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Ex Parte is a group weblog managed by the Harvard Federalist Society, a student organization of Harvard Law School, and written by its student members. To join Ex Parte, contact the Majordomo, Eric Soskin, at esoskin-at-law-dot-harvard-dot-edu.

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Wednesday, March 31, 2004

Posted 2:40 PM by Adam
Majordomo's Note: I suspect things will be quiet at Ex Parte through the week, as HLS is on spring break.

Monday, March 29, 2004

Posted 11:52 AM by Joshua Davey
Bush Likely to Nominate a Federalist

If he gets the chance. Story here. Thanks to Southern Appeal for the tip.

Posted 10:08 AM by jenn
With three partial-birth abortion challenges being heard in federal court today, all eyes have been on discovery. The government wanted the anonymous medical records of D&X patients to support its central claim that the procedure is both rare and unnecessary; to Planned Parenthood's delight, both the 7th Circuit and a S.F. judge have said no.

Sunday, March 28, 2004

Posted 9:47 PM by CM
I think Condi Rice did well on tonight's 60 Minutes interview. She was asked tough questions, and she responded forcefully confidently.

Next was a segment on Judge Charles Pickering of the 5th Circuit Court of Appeals. The piece was surprisingly favorable to Judge Pickering, demonstrating that his Senate opponents really have little on which to base their opposition.

Saturday, March 27, 2004

Posted 10:39 PM by CM
Thanks to Amber and Class Maledictorian for a link to an interesting article from Slate about Justice Rehnquist's fashion preferences, but more interestingly Chevron v. Echazabal, recently heard in the Supreme Court. The case involves a Chevron employee with hepatitis C who wants to be able to continue to work at a job that would put him at high health risk. Harvard's own Samuel Bagenstos argued part of the case.

Posted 12:55 AM by Adam
Charles: Well, there's the Left's worry that Kennedy is not a reliable vote in a challenge to the federal partial-birth abortion law. If I recall correctly, he voted with Rehnquist/Thomas/Scalia on the state-law version of that one (I'm about to call it a night, so I'm not going to double-check that)! And, according to the NOW crowd, that's the first step on a slippery slope to the end of Roe.

Friday, March 26, 2004

Posted 11:40 PM by CM
Last post of the evening: Where does the notion (often heard from "women's rights activists") that the next Supreme Court appointment could result in overturning Roe v. Wade come from? Here's my count:

Pro Roe:
Stevens
O'Connor
Souter
Ginsburg
Breyer
Kennedy (if no change of heart since 1992)

Anti Roe:
Rehnquist
Thomas
Scalia

Where will one vote make a difference? Planned Parenthood came close because Byron White had not yet retired. With Ginsburg replacing him, the conventional wisdom just seems wrong. One new appointee would not do it. And even if Bush were to appoint two justices if he wins re-election, he might be replacing Rehnquist, which would mean that even in that case, two conservative appointees would still leave the count 5-4 in favor of Roe. Perhaps pro-choice advocates do not want to rely on Justice Kennedy's vote... (If any of you know anything on Kennedy's position that might shed some light, please let us know).

Posted 11:15 PM by CM
Thanks to Ramesh Ponnuru of National Review Online for posting a link on The Corner to an essay from the Claremont Review of Books by Gerard Alexander, entitled "The Myth of the Racist Republicans." The essay debunks the conventional wisdom among many in politics that, in gaining great support among Southern white voters, the GOP became a racist party. Instead, it convincingly argues that the GOP, in fact, gained much of its early Southern support from Southern states in which racial issues remained less salient, and that over time, many of the GOP's Southern supports were, in fact, younger voters and those who had come to live in the region from elsewhere in the country.

The essay is long, but definitely worth the read when you have a little free time.

Posted 10:34 PM by CM
For those who like William F. Buckley, Jr., or are just interested in conservatism in general, check out Buckley's latest piece, in which he discusses John Kenneth Galbreith and his forthcoming book. Buckley's exchanges with Galbreith over the years have been classic. I only wish that someone would collect them, so that us young'ns could have an opportunity to learn from them.

Posted 6:07 PM by Jonathan
Through another HLS blog discussing Professor Leiter's attacks on Lawrence, I came upon Crooked Timber's discussion of our response, which reads in part: "[t]heir hysterical description of Leiter?s criticisms as 'thuggish,' 'vicious,' 'naked threats' leads me to think that Harvard Law students are a lot more thin-skinned than they ought to be."

I'm pretty sure I'm the guy who said all those things, and I stand by them, although I probably would have spared readers some adjectives if I'd waited awhile before posting. I was pretty angry at the time. A widely-known legal academic accused my friend of scholarly fraud and began discussing my friend's lack of a future in the legal academy. If this sort of thing is ordinarily taken in stride by creatures of the blogosphere, I guess my reaction betrays my outsider status. If Leiter had confined his vitriol to the content of the book note, I would not have written anything.

To answer the question Amber raised over at Class Maledictorian, I did not refute Leiter's claims because I don't buy intelligent design. While I have admittedly only a shallow knowledge of the science at issue, evolution remains the only plausible and convincing theory I've encountered. I believe in God, but not a God who would seed the world with overwhelming misleading evidence just so he could eventually jump out and shout "Fooled you!" But just because an idea is wrong does not necessarily mean that those who believe it are fair game for personal attacks.

I always understood that the core principle of academic civility is to divorce ideas from people. Even if an idea is ridiculously stupid, you savage the idea with evidence and reason while continuing to treat its adherents with respect. I realize such a rule is not always observed, but it seems a worthy ideal. A regime under which believers in unpopular ideas are subject to "academic and pedagogical consequences" strikes me a truth-suppressing, rather than truth-finding, system.

Thursday, March 25, 2004

Posted 11:43 PM by The Driver
Howard Dean, endorsing Sen. Kerry: "John Kerry is a man who fights for what he believes in." (as seen on MSNBC - I can't find a transcript online, but this video may show it).

Oh, really? I thought John Kerry was the candidate who fought for what he didn't believe in.

Or maybe Gov. Dean has just as hard a time as the rest of us figuring out what Sen. Kerry believes in. If he's fighting for something, he must believe in it, right?

Posted 7:25 PM by Tessa
Not sure if someone else has posted about this, but Oregon has risen to new levels in the same sex marriage debate--http://www.cnn.com/2004/US/West/03/23/marriage.ban.reut/index.html


On a more humorous note, the other big news story in southern Oregon, which as also dominated the state wide talk radio show, concerns the theft of a celebrity chicken. Here is the link to the story in my hometown newspaper.

http://www.mailtribune.com/archive/2004/0325/local/stories/01local.htm

Posted 5:21 PM by The Driver
Adam: I wonder if "Cousin Couples" reads Slate: Today, Dear Prudence answers the question of what to do when an Internet porn star looks like your cousin? Fortunately, the answer is not "get married."

Posted 2:00 PM by Adam
I haven't been following the day-to-day on the Massachusetts gay-marriage amendment debate lately, but I'm glad to see that the legislature has recognized the serious problem in the text of the leading version of the amendment, as I highlighted here a couple weeks ago:

Second, the language of the currently-favored amendment, the "Finneran Amendment," troubles me:

Two persons of the same sex shall have the right to form a civil union if they meet the requirements set forth by law for marriage. Civil unions for same sex couples are established hereunder and shall provide entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law. All laws applicable to marriage shall also apply to civil unions.

This Article is self-executing, but the General Court may enact laws not inconsistent with anything herein contained to carry out the purpose of this Article.

The text I highlighted troubles me because it raises the issue of Federal benefits. If the amendment were passed, it would raise questions of whether civil-union couples should be entitled to the benefits provided under Federal law -- Social Security, Medicare, and so forth. Obviously those benefits are not forthcoming from the Feds right now. Will the State be required to pay for the difference?

Keep in mind who would interpret the Amendment. It's already pretty clear where they stand on these issues.

State Senate President Robert E. Travaglini began drumming up support yesterday for a more "clear and precise" constitutional amendment to ban gay marriage and create civil unions, amid signs that House Democrats loyal to Speaker Thomas M. Finneran will abandon the measure.

In a letter to lawmakers, Travaglini and Senate minority leader Brian P. Lees, an East Longmeadow Republican, wrote that the latest proposal represents "an effort to broaden this emerging consensus," primarily by ensuring that the state would not be have to pay for federal benefits to same-sex couples once civil unions are established.

"Same-sex couples should not . . . expect that the Commonwealth will pay for federal benefits that are unavailable under federal law," the letter says, noting that the federal Defense of Marriage Act prevents the US government from making payments such as Social Security survivor's benefits to gay couples.

Posted 1:06 PM by The Driver
I have a further update on Scalia's ethical lapse here.

Posted 9:44 AM by The Driver
I'll take the cash, please: Public housing has been criticized for many reasons: concentration of the poor, substandard upkeep, lawlessness, economic inefficiency, and more. Recently, government housing authorities have begun to stake the future on programs to produce low-rise, mixed-income public housing. These efforts are chronicled in an interesting exhibit at the National Building Museum, which highlights particular projects from locales as diverse as Cambridge, Indianapolis, DC, San Diego, and Albany (quite a list of places where I've lived or considered living).

But Sgt. Mom has a good reminder that even public housing that lacks the problems listed above can still be miserable, if only because of the conditions attached by your governmental landlord. Consider Sgt. Mom's experience with military family housing:

the application from Hill AFB included a list two pages long of all the things you couldn’t do--- like self-adhesive shelf paper on the pantry shelves... Someone told me about brave young captain who had tried to plant petunias in a low, brick-edged area along the driveway. The housing office made him dig them up, saying that only grass could be planted there. Not the least deterred, the captain planted wheat, instead. It was grass, after all...

So, why would one opt for military family housing[?] Even with additional cost-of-living allowances tagged onto the housing allowance, an apartment or small house near certain military bases is way beyond the means of even mid-rank enlisted families.

Posted 9:14 AM by Joshua Davey
Update on Scalia's Plane Ticket "Ethical Lapse"

Here and here . Thanks to Juan Non-Volokh of The Volokh Conspiracy.

Wednesday, March 24, 2004

Posted 11:10 PM by Adam
Crescat Sententia serves up a great play-by-play of the Michael Newdow/Pledge of Allegience arguments.

Notable oddity: At one point, after Newdow cited unanimous Congressional approval of the current Pledge as evidence of the inability of atheists to win political office, members of the audience APPLAUDED. I guess they don't believe in God OR in decorum. Either way, Rehnquist put an end to it, quick-like.

Speaking of Newdow, my beloved Wall Street Journal Editoral Page let me down today. In their editorial, they misspelled "Newdow" -- "Nedow"? -- three times.

Posted 8:48 PM by Lawrence
As my first post to Ex Parte, this will hopefully be my last post about Leiter's attack on my Law Review Note. Stuart Buck at his blog posted this excellent thought about Leiter's comments, and I couldn't restrain myself any longer. I promise, a week and a half of spring break will break me of replying to Leiter - after all, this is beginning to resemble that old adage about lawyers: "Arguing with a lawyer is like wrestling with a pig in the mud - after awhile you figure out the pig likes it." Hope everyone has a great spring break.

One Final Response to Leiter and Company:


So far Leiter and Meyers have labeled me, among other things, a “demonstrably ignorant ass,” a “pompous jerk[],” “intellectually dishonest,” and “incompetent.” Recognizing that a further response will likely prolong this unpleasantry, I nonetheless wish to clarify several things that have been lost amid all this sound and fury.


I probably erred in my initial response to Leiter, not because the content of my reply was substantively wrong (I believe it was predominately accurate), but because I responded directly to Leiter’s accusations without addressing the question of whether his challenges were themselves responsive to the actual content of my piece. In my zeal to “react” to what were clearly some gross errors in Leiter’s attack, I ignored the important point that Leiter’s accusations are unrelated to the central argument of my Note. This was unfortunate because it focused the resultant debate on the empirical status of ID. While the empirical issues are indeed critically important to the ID/evolution debate, and should be carefully evaluated, my Note eschewed this already well-trodden ground to look instead at a more fundamental question – one that relies not at all on the empirical status of ID.


Following the traditional format of student book reviews in law journals, my Note has three parts: a short introduction, a synopsis of the book being reviewed, and an “analysis.” The analysis is the only part in which the book review author may appropriately make a distinct argument or unique contribution. In my Book Note, which was strictly limited to 8 pages, approximately one page is introduction, five pages relate Beckwith’s book, and two pages constitute my “analysis.”


Interestingly, Leiter’s attack focused on my introduction. The purpose of the introduction, however, is simply to capture the reader’s attention and “set up” the rest of the review – it is a hook, not a freestanding argument. Even if I did see fit to attack ID the way Leiter imagines, it wouldn’t be in the introduction, where detailed empirical research would be structurally inapposite. As it is, the introduction is quite short, and clearly indicates that my Note addresses a philosophical question of constitutional significance, not an empirical one. The thesis sentence, found at the end of my introduction paragraph, states this fairly clearly: “However, while a principled constitutional analysis would suggest permitting the presentation of ID in schools [this from Beckwith’s book], the linchpin of the movement’s success likely turns on better educating relevant legal actors about the practical relationship between evolution and MN” (emphasis added).


What Leiter apparently took umbrage at is that I didn’t, in the introduction, provide a detailed caveat listing the grievances methodological naturalists have with ID’s scientific claims. Yet even as it stands, I indicate in the introduction that ID is a minority position. The reason I neither provide nor respond to empirical critiques of ID is that such analysis would not only grossly exceed the 8-page scope of the review, but would also distract from the central contention of my Note.


In Leiter’s initial attack on my Note, the only thing remotely related to the actual argument in my Note was Leiter’s comment that “one line” from the “polemical Richard Dawkins” does not indicate that evolution has an a priori commitment to Methodological Naturalism. This is false on several fronts. First, regarding the a priori commitment to MN, it is widely accepted by non-ID philosophers of science that Leiter is simply wrong. As I previously noted, John Rennie, editor-in-chief of Scientific American, has unequivocally stated: “A central tenet of modern science is methodological naturalism….” In fact, I could have included quotes from Churchland, Hull, Searle, Flew, Crick, Rachels, Futuyama, Strickberger, and P. Z. Meyers, to name just a few thinkers who understand evolutionary theory as applied materialism.


Leiter’s comments in this regard reveal a palpable ignorance . The number of works that have addressed the issue of philosophical presuppositions and non-scientific understandings on the formation and maintaining of scientific theories is enormous. If he had even perused Dr. Beckwith’s book he would have come in modest contact with some of the leading lights in this literature including Larry Laudan, a philosopher of science who is currently on the faculty at the University of Texas and whose greatness Leiter himself extols (see http://webapp.utexas.edu/blogs/archives/bleiter/000806.html).


However, my quote from Richard Dawkins (along with quotes from six other evolutionary pundits Leiter neglected to mention) wasn’t simply to make the prosaic and uncontested point (or at least, uncontested by any save Leiter, apparently) that MN underlies science, but to make the more subtle point that “evolution as conceived by many of its most influential and vocal proponents clearly implicates naturalistic philosophy.” This is interesting precisely because in past creationist cases (most notably McLean), it was association with outspoken religious proponents that constitutionally doomed the teaching of creationism as much as did the content of creationism itself. Beckwith argues that this “genetic fallacy” of associating a movement with its vocal spokespeople is wrong, and I think he is right, but my “addition” (if I may be so bold) to Beckwith’s analysis is a pragmatic one: until relevant legal actors begin to recognize that the genetic fallacy evenly applied might knock evolution out of schools, they probably won’t recognize how mistaken it is to apply the genetic fallacy as a principle of constitutional jurisprudence to other contenders. Until ostensibly neutral judicial actors realize that the high priests of evolution are no less evangelical than the high priests of its competitors, they will give legal weight to ad hominem arguments of the sort Leiter has been mustering.


Once this central argument of my Note is recognized, it is fairly obvious why I wouldn’t spend precious pages investigating the scientific merits or failings of ID as Leiter apparently craved. That’s not what my Note is about. It’s not even relevant. The important question whether ID is empirically valid is conceptually separable from whether ID should be excluded a priori simply by applying some variation of the genetic fallacy. ID will never get a fair consideration on the merits until the genetic fallacy has been debunked. My Note (and Beckwith’s book to a certain extent) concentrates on addressing this issue – not the empirical one. So while I still insist that many of Leiter’s critiques regarding ID’s empirical evidence and its acceptability were flat out false at worse (“exactly two credentialed scientists” and his misunderstanding the relationship between science and MN) and misleading at best (leaving out my “small” characterization and erroneously applying my “significant controversy” to scientists), the fact is that they are irrelevant to my Note’s argument.


My concern is that precisely by bypassing my critique of the genetic fallacy, Leiter has succeeded in waging the empirical argument on uneven ground: readers steeped in the anti-ID propaganda of the high priests of evolution will simply discount or outright disregard any empirical evidence provided by ID scientists. Thus, Leiter relies on the very fallacy on which my article was focused, while attacking empirical claims that were outside the scope of the Note. While I suspect that Leiter’s subterfuge in this regard was simply second nature and not deliberate, it is nevertheless fortuitively illustrative of exactly the problem my Note meant to address.


I hope that by presenting this argument, I will be able to move at least some of the discussion on my Note towards its actual content. It may well be that I am no less pompous, dishonest, ignorant, and incompetent in arguing against the “genetic fallacy” – but Leiter could at least do me the courtesy of damning me for what I wrote, rather than for what I didn’t.

Posted 8:24 PM by Adam
Eric: "Cousin Couples"? Now, that's some "interesting" sourcing. Clicking over to the group's home page, I see that the Kissing Couple of the Day is Charles Darwin and Emma Wedgewood. Darwin was sleeping with his cousin? That's irony for you.

Posted 12:04 PM by The Driver
Dan:

The first reason to retain incest laws for parental relationships, even between consenting adults, is to protect the parental relationship before the child becomes an adult. For some adoptive parents/stepparents, the prospect of a future sexual relationship will alter their child-rearing to improve their odds of "scoring" later. We should strongly reject the alteration of a [step/adoptive]parent/child relationship to include the element of "prospective future sex partner," even at the expense of preventing later relationships between consenting adults.

Second, as this advocate of consensual relationships points out, family relationships are "guaranteed, life long relationship[s] that you will live with for a very long time." While step-parents and adoptive parents are relationships formed by law and not by blood, it seems to me that there's a very good case that there's no such thing as an ex-stepparent -- you will always have been raised by that person. There's a huge potential for serious harms to your family. How are your siblings supposed to deal with this: "Hey, bro, I'm sleeping with 'Dad.'" Yes, it could be worse, if it was a blood relationship. But the likely harms are a lot worse than in an ordinary relationship as well.

Posted 11:02 AM by Joshua Davey
Lame Effort to Slam Scalia

From the NY Times, of course.

Tuesday, March 23, 2004

Posted 5:34 PM by Adam
Dan: That's a great question for the Massachusetts General Court. Not the Massachusetts Supreme Judicial Court.

Last time I checked the State Code (or the US Code, for that matter), the totatilty of the law was not "See the Harm Principle."

Posted 3:45 PM by Don't Be a Victim
Eric: What's the need for a prohibition of incest that "extend[s] beyond the prevention of genetic defects" if we already have statutory rape & similar laws? If adult sons or daughters wish to engage in sexual relations with their stepparents/adopted parents why should the government be in the business of forcibly preventing them from doing so?

Posted 1:36 PM by The Driver
The Supreme Judicial Court has held that the Massachusetts incest statute does not encompass stepparents. Instead, the SJC held that sexual contact is only prohibited in blood relationships or those stepparent relationships consummated by formal adoption .

In its opinion in Commonwealth v. Rahim, the SJC emphasizes its deference to the "plain language of the statute" and the legislature's judgment, but notes that the Court " need not adhere strictly to the statutory words if to do so would lead to an absurd result."

The SJC's exploration of "absurd result" then counts states to see if Massachusetts would be the only one to permit stepparent-stepchild relationships. It hardly seems that this is the only result they should consider. Does anyone want to try to make the case that under Rahim and Goodrich, the incest statute is now unconstitutional, because it unlawfully discriminates between adoptive relationships and ordinary stepparent relationships for no cognizable reason?

Justice Greaney, joined by Chief Justice Marshall, and Justice Spina, dissented, highlighting the ridiculousness of the majority's opinion. According to the dissent, the SJC just considered this question in 2000, in Commonwealth v. Smith, and reached the opposite conclusion:

[p]ersons within the degrees of consanguinity' to whom the [incest] statute's prohibitions of intermarriage and sexual intercourse apply are not limited to blood relations, but include also certain affinal kin as well as stepparents.

The Legislature's purpose in criminalizing incestuous conduct must thus extend beyond the prevention of genetic defects, as this goal would clearly not be advanced by criminalizing marriage itself, without more, between blood relations, and still less by prohibiting coitus between affinal kin who do not share a common bloodline. Indeed, the scope of the incest statute, as it relates to both conduct and persons, strongly suggests that its framers valued and sought to promote the sanctity and integrity of familial relationships, as well as to protect children within the family from sexual impositions by their elders.
Two years after the Smith decision, the Legislature rewrote the incest statute to broaden the sexual conduct prohibited to include unnatural sexual intercourse. See St.2002, c. 13. The amendment was in direct response to the Smith decision. No change was made in the definition of incest contained in the statute. It is obvious from this that the Legislature accepted the definition stated in the Smith case, and expressed agreement with the language therein explaining the purpose of the statute. Far from being dicta, the quoted language is a critical part of the court's analysis and is to be accepted for its substantive content.

Posted 12:49 PM by CM
A nice interview with Justice Department attorney extraordinaire and Harvard Law School alumnus, Viet Dinh.

Posted 12:17 PM by CM
For those interested in unsual cases, the case between Larry Silverstein and his insurance company surely does not disappoint. Basically, Silverstein had an insurance policy on the World Trade Center site (on which he holds a lease) that would pay him $3.5 billion in the case of a terrorist attack (The contract must indicate that the building(s) must be destroyed or something to that effect in order for the insurance to kick in, but I'm not sure of these details.)

In the current litigation, Silverstein's lawyers (Wachtell) are arguing that the attacks of September 11 constituted two attacks (and that Silverstein should thus get $7.0 billion), whereas the insurance company argues there was one attack (Silverstein would only get $3.5). Without knowing more details it remains difficult to tell which side sounds more convincing, but it surely seems that this case could be effectively argued on both sides. Whatever the result, we do not see $3.5 billion at stake every day.

In the latest news from the case, the trial judge, Michael Mukasey, practically called Silverstein a liar: "Mr. Silverstein's explanations for his actions are contradictory and not credible."

Posted 1:27 AM by CM
I guess I have become Ex Parte's campaign watching, poll watching guy...anyway, here is the latest interesting information.

George W. Bush's approval rating, which had been in the high 40s in many polls, now appears to have gone back above fifty percent. On 3/21/04, Zogby had Bush's approval at 53%. Rasmussen, which asks Bush's approval as part of its daily tracking poll, had Bush at a similar number, 52% on the same day. (The next day it was 53%).

In other interesting (but possibly meaningless) numbers, Zogby has Kerry leading Bush 56% to 38% in the "Blue" states, and Bush leading Kerry 53% to 40% in the "Red" states.

Posted 1:00 AM by Adam
This week, Professor John McGinnis, a friend of the HLS Federalist Society, is going to appear before the House Judiciary Committee to discuss the issue of international "precedent":

Thursday, March 25, 2004

Subcommittee on the Constitution

10:00 a.m. in 2141 Rayburn House Office Building

Legislative hearing on H. Res. 568, Expressing the sense of the House of Representatives that judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the laws of the United States.

Live Webcast

Monday, March 22, 2004

Posted 2:58 PM by Joshua Davey
Alternatives to Originalism?

A good post over at Southern Appeal on originalism. Are there any credible alternatives?

Posted 10:02 AM by CM
Even the liberals are getting worried....

Walter Cronkite in an open letter to John Kerry: "What are you ashamed of? Are you afflicted with the Dukakis syndrome - that loss of nerve that has allowed conservatives both to define and to demonize liberalism for the past decade and more?"

Posted 8:05 AM by Joshua Davey
"The best way voters this November can demonstrate their support for John Kerry is by voting against him." A few days ago Charles linked to a humorous, if depressing, bit of John Kerry doublespeak. More available here.

Posted 2:02 AM by Adam
Charles: If you ever wanted to see what it looks like when Israel sends in three missiles to dispose of Hamas's wheelchair-bound version of Osama bin Laden, well now's your chance. (Warning: It's a bit grizzly.)

It's looking to be a high-ratings day for Al Jazeera.

Posted 12:30 AM by CM
Hamas official Ismail Haniyeh: "The enemy should expect a response that will turn the ground under his feet to hell."

Posted 12:24 AM by CM
From AP: "Israeli forces killed Sheik Ahmed Yassin, the founder and spiritual leader of the violent Islamic Hamas movement, in a missile attack in Gaza early Monday, witnesses and Hamas leaders said, an attack likely to escalate Palestinian-Israeli violence."

Sunday, March 21, 2004

Posted 10:53 PM by Jesse
What's wrong with being a swarthy and menacing Italian-American stereotype?

Posted 9:45 PM by Jonathan
Anybody else notice how editorial cartoonists have taken to depicting Justice Scalia as a swarthy and menacing Italian-American stereotype?

Posted 2:20 PM by Joshua Davey
Adam and Jonathan, thanks for the welcome; its good to join everyone here at Ex Parte. I look forward to some engaging discussion.

Posted 11:32 AM by Jonathan
Welcome Josh! You'll make a great addition to the Ex Parte community.

Saturday, March 20, 2004

Posted 11:37 PM by Adam
We've got a new member at Ex Parte: Joshua Davey joins us today. (If you think that you might have heard of him before, you probably have.)

I've tried to announce the addition of each new member, but I fear I might have missed a couple. Apologies to all.]

Posted 8:07 PM by CM
This week, Newsweek will be doing a story on the presidential campaign based on a poll, with many of the more detailed questions about people's impression of candidates and their relative abilities, etc. Before it is taken off Drudge, I figured I would post this link, which includes not only the general poll results in article form, but also detailed information about the poll, including the questions. There are many interesting numbers in here. It will be interesting to compare these results with those of polls taken near election day...

Posted 12:49 AM by CM
John Kerry explaining his vote against Iraq appropriation at a West Virginia town hall meeting: "I actually did vote for the $87 billion before I voted against it."

Friday, March 19, 2004

Posted 8:54 PM by The Driver
More media coverage of Supreme Court justices: As the 12th-seeded University of the Pacific Tigers fight a pitched battle with 5th-seeded Providence (forced into their rarely-used man-to-man defense), I began wondering about the use of "right-wing" and "left-wing" to describe members of the Court.

This time, I used the Lexis "Major Newspapers" database, searching stories since 1990. I eliminated foreign newspapers from my count, and I applied Geoffrey Nunberg's "within seven words" methodology.

In the results, Justice Scalia is described as "right-wing" a whopping 66 times. Justice Stevens is described as "left-wing" a mere five times. Justice Ginsburg? A left-winger four times. (Admittedly, Ginsburg's numbers should be a little lower, since my survey stretches back to 1990, before she joined the Court).

Some people have argued that Scalia's higher "angry" numbers merely reflect that he is genuinely angry. I don't think that's true: his sarcasm at oral arguments is rarely mistaken for anger; deprived of the human context of his presence on the bench, I think it's simply easier for his ideological opponents to discredit him as angry than to try to grapple with his arguments. That said, the argument is respectable.

I don't think a comparable argument can be made in the "right-wing"/"left-wing" context, although I'm willing to listen if anyone wants to make it. To be convincing, I think that such an argument needs to answer two questions well. First, are "right-wing" and "left-wing," when used to characterize people, describing something logical and rational, as opposed to merely being pejoratives. Second, is Scalia so much more conservative than Ginsburg or Stevens is liberal as to justify the disparity in labeling?

Posted 8:24 PM by The Driver
Austin: Your response to Erin neatly mirrors the debate around Nunberg's research itself. Erin discusses "right-wing" vs. "left-wing," perhaps applying the assumption that these are terms connoting more extremism than "conservative" and "liberal," which Nunberg's study focuses on. Following Nunberg's study, Edward Boyd found different results (perhaps) when looking at "right-wing" and "left-wing." As to be expected in a debate of this sort, Nunberg had a response, which Richard Bennett followed with this critique.

I suspect that with the wide variety of labels, newspapers, and time periods, one can use Lexis or Dialog to produce almost any result on the question of media bias. So I doubt there will ever be any final, definitive answer.

I hope any critics that come gunning for me will remember that I labeled my casual Supreme Court analysis as "hardly scientific."

Posted 6:31 PM by Austin
Erin: For what it's worth, I believe that that chestnut about the media identifying conservatives as "conservatives" more often than liberals as "liberals" has been discredited by Stanford linguist Geoffrey Nunberg.

Posted 2:32 PM by Erin
The category that annoys me the most is how the mainstream media characterizes the extremity of beliefs on both sides. I'm too lazy to get on Lexis-nexis and do this research but it seems as though the term "right-wing" is used (normally derisively) many orders of magnitude more often than "left-wing." Left-wingers tend to be, simply "liberal" or else "progressive." It's this implied idea that there's never anything extreme about liberalism.

Posted 2:05 PM by Mark
Jesse: I agree with most of your descriptions of how prominent conservatives are characterized, except:

Powell? Misled and Ignored
Limbaugh? Evil Hypocrite

Posted 1:35 AM by Jesse
Eric--this is great stuff. I suppose, then, we can add a third category to the usual ones (evil or stupid) used to describe conservatives with whom the liberal media disagrees. All three ensure that well-reasoned, articulate, and passionate conservatives can be dismissed as some peculiarity of the human race without actually having to meet their arguments on the merits.

We hear these things almost daily:
Ashcroft? Evil.
Rumsfeld? Evil.
Powell? Stupid. (or misled)
Limbaugh? Evil...and stupid.
Remember Gingrich? Evil.
Reagan? Stupid and senile.
Giuliani as mayor pre 9/11? Evil.
Bush? First stupid. Then evil and stupid. Now stupidly evil.


On the other hand...how might an angry liberal be described? Passionate. Zealous. Heroic. Inspired. Indignant.

It's enough to make a right-thinking person want to lash out against the world in an evil tantrum of stupid rage.

And in a special programming note:

***************REMINDER****************
Journal of Law and Technology Symposium starts Friday. Come one, come all.

Thursday, March 18, 2004

Posted 9:46 PM by The Driver
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.

Update: In contrast, Justice Stevens is much nearer Justice Scalia's equal in "bitterness." 11 of Justice Scalia's opinions have been "bitter," beating out Justice Stevens' 7 "bitter" opinions. So Justice Stevens is more bitter than angry; Scalia, much more angry than bitter.

Posted 6:56 PM by Jesse
And CBS nightly news just described Scalia as the "prickly" justice.

Posted 2:27 PM by The Driver
The New York Times headline writers are already living up to my expectations in their reaction to Justice Scalia's recusal refusal. The headline right now describes Scalia as writing "angrily" about the motion. Their favorite characterization: conservatives are just "angry white males." The AP describes Justice Scalia as "defiant." You'd think that highly-educated journalists could distinguish sarcasm and anger...

Posted 2:06 PM by Adam
While my blog-surfing (and blog-posting) has been down lately, a recent trip across a liberal blog pointed me to a bit of startlingly bad argument by Yale Law Professor Jack Balkin:

My point was, and remains, that it is a big mistake to think that judicial activism is the modus operandi of any one political ideology. Political ideologies are quite often opportunistic with respect to institutional questions. Exhibit A is the Religious Right's demand for a constitutional amendment that would take the power to define marriage away from the states, where it has traditionally resided. In this example it seems clear that federalism concerns are yielding to ideological goals.

Posted 12:59 PM by The Driver
The initial death toll from yesterday's car bomb in Baghdad has been revised dramatically downward, to 7. John Burns of the New York Times reports that Gen. Kimmitt, the deputy commander for operations, was asked "how the Baghdad death toll could be so sharply changed." Hmm. Could it be that the media, in their rush to issue live reports on "the latest setback" for the United States, accept faulty and questionable sources as "the truth" when it fits their storyline?

In a rare burst of journalistic fairness, the Washington Post countered the boilerplate story of anger at Americans with a different opinion from the Iraqi man-on-the-street:

"This is Islamic?" Atheer Nouri, 40, said angrily. "This is not Islam." Nouri's metal front door was blown into his living room by the explosion. A two-foot blackened shard from an automobile had landed in the courtyard in front of his apartment.

Posted 11:06 AM by Amber
Charles-

I've been blogging the alleged hate crime since it happened. (I have a personal interest, since I graduated from Claremont McKenna.) The professor in question is a PhD/JD and former jury consultant. She is potentially liable for filing a false report with the local police and for lying to federal investigators, since the FBI became involved due to the potential for a civil rights violation. I hope they come down on her with both feet.

Posted 8:06 AM by CM
Linked to on Drudge: A California professor claiming to be a target of a hate crime accused of vandalizing and covering her car with racist sayings and sexist epithets.

If true, this professor should be fired. This is not academic freedom, but complete, utter fraud.

Wednesday, March 17, 2004

Posted 11:09 PM by CM
As one who enjoys following the presidential campaign, a recent campaign happening caught my eye: Upon finding out that John Kerry had been slated to give a speech to veterans in West Virginia, the Bush campaign had an ad playing within twenty-four hours criticizing Senator Kerry on voting record as regards the military. It remains to be seen, but if the Bush campaign continues to react this quickly and efficiently with TV ads, it will set a new standard for media campaigns.

Posted 9:22 PM by Mark
Patrick: Justice Kennedy wrote Romer v. Evans as well, which I suspect will be the case that the Supreme Court will rely on in a few years when they use the full faith and credit clause to force states to recognize gay marriages sanctioned by other states. I suspect Justice Kennedy will write that opinion as well.

Posted 5:31 PM by Patrick
Mark: What I find ironic is that the Justice that author forgot about, Anthony Kennedy, is the author of Lawrence, the very opinion relied upon by the Goodridge majority in the SJC to uphold gay marriage in Massachusetts.

Posted 2:58 PM by Mark
Jonathan: I wouldn't cry too much about that sentence. The author appears not to realize that there are nine justices on the Supreme Court, not eight, which disqualifies him as a serious commentator in my mind. Or perhaps I'm wrong to impute knowledge of ninth grade Civics to my fellow Americans?

Posted 1:16 PM by Jonathan
I also "don't like bearded, sandal-wearing weirdos burning the flag." Thanks to Howard Bashman for the link.

Posted 12:52 PM by Jonathan
I was researching my upcoming Record column when I stumbled upon a sentence that damn near made me cry: "When did the Commander-in-chief become so pompous as to assume that he has the right to amend the Constitution in order to dissent from Justices' rulings?" I sincerely hope this represents the view of an extreme minority of arrogant elitists; given my vantage point from HLS, it's hard to tell just how far this sort of thinking has seeped into the American consciousness. Having a government for the people leads to corruption, elitism, and arrogance if it is not also of the people and by the people. I hope that the spirit that drives the VFW Chapters, Little Leagues, Boy and Girl Scout troops, Rotary Clubs, and the like can stand against the leftist elite's savage attacks on the foundations of American democracy.

Tuesday, March 16, 2004

Posted 10:56 PM by CM
Good point, Jesse. I would still argue, however, that a patriot could in good conscience have bedding with flag imagery on it. (Taken out of context, the previous sentence would be really odd. Anyway...) The Flag Rules only apply to actual flags. So you could not sew together flags to make bedding, but you could have a cotton sheet with American flag imagery on it. The rules also prohibit using the flag as "apparel," as you indicated, but they surely do not preclude one from wearing a tie with the American flag on it, nor a lapel pin, which many patriots don on a daily basis.

Posted 10:36 PM by The Driver
They may not be foreign leaders, but ordinary French are "going wild" for his "elegance." You mean he looks French? Maybe he picked it up in a French-speaking country in Southeast Asia?

Posted 10:15 PM by Jesse
Actually, Charles, a true patriot would never "go to sleep in beds with American Flag sheets and pillow cases" since, as the Flag Rules and Regulations dictate, "[t]he flag should never be used as wearing apparel, bedding, or drapery."

Posted 10:01 PM by The Driver
1L sources tell me that at tonight's Harvard Law Review information session, diversity was on everyone's mind. The Review deserves credit for highlighting its intellectual diversity by mentioning Lawrence's article (although not the discussion surrounding it).

Posted 7:48 PM by CM
For all those PATRIOT Act haters/lovers out there:

Today, after an OPIA lunch honoring Inspector General Glenn Fine of the Justice Department and U.S. Senator Paul Sarbanes (D-Md.), I took the opportunity to ask Mr. Fine if there have been any real reported abuses of the PATRIOT Act. His answer: There have been NO abuses of the PATRIOT Act on record, which he reported to Democratic Sen. Diane Feinstein of California when she asked him the same question. For skeptics, Inspector Fine was originally a Clinton appointee.

On another note, I think it's pretty clear by now that making the PATRIOT Act the PATRIOT Act was a political mistake. I think it would have been far more beneficial for the Congress to call the bill the "Anti-Terrorism Act of 2001." At the time, PATRIOT sounded appropriate. After all, who can oppose a PATRIOT Act? But the catchy title has allowed opponents to make it a symbol of everything they do not like the administration. Think about it: A PATRIOT Act may easily be maligned by those who think that the administration and its supporters are a bunch of gun toting, horse riding cowboys who go to sleep in beds with American Flag sheets and pillow cases. An anti-terrorism title would have been more difficult to manipulate. Just some political ramblings...

Posted 12:13 PM by Jonathan
Charles, I think American foreign policy just got simpler. Since Spain responds to violence by accomodating the attacker, the next time we want something from the Spanish government and it is hesitant to comply, we know that sending the B-2s over to massacre Spanish citizens will change the government's mind.

Disclaimer for the stupid and overly sensitive: the above is sarcasm. But Spain is going to learn some hard lessons in the coming years. ETA may take this as a cue to step up their own terror attacks. Al Qaeda may demand more and more, extorting outrageous concessions or slaughtering more Spanish civilians based on the justifiable assumption that their tactics will succeed. Other European allies may fall prey to similar tactics since the Spanish voters broadcast to terrorists that these methods work. Accommodating terrorists will only hearten them and encourage further attacks.

Posted 9:59 AM by CM
What do you all think about the mess that happened in Spain? I admittedly know relatively little about what has gone on, but it seems as if this cannot be very good for both Europe, the United States, nor the rest of the world.

A terrorist/terrorists kill(s) almost two hundred people, and the response? Totally pull out of the "disaster" that the future Prime Minister, Jose Luis Rodriguez Zapatero, calls the "occupation" of Iraq. This is really sure to help the situation in the future now, isn't it?. Spain is sending the message that if you attack them, they will run scared and give you whatever you want.

On another note, the markets in Spain and across Europe seem to be worried that the new Socialist government might nix some market reforms of the previous government.

It seems like Dennis Kucinich maybe ought to move to Spain. He might be able to be elected there.

Posted 2:48 AM by Adam
Lawrence VanDyke continues to defend himself against the vicious attacks of Professor Brian Leiter and others. He posts this reply to Ed Brayton regarding Leiter's attack:

Mr. Brayton – most of your response argues that the links I provided in support of my claim regarding peer-reviewed articles don’t in fact support that claim. Whether you are right or wrong, you seem to acknowledge that what I was trying to support was a claim about peer-reviewed articles “in support of ID.” Otherwise why even argue the point – Meyers has already alleged that Axe is a “closet” ID supporter. But later on you seem to revert to arguing that I somehow was intentionally trying to misrepresent something with my ellipses. I wasn’t. The sources I to which I linked say that there are peer-reviewed articles “in support of ID,” not just peer-reviewed articles by ID proponents. You are grasping at straws if you are trying to show I was trying to misrepresent Leiter.

However, regarding your claims that the articles themselves don’t support ID, I can’t argue that directly with you. I’m not a scientist. But I am quite confident that the scientists at Discovery Institute would argue (and have argued) vehemently that those articles do indeed support ID. Which brings us back to the real issue. The issue isn’t really about the peer reviewed articles. I didn’t bring them up in my Note; Leiter did in his attack. You have already admitted they are a weak argument. The real questions still are: First, did I commit “scholarly fraud” as Leiter blatantly accused me of? Second, did Leiter have “factual errors” and “misleading innuendo” in his attack (since he accuses me of this, by his definition his post was “scholarly fraud” if he engaged in such in the very post he attacked me with)?

On the first count, since you admit that Leiter’s contention regarding peer-reviewed articles was “fairly meaningless,” clearly my leaving it out (which is all Leiter accused me of on this point) wouldn’t be scholarly fraud if it even applied. However, if you read my Note, Leiter is quibbling over the introductory paragraphs where I introduce ID. In those paragraphs, I am clearly relating what the ID movement is saying about itself (I happen to agree with them but that is beside the point) – I clearly don’t say it is the majority view. Indeed, I said the movement is “small” and that “critics have loudly protested.” This wasn’t enough for Leiter – if you boil down his attack, it was scholarly fraud for me not to bash on ID. He even attacks my opening sentence – which he admits is “correct.”

So, on the peer-reviewed articles issue – it is a moot point with regard to Leiter's post and my Note. Not only is there controversy between scientists about it, my Note didn’t address it, and you have as much admitted there is no way it has any bearing on “scholarly fraud” in my Note. Additionally, and this is in general response to Leiter’s “leaving out” accusations - my Note was strictly limited to 8 pages. I cut my introduction down as bare as possible – I guess I overestimated some critics’ willingness to read past the first page.

On the second issue, whether Leiter contained “factual errors” and “misleading innuendo” in his attack, I don’t think you need to dig too deep. I’ve already mentioned his ridiculous “exactly two credentialed scientists” remark. I suppose he will try to say he defines “credentialed” very narrowly. I’m not, however, convinced he would have been as generous in interpreting my writing that way. He also clearly mischaracterized my “significant controversy” remark as referring to scientists and left out that I said the ID movement was “small.” Those are factual errors and intentional misrepresentation. If we start to count “misleading innuendo,” then we have to ask why Leiter didn’t mention that the ID movement does claim to have peer-reviewed articles supporting them (after all, he brought it up, I didn’t)? Why doesn’t he mention that leading philosophers of science do indeed agree that Methodological Naturalism underlies evolution? Instead he repeatedly denies it. Why does he blatantly mischaracterize me as only quoting “one line from … Richard Dawkins” when I really quote 7 different pundits? Why does he intentionally reductively lump ID and creationism, without ever mentioning that neither movement acknowledges affiliation with the other (calling the Discovery Institute the “public relations arm” of the creationists is a factual error – albeit intentional). Does all this “misleading innuendo” mean Leiter committed “scholarly fraud?” If so, will he pay the price he was clearly advocating when he was attacking me? I’m skeptical.

Finally, I’ve already admitted that I made a mistake in my first post here at Ex Parte by supporting my “more than two scientists” point using NCSE’s “Steve” site – however, the point is still valid: there are more than "exactly two credentialed scientists" who dissent from Darwinism.

Monday, March 15, 2004

Posted 8:10 PM by Adam
Brian Leiter has responded to the NRO article in defense of Lawrence VanDyke, but he has not yet responded to Lawrence's own self-defense. Tonight I emailed Leiter to apprise him of Lawrence's response. Let's see if he actually responds to Lawrence.

Posted 2:05 PM by Jonathan
The original web article announcing Lawrence's authorship of the book note includes the following: "According to the Harvard Gazette, its circulation--roughly 8,000--is the largest of 'any law journal in the world.'" The fact checkers at the Gazette really dropped the ball on this one; a law journal on their own campus, the Harvard Journal of Law & Public Policy, has a substantially higher circulation.

[UPDATE] As best I can tell after some quick research, the Gazette ceased making such claims four years ago; I assume that the great John O'Quinn set them straight. My apologies to the fact checkers at the Harvard Gazette, who appear to have long ago corrected this mistake.

Posted 2:00 PM by Jonathan
Professor Leiter's clumsy and thuggish attack on Lawrence's work plainly illustrates the corruption that results from the closed-mindedinsularity of the legal academy. Not only does the establishment routinely discriminate against unorthodox thinkers when making hiring decisions, it now threatens students with serious and permanent retribution for expressing heterodox opinions.

Professor Leiter has every right to dispute the contents of the book note; give-and-take between different positions vitalizes the academy and encourages students to make their own decisions. Instead, Professor Leiter favors a regime of indoctrination, hiding behind his tenure while he chips away at the foundations of free speech and free thought.

Again, I do not take issue with the professor's criticism of the contents of the note. He has every right to make those criticisms, and But his naked threats poison the debate and reveal that he is more interested in silencing the opposition than in proving them wrong. Shame on Professor Leiter.

Posted 1:17 PM by The Driver
Appeasement lives: European Commission President Romani Prodi demonstrates the European philosophy of "peace at all costs" with his comments today: "It is clear that using force is not the answer to resolving the conflict with terrorists." In his opinion, "resolving the conflict" should take two forms: appointing an EU "Commissioner for Terrorism," and encouraging the United States to "cooperate with other countries."

He appears to believe that the answer to terrorism is for Jimmy Carter and the EU Commissioner for Terrorism to hold peace talks with terrorists, and have the United States and the rest of the world abide by the results. Uh huh.

Putting aside the notion that we can somehow "strike a deal" with terrorists, the 3/11 attacks in Madrid highlight the reality: we have no choice but to remain on the offensive against terrorism. The attacks occurred despite a heightened state of alert, motivated by Spanish fears that terrorists would target the elections. Hunkering down behind Jersey barriers and X-ray machines is no answer. And sadly, neither is relying on our allies to carry on the fight.

Posted 10:27 AM by Adam
Nels: The author of the book that Lawrence reviewed poked a little fun at Professor Leiter on his own blog.

Posted 9:59 AM by Nels
On a more serious note, one of the nation's leading social commentators has this to say about the burgeoning federal deficit.

Posted 9:45 AM by Nels
NRO weighs in on Prof. Leiter's scurrilous attack.

Sunday, March 14, 2004

Posted 8:20 PM by Adam
AN IMPORTANT SUNDAY POST: Today, Ex Parte brings you an extended post -- an important post. Lawrence VanDyke, an editor at the Harvard Law Review, a dedicated member of the HLS Federalist Society and a friend of Ex Parte, was attacked recently by a U of Texas professor who took exception to a Note he wrote for the Review: Not Your Daddy's Fundamentalism: Intelligent Design in the Classroom (117 Harv. L. Rev. 964). Professor Leiter's attack is as wrongheaded as it is vigorous. Lawrence has penned an extensive response to Leiter, whose vitriol extends to outright condemnation of any academic future for Lawrence:

Mr. VanDyke may yet have a fine career as a lawyer, but I trust he has no intention of entering law teaching: scholarly fraud is, I fear, an inauspicious beginning for an aspiring law teacher. And let none of the many law professors who are readers of this site be mistaken: Mr. VanDyke has perpetrated a scholarly fraud, one that may have political and pedagogical consequences.

***********************

Posted 4:55 PM by Jesse
Well, it’s been a while since I’ve posted here, mostly b/c I’ve been busy working on a symposium for JoLT, which I am now going to give a shameless plug for, hoping that many of you will attend next weekend.

The topics covered and participants should be of interest to Federalists, and Federalist bloggers especially:

******
2004 Harvard Journal of Law & Technology Symposium
Evolving Media, Emerging Distribution Technologies and the Legal Response
March 19-20, Harvard Law School

The symposium will explore how technological innovation and the digitization of print and broadcast media are impacting ownership and control of media distribution channels and consumer access and choice.

The full schedule of events is viewable in the hyperlink above, but some of you may particularly enjoy:

Friday Debate: “New Media Forums and First Amendment” (Langdell N. at 4pm)

Bruce Taylor, DOJ’s chief obscenity attorney and Chief Counsel to the AAG Criminal Div will be debating Shari Steele, President of the Electronic Frontier Foundation.

The tech crowd that the symposium usually draws will probably favor Steele, so for the conservative-types, it might be interesting to have you in the audience asking questions.

Saturday 10am panel: “Media Ownership in the Technological Age” (Langdell N.)

For you REASON Magazine readers out there: Ben Compaine will be on this panel--the author of the recent cover story “Domination Fantasies: Does Rupert Murdoch Control the Media?” will be on this panel (you remember this issue—the one w/ Murdoch brandishing a stricking S&M outfit and a whip).

Saturday FREE LUNCH and keynote (Ropes-Gray): Tom Hazlett

Senior Fellow at the Manhattan Institute and former Chief Economist for the FCC, who has written for (among many others) WSJ, The Economist, REASON, and JLPP…

YOU NEED TO REGISTER AT THE WEBSITE FOR THE FREE LUNCH


I really hope some of you will attend.
******

In other news: did anyone catch Condi Rice on Meet the Press this morning. I think she did an excellent job (something the Bush admin. seems rarely able to do) of laying out why we are at war, what dangers we face, and why invading Iraq was part of a larger effort in this war.

Friday, March 12, 2004

Posted 5:50 PM by Adam
Greg: I'd go so far as to say that it's better to be a minority voice at law school. (I've said so myself in the school's paper -- apologies for the shameless self-promo.)

Both of my big spring courses -- Labor and Administrative -- suffer from an extreme dearth of conservative/Textualist voices. I get called on roughly twice per class. (In some ways it's a pain, but then again, no one has ever accused me of unduly hating the sound of my own voice.) It's a good opportunity -- at least when our classmates go on to run the country, they'll know that their liberal schemes don't enjoy unfettered support from all of their law-school peers.

Posted 5:38 PM by G
I really can't say I've ever felt myself discriminated against here at Harvard for my minority political beliefs, in fact I was surprised at how receptive and open to differing viewpoints my professors have been. For instance, Professor Duncan Kennedy, who clarifies those who call him liberal with the retort "I'm a leftist, not a liberal," called on me more than anyone else in my 1L torts class, in large part because he knew I'd provide a good defense of many minority positions in class. That sort of openness to differing viewpoints is in my experience the norm.

Now that I'm teaching a FAS class here myself, I'm doing the same. It's simply not fun to have a class discussion where everyone is in agreement with one another, or where any student feels silenced. I think teachers of all political persuasions can agree on that.

Posted 5:35 PM by G
My score on the libertarian purity test was almost the same as Mark's, a 38. Even in my Cato days, I was one of the less radical libertarians. This is because I hold my utilitarian moral principles much more dear than any particular political opinion, and I think a general utilitarian analysis of public policy tends towards recommending a minimal but efficient state, with the major exceptions being in correcting market failures (subsidizing education and taxing polluting activities) and minimizing the great disparities of wealth that are inevitably the result of a free market economy.

Posted 3:51 PM by Adam
In the Wall Street Journal, John Miller describes the plight of the world's most discrete and insular minority: the classroom conservative.

I must say, though, I do enjoy this lot in life. It's so much more fun to be the minority voice -- this semester, I've quite enjoyed stirring up trouble in Labor Law and Administrative Law. You don't even need to try hard; my classmate liberals get bent out of shape over the most innocuous of statements (e.g., "The Constitution provides for separated and limited powers.")

Posted 3:25 PM by Mark
I got a 40, which means my libertarian credentials are "obvious." Take that, Adam. And if I spend any more time on Ex Parte today, I'm afraid my libertarian credentials might be the same as my MPRE score, so...

Posted 2:51 PM by Don't Be a Victim
Nels: Yeah, I'm an anarcho-capitalist, but I'm the friendly kind. :) I actually rather like the term voluntaryist. For more on free-markety anarchism, check out Bryan Caplan's Anarchist Theory FAQ.

Adam: No worries about the ribbing. Those are definitely tough issues for hard-core libertarians/anarcho-capitalists. Not to mention everyday issues like how we can drive on gov't-funded roads, borrow books from government libraries, send mail through the government postal system, buy products from heavily subsidized corporations or industries, etc. At some point, you basically have to accept that to function in our current society, you have to be somewhat less "pure" than your ideals, and if that means driving on gov't-funded roads or wearing a mohair sweater, than so be it. My general view is if the government created entity displaces a private entity that would do the same thing, it's no great sin to reap the benefits - a committed libertarian shouldn't have to wait to mail a postcard until the post office is privatized. And if taking a government job allows you to influence policy for the better, reducing overall coercion, than I think it's an acceptable trade-off. Many libertarians differ on this issue, however, and it's difficult to resolve.

(Was never much for Rand myself, and while the LP was what made me aware of libertarianism, I lost interest in their whole gig quite awhile ago.)

Posted 2:32 PM by Adam
Can hard-core libertarians be federal clerks? After all, that is a government position. In principle, can libertarians collect a salary that's been taken from the taxpayers in a nonconsensual transaction?

Speaking of which, I wonder if Libertarians can take federally-subsidized students loans!

(I'm just ribbing you, Dan. As a recovered Libertarian/Randroid, I couldn't help myself.)

Posted 2:30 PM by Adam
Well well well -- look who's got himself a second blog!

Posted 12:27 PM by Nels
Wow - that's pretty hard-core, Dan. You call yourself an "anarcho-capitalist"?

I got an 18 - I'm told that means I'm a soft-core libertarian, but with effort I may "harden and become pure."

Not sure I like the sound of that....

Posted 11:28 AM by Don't Be a Victim
I'd like to encourage my fellow bloggers to take Bryan Caplan's Libertarian Purity Test (yes, even if you're not a libertarian) and enter their scores here, where blogger results are being tallied. Many friends of Ex Parte and/or friends of Ex Parte bloggers have posted their results. Readers are, of course, also welcome to participate in the fun and games.

I got a 160, pretty much as expected. Sounds dogmatic, but there were obviously some answers that I'm less confident in than others. That's not really going to be reflected in a binary scoring system, however. I wonder if posting this score means I'll never get a clerkship...


Austin: I haven't forgotten your request and will post some stuff on libertarian positions on biotech issues as soon as I get a chance.

Posted 12:16 AM by The Driver
Along with several other Ex Parte regulars, I attended today's Dean's Forum, featuring Fed Society sponsor Charles Fried. The subject was the "Free Speech" chapter of Prof. Fried's new book, Saying What the Law Is.

It's usually good to hear Prof. Fried speak; I suspect my attendance might have been even more rewarding if I had taken the opportunity to read the book beforehand. In the panel discussion, which included Prof. Schauer, Prof. Fallon, and Prof. Field, (note to HLS readers in the know: this is almost a variant of the parody - the "F"-Team! And with the Federalist member of the H-Team in attendance, no less...) Fried laid out the idea that the history of the First Amendment documents a search for the right high-level principle or natural truth and attempts to show how it "is grounded by... the luxuriant growth of doctrine."

And what is the right high-level principle? According to Fried, it is "the principle of self-ownership," first referenced in Dred Scott and developed into a free-speech related concept of the "bastion of the mind and soul," ultimately taking hold as a prohibition on government from limiting speech containing a "message it doesn't like." As the title of the discussion referred to it, this is the principle of "Freedom of Mind." There is apparently an analogy to property rights involved as well, but I'll have to read the book to be able to explain it, as it wasn't discussed in depth.

Fried further argued that this principle extends well beyond speech to explain our protections of expressive conduct, including body-painting, body-piercing, nude dancing, and perhaps even contraceptive use in Griswold and sodomy in Lawrence (Fried suggested that perhaps we can look at sodomy as just a two-person form of nude dancing).

Schauer critiqued Fried from several angles. His least-convincing critique suggested that the theory failed to explain the many exceptions in free speech doctrine, neglecting to address (as Fried subsequently pointed out) the fact that the evolutionary discovery of the principle that Fried was describing would lead to exactly this result: a Supreme Court that decides only a few free speech cases per year can hardly be expected to keep an entire doctrine current with its most enlightened principles.

More convincingly, Schauer argued that it is difficult to separate Fried's theory from a "full-stop" theory of freedom or libertarianism. After all, Fried himself conceded the crossover to many forms of conduct, beyond those we traditionally consider expressive. And, as Schauer pointed out, "What goes on in our minds is influenced" not only by what we say and what others say, but by what we do, what others do, what experiences we have, and everywhere we go; moreover, what goes on in our mind leads us to make decisions about all of our conduct. In the end, Schauer posed the question of why we should prohibit harmful conduct, when we protect harmful speech. (This is a problem Prof. Volokh and I frequently discussed this fall in the context of compelled speech).

Not surprisingly, Fallon focused on the absolutism of Fried's explanation, analogizing his theory and its exceptions to the absolute prohibition of the First Amendment ("Congress shall make now law") and its many practical exceptions, and using Berlin's "hedgehogs and foxes" metaphor to frame most of the remaining discussion. And Field equally unsurprisingly focused on Fried's emphasis on rational thought, as opposed to emotional reactions, and characterizing his analysis of hate speech as "facile."

I originally intended to post some of my own thoughts and reactions, but it's getting late, so I'll leave this as a blog recap of what was discussed for all of you who couldn't make it, and I'll try to put some of my own thoughts up tomorrow. I would point out that if Lawrence merely describes a form of nude dancing that should be protected by the First Amendment, Justice Scalia is right to delineate his parade of horribles. It's hard to imagine how incest, polygamy, etc. could then be cast in any different terms.

Posted 12:04 AM by The Driver
Did you know that France has a color-coded terror alert system, just like the United States?

France raised their alert status today, following the terrorist bombings in Madrid, and they signaled the change with their year-old color system.

I have read dozens of stories like this one criticizing the DHS system here in the U.S. over that time period, and I can't recall ever seeing anyone mention that even the French think it's a good idea.

Well, o.k., I'm not sure how much credibility I give to the French in the war on terror, but it's worth noting that they've spent a long time confronting the threat of domestic terrorism.

Incidentally, I took Glenn Reynolds up on his excellent suggestion that we should send condolences to the Spanish Embassy and consulates. I recommend that you do the same; Spanish support has been valuable and reliable in this war, especially during the 30 months since the terrorist attacks in the U.S.

Originally posted in part at Per Curiam.

Thursday, March 11, 2004

Posted 6:13 PM by Adam
A couple of thoughts on today's debate on gay-marriage Constitutional amendments at the Massachusetts General Court (the legislature, for those of you not blessed to live in the Bay State):

First, it's pretty fortunate for proponents of a flat ban on gay marriage with no provision for civil unions that the legislature will first vote up or down on "compromise amendments" -- i.e., amendments that prohibit same-sex marriage but that allow for (or even require) same-sex civil unions that would entitle same-sex couples to the same benefits enjoyed by married couples. Hardliners on both sides of the gay-marriage issue oppose it. If they succeed in killing it, then the squishy center will be forced to either endorse or reject gay marriage. I haven't read the polls lately, but I'll be interested to see which way the middle swings.

Second, the language of the currently-favored amendment, the "Finneran Amendment," troubles me:

Two persons of the same sex shall have the right to form a civil union if they meet the requirements set forth by law for marriage. Civil unions for same sex couples are established hereunder and shall provide entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law. All laws applicable to marriage shall also apply to civil unions.

This Article is self-executing, but the General Court may enact laws not inconsistent with anything herein contained to carry out the purpose of this Article.

Posted 1:26 PM by The Driver
Greg Skidmore at the Sports Law Blog is discussing yesterday's Senate hearings on baseball steroid use. An interesting facet of this story, under-reported by the media because it doesn't fit their preconceptions, is the leadership of Sen. McCain on an issue nationalized by President Bush.

Sen. McCain is often portrayed as an enemy of the White House (undoubtedly the reason why journalists found the McCain for VP story instantly credible. While it's true that he's often a thorn in the side of the Bush administration's legislative agenda, he's no John Kerry -- that is, he doesn't reflexively take positions to be in opposition.

Look at what's happened here. It was just two months ago that people were mocking the President for mentioning steroid use in the State of the Union. McCain is not only standing behind the White House on this one, he's using his populist appeal and credibility with the media to attract attention to it as a political issue, not just a baseball issue.

Other areas in which McCain has recently supported the White House or its goals include immigration reform and whether terrorism and 9/11 are appropriate issues in campaign ads. The media, of course, has focused on his request for subpoena powers for the WMD commission.

Posted 1:07 PM by The Driver
Charles, you're right. I just can't see Sen. Kerry picking someone who would overshadow him, which is one of the (many) reasons why these candidates are totally implausible. But the reason why these names have generated so much more attention than, say, Sen. Graham, is that Sen. Kerry is such an uninspiring nominee. It's a catch-22 for Kerry, because he needs excitement from a VP nominee, and right now he needs the buzz from exciting prospective VP nominees, but at the end of the day, it's unlikely that he will follow through.

As a result, my prediction is that he'll have no choice but to make an "affirmative action" nominee, even if that means ignoring candidates who could help him geographically, or in the electoral college. Paging Gary Locke and Janet Napolitano...

Incidentally, it is amazing the number of moderates/Reagan Democrats I've talked to who have said "two months ago, Bush's spending excesses had me thinking about voting for the Democrat. But Kerry? No way."

It remains to be seen whether either candidate will be able to motivate these folks to show up and vote in November. It's more likely that President Bush can than Sen. Kerry, in my opinion. But perhaps Move-On will begin running ads that say "a vote for no one is a vote for Bush."

Posted 12:57 PM by Adam
Speaking of the 9/11 ads ...

OpinionJournal.com publishes a subscribers-only daily dispatch, "Political Diary," featuring blog-like commentary by John Fund, Holman Jenkins, and others. Today's issue closes with some thoughts on the ones truly exploiting 9/11 for political purposes: liberal activist groups.

Exploiting 9/11

Bloggers have done yeoman's duty for the sake of history, if nothing else, by charting the political connections and interests of the small number of Sept. 11 "victim" activists who've made such a stink about the Bush TV ads. Instapundit.com has collected some of this string and found that the same handful of "spokespeople" were interviewed over and over by the media. Nor were these sought-out interviews by energetic journalists: Before the ad furor, the activists were already running anti-Bush Websites and engaged in a full complement of conspiracy-mongering and leftwing activities.

To wit, if anyone is "exploiting" the tragedy, it's a handful of these "victim" representatives. The media were already burned once by dot-com touts and now have the good sense to require financial analysts to declare their interests in the stocks they talk about. Maybe it's time to start providing readers and viewers with the same skinny on the self-appointed spokespeople for various causes who currently are misleadingly presented as news "sources."

--Holman W. Jenkins Jr.

Posted 11:40 AM by CM
Patrick,

Thanks for the info, and for being a stickler. Please go on doing so! I completely agree with your analysis. Some further comments:

The 38% of the people surveyed who claim they saw the ad may not have actually seen the entire advertisement!!! In the few days after the Bush campaign released the ads, the cable news networks ran coverage of the ads over and over again. Once when I saw it played on CNN Headline News, they only showed a small part preceding and following the 9-11 portion of the ad, and I can swear they slowed the ad down so people would see the 9-11 imagery more easily (admittedly, that's anecdotal).

Regardless, people who "saw" the ads on the news didn't really see it, because the news networks rarely, if ever, show the ads in their entirety. People who see just the 9-11 portion of the ad might think the entire ad was based on that theme, but anyone who has actually seen the complete ads would know that could not be further from the truth.

In light of this consideration, poll question 16 becomes even more problematic. Note that in question 16, there is an answer for having seen the ad, and for having "heard/read" about it, but no answer for having seen the ad as part of news coverage. People who had seen part of the ad within a newscast might have have picked the former choice, making the number of people who had actually seen the ad less than 38%. This makes sense. The ads are running in only 18 or so states (excluding some populous states like NEW YORK), so in these other states, only people willing to spend the effort to visit the President's campaign website would have even really seen the ads.

Given these problems, Greg cannot say that a "majority" of Americans disapprove of the ad. The poll numbers do not support it.

Posted 11:17 AM by Patrick
Gents:

Alas, Greg was telling you the truth. There is such a poll (warning: not a permanent link). But Greg forgot to tell you the whole story. There are three questions relating to the Bush ads. Let me quote from the poll:

(Note: questions 15 and 16 were asked to a split sample, meaning that half the people who answered the survey answered question 15 but not 16, and the other half answered 16 but not 15)

15. Do you think it is appropriate or inappropriate for political candidates to run campaign ads that use images depicting the September 11th, 2001 terrorist attacks?

March 5-7:
Appropriate: 30%
Inappropriate: 66%
DK: 4%

16. Do you think it is appropriate or inappropriate for George W. Bush to run campaign ads that use images depicting the September 11th, 2001 terrorist attacks?

March 5-7:
Appropriate: 42%
Inappropriate: 54%
DK: 4%

17. Which of the following applies to you: You have seen new political ads for George W. Bush?s presidential campaign, you have heard or read commentary about these ads, but you have not seen them, or you are not aware of new political ads for George W. Bush?s presidential campaign?

March 5-7: (asked of entire sample)
Have seen Bush's campaign ads: 31%
Have heard/read about ads: 39%
Not aware of Bush's campaign ads: 29%
DK: 1%

My comment:

Those poll numbers don't mean anything. When you ask the generic question (15), you get a very high Inappropriate score, probably because of how the question was asked. After all, the 9/11 attacks have hundreds of images associated with them: the flag at Ground Zero (the Bush ad), the burning towers, the towers falling down, the plane hitting the tower, people jumping from windows, etc. The question was insufficiently specific to take into account the specific 9/11 reference the Bush people chose to use. So it's very significant to me that when you ask relative to Bush (16), the Inappropriates go down by 12 points. Moreover, 68% of the sample had not seen the Bush ads. In fact, the modal response was "had read about the ads," which suggests the strong possibility of media bias influencing the results.

I'm sorry to be such a stickler. I've studied surveying quite a bit; let me just say that when you ask such a generalized question, you get a lot of different kinds of response bias that make your results pretty undesirable. If they had really wanted to measure the appropriateness of Bush ads, they would have either (a) done focus groups (where you show the ad), or (b) asked the question more specifically ("Bush's use of the American flag at Ground Zero of 9/11 attacks...").

All in all, I'm not impressed.

Posted 8:32 AM by CM
Eric, you make a good point. Do any of those three even sound like a realistic choice to anyone? Kerry will never pick a running mate that would overshadow him, which is why we will end up with someone relatively familiar...

Posted 1:06 AM by The Driver
It seems to me that the Kerry folks are playing a dangerous game by keeping a prominent string of VP names in the media: Tom Brokaw, John McCain, Bill Clinton. The danger for Sen. Kerry is that people are going to expect a dynamic, even earth-shattering VP choice, and they're going to end up with someone they've already seen enough of, like Dick Gephardt. And that's not going to produce the missing enthusiasm that he'll need to be competitive in November.

Posted 12:44 AM by CM
Adam,

I also could not find the link. The only one I saw was to a general Gallup poll, but I didn't see any questions about the ads...

Charles

Wednesday, March 10, 2004

Posted 11:34 PM by Adam
Greg: Where'd you link that Bush Ads poll? I can't find it.

Posted 6:17 PM by Patrick
Greg: I never expected that you, a libertarian, would be in favor of more police officers on the streets enforcing drug laws (if I recall, about 1/3 of the prison population is there for violation of drug laws).

Incidentally, the article where I assume you got your quote from Mr. Sum is this op-ed in the NYT from Monday. What you fail to mention is that the actual unemployment rate, 5.6%, while certainly high when compared to the boom times of the late 90s, is pretty average when you look at unemployment rates from the 60s forward. Indeed, if you look at the official data (select dataset LNS14000000 and run for years 1970-2004), you can clearly see that the unemployment rate was only consistently below 5.6% during Clinton's second term in office. As a matter of fact, during Reagan's administration, unemployment rates were only below 5.6% during '88. Should President Reagan have been thrown out of office and replaced with Walter Mondale?

You're very right that we have economic problems right now. But it's important to keep in mind that while things aren't as good as they were during the economic bubble of the late 90s, they aren't that bad. What do you propose that the President do in order to stimulate job growth? Repeal the tax cuts and expand government employment? Get a little Keynesian action going on?

Let's evaluate your candidate's position on the economy:

John Kerry has a plan to secure America’s economic future and ensure that workers can achieve the American dream in our changing economy. John Kerry has the courage to [1]roll back Bush’s tax cuts for the wealthiest Americans so we can [2]invest in education and healthcare. He isn’t afraid to [3]crack down on corporations that are hiding their money in Bermuda to avoid paying their fair share and will end [4]special tax giveaways to companies that ship jobs abroad. And he will [5]defend the rights of workers, consumers and shareholders in holding corporations accountable for their actions. (emphasis added)

So let's see: raise taxes[1], end tax shelters[3], spend money on education (government) and health care (government)[2], economic protectionism[4], and corporate governance reform[5].

Moreover, John Kerry has a plan to raise manufacturing jobs:

• Providing New Tax Cuts to Create Manufacturing Jobs in America and Closing Loopholes that Reward Moving Jobs Overseas. Kerry proposed a new jobs tax credit that would refund the payroll taxes for two years for any new employees hired at a manufacturing company and closes loopholes giving tax incentives to move jobs offshore


• Invest in Research & Development and Give Tax Incentives to Help Industries Upgrade and Better Train Manufacturing Workers: Double funding for the Manufacturing Extension Partnership that helps small and mid-size manufacturers stay competitive. The Bush Administration has proposed a 90% cut.


• Increase and Better Enforce Our Trade Laws to Assure America has a Level Playing Field


• Provide Relief for Manufacturers that Provide Quality Health Care and Pensions

Posted 4:23 PM by G
Crime rates went down faster than any other time in recent memory during the Clinton years, and credit is usually given to the strong economy, more prisons, and more police officers on the street.


We still have an ever higher portion of our population in prison, in fact California has more prisoners than Japan, England, France, and Holland put together, and our rate of imprisonment is far higher than even the police state of Red China.

On the other hand, Bush has cut Clinton's programs for more community based policing, and will be the first president since Herbert Hoover to end his term with fewer Americans employed than he began. Large number of police officer in the National Guard and Reserves are also now away from their jobs, policing Iraq. An especially worrying sign:

A new study by Andrew Sum, director of the Center for Labor Market Studies at Northeastern University, found historic lows in the reported labor force participation of 16- to 19-year-olds. According to the study, "The estimated 36.8 percent employment rate for the nation's teens was the lowest ever recorded since 1948."

A more ominous finding was that over the past three calendar years the number of people aged 16 to 24 who are both out of work and out of school increased from 4.8 million to 5.6 million, with males accounting for the bulk of the increase.

Posted 4:23 PM by G
Charles, a recent poll showed that 54% of Americans disapproved of Bush's 9/11 ads. If you look back at my previous posts, I included a link to it.

Posted 1:09 PM by The Driver
Daniel Casse's review of James Mann's Rise of the Vulcans in today's Personal Journal has this to say:

Mr. Wolfowitz, for his part, emergs from Mr. Mann's narrative as the deepest and most iconoclastic thinker of them all. His critics depict him as a trigger-happy neoconservative, desperate for any excuse to depose Saddam Hussein. Mr. Mann outs the lie to such vaporings... for decades, the deputy defense secretary has made the case for an aggressive foreign policy built on the optimistic view that America will use its military strength as a force for good... Mr. Mann argues that [Mr. Wolfowitz's views] should not be read as signs of ideological obsession. Mr. Wolfowitz's idealism, he notes, is "usually followed along behind hard-nosed judgments about American interests."

Posted 10:23 AM by Nels
Oh, well. This was bound to happen sooner or later. You win some, you lose some.... Sounds like it's time to bring in Jimmy Carter to mediate :)

Posted 9:42 AM by Adam
Nels Peterson, I will destroy you. You just pushed me past the tipping point.

Posted 9:07 AM by Nels
Adam -

As much as it pains me to do, I fear I must take serious issue with your Martha Stewart post's usage of the quasi-verb "incentivize." This word is seeing increasingly frequent usage on this campus, and while my two cents are but a flimsy reed before the hurricane, surely speaking out in this august forum will stem the tide....

The American Heritage® Book of English Usage notes that:
[A]lthough [incentivize is] popular with business leaders, [it curries] little favor with the Usage Panel, which sees [it] as trendy jargon. Ninety-four percent of the panel rejects incentivize in the sentence "He’s the leader of this organization, and he’s got to have the whole team of people incentivized to improve shareholder value."

Trendy jargon, Adam. Trendy jargon.

And if that wasn't enough, the Columbia Guide to Standard American English states that incentivize is "[p]ossibly a nonce word, but in any case formed with the much-maligned -ize suffix, incentivize means “to provide with incentive(s)”: He incentivized them for seeking to improve. Given the fairly widespread animus against such coinages, the wiser choice would be He gave them incentives for seeking improvement."

As if trendy jargon weren't enough, you have to use trendy jargon that doubles as a nonce word?!? I'm appalled. Shocked. At a loss for words.

Posted 1:12 AM by Adam
Eric: Speaking as the other resident Wall Street Journal groupie, I've got to agree that the Editorial Page has completely dropped the ball on the Martha Stewart issue.

Martha Stewart lied to federal investigators. Her lawyers barely even tried to deny this fact, if only because it was nearly impossible to deny. She broke the law and, right or wrong, if we're going to enforce it on anyone we should enforce it on her. I thought that the prosecution of her on substantive securities fraud and insider trading charges seemed pretty inappropriate and I supported her side, until the revelation of the phone log doctoring came out.

And while some have attacked the prosecution of Martha for its obvious targeting of a high-profile target, I've got to say that I think her fame made her an even more appropriate target. People know Martha Stewart. She's a household name. (Whoops. Lousy pun intended.) She is a perfect high-visibility vehicle for the government to teach would-be lawbreakers that critical lesson that you already stressed: even when you're innocent, you don't lie to federal investigators.

Of course, there will be obvious negative effects in this. Fred Pollock wrote a good column on this topic for the upcoming issue of The Record. Investigators will have a harder time collecting evidence from citizens when they "lawyer up" quickly instead of giving a little information. Perhaps we'll have to stand back, reevaluate the federal prohibitions on lying to investigators (possibly create some sort of time-limited safe-harbor rule), and take other actions to incentivize people to speak freely to investigators. But at least prosecutors have delivered a compelling disincentive to affirmatively lying to the feds.

Posted 12:52 AM by Adam
Did anyone else notice that Mary Ann Glendon got a promotion? Congratulations to her!

Posted 12:51 AM by Adam
Lest anyone think I'm a one-track wonder, I should highlight this interesting article from In The National Interest (the online weekly publication by the quarterly The National Interest: "Democratic Fundamentalism Part I: Thoughts on Haiti, Cuba, Iraq and Kosovo." It's a good realist point in contrast to the neoconservative mission, raising the problems of our interventionist efforts of the last 10 years.

Neocons eager to refashion Iraq should take a hard look at what's happening in Haiti. It's a stark reminder that democracy requires more than a ballot box to work; it needs a welcoming society, a certain degree of economic prosperity, and a secure monopoly on force ex ante. If we make the same mistakes in Iraq as we made in Haiti -- withdrawing too quickly, eagerly supporting a dangerous man who, while initially elected democratically, ruled for nearly a decade in the most undemocratic manner -- we'll cast a sad shadow of doubt over the noble endeavor we've initiated.

That said, I also recommend that you take a look at the speech given by Charles Krauthammer in acceptance of the AEI's Irving Kristol Award.

Tuesday, March 09, 2004

Posted 11:29 PM by CM
I would like to know how Greg knows that "a majority of Americans, especially New Yorkers" found Bush's ad inappropriate. Since when do some people complaining in the media constitute a representative sample of America? I think the lack of large public reaction actually shows most people do not care.

Moreover, the average New Yorker's opinion will likely be anti-Bush. In 2000, Bush won 35.23% of NY's vote versus Al Gore's 60.21%. If you consider only New York City, Bush won approximately 17.56% of the vote, versus Gore's approximate 74.83% (I would link to the official city election source, but the PDF is a gigantic 1783 pages). So yes, given the political beliefs of New Yorkers, a "majority" of them might find Bush's ads inappropriate. What a surprise!!!

As one of the 17.56% of NYC residents voting for Bush in 2000, I suppose I am in the minority within my great city. But I do not see any evidence showing a majority of Americans find the ads inappropriate.

Period.

Posted 7:22 PM by G
Eric, I think you've identified yet another case of people confusing being pro-corporation and supporting free markets. You can see an extreme form of this in the Randian organization Committee for a Moral Defense of Microsoft.

Posted 7:18 PM by G
The latest round of polling, meanwhile, even after Bush's recent $11 million nationwide ad blitz, shows Kerry comfortably in the lead.

In those "purple states" where either Bush or Gore won by less than 5% in 2000, Kerry is crushing Bush by a 16-point margin, 55-39% with Nader not factored in, and 52-39 with Nader included.

Of course, it's even grimmer for Bush than these recent polls suggest, because polling almost always overstates the support third party candidates get on election day, and when incumbents run for reelection undecideds tend to break for the challenger, such as in 1996 when Bob Dole lost by less than predicted.

If you think Bush's campaign war chest will save him, think again. Kerry has already shown that he can beat a much better funded opponent with his primary victory over Howard Dean, and it's not at all clear that Bush will even have much of a financial advantage over Kerry. With Kerry so far ahead of Bush corporate donors will begin to hedge their bets and might even start favoring Kerry. And then there is the matter of the personal fortunes of George Soros, Peter Lewis, and of course Teresa Kerry, all of whom could at the drop of a hat and the signing of a check give Kerry the money advantage that Bush was planning on having.

I used to say that I was "cautiously optimistic" that Bush would lose. Now I wouldn't give AWOL more than a 30% chance of winning. He'd certainly lose by a landslide if the election were held today.

Posted 6:52 PM by G
In most of the cities where he is broadcast, Howard Stern has the top-rated morning radio show. At one time he used his vast influence to help Republicans, and endorsed, among others, Al D'Amato, Christine Todd Whitman, and Rudy Guiliani. George Bush, however, has been doing his best to shut Stern down, and Stern is fighting back, making savage fun of Bush, including Bush's recent tasteless 9/11 ads, which may not offend the people on this message board, but which were considered inappropriate by a majority of Americans, especially New Yorkers.


Here's a sample.

Posted 12:23 PM by The Driver
Hillary Clinton, tax cutter! Well, o.k., it's in the context of a typical pork-barrel politics speech, but Sen. Clinton has proposed a significant cut in -- get this -- corporate taxes:

Clinton, D-N.Y., told about 300 members of the Greater Syracuse Chamber of Commerce that she will push for a tax cut for companies that manufacture their goods in this country rather than ship jobs overseas.

Posted 12:08 AM by The Driver
There's often a bit of a love-fest for the Wall Street Journal around here, even after the passing of the great Bob Bartley.

But I found yesterday's "Review and Outlook" on the Martha Stewart conviction to be off base in its analysis and inconsistent with the principles that space has upheld in the past.

The WSJ has beat the drumbeat of "prosecutorial discretion" pretty hard on the Stewart case, suggesting that she should never have been prosecuted.

Yesterday, they again emphasized their doubts about "the absence of an underlying crime," quoting Justice Ginsburg (yes, this is the WSJ editorial page), about the "dangers for overreach." More on Ginsberg's quote, and its inapplicability in this situation later.

Hmm. The Journal obviously sees a principled distinction between lying in the course of an investigation, and lying in a sworn statement, because they certainly beat the drumbeat of the importance of truthful testimony when Bill Clinton was impeached for lying about a subject that had no "underlying crime." (Side note: it is worth pointing out that if President Clinton had been held to ordinary standards, he might have been prosecuted on some sexual harassment/non-consensual sex theory, but let's leave that aside).

In my opinion, the principle is the same. A CEO like Martha Stewart, especially one that has taken advantage of the corporate form to convert her name and reputation into a marketable asset that investors can buy a piece of, has an obligation to tell the truth, to investigators and to the public. It doesn't matter if she was innocent: innocence shouldn't give her the right to lie.

And now, the silliness of the Ginsberg cite. Her Brogan opinion is quoted for the proposition that "an overzealous prosecutor or investigator -- aware that a person has committed some suspicious acts, but unable to make a criminal case -- will create a crime by surprising the subject, asking about those acts, and receiving a false denial."

Does anyone really believe that's what happened here? She was so surprised to be questioned that she "forgot" about the notification that Waksal was selling his shares? I think that explanation is simply not credible. And I think Justice Ginsberg and the Journal should be a little slower to adopt a theory that says, essentially, "our first reaction is to lie to investigators."

I think that prosecutors made the right choice here. The message we want to send is that your choice is "tell the truth or shut up," not "deny, deny, deny," and then later, decide to tell the truth, or shut up, without consequences.

Monday, March 08, 2004

Posted 11:39 PM by CM
Most ridiculous statement of the day, by Chad Clanton, John Kerry's spokesman, to the New York Post's Brian Blomquist, addressing the fact that National Journal ranked John Kerry as the most liberal Senator of 2003:

"Anyone who knows John Kerry knows that this label doesn't fit. He's a decorated Vietnam combat veteran, a former prosecutor and a deficit hawk that's opposed his party and voted to shrink the deficit."

Now, I do not doubt that at some point John Kerry voted against his party on some bill that might have the effect of shrinking the deficit. Calling Senator Kerry a "deficit hawk," however, remains patently absurd.


Thanks to Deroy Murdock, Contributing Editor of NRO, who pointed this out in his article today.

Posted 9:46 PM by CM
Erin, I completely agree with you. Ad ad showing a plane hitting Tower One of World Trade Center, with a voiceover that said, "John Kerry voted against national security resolution X while in the Senate," would be the equivalent of Democrats using pictures of children who had died from cancer caused by environmental pollutants.

Bush's ads are completely tasteful. The fact that the ads have run and that the media has begun to let the issue drop, shows that the public agrees. If the ads were that bad, they would have been pulled already.

Posted 9:38 PM by Beth
Ex Parte Bloggers,

This blog is meant to be an open forum for Harvard Federalist Society members to discuss pertinent issues of the day -- including the direction of the Society. In this way, it is a microcosm of the Harvard Federalist Society itself. As a group that prides itself on open and thoughtful debate, our blog should be no different.

Most importantly, if you are unhappy with the direction of the Society, please contact me personally. I have already met with people and I would be happy to meet with anyone individually who has concerns about this organization. I am free to meet for coffee, lunch or dinner at your convenience.

Scheduling speaker events is a complicated process, but we strive to bring an interesting and ideologically diverse set of speakers. If there is someone who you would like to see speak at HLS, please contact Anne Mai, our Vice President of Speakers soon. As a Society, we are committed to fostering debate on campus. To help us in accomplishing this goal, the input and assistance of all of our members is necessary and welcome.

On a lighter note, I hope to see you all out on Wednesday for Fed Society Night at the Parody. At least come to the pre-party, 6:30pm at the Federalist Society office. See you then.

Yours,
Beth Schonmuller
President, Harvard Federalist Society

Posted 8:22 PM by G
Erin, a better analogy would be Democrats running ads that showed the corpses of children dead from cancer caused by environmental pollutants. The ads were as tasteless as previous his stunt dressing up in a flight suit on the aircraft carrier. It may get worse however, the Hill reported:

“The entire format and actual physical setup could be radically different,” one GOP insider commented. “They might not even have a podium, or maybe a rotating podium or even a stage that comes up from underground. It would be like a theater in the round, with off-site events that are part of the convention.”

The source, a veteran official of past GOP conventions, said the 50,000 delegates, dignitaries and guests would watch off-site events on giant TV screens. “Now, we’ll go to the deck of the USS Intrepid as the U.S. Marine Corps Band plays the National Anthem,” he said, pretending that he was playing the part of the convention chairman.

“Or, and this is a real possibility, we could see President Bush giving his acceptance speech at Ground Zero,” he added. “It’s clearly a venue they’re considering.”

Another GOP source said Mayor Michael Bloomberg and other Gotham officials pressed convention planners to come up with creative ideas to counter the negative publicity stemming from a proposal by House Majority Leader Tom DeLay (R-Texas) to house delegates on a luxury cruise ship in New York Harbor.

Posted 6:20 PM by Erin
I'm sure someone's made this point already (this is the first time I've actually posted), but if Bush shouldn't use 9-11 images for fear of exploiting victims' families, then I say the Dems shouldn't be able to use images of poor people or hungry school children or industrial workers or manatees. Those are no less exploitative of specific groups.

Posted 4:56 PM by CM
As for Bush's ads and the minor controversy created, I have to say that anyone who has seen the ads and still objects to them is being hyper-sensitive. The imagery flashes on-screen for a brief second, and the context makes its use extremely tasteful.

Moreover, the notion that 9-11 imagery should not be in play should not be accepted. On that day, terrorist attacks resulted in the death of more than two thousand people. We should not forget what happened.

Lastly, the media forgets to note that some of these families have very overt political aims. I don't remember her full name, but one of the most outspoken people, named Rita (Hauser?), is a founder of a group called "September Eleventh Families for Peaceful Tomorrows." Past speakers in the group's speaking series include such non-partisan and moderate people as Maxine Waters and Barbara Lee.

Posted 4:32 PM by Adam
Another 9/11 widow's open letter to Bush about his new ad campaign.

In the immediate aftermath of the Sept. 11 terrorist attacks on our country, the families of those who perished on that day became forever linked through our shared anguish and grief. But "the 9/11 families" are not a monolithic group that speaks in one voice, and nothing has made that more clear than the controversy over the Bush campaign ads.

It is one thing for individual family members to invoke the memory of all 3,000 victims as they take to the microphone or podium to show respect for our collective loss. It is another for them to attempt to stifle the debate over the future direction of our country by declaring that the images of 9/11 should be off-limits in the presidential race, and to do so under the rubric of "The Families of Sept. 11." They do not represent me. Nor do they represent those Americans who feel that Sept. 11 was a defining moment in the history of our country and who want to know how the current or future occupant of the Oval Office views the lessons of that day.

Posted 3:58 PM by G
Also, Bush lied, because he said the F-102 was being phased out so he had to stop flying. In fact, the F-102 was still being flown when he left the guard. As Bush's commanding officer as well as flight logs confirm, had Bush not been AWOL, he would have been there for his physical, and could have continued flying the F-102 until his commitment ended. All the talk about needing to train for another plane is suberfuge since Bush could have kept flying his F-102.

Posted 3:54 PM by G
A 9/11 widow's open letter to Bush about his new ad campaign.

My husband, Luis Eduardo Torres, was at his second day of work at Cantor Fitzgerald when he was killed on Sept. 11. He jumped from the 105th floor of the North Tower. Most of his upper body was recovered, identifiable only through dental records. I was seven months pregnant at the time.

It is with him in mind that I'm writing to you, to question your disturbing reelection ad campaign. Yesterday I saw the three ads you're now running all over the country, specifically on cable stations in the "swing states," where you feel you need to come out fighting strong. It was the "Safer, Stronger" ad that shocked me the most. At the commercial's midpoint, the words, "Then ... a day of tragedy" dramatically appear on the somber black screen. And the centerpiece: an image of ground zero, the hulking remains of a tower, alongside a human corpse, carried out by several firefighters. Both the tower and the human are draped in American flags.

The flags were intended to honor ground zero and the remains of the dead, but here they are merely props, used to add a powerful patriotic punch to your message. The tower and the corpse are two hideously broken and disfigured things behind and under the flag, and your image -- with your red tie, white shirt, and blue suit, standing in front of thick strong white columns -- serves as another, symbolic, flag.

That image of ground zero, and the body shrouded with the flag, reminded me of the sulfur from the few pathetic remnants of my husband's last day: his Cantor ID, Debitchek Meal Card and subway Metrocard.

(...read the rest at Salon.com)

Posted 2:00 PM by Adam
Ah, damn you, Eric Soskin. You're too fast on the draw.

Posted 1:59 PM by Adam
Hot lead, hotter ladies. A recent HLS grad and proud feddie, Lea Sevcik, is featured in a New York Times article about the Women's Shooting Sports League in New York.

Posted 1:17 PM by The Driver
In one of its periodic attempts to conceal its liberal bias (see, e.g. David Kirkpatrick's "conservative beat" columns), the Gray Lady reports on the Women's Shooting Sports League.

This article is great for a laugh -- highlighting how hard it is for Times reporters to keep their biases out of print:

If it is tricky to imagine some Manhattan publicist in miniskirt and leather boots taking target practice with a Ruger .22...

Notions are one thing; politics is another. It seemed as if the women of the shooting league had simpler things in mind.

"Oh, yeah, I had a great time," one young woman said coming off the line. "I shot some balloons."

Posted 12:10 PM by Adam
Ex Parte co-founder Austin Bramwell, who recently reappeared on this site, is the latest Ex Parte member to show up on National Review Online. Read his take on the gay-marriage debate here.

Surely, the discussion of the article will commence here shortly.

Posted 12:05 PM by Adam
Actually, Greg, you should reread the entire story. It makes quite clear what happened: The F-102 was being phased out, he didn't want to train for a new fighter, especially when that wasn't going to be used in Alabama at all, so he missed a physical and was suspended from flying. But that flight suspension did not prevent him from fulfilling his Guard committments. He completed his requirements. He got his honorable discharge.

The reason why the article doesn't contradict the facts you posted is that the facts you posted don't contradict President Bush's story. Only your conclusion -- that he was "AWOL" -- contradicts his story. Because your conclusion is wrong.

So sad, we still need to explain this to some people.

Posted 10:08 AM by G
In fact Adam, you should reread the second paragraph of the story:

But after several years of impressing his instructors at Houston's Ellington Field, Bush suddenly decided to drop it all in 1972. After hundreds of hours at the helm of an F-102 interceptor and declaring that he wanted to make flying a lifetime pursuit, Bush opted out, skipped a required flight medical exam, and left the state.

That doesn't seem to be much of a confirmation of "I was almost finished with my commitment in the Air National Guard, and was no longer flying because the F-102 jet I had trained in was being replaced by a different fighter."

Posted 10:04 AM by G
Adam, nothing in the Washington Post story that you posted contradicted the facts I posted in my previous posts. The F-102 was still be used by AWOL's very unit the day he left the Guard. The talk about additional training was a red herring, he didn't need any addional training to keep flying the F-102, and thousands of hours of flight time were logged on that plane by AWOL's unitafter he was grounded.

What Bush said "I was almost finished with my commitment in the Air National Guard, and was no longer flying because the F-102 jet I had trained in was being replaced by a different fighter."

It's still an obvious lie, and all the Post story does is confirm this. Bush's story makes it sound like he stopped flying because circumstances (the phasing out) made it necessary, in fact, the F-102 was still being flown when he left, and Bush's commanding officer said that he would have made Bush fly the F-102 had he not been AWOL and missed his physical.

Posted 9:49 AM by G
Patrick, maybe you can tell me what your weighty contributions to this forum are that justify your flinging nasty insults at those with whom you disagree?

Sunday, March 07, 2004

Posted 6:47 PM by Brooks
Id est, Greg was trolling in this particular instance, though not in all things. And I agree that it is rather fun to watch, especially so since it is very sad and time-consuming.

Posted 4:05 PM by Adam
I don't think Greg's a "troll" (unless I don't know what that word means). He brings a good variety of opinion to the site. But I do think that, on this issue, he's totally gone off the deep end, without any indication that he's willing to allow reality to thwart his allegations.

Posted 2:30 PM by Patrick
Adam: You need to remember your own advice.

Posted 1:37 PM by Adam
Greg, "why oh why can't you just admit" that he told the truth? Here is a link to a Washington Post article explaining why he missed his physical, why that wasn't unusual or even "bad," and why it comports to his story. Again, here are his words:

"I was almost finished with my commitment in the Air National Guard, and was no longer flying because the F-102 jet I had trained in was being replaced by a different fighter."

"We were phasing out his equipment at the time, and he would have had to train for six to nine months to get into the new aircraft," said Maurice H. Udell, of Friendswood, Tex., who was Bush's flight instructor. "He had a full-time job outside of the Guard, and people often left to pursue their jobs elsewhere. He was not disciplined. There was no incident."

The records show only that Bush was suspended from flying for failing to take a required flight physical. Although many pilots would be crushed to lose their wings -- a former high-ranking Guard official said people have committed suicide because of it -- Bush just walked away.

. . . .

Udell said Bush did not submit to the exam because he was planning to stop flying, which is also what White House spokesmen have said. There would be no reason to take the physical if Bush intended to go to a unit where he could not fly. Bush was going to Alabama to work on a political campaign, and Alabama's Air National Guard did not have the F-102s Bush flew.

In 1972, the F-102 Delta Dagger was being phased out of Vietnam service because it was deemed less useful than the new F-4 Phantom II, a jet doubling as a bomber and an air-to-air fighter. The F-102, an interceptor designed in the 1950s to thwart Soviet bombers, was being replaced at National Guard bases and was pushing trained pilots into different assignments. Bush's Texas unit was transitioning to the F-101B, an entirely different aircraft.

Bush, with about two years left on his service commitment, was looking to move on, the pilots said, and that meant dropping flying altogether.

Posted 1:04 PM by G
Adam, why oh why can't you just admit that Bush lied about why he stopped flying? Here is a link to the document suspending him from flying, notice it says nothing about his plane being replaced.

And I am content that nobody respond to this post, I just won't let you have the last word, if your last word is to deny that Bush told a self-serving lie when he said "I was almost finished with my commitment in the Air National Guard, and was no longer flying because the F-102 jet I had trained in was being replaced by a different fighter."

Posted 12:14 PM by Adam
Charles, the "AWOL" story was refuted weeks ago by Byron York and others. Greg's ploy here is to keep bringing it up, thinking that the rest of us are going to keep responding to it. President Bush's record is so clean that even the New York Times has dropped the story. There's no need to keep responding to Greg's silly little rant. When you do, even with a "dead horse" line, you only encourage him to keep getting you to waste your own time on it.

You see, Greg will now respond to this post, and no one will respond, because the charges were refuted weeks (if not years) ago. A couple weeks later, like today, he'll try again. It would be funny if it weren't so sad and time-consuming.

Posted 11:32 AM by G
Sorry Charles, but this horse is still very much alive, in part because the President's aides keep lying.

Fortunately, I won't have to complain about Bush's lies much longer, as it looks like he will soon be sent packing back to Texas.

A recent Florida poll shows John Kerry leading Bush 49 to 43, with Ralph Nader's polled 3 percent likely to swing Kerry's way as the election approaches.

Posted 11:25 AM by CM
I don't know, but it sounds like someone is beating a dead horse...

Posted 11:19 AM by G
Adam, to get back to AWOL's shameful National Guard record, you say: "his own account of why he stopped flying is perfectly consistent with the views of other pilots at the time."

That very well may be the case, however Bush's lying, self-serving account of why he stopped flying the F-102 contradicts 1. His later statements, 2. His written National Guard Record, 3. statements of his commanding officers.

To recap, this is AWOL's original lie:

"I was almost finished with my commitment in the Air National Guard, and was no longer flying because the F-102 jet I had trained in was being replaced by a different fighter."

The truth is, the F-102 was still being flown by pilots in his very TANG unit, even on the date he was discharged. The reason that he "was no longer flying" is that he missed a mandatory physical, as well as vast numbers of days of service, and for this he was punished by being grounded.

AWOL's commanding officer confirms this, saying that had he shown back up in Houston that he "would have kept him flying the 102 until he got out."

Later on, when document surfaced that showed AWOL's plane in fact was still in service, but that he couldn't fly it because he had been grounded, he changed his story and admitted that he missed his physical, but his aids lied about why he missed it, saying he missed his physical because he was in Alabama and his personal physician was in Houston.

In fact, his personal physician was not qualified to give him a flight physical, but on the base in Alabama where he was supposed to be attending drills, a qualified flight surgeon was available. The problem was, AWOL just didn't show up.

Posted 10:58 AM by G
Two stories of life in George Bush's America, one from the New York Times, and a second from CBS News.

Friday, March 05, 2004

Posted 5:37 PM by Austin
JR: I would of course favor stripping the federal courts of jurisdiction in any way possible. (Not that stripping the federal courts of jurisdiction will constrain state judges. We are fighting a culture war here between elites and ordinary people, and, unsurprisingly, the elites control the entire judiciary.)

As for Ron Paul, I of course share his desire to abolish federal funding of all medical research, etc., etc. But as for private conduct, in this case, federal regulation is the only effective way to deal effectively with threatening new biotechnologies. To what clause in the Constitution would I assign the power to make such regulations? I'm not sure, but probably Article V of the Fourteenth Amendment.

Incidentally, if the Constitution was designed with human beings in mind, what application can it have in a post-human future? I wonder what Ron Paul would say...

Posted 3:25 PM by JRP
Austin, here are the thoughts of Rep. Ron Paul--libertarian, pro-life, obstetrician gynecolgist--on human cloning and stem cell research.

Posted 3:17 PM by JRP
A much less slippery solution would be be to simply remove the issue from federal court jurisdiction, as advocated by the inestimable Rep. Ron Paul TX-R. As Dr. Paul notes,

"The choices are not limited to either banning gay marriage at the federal level, or giving up and accepting it as inevitable. A far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts. Congress could statutorily remove whole issues like gay marriage from the federal judiciary, striking a blow against judicial tyranny and restoring some degree of states’ rights. We seem to have forgotten that the Supreme Court is supreme only over lower federal courts; it is not supreme over the other branches of government. The judiciary is co-equal under our federal system, but too often it serves as an unelected, unaccountable legislature."

I am much more comfortable relying upon Congress's power over federal court jurisdiction than the 14th Amendment to preseve traditional institutions. Marriage never should have been a federal issue in the first place. However, I sincerely doubt that a party whose President advocates spending 1.5 billion dollars to promote "healthy relationships" will agree. As Dr. Paul also notes,

"True conservatives and libertarians should understand that the solution to our moral and cultural decline does not lie in a strong centralized government."

Good luck finding any such conservatives or libertarians anywhere near the cooridors of power in Washington, D.C.

Posted 12:00 PM by Austin
Why do we need a constitutional amendment to stop gay marriage? Congress can protect the definition of mariage through its 14th Amendment enforcement powers.

Loving v. Virginia recognized a 14th Amendment right to marry; I don't think that states could get around Loving by simply pretending to be "redefining" what marriage is (rather than forthrightly restricting who can get married). The 14th Amendment, therefore, implicitly defines marriage as between an adult man and an adult woman. Can Congress not protect this definition by preventing states from redefining it at will? This seems to get by Boerne (which held that Congress can only enforce 14th Amendment rights as they are defined by the Court) pretty well. Of course, gay marriage advocates would contest this interpretation of Loving, and say that it really defines marriage as between any two adults (but why stop there? Doesn't gay marriage exclude just as many intimate relationships as marriage proper?).

At least, however, the courts will have been chastened if Congress passes an act.

Thursday, March 04, 2004

Posted 6:59 PM by Austin
Dan: I eagerly await your lengthier response. Have you read Lawler's book Aliens in America (or any of the more important essays therein)? I though it was one of the best I've read in the past few years.

In the meantime, does anyone know where one could find a good libertarian response to Kass or Lawler or Fukuyama that does more than expresss indignation that anyone could oppose "the future"? I mean an article that balances the interest in using technology to relieve suffering against the threat technologies pose to other human goods.

Posted 5:14 PM by Don't Be a Victim
Austin:

I'd be happy to meet your request for a response to the issues you raised. However, I am out of town this weekend, and writing this on a borrowed computer, so a response will have to wait until sometime next week.

Let me just state in the meantime that my position is that using biotechnology to alter the genetic makeup of someone who doesn't yet exist does not infringe on that person's liberty. Is it nonconsensual? Yes. But I don't remember my parents asking me if I wanted to be born either. Sorry so short. More later.

Posted 11:11 AM by Austin
Dan: I too have met Professor Lawler, and admire him very much. Unlike you, however, I happen to agree with him; indeed, I regard him and Kass as the two most important thinkers in America today.

I've noticed that libertarians who don't like Lawler and his ilk usually take his opposition to certain new technologies as prima facie evidence of hostility of liberty. But Lawler argues that it is the failure to regulate these technologies that most threatens liberty. Surely these arguments deserve some kind of response--perhaps you (unlike other libertarians who have been blogging on this issue) could give it on Ex Parte, rather than just reflexively label him as anti-libertarian. It is not obvious to me at least that controlling another's destiny (say, that of one's own children) through biomedical technologies is compatible with libertarianism.

I like to pose a hypothetical: Suppose that nobody had ever heard of rape before. Suddenly, lots of men start raping women, and saying that it's really great and gratifying, for both rapist and rapee. Sounds crazy, but the question is: Would the proper libertarian response be to say, "Let's allow individuals to work out the best response to this, and not interfere with them at the state level"? No: just because an activity is new and heretore unregulated does not mean that liberty always requires that the state keep its hands off.

The trouble with libertarianism since folks like Virginia Postrel took it over is that they have become more pro-"future" (mellontolatrist, as C.S. Lewis would say) and than pro-liberty. I have yet to read, for example, a Postrelian analysis of Brave New World, and why the future depicted in it is anything we shoudl resist.

Wednesday, March 03, 2004

Posted 6:17 PM by Don't Be a Victim
Bioethics Brewhaha

There has been some controversy in the past week or so over new appointments to the President's Council on Bioethics, chaired by Leon Kass. Kass published an op-ed in today's Washington Post defending the appointments, and Ronald Bailey has already written a response for Reason.

Peter Lawler, one of the nominees, was a professor of mine when I was an undergrad at Berry College. Since part of my major was political philosophy, I probably took more classes with Dr. Lawler than with any other professor. He was also my advisor and helped oversee my senior thesis.

I like and admire Dr. Lawler very much, but we are stongly at odds ideologically. He is a strong social/moral conservative, and I am very libertarian. When I attended Berry, Dr. Lawler seemed much more friendly to the libertarian position, but it seems that he has become increasingly anti-libertarian in recent years, perhaps influenced by 9/11 and its aftermath. He has suggested that the primary ideological clashes of the 21st century will be between libertarians and social conservatives/statists (broadly defined to include many on the left who like gov't control and are fearful of change) on biotechnology issues.

While I like him as a person, I am very concerned that Dr. Lawler was nominated to the Presiden't Commission on Bioethics. His nomination is indicative of the increasing opposition to human liberty in the Bioethics commission.

I find it absolutely absurd that Kass claims of the new nominees: "Both are known among their colleagues for their openness to discourse and their devotion to public deliberation and democratic decision-making. Their personal views on the matters to come before the council in the coming term are completely unknown, but I am confident that they will come to them only as a result of genuine reflection and a full consideration of all the scientific and other evidence. " Far from being a neutral philosopher, Dr. Lawler is fundamentally opposed to many biotechnological innovations which could make human life better for much of the human race. And he doesn't keep these views secret - he has published numerous articles making clear his conservative position on bioethics and his strong opposition to the libertarian position on the matter.

Below are quotes from an article entitled "Compassionate Conservatism vs. Libertarianism":

"President Bush sees that conservatives are now defined, or ought to be defined, by opposition to extreme libertarianism and unfettered technological progress. They must insist that technology must be subordinated to properly human purposes, and they realize the moral and political limitation of technology will require political will and coercion. That is, in fact, what the president said in his most thoughtful speech defending the limits he imposed on stem cell research, and it is what he implied by making Leon Kass?our most eloquent opponent of biotechnological assaults on human nature?his chief advisor on biotechnology. When it comes to issues like abortion, euthanasia, cloning, cyberporn, and so forth, conservatives such as the president are to some extent statists."

[...]

"There is almost nothing less true than the libertarian view that high technology will cause the state to wither away and produce a new birth of almost unconstrained human freedom. Political will is needed now more than ever to defend human liberty against two dangers posed by technological progress. The first is the threat that technology poses to human nature or the soul itself, and the second is the threat posed by the access those that hate us have to that technology. Compassionate conservatism turns out to be about how government can defend and encourage the virtues characteristic of a free human being under God."

More recently (December 2003), he praised a report by Kass and the Bioethics Commission in an article on National Review Online entitled Pursuing Happiness. He writes:

"As the President's Council (chaired by Leon Kass) explains, the drive to use biotechnology to make ourselves happy is at heart an exceptionally misguided individualistic project. We will not, for example, really be able merely to manipulate our chemical make-ups to produce endless good moods or happy feelings. No super-Prozac is going to save us from us from our depression, loneliness or anxiety, and the danger actually is that biotechnology will isolate us from others even more. Our successes will really contribute to our happiness only if they don't cause us to experience ourselves as individuals and nothing more, but we're most likely to embrace them as ways of freeing ourselves even more from everything we have been given, from God, nature, and dependence on other people. It will likely seem quite possible to rely less on family and friends and withdraw more into ourselves, into a kind of a "virtual reality" of our own making."

What Dr. Lawler doesn't seem to understand is that technology, including biotechnology, is rarely an ends in itself, but rather a means to the ends of happiness. Technology gives us more options so that we may find happiness in more individualized (rather than standardized) ways, but that does not mean that technology necessarily creates a more atomized society. Technology enables communication and transportation that weren't previously possible, allowing a son or daughter to live in an area they prefer, but still maintain frequent contact with their parents and hometown friends. Technology allows people with common interests to meet, communicate and share information on the Internet - no longer are people with obscure interests constrained by geographic constraints. I could go on & on. Biotechnology offers this same potential for increasing happiness - biotechnological innovations may help cure diseases, correct genetic defects, enable infertile couples to have genetic offspring, and more.

Additionally, I think it is important to note a common misconception: that advocating a libertarian individual rights position is the equivalent of advocating atomistic individualism. Recognizing and respecting individual rights is quite different from advocating a position in line with the lyrics of Simon & Garfunkel's "I am a Rock". Libertarians recognize the incredible importance of voluntary human interaction, as evidenced by our support for both markets and civil society. There is no contradiction between advocating individual human rights and supporting the institutions of family and community. Libertarians recognize that happiness most often comes through peaceful human interaction, and seek to find ways to facilitate, not suppress, the potential for human happiness through political and technological innovations.

Posted 9:10 AM by David
Just a thought...

Donald Rumsfield for Whitehouse Press Secretary!

Having watched Scott McClellan for some time as the White House press secretary, in my opinion, he seems rather stiff. His presentation does not seem animated and he seems to be defensive. He seems to be annoyed by questions, rather than confident and smooth. I know it must be a tough job being press secretary, but I really do think he can do much better. Further, given the likelihood of a close presidential election, I hope he figures this out and learns fast. I am no fan of the press, but it is important to handle them well.

As an example, observe Donald Rumsfield. When asked a question, he never seems defensive or stiff, even if the question is annoying, redudant, or ridiculous. He is just smooth. I think he would make a great press secretary! Since that is not possible, I think McClellan could learn much by watching him.

Posted 1:17 AM by David
Kevin:

I never knew that you were a member of PETA. I for one, like Buffalo meat. Especially Buffalo wings. So tender and juicy. I think it is sad that Buffalo have been killed, because it has decreased the supply of Buffalo meat. Still, its too bad about those whales and polar bear. They also are yummy.

I don't see why Gibson's response should concern you or Frum or anyone else. There is no getting around the fact that he said it was an "atrocity of monumental proportions." In one of your posts, you minimize that. Then with your buffalo analogy, you engage in the same flawed logic and flimsy comparisons. Your own analogy undermines your point. Mentioning whales denigrates the killing of buffalo...? Your whole analogy is WAY out there. I find it interesting that extreme irrationality is not limited to the fringe and is in fact found in otherwise reasonable people.

Tuesday, March 02, 2004

Posted 11:04 PM by Kevin
Actually, John, it seems like you are reading the Frum article in a vacuum, at least that is the only conclusion I can draw from the Jabberwocky example. I think a truer parallel would be as follows:


John has been accused of being anti-buffalo. In fact, John's father denies that westward expansion killed millions of buffalo. In reading John's interviews with Sawyer and Noonan, his statements really sound like he is equivocating the killing of the buffalo by comparing it with the deaths of millions of whales and even a greater number of polar bear deaths. John's statements seem to mirror the statements found on the website of the Association of Buffalo Death Deniers. I'm not asserting that John denies that the buffalo were killed, but the fact is that John had every opportunity to emphatically state that the buffalo were killed, knowing about the anti-buffalo and denier accusations. He didn't and this concerns me.


Brutus might have been an honorable man, but he sure hated those buffalo.

Posted 4:58 PM by JRP
I read what Kevin said to Diane Sawyer and Peggy Noonan, and that stuff really sounds like he is a Jabberwocky, not to mention here is a paragraph from the Association of Jabberwockies. Does any of that differ from what Kevin said? Kevin had every opportunity to deny that he was a Jabberwocky, but he didn't, and I can't help but wonder why... But I am not asserting Kevin is a Jabberwocky.

And Brutus is an honorable man.

Posted 4:34 PM by Kevin
John, I have read it plenty of times, and I still don't leap to the conclusion that you do. I agree with much of what David Welker said about the article - Sasha Volokh said much of the same things on the Volokh Conspiracy when the Noonan interview came out. I think Frum is being hypersensitive, but Gibson is hardly a saint in this. Knowing that many have castigated the Passion for being anti-semetic (before having seen the finished movie) and despite the allegations regarding his father, Gibson chose in Noonan's interview, and, to a lesser extent, in the Sawyer interview, to give the appearance of equivocating on the Holocaust. I think you need to read the interviews much more closely than Frum did, but Gibson's remarks were hardly the best way to put the issue to rest - he unfortunately obfuscated the issue by placing it in context of the Second World War. Reasonable people can disagree about the ranking of millions of deaths in the Holocaust against millions of deaths in Soviet prison camps, but if you believe that the Holocaust is horrific, and you are being accused of being anti-semetic, don't equivocate it with other atrocities that weren't mentioned in the interview. Don't choose that time to make the larger point, even if it is a valid one. Just say it was genocide or an "atrocity of monumental proportion" and move on. I'm not arguing that what he said was wrong, just that it isn't the best way to defuse the situation - allowing people who want to believe that he is anti-semetic to interprete his comments that way for the general public.

I don't think that Frum's last paragraph was praeteritio, rather I think he was clarifying that he didn't know whether Gibson was a Holocaust denier, and that his comments were inconclusive. I disagree with Frum's characterization of Gibson's comments, but I also disagree with John's characterization of Frum's article.

And by the way, from what I have read, I don't think that Gibson is anti-semetic, and after viewing the movie, nor do I think "The Passion of Christ" is.

Posted 3:15 PM by JRP
Do you really think that David Frum intended to do anything but characterize Gibson as a possible denyer of the Holocaust and Nazi sympathizer? The comment quoted by Kevin is pure praeteritio. Frum's smarmy screed on Gibson, which could as easily appear in The New Republic as National Review (which isn't saying much at all these days), should come as no sruprise to anyone. He laid down a not dissimilar hatchet job with his infamous "Unpatriotic Conservatives", which provides the thoughtful insight that any conservative who criticized the war in Iraq hates America, is a racist, and/or is a Nazi sympathizer. Considering how conservatives cry foul when, say, opposition to affirmative action is characterized by the left as racism, its funny that they not only tolerate but venerate folks like Frum.

(Considering that I am diametrically opposed to Frum about, well, almost everything, it is pretty funny that we were both President of the HLS Fed Society. It may very well be pretty funny that I was ever President of the HLS Fed Society, period.)

Posted 1:19 PM by Kevin
Actually, John, I think David Frum, in his own words, would disagree with your characterization: "Is Mel Gibson a Holocaust denier? I am not asserting that he is. After reading two interviews, I still do not know. Shouldn’t I know? Sawyer and Noonan both wished to help Gibson out – to give him an easy chance to show that he does not share his father’s disdain for the murdered Jews of Europe. Yet Gibson declined to avail himself of these chances. I can’t help wondering why."

Posted 9:13 AM by JRP
David Frum: Mel Gibson is a Holocaust denier.

Posted 12:05 AM by CM
An interesting article from National Review Online, highlighting ten votes on which Arlen Specter has voted with John Kerry.

Perhaps most relevant to the Ex Parte world: Specter's campaign again Judge Bork's nomination to the Supreme Court. Given that Specter could become chairman of the Senate Judiciary Committee, we should all be concerned. Right now, I remain hopeful that there will be a timely change in Senate rules...

Monday, March 01, 2004

Posted 11:12 PM by The Driver
Glenn Reynolds has led many people to this post on the portrayal of the military by Hollywood.

For people who don't want to read all of the comments, one common thread stands out: many military readers commend Down Periscope, the Kelsey Grammer/Lauren Holly submarine flop from a few years ago.

While the movie is often under-funny, I've often thought it was also underrated, especially as a portrayal of leadership. In the past, I've suggested that if the movie had been a big hit, someone could have and done quite well in the leadership-book craze of the last few years using "Down Periscope" as an example. Grammer excellently portrays an intuitive leadership style that blends compassion and creativity with more traditional leadership qualities.

It's gratifying to see that there are other people who agree. To be fair, I've already been gratified, as Lt. Col. David Szelowski, USMC, published an article making exactly this point in Proceedings last year.

Posted 11:50 AM by Don't Be a Victim
Study: Blogging Still Infrequent

"The Pew Internet and American Life Project, in a study released Sunday, found that somewhere between 2 percent and 7 percent of adult Internet users in the United States actually keep their own blogs.

Of those, only about 10 percent update them daily, the majority doing so only once a week or less often."