office of Public Interest Advising, and the HLS GOP hosted Eileen O'Connor, Assistant Attorney General for the Tax Division at the Department of Justice. Ms. O'Connor turns out to be a wonderful speaker, both about the attractions of working at DOJ and the Tax Division's enforcement initiatives. I'm sure that not much of what she said was novel, but it was certainly interesting, as a law student and as a taxpayer, to have the government's tax enforcement efforts spotlighted.

Ms. O'Connor focused her remarks particularly on several of the most significant challenges the Tax Division faces:

First, she highlighted the "enormous challenge" enforcers face in cracking down on tax shelters, such as cross-border leasing deals. In this fad, highlighted last summer by New York Times coverage of a deal in Frankfurt, Germany, the tax savings from depreciation of a large fixed asset offset the expenses of a deal in which a U.S. company buys a major urban or municipal infrastructure asset and then leases it back to the city. In the Frankfurt example, U.S. investors looked at buying the subway and then turning around and leasing it back to the city. As Ms. O'Connor pointed out, "We used to have the 'smell test,' but I think people are now olfactorily-challenged... some of these schemes don't even pass the snicker test." Nonetheless, she continued, some courts and judges will bite, approving the tax-savings these deals are built around.

Second, in an interesting implicit comparison to the highly-publicized wall between law enforcement and intelligence, she highlighted efforts to lower the wall between civil and criminal tax enforcement. The goal is to enable criminal prosecutions to proceed, with safeguards, before civil cases are completed. This approach is particularly important to tax schemes like a refusal to pay taxes because "we have a voluntary tax system," or "the Sixteenth Amendment was never ratified." With the ability of these schemes to spread via the Internet, obtaining injunctive relief early is key to maintaining control and reassuring law-abiding taxpayers that the system is enforced. She specifically highlighted the Crystal Foster case, where a taxpayer received an erroneous refund for $500,000 after claiming a nonexistent "slavery investment trust credit."

Ms. O'Connor also discussed the use of IRC §7609(f), the "John Doe" summons. The IRS can use this tool to go to someone "in a position to know the identities of people not paying taxes," and request cooperation, if several conditions are met:
- the summons relates to the investigation of a particular person or group of persons;
- there is reasonable basis for believing such person(s) has failed to comply with the tax law; and
- the identity of the person(s) sought is not readily available from another source.

The Justice Department has used this power to gain cooperation from credit card companies, using spending records to identify people who have stashed their income offshore and then used direct-debit cards to spend it within the United States. The use of this power requires court permission, according to Ms. O'Connor, but serves as a valuable tool to identify tax cheats.

Her discussion of John Doe summonses led naturally into a discussion of the tax-shelter identity cases, most notably United States v. BDO Seidman, (7th Cir. 2003), where courts have required law firms to turn over the identities of individuals who purchased tax shelters. Other cases involve the law firms Jenkins & Gilchrist and Sidley Austin. Ms. O'Connor emphasized that taking an tough line with accountants and law firms is crucial: organizations with high standing in the community can induce many, otherwise law-abiding people to believe their opinions that taxes can be avoided entirely. Her discussion focused on the "product"-like nature of tax shelters, and the decision by law firms in the last two decades to focus on "providing products" instead of "providing services." If the transaction is entirely product-based, she noted, the customers - "not clients" had not sought legal advice, so no attorney-client privilege exists. Alternatively, she suggested Congress could easily solve the problem of tax shelters by relying on the same distinction - simply require the accrual method of accounting, appropriate for "product" businesses - for all firms that sell tax shelters.

In the end, she brought the focus of her talk back to professional responsibility, and remembering to ask "but is it right," not just "is it within the letter of the law." She described the LLP structure of most contemporary law firms as an enabler to more gray-area behavior: after all, while the tax-shelter business still enriches all the partners at law firms like Jenkins & Gilchrist, limited liability ensures that the other partners are insulated from responsibility from all wrongdoing but their own. If law firms did a better job of using conscience, ethics, and oversight to take care of their own, law enforcement would be a much rarer recourse.
-----------------------------------

Her topics would have made for a good debate, not just a speech. There is certainly a debate over the use of "John Doe" summonses, both in the individual and the law-firm context. And to what extent has government enforcement focused on tax shelters only when politically pressured by exposes in the press? All in all, however, Ms. O'Connor provided an excellent overview of a subject that most HLS students probably dismiss as "uninteresting." It's certainly not that.

2004-04-22T15:37:00.000-04:00

Thoughts on usdoj.gov: Newsweek reported this week that civil libertarians intent on pressing the "law enforcement" approach to fighting terrorism had picked on one of the wrong targets: Attorney General John Ashcroft. According to the report, Ashcroft has argued for allowing Americans accused of involvement with al Qaeda to have access to the courts instead of treating them as "enemy combatants."

This shouldn't surprise anyone. As a senator, John Ashcroft was known for his support of defendants' civil liberties, voting against the Prison Litigation Reform Act, against a national ID card, and against increased wiretapping powers for the FBI. And in his public speeches, Ashcroft has consistently sounded the theme that the American system of rights for defendants is an important protection from government power, even as he has (consistent with his professional responsibility as Attorney General) defended even the strongest actions of the government to protect Americans from terrorism.

Ashcroft appears to have been singled out by the ACLU and other liberal groups as an avatar representing unchecked power and the threat to civil liberties. Why? In my opinion, it's because liberals lump together the question of "strict separationism" with all other civil liberties issues, and assume that being a civil libertarian requires interpreting the establishment clause in extreme terms, privileging it over the free exercise clause, and barring any public expression of faith. Since Ashcroft is a believer in a weaker establishment clause and believes that his free-exercise rights extend into the workplace, he was immediately perceived as an enemy after his appointment. This view swiftly attached itself to their view of him on all issues. (My theory is only weakly supported by evidence, but barring "secret" memos left unprotected on file servers, it's often hard to identify true motivations.)

Of course, it would be helpful if he recognized that people's perception of the Attorney General has changed since the era of Robert F. Kennedy. The AG is no longer expected to be a right-hand man or a political spokesman for the President. By appearing overtly political, it is easier for the Bush administration's opponents to discredit not only Ashcroft, but many of the (in my opinion, good) policies that he supports. That's why I'm disturbed by the current use of the DOJ homepage.

Front-and-center, it currently features the Attorney General's Testimony before the National Commission on Terrorist Attacks upon the United States, with a prominent link to the 1995 Gorelick memo. Now, I firmly believe that Ms. Gorelick should have recused herself from questioning of AG Ashcroft, and perhaps from the 9/11 Commission. But I also think that this is fundamentally a political question, and that there's probably better uses for the web site than overt political promotion. For example, immediately below the testimony link is a link to information on emergency planning and terrorist attack preparation.

What about the link immediately above, to the DOJ's explanation of why the oft-demonized Patriot Act has received a bad rap. This is a close call - after all, the purpose of defending the Patriot Act is in part political. But it's also an important policy issue and it remains a priority for the DOJ, separate from partisan political ends, to renew the expiring provisions of the Act next year. On that one, I'm undecided.

2004-04-21T14:31:00.000-04:00

New DVD Can Filter Movie Content: So reads the headline from this FindLaw article, about a new DVD player that can be programmed to remove the "objectionable" content from movies. As Stuart Benjamin so aptly writes, our society has become obsessed with obscenity and has begun to overreact. Benjamin predicts that the Supreme Court will strike down the new FCC penalties for indecency as violative of the 1st Amendment, and I think he may be right. Might the Court also rule that this DVD technology violates the law?

The technology was developed by a company called ClearPlay and works as follows. The user buys the special DVD player from RCA (more manufacturers could adopt the technology later if they wish). The player includes filters for 100 movies, including some popular new choices. Users then pay a monthly subscription fee of $5 to download new filters off of the ClearPlay website. The site currently has 500 filters and will be updated weekly. The user then burns the filters onto a CD for transfer to the DVD player.

At least for now, this process seems too burdensome for a number of people to do on a regular basis (after all, who uses the V-chip?), but let's assume that the technology continues to improve and this becomes a regular phenomenon. Yes, users may appreciate a "swear-free" movie, but does this violate the intellectual property rights of the movie's owner and creator?

My first impression seems to be yes. The player creates a derivative work of the movie, even if it does not physically alter the original DVD. If you rip a music CD to the hard drive, you have created a derivative work. The same electronic copy is made in this case, only the violation is worse because the electronic copy represents an alteration of the original version.

But isn't there a fair use argument here? After all, this is only being done for personal use. The DMCA has no fair use exemption to infringement. This is (technically) what prevents a user from ripping a CD that he legally purchased into mp3 form on his hard drive (even if the industry will not pursue these individuals). In this case, however, the industry has a stronger legal claim, because unlike an mp3, which represents only a minor technical alteration to the content, this would be a major substantive re-structuring of the artistic work. This would seem to impact the fourth of the fair use guidelines, which deals with the economic impact of the use upon a potential market. If this player creates "family friendly" versions of movies, this does not allow the studios to capitalize on this market.

In the Campbell case, the Supreme Court noted that potential markets included markets for derivative works. But the Court also said that a key question is whether the P (in this case the studios) would be interested in filling the market of the D (creating family-friendly movies). The studios could argue that they are already in such a market, as edited versions of movies are routinely licensed to television stations.

In addition, the studios could raise the moral rights behind copyright. Under the Berne treaty, authors have a right not to have their rights changed or corrupted without their permission. In Gilliam v. ABC (the "Monty Python" case), an American television was prohibited form cutting out portions of the British show in order to fit it into a traditional American television time slot. As stated by Nimmer, "Gilliam holds that unauthorized changes in the work that are so extensive as to impair the integrity of the original work constitute copyright infringement." In subsequent cases, courts have been reluctant to expand Gilliam. For example, recording of commercials on the blank leader of videotape preceding plaintiff's pre-recorded motion pictures did not violate copyright, nor did writing the Lord's Prayer on the blank pages of copies of a book. But when the alteration involves the substance of the work, courts have found violations. In Midway Manufacturing, the 7th Circuit held that speeding up the movement in a video game constitutes an unauthorized, and therefore infringing, derivative work. The Supreme Court denied cert in the case, but looking at both Gilliam and Midway, it appears that altering the creative content violates the rights of the creator.

A lawsuit is pending against ClearPlay. The company claims as a defense that it does not alter the original DVD, but it remains to be seen whether this will be enough to trump a copyright claim. My guess is that it will not, and censored movies will be relegated to television broadcasts.

2004-04-21T08:24:00.000-04:00

The Whole Story on Baseball Finances: Allen Barra of the WSJ has a piece today on Yankees owner George Steinbrenner, and how, unlike other super-millionaire baseball owners, Steinbrenner is willing to spend more in the name of winning.

But there is much more to the story than that. The Yankees revenue stream, as Barra points out in one sentence, far exceeds that of the other teams. The key behind this is local television. I don't have the exact numbers handy, but the Yankees local TV deal is $20 million higher than the next closest team, the Mets. That is twenty million per year. This is one additional superstar player, like an Alex Rodriguez. This is two All-Star players, like Gary Sheffield and Kevin Brown. And local TV is not the only place the Yankees have an edge. Yes, other teams have super-millionaire owners, but they do not have these guaranteed revenue streams each year, despite injuries, a bad season or off-the-field turmoil.

The solution: baseball needs a salary cap. It has become obvious that owners such as Steinbrenner will spend whatever it takes to win. While I commend that, it is bad for the game. But that is not the end of the story. Baseball also needs a salary floor. Teams should have a minimum level that must be spent on players to ensure that team owners do not line their pockets with profits while putting a lesser product on the field. The salary cap will encourage many teams to spend more -- you are likely to pay more if you think you have a realistic shot of winning. If you know you do not, why waste the money? Teams will be driven towards the middle, which will mean that almost every team, at the beginning of every season, will have a realistic shot at winning a championship.

2004-04-21T07:42:00.000-04:00

Financing Public Schools: Texas Governor Rick Perry has a new way to finance the public schools in Texas -- "sin" taxes on activities such as cigarettes, alcohol and "adult" activities such as strip clubs. With the money brought in by these taxes, the Republican governor could cut property taxes, which of course would be a great benefit to the wealthiest Texas residents.

But is this really a zero sum? Just because Texas is getting additional revenue through these sin taxes, why can't the property taxes remain at the same levels? Schools, even in the wealthiest districts of the state, never have enough money. Schools need new infrastructure, new computer equipment, and most of all, better teachers. Who would not be in favor of raising the teacher salary in Texas so that teaching became a more viable economic alternative for a number of the state's best graduates? Keeping the property taxes along with the sin taxes allows this to happen, at least in part. In addition, lowering property taxes could have negative future consequences, especially if the state faces a future budget crisis. Decreasing property taxes could lead to a greater tax burden, especially if the state were to institute a state income tax.

The proposal does seem appealing, though, because it repeals the Robin Hood system of taking from the wealthiest areas and giving to the poorer districts. While good in theory, the system has had numerous problems in practice, including failing to adequately adjust to changing property values in growing areas. However, the state does not need to lower property taxes in order to get past Robin Hood. In fact, one would think that residents would be willing to pay slightly higher property taxes if they knew the money would stay local, educating their children or their neighbors' children.

An alternative approach would allocate a greater portion of the "sin taxes" to the poorer school districts. This would provide a similar benefit to Robin Hood -- pumping money into the school districts with lower property taxes -- but it looks much more like a government subsidy than it does a tax on the wealthy. Property taxes would stay local, to the satisfaction of many people in wealthy areas, and poorer school districts could improve their relative situation.

And what a great way to support your local school. "Honey, I have to go to the strip club -- don't you want Junior to have a great education?"

2004-04-20T11:04:00.000-04:00

Broadcast cable? Here's an interesting prospect for increased communications competition, from Emmis Broadcasting executive (and former Seattle Mariners owner) Jeff Smulyan (full disclosure: he's also the former employer of one of my siblings). Low-cost wireless cable:

The gist of the plan: Broadcasters nationwide pool their resources to offer subscribers a package of 15 of the most popular cable networks for $25 a month, about half of what it costs for basic cable.

Broadcasters simply would retransmit the signals of cable networks over the air.

While the plan offers fewer channels instead of more, Smulyan said in the article that consumers are ready for less. "There's a market for low-end product in any business you can name," he told Broadcasting & Cable.

Consultants hired by Smulyan estimate that 10 percent to 15 percent of television homes could be drawn to a low-cost service, and he estimates that three-quarters of the customers would come from existing cable and DBS consumers who consider their services too expensive.

It's an intriguing idea. After all, vast swaths of (theoretically scarce) spectrum allocated exclusively for television signals are going to waste. Proposals to reallocate broadcast spectrum, proposed by JOLT Symposium keynoter Tom Hazlett, among others, have found little traction. And the high fixed costs of traditional cable service have made it hard for new entrants to offer competitive, cable-delivered, low-cost programming packages. At the same time, lease restrictions, neighborhood covenants, and interference make it difficult for a significant portion of Americans to experience the competition promised by DBS. And with the rise of subscription-based Tivo and satellite radio service, many Americans would like to reduce the amount they pay for cable in favor of increased spending on other options.

It will be interesting to see what he says in today's speech at NAB 2004.

Incidentally, whether you label it "broadcast cable," or "wireless cable," the oxymoron implications are enormous.

2004-04-19T22:23:00.000-04:00

Massachusetts: A tough place to be poor (if you're a politician): One of the requirements of Massachusetts politics appears to be "You must own a residence in Boston." Never mind that (as we Cantabrigians know), the Boston area is one of the most expensive real-estate markets in the country. First came former governor Jane Swift's experience. Gov. Swift was a politician of modest means from a remote corner of the state -- her home was in Williamstown, as far from Boston as you can get. Her husband, Charles Hunt, was a stay-at-home father, and her income as governor was a mere $75,000 (she was actually the "Acting Governor," still paid the salary of the Lieutenant Governor). As Massachusetts doesn't supply a residence for its governor, she was expected to pay to maintain a residence in Boston as well as her home in Williamstown (unless she was willing to uproot her family and sell her home, with a possible stint in office as short as eighteen months). At least, she was criticized for using state resources (a state police driver at some times, a state police helicopter at others) to ensure that she could spend most of her time working, as opposed to driving on the 2.5 hour commute home.

I thought this silliness might have had to do with Gov. Swift's party membership (Republican), her gender, or her status as the mother of newborn twins. But now, my sympathy shifts to Sen. Kerry, criticized today in Slate because "As a U.S. senator, Kerry would sometimes stay in homes owned by Boston supporters, and he paid rent 'on a per diem basis only for the nights he was in Boston.' After his divorce, Kerry did not have a permanent Boston address of his own." It's my turn to defend Senator Kerry on this one -- it's a little ridiculous to expect him to spend his salary maintaining an unused residence at Boston prices. If it's important as a technicality that he maintain a permanent residence in Massachusetts somewhere, I'm sure he could have kept a tent on a plot of land somewhere west of Worcester for a reasonable price, and done exactly the same, sensible thing: spent his nights in Boston at the home of a supporter, and paid by the night (just as he would have if he spent those nights in a hotel). It seems to me that staying in someone's home also provided him protection in another sense -- it likely helped ensure that he wasn't alone, and vulnerable to rumors about his personal life.

Would you want to pay rent on an empty flat in Boston? I sure wouldn't.

2004-04-19T21:45:00.000-04:00

I'll out myself as the shooter who would not vote for a candidate for President who doesn't like sports. Indeed, I would generally favor a candidate whose hobbies or experience included a competitive sport, as opposed to an avocation such as antiquing, sculpting, or skydiving.

To clarify, however. I'm not taking credit for everything attributed to that "one person," although I believe that I made the initial comment. The characterization over at CM amalgamates several of the people at our table into one: I could care less about what sort of stadium President Bush and VP Gore prefer. I also would favor participation in a team sport over an individual sport, such as golf.

But I would defend the idea that it is rational to believe this for what are "uncharitably" labeled "traditional macho attitudes." I would have the same preference if I was selecting a district attorney, or an assistant district attorney. I believe that management of foreign affairs and national defense is the most important issue. And while others may favor a conciliatory, multilateral approach, I haven't been surprised to see France, Russia, and other putative allies outed for their corrupt sleaziness in backing Saddam Hussein. It's an international competition out there, and the President has to be willing to fight and win.

Sure, it's macho. But the study of arts and literature is going to inculcate different values.

There are other reasons that a dislike of sports is troubling. Competitive sports is a central facet of American culture, and I think having that understanding the community-building importance of spectator sports is crucial to being a good leader of Americans. And in a country that lacks the long, shared history of many older cultures, sports records and sports history play an important role in creating an American heritage as well.

For the record, Slate reports that "At St. Paul's School in Concord, N.H., [John] Kerry won a prize for a speech titled, 'Resolved: that the growth of spectator sports in the western world in the last half century is an indication of the decline of western civilization.'"

2004-04-16T16:45:00.000-04:00

Beauty is more than skin-deep: Every once in a while, there's an academic study that yields results that just seem right. In this case, it's from the University of Wisconsin, released with the headline "Physical beauty involves more than good looks"

:The results, which show that people perceive physical appeal differently when they look at those they know versus strangers, are published in the recently released March issue of Evolution and Human Behavior.

To systematically consider the influence of non-physical traits on how people who are familiar with each other perceive physical appeal, Kniffin and Wilson conducted three studies of beauty involving people who know each other and people who don't. For all studies, the participants were asked to rate physical attractiveness and non-physical traits such as liking, respect and talent. Strangers rated only physical attractiveness.

"In each case, non-physical traits known only to familiars, such as how much the person was liked, respected and contributed to shared goals, had a large effect on the perception of physical attractiveness that was invisible to the strangers," says Wilson.

At the end of their paper, the researchers offer this beauty tip: "If you want to enhance your physical attractiveness, become a valuable social partner."

This fits well with my experience, and I think the experience of many other people. I once dated a woman who was threatened by friends of the opposite sex, but only those that I had never dated or hooked up with. Her rationale was that if they had the attributes that made them appealing as friends, sooner or later they would come to appear physically attractive, regardless of whether I thought so at first. While her position was extreme (and led to a quick end to that relationship), it does make sense that we would associate non-physical characteristics of someone with our dominant, visual sense.

I don't think it's entirely psychological, however, either. Physical attractiveness isn't always something that can be fully recognized at first glance (that's not to say that it can't be for many other people). Like subtle inanimate aesthetics, often it takes a while to recognize the more subtle attractive elements of someone's appearance. I have a friend who believes that "90% of women are beautiful, if you give yourself time to recognize it," and I've often thought that he's right. But I suspect that both effects are at work in making that proposition a reality.

Hat tip: Rand Simberg

2004-04-16T10:32:00.000-04:00

Today's top stories:

Bill Rancic is "The Apprentice": I should have placed a bet on him after the first episode (I probably would have, but this was the first reality show I ever watched directly). When the series started, Bill was the only member of the cast who I had seen before -- being interviewed (repeatedly) as part of news segments on the dot.com era explosion in luxury goods. It's possible that I even considered ordering cigars for a friend's bachelor party from his website.

Anyway, he's a deserving winner -- I continue to believe, as I did last week, that Kwame would have won if he had just fired Omarosa on the spot during the next-to-last episode. It seemed like such an obvious set-up that I was sure Trump had planned the whole thing.

And Bill definitely made the right choice of projects to work on. Just a few weeks ago in Nashville, I was talking about the Trump International Hotel & Tower -- it was originally supposed to be a 150-story behemoth (plans changed after the terrorist attack on the World Trade Center), and it's received press attention (see, e.g., this New York Times story for its planned dual-function condo/hotel rooms). And Bill's style seems better suited to the project than to staging the golf tournaments that will undoubtedly be central to the strategy to attract $15 million custom home buyers.

New government job: National Intelligence Director? This proposal has been bandied about for a while. I'm skeptical. This seems likely to just create an additional level of bureaucracy in the system, creating one more master for intelligence gatherers and analysts to try to satisfy, and further watering down the value of intelligence gathered. In the past, White House czarships like the Office of National Drug Control Policy, and the Office of Homeland Security (pre-DHS establishment) just haven't been that successful. The National Intelligence Director, to have any real power, will need to have budgetary and personnel authority over all the intelligence agencies, which will put him constantly in conflict with the Attorney General, the Secretary of Defense, the military service chiefs, etc., etc.

Unfortunately, the idea of creating a separate, domestic intelligence agency, or moving domestic intelligence responsibilities into the hands of foreign intelligence gatherers, appears to be on the back burner. But a major reason that "the wall" between law enforcement and intelligence had to be built so high was their colocation in the FBI. As long as FISA and similar statutes permit proactive techniques for intelligence-gathering (as they should - I doubt anyone believes that a reactive, law-enforcement approach to terrorism will keep us secure), having the same people, or the same agency, running law enforcement investigations and intelligence operations will require special care to protect civil liberties.

Admittedly, a domestic intelligence agency raises civil liberties fears as well -- one need only remember the abuses masterminded by J. Edgar Hoover and Richard Nixon to recognize the potential for domestic surveillance to endanger freedom. Adequate oversight, perhaps by Congress and the courts, and public disclosure of past activities, to a significant extent, will be required for people to have confidence in this solution. But it's a better one than a new "National Intelligence Director" and a staff to support such a post.

2004-04-15T20:24:00.000-04:00

What do Dick Cheney and John Kerry have in common? Both have close associations with companies that could gain a lot from their election, or reelection.

The Halliburton story has been told, both poorly and well, and it's worth remembering that VP Cheney's compensation from Halliburton is not dependent on their future performance.

Sen. Kerry's links to HJ Heinz Co., however, can't be ended by his election, and Kerry has proposed a tax plan that could be worth $832 million to the company -- $33 million to his family alone, according to Kevin Hassett of the nonpartisan American Enterprise Institute:

The Kerry team clearly recognized the possibility that [their tax plan would cause] significant harm, because they added a loophole. If a U.S. multinational produces a product in a foreign country for consumption in that country, then they will continue to allow the firm to avoid U.S. tax until the money is mailed back home.

Think of all of the needless and duplicative activity this will generate. Multinationals will be forced, in pursuit of tax savings, to introduce newer and smaller production facilities in every country they serve. Transportation costs are low enough, and scale economies large enough, that most multinationals operate a few production facilities located in attractive hubs around the world.

So why would anyone propose such a thing? Some industries, like food production, already operate that way. Because of local food regulations, and concerns about spoilage, it is often the case that food companies locate a separate plant in each country that they serve. Chief among these is Heinz, which owns 57 plants outside of North America that, as the company states, "provide products to consumers in those markets." . . .

[A]ccording to form 10-K, almost 84 percent of its income from continuing operations came from foreign markets in 2003. Accordingly, the impact of the Kerry plan on that company's value would be tremendous. If we assume that deferring U.S. tax on their foreign income saves them the difference between the U.S. tax and the average foreign tax, then that adds up to annual savings of about $43 million. With a P/E ratio of 19.35, that means that absent the loophole, the firm's market value would drop by about $832 million upon passage of the Kerry tax plan. Assuming that the Kerry-Heinz family's share of the company is four percent, which is the upper limit of what has been reported, then this loophole saves Mr. Kerry's family around $33 million. It is easy to see why they might support this loophole, but hard to see why anyone else would.

Elsewhere, Hassett analyzes the likely consequences of the Kerry tax plan, in light of his recent study showing that U.S. corporate taxes are 18% higher than the average in comparable countries. Under his plan, when a U.S. company earns money abroad,

it must pay U.S. taxes immediately. This will make the negative impact of high U.S. taxes impossible to avoid and force U.S. firms to significantly increase prices. That should lead to sharp reductions in market share and employment both at home and abroad, and a likely wave of foreign acquisitions of U.S. companies.

That's the context in which the Heinz loophole is set. In other words, Sen. Kerry's populist, anti-corporate instincts may punish American companies, workers, and the world economy, while protecting his own (well, his wife's) pocket from much of the harm. While I'm a believer that presidential elections (and the president in general) have little influence over the economy, remember this the next time Kerry claims that he'll be bringing back Clinton's economic policies. "Punish American companies, except Heinz" wasn't a battle cry that we heard during the 1990s. Of course, when Bill Clinton began his quest for the presidency in 1991, Teresa Heinz was still married to a Republican.

2004-04-15T14:45:00.000-04:00

"Winner" Martha Burk: As the world debates whether she or Hootie Johnson has won the showdown over women at Augusta National (today's issue of GolfWorld speculates that Nancy Lopez will be admitted - but not until 2006, at the earliest), she's won this round in the courts. In what looks to be a good First Amendment decision, the 11th Circuit has struck down the Augusta County law imposing a licensing requirement for "political protests" as a content-based speech restriction. Greg is likely to have more, soon.

2004-04-14T18:19:00.000-04:00

DDT, lice, and common sense from the New York Times: Far Outliers follows up the stereotype-defying New York Times story on the need to overcome prejudice against the use of DDT, with a firsthand account of its effectiveness:

On one occasion in 1976 when I left my New Guinea village to make a trip into town, my host family asked me to get medicine to kill the head lice their son had picked up while away at school. I did so, and he rubbed it into his hair and then tried to refrain from scratching his scalp as the lice ran around in their death throes. I think he may have had to "lather, rinse, repeat" to get the remaining nits after they hatched, too. It seemed to be effective, but I was horrified at the time to read on the label that the active ingredient was DDT.

Even after several years of New York Times activism on the DDT subject (see, e.g. a 12/23/02 editorial declaration that "The developed world has been unconscionably stingy in financing the fight against malaria or research into alternatives to DDT. Until one is found, wealthy nations should be helping poor countries with all available means -- including DDT." They steadily gloss over the fact that this position puts them on the side of what's right, but against what they usually support.

Environmentalists have bullied most countries into signing a treaty, the Stockholm Convention on POPs, committing them to the phase-out of DDT use and its eventual ban. Indeed, its use is presently banned, except for malaria-fighting programs. But this ban makes it hard to convince countries to use it (e.g. by provoking charges that the U.S. just wants to sell them chemicals we won't use for ourselves), and makes it vulnerable to radical protesters (one factory now makes most of the DDT for worldwide use, and Greenpeace and other radical environmentalists have repeatedly tried to force it to close down).

Because of the treaty, arguing for increased DDT use in "the national interest" of tropical countries is an argument for unilateralism, for undermining the international order, and the whole host of terrible outcomes that the Times has steadily accused the Bush Administration of fostering by its withdrawal from other, bad, international agreements (and note that in those situations, the U.S. had not ratified the treaties in question).

South Africa itself, the subject of the Times article, ratified the treaty in 2002. Roger Bate of the Competitive Enterprise Institute has long been a voice of reason regarding the anti-DDT campaign, and he has repeatedly pointed out how successful DDT was against malaria, and how close the world came to actually eradicating malaria during the 1960s, at least in many places where it persists today (in India, for example, malaria cases fell from 1 million per year to a few thousand, but with the ban on DDT, have risen back into the millions). Few realize that malaria used to be a problem as far north as the Arctic Circle, and throughout Europe and North America -- it was DDT that solved this problem.

Nonetheless, plaudits to the Times. They may be wrong on Kyoto, the Land Mine Ban, and other idealistic ventures, but they're on target on malaria.

2004-04-14T09:36:00.000-04:00

What constitutes a conflict of interest? Dwight Meredith reports that Jamie Gorelick has links to Saudi Arabia. Gorelick, of course, sits on the 9/11 Commission, examining the circumstances giving rise to the attacks:

Gorelick is a litigation partner in the Washington law firm of Wilmer, Cutler & Pickering... Gorelick's firm has agreed to represent Prince Mohammed al Faisal in the suit by the 9/11 families. The families contend that al Faisal has legal responsibility for the 9/11 attacks....

Given that the 9/11 families' suit charges the client of Ms. Gorelick's firm with responsibility for the 9/11 attacks, it is completely inappropriate for her to remain on the 9/11 commission.

It is outrageous that her firm would have accepted the representation of a defendant in the suit while Gorelick sat on the commission. It is more outrageous that she did not immediately resign from the commission.

She must immediately resign the commission. No excuses. No delay.

Meredith also criticizes a lengthy list of other political leaders who are connected to the Saudi defense.

Should we take this charge seriously? I haven't studied professional responsibility yet, but a quick perusal of the DC Bar Association's rules of professional conduct suggest that there probably is a problem.

Rule 1.7 reads:

(a) A lawyer shall not advance two or more adverse positions in the same matter.
(b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if:
(1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer;
(2) Such representation will be or is likely to be adversely affected by representation of another client;
(3) Representation of another client will be or is likely to be adversely affected by such representation;
(4) The lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party or the lawyer's own financial, business, property, or personal interests.
(c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation.

Meanwhile, Rule 1.10 states that "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(b), 1.9, or 2.2."

I think it's clear that representation of a rich, powerful client like Saudi Arabia creates serious financial and business interests on the part of the lawyer, especially in a lawsuit of the magnitude of the 9/11 suit. The fact that most people don't expect the lawsuit to be successful shouldn't change the equation.

More importantly, it's not unimaginable that poor intelligence-sharing by the home country of most of the 9/11 terrorists could have played a role in the intelligence failure on 9/11. Such a finding by the Commission would almost certainly "be adverse" to the Saudis, as clients of Ms. Gorelick's firm.

And it seems impossible for "each potentially affected client" to "provide consent" after full disclosure in this matter. The entire purpose of the 9/11 Commission is to provide an independent, outside review of the events for the benefit of the American people. It seems unlikely that a conflict of interest wouldn't undermine that mission. Could Congress vote to "provide consent" to the Commission's membership? Hmm.

It's bad enough that members of the Commission are suspected of partisanship and playing presidential politics (another charge leveled at Ms. Gorelick, who has been one of Al Gore's close advisers). But the American people are used to dealing with partisan politics, and I trust people to take this factor into account. I also think that some of the Commissioners, such as Rep. Lee Hamilton, have done an excellent job of putting partisanship aside. I don't think the same thing holds true for financial and legal interrelationships, however: few people seem to have an adequate understanding on how much to distrust Vice President Cheney's motivations because of his past associates with Halliburton, for example.

I suspect that many of those criticizing Gorelick are only doing so for partisan purposes. Unfortunately, that doesn't mean that there's nothing to those charges.

Update: Eric Muller (IsThatLegal?) observes that the Commission actually has a recusal policy. Clearly by those standards as well, Ms. Gorelick should have recused herself from yesterday's hearings, and many other parts of the investigation:

1. Financial Interests

Commissioners and staff will recuse themselves from participating in matters as to which they have a financial interest.

2. Conflicts Arising from Prior Government Service

Commissioners and staff will recuse themselves from investigating work they performed in prior government service.

2004-04-13T22:56:00.000-04:00

Car taxes, and a roads report: Greg - You're right on the money with your criticism of the "automobile excise tax", although it's existence is hardly limited to "Taxachusetts." It's really just a different label for the tax that proved a key issue in the California recall election, as well as in Virginia gubernatorial politics, where James Gilmore was elected in 1997 by promising a repeal, then blasted for failing to keep his promise. Even Georgia has a similar tax.

Yahoo's Tax Center suggests that about 1/3 of states have a value-based personal property tax on cars, or its equivalent, and points out that you may be able to deduct the tax paid on your federal income tax return (although I think this only applies to those itemizing deductions).

Incidentally, don't fall for the "privilege of using the roads of Massachusetts" baloney. Like most explanations of "what is this tax for?", it's a phony. According to Secretary of the Commonwealth Galvin's website(isn't "secretary of state" so much easier), "the revenues become part of the local community treasury." Yep, just like most taxes, the money flows into the general treasury, not some special account.

If your fiance lives in Somerville, the city actually is spending tremendous amounts of money on the roads - just not to repair potholes. Somerville is criss-crossed by railroad lines, as I'm sure you've noticed, and over the last several years, the city has been engaged in projects to prevent their collapse. Next up: the Lowell Street bridge. If your fiance is in Cambridge, I'm not sure what to tell you, except that progress is finally planned on some of the worst streets: in theory, JFK Street and Wendell Street (the two I rate as worst) are on the list for this spring.

2004-04-13T21:20:00.000-04:00

Reason #415 Why Massachusetts Sucks: Before I moved here to attend an illustrious legal institution, I had heard things about the "commonwealth" in which Boston sits. I had read about Dukakis, heard the "Tax-achusetts" label, seen Ted Kennedy rant on issues. But this state (commonwealth, whatever) never ceases to amaze me.

Yesterday, my fiance received a notice from the great Mass folks charging an "automobile excise tax." I said, what is that? Two hundred bucks for what? So, we called and asked. The answer: "for the privilege of using the roads of Massachusetts." Wow, that set me straight. Thank you, Massachusetts, for granting me the incredible privilege of using the roads. Thank you for the lovely potholes every 50 yards that turn roadways into obstacle courses. Thank you for not cluttering up the light poles with signs identifying the names of the streets. Thank you for not defacing the streets with silly things like "lane markers" so I know if there should be one lane or three. I am so sorry that I even questioned the tax -- the benefits are so obvious.

But, just for the hell of it, let me raise one issue. The tax is for the "use of the roadways," which I suppose, is for the wear and tear cars cause on the streets. So, naturally, the tax is based on the weight of automobiles, because naturally heavier cars inflict a greater toll on the infrastructure than do lighter cars. Right? Wrong. No, instead the tax is based on the value of the car. Thus, the $80,000 Mercedes two-seater is taxed four times as much as the $20,000 half-ton pick-up. Now, I have no evidence of this, but I am sure that the potholes on the road do far greater damage to the Mercedes than that car does to the road. And I am sure that large trucks also inflict more damage.

In reality, this tax "to use the roadways" is just another way to get money from the wealthy. It is a backdoor method for collecting revenue, and it is obvious that the money in no way is being used to improve the roadways. It's not corruption, but it sure seems dirty.

2004-04-13T16:56:00.000-04:00

My initial impression of yesterday's release of the reform proposal for the First-Year Lawyering program was that it was a sound one, addressing many of the problems. Instead of offering my own perspective, let me suggest that you read the thoughts of an expert: someone who consistently criticized the course as we took it. Waddling Thunder outs himself as a credible critic of the FYL program, as one of only 8 students to be graded "low pass" in the first two years FYL has been offered:

I think they're basically moves in the right direction, as evidenced by the fact that I've actually complained about many of the problems before.

I recommend reading the whole post, replete with quotes from his posts from last year.

2004-04-13T12:51:00.000-04:00

How to get a bonus vacation day: A contest at KPRC-TV in Houston will replace sports anchor Chris Wragge for one day with the winner of a reality competition they call the "Sports Apprentice."

While the Houston Chronicle suggests that this is a combination of "Dream Job" and "The Apprentice", contestants shouldn't get their hopes up. While Wragge is leaving his job, it appears the prize is limited to a one-day stint - a little less rewarding than the ESPN and Trump/NBC competitions.

Perhaps Wragge is just looking for an excuse to extend his Memorial Day weekend.

2004-04-13T11:04:00.000-04:00

Justice Scalia's "rights": The New York Times blasts Justice Scalia for asserting a First Amendment right not to be recorded. David Bernstein criticizes their attack, writing that:

Justice Scalia has no obligation to give any public speeches. A fortiori, he has the right to condition his willingness to speak at a given venue on the absence of audio and visual coverage. (Edit: Of course, Justice Scalia could not stop a t.v. or radio station from airing footage of one of his speeches, if they acquire it. But he certainly could refuse to go ahead with a talk if he sees microphones or t.v. equipment present.)

I think a case can be made that both Prof. Bernstein and the Times are correct - that it's just a matter of how you define the right. Justice Scalia clearly has a First Amendment right to maintain his silence, or to not speak. See, e.g., Riley v. National Federation for the Blind ("[T]he First Amendment guarantees "freedom of speech," a term necessarily comprising the decision of both what to say and what not to say."). But is his ability to leverage that right, to "condition his willingness to speak," in Prof. Bernstein's account, still a First Amendment right, or is it simply a right of contract that happens to be dependent, in this case, on his First Amendment right. Consider, for example, the inverse situation. Justice Scalia is planning to write a book on the Second Amendment. The NRA, concerned that Justice Scalia might then recuse himself from future Second Amendment cases, offers him a set of Smith & Wesson Model 500s to postpone publication of the book until his retirement from the Court. Does he now have a First Amendment right to possess those handguns, in addition to his Second Amendment rights?

2004-04-12T22:29:00.000-04:00

The Masters -- Pure sport, no commercials: Like many other members of the blogosphere, the panel at Per Curiam agrees that this year's Masters was a marvel of sports entertainment. Writers of a Hollywood script could not have sculpted this masterpiece any better. You had the protagonist, beloved by many but to date unsuccessful in his quest to win the "big one." You had the amazing run by Els, who would have been the crowd favorite had he not been up against Mickelson. Lefty had the lead, Els made a run with a pair of eagles, but Mickelson, undaunted and smiling the entire time, birdied five of the last six holes to claim the Green Jacket. The golf gods seemed to smile on Lefty as they kept his final putt on the lip of the cup before allowing it to drop in. Combine this with back-to-back holes-in-one on 16, an amazing eagle by Choi on 11 and a 19-year old college freshman shooting 31 on the back nine and you had one of the best Sundays in Masters history.

Besides the great golf, viewers also enjoy the Masters for a reason that may allude some: there are no commercials. In response to threats last year to lead a boycott of Masters sponsors, Augusta National elected to end all commercialization at the tournament, including television advertising, rather than placate the critics by admitting women to the club. Even before this, the club restricted the number of advertisers to two or three, and also limited the amount of commercial time to a few minutes per hour. Augusta picked up the rest of the tab with private funds.

Thus, many viewers may not realize it, but the Masters is more fun to watch because of the dearth of loud, annoying and mood-breaking commercials. CBS was allowed to set the scene for Mickelson's run, building drama without interruption by flatulating horses advertising beer, or imaginary Microsoft users celebrating fifteen minutes without a reboot.

The difference from normal television is startling. Studies show that viewers are being inundated by more and more commercials and "clutter" during television programming. Twenty years ago, the FCC deregulated restrictions on commercialization, eliminating the 16 minutes per hour limit. As one of its reasons, the FCC stated that networks showed only 11 minutes of commercials per hour. In the past two decades, though, this number has risen to 16-20 minutes per hour, including 17 minutes per hour during prime time on the four main networks. Thus, nearly one-third of all television time consists of car ads, promotions for the latest sitcom and plugs for the "most important news story of the year - film at 11."

Applied to entertainment programming, this is not necessarily a bad thing. Lengthier commercials may increase the social value of reality television series, by permitting more opportunities to discuss whether Versacorp is pursuing the right strategy in the latest episode of The Apprentice. Similarly, increased minutes of commercial time may permit the broadcast of shows with higher production values, like "The X-Files" or "24." At the same time, of course, the more frequent or lengthier interruptions also erode the immersiveness and continuity of the television narrative, so many would argue that the rise in commercials degrades the television-viewing experience.

The opposite may be true in sports broadcasting, however. Commercials during The Masters would not greatly affect the competition itself: as Brian Murphy pointed out today, The Masters broadcast is all about cutaways to action that's already happened: "This was a moment ago" is an essential part of the experience. But sports that are broadcast as live action see the actual competition altered by television's need for commercials. When the NBA playoffs begin in a few days, we'll see momentum-altering "TV timeouts," and the sluggishness of baseball games has been worsened by lengthier breaks for TV commercials between every half-inning. Maybe we should wish that Ms. Burk and Howell Raines had targeted basketballl's all-male coaching ranks...

So, should anything should be done to limit commercials? And if so, what? When most American households received only the broadcast networks, if commercial times grew too onerous, demand would decrease, forcing the networks to respond. But now that the vast majority of Americans have subscribed to cable, purchased VCRs and DVD players, and connected to the Internet, demand can more easily shift elsewhere: to recorded programming, or to premium channels such as HBO. Or perhaps consumer preferences have evolved: rather than committing themselves to watching one channel continuously, they may choose to flip between channels, with transitions triggered by commercial breaks. Or maybe networks have pulled a fast one: viewers might notice if commercial time suddenly jumped from 15 minutes to 25, but by gradually increasing the "clutter" time over twenty years, maybe people have unknowingly accepted a change that they they wouldn't voluntarily choose. [Think height: when you were growing up, your parents did not notice your growth, but Aunt Sue always said "You've gotten so tall" when you saw her every six months.]

Could the government re-regulate the commercialization of television? The broadcast spectrum is held in the public trust - the individual stations do not own it, nor does the government. The Supreme Court has often held (most famously in FCC v. Pacifica), that content on networks can be regulated to meet the public interest. How many commercials can be broadcast before the networks have failed to live up to their responsibility to broadcast "in the public interest?" Could they broadcast a 24-hour commercial channel and still satisfy this standard? And should the "public interest" continue to be the standard when viewers have so many other choices?

So this year's Masters is one for the books. Remember it during the NBA Western Conference Finals when you're watching Kerri Walsh and Misty May hit the volleyball into the icy water for the eighteenth or nineteenth time.

2004-04-12T10:50:00.000-04:00

The Iran connection: Ralph Peters discusses attacks by Iranian agents on American troops:

O[n] Saturday, Iranian agents ambushed an American convoy on the road between Mosul and Akre in Iraq. The attack did not go as planned: Our troops responded sharply, killing two Iranians, wounding a third and capturing two more.

They were carrying their identity documents...

As this column reported last week, the extent of Iranian involvement in the recent revolt goes very deep. The facts that follow have been confirmed by at least two sources exclusive to The Post.

Moqtada al-Sadr is Iran's man in Shi'a Iraq. Several months ago, he slipped across the border to meet with Hezbollah terror chiefs that Teheran had invited from Lebanon. The factions struck a deal to cooperate against the Coalition in Iraq.

Hundreds of Iranian agents and fighters have been confirmed to be in Iran. The actual number is probably in the thousands. They've swelled the ranks of Sadr's "Mahdi Army" and stiffened its backbone.

The case for a tempered response against Iran has long been strong. There is a strong opposition movement to the dominating theocrats, who appear to be undermined by any expression of American support. The Iranian government is respected by Iraqi Shiites (although not viewed as a model for a future Iraqi government), and so a stronger Iranian policy may pose challenges to Iraqi reconstruction.

The time seems to be coming for a shift in direction, however. Quite simply, overt attacks by official Iranians on Americans cannot be ignored. We know that al Qaeda was emboldened by our failure to respond to their attacks in Mogadishu, in Dar es Salaam and Nairobi, in Aden. Much ink has been spilled postulating that toothless American responses to Iraqi intransigence caused similar effects. Are we making the same mistake regarding Iran? It seems we are.

Not only have we been silent about the links described by Peters, but we're allowing Iran to play Saddam's game with WMD programs (Iran is likely in violation of nuclear, chemical, and biological weapons treaties): making strong statements, then making concessions, then barring inspectors, then allowing them in. We know that our allies and other countries are suckers for this sort of endless series of unmet promises. Today, nuclear inspectors arrived for another go-around - anyone want to bet that they'll get just enough cooperation to forestall stronger action again?

Despite overwhelming evidence indicating that Iran was behind the Khobar Towers terrorist attack in Saudi Arabia (Louis Freeh testified to this fact just a few months ago, and repeats the evidence on today's WSJ editorial page), Iran has never faced a forceful reprisal. Iran continues to support Hezbollah in its attacks on Israelis as well, and is one of the leading terrorist sponsors in the world. Yet despite the evidence of their direct involvement in terrorist attacks on Americans, and their continued support for terrorism, under both the Clinton and Bush administrations, Iran has been allowed to escape paying any price for this attack.

Iran has proved itself a master of avoiding responsibility. Indeed, Al-Jazeera reports that Iranian leaders are now trying to distance themselves from violence within Iraq. It seems, as Peters pointed out, the White House will play along. But allowing them to continue to attack Americans with impunity will not only reinforce their actions, but will likely inspire others to play the same games and hope to achieve the same results. Our security from both terrorists and rogue states depends on our willingness to take the tough actions required to respond to the targeting and killing of Americans.

2004-04-11T23:39:00.000-04:00

Biological weapons against his own people? In response to the hypothetical presented by Greg and Gregg, commenter Jacob notes:

One small nit with your article. I don't think Hussein ever used biological weapons against his own people. While he did use chemical weapons against the Kurds (e.g. mustard gas at Hallabja) I don't know of any case where he used biological weapons. I'm not an expert on this though and if you have evidence to the contrary, I'd gladly retract this.

I'm not aware of any hard evidence of bioweapons testing either, but I know that rumors of it were widely reported in the media during the 1990s. See, for example, the Chicago Tribune, on Jan. 31, 1999, reporting:

[UN weapons inspectors had] a document, forwarded to them by the U.S. Central Intelligence Agency, summarizing an interview with a high-level Iraqi defector in Europe. He described the activities of a secretive Iraqi intelligence cadre, Unit 2100, which he said took Iraqi political prisoners from Abu Ghraib to a military post at Al Haditha, 115 miles to the northwest.

"The unit conducted experiments on human subjects using chemical and biological warfare agents," states the document. "Prisoners who were sent to Unit 2100 did not return."

The defector's account and the accuracy of his past information had all but convinced the inspectors that Iraq had used the political prisoners to advance their most heinous weapons in 1994 and 1995. The inspectors hoped to find prison records to confirm that story.

But once inside the prison, they found that the records for 1994 and 1995 were missing. When they asked for the documents, Iraq effectively ended United Nation's inspections in Iraq, leaving the suspicion of human testing just that--a suspicion.

Before the war, these accounts were reinforced by sources like the notes of Iraqi Dr. Rihab Tahah, one of the directors of Iraq's biological weapons program before the first Gulf War, chronicling extensive testing of biological weapons on non-human targets.

Given the widespread accounts of chemical weapons use that Jacob mentions and these incomplete accounts of biological weapons, I find it highly plausible that the claims of biological weapons testing fit within the hypothetical.

The Tribune account is also noteworthy because it highlights just how Saddam's persistent obstruction of the UN and weapons inspections prevented the use of good intelligence when we had it, afforded him the opportunity to destroy evidence, and helped create concerns that he was preserving stockpiles of weapons, and not just the robust capacity to create stockpiles that he apparently retained.

2004-04-11T13:56:00.000-04:00

D.V.I. Watch

Over spring break, I snapped the above photo of the U.S. Courthouse in St. Thomas, some students' "dream destination" for a clerkship. Perhaps that image doesn't say as much as the view from the courthouse steps.

HLS students take heart: President Bush has nominated alumnus Curtis Gomez, a former AUSA in St. Thomas, to sit on the district court bench. Clerkship applicants take note: Gomez is not just some carpetbagger, but a St. Croix native. Something tells me that "I'm looking for better weather" isn't going to be a satisfactory answer to questions about why you want to clerk for him.

Before you apply, you might want to read about what it's like to relocate to the Virgin Islands (sample hint: "Get good [medical] insurance"). And it's not exactly cheap: This cost-of-living calculator suggests that Charlotte Amalie is a more-expensive place to live than Boston.

2004-04-11T11:20:00.000-04:00

In honor of...: Because of a case better left to the Sports Law Blog, former Rockets forward Matt Bullard became the color commentator for the Rockets.

And he is colorful.

In less than two weeks, Bullard's ascension has sparked a pair of great news items.

First comes an item from Ric Bucher at ESPN the Magazine, describing how Bullard met his future wife: "asked by then-coach Rudy Tomjanovich why he blew a post-timeout diagrammed play, [he] admitted that he was trying to memorize the phone number written in lipstick on a piece of paper by a woman behind the Houston bench." Yep. A Hollywood story, only in the NBA. (Steve Rushin can only wish that he had met Rebecca Lobo in a comparable way. Perhaps if he'd attended a WNBA game before they met...

Second, the Houston Chronicle's Ken Hoffman observes that "in video games, he's Michael Jordan, Shaq and Kobe all rolled into one," regardless of whether Bullard, kids at a deli, or Darius Miles is playing the game. It reminds me of 1995, when Indianapolis native Lamont Warren was an untackleable superstar in Madden football, but rushed for only 152 yards in the regular season as a backup to Colts star Marshall Faulk. While Warren did turn in a pivotal performance (20 rushes, 76 yards) in the Colts' playoff victory over the Chiefs that year, like Bullard, he never really lived up to the expectations raised by his electronic avatar.

If Bullard adds half as much color to his broadcasts as to the news pages, he'll be a big success.

2004-04-09T19:14:00.000-04:00

Don't follow our example: If you're a 1L and not planning to apply (and succeed in your application) to the Harvard Law Review, it's time to rethink your position.

For the second time in recent weeks, a student-authored note in the Law Review has attracted attention in the mainstream media and is influencing attitudes and opinions outside the world of legal academia.

This time, the venue is Nevada, where the Las Vegas Review-Journal has cited a January student note on Guinn v. Legislature of Nevada as ammunition in its campaign to overturn the Nevada Supreme Court's ruling in the case. The editorial is complemented by a full-page article interviewing parties in the case, their attorneys, and even a senior Supreme Court justice for their opinions on the student note.

The Note's argument is well-summarized in this passage:

In Guinn, the Nevada Supreme Court misapplied its own rules for interpreting conflicting constitutional requirements by failing to harmonize the two provisions and by giving precedence to the more general requirement. The court, in effect, substituted a new rule, that the substantive trumps the procedural, for its established rule that the specific governs the general. This new rule is not only contrary to precedent, but also threatening to the separation of powers in two ways: it provides the court too much discretion in deciding which constitutional requirement to prioritize when there appears to be a conflict, and it jeopardizes the integrity of procedures that are central to the separation of powers in a free republic.

Ultimately, the Note goes on to argue that the Court could have "attempted to justify its prioritization of the education provision" on different (albeit shakier) grounds.

The citation for the note (unsigned, following HLR convention) is 117 Harv. L. Rev. 972. The case discussed is Guinn v. Legislature of Nevada, 71 P.3d 1269 (Nev. 2003).

While the note has not yet been cited in a legal context, the anonymous author should be glad to have made a contribution to an ongoing political issue. And the subject should be a good lesson to aspiring student legal authors: state law can be as fruitful a source for "recent case" and "recent development" topics as federal law, where students often focus their attention.

The first high-profile Harvard Law review note was also in the January issue, a book note on Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design,By Francis Beckwith, which sparked furious debate in the blogosphere, including a defense from author Lawrence VanDyke over at Ex Parte. Another good illustration of the power of the Harvard Law Review to get ideas heard and recognized.

Update: Tim Sandefur reports that he cited the note repeatedly in his amicus brief, observing that in choosing to write on Leguin, the HLR author beat his own article to the punch.

2004-04-09T12:55:00.000-04:00

What Might Have Been: Sometimes it is scary how much Gregg Easterbrook and I think alike. On his blog today he has an "alternative history" that re-counts the public outrage that surely would have accompanied any 'pre-emptive' action taken by the Bush administration to prevent potential terrorist acts. I was discussing this very thing last night, but Easterbrook says it best:

I recommend the entire post.

There is no question in my mind that Easterbrook is correct, even if his prognostications are slightly exaggerated. The same individuals currently lambasting the administration for "failing to prevent" the 9/11 attacks, even though a few intelligence reports existed, would be the same people who would have condemned the President for taking preventative action.

In fact, we don't have to get into hypotheticals for this to be true. With apologies to Mr. Easterbrook, imagine this scenario.

In the end, it is easy to be a Monday (or Tuesday) morning quarterback. It is easy to see the evidence after seeing the results, but incredibly difficult to "predict" the future. People are understandably angry about 9/11, but their anger should be directed at the terrorists responsible for these deadly attacks, and not the administration that, like the rest of us, could never have imagined them occurring.

2004-04-08T13:05:00.000-04:00

The TSA's "Hassle-Fly" List: In Slate, Tim Noah criticizes the ACLU's lawsuit against the so-called "No-Fly" list, despite his own inclusion.

Noah concedes that the TSA and the airlines should be trying to develop a better system with fewer false positives, but ultimately dissents from the suit because he doesn't believe that the burdens on individuals on the list rise to the level of constitutional violations. He argues that "the ACLU's specific complaints about the No-Fly List are so petty that I can't imagine any reforms would ever satisfy it."

That's probably true -- my sense is that the ACLU is involved for two reasons. First, it's a good "headline grabber," that reinforces the media theory that the war on terrorism is obliterating our civil liberties -- with good examples that hit ordinary Americans, not just al Qaeda terrorists locked in Guatanamo Bay. Second, what they really dislike is the underlying list that happens to snare innocent people with similar-sounding names. Their desire: that the government should not be able to keep lists of people, at least without meeting a "probable cause" threshold.

But I don't accept Noah's premise that the only burdens on passengers are the additional questioning, bag searches, and inability to use e-ticketing. He dismisses out of hand the possibility that being repeatedly told that "you may be a suspected terrorist" is important, and ridicules the idea of stigmatization:

Michelle Green, a master sergeant in the Air Force, an apparent Selectee, felt "publicly embarrassed" and "stigmatized" by the added screening procedures; apparently she'd hoped to make a better impression on the other passengers traveling from Seattle to Fairbanks.

Noah claims that this makes her a "crybaby."

No, it doesn't. There is something scary about having the government's imprimatur of "potential terrorist" publicly stamped on you at the airport. If people are being singled out because their name resembles a terrorist's name, the TSA should be working hard to mitigate these effects - by explaining the reason for the search (at least in general terms), by apologizing, or by developing better systems.

Let's be clear. I do think that the "Hassle-Fly" list should be lawful. But it's not because there's no impact on those who find their way onto the list. It's because 1.)in extraordinary situations, the government should be able to keep lists of subjects, contrary to my perception of the ACLU's underlying objectives; and 2.) the burden on these individuals is minor relative to the need to prevent a terrorist using their name from boarding an aircraft.

Hat tip: Eugene Volokh, who contributed the nice "Hassle-Fly" label in the title of this post.

2004-04-08T10:01:00.000-04:00

John Kerry and the suppression of dissent: It has been fashionable among those who favor a law-enforcement approach to the war on terrorism, or who are concerned about the Patriot Act’s effect on civil liberties, to characterize the Bush administration for suppressing dissent. This phenomenon has been most widely-seen in the context of the misuse of the remark that people should "watch what they say." (which was in response to the disparagement of Sikh-Americans by a Republican congressman and American servicemen by comedian Bill Maher, to set the record straight).

But now Senator Kerry has suggested that if elected President, he would be inclined to suppress speech he doesn't like. The Times story on Sen. Kerry's plans to limit federal spending has an interesting start:

Senator John Kerry said today that if he is elected president, no one in his administration will be allowed to propose new programs without the means to pay for it

The meaning of this statement depends on how one interprets the words "propose" and "administration," of course, but my first reaction upon reading it was that it seemed to be a significant limitation on government employees' freedom of speech.

First, recognize that while the President has the power to fire members of his Cabinet, the White House staff, and other appointees (although
Andrew Johnson was impeached, in part over this issue, when Congress passed a law stating otherwise during Reconstruction), he cannot fire the heads of independent regulatory agencies, who are often considered to be part of the administration (although the President can pressure them to resign -- see, e.g., Harvey Pitt). So a President Kerry would face particular trouble in keeping his SEC, FCC, Federal Reserve Board, etc. appointees from proposing new programs.

But the mere existence of the firing power doesn't mean that he has unlimited ability to constrain employee speech. In Pickering v. Board of Ed., the Supreme Court held that a school board could not fire a high school teacher who criticized the level of funding given to athletics, overturning the classic formulation of Justice Holmes, who had observed that a policeman's "constitutional right to talk politics" as "he has no constitutional right to be a policeman."

Pickering laid out a balancing test for government-employee speech when that speech is on a matter of public concern: the value of the speech to the employee and to the public must be balanced against the extent to which the speech hinders the efficiency, discipline, and authority of the government.

A proposal for a new program would be a matter of public concern. Sen. Kerry’s rule would be testing the balancing of interests – does the President’s interest in exerting authority support keeping expensive, or unpaid-for, program ideas from being aired to the public. A plurality in Waters v. Churchill noted that the First Amendment provides no bar to prevent "the governor from firing a high-ranking deputy" from criticizing his legislative program. This might suggest that Sen. Kerry could impose his requirement, as long as he limited it to sufficiently high-ranking members.

But it is not clear that a program proposal carries with it the same challenge to authority that an outright criticism does, and the public may have a stronger interest in hearing new suggestions aired than in simply hearing criticism of past activities. Moreover, there are over 5,000 presidential appointees, who may be considered members of his administration, even if Sen. Kerry means to exclude civil servants from his definition of administration. This is a vast cadre of people who are best positioned to make proposals on how to improve the functioning of government; even if the First Amendment does not protect their speech, does Sen. Kerry really want to suppress all of their ideas?

For now, the best place to give the senator the benefit of the doubt is undoubtedly on the word "propose." We can believe that he means something more formal than simply a statement that "we should raise salaries for National Guardsmen called to active-duty" or a presentation to Congress by the Department of Energy’s Associate Administrator for Infrastructure & Security suggesting that we double the size of security forces at nuclear power plants.

It is always tempting for presidential candidates to present suggestions of their omnipotence once elected. Sometimes, their power is foreclosed by the laws of nature, or of economics. And at others, they may need to mind the limits of the Constitution and sound public policy, even if they don’t intend to "watch what they say."

2004-04-07T23:01:00.000-04:00

Another Step Towards the X-Prize: Today, the FAA issued a launch license for Scaled Composites' SpaceShipOne, frequently handicapped as the favorite. This is Burt Rutan's team, and they'll be required to give the X-Prize organizers 90 days notice before making their attempt.

It's good to see that Scaled was able to cut through the red tape and get the license. JOLT will be publishing a student note by Neil Farbman examining efforts to simplify the regulatory structure for launches, like H.R. 3752.

In my often-expressed opinion, we can thank the X-Prize organizers and the competing teams for sparking the White House's space initiative. When one of these teams wins the prize, though, NASA better be ready for the question: "Why do we need you guys at all?" There are good answers they can give, but the question is going to be asked.

2004-04-06T23:13:00.000-04:00

The Bush Administration's Conspiracy Against Itself: For all of those people who believe they can't trust anything that the government says (like John Kerry, who thinks we should be out of Iraq, but not by June 30, because that's the date the White House set), here's proof that the administration is bent on political suicide. Donald Luskin excerpts Gene Epstein's explanation of why widely-reported unemployment numbers are wrong. My favorite bit:

This footnote I'm referring to appeared quite prominently below the officially posted time series... [i]t reads, "Data affected by population changes in population controls in January 2000, January 2003 and January 2004."

Now, anyone who has actually followed the employment numbers will know immediately what the agency is trying to tell us. The recent figures are no damn good, is what it's trying to tell us, and to find out why, you'll have to dig a little.

Go on the Internet and click on www.bls.gov/cps/cpspopsm.pdf -- a Bureau of Labor Statistics (BLS) paper posted March 3, 2004 -- to get the real numbers. By the third sentence of that paper, it's clear that the decline you might find in the officially posted data is a mirage. (The math's a bit too involved to go into here.)

In other words, the Department of Labor is putting out information about the economy that facially sounds bad, but in reality, is either good (if you trust Epstein, Luskin, and some economists), or bad (if you trust Paul Krugman, The Economist, and other economists). How can you tell? According to Epstein, you can't, at least, not without complex mathematical calculations.

Sounds like a goatf**k to me.

2004-04-06T18:16:00.000-04:00

Does file-sharing hurt pay-per-download services? Greg thinks it does: "I am sure there is an adverse impact on pay-per-download services, such as iTunes."

I'm not so sure.

The entertainment industry has been pursuing an interesting strategy, pressing both the law and social norms into its service as it tries to persuade people to cut back or cease downloading, with mixed success. The legal tactics at first seemed to yield a drop in downloading, but later studies have called that into question. At the same time, anecdotal evidence suggests that the MPAA's "Movies - They're Worth It" advertising campaign has made many people I know more reluctant to download without a second thought.

Given the impressive success of the 99-cent download (I suppose that's arguable - but given that almost all of the music is available with equal ease for free), I think it's plausible that some people's behavior follows this model. They hear (or recall) a song that they'd like. 10 years ago, their options were a.) buy the album; b.) find a friend with the album, and copy the song to a cassette; or c.) wait to hear the song on the radio. Today, conditioned by 5+ years of Napster and illegal downloading, their impulse is to head to their computer. But, because of the entertainment industry's education campaign and the media attention given to lawsuits, some people visit a pay-per-download site instead of illegally downloading.

I also think it's worth recognizing the likelihood that without illegal downloading, the major record labels would probably never have licensed their catalogs to iTunes and other pay-per-download services. In that sense, the download services owe their viability and significant success to downloading, and to the music companies' belief (right or wrong) that downloading is the source of their slackening sales.

These two factors provide some balance to the otherwise-theorized adverse impact on iTunes, etc. of illegal music downloading.

Interestingly, in its list of "other factors" contributing to the slowdown in music sales, the Times lists one of my favorite causes, radio industry consolidation, but omits my other favorite cause: the music industry itself. Could it be that they're simply doing a bad job of promoting and delivering music that I want to hear? When Hollywood has gone through slow cycles, filmmakers have been blamed for making bad movies. How come the music industry gets off the hook?

And I love this quote: "There's a lot of research out there that's conducted with an agenda in mind," said Ms. Charneski, now the head of research for the record label EMI. Uh huh.

2004-04-05T15:04:00.000-04:00

Does File Sharing Impact Record Sales?: One of the most common (and often unquestioned) arguments of the recording industry in the fight over P2P file sharing has been that file sharing hurts record sales. It makes sense, right? You want the music and you have 2 choices: download the song or album, or buy the CD. But a new study is out that questions this fundamental assertion. One of the two leads of the study explains it as follows:

This seems to make a great deal of sense to me. I know from personal experience that there are a number of songs that I might download, when there was no way that I would go out and buy the album. In addition, there are a number of people that would download the song, and then go out and buy the CD.

Expectedly, the recording industry has sharply criticized the report, and the article points out a number of errors. In addition, the results do not change the legal argument (maybe only the damages). The downloads are still infringements of valid copyrights, no matter how tyrannical the recording industry may seem. Moreover, I am sure there is an adverse impact on pay-per-download services, such as iTunes. However, this is something to consider, at least in the battle over public opinion and when evaluating the damage done to the artists and the recording industry.

Update: More on the "other" costs of downloading (i.e. it cheapens the art) in the context of the Canadian court decision that upheld file sharing. Thanks to Tyler at Volokh.

2004-04-05T12:12:00.000-04:00

Opening Day: Never mind the two-game series in Japan and the made-for-TV game last night, today marks the beginning of the baseball regular season. Opening day has always been one of anticipation and excitement for baseball fans, as all teams have a shot at having a great season and making a play-off run. And as much as some (myself included) may lament the dominance of certain teams in baseball, I believe that at least twenty (and maybe more) teams have a legitimate shot at not only making the play-offs, but also winning the World Series.

Look at the past three seasons. In 2003, the Florida Marlins came from nowhere, capitalizing on great young pitching, a few key free agent signings, and a wise managerial change to defeat the giant Yankees. In 2002, it was the Anaheim Angels coming from nowhere to defeat the Giants and Barry Bonds in a thrilling Series. In 2001, the duo of Schilling and Johnson carried Arizona to a seventh game, final at-bat win. Are the Yankees always good? Yes, but they don't always win.

It seems like a long time until October (and it is-- like most professional sports, baseball's regular season goes on too long) but there is a great deal to look forward to in the mean time. Can the Cubs and red Sox live up to expectations? Will there be a "shortstop controversy" in the Bronx? What young players will step into the spotlight for the first time? Can the teams in Philadelphia, Arizona, Cleveland and Seattle bounce back and make the postseason?

Baseball needs to act quickly to dispose of the steroid scandal -- passing regulations on drug testing so that this story can be moved to the back burner and the country once again can focus on the greatness of the sport. Nothing beats going to the ballpark on a sunny afternoon or turning on a game when there is nothing better to do on a hot summer night. Let's hope this season focuses on the game and new teams continue to emerge as play-off contenders.

Play Ball!

2004-04-04T22:15:00.000-04:00

Most people who go to Hawaii go on vacation, (Navy pilots and an occasional lucky attorney excepted.

Few of these visitors venture to a cemetery, perhaps excepting the "Punchbowl Cemetery", where 13,000 soldiers and sailors (including correspondent Ernie Pyle) are buried.

But maybe more visitors should go: a letter-writer to today's Boston Globe magazine notes that Hawaiian shirts are often appropriate attire at funerals, a practice invited by the designation "aloha attire" in an obituary. And sure enough, today's Honolulu Star-Bulletin confirms it: the very first obituary includes the reference, as do many others (still more recommend "casual attire").

Two questions: 1) is there still a dress code embedded within this category -- are there "respectful" and "disrespectful" forms of aloha attire? 2) Who's up for a Hawaiian theme next Halloween?

2004-03-26T09:45:00.000-05:00

Why did 9/11 happen?: This is obviously the big question that the Commission is trying to answer. In my opinion, the "who" part is sort of like "Who lost China?" An interesting question, but one in which the important answer is not "who," but "why?"

Amy Zegart offers an important piece of the answer, courtesy of Mark Kleiman:

The Commission asked the wrong question. Was terrorism a priority? Of course it was. The real question is how many other priorities both administrations were confronting. I'll tell you: too many. Clinton wrote a Presidential Decision Directive in 1995 that sought to establish clear priorities for the intelligence community. There were so many in the top tier, they actually divided them into Tier 1A and Tier 1B. But it gets better (or worse). There was also a Tier 0, apparently for the very very very top priorities. Note to self: when you can't list priorities with regular numbers, you haven't really made priorities.

As time passed, priorities were added to the list but old ones were never removed. By 9/11, the National Security Agency had roughly 1,500 formal requirements, and developed 200,000 "Essential Elements of Information." I'm not making this up. See the Congressional Intelligence Committees' Joint Inquiry Report, December 2002, p.49....

I have no doubt that terrorism was a priority. The problem is, when everything is a priority, nothing is.

Phil Carter adds his own, interesting commentary:

if you don't establish priorities for intelligence collection and analysis, your scouts and analysts will work very hard on a lot of disparate things that may or may not add up to a complete and accurate picture of the battlefield. Our observer/controllers used to tell us on the 4ID plans staff that we should have no more than 10 priority intelligence requirements for the division -- those things the general absolutely had to know in order to defeat the enemy. In theory, the same principles of simplicity should apply at the national strategic level too, although with much greater consequences and implications.

Phil is right on -- problems need to be given priority at the national strategic level. I have no doubt that a failure to identify al Qaeda as public enemy number one is in part responsible for our lack of an effective response during the 1990s and early 2000s.

But why didn't we focus on al Qaeda? First, look at the foreign policy priorities of the Clinton administration. Back in 2000, I was highly critical of the Clinton-Gore foreign policy because it seemed that they were prioritizing the wrong issues - and I wasn't touting the dangers of terrorism (except, like Dick Clarke, millennium terrorism, but that's a separate issue). In the late 1990s, the Clinton foreign policy was focused on two things: a negotiated piece between Palestinians and Israelis, and the creation of a set of multilateral treaties to advance their vision of interdependent, trust-based global institutions (see, e.g. the International Criminal Court, the Kyoto Treaty, the Chemical Weapons Convention, the The United Nations Treaty on the Elimination of all Forms of Discrimination Against Women, etc.).

When the Bush team was elected, they faced a number of problems that they erroneously evaluated as higher-priority, simply because of their neglect, or what was perceived as a wrong, Clinton-era approach. So we had a hardened line towards China, incorporating the Hainan Island P-3 incident; we had an attempt to clamp down on Saddam Hussein; we had an attempt to figure out if we'd totally blown our opportunity to prevent North Korea from becoming a nuclear power; and we had to make efforts to withdraw ourselves from international treaties that harmed our national interest.

This was a substantial task, and it required re-evaluating our foreign policy and national security direction around the world, and I believe, for the better. But it's hardly surprising that terrorism, with the Clinton team already pursuing the one mainstream policy approach widely-accepted before 9/11 (the "law-enforcement" approach), was not subject to the same re-evaluation. In comparison to these other problems, it probably did seem minor; and it likely seemed that we were already doing what needed to be done.

2004-03-25T17:41:00.000-05:00

Could the Newdow Decision Impact Gay Marriage?: In the aftermath of the Newdow arguments, it now rests in the hands of eight justices to decide whether or not the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause. Will the Court decide the case on standing? Or will the Supreme Court reach the merits, deciding the issue for the entire nation? I believe the Court will dismiss the case on standing -- it is a credible argument and I do not believe the Court is ready to weigh in on this controversial issue. If they do weigh in, accounts of the argument lead me to believe the 9th Circuit will be reversed.

But, assuming the Court does reach the merits and affirms the 9th Circuit, banning the words from the Pledge of Allegiance, the outrage and implications could be far-reaching. Public reaction following the 9th Circuit ruling was somewhere between disbelief and outrage. Republican politicians, including President Bush, called the opinion "ridiculous" and "just nuts." Following the decision, the Senate passed a resolution 99-0 "expressing support for the Pledge of Allegiance," before standing on the steps of the Capitol and reciting the words. On both sides of the political spectrum, people decried the ruling and called for its reversal.

To be certain, the political climate of the nation has changed in the past two years. The events of 9/11 are much farther in the rearview mirror and the ideologically-divided nation is preparing for a highly contentious Presidential election. However, one can assume that if the Supreme Court were to strike down the Pledge of Allegiance, public outrage would be just as great. [Note: The Court would not strike down the whole Pledge, but just the "under God" phrase. This is also what the 9th Circuit did, in theory; however, this distinction was lost on the country the first time and would probably be missed again.]

Now, how would this affect the gay marriage debate? As the argument goes, this would be another example of an elitist court stepping in and acting in a countermajoritarian way, imposing its will despite the beliefs of the public. Just as the public continues to oppose gay marriage, the overwhelming majority of people support the Pledge of Allegiance as written. The backlash could be not only against the decision, but also against courts in general. The debate (right or wrong) over "activist" judges would regain force, possibly lowering public confidence in the courts. Could this lead to a constitutional amendment? It is unlikely, especially on the federal level, but individual states could act to counter efforts for gay marriage or civil unions through legislation or amendments.

In addition, an adverse decision in the Pledge case could rally the religious right and give them yet another rallying call. Not only has the sanctity of marriage "been vilified," now our children cannot even honor God in the Pledge of Allegiance. How arrogant is man not to recognize the existence of a higher being? The Pledge decision could allow these groups to recruit more members on the common ground of "the Pledge must be protected," perhaps even convincing some along the way that gay marriage is bad.

In the end, I don't believe this to be a likely outcome, as I have trouble believing the Court would affirm the decision in this case. But Michael Newdow represented himself very well in front of the Court, and it only takes four members in this case to set off a national firestorm, that could affect much more than "under God."

2004-03-25T13:32:00.000-05:00

"Outrageously costly and completely ineffective": S. Fred Singer, professor emeritus of environmental science at UVA, provides a "post-mortem" for the Kyoto Protocol. Prof. Singer's description of the scientific basis underlying the Protocol is concise and damning:

[Climate change predictions] are based on crude climate models whose validity had never been tested by observations—and even today, there remains no validation for the climate models that are at the heart of most claims of climate catastrophe...

[D]ata from weather satellites and weather balloons show no significant rise in the global mean temperature of the atmosphere, in stark contradiction to the climate models...

[The] third IPCC report says that “new evidence” makes it likely that “most of the warming observed over the last 50 years” comes from the human production of greenhouse gases. This “new evidence” is based on a single analysis of “proxy” data (that is, data that do not come from thermometers but rather from sources like tree rings, ice cores, corals, and ocean and lake sediments) showing the twentieth century to be the warmest in the past thousand years. Not only does this analysis conflict with other published analyses of proxy data, but it was also exploded in a re-analysis published in 2003, which showed that the IPCC claim was the result of a gross mishandling of the underlying data. If the dispute is settled in favor of the re-analysis—as seems likely—the IPCC claim of a “human influence on global climate” will be severely damaged.

Prof. Singer then highlights my principal complaint about Kyoto -- that because President Clinton and Vice-President Gore badly wanted an agreement, any agreement, they allowed the United States to be saddled with burdens unfair relative to virtually any other country:

The choice of 1990 as the base year made it relatively easy for Germany and Britain to meet these targets. Germany had just completed its reunification and was shutting down the former East Germany’s highly inefficient industries. Britain had started to substitute North Sea natural gas for coal in its power plants, which drastically reduced the country’s carbon dioxide emissions.

He also points out its overwhelming irrelevancy:

The Kyoto Protocol, therefore, would have practically no impact on global temperatures. Even if punctiliously adhered to, it would reduce the calculated temperature rise by 0.05 degrees Celsius at most—an amount so insignificant it can hardly be measured. When confronted with that little-publicized fact, supporters of the Protocol admit that Kyoto is intended only as a first step, and that greenhouse gases will someday have to be further reduced by between 60 and 80 percent of 1990 emission levels. This fact, too, has not been much publicized by Kyoto’s supporters, and with good reason: such drastic reductions would cripple the global economy.

Prof. Singer doesn't even mention that the Europeans are failing to meet their Kyoto targets, or that the IPCC report is based on not-credible economic assumptions (i.e. that Libya's per capita income will surpass that of the United States), or that technology will have an unpredictable impact on future energy use.

2004-03-25T13:04:00.000-05:00

WMD Update: Israel shares the blame. Parliamentary investigators there have concluded that Israel also "produced a flawed picture of Iraqi weapons capabilities," and "substantially contributed to mistakes made in U.S. and British prewar assessments on Iraq."

It goes to show just how difficult a task intelligence agencies have.

Unfortunately, the story perpetuates the media myth: " Since ousting Saddam Hussein, the U.S.-led coalition's technical experts have failed to find any such weapons..."

Once again, that's now what David Kay has said:

What have we found[?]...

Reference strains of biological organisms concealed in a scientist's home, one of which can be used to produce biological weapons...

Agent R&D work that paired overt work with nonpathogenic organisms serving as surrogates for prohibited investigation with pathogenic agents. Examples include: B. Thurengiensis (Bt) with B. anthracis (anthrax), and medicinal plants with ricin... one scientist confirmed that the production line for Bt could be switched to produce anthrax in one week...

2004-03-25T12:55:00.000-05:00

Special-interest blog: Sigurd De Keyser, Stephen Deisher, and Elliot Kulakow have a blog tracking X-Prize news. Between the Mars rovers and the X-Prize, 2004 is turning out to be a huge year for spaceflight.

2004-03-25T09:24:00.000-05:00

Juan Non-Volokh keeps discussion of the Justice Scalia's airline ticket-contract violation alive. The newest posts he links to, by TMLutas and Contendem, argue that Ayres and Nalebuff overstate the value of flying one-way only by comparing unrestricted one-way prices to restricted round-trip prices.

At the same time, Ayres and Nalebuff neglect another argument they could have made that enhances Justice Scalia's savings (it doesn't affect the dollar values cited in their argument because they've elected to assume the worst case possible). That's this: The cheapest round-trip fares are often strictly limited in terms of availability, as anyone who has spent an hour with Orbitz's grid features or Travelocity's best-fare search already knows. By purchasing his round-trip with no intention of using one leg, Justice Scalia could buy that unused leg on any day at all, not just the day that he wanted to fly. As a result, it's much more likely that his fare would approach the cheapest fare available on the route, particularly because most airline fare rules permit the use of a cheap fare in one direction even when a more expensive fare is purchased in the other direction.

2004-03-24T17:47:00.000-05:00

Blogs in the Real World: The Office of Naval Research has begun testing weblogs as an asset in the weapons procurement process:

The first program to use the blog is evaluating a night-vision technology developed by Ford Motor Corp. The team members include Ford, the Marine Corps, the Army's Night Vision Lab, the Defense Acquisition University, and the New York Police Department.

I'm surprised that more hasn't being done with blogs. After all, the Navy has been using instant-messaging for years and more recently, has begun combining it with machine translation.

2004-03-24T15:55:00.000-05:00

Talk of the Times: No one should be surprised that Times columnist Paul Krugman continues to ignore reality, or worse, lie about it. At least the Times printed Ari Fleischer's correction, although Donald Luskin correctly details its inadequacy.

Today brings proof that the Times' headline writers are colluding in the endeavor, and out-of-touch reality. Exhibit 1: Letters to the Editor. Indeed, I'm surprised that Luskin doesn't take issue with the headline on Fleischer's letter: "A Briefing by the Former Press Secretary."

Does that sound interesting? Does that give any idea what the letter is about? It identifies neither the speaker, nor the subject, nor the original story being responded to. Compare it to today's other letters: "The President, the Insider, and 9/11", "A Scandal over Iraq: the UN Responds", "Can We Curb Our Appetite for Gasoline", and "My Methodists, My Choir, and a Welcome to Gays."

Which of the headlines tells you the least? Which is the least likely that you will open? Online readers choose letters solely based on these headlines, and the headlines are key to determining what print readers, who usually have to skim past the Times' penchant for excessive detail, will read as well.

An even more ridiculous headline in today's Times, however, is a headline that outright contradicts the actual article: "For a Day, Terrorism Transcends Politics as Panel Reviews Failures".

The clear implication: terrorism is usually about politics. Uh huh. I think someone's starting to buy into the conspiracy theories of folks like Madeline Albright. There's no "real" terrorist threat; it's just one that's being made up by the Bush administration to ensure their re-election. Try telling that to the people of Spain.

More amazingly, the article itself acknowledges this reality, describing the agreement among witnesses and the fact that "their public presence was a powerful sign that terrorism transcends politics."

2004-03-24T14:56:00.000-05:00

Helicopter Turbulence: Just weeks after the rotary-wing aviation business was thrown into turmoil by the long-overdue cancellation of the Army's Comanche helicopter program, the contract award for the new Marine One, the helicopter flown by HMX-1, the presidential helicopter squadron, has been delayed.

Unlike the Comanche decision, here there's no question of whether the program is necessary: Marine One can't be replaced by UAVs, for example, because its function is to be manned. In my opinion, a longer decision process may allow for a better choice to be made, hopefully without protectionist considerations playing a large role.

The pressure to award a Marine One contract has been based both on the repercussions of the Comanche cancellation and on the supposed increased threat to presidential safety from terrorist attacks. Neither interest is really that strong. The first argument is essentially "we need our pork-barrel spending" -- without government money, we won't be able to survive. Acquisition decisions and timelines simply can't be based on a full-employment policy.

And given that the earliest possible deployment date of a new helicopter is 2008, it hardly seems that the difference will be a life-and-death matter. Indeed, the fact that the program has taken well over two years to get to this stage, despite the fact that the White House worried about the safety of Air Force One on 9/11, suggests to me that this is a false urgency.

2004-03-24T12:32:00.000-05:00

Next to fall: the line between fact and metaphor:
Atrios commends Rep. Barney Frank for discussing his personal life in the congressional debate over gay marriage. I agree that Rep. Frank's comments are a welcome addition to the debate -- I suspect that many members of Congress have kept their heads in the sand for political reasons and have never really thought about the lives of the gay people they undoubtedly know.

Atrios then takes David Espo of the AP to task for claiming that "lawmakers... seldom refer to their personal lives." My guess is that he's right: on the floor or away from it, I'm sure there are uncounted references to wives, children, parents, etc.

The point is actually a broader one. In general, members of Congress discuss their personal experience all the time, especially when it's relevant to a debate under way. (From a quick search of the Congressional Record, here's Rep. Nadler describing his experience with Australian exchange students and Rep. McDermott discussing post-traumatic stress syndrome. It's also not uncommon for Members to read personal letters from constituents. So when the debate on the floor is about family, it of course makes sense for people to discuss their family lives.

Where Atrios misses the boat, though, is with his supporting citation:

Sen. John Cornyn... dismissed as a "myth" the notion that "my marriage doesn't affect your marriage." "Redefining marriage in a way that reduces it to a financial and legal relationship will only accelerate the deterioration of family life," Cornyn said...

What a weird-ass thing to say. Is Cornyn having marital problems? Is the thought that maybe, just maybe, he could go out and marry Mark Foley causing his family life to deteriorate... If his family life is deteriorating, shouldn't he be home trying to patch things up[?]

What rubbish. Sen. Cornyn is most likely using figurative language with his "my marriage" and "your marriage" comments -- this was in an opening statement, not a conversation with someone in particular. What he means is "everyone's marriage affects everyone else's marriage." That's a statement that you can argue with, but general statements don't indicate individual identification, as Atrios seems to assume.

2004-03-23T22:02:00.000-05:00

Good reads: It's been a little dull around here because Greg and I have been off running for the masthead of the Journal of Law & Technology. While we lost in our campaign for co-Editors-in-Chief, Greg will be an Executive Editor, and I will be the Submissions Editor for Volume 18.

My thinking and posting will be back to full strength soon, but in the meantime, here are some of my favorite links from today.

Lee Jenkins of the New York Times gives country music a good shout-out in an update on Sweet Sixteen contender Vanderbilt's abolition of their athletic department: "Vanderbilt has fit right in to a town that sings about struggle and glorifies the little guy."

The Texas Law Blog links to an article on a Texas town that will stay dry because of invalid signatures on the petition. More fuel to the controversy over voter verification and disenfranchisement? I doubt it. But you gotta have some sympathy for voters who still can't get a Silver Bullet because someone wrote down the wrong SSN.

Phil Carter has an AP report that U.S. "technical experts" may be in Pakistan. Two thoughts: 1.) How expert can they be -- haven't we learned enough about tunnels from the DMZ in Korea, from Vietnam, from Iraq, etc. to have foreseen the one in Pakistan. 2.) I'm surprised to hear President Musharraf admit to having accepted assistance from the United States. My analysis has been that overt assistance from the United States might cause sufficient dissatisfaction in the military, and perhaps anger in the street, to unseat him.

And finally, don't you wish you were in Fiji right now? Spring break is just three days away...

2004-03-19T13:59:00.000-05:00

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.

2004-03-18T22:34:00.000-05:00

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.

2004-03-18T18:10:00.000-05:00

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?

2004-03-18T14:26:00.000-05:00

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.

2004-03-18T13:31:00.000-05:00

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.

2004-03-17T21:07:00.000-05:00

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?

2004-03-16T22:37:00.000-05:00

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.

2004-03-16T17:45:00.000-05:00

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.

2004-03-16T16:30:00.000-05:00

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.

2004-03-15T21:35:00.000-05:00

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.