SteveSachs

2007-02-26T17:29:00.000-05:00

One Problem with Sunset Clauses: Which you wouldn't necessarily expect:

And whereas, at the time of the invasion of this State by the British troops in the year one thousand seven hundred and seventy-eight, the public records were sent away, to prevent their falling into the hands of the enemy, and have not yet been returned into this State, from which cause the several laws heretofore passed, and which may be now expiring, cannot with precision be known, and, if no remedy be applied, there is reason to believe great injury may accrue to the citizens of this State, for the prevention whereof, Be it further enacted by the authority aforesaid, That all laws passed before the twenty-ninth day of December one thousand seven hundred and seventy-eight, which are or may be near expiring, and that are not repugnant to the constitution of this State, or in their nature temporary, be, and they are hereby declared to be in full force, and that they shall continue in force, until repealed by this or some future legislature."

An Act to Continue the Several Laws of This State Near Expiring, and for Other Purposes Therein Mentioned § 2 (Ga. 1783), reprinted in Robert Watkins & George Watkins, A Digest of the Laws of the State of Georgia, No. 279, at 281, 282 (Phila., R. Aitken 1800).

2007-01-15T21:52:00.000-05:00

Thoughts while studying for exams: What does the Due Process Clause actually mean? Let's see what the courts have to say.

Indeed, if the Due Process Clause is to mean anything, . . .

" . . . it requires us to do more than [assume that the BIA relied on the IJ's untimeliness finding and dismiss for lack of jurisdiction]." Lanza v. Ashcroft, 389 F.3d 917, 929 (9th Cir. 2004).
" . . . it means that the courts must defend the 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' Hamdi v. Rumsfeld, 316 F.3d 450, 464 (4th Cir. 2003) (quoting Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (internal quotation marks omitted)), vacated, 542 U.S. 507 (2004).
" . . . I think we must assume that Maloney's corruption pervaded his work as a judge." Bracy v. Gramley, 81 F.3d 684, 700 (7th Cir. 1996).
" . . . it should mean that a person who holds the latest controlling court opinion declaring his activities constitutionally protected should be able to depend on that ruling to protect like activities from criminal conviction until that opinion is reversed, or at least until the Supreme Court has granted certiorari." United States v. Albertini, 830 F.2d 985, 989 (9th Cir. 1987).
" . . . it means that a hearing must be something more than a 'formal ritual.'" Graham v. Baughman, 772 F.2d 441, 446 (8th Cir. 1985).
" . . . it means a trial before an unbiased judge and jury." Walker v. Lockhart, 726 F.2d 1238, 1249 (8th Cir. 1984) (Arnold, J., concurring).
" . . . it is a fundamental guarantee that stakeholders are provided both sufficient notice and fair procedures when governmental discretion mandates the abrogation of their rights or privileges." Lightfoot v. District of Columbia, 339 F. Supp. 2d 78, 88 (D.D.C. 2004).
" . . . [it] signifies a right to be heard in one's defense." Foley v. Foley, 52 P. 122, 124 (Cal. 1898).
" . . . it provides constitutional protection of the right to participate meaningfully in critical proceedings." Franklin v. District of Columbia, 960 F. Supp. 394, 432 (D.D.C. 1997).
" . . . [the California Youth Authority] cannot deliberately structure procedures which prevent counsel retained at a ward's expense from reviewing the ward's file and consulting with the ward before such a hearing." In re Michael I., 74 Cal. Rptr. 2d 650, 654 (Ct. App. 1998).
" . . . it must mean substantially more than was afforded appellant here." People v. Jacia, 144 Cal. Rptr. 23, 25 (App. Ct. 1978).
" . . . it means that a woman cannot be imprisoned for two and one-quarter years under a law that was declared invalid ab initio by this Court." State v. Lemon, 825 So. 2d 927, 933 (Fla. 2002).
" . . . it means Walker should not be required to run that gauntlet [of risking a 30-day jail sentence for each day of non-conformance with the board's order while the question whether he is maintaining a nuisance is litigated in a criminal action]." Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973).
" . . . it should mean equality in the determination of the rights of those affected." Crowe v. De Gioia, 430 A.2d 251, 255 (N.J. Super. Ct. 1981) (quoting Hague v. Warren, 59 A.2d 440 (N.J. Errors & App. 1948), rev'd, 447 A.3d 173 (N.J. 1982).
" . . . it means that a litigant must be given an opportunity to meet an issue before an adverse determination is made." Lowndes Products, Inc. v. Brower, 191 S.E.2d 761, 338 (S.C 1972).
" . . . it means that a defendant is entitled to some character of notice before his rights may be effected by suits, actions or proceedings in courts of the land, and that notice to the person or official who as plaintiff initiates the suit is, in all reason, no notice whatever." Baird-Gatzmer Corp. v. Henry Clay Coal Mining Co., 50 S.E.2d 673, 678 (W. Va. 1948).

2006-02-14T17:28:00.000-05:00

Of Rabbits and Hunger Strikes: Lior Strahilevitz, whose article on The Right to Destroy partly inspired my Saving Toby piece noted below, responds to the piece on the U. Chicago Faculty Blog. He writes:

Animal cruelty laws ought to govern threats like the one faced by Toby. And the appropriate response to a child who threatens to hold her breath until she turns blue is probably to call the bluff, though I will admit to a lack of expertise on that score. Where there is reason to think that calling the bluff will force the owner to destroy the property in question so as to maintain the credibility of future threats, the state can always exercise its eminent domain power to take property from the person who is threatening to destroy it. Indeed, I think that using the eminent domain power to save Toby is analogous in some ways to what the government was attempting to do in Kelo, and someone who believes that Kelo was wrongly decided should ask herself whether she would object to using eminent domain to take a Picasso away from someone who credibly pledges to burn it.

Sachs says that “extortionate” destruction of one’s own property does not typically implicate constitutionally protected expressive interests. But we should be familiar with one very effective form of “threatening to kill Toby.” Hunger strikes have been used with great effectiveness by political dissidents, so I guess I wonder about Sachs’s determination that prohibiting the “hunger strike” variety of blackmail will not implicate the expressive and autonomy interests that often arise when people decide to destroy their own valuable property. The fact that a hunger striker will eat if his demands are satisfied hardly removes the expressive content from his act.

I'd be the first to admit that the Comment was written with tongue at least partly in cheek--and that the proposed statutory language would need a good deal more refinement. However, I'm not sure that Strahilevitz's critique is sound.

Starting with the question of hunger strikes, I think it's not difficult to distinguish the expressive value they embody from the threat to Toby's life. Expressive hunger strikes generally don't involve destruction of property, as we typically understand the term, nor are they often done for money. (If the average person received a note from a desperate acquaintance that read, "Pay me $50,000 immediately or I'll kill myself--and the blood will be on your hands!," she might have a very different attitude toward the expressive value of such an act.)

Regardless, hunger strikes and other forms of self-immolation would be outside the textual reach of my proposal. Most people are willing to accord a certain measure of control over one's own body, and without trying to advance a "general theory of acceptable coercion," as I wrote in the Comment, it's worthwhile to ask whether the extortionate destruction of property falls within that range.

Additionally, I'm not sure why Strahilevitz considers eminent domain to be a more appropriate approach to Toby's plight. Let's change the example away from rabbits--though I doubt that animal cruelty laws would ever prevent slaughter by a licensed butcher. Suppose the evil Dr. Black threatens to toss a priceless Picasso in the flames, unless his millionaire neighbor pays its ransom. Would eminent domain be the right response? For one thing, the state might never find out about the threat until it's too late--perhaps by Dr. Black's own efforts. ("I'll burn the painting, unless you (a) pay me $5 million and (b) keep this whole thing secret.") For another, even if the state found out, its preferences for risk (or for paintings) might be different from those of the neighbor; perhaps the state would choose to save its money and call Dr. Black's bluff, and the neighbor isn't willing to take that chance. And in any case, if one accepts that threats like these aren't legitimate commercial offers, and deseve some kind of state intervention, why should we prefer the cumbersome and unpredictable processes of eminent domain over a more general deterrent? Why not, at the very least, let the victim seek an injunction against the threatened harm?

2006-02-14T09:50:00.000-05:00

And Another: I've also published a brief, light-hearted piece in the Yale Law & Policy Review, on the legal questions posed by the bunny-threatening website SaveToby.com. The Comment, Saving Toby: Extortion, Blackmail, and the Right to Destroy, 24 Yale L. & Pol'y Rev. 251 (2006), is available on Westlaw as well as on SSRN. The abstract is as follows:

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life.

Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits.

This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others' secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners' legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby's sad fate.

2006-02-14T09:20:00.000-05:00

Another Form of Writing: Well, although I haven't posted for nine months, I've been keeping myself busy with other writing. My long-revised article, From St. Ives to Cyberspace: The Modern Distortion of the Medieval Law Merchant, is now forthcoming in the American University International Law Review. (A draft has also been posted at SSRN.)

For those interested, here's an abstract:

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or law merchant. This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a law of their own creation. The standard history has been accepted by legal scholars across the ideological spectrum, by economists and political scientists, and by those drafting new regimes to govern Internet commerce.

This Article argues that the traditional view is deeply flawed. Returning to the original sources - especially the court rolls of the fair of St. Ives, the most extensive surviving records of the period - it demonstrates that merchants in medieval England were substantially subject to local control. Commercial customs and substantive laws varied significantly across towns and fairs, and did not constitute a coherent legal order. The traditional interpretation has been retained, not for its accuracy, but for ideological reasons and for its long and self-reinforcing pedigree. This Article takes no position on the merits of shielding multinational actors from domestic law; it merely denies that the Middle Ages provide a model for such policies.

As Legal Theory Blog says, download it while it's hot!

2005-05-09T18:20:00.000-04:00

Quote of the Day: From the otherwise entirely unfunny case of Pope v. State, 396 A.2d 1054, 1079 (Md. 1979):

Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.

(I wonder, though -- were they quoting the Latin record of the case, or the Year Book entry in law French?)

2005-04-27T16:39:00.000-04:00

West Headnote of the Day: 165k30. Extortion and Threats--Threats--Indictment or Information--Requisites and Sufficiency:

Indictment sufficiently charged offense of transmitting threatening communications in interstate commerce when it alleged that defendant knowingly and willfully transmitted in interstate commerce between New Hampshire and Florida communication containing threat to injure collection agency employees by indicating agency's building would "go boom" . . . .

U.S. v. Whiffen, 121 F.3d 18 (1st Cir. 1997).

2005-04-19T20:33:00.000-04:00

Too Good to be True: From the Associated Press:

Police in Ariz. Seek Monkey for SWAT Team

Mon Apr 18, 10:12 PM ET

MESA, Ariz. - The Mesa Police Department is looking to add some primal instinct to its SWAT team. And to do that, it's looking to a monkey.

"Everybody laughs about it until they really start thinking about it," said Mesa Officer Sean Truelove, who builds and operates tactical robots for the suburban Phoenix SWAT team. "It would change the way we do business."

...

The monkey, which costs $15,000, is what Truelove envisions as the ultimate SWAT reconnaissance tool.

Since 1979, capuchin monkeys have been trained to be companions for people who are quadriplegics by performing daily tasks, such as serving food, opening and closing doors, turning lights on and off, retrieving objects and brushing hair.

Truelove hopes the same training could prepare a monkey for special-ops intelligence.

Weighing only 3 to 8 pounds with tiny humanlike hands and puzzle-solving skills, Truelove said it could unlock doors, search buildings and find suicide victims on command. Dressed in a Kevlar vest, video camera and two-way radio, the small monkey would be able to get into places no officer or robot could go.

Ah, but what about a robot monkey...

2005-04-08T13:28:00.000-04:00

Gaming the System: Orin Kerr is scandalized by a report that top law schools are "gaming" the U.S. News ranking system, rejecting highly-qualified applicants in the hopes of improving their yield numbers. Yield is measured by the proportion of admitted students who matriculate. So when a law school admits a student who's over-qualified, and thus likely to turn it down for something better, the yield numbers (and the all-important U.S. News rankings) will suffer.

There doesn't seem to be much evidence of this yet on the law school front, but it's a well-documented phenomenon in undergraduate admissions. According to a fascinating NBER working paper my brother forwarded me, released by four scholars last October (including Caroline Hoxby, whose work I've always found worth reading), schools routinely engage in such manipulation to improve their rankings:

Another method by which a college can manipulate its matriculation rate is deliberately not admitting students who are likely to be admitted by close competitors or colleges that are often more highly preferred. A college administrator may say to himself, "My college will ultimately fail to attract good applicants unless I raise its matriculation rate. I can achieve this with a strategic policy that denies admission to students who seem likely to be accepted by colleges more desirable than mine. By systemically denying them admission, my college will of course lose of its some most desirable students (because some percentage of the highly desirable students would have matriculated). However, it is worthwhile to sacrifice the actual desirability of my college class in order to appear more desirable on a flawed indicator." . . .
. . .
In other words, the college will avoid admitting students in the range in which it is likely to lose in a matriculation tournament.

The authors back up their assertions with data on admissions rates for top students at Harvard, MIT, and Princeton, as indexed by combined SAT I percentile scores:

At Harvard and MIT, one's chances of admission generally increase with SAT score (although the Harvard probabilities are flat between the 93rd and 98th percentile). At Princeton, on the other hand, a candidate in the 98th percentile has a substantially worse chance of acceptance as compared to a candidate in the 93rd percentile. This is unlikely to be the result of legitimate admissions preferences -- as if the 98'ers were all timid bookworms, while the 93'ers were happy well-rounded types. This is especially clear since the chances of the students at the very top are the most favored of all. As the authors explain, "if the student's merit is high enough, a strategic college will probably admit the student even if the competition will be stiff. This is because the prospective gains from enrolling a 'star' will more than make up for the prospective losses from a higher admissions rate and lower matriculation rate. (Recall that the crude admissions rate and matriculation rate do not record who is admitted or matriculates.)"

In other words, it's quite clear that Princeton, and presumably many other schools, are departing from their standard admissions criteria in order to reject well-qualified candidates and to increase the yield. (Rejecting good students also improves--i.e., lowers--a school's overall admissions rate, by making the school appear harder to get into.)

How can this 'gaming the system' be prevented? So long as U.S. News pays attention to yield, and so long as schools pay attention to U.S. News, it's hard to imagine a solution. But the paper's authors propose an intriguing "revealed preference" method to measure student demand:

Our statistical model extends models used for ranking players in tournaments, such as chess or tennis. When a student decides to matriculate at one college, among those that have admitted him, he effectively decides which college "won" in head-to-head competition. The model efficiently combines the information contained in thousands of these wins and losses.

In other words, if we want an index of how eager students are to attend a given school -- the information yield is supposed to provide -- we should look to students' actual choices. Each school could be ranked by their success in head-to-head matchups against the rest. Manipulating these numbers is substantially harder than manipulating yield, since rather than rejecting students who are overqualified, schools would be forced to convince those overqualified students to attend.

Of course, the new measure isn't perfect, and would require certain separate sub-rankings when student preferences aren't nationally shared. (Students in California may prefer an in-state school to a slightly better university on the East Coast; "niche" schools with an engineering focus, or a religious affiliation, may attract students with stronger preferences.) But even if its answers aren't foolproof, the authors' model would at least be asking the right question: not which school can reject the most students, but which school those students prefer. And their new measurement would be a vast improvement over the less accurate rankings -- and costly admissions manipulation -- the system produces today.

2005-03-14T11:30:00.000-05:00

Fame and Fortune: SteveSachs -- your third Google hit for the search plain error...

I'm honored, really.

2005-03-11T17:36:00.000-05:00

The Commonwealth of Bees: A librarian in the YLS Rare Books Room recommended to me Early English Books Online, a really impressive service that provides full text-searchable reproductions of English books. I tried a search for "law merchant," and in addition to some of the standard sources, I found this book:

5. Hartlib, Samuel, d. 1662.
The reformed Common-wealth of bees. Presented in severall letters and observations to Sammuel Hartlib Esq. With The reformed Virginian silk-worm. Containing many excellent and choice secrets, experiments, and discoveries for attaining of national and private profits and riches., London, : Printed for Giles Calvert at the Black-Spread-Eagle at the West-end of Pauls, 1655.

Among other invaluable advice, the treatise offers the following:

Necessarie observations concerning the Premisses.

From the middle of Aprill, until the middest of May , look diligently to thy Bees; for then are they near beginning to hatch, and do stand in need of most help, especially if the Spring be cold, and the wind holding any part of the North or East; whereby the tender buds or blossomes do perish, and the Bees are driven to the blossomes of Apple-trees, which is their utter overthrow and decay.

2005-03-11T17:01:00.000-05:00

The Royal Fifhes: When I lived in England, I was informed that all swans in Britain were the property of the Queen. No one could own a swan, or eat one without her permission. (Except, of course, for one flock that had been granted by the Crown to Christ Church College, Oxford.) In older times, the same was true of sturgeons, dolphins, and other great sea-creatures, which were reserved for the king's table. Any sturgeons caught accidentally had to be sent to the king--or, if they would not keep, their value could be sent to the royal treasury.

More recently, in the course of research, I was amused to find the following excerpt from William Welwod's 1613 first edition of An Abridgement of all the Sea-Lawes:

Item, fhares, lawfull prizes or goods of the enemy. ficlike Lagon, that which was found lyand at the fea ground, and Flotfon that is found fwimming upon fea, and Ietfon, which is caft foorth of the fea to the fhoare and coaft, with anchorage, beaconages, meare fwine, Sturgeons & Whales, &c. and all fifh of extraordinarie greatnes, called regal fifhes, which all are allowed in great Britaine, France, and other noble kingdomes, to the Admiralls, by their Soueraigne; for the better maintenance of their eftate, iurifdiction, and conferuacie on feas, riuers, floods, roads, ports, harbours, channels, fayling, fifhing, and all trading there, as altogether and chiefly committed to the care, maintenance, and protection of the Great Admirall.

Yarr.

2005-02-18T10:04:00.000-05:00

The Kremlin on the Charles: As President Summers continues to stifle dissent, the following printed in this morning's Crimson:

We Are Not Spineless
By Stephen E. Sachs

Harvard professors don't scare easily. Though protected by life tenure and the prestige of an elite university, they are occasionally called to act at great risk to their sense of comfort. And rarely have they shown more courage, more disregard for personal convenience in the face of mortal danger, than in proposing a no-confidence motion in University President Lawrence H. Summers, to be voted on in an emergency meeting next week.

Through his controversial comments, including his recent statements on women in science, Summers has created a climate of fear and repression well befitting the "Kremlin on the Charles." Several nameless professors spoke at Tuesday's Faculty meeting of a "toxic atmosphere" in Cambridge. Professor of Sociology and Department Chair Mary C. Waters described tenured academics "held hostage to fear," insisting that their dissenting e-mails be destroyed before being read by a University president powerless to fire them. Cruel punishments, no doubt, await Rabb Professor of Anthropology and Department Chair Arthur Kleinman, who swore openly to "show the public that we are not cowards, we are not spineless, and we are not with you." Thomas Professor of Government and Sociology Theda Skocpol spoke darkly of "fear and manipulation," and warned that faculty members have kept silent "in fear that they will be criticized publicly or lose their jobs." (Heavens! The last time a Harvard professor suffered public criticism was in 1952, during the McCarthy era, and we all know how that turned out.)

A cynic might suppose that university professors are well protected from the public repercussions of their statements. Far better protected, say, than a university president, whose job security is far from assured, and whose decade-old memos from a previous job are still considered a worthwhile topic at Faculty meetings. ("We do not fear open give-and-take about anything you might have said," Skocpol told Summers, while at the same time decrying the public criticism of professors--i.e., open give-and-take about something she might have said.)

Yet the holder of an endowed chair leads a tenuous life, and must often take cover behind a shield of anonymity. The unknown professor who took Summers' apologies to be disingenuous, the "senior faculty member" who speculated on his future--these endangered souls chose a safer path than their colleagues, who went on-the-record for The Crimson and will presumably be shot at sunrise.

Those of us who have already left campus are shocked to hear what Summers has done. We must have missed the news of academic sanctions levied against those who supported the visiting poet Tom Paulin. We have not read The Crimson's repeated exposés of junior faculty denied tenure for their political speech. (Except, perhaps, for Peter Berkowitz.) Including the case of former Fletcher University Professor Cornel R. West '74, we have not even seen public criticism by the President's office of any member of the Faculty for political positions. In fact, the only person we've seen threatened with losing his job is Larry Summers.

As alumni, we have a right to be concerned. The University should, in the words of the University of Chicago's Kalven Report, be a home of critics, rather than a critic itself. Perhaps, when a president speaks on politics--even off-the-record, and in a personal capacity--that barrier is crossed. Yet whether the subject is women in science, Afro-American studies, or Paulin, Summers' comments have been subject to withering criticism from faculty and students alike. What intelligent person could read the papers and conclude that all of Harvard thinks as he does, or that its Faculty feels any pressure to agree? It is possible that Summers' outspokenness has diminished his effectiveness in leading the University. But that, if true, says far more about Harvard than it does about Summers.

Many aspects of Summers' tenure--his bull-in-a-china shop reputation, his handling of Allston or the Core or the appointment of deans, his brusque or 'corporate' style--deserve serious and searching discussion. Under his leadership, Harvard is making long-term changes to its curriculum and physical plant. If those decisions are being made poorly, or without appropriate consultation, the Faculty needs to speak up.

Summers deserves part of the blame for allowing his political comments to overshadow his academic commitments. But the Faculty will deserve even more if it wastes its energies in the same way. What Summers thinks about statistical variations in scientific ability is not as important as what he thinks about Allston or curricular reform, and these issues are lost amid the rancor. According to Wednesday's Crimson, the two main docket items at Tuesday's Faculty meeting--the progress of the Curricular Review, and a letter from the Dean of the Faculty setting out controversial new tenure procedures--"went unaddressed."

Were it to stick to safe, easy topics, the Faculty might find time to discuss these issues at next week's emergency meeting. But what requires bravery, real bravery, is to place anonymous quotations in student newspapers, to focus attention on illusory repression, and to shortcut discussion by calling for a motion of no confidence.

We are not spineless, after all.

Stephen E. Sachs '02 was editorial co-chair of The Crimson in 2001.

2005-01-30T11:04:00.000-05:00

Conspiracy Theory: The Associated Press reports -- in an article improbably headlined "French Deliver Tsunami Aid With Panache" -- the following news:

Critics of the U.S. military's work in Indonesia say Washington has seized on the disaster as a pretext for advancing its strategic interests in the archipelago and improving ties with the Indonesian military.

Those ties effectively were cut in 1999 after Indonesian troops and their proxy militias killed 1,500 East Timorese after the half-island territory voted for independence in a U.N.-sponsored independence referendum.

During her recent Senate confirmation hearings, Secretary of State Condoleezza Rice said the tsunami provided a "wonderful opportunity" for the United States to reap "great dividends" in the region.

I found Rice's quote rather surprising, so I went ahead and looked up the context. After a long question about American public diplomacy, Sen. Voinovich asks:

VOINOVICH: ... And we were in England, and we were in Southeast Europe, and then at the NATO meeting in Venice. And I was just shocked at what I got back from our friends about how badly we're thought of today in that part of the world.

And I just wonder, what are you going to do to try and change that?

I think what we're doing in the tsunami right now is wonderful. I think it's -- but we have got to show people that we love them, that we are for democracy, that we want them to enjoy the same thing but we haven't any hidden motives.

What are you planning on doing in that area to respond to that?

RICE: Senator, first of all, I do agree that the tsunami was a wonderful opportunity to show not just the U.S. government, but the heart of the American people. And I think it has paid great dividends for us.

Sometimes what happens is that we've had to ask people to do very difficult things and we've had policies that people don't like.

I think in some corners there are people who've been unhappy with the way that we've dealt with the Middle East, with the strong support for Israel, with our strong belief that terrorism has got to stop there.

But we somehow have to get the message out that this is also the first president to call, as a matter of policy, for a Palestinian state, and somehow we're not getting that message out as well.

What I plan to do is that I'm going to put a major emphasis on public diplomacy in all of its forms. That means in getting our message out.

I don't think there's any plausible reading of her comments as an attempt to suck up to the Indonesian military -- rather than just an answer to Voinovich's question using his own words.

The AP continues:

The dispatch of the USS Abraham Lincoln's strike force has been viewed in some quarters as an effort not only to help survivors, but also to burnish America's image among Islamic communities worldwide by delivering aid to the largest Muslim country in the world.

The French maintain they do not have strategic interests in the region.

Hmm. I was wondering what all those TotalFinaElf concessions were doing...

How can the AP get by with reporting that the French "do not have strategic interests in the region," without so much as blinking an eye? Were they trying for sarcasm? And for that matter, who are the "critics of the U.S. military's work in Indonesia," and is there any particular reason why they have to remain unnamed? Are they fearing for their safety? (My college paper wouldn't use anonymous sources for mudslinging, unless there were good reason why they had to stay anonymous.)

In other words, this whole piece strikes me as just bad journalism, especially for the AP. Requests for clarification can be sent to info@ap.org.

2005-01-12T17:11:00.000-05:00

Sweet Nothings: Modern life is wonderful and various. Before the age of the Internet, who'd have thought it would be possible to order custom-printed M&M's--with your own choice of colors, and with 2-line messages of 8 characters each--from the comfort of your own home?

Apparently the messages are monitored for propriety, but it would be fascinating to know what the customers write. How long before M&M's deliver their first hapless marriage proposal, or the news that "Its over / btwn us"?

2005-01-12T15:11:00.000-05:00

On Clarity: One final point that should be made about Kennedy's essay: it's very clearly written and easy to understand, even if you disagree with his argument. What's more, Kennedy maintains this level of clarity while challenging the form, as well as the content, of legal education and legal reasoning.

As a result, Kennedy's essay is a welcome respite from some other CLS scholarship we've read, in which the bad writing served only to mask the incoherent argument within. It's a perfect counterpoint to the post-modern attitude that to be effectively 'subversive,' an essay must be either a jargon-laden monstrosity of Theory, or a disorganized, ill-considered, self-obsessive, stream-of-consciousness train wreck.

By means of comparison, I offer the following description of a conference in Oxford last June:

Today's geo-political climate has posed new challenges to the ways in which we theorize violence and our relationship to it. The tension between epistemic violence and emerging modalities of warfare (e.g. cellular, decentralized terrorism and post-globalized neo-colonial occupation) has destabilized the preservation of any static notion of "the violent." Clearly, it is now more critical than ever that we metatheorize the discursive and literal space of violence, and investigate its relationship with our present historical moment. The panel discussion will address violence, as a problem and/or a question, and its location in the interstices of the strategic and the performative.

(Emphasis added.) Clearly...

2005-01-12T15:04:00.000-05:00

In Training for Hierarchy: Cleaning out some old email, I discovered an essay that a friend forwarded me several months ago when she found I was headed to law school. Entitled "Legal Education as Training for Hierarchy" (PDF / HTML transcription), it was written by Harvard law professor Duncan Kennedy in 1982, and is still a worthwhile read. On my reading, Kennedy attempts to make three points of note:

first, that there is no such separate discipline as "legal reasoning," and attempts by law professors to instill it in their students are misleading and politically biased;

second, that common forms of left-wing thought--especially the discourse of rights--"are likely to hinder rather than assist" in the struggle to maintain autonomous political beliefs; and

third, that the confrontational and curmudgeonly style of legal education (as well as the horrific recruiting process to follow) drills into students an acceptance of hierarchy and an unwillingness to challenge the system.

Let's take these in reverse order. I'm not well equipped to discuss the third point, mainly because the nature of legal education may have changed a great deal in 20 years--and also because Yale has a singularly non-confrontational approach. (Prof. Richard Brooks, one of the world's nicest men, teaches a very different first-year contracts class than Kennedy's.) In my first semester, I don't have a single professor who employs the Socratic method, and the professor best known for peppering his first-year class with questions, Owen Fiss, is anything but reactionary. Even the recruiting process has been somewhat defanged; the students aren't all competing for the same high-powered corporate jobs, but are pursuing diverse goals in different fields. Maybe this will change come clerkship time, but for the moment, it seems that system-challenging seems to be part of the atmosphere at a place like Yale. (Moreover, it may be perfectly possible to accept one's place in a certain kind of hierarchy--the hierarchy of law schools, of class rank, of prestigious jobs--and still be unwilling to accept wider social hierarchies or the political status quo. Otherwise, the "limousine liberal" stereotype wouldn't exist.)

On the second point, Kennedy argues that the widespread adoption of rights discourse further entrenches legal hierarchies:

This wouldn't be so bad if the problem with legal education were that the teachers misused rights reasoning to restrict the range of the rights of the oppressed. But the problem is much deeper than that. Rights discourse is internally inconsistent, vacuous or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make almost impossible its functioning effectively as a tool of radical transformation. Rights are by their nature 'formal', meaning that they secure to individuals legal protection for, as well as from, arbitrariness - to speak of rights is precisely not to speak of justice between social classes, races or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of 'civil society’ in which atomised individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualise radical proposals such as, for example, decentralised democratic worker control of factories.

Kennedy's choice of example is odd, to say the least. There are plenty of problems with rights-talk (some of which Kennedy describes in other writings), but an alleged inability to conceptualize "democratic worker control of factories" isn't one of them. Robert Nozick, of all people--one of the foremost defenders of rights and rights-talk, and someone committed to a very different kind of politics than Kennedy--explored such proposals extensively in Anarchy, State and Utopia. (See his discussion of exploitation in chapter 8.) And the remarkable failure of this example might imply that rights discourse is hardly as inflexible, or as antithetical to notions of social justice, as the article implies. After all, if rights justifications can be generated for "almost any result," why are the results required by social justice excluded?

The most important argument in the essay, though, is the first point, which doubts the existence of legal reasoning as a distinct means of resolving legal questions. Kennedy describes the law school curriculum as follows:

First, there are the ground rules of late-nineteenth-century laissez-faire capitalism. Teachers teach them as though they had an inner logic, as an exercise in legal reasoning, with policy (for example, commercial certainty in the contracts course) playing a relatively minor role. Then there are the second- and third-year courses which expound the moderate reformist programme of welfare capitalism and the administrative structure of the modern regulatory state. These courses are more policy-oriented than first-year courses, and also much more ad hoc. Teachers teach students that limited interference with the market makes sense and is as authoritatively grounded in statutes as the rules of laissez-faire are grounded in natural law. But each problem is discrete, enormously complicated, and understood in a way that guarantees the practical impotence of the reform programme. Finally, there are peripheral subjects, such as legal philosophy or legal history and clinical legal education. These are presented as not truly relevant to the hard, objective, serious, rigorous analytic core of law.

This whole body of implicit messages is nonsense. Teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical and political discourse in general (that is from policy analysis). It is true that there is a distinctive lawyers' body of knowledge of the rules in force. It is true that there are distinctive lawyers' argumentative techniques for spotting gaps, conflicts, and ambiguities in the rules, for arguing broad and narrow holdings of cases, and for generating pro and con policy arguments. But these are only argumentative techniques. There is never a correct legal solution that is other than the correct ethical and political solution to that legal problem. Put another way, everything taught, except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follows that the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way. And the curricular distinction between the nature of contract law as highly legal and technical, by contrast, say with environmental law, is equally a mystification.

This kind of skepticism about legal reasoning is rarely heard in a law school classroom. When the Supreme Court renders a 5-4 decision on a politically controversial topic, there are plenty of people who argue that the justices have abandoned legal reasoning for political decisionmaking. But Kennedy's argument doesn't claim that judges merely fail to adhere to the legal standard; rather, there's nothing else they can do--the legal standard doesn't exist, and all legal decisions are inherently ethical and political ones.

At first glance, Kennedy's complete denial of legal reasoning is counterintuitive. When a court dismisses an action barred by the statute of limitations, it certainly seems to apply something like legal reasoning. Or, at least, it doesn't seem that it's making an individualized policy judgment based on "the correct ethical and political solution to that legal problem." No matter how sympathetic the parties in the case, the court applies what looks like a distinct and correct "legal solution."

Perhaps, one might argue, this claim takes too narrow a view of ethics and politics. Perhaps the judgment to dismiss is indeed a policy decision: one that takes into account, among other values to be served, the predictability and stability of the legal system. On this account, the court considers the various reasons in favor of granting the plaintiff relief, and then concludes that continued fidelity to the statute (or to precedent, or to accepted doctrine, etc.) carries greater weight in its ethical/political calculus. In many cases, judges' commitments to these values will trump other considerations of utility or equity, thus leading to the automatic and inflexible application of principles. In others, such application seems so inconsistent with justice or other values that judges will seek to distinguish the case at hand, so that a contrary decision can be rendered without upsetting the whole. And in still others, the principles themselves are sufficiently vague and ill-defined that little effort is needed to reconcile them with the desired result; the policy choices can be snuck in through the back door.

This account of judicial decisionmaking is plausible, not least because it is in some sense irrefutable; so long as the ethical/political calculus is sufficiently broadbased, and the potential values to be pursued sufficiently open-ended, any process for rendering decisions could be so described. What this value-balancing approach cannot do, however--or, at least, cannot do on its own--is give content to the notions of predictability and stability it incorporates. Which decisions would destabilize the system, and which would render it more predictable? Which would be more consistent with previously recognized rules--whether embodied in custom, doctrine, precedent, or statutory text--and which would be less? These questions must be meaningful, if all of the values that might motivate a decision are to be brought under the same ethical/political roof; and yet they seem very different from the kinds of value questions we encounter in daily life, the ones that usually go under the names of "ethical" and "political." If we don't want to call their investigation "legal reasoning," we can give it another name: "Predictability and Stability Studies," let's say. And then we can go on to build a "Predictability and Stability" school in New Haven, where idealistic students are peppered with unfriendly questions before they are hired as Predictability and Stability consultants at Skadden, Arps.

In other words, if Kennedy's account is sufficiently general to describe what lawyers and judges actually do, it will have to accept the existence of something very similar to what currently goes by the name of "legal reasoning"--or risk a distortion of lived experience. If legal reasoning did not exist, we would have to invent it.

Alternatively, perhaps Kennedy meant to focus his critique only on those foundational decisions, so often the focus of first-year classes on private law, that lay down a new rule or that change the common law in a substantial way. Yet these decisions quite explicitly disclaim any origins in the mere analysis of legal concepts. As I study for my Contracts exam, the parol evidence rule doesn't appear as an immaculately conceived scion of Reason, but rather as an unhappy compromise between giving effect to the wishes of the parties and avoiding fraud or mistake. The same goes for the "mailbox rule," which treats the Postal Service as an agent of the offeror for the purposes of acceptance. In this semester, at least, we've been taught the vision of Erie instead of the vision of Swift; laws are made, not discovered, and the common law is that branch of law which has been made by judges. When the California Supreme Court decides to abolish the distinction between licensees and invitees, or when a jurisdiction decides to move from a contributory-negligence regime to one attributing comparative fault, the reasoning involved is quite clearly not the same kind as that involved in construing a statute or applying past precedent. And we rely on legal reasoning itself in order to see that there has been a change in the previous standard, that the old doctrine and the new are inconsistent.

Indeed, could it ever have been taught thus? Legal realism is nothing new; Holmes and Brandeis are much closer in time to the "late-nineteenth-century laissez-faire" world Kennedy envisions than they are to today's court. And few professors today would claim that an entire legal system could be created without attention to ethical or political values, even if they're ready to make the non-relativist claim that a particular value system is correct.

As a result, I don't find Kennedy's skepticism about legal reasoning very compelling, nor do I think that law school's emphasis on rights discourse, even if it's ultimately ill-founded, is inherently supportive of hierarchy. Nor, for that matter, does Yale strike me as a deeply hierarchical place--especially for an institution that often grants entry to the halls of power. Of course, maybe I've merely imbibed the hierarchy for so long that I can no longer see it; or maybe, as Kennedy writes in his concluding paragraph, I've fallen victim to "false consciousness." But I've heard that capitalism's running dogs are fed well, and for the moment I'm willing to take my chances.

2005-01-09T17:22:00.000-05:00

Quote for the Day: From Civil Procedure: Examples and Explanations, by Joseph W. Glannon:

"Regardless of a party's reason for wishing to relitigate a dispute, the doctrine of res judicata stands like a brutish, unreflecting myrmidon, guarding the doors of the courthouse."

2005-01-07T16:04:00.000-05:00

The Advances of Science: Straight from the Internet Journal of Medical Toxicology:

"Although other causes of symptoms could not be rigorously excluded, we conclude that cooked tarantula is a potentially irritating food."

(Warning: link contains icky pictures of tarantulas.)

2005-01-06T14:58:00.000-05:00

Back in New Haven: And fresh from a Torts exam, with a complex issue-spotter invoving hazardous chemicals, allegedly defective car seats, and the exposure of chimpanzees to Barry Manilow. (No joke.)

In other news, I came back from vacation to find the following on my answering machine. Disturbing, no?

"You have two messages:

"Message One:

"'Hi, this is, uh, [name inaudible]. I'm having a little trouble again, Doctor. [cough] The tooth came out again, while I was eating. That was back on Friday, but I was awfully sorry about what I heard about your father -- didn't want to bother ya then. Get back to me as soon as you can, please? Thank you.'

"Monday, 2:42 p.m.

"Message Two:

"'If you would like to discontinue this automated recording, press 1.

"'An inmate from DONALD W. WYATT DETENTION FACILITY, DONALD W. WYATT DETENTION FACILITY, has attempted to place a call to this phone number.

"'The call wasn't able to complete, due to a collect call block with your local telephone company. If you would like to receive calls from DONALD W. WYATT DETENTION FACILITY in the future, please have this block removed, by calling your local telephone provider. Thank you. To repeat this message, press 3.'

"Monday, 7:07 p.m.

"End of Messages."

2005-01-03T01:40:00.000-05:00

Happy New Year! As recent events offer a sobering reminder of how tenuous life can be, best wishes for a safe, happy, healthy year to all.

This has been both a busy and relaxing break -- in between studying for classes and thesis revision, I was able to spend some time at home with family, as well as to attend the wedding of two friends in Rockford, Ill. I've got exams as soon as I get back, so posting may be a little light in January.

One highlight: on my last day at home, I went to see Painted Prayers, an exhibition of medieval books of hours at the St. Louis Art Museum. As you probably know, I'm partial to medieval and renaissance art, especially books of hours, and these works were absolutely terrific. If any of you are in St. Louis before Jan. 9, you must go see the exhibition.

These books of hours were designed for personal use in a private home, where readers would return to them several times a day for the 'hours' of prayer. As a result, the manuscripts offered intricate designs and complex imagery to hold the reader's attention in repeated readings. The books themselves were small and easy to hold; the museum wisely provided magnifying glasses in the exhibition, so that visitors could see the extraordinary level of detail in the painted miniatures. Unfortunately, some of the most memorable works aren't available online, but some are in the Morgan Library's digital collection -- such as a simple but beautiful Nativity, a penitent Jerome in the desert, and an allegorical representation of Lust. (Note the checkered pavimento pattern in the latter, displaying an attempt at artistic perspective.)

The exhibit was very informative, explaining the unusual medieval system of marking time -- complete with lunar-based "Golden Numbers," Roman 'kalends' and Christian saints' days -- in the following calendar page for February:

The audiotour was also helpful -- and as it turned out, I recognized some of the background music. To accompany an Annunciation scene, you could certainly do worse than Dufay's Ave Maris Stella (buy it here or here). (Best line from the audiotour, concerning an "Annunciation to the Shepherds" by the Master of the Échevinage de Rouen: "At the bottom of the page, there's a monkey, playing the bagpipes." Haven't you always wanted one of those?)

The promotional book is sold out, for good reason, and the exhibition will only be traveling to one more city. But if you're within range of the Getty Museum when the exhibition reaches L.A. on October 18, 2005, make sure to check it out.

P.S.: I've been linking to Ross Douthat and The American Scene since way back, but I'm very pleased to see their recent resurgence (and guestblogging role!) with a new co-conspirator. Go read their stuff.

P.P.S.: Confidential to CLM -- thank you for your interest in my writings on Missouri statutes concerning pornography and prostitution. Even were I inclined to assist you with Volume 2 of your DVD series, however, I have not yet passed the Missouri bar, and thus am not qualified to offer legal advice.

2004-12-12T18:01:00.000-05:00

Leak of the Day: From the Washington Post:

IAEA Leader's Phone Tapped
U.S. Pores Over Transcripts to Try to Oust Nuclear Chief

By Dafna Linzer
Washington Post Staff Writer
Sunday, December 12, 2004; Page A01

The Bush administration has dozens of intercepts of Mohamed ElBaradei's phone calls with Iranian diplomats and is scrutinizing them in search of ammunition to oust him as director general of the International Atomic Energy Agency, according to three U.S. government officials.

But the diplomatic offensive will not be easy. The administration has failed to come up with a candidate willing to oppose ElBaradei, who has run the agency since 1997, and there is disagreement among some senior officials over how hard to push for his removal, and what the diplomatic costs of a public campaign against him could be.

Although eavesdropping, even on allies, is considered a well-worn tool of national security and diplomacy, the efforts against ElBaradei demonstrate the lengths some within the administration are willing to go to replace a top international diplomat who questioned U.S. intelligence on Iraq and is now taking a cautious approach on Iran.

The intercepted calls have not produced any evidence of nefarious conduct by ElBaradei, according to three officials who have read them. But some within the administration believe they show ElBaradei lacks impartiality because he tried to help Iran navigate a diplomatic crisis over its nuclear programs. Others argue the transcripts demonstrate nothing more than standard telephone diplomacy.

"Some people think he sounds way too soft on the Iranians, but that's about it," said one official with access to the intercepts.

I'm sure this sort of thing goes on all the time. In fact, if the U.S. didn't tap ElBaradei's phone, I think it would be almost criminal negligence on the part of our diplomatic services. But it can't look good for our international image when we wiretap the IAEA, or spy on the Security Council.

So how did this get on the front page of the Post? The article makes it pretty clear that those in favor of keeping ElBaradei leaked the information, not to stop an unethical practice (cf. the Pentagon Papers), but rather to embarrass the other side in an intragovernmental policy debate. And that seems inexcusable to me. You can't run a State Department with every piece of information you collect on the front page of the Post the next morning. The organization claims to have blown it off ("'We've always assumed that this kind of thing goes on,' IAEA spokesman Mark Gwozdecky said"), but foreign publics aren't likely to react the same way -- and the Post doesn't put many non-stories on A1.

If the transcripts are really that inconclusive, could the benefits from the leak possibly have outweighed the danger that we'd push for a replacement? Whoever leaked to the Post ought to be fired, and quickly. We've got enough to worry about in stopping Iran's nuclear programs without our own officials sabotaging our intelligence.

2004-12-10T11:19:00.000-05:00

In the Immortal Words of Stan Marsh: Dude, what the %$&*! is wrong with German people?

UPDATE (12/13): I rest my case.

2004-12-08T13:15:00.000-05:00

Thought for the Day: From Federico Fellini:

I wonder what . . . kind of evil spell could have fallen upon our generation, to explain how we started, all of a sudden, to look at the young as the messengers of who knows what absolute truth. The young, the young, the young . . . you would have thought that they had just arrived from outer space. . . . Only some form of collective madness could have made us consider children of fifteen . . . the master guardians of all truths.

(Quoted in Jed Rubenfeld, Freedom and Time 34.)

2004-12-08T13:11:00.000-05:00

Spiderman to the Rescue: Ever wonder what insightful political analysis the bloggers are keeping to themselves? Here's this morning's instant-message discussion with Josh Chafetz:

S: http://nytimes.com/2004/12/08/
opinion/08simmons.html

S: Spiderman will save the Dems!

J: "the first competitive contest for party leader since 1988," ???

S: has the DNC been contested much?

J: oh, by "party leader", he means DNC chair?

S: yeah -- that's the election coming up

J: that's kinda absurd

S: true

J: someone should tell that guy that spiderman's a republican

J: I mean, why else would he keep wrapping himself in the flag

S: and wear a RED suit

J: with a spider on it! everyone knows all the voracious insects are republicans!

S: and basilisks vote democrat

J: exactly

S: only democrats speak parseltongue

J: actually, only wes clark speaks parseltongue

S: yesssssss...

S: wait -- but aren't fundamentalist snake handlers republicans?

J: exactly -- they *handle* the snakes

J: beat them

J: abuse them

J: don't identify with them

J: blue snakes

J: red snake handlers

S: what about the swing snakes?

J: the dangerous, but -- for obvious reasons -- endangered purple grass snake

2004-11-25T01:55:00.000-05:00

Updating "The Jumbler": Following the kind suggestion of a YLS classmate (to wit: "your word jumbler is junk and needs work"), I've decided to update the text-jumbling GAWK script to a new version. (Read about the program here.) Although the new code is slightly less elegant than the old, it now makes sure that the randomly jumbled word always differs from the original word, with a minor exception for repeated strings like "aaaa". I usually prioritize elegance over functionality, but as they say, the customer is always king...

2004-11-24T16:59:00.000-05:00

Two Years On: Well, after a prolonged absence, I've returned to posting, to note this blog's birthday (and mine). I think it's been a good two years thus far. The blog has risen far from its humble beginnings; it's been alternately described as a "blog to add," "utterly childish," in "plain error," etc. And these are somewhat happier times than last year, when I spent my birthday sick as a dog.

Unfortunately, I've found the blog much more difficult to maintain now that I'm out of Oxford and in law school, where we have actual work to do. Hopefully, though, I'll find time to post more often. I'll be using the holiday to stock up on food, reading, and much-needed sleep. Back on Monday.

2004-11-04T18:35:00.000-05:00

Letter to the Editor: Just published in Harvard Magazine:

To the Editor:

I am astounded that [Professor Lisa L.] Martin can write an article on unilateralism and fail to mention Kosovo ["Self-Binding," September-October, p. 33]. Unlike the United States-led invasion of Iraq, which could plausibly claim to enforce past UN resolutions, the NATO campaign against Serbia lacked even the shadow of UN authorization. I, for one, thought the Kosovo campaign was just and necessary, and that it illustrated the occasional need to step beyond multilateral bonds in protecting peace and security. Yet Martin's failure to mention it, even as she accuses the current administration of merely "go[ing] through the motions" of seeking UN support, makes me wonder whether her "multilateralism" is simply another word for the approval of France and Germany.

Stephen E. Sachs '02
New Haven, Conn.

2004-10-27T13:21:00.000-04:00

A Tax Epiphany: I just realized something I should have understood four years ago. Ever since the Bush tax cuts were first discussed in the 2000 campaign, I've been persuaded by claims like the following:

CBO Report: Bush Tax Cuts Tilted to Rich
By Vicki Allen
Reuters

Saturday 14 August 2004

WASHINGTON - One-third of President Bush's tax cuts have gone to the wealthiest 1 percent of Americans, shifting more burden to middle-income taxpayers, congressional analysts said on Friday.

The report by the nonpartisan Congressional Budget Office and calculations by congressional Democrats based on the CBO findings fueled the debate over the cuts between Bush and his Democratic challenger in November, Sen. John Kerry.

Using the CBO's figures, Democrats in Congress said the top 1 percent, with incomes averaging $1.2 million per year, will receive an average tax cut of $78,460 this year...

In contrast, the report showed that households in the middle 20 percent, with incomes averaging $57,000 per year, will receive an average cut of $1,090...

The CBO report said about two-thirds of the benefits from the cuts went to households in the top 20 percent, with an average income of $203,740...

Democrats said the CBO calculations, which they requested, confirm the view of independent tax analysts that the tax cuts enacted in 2001 and 2003 have heavily favored the wealthiest taxpayers.

Let's consider a thought experiment where the government decides to cut the income tax by 50%. In particular, it decides to cut everyone's income tax burden in half, so that everybody pays only half as much in income tax as they used to. The multi-gazillionaire who paid $4 gazillion in income taxes now pays $2 gazillion less; the working family that paid $1,000 gets a tax cut of only $500. As above, it seems like the gazillionaire gets a pretty sweet deal, and "the rich" (suitably defined) may very well receive most of the benefits.

What's important to see, however, is that the new system may be just as progressive as the old. If before the cuts, the top 1 percent of income tax payers paid as much as the bottom 20 percent, then after the cuts, they'll still pay as much as the bottom 20 percent--both tax burdens will just be half as much as before. In terms of the total tax burden, since everyone's fell by half, the proportion borne by the top 1 percent will be unchanged. In other words, a tax cut which offers disproportionate benefits to the wealthy, in absolute terms, may be perfectly equal in relative terms, and may represent a progressivity-neutral change to the tax code. The absolute benefits are disproportionate only because the wealthy's tax payments were disproportionately large to begin with.

That's why, for example, the Bush tax cuts can plausibly be described as progressive--as long as one is looking solely at the income tax. (More on this below.) The rich may receive much greater absolute amounts than the poor, but that doesn't imply anything about their share of the tax burden. And according to other analyses of the CBO figures, the share of the income tax burden borne by the wealthy in fact shifted slightly upward, and that of the poor fell.

I came to these conclusions after reading Steven Landsburg's piece in Slate, which has provoked an energetic response by John Quiggin at Crooked Timber. Quiggin, as I understand him, makes three (non-ad-hominem) arguments against Landsburg's analysis.

One argument is that Landsburg's piece is "hopelessly biased" because it employs the "presentational trick" of separating relative and absolute reductions in taxes. Suppose the wealthy pay a 40 percent income tax, and the poor pay 10 percent; these rates are then cut to 30 and 5, respectively. Quiggin notes that the high-earners have "[c]learly . . . gained twice as much, relative to pretax income"; their rate fell by 10 points, while the poor's tax rate fell by only 5 points. But that's just another way of restating the initial claim. What Quiggin doesn't accept is that the wealthy's share of the tax burden has increased; they're still paying three-fourths of their previous tax bill, while the poor are only paying half. This result is made even more clear if we cut the rates further, to 20 and 0. The wealthy have still saved twice as much as the poor, relative to pretax income--but since they now bear all of the tax burden, it's hard to describe that as deeply unfair.

A second argument, which Quiggin mentions in passing, is that the rich pay less in taxes than the rates would imply, because they have more access to sharp lawyers and tax loopholes. That's true, and that's a problem, but it also doesn't imply anything at all about a change in the tax system--which may or may not increase cheating. If the wealthy only paid 2/3 of what they were supposed to before, then after a proportional change they'll still be paying 2/3 of what they're supposed to--which means their actual share of the tax burden will be unchanged. (Lowering marginal tax rates on the wealthy would, if anything, diminish this effect, since it reduces the financial incentive to cheat.)

A third argument, and ultimately the only successful one, is that the income tax doesn't tell the whole story. The taxes that have been cut in recent years--on Income, corporate income, and capital gains--are borne primarily by the rich, while the taxes that weigh most heavily on the poor, like sales taxes and the Social Security payroll tax, have largely been left unchanged. Thus, no matter how progressive your income tax cuts might be, the net result to the system might be a greater burden on the poor. In fact, if you fill in the ellipses from the Reuters report above, the Congressional Democrats found that the share of the tax burden of the top 1 percent has fallen by about 2 points to 20.1 percent, while the share of the middle quintile of taxpayers has risen from 10.4 to 10.5 percent. So the Bush tax cuts were slightly imbalanced in their effects--but not dramatically so, as Landsburg's graph shows here.

None of this is to say that equal absolute reductions, like cutting everyone an equal $300 check, would necessarily be wrong. In fact, I thought the $300 rebate was the best part (some would say the only good part) of the Bush tax cuts. But we can't pretend that equal absolute reductions are the only neutral way to cut taxes. The fallacy here is to look at the tax cut as if it were a spending program, cutting $78,000 checks to the wealthy and $1,000 checks to the poor; if we assume a completely neutral tax system beforehand, such a spending program would rightly be reviled. Under our system, though, the revulsion ignores the fact that we're starting from an already-progressive base. Since we're already extracting more money from the rich, giving everyone an equal check isn't a neutral change--it increases the redistributive aspects of the system, shifting money from rich to poor.

Again, more redistribution may be a good idea. (Under certain limits, since high marginal rates have distortionary effects.) But it's one thing to say that the tax system ought to be more progressive than it is now; it's quite another to assume that equal proportional reductions will make it worse.

2004-10-27T11:32:00.000-04:00

Two Thoughts on Art: I spent Sunday and part of Monday in New York City, where I learned two things:

1. The art in the Metropolitan Museum is really good. Giovanni Bellini is one of my favorite artists of all time. I've long been enamored of his San Zaccaria Altarpiece, which is even more impressive seen in context -- the altarpiece isn't so much in the church as part of the church, as San Zaccaria's architecture continues unbroken into the painted space. (And when you put the 50-Euro-cent coin into the slot and turn on the lights nearby, the details are extraordinary.)

In any case, after briefly getting lost in the Metropolitan Museum this weekend (reminding me of one of my favorite childhood Sesame Street specials), I noticed a Bellini Madonna and Child in the Met collection.

The focus here is clearly on the Madonna -- the child might as well have been a vase of flowers or a loaf of bread for how her hands are placed -- but the Internet image doesn't do justice to the lifelike glow of her appearance, or the humanity of her expression. It's amazing how you can walk through a room of painted figures, even some beautifully rendered, but then you suddenly stare at one of them and get the feeling that another soul is staring back.

2. The art at the U.N. is really bad. As longtime readers will know, I'm no fan of socialist realism. But the U.N. walls are covered with Symbolic Murals done largely in that style, depicting muscular Workers, women Pursuing the Arts of Peace, children Displaced By War, etc. Many of the murals require substantial explanation, which I overheard helpful U.N. tour guides providing. (Explanations are also available on the website: "The blue and gold silk tapestry on the walls and in the draperies by the East River windows features the anchor of faith, the growing wheat of hope, and the heart of charity.")

I understand--and in a general sense, agree with--the message of "Food Not Bombs" which the art conveys. But surely the U.N., as an organization, should be committed to the principle that sometimes you need to use the bombs, in order that others may provide the food. (Cf. the wall posters with statistics on military spending--which reminded me of something I'd seen before.) Don't get me wrong; the art at the U.S. Capitol building can be pretty terrible too. But at a certain point, the self-important allegory gets a little top-heavy, especially if the political content is questionable as well.

2004-10-22T00:17:00.000-04:00

The Benlolo Brothers: A reader points out a new development in the Domain Name Registry of America scam I wrote about in July 2003. According to the Globe and Mail (subscription required), the authors of the scam, the Benlolo brothers, have received their just deserts for a different offense:

Pair trade mansions for prison:
Brothers who stole $4-million in scams believe they did nothing wrong

The Globe and Mail
Saturday, October 2, 2004
By Gay Abbate

Alan and Elliot Benlolo were living a good life with their mansions, flashy vehicles and a seemingly endless supply of money. But yesterday, the brothers were forced to exchange their palatial homes for cells in a federal penitentiary, for running two scams that netted them about $4-million.

They were also ordered to pay $2.3-million in fines and restitution.

. . .

The Ontario Superior Court judge sentenced each brother to 42 months in prison for a stock-swap fraud and to three years for their latest venture, a phony telephone invoice venture. They will serve the two sentences concurrently and be eligible for parole after 14 months.

. . .

The stock swap offered investors around the world stock in non-existent microchip companies in 1999 and 2000. The brothers had pleaded guilty in July to being part of a fraudulent international scheme.

For their phone-invoice scheme, they enlisted their younger brother Simon and a friend, Victor Serfaty. They mailed out thousands of phony invoices in 2000, telling small businesses they owed $25.52 for advertising on their yellow-page Internet directory.

Only those reading the fine print would realize the invoice was not real.

. . .

Alan served six months in a United States jail in 1999 for mail fraud. The U.S. government is still trying to collect a $1-million judgment from a civil lawsuit.

2004-10-21T13:48:00.000-04:00

"I, For One, Welcome Our New Robot Underlings": From the Associated Press:

U.N.: Robot Use to Surge Sevenfold by 2007

GENEVA (AP) -- The use of robots around the home to mow lawns, vacuum floors, pull guard duty and perform other chores is set to surge sevenfold by 2007, says a new U.N. survey, which credits dropping prices for the robot boom.

The increase in domestic robots coincides with record orders for industrial robots, the U.N.'s annual World Robotics Survey adds.

. . .

By the end of 2007, some 4.1 million domestic robots will likely be in use, the study says. Vacuum cleaners will still make up the majority, but sales of window-washing and pool-cleaning robots are also set to take off, it predicts.

Hey, as long as they're not eating old people's medicine for food. (The URL itself is also great: "http://nytimes.com/aponline/
international/AP-Robots-Among-Us.html".)

2004-10-18T13:07:00.000-04:00

Making Apologies: Faced with pictures like this, I'm not sure what to say:

One correspondent, however, offers an apology of his own:

Dear Iraqis,

Please accept our apologies for liberating you from a murderous tyrant who gassed civilians, systematically starved his own people, started and lost two wars with neighbors, and became a pariah in the world community.

As a token of our regret, please accept these Baathist thugs and Islamic fundamentalists from Iran and Jordan.

We're so sorry that, if you must know, we're packing up and going home, so France and Germany (who your deposed leader successfully bribed) will cease to be mad at us.

Good luck building a democracy without anyone's help!

Sincerely,

People of the United States

2004-10-12T10:12:00.000-04:00

Cutting-Edge Legal Research: From the Berkeley Technology Law Journal:

"I keep hearing all this talk lately about trolls, and at first I thought, 'I do not need to pay any attention to this, I am from Iowa and we have no trolls there.'"

Mark Janis, Symposium Transcript, 19 Berkeley Tech. L.J. 1053, 1101 (2004).

2004-09-30T11:46:00.000-04:00

News Inflation: The A.P. ran a story a few days ago reporting that oil prices had pushed past $50 a barrel:

RIYADH, Saudi Arabia (AP) -- Saudi Arabia, the world's largest oil exporter, will raise its production capacity by nearly 5 percent to 11 million barrels a day in an attempt to rein in prices that topped $50 a barrel for the first time, the oil ministry said Tuesday. . . .

Word of the decision came as crude oil topped $50 per barrel on Tuesday, pushing past the psychological milestone for the first time.

Traders bid oil over $50 a barrel in Asian trading after the November crude contract settled at a 21-year high of $49.64 on Monday on the New York Mercantile Exchange in a reaction to the slow recovery of U.S. oil production that was damaged by Hurricane Ivan and unrest and terrorism fears in key producers Saudi Arabia, Iraq and Nigeria.

To their credit, in the very last paragraph, they also note that the $50-a-barrel figure (and the talk of a "21-year high") is historically meaningless:

Still, adjusting for inflation, today's prices are still more than $30 a barrel below the level reached in 1981 after the Iranian revolution. Economists also point out that the country is more energy efficient than it was two decades ago -- due to conservation measures taken after prices skyrocketed and because the industrial sector has shrunk dramatically.

This sort of thing has bothered me for a long time. I'm not sure why reporters and editors--who should know better--continue to write breathless articles on large nominal figures (the most expensive hurricane in history, etc.), even when the real figures are completely unexceptional. Or, for that matter, why they repeat claims that the deficit is "the largest in history," when what really matters is deficit as a share of GDP. In many ways, this "news" is only news to people who've never heard about inflation.

I'm sure it makes for good copy, and probably sells more papers than "Deficit Large, But Not Unprecedented." Maybe the news value is in the fact that other people pay attention to nominal values--the "psychological milestone." (But isn't that psychology itself a creature of the media?) And it's also a perennial source of scare headlines, since as inflation continues, virtually any monetary quantity will eventually become "the largest in history." But aren't there some editors out there sufficiently committed to accuracy to keep these non-stories from running?

2004-09-22T17:51:00.000-04:00

Adventures in Contract Enforcement: It all started as an uneventful Halloween. Then Cookie Monster repossessed our television...

On Halloween night in 1991, three Rent-A-Center employees in Utica, N.Y., dressed up, respectively, as the Cookie Monster, a gorilla and an alien life form and knocked on a customer's door. Once inside, they successfully repossessed a home-entertainment system on which payments hadn't been made in almost three months. Gary Gerhardt, the store manager who blessed this plan, calls the ruse "a last-ditch effort," adding, "it was the only way we could think to get someone in the door."

From Alix M. Freedman, A Marketing Giant Uses its Sales Prowess to Profit on Poverty, Wall Street Journal, Sept. 22, 1993, p. A12.

2004-09-22T13:14:00.000-04:00

We Will Not Tolerate a Nuclear Bhutan:Josh notes that Lichtenstein has now ratified the Comprehensive Nuclear Test Ban Treaty, and we can all sleep more soundly. (This presumably comes after that nation's first nuclear test rendered much of the small principality uninhabitable.) A number of nations, such as Cuba and North Korea, have never even signed the treaty. Other non-signatories to the treaty, however, include:

The Bahamas.

Barbados.

Bhutan.

Dominica. (No, not the Dominican Republic, but Dominica. According to its official website, "The youngest island in the Caribbean, erosion has yet to dull the sharpness of her terrain. Beautiful dramatic angles are everywhere. Energetic rivers run vigorously." On nuclear power, perhaps? For why else would the first item under "Things to See & Do" be "Our Boiling Lake"?)

Niue. (Don't believe this one exists? It's not surprising -- the Niue Tourism Office describes it as "undiscovered," "unspoiled," and "unbelievable.")

St. Vincent and the Grenadines.

Tonga.

Trinidad and Tobago.

All in all, I'd say Lichtenstein's the least of our problems. We're looking at the prospect of a nuclear-armed Caribbean any day now. And as Tom Lehrer wrote,

Luxembourg is next to go,
And (who knows?) maybe Monaco.
We'll try to stay serene and calm
When Alabama gets the bomb.

2004-09-19T15:23:00.000-04:00

Thought for the Day: From Hannah Arendt's On Violence:

In a head-on clash between violence and power, the outcome is hardly in doubt. If Gandhi's enormously powerful and successful strategy of nonviolent resistance had met with a different enemy -- Stalin's Russia, Hitler's Germany, even prewar Japan, instead of England -- the outcome would not have been decolonization, but massacre and submission. However, England in India and France in Algeria had good reasons for their restraint. Rule by sheer violence comes into play where power is being lost; it is precisely the shrinking power of the Russian government, internally and externally, that became manifest in its 'solution' to the Czechoslovak problem...

2004-09-18T15:44:00.000-04:00

The Many Perils: I received my renter's insurance policy in the mail this morning, and was surprised to learn of the various "perils" against which my apartment is now protected. I had no idea the world was so perilous a place. Among the standard set -- fire, lightning, theft, windstorm, hail (except for "loss to watercraft") -- I'm also protected against "Explosion," "Vehicles," and "Riot or Civil Commotion, including pillage and looting" (should the Vikings return, and their dragon-prowed ships drop anchor in the port of New Haven).

Another clause offers coverage for damage caused by "Aircraft, including self-propelled missiles and spacecraft." I wonder which Allstate actuary sat down and calculated the chances of damage due to falling spacecraft; yet it's comforting to know, in case I end up with a chunk of Mir sticking out of my apartment, that I'll be insured. (There's no limitation on the spacecraft's initial point of departure, so presumably I'm also protected against any UFOs that should make crash landings in Connecticut. A full-scale alien invasion, of course, would be outside the coverage limit, which does not include "War or warlike acts, including but not limited to insurrection, rebellion or revolution," unless the aliens are sufficiently playful as to be categorized under "Vandalism and Malicious Mischief." I'd also be out of luck if the aliens use their toxic chemicals on us, since the policy does not cover "any bodily injury which results in any manner from the discharge, dispersal, release, or escape of vapors, fumes, acids, toxic chemicals, toxic gases, toxic liquids, toxic solids, waste materials or other irritants, contaminants or pollutants." Unless, of course, "such discharge . . . is sudden and accidental." No comment.)

A few other miscellaneous perils go uncovered, including "Nuclear action, meaning nuclear reaction, discharge, radiation or radioactive contamination," which will not be considered "loss by fire, explosion or smoke." Nor am I protected against "Earth movement of any type, including but not limited to earthquake, volcanic eruption, lava flow, landslide, subsidence, mudflow, pressure, sinkhole, erosion, or the sinking, rising, shifting, creeping (!), expanding, bulging, cracking, settling, or contracting (!!) of the earth." (Damage caused by the expansion or contraction of the universe receives no mention.) Finally, there's no information on whether I'm insured against damage caused by asteroids (unless considered "Falling Objects"), ravenous wolves, monster attacks, or a giant swarm of bees. I'll be on the phone to Allstate first thing Monday morning.

UPDATE: My brother writes to remind me that there's another grave peril Allstate doesn't cover: Robots. Attack by Robots.

2004-09-14T14:27:00.000-04:00

Stranger Than Fiction: At the Weekly Standard, life imitates art.

2004-09-06T17:08:00.000-04:00

The Alchemy of Parental Choice, Part II: Steve Wu comments on the post below, noting the distinction between a voucher program designed to achieve a secular goal (like improving education) and one designed to funnel government money to religious institutions, as an end run around the First Amendment.

I don't know anything about the relevant First Amendment jurisprudence, but on a moral level, I'm not sure what to make of this objection. For one thing, it seems like there will always be some secular goal that could reasonably be advanced by a voucher program. Assume that in a given town, which is overwhelmingly Catholic, there is only one public school and one Catholic school. A voucher program would thus be identical in practice to a direct subsidy of Catholic education. Even then, however, the Catholic school might be very good, with vouchers serving the secular goal of improving education for children; or the inter-school competition might be said to spur improvements in the public school, serving a similar goal; or families may just like the Catholic school better, serving a value-neutral goal of preference satisfaction. Why should it matter if the government intentionally uses the citizens as "middlemen," so long as those citizens remain free to shift their loyalties elsewhere? When governments offer food stamps, are they making their citizens "middlemen" for a subsidy to the food industry? If the parents place great value on a religious education for their children, and if their enhanced options would promote the general welfare, why should we be concerned at their use of facially neutral state aid for a religious purpose?

Of course, it could be claimed that the facial neutrality is irrelevant -- in this two-school thought experiment, it can only be used for religious ends. If the students don't go to religious schools, they lose the money. But then it's worth remembering that in the real world, where there are a wide variety of private schools in even mid-size towns (and where new ones can always be built, should the need arise), the choices will rarely be this stark. In fact, even in our two-school model, there's no reason why those families that prefer secular private education couldn't band together to fund a school of their own. If the demand for such a school is insufficient, that's hardly the fault of the government, which has already done a great deal to help such plans along. (Perhaps the First Amendment concerns rely on a picture of "taking" money from the public schools and "giving" it to the religious ones. The government, however, need not produce education at all in order to provide it. Why not view a voucher policy as a general subsidy for all types of education, with government entities--i.e., the public schools--competing alongside all others who manage to stay in business? Replacing a public-only system with a general-subsidy system could always be justified on secular grounds of utility maximization.) The same analysis would apply if the town possessed no charitable institutions other than the Church; a local tax deduction for charitable contributions would not be rendered illegitimate simply because of insufficient secular demand.

Steve also points out an email by Marv Lederman, who worries that Bush's drug counseling voucher plan may "assert[] the bona fides of religious means of addressing social problems, and . . . structur[e] an aid program precisely in order to facilitate the use of such religious means." Bush, according to Lederman, claims that faith-intensive programs work well, and should be supported for that very reason. I haven't had a chance to read through the cases he cites, but my initial reaction is that such a plan is designed specifically to achieve a secular goal -- namely a reduction in drug use. Bush's argument that religious institutions are more effective for this purpose, if true, would only make it more sensible for the government to allow religiously-inclined drug addicts to seek treatment there. Why should the "instrumental value of religion," if it exists, be off-limits to the recipients of government aid?

2004-08-31T11:11:00.000-04:00

Kerry's 2002 Speech: Finally, a selection from Kerry's speech before voting to authorize the Iraq war in 2002. The whole thing is very long, but I think this is the most important passage. (Analysis of the three speeches below will follow once I have time.)

Let me be clear, the vote I will give to the President is for one reason and one reason only: To disarm Iraq of weapons of mass destruction, if we cannot accomplish that objective through new, tough weapons inspections in joint concert with our allies.

In giving the President this authority, I expect him to fulfill the commitments he has made to the American people in recent days--to work with the United Nations Security Council to adopt a new resolution setting out tough and immediate inspection requirements, and to act with our allies at our side if we have to disarm Saddam Hussein by force. If he fails to do so, I will be among the first to speak out.

If we do wind up going to war with Iraq, it is imperative that we do so with others in the international community, unless there is a showing of a grave, imminent--and I emphasize "imminent"--threat to this country which requires the President to respond in a way that protects our immediate national security needs.

Prime Minister Tony Blair has recognized a similar need to distinguish how we approach this. He has said that he believes we should move in concert with allies, and he has promised his own party that he will not do so otherwise. The administration may not be in the habit of building coalitions, but that is what they need to do. And it is what can be done. If we go it alone without reason, we risk inflaming an entire region, breeding a new generation of terrorists, a new cadre of anti-American zealots, and we will be less secure, not more secure, at the end of the day, even with Saddam Hussein disarmed.

Let there be no doubt or confusion about where we stand on this. I will support a multilateral effort to disarm him by force, if we ever exhaust those other options, as the President has promised, but I will not support a unilateral U.S. war against Iraq unless that threat is imminent and the multilateral effort has not proven possible under any circumstances.

In voting to grant the President the authority, I am not giving him carte blanche to run roughshod over every country that poses or may pose some kind of potential threat to the United States. Every nation has the right to act preemptively, if it faces an imminent and grave threat, for its self-defense under the standards of law. The threat we face today with Iraq does not meet that test yet. I emphasize "yet." Yes, it is grave because of the deadliness of Saddam Hussein's arsenal and the very high probability that he might use these weapons one day if not disarmed. But it is not imminent, and no one in the CIA, no intelligence briefing we have had suggests it is imminent. None of our intelligence reports suggest that he is about to launch an attack.

The argument for going to war against Iraq is rooted in enforcement of the international community's demand that he disarm. It is not rooted in the doctrine of preemption. Nor is the grant of authority in this resolution an acknowledgment that Congress accepts or agrees with the President's new strategic doctrine of preemption. Just the opposite. This resolution clearly limits the authority given to the President to use force in Iraq, and Iraq only, and for the specific purpose of defending the United States against the threat posed by Iraq and enforcing relevant Security Council resolutions.

2004-08-31T10:50:00.000-04:00

Kerry's 1997 Speech: Regarding unilateral and multilateral action; it's long, but worth reading. (No permalink, unfortunately.)

WE MUST BE FIRM WITH SADDAM HUSSEIN (Senate - November 09, 1997)

[105th Congress, Pages S12254-56]

Mr. KERRY. Mr. President, I will speak tomorrow on the subject of fast track. I wish to talk this evening about another subject that has not received as much conversation on the floor of the Senate as it merits--because, while we have been focused on fast track and on a lot of loose ends which must be tied up before this first session of the 105th Congress can be brought to a close, a very troubling situation has developed in the Middle East that has ominous implications, not just for our national security but literally for the security of all civilized and law-abiding areas of the world.

Even after the overwhelming defeat that the coalition forces visited upon Iraq in and near Kuwait in the Desert Storm conflict, Iraqi dictator Saddam Hussein's truculence has continued unabated. In the final days of that conflict, a fateful decision was made not to utterly vanquish the Iraqi Government and armed forces, on the grounds that to do so would leave a risky vacuum, as some then referred to it, in the Middle East which Iran or Syria or other destabilizing elements might move to fill.

But instead of reforming his behavior after he was handed an historic defeat, Saddam Hussein has continued to push international patience to the very edge. The United Nations, even with many member nations which strongly favor commerce over conflict, has established and maintained sanctions designed to isolate Iraq, keep it too weak to threaten other nations, and push Saddam Hussein to abide by accepted norms of national behavior. These sanctions have cost Iraq over $100 billion and have significantly restrained his economy. They unavoidably also have exacted a very high price from the Iraqi people, but this has not appeared to bother Saddam Hussein in the least. Nor have the sanctions succeeded in obtaining acceptable behavior from Saddam.

Now, during the past 2 weeks, Saddam again has raised his obstinately uncooperative profile. We all know of his announcement that he will no longer permit United States citizens to participate in the U.N. inspection team searching Iraq for violations of the U.N. requirement that Iraq not build or store weapons of mass destruction. And he has made good on his announcement. The UNSCOM inspection team, that is, the United Nations Special Commission team, has been refused access to its inspection targets throughout the week and once again today because it has Americans as team members. While it is not certain, it is not unreasonable to assume that Saddam's action may have been precipitated by the fear that the U.N. inspectors were getting uncomfortably close to discovering some caches of reprehensible weapons of mass destruction, or facilities to manufacture them, that many have long feared he is doing everything in his power to build, hide, and hoard.

Another reason may be that Saddam Hussein, who unquestionably has demonstrated a kind of perverse personal resiliency, may be looking at the international landscape and concluding that, just perhaps, support may be waning for the United States's determination to keep him on a short leash via multilateral sanctions and weapons inspections. This latest action may, indeed, be his warped idea of an acid test of that conclusion.

We should all be encouraged by the reactions of many of our allies, who are evincing the same objections to Iraq's course that are prevalent here in the United States. There is an inescapable reality that, after all of the effort of recent years, Saddam Hussein remains the international outlaw he was when he invaded Kuwait. For most of a decade he has set himself outside international law, and he has sought to avoid the efforts of the international community to insist that his nation comport itself with reasonable standards of behavior and, specifically, not equip itself with implements of mass destruction which it has shown the willingness to use in previous conflicts.

Plainly and simply, Saddam Hussein cannot be permitted to get away with his antics, or with this latest excuse for avoidance of international responsibility.

This is especially true when only days earlier, after months of negotiations, the administration extracted some very serious commitments from China, during President Jiang Zemin's state visit to Washington, to halt several types of proliferation activities. It is unthinkable that we and our allies would stand by and permit a renegade such as Saddam Hussein, who has demonstrated a willingness to engage in warfare and ignore the sovereignty of neighboring nations, to engage in activities that we insist be halted by China, Russia, and other nations.

Let me say that I agree with the determination by the administration, at the outset of this development, to take a measured and multilateral approach to this latest provocation. It is of vital importance to let the United Nations first respond to Saddam's actions. After all, those actions are first and foremost an affront to the United Nations and all its membership which has, in a too-rare example of unity in the face of belligerent threats from a rogue State, managed to maintain its determination to keep Iraq isolated via a regime of sanctions and inspections.

I think we should commend the resolve of the Chief U.N. Inspector, UNSCOM head Richard Butler, who has refused to bend or budge in the face of Saddam's intransigence. Again and again he has assembled the inspection team, including the U.S. citizens who are part of it, and presented it to do its work, despite being refused access by Iraq.

He rejected taking the easy way out by asking the U.S. participants simply to step aside until the problem is resolved so that the inspections could go forward. He has painstakingly documented what is occurring, and has filed regular reports to the Security Council. He clearly recognizes this situation to be the matter of vital principle that we believe it to be.

The Security Council correctly wants to resolve this matter if it is possible to do so without plunging into armed conflict, be it great or small. So it sent a negotiating team to Baghdad to try to resolve the dispute and secure appropriate access for UNSCOM's inspection team. To remove a point of possible contention as the negotiators sought to accomplish their mission, the United Nations asked that the U.S. temporarily suspend reconnaissance flights over Iraq that are conducted with our U-2 aircraft under U.N. auspices, and we complied. At that time, in my judgment this was the appropriate and responsible course.

But now we know that Saddam Hussein has chosen to blow off the negotiating team entirely. It has returned emptyhanded to report to the Security Council tomorrow. That is why I have come to the floor this evening to speak about this matter, to express what I think is the feeling of many Senators and other Americans as the Security Council convenes tomorrow.

We must recognize that there is no indication that Saddam Hussein has any intention of relenting. So we have an obligation of enormous consequence, an obligation to guarantee that Saddam Hussein cannot ignore the United Nations. He cannot be permitted to go unobserved and unimpeded toward his horrific objective of amassing a stockpile of weapons of mass destruction. This is not a matter about which there should be any debate whatsoever in the Security Council, or, certainly, in this Nation. If he remains obdurate, I believe that the United Nations must take, and should authorize immediately, whatever steps are necessary to force him to relent--and that the United States should support and participate in those steps.

The suspended reconnaissance flights should be resumed beginning tomorrow, and it is my understanding they will be. Should Saddam be so foolish as to take any action intended to endanger those aircraft or interrupt their mission, then we should, and I am confident we will, be prepared to take the necessary actions to either eliminate that threat before it can be realized, or take actions of retribution.

When it meets tomorrow to receive the negotiators' report and to determine its future course of action, it is vital that the Security Council treat this situation as seriously as it warrants.

In my judgment, the Security Council should authorize a strong U.N. military response that will materially damage, if not totally destroy, as much as possible of the suspected infrastructure for developing and manufacturing weapons of mass destruction, as well as key military command and control nodes. Saddam Hussein should pay a grave price, in a currency that he understands and values, for his unacceptable behavior.

This should not be a strike consisting only of a handful of cruise missiles hitting isolated targets primarily of presumed symbolic value. But how long this military action might continue and how it may escalate should Saddam remain intransigent and how extensive would be its reach are for the Security Council and our allies to know and for Saddam Hussein ultimately to find out.

Of course, Mr. President, the greatest care must be taken to reduce collateral damage to the maximum extent possible, despite the fact that Saddam Hussein cynically and cold-heartedly has made that a difficult challenge by ringing most high-value military targets with civilians.

As the Security Council confronts this, I believe it is important for it to keep prominently in mind the main objective we all should have, which is maintaining an effective, thorough, competent inspection process that will locate and unveil any covert prohibited weapons activity underway in Iraq . If an inspection process acceptable to the United States and the rest of the Security Council can be rapidly reinstituted, it might be possible to vitiate military action.

Should the resolve of our allies wane to pursue this matter until an acceptable inspection process has been reinstituted--which I hope will not occur and which I am pleased to say at this moment does not seem to have even begun--the United States must not lose its resolve to take action. But I think there is strong reason to believe that the multilateral resolve will persist.

To date, there have been nine material breaches by Iraq of U.N. requirements. The United Nations has directed some form of responsive action in five of those nine cases, and I believe it will do so in this case.

The job of the administration in the next 24 hours and in the days to follow is to effectively present the case that this is not just an insidious challenge to U.N. authority. It is a threat to peace and to long-term stability in the tinder-dry atmosphere of the Middle East, and it is an unaffordable affront to international norms of decent and acceptable national behavior.

We must not presume that these conclusions automatically will be accepted by every one of our allies, some of which have different interests both in the region and elsewhere, or will be of the same degree of concern to them that they are to the U.S. But it is my belief that we have the ability to persuade them of how serious this is and that the U.N. must not be diverted or bullied.

The reality, Mr. President, is that Saddam Hussein has intentionally or inadvertently set up a test which the entire world will be watching, and if he gets away with this arrogant ploy, he will have terminated a most important multilateral effort to defuse a legitimate threat to global security--to defuse it by tying the hands of a rogue who thinks nothing of ordering widespread, indiscriminate death and destruction in pursuit of power.

If he succeeds, he also will have overwhelmed the willingness of the world's leading nations to enforce a principle on which all agree: that a nation should not be permitted to grossly violate even rudimentary standards of national behavior in ways that threaten the sovereignty and well-being of other nations and their people.

I believe that we should aspire to higher standards of international behavior than Saddam Hussein has offered us, and the enforcement action of the United Nations pursues such a higher standard.

We know from our largely unsuccessful attempts to enlist the cooperation of other nations, especially industrialized trading nations, in efforts to impose and enforce somewhat more ambitious standards on nations such as Iran, China, Burma, and Syria that the willingness of most other nations--including a number who are joined in the sanctions to isolate Iraq--is neither wide nor deep to join in imposing sanctions on a sovereign nation to spur it to `clean up its act' and comport its actions with accepted international norms. It would be a monumental tragedy to see such willingness evaporate in one place where so far it has survived and arguably succeeded to date, especially at a time when it is being subjected to such a critical test as that which Iraq presents.

In a more practical vein, Mr. President, I submit that the old adage `pay now or pay later' applies perfectly in this situation. If Saddam Hussein is permitted to go about his effort to build weapons of mass destruction and to avoid the accountability of the United Nations, we will surely reap a confrontation of greater consequence in the future. The Security Council and the United States obviously have to think seriously and soberly about the plausible scenarios that could play out if he were permitted to continue his weapons development work after shutting out U.N. inspectors.

There can be little or no question that Saddam has no compunctions about using the most reprehensible weapons--on civilians as readily as on military forces. He has used poison gas against Iranian troops and civilians in the Iran-Iraq border conflict. He has launched Scud missiles against Israel and against coalition troops based in Saudi Arabia during the gulf war.

It is not possible to overstate the ominous implications for the Middle East if Saddam were to develop and successfully militarize and deploy potent biological weapons. We can all imagine the consequences. Extremely small quantities of several known biological weapons have the capability to exterminate the entire population of cities the size of Tel Aviv or Jerusalem. These could be delivered by ballistic missile, but they also could be delivered by much more pedestrian means; aerosol applicators on commercial trucks easily could suffice. If Saddam were to develop and then deploy usable atomic weapons, the same holds true.

Were he to do either, much less both, the entire balance of power in the Middle East changes fundamentally, raising geometrically the already sky-high risk of conflagration in the region. His ability to bluff and bully would soar. The willingness of those nations which participated in the gulf war coalition to confront him again if he takes a course of expansionism or adventurism may be greatly diminished if they believe that their own citizens would be threatened directly by such weapons of mass destruction.

The posture of Saudi Arabia, in particular, could be dramatically altered in such a situation. Saudi Arabia, of course, was absolutely indispensable as a staging and basing area for Desert Storm which dislodged Saddam's troops from Kuwait, and it remains one of the two or three most important locations of U.S. bases in the Middle East.

Were its willingness to serve in these respects to diminish or vanish because of the ability of Saddam to brandish these weapons, then the ability of the United Nations or remnants of the gulf war coalition, or even the United States acting alone, to confront and halt Iraqi aggression would be gravely damaged.

Were Israel to find itself under constant threat of potent biological or nuclear attack, the current low threshold for armed conflict in the Middle East that easily could escalate into a world-threatening inferno would become even more of a hair trigger.

Indeed, one can easily anticipate that Israel would find even the prospect of such a situation entirely untenable and unacceptable and would take preemptive military action. Such action would, at the very least, totally derail the Middle East peace process which is already at risk. It could draw new geopolitical lines in the sand, with the possibility of Arab nations which have been willing to oppose Saddam's extreme actions either moving into a pan-Arab column supporting him against Israel and its allies or, at least, becoming neutral.

Either course would significantly alter the region's balance of power and make the preservation and advancement of U.S. national security objectives in the region unattainable--and would tremendously increase the risk that our Nation, our young people, ultimately would be sucked into yet another military conflict, this time without the warning time and the staging area that enabled Desert Storm to have such little cost in U.S. and other allied troop casualties.

Finally, we must consider the ultimate nightmare. Surely, if Saddam's efforts are permitted to continue unabated, we will eventually face more aggression by Saddam, quite conceivably including an attack on Israel, or on other nations in the region as he seeks predominance within the Arab community. If he has such weapons, his attack is likely to employ weapons of unspeakable and indiscriminate destructiveness and torturous effects on civilians and military alike. What that would unleash is simply too horrendous to contemplate, but the United States inevitably would be drawn into that conflict.

Mr. President, I could explore other possible ominous consequences of letting Saddam Hussein proceed unchecked. The possible scenarios I have referenced really are only the most obvious possibilities. What is vital is that Americans understand, and that the Security Council understand, that there is no good outcome possible if he is permitted to do anything other than acquiesce to continuation of U.N. inspections.

As the world's only current superpower, we have the enormous responsibility not to exhibit arrogance, not to take any unwitting or unnecessary risks, and not to employ armed force casually. But at the same time it is our responsibility not to shy away from those confrontations that really matter in the long run. And this matters in the long run.

While our actions should be thoughtfully and carefully determined and structured, while we should always seek to use peaceful and diplomatic means to resolve serious problems before resorting to force, and while we should always seek to take significant international actions on a multilateral rather than a unilateral basis whenever that is possible, if in the final analysis we face what we truly believe to be a grave threat to the well-being of our Nation or the entire world and it cannot be removed peacefully, we must have the courage to do what we believe is right and wise.

I believe this is such a situation, Mr. President. It is a time for resolve. Tomorrow we must make that clear to the Security Council and to the world.

I yield back the balance of my time.

2004-08-31T10:40:00.000-04:00

Kerry's 1991 Speech: Taking a break from thesis-editing, I decided to look up a few of Kerry's actual statements. Here's his speech from 1991 on the Persian Gulf War. I couldn't get a permalink from THOMAS, but here's the text, highlighting certain passages of note.

AUTHORIZING USE OF U.S. ARMED FORCES PURSUANT TO U.N. SECURITY COUNCIL RESOLUTION (Senate - January 12, 1991)

[102nd Congress, Page S396]

Mr. KERRY. Mr. President, I do not believe our Nation is prepared for war. But I am absolutely convinced our Nation does not believe that war is necessary. Nevertheless, this body may vote momentarily to permit it.

When I returned from Vietnam, I wrote then I was willing personally, in the future, to fight and possibly die for my country. But I said then it must be when the Nation as a whole has decided that there is a real threat and that the Nation as a whole has decided that we all must go.

I do not believe this test has been met. There is no consensus in America for war and, therefore, the Congress should not vote to authorize war.

If we go to war in the next few days, it will not be because our immediate vital interests are so threatened and we have no other choice. It is not because of nuclear, chemical, biological weapons when, after all, Saddam Hussein had all those abilities or was working toward them for years--even while we armed him and refused to hold him accountable for using some of them. It will be because we set an artificial deadline. As we know, those who have been in war, there is no artificial wound, no artificial consequence of war.

Most important, we must balance that against the fact that we have an alternative, an alternative that would allow us to kick Saddam Hussein out of Kuwait, an accomplishment that we all want to achieve.

I still believe that notwithstanding the outcome of this vote, we can have a peaceful resolution. I think it most likely. If we do, for a long time, people will argue in America about whether this vote made it possible.

Many of us will always remain convinced that a similar result could have come about without such a high-risk high-stakes throw away of our constitutional power.

If not, if we do go to war, for years people will ask why Congress gave in. They will ask why there was such a rush to so much death and destruction when it did not have to happen.

It does not have to happen if we do our job.

So I ask my colleagues if we are really once again so willing to have our young and our innocent bear the price of our impatience.

I personally believe, and I have heard countless of my colleagues say, that they think the President made a mistake to unilaterally increase troops, set a date and make war so probable. I ask my colleagues if we are once again so willing to risk people dying from a mistake.

2004-08-31T10:38:00.000-04:00

Thoughts on the RNC: Picking up where Josh left off, I concur on the admiration of McCain's speech and the dislike of Giuliani's. The statements of the 9/11 relatives were incredibly powerful, reminding us of the preciousness of those lives that were lost. And then Rudy followed with a poorly-organized collection of red meat and laugh lines.

A second thought: both McCain and Giuliani described the remaining mission in Iraq in terms of democracy promotion. Even the ineloquent woman from Iowa interviewed by Ray Suarez on PBS emphasized "freedom" as the message of the GOP, at home and abroad. Have the neocons succeeded at capturing the heart and soul of the party (I hope so), or, as Josh suggested, is their rhetoric just better?

The pool game and convention-watching followed a long discussion that evening about Kerry, who thus far has been maddeningly vague about what his foreign policy intentions are. I write this as someone who agrees with many of Bush's foreign policy goals, but is very frustrated with the administration's record in implementing them. (To my mind, some of the most dangerous consequences of failure in Iraq are that it would (1) equate democracy with chaos in the minds of millions in the Middle East; (2) discredit the cause of humanitarian intervention elsewhere, creating a sense that "nobody wants to do this again"; (3) destroy the credibility of our intelligence, so that no one will believe us when someone actually has WMD; and (4) make it impossible, while we're tied down, to pose any real threat to adversaries like Iran or North Korea.)

The war is very important to me, and I'd feel happier voting for Kerry if I thought he'd conduct it better. I'm glad that someone on Kerry's team worries a lot about suitcase nukes; I'm glad that they're at least trying to outflank Bush on the right. In fact, that's what the military-friendly convention was designed to show -- that "we want the same things Bush wants, but we'll do it better."

But frankly, I don't know whether to believe him. Since 9/11, Kerry has tried to have it both ways on some very important questions. I think the line that "he voted against the $87 billion" is in some ways unfair; people vote for amended bills and against the final versions all the time. But his vote came at a time when a lot of people just didn't want to spend the extra money, and when it actually wasn't clear whether Bush would have enough support to get the aid package through. Other candidates, such as Gephardt, took the political risk, and paid the price. And Kerry's "firehouses in Baghdad" line, which Christopher Hitchens rightly excoriates, doesn't give me much confidence.

In some ways, I agree with Andrew Sullivan's description of the Democrats as a war party with the wrong general. Joe Lieberman--who, as far as I know, never went to Vietnam--could make the arguments Kerry's making and be believed; he's been out in front on democratizing the Middle East for a long time. He would have been able to focus the debate on the administration's competence, and not its goals, which are far easier to defend. But Lieberman, in the Bizarro World in which he gets elected, would also have had a mandate to finish the job in Iraq, to stay the course until we can build a stable and democratic government. It's hard to know just what Kerry's mandate would look like, or what the political pressures on his administration would be, especially now that he's expressed a desire to bring some troops home after six months. (Which is, incidentally, one of the worst things he could have said before the election. How committed to the mission will our troops be, if they know they're only marking time? How many terrorist groups will step up their attacks in month five, knowing that they don't have long to wait? It's like Sonny Corleone spilling the beans in front of Sollozzo -- "Never let anyone outside the family know what you're thinking again!")

The main pressure on a President Kerry would come from the left, especially if his unrealistic expectations on allied help aren't met. (There won't be a single French soldier stationed in Falluja anytime soon, regardless of who's in the White House.) And the reactive, rather than proactive, tone of his convention speech--as well as his explicit endorsement of stability over democracy in Iraq--makes me worry that he might be ready to cut things short.

Maybe this is the wrong way to look at things; maybe a more restrained foreign policy would be more achievable, and better serve American interests. Perhaps George Will is right to say that some things are beyond our power, and we just aren't strong enough to remake the Middle East. Perhaps we can, as so many European commentators have urged us to, just accept living in a world with a little less security.

But then I read about two more busloads of murder victims in Israel, and I'm not ready to "accept" that yet. If we're too weak to remake the Middle East, let's at least find out by trying. I wish I knew if Kerry feels the same way.

2004-08-26T09:45:00.000-04:00

The Alchemy of Parental Choice: Dalia Lithwick, whose work I generally enjoy, has the following curious passage in a recent NYT guest column:

To be sure, the courts have made a hash of the First Amendment religion jurisprudence. A crèche on government property is constitutional so long as the manger includes a Malibu Barbie; and state aid to religious schools is constitutional if it's triangulated through the alchemy of parental choice.

I can't comment on crèche law, but what's so occult and mysterious about "the alchemy of parental choice"? The fact that parents do the choosing makes an enormous (and obvious) difference. The left has generally resisted attempts to micromanage the lives of the poor, arguing that recipients of public aid should be allowed the dignity of making their own decisions. Those who receive a government check could choose to spend it, in Robert Nozick's formulation, "on going to the movies, or on candy bars, or on copies of Dissent magazine, or of Monthly Review." So why not on religious education? We don't prohibit parents from using their tax cuts to pay for Sunday school, even though the state would be prohibited from paying for it directly. We don't prevent the elderly from endorsing their Social Security checks to the Salvation Army--nor, as I've mentioned before, do we stop welfare recipients from donating to religious charities, lest taxpayer dollars somehow find their way into the collection plate.

In the context of education, those parents who can't afford private school (and who would be the target of any likely voucher plan) might wish to send their children to Catholic schools or yeshivas; schools with strict discipline or hippy classes taught under trees; schools that emphasize science, the arts, or ancient Greek. So long as all of them meet basic educational standards, why should the state be concerned with which they choose? And why should the First Amendment be endangered, given that the choice is made by individuals rather than state officials?

The concern Lithwick feels, to paraphrase George Will, seems to be that the poor are insufficiently materialistic. If parents wanted to give their kids candy bars, they're free to choose; but if they want to give them religion, suddenly it's alchemy.

2004-08-26T08:59:00.000-04:00

Lapham's Clairvoyance, Part II: (See original post above.) Harper's Magazine has decided to take Eugene Volokh's advice and post a correction to its website:

Lewis Lapham responds:

As Mr. Ostrowski properly notes, the rhetorical invention was silly. The mistake, however, is a serious one, and if I'd had my wits about me as an editor, I wouldn't have let the author mix up his tenses in manuscript or allowed him in page proof to lapse into poetic license. Both of us regret the injury done to the magazine and apologize, wholeheartedly, to its readers.

Apology accepted -- but am I the only one who finds the causal explanation for this error a little thin? The issue is the poetic license, not the verb tenses, and it speaks to a certain willingness to let political preconceptions stand in for facts. (And couldn't Lapham have done without the conceit of treating the "author" and "editor" as separate persons, given that he was both?)

2004-08-25T10:21:00.000-04:00

Lapham's Clairvoyance: Josh Chafetz asks how Lewis Lapham's invented account of what he heard and thought during the Republican National Convention (which hasn't yet taken place) is different from anything Jayson Blair or Stephen Glass came up with. I agree, but I also wonder how the passage, which is obviously false to any attentive reader, could possibly have gotten through Harper's editorial process. True, Lapham may be the editor of Harper's (and thus harder to fire than Jayson Blair). But surely someone looks at his copy before it prints. Did the copy editors forget that the RNC hasn't happened yet, or did they realize it was false and let it go?

Eugene Volokh was told on the phone that the magazine recognized its error and would be printing an explanation in October. But I'm not quite sure what a reasonable explanation would be. Lapham specifically recounts thoughts he supposedly had during the convention--something that can't just be a grammar mistake. Perhaps the article wasn't actually meant to go to press? Or the readers just weren't meant to catch it?

2004-08-25T10:19:00.000-04:00

Cats! How the mighty have fallen. Steve Wu is resorting to catblogging. (The real question is, can they do the Cat Meow Boogie?)

2004-08-25T10:18:00.000-04:00

Now in New Haven: After the longest hiatus in this blog's short history, I've returned to posting, after moving from St. Louis to New Haven to start law school. After a week in a sparsely furnished apartment, I now have a desk to type on -- as well as broadband Internet access, thanks to the handily unsecured wireless network of someone in my apartment building. Posting will be light as the moving process continues, but at least there won't be total silence.

2004-07-29T16:38:00.000-04:00

A Good-Timin' Man: In my last few days in Oxford, my friend Rhett introduced me to the music of country legend Waylon Jennings. It's just terrific -- there's a foot-stomping joy in each song that I hadn't heard in a while. You can listen for the nuggets of earthy wisdom in "Luckenbach, Texas (Back to the Basics of Love)":

The only two things in life that make it worth livin'
Is guitars that tune good and firm-feelin' women

Or for the grasp of human character in "Good-Hearted Woman":

She's a good-hearted woman in love with a good-timin' man
She loves him in spite of his ways she don't understand
Through teardrops and laughter they pass through this world hand in hand
A good-hearted woman, lovin' her good-timin man

He likes the bright lights and night life and good-timin' friends
When the party's all over she'll welcome him back home again
Lord knows she don't understand him but she does the best that she can
This good-hearted woman lovin' a good timin' man

Or just for the fun of singing along with Waylon and Willie Nelson in "Mamas, Don't Let Your Babies Grow Up to be Cowboys":

Cowboys like smokey old pool rooms and clear mountain mornings
Little warm puppies and children and girls of the night.
Them that don't know him won't like him and them that do
Sometimes won't know how to take him.
He ain't wrong, he's just different, but his pride won't let him
Do things to make you think he's right.

Mamas, don't let your babies grow up to be cowboys.
Don't let 'em pick guitars or drive them old trucks.
Let 'em be doctors and lawyers and such.
Mamas, don't let your babies grow up to be cowboys.
'Cause they'll never stay home and they're always alone.
Even with someone they love.

If you see Josh and me on the New Haven Green next year, playing croquet, drinking Pimm's, and belting out "Mamas, don't let your babies grow up to cowboys!", now you'll know why.

2004-07-29T16:37:00.000-04:00

Back in Town: Just returned to St. Louis, with two long years in the United Kingdom now behind me. It was a very unusual feeling, on the ride to Heathrow, when I realized that I was no longer coming back for a visit -- I was coming home. I won't try to sum up my Oxford experience in a single post, but I can say that although I wasn't looking forward to leaving, I'm definitely glad to be back.

It does seem like a lot's changed in the past two years, though, and some of the changes weren't entirely expected. (Like the triumph of Atkins: when I got lunch today at a local sandwich shop, I noticed that they were selling "low-carb bread.") The next few weeks will be pretty busy, but I'll try to keep posting now and then, before I head up to New Haven and change location yet again...

2004-07-20T07:17:00.000-04:00

Collective Responsibility: From Thom Ringer:

You've been cited! See footnote #1. Apologies if I have sent this to you already. It's being considered for publication in J.Soc.Pol.Thought.

http://users.ox.ac.uk/~ball1843/
mphil/papers/jspot_submission.pdf

As I replied to Thom, "Woo hoo! Fame and fortune await."

Thom's very interesting article examines the collective responsibility of group actors, such as corporations or states; it critiques three different approaches before ultimately recommending a fourth. I'll describe the approaches here before adding my own thoughts.

The first view considered is the "mereological view" (MV), which finds its name in what he calls "Sachs' Question" (from a discussion we once had): "Aren't collectives just mereological sums"--the simple aggregates--"of their constituent members?" On this view, the idea of collective action is just a convenient shorthand for the related actions of lots of different individuals. These individuals may have certain expectations, practices, voluntary rules of conduct, etc., and it may be useful sometimes to describe the group as a single actor. But when a collective is said to have acted, nothing occurs over and above a bundle of individual actions. For instance, if we say that "The Army destroyed the bridge," nothing occurred over and above a complex bundle of actions by individual soldiers and officers, which together brought about the bridge's destruction. Thus, when a collective is said to be responsible for a given event, no moral responsibility can be assigned over and above that assigned to various individuals. In the example of the bridge, there are a large number of soldiers who are responsible for helping destroy it, but no separate entity called "The Army" which bears a new kind of collective responsibility.

The second view is the "official conglomerate view" (OCV), which views collective responsibility and individual responsibility as very different things. According to OCV, collectives are groups of individuals that possess "goal-oriented decision-making procedures" which allow them to declare and act upon collective intentions, which are separate from the intentions of the constituent individuals. (For instance, if the Joint Chiefs of Staff decide to destroy the bridge, this desire doesn't need to be shared by all--or even most--of those in the ranks to be considered a collective intention of the military.) According to OCV, collectives can be held responsible for their actions and intentions, in a manner distinct from how we hold individuals responsible for what they do within this framework of collective action.

The third view is the "social wholes view" (SWV), which does not view collectives as groups of individuals at all. Instead, collectives are "non-additive aggregates" of their constituent individuals--the whole is more than the mereological sum of the parts. On this view, a state or corporation is indeed something over and above all the individuals who compose it. It has an independent existence, not merely as a binding framework for coordinated action (as in OCV) or an unstructured bundle of individuals; it adopts a Rousseauian general will that can be entirely distinct from the will of all. The group can act 'on its own,' in a sense, and thus may deserve collective praise or blame for its collective actions.

Finally, Ringer offers, if not a full-fledged account of collective responsibility, a necessary condition for it. A group may properly be described as a collective actor, he claims, only if it is an "epistemic agent" concerning the outcome of its actions. Members of collectives may bear collective responsibility "when they act with a singularity of belief and knowledge about their action such that they can be said to have collectively intended the same outcome." Where such common beliefs are absent, we cannot consider the group to be a true collective; but where they are shared, we can honestly hold the group responsible as a group for its collective actions.

---

If these issues interest you, I'd encourage you to read Thom's paper, which I've thought about a good deal since he sent it to me. Otherwise, I'd stop reading now, since what follows won't make any sense at all.

Unfortunately, as the putative defender of the mereological view :), I wonder whether the position Thom criticizes isn't actually something of a straw man. To my mind, MV is far more sophisticated and reasonable than it might appear. Moreover, after rejecting the social wholes view and the official conglomerate view, there's not much else left -- not because there aren't any logical alternatives, which there are, but because the motivations behind the rejections of these views don't allow anything short of a full commitment to MV. I'd respectfully argue that the approach Thom suggests in his conclusion is in fact a version of MV, which appreciates some of the benefits that it possesses and that the cruder interpretation may lack. (I've sent a version of what follows to Thom, but thought I'd post it here as well.)

I. The argument against MV

Thom's criticism of MV is that it is "thin" and "inauthentic" as an account of collective action. As an example, he uses Tuomela's case of a full-blown intentional joint action (IJA). In this case, a group of individuals embark on a joint action aware of each other's intentions--and, more importantly, cognizant of this common awareness. Clearly, our moral evaluation of an individual actor

cannot be completely separated from their ... knowledge or speculation about the actions of other participants. To understand the significance of what they did, we have to understand how their intentions were supervened upon by [or themselves supervene on] what they believed or had been led to believe about the actions of other parties. The proponents of MV appear to conflate physical coincidence and epistemic coordination; a superior account, as the examples suggest, will have to say something meaningful about the latter.

I agree fully that an account of collective responsibility must take account of such factors in order to be plausible. Yet I'd also contend that the same condition must be met by plausible accounts of individual responsibility, completely outside of the context of collective action. If Joe purposefully holds down Sam's legs, so that Sam will be unable to escape from a rolling boulder, we can easily assign Joe individual moral responsibility for Sam's death; there is no question of collective responsibility here. Yet if Joe is an innocent bystander who is thrown out of a window and unintentionally falls on Sam's legs, temporarily pinning them to the ground, his moral responsibility is much reduced. The merely physical description of the action is not sufficient to determine our moral evaluation; we need some description of the relevant intentions as well.

Given this background, I see no reason at all why MV cannot, in its moral evaluation of joint actions, take similar account of the intentions, desires, beliefs, states of mind, etc. of those involved. The mere process of "cashing out" collective actions into mereological sums does nothing to eliminate intention. Consider the example Thom provides of "two people raising their glasses" <--> "a toast". Suppose that two people have recently emigrated from a land where the practice of toasting is unknown. After seeing the couples at the tables around them lift their wine glasses, however, the immigrants also raise theirs to the light, in order (as they assume the others have done) to better search for floating insects. This event certainly should not be described as a toast, but the reason has nothing to do with any conglomerate interpretation of toasting. (The idea of a goal-oriented decision-making procedure here would be absurd.) Rather, this is not "a toast" simply because "a toast" requires a common intention to participate in a certain social practice, an intention lacking in the present example. Even after we cash out a supposedly collective action--nothing has occurred here over and above the actions of two individuals--those individuals' intentions and states of mind can still be relevant.

If this last statement is true of mere descriptive accounts (e.g., of a toast), it is even more true of normative accounts. Contra Tuomela, MV has no trouble whatsoever in cases of full-blown intentional joint actions. These would be cashed out into a complex bundle of individual acts, each of which would take place with an intention that depends in a certain way on the intentions of others. (In fact, Tuomela's definition of an IJA constitutes such a cashing-out.) The individual actions of one participant in an IJA could be individually evaluated, if necessary, and this evaluation would quite correctly make reference to their intentions given their beliefs about the actions of others. What makes the collective-action shorthand particularly useful in such situations is that all the parties to an IJA are similarly situated from the standpoint of moral evaluation. We can easily assign moral responsibility to Joe if he purposefully holds down Sam's legs, with the intention that Lucille may then inject Sam with poison. Physically, Joe may have done nothing worse than hold down Sam's legs for a few moments; morally, he quite obviously shares responsibility for the murder, having known in advance what effect his actions would have. The situation is not radically changed if Lucille were aware of Joe's intentions, or if they had discussed the plan for the murder beforehand. Thus, there is no difficulty in asserting that "Joe and Lucille murdered Sam," even though we do not think that anything has occurred beyond the confluence of individual actions, appropriately described. We might think that such pre-meditated, coordinated action is worse than mere awareness of the other's intentions (conspiracy to murder is also a crime), but that does not mean it cannot be cashed out in individual terms. The concept of "collective responsibility" may be convenient in describing such phenomena, especially when the IJA itself is more complicated and involves many participants, but one does not need to invoke a new kind of responsibility or a new kind of entity (such as a collective) to bear it.

More importantly, this understanding of the MV also allows us to explain why we are reluctant to assign moral responsibility to an individual who lacks the requisite intentions, despite his or her participation in a joint act. (I use "intentions" as a catchall phrase, without meaning to require an active will to harm. For instance, if Officer Winky is aware of Joe and Lucille's murder plot, but is indifferent to the outcome and so walks whistling by the scene of the crime, she clearly bears some responsibility for failing to intervene and save Sam's life.) Where these intentions are absent, certain judgments of responsibility should be withheld. MV would not assign responsibility to Joe had he been thrown out of a window and fallen on Sam, pinning his legs to the ground while Lucille injected the poison. Nor would it necessarily assign the same kind of responsibility to Joe if he had been led to believe (with a given level of justification) that Sam was an epileptic who must be restrained during his seizure, and that Lucille was a paramedic injecting Sam with lifesaving medication. (Nor, again, if Joe and Lucille actually were paramedics, and the needles had been switched at the last minute by a nefarious fourth party.) Far from "conflat[ing] physical coincidence and epistemic coordination," MV is perfectly capable of distinguishing the two, and of properly allocating responsibility.

II. The lessons of the alternatives (OCV & SWV)

As I understand it, MV relies on two underlying assumptions:

(1) Ontological individualism: collectives are not ontologically distinct entities from their members. Collectives are constructs. Propositions about collectives are really just shorthand for complicated bundles of propositions about their members.
(2) A Kantian approach to moral evaluation: whether it is appropriate to assign moral praise, blame, or responsibility (of any kind) to individuals depends only on their own voluntary actions, intentions, desires, beliefs, states of mind, etc.

I would infer from Thom's various arguments that he accepts (1) as a metaphysical premise. Certainly it is an appropriate description, as Tuomela notes, of various joint actors such as spontaneous mobs or fluid terrorist cells. (When Qaddafi donated arms to the IRA, he became complicit in their campaigns of terror without becoming the member of any social whole.)

Additionally, I would infer that Thom also accepts (2) in making assignments of responsibility. He criticizes SWV on the grounds that it would overwhelm any relation between responsibility and individual action. (Are babies, or the unconscious, in any way responsible for the current actions of their governments? Yet they make up a part of the social whole.) The criticisms of OCV similarly focus on the unjust assignment of responsibility (good or bad) to those who took no part in the decision-making process for a rule-governed action. The actions of Hugh Thompson, who airlifted civilians at My Lai to safety, would surely seem to exempt him from some degree of collective responsibility. The same could be true of low-level functionaries in Saddam's Iraq who might have collected taxes to support the regime, not merely "under orders" (like Eichmann) but out of personal fear. As Thom notes,

Grudging rulefollowers, particularly those who, in following collective rules, do great harm to others, are morally culpable. But I would argue that they are not morally culpable in the same way as those who enthusiastically followed the collective rules for a single, nefariously focused purpose. It may be that the 'grudgers' are as blameworthy as the 'enthusiastic conformists,' but this is not at all the same as saying that it makes sense to lump both groups together as if they acted collectively and with a singularity of intention.

The only rationale I can see for distinguishing these two cases is that the grudging rulefollowers possess different beliefs or purposes from the enthusiastic participants, and that it would be wrong to hold them responsible in the same way when the requisite intentions are missing.

Of course, these two positions only show that moral evaluation depends in part on intention, not that intentions, states of mind, etc. are the only grounds for assigning responsibility. Yet it seems difficult to explain why some forms of responsibility (call them "individual") may only be assigned given the requisite intentions or beliefs, while others (call them "collective") may be radically independent of our own voluntary actions. What distinguishes the latter types of responsibility from the former? When can an individually blameless person be held collectively responsible?

I can think of only three types of cases where collective responsibility might usefully be distinguished from individual moral evaluation. The first type is collective legal responsibility, such as that of a corporation which faces strict liability for (say) the environmental damage caused by its pollution. This doctrine, however, is quite separate from a doctrine of collective moral responsibility, since legal liability could be assigned, even to blameless individuals, for reasons that have nothing to do with the moral evaluation of a particular case. (For instance, we might want to give the right incentives for due dilligence to future polluters, and thus still hold responsible those who had no scientific reason to fear that the chemicals they emitted might be toxic.)

The second type might be called "corporate" responsibility, where the voluntary members of an institution can be expected to share in the praise or blame it incurs through its coordinated actions. If Coca-Cola violates a contract with a supplier, we think it entirely proper that the money for damages come from the corporate treasury, rather than from the pocket of the person who ordered the contract violation. This is true not only for legal or societal reasons (the incentive effects mentioned above), but also because the institution exists in part in order to be used as a contractual agent. The shareholders, who are the ultimate owners of the corporate treasury, have agreed to bind up their fortunes and entrust them to the managers; they have, in a sense, willingly signed up for a share of responsibility in what comes next. (Such a position might be called a "social-whole-ish" view, given that individuals have agreed to be treated as if they were constituent parts of a given whole.) Even a director who fought the decision before the Board, who campaigned against it at the annual meeting, who has done all an individual could reasonably be expected to do in order to prevent the violation, can have no claim of injustice when, due to the decisions of other shareholders (for which she is blameless), the value of her stock is decreased.

Finally, the third type might be called "unavoidable" corporate responsibility. The model I have in mind here is that of a state, such as the U.S., accepting responsibility for the actions of its officers -- such as by making reparation payments to those forced into Japanese internment camps during World War II. Here again, we think it proper that the money for reparations come from America, from the general taxpayer, rather than from the pocket of those who supported, voted for, or implemented the policy. ("It is America that incarcerated them," one might think, "and America should pay the price.") Yet I would argue that this judgment is more guided by prudence than by morality. Why should someone who emigrated to the U.S. 50 years after the fact, and in ignorance of the World War II-era actions of the government (say, as an illiterate young refugee from genocide), be taxed in order to pay for the misdeeds of prior generations? Assume that it were possible to identify, with perfect certainty, all those who had supported, contributed to, campaigned for, implemented, or just were knowingly indifferent to and accepted the immoral policy; assume further that all of them were still alive, and that they could afford (as a group) the cost of the reparations. Wouldn't it be obviously better to punish only those individuals, according to the degree of their individual responsibility? And wouldn't it be obviously worse to punish, given our perfect knowledge, the young refugee, or the saintly human-rights activist who had taken every morally acceptable measure to prevent the internment camps from being built? (In fact, thinking in terms of moral praise and blame, wouldn't it be just bizarre to place any kind of blame, collective or otherwise, on the refugee? If there is no ontologically distinct entity known as "America" that can be the proper object of blame, then when we say that "America must take the blame," aren't we really just making a complicated assignment of blame to a large number of (perhaps unknown) individual Americans?)

A social-contract theorist might dispute this view, by comparing the state with the corporation in the previous example -- as an institution that one consents, even if only tacitly, to join and defend. (This may be, for instance, why those who take pride in their country -- which no one is forced to do -- sometimes feel as if they should also accept responsibility for its actions. An Iraqi who despised the Ba'athist regime would feel no such compunctions.) But if one does not view these obligations as having been consented to, and if one does not view the nation-state as an ontological social whole, what could possibly be achieved by punishing the blameless in this state of perfect knowledge? Finally, if it is only our lack of knowledge (or the inconvenient death or impoverishment of those responsible) that justifies the use of the general treasury, then this sense that "America must pay the price" does not reveal any new form of responsibility. It is only because of our ignorance and our mortality, not our moral commitments, that the innocent must share the burden.

Thus, unless some additional model for collective responsibility can be found, I can see no reason to saddle the innocent with any form of responsibility that is indifferent to the moral quality of their actions. Whatever Kantian intuitions we might possess against the existence of moral luck should lead us to reject such a notion of collective responsibility which is not reducible to the responsibility of various individuals, or which has not been voluntarily accepted by them. I'm well aware that many people accept the notion of moral luck in theory, and have no difficulty with assigning moral praise or blame to individuals for events entirely beyond their control. Yet without a well-grounded account of why individuals should accept responsibility for particular kinds of moral luck, even when they might have done all they reasonably could to avoid them, assignments of collective guilt to the individually innocent will always appear arbitrary and unjust.

Let's go back to the two claims from the beginning of this section:

(1) Ontological individualism: collectives are not ontologically distinct entities from their members. Collectives are constructs. Propositions about collectives are really just shorthand for complicated bundles of propositions about their members.
(2) A Kantian approach to moral evaluation: whether it is appropriate to assign moral praise, blame, or responsibility (of any kind) to individuals depends only on their own voluntary actions, intentions, desires, beliefs, states of mind, etc.

These assumptions imply that no process of collective organization can impute responsibility to those who are free of such responsibility in their own voluntary actions and intentions. Any attempt to add circumstances under which the innocent can be held responsible, "collectively" or otherwise (e.g., if they are part of a decision-making process, as in the OCV) will fail. A collective is responsible if and only if its members are. As a result, I would contend, these two claims entail a third:

(3) Moral individualism: the only entities that can be assigned moral praise, blame, or responsibility are individuals. Moral statements about collectives are really just shorthand for complicated bundles of such statements about their members. In other words, the mereological view is true.

III. The suggested alternative

At the end of Thom'spaper, he suggests that the key element of collective responsibility is "collective epistemic agency"; that joint actions only entail collective responsibility when the individuals act "with a singularity of belief and knowledge about their action such that they can be said to have collectively intended the same outcome." Thus, the naive chemical engineer, unaware of the deadly uses to which her work will be put, does not share in the same degree of collective responsibility as the rapacious corporate managers who delight in selling weapons to murderous regimes.

Such an account of collective action is very reasonable, but would raise two issues in light of the previous discussion. First, what is the difference between such acts and the full-blown IJAs described by Tuomela? It would seem that if the group were not displaying collective epistemic agency, then it could not be an IJA, for then someone in the group would fail to share the intentions or relevant beliefs of another. And similarly, if the act were not an IJA, it would seem that the condition of collective epistemic agency -- the "singularity of belief and knowledge about their action" -- would be absent. (Perhaps an exception can be found in the case of individuals who intend the same outcome by their actions, but have no knowledge of each other. For instance, suppose there were two independent gunmen on two different grassy knolls, each intending the same outcome and having the exact same beliefs -- such as the belief that "I am the only assassin here." Yet it would seem that the resulting (over-determined) murder is not a case of "collective" action unless they are sufficiently aware of each other's plans; the gunmen might each be guilty of murder, but not of conspiracy thereto.)

Second, if there are no distinctions between acts displaying collective epistemic agency and those that can be described as IJAs, why is the conclusion not merely an endorsement of the mereological view? As argued above, MV can easily accommodate IJAs, because they provide an easy case in which every individual's actions are subject to similar moral evaluation. What is meant by asserting that a group engaged in an IJA has "collective responsibility," over and above the fact that each member already bears a clear individual responsibility for the result? If no one can be collectively responsible without also being individually responsible -- indeed, if the degree of collective responsibility must always be proportionate to that of individual responsibility -- why not accept that the former is merely a convenient means of expressing the latter?

The mereological view is committed to interpreting the actions of collectives as complex bundles of the actions of individuals. In doing so, however, it need not ignore those individuals' beliefs, intentions, desires, or states of mind; indeed, that is why the bundles are often so complex. Accepting such an interpretation on a metaphysical level, and refusing to accept the allocation of praise and blame independent of individual desert, entails a commitment to individualized moral assessment -- to assigning responsibility only to individuals, and not tarring them with their fellows' misdeeds (or praising them for their fellows' wisdom). Our strong intuitive resistance to arbitrary or unjust assignments of responsibility should push us towards a view where individuals are only as responsible as they deserve to be; or, in other words, to the mereological view.

2004-07-18T06:43:00.000-04:00

Harry Potter and the Running Dogs of Capitalism: Rarely have I read something this dumb in a major U.S. publication. I assume the NYT printed it in large part for its humor value; but how did it ever get into Le Monde?

New York Times
July 18, 2004

Harry Potter, Market Wiz
By ILIAS YOCARIS

The success of the Harry Potter series has provoked a lively discussion among French literary theorists about the novels' underlying message and the structure of Harry's school, Poudlard (Hogwarts). This article, which appeared last month in the French daily Le Monde, got particular attention, including an essay published in response arguing that Harry is an antiglobalist crusader.

Oh, well, ok. So long as he's an antiglobalist crusader, his pro-market leanings can be forgiven.

NICE, France -- With the Harry Potter series, J. K. Rowling has enchanted the world: the reader is drawn into a magical universe of flying cars, spells that make its victims spew slugs, trees that give blows, books that bite, elf servants, portraits that argue and dragons with pointed tails.

On the face of it, the world of Harry Potter has nothing in common with our own. Nothing at all, except one detail: like ours, the fantastic universe of Harry Potter is a capitalist universe.

Hmm. I'd thought that the universe of Harry Potter was our universe, just with the addition of a whole magical world alongside it (of which we Muggles are sadly unaware). Like ours, it contained bravery, racism, schoolyard rivalries, the grief of losing one's parents, and the vital importance of friendship. But I guess it's really all about capitalism.

Hogwarts is a private sorcery school, and its director constantly has to battle against the state as represented, essentially, by the inept minister of Magic, Cornelius Fudge; the ridiculous bureaucrat Percy Weasley; and the odious inspector Dolores Umbridge.

Heavens! Private property and institutions in a fantasy novel? What is this, a children's version of Atlas Shrugged?

They'll be calling for the collectivization of the Shire next -- and we all know how that worked out.

True, there are moments when the fifth book (Harry Potter and the Order of the Phoenix) reads like a polemic against state control of the educational system. But Yocaris unfortunately ignores the heavily statist message of the Quidditch World Cup, whose teams are divided along national lines. Why should wizards and witches base their commitments on the shifting political constructs of the non-magical world? Why should nationalism sow seeds of discord among within this truly international and liberatory movement? (I've often wondered about the politics of the wizard world: did the German team split in two during the Cold War? Did the East Germans still cast testosterone spells on their women's teams? And the witches of Ulster, where do their loyalties lie?)

The apprentice sorcerers are also consumers who dream of acquiring all sorts of high-tech magical objects, like high performance wands or the latest brand-name flying brooms, manufactured by multinational corporations. Hogwarts, then, is not only a school, but also a market: subject to an incessant advertising onslaught, the students are never as happy as when they can spend their money in the boutiques near the school.

I didn't know the Firebolt was multinational -- and I thought wands were manufactured by a weird guy in a single shop in London. (But who sanded down the wood, and inserted the unicorn hairs and phoenix feathers? The workers, I tell you!)

There is all sorts of bartering between students, and the author heavily emphasizes the possibility of social success for young people who enrich themselves thanks to trade in magical products.

Two lessons here:
1) Allowing schoolkids to trade different flavors of candy (as in Bertie Botts' Every-Flavor Beans) is immoral and wrong; and
2) So is social mobility.

The tableau is completed by the ritual complaints about the rigidity and incompetence of bureaucrats. Their mediocrity is starkly contrasted with the inventiveness and audacity of some entrepreneurs, whom Ms. Rowling never ceases to praise. For example, Bill Weasley, who works for the goblin bank Gringotts, is presented as the opposite of his brother, Percy the bureaucrat. The first is young, dynamic and creative, and wears clothes that "would not have looked out of place at a rock concert"; the second is unintelligent, obtuse, limited and devoted to state regulation, his career's masterpiece being a report on the standards for the thicknesses of cauldrons.

We have, then, an invasion of neoliberal stereotypes in a fairy tale. The fictional universe of Harry Potter offers a caricature of the excesses of the Anglo-Saxon social model: under a veneer of regimentation and traditional rituals, Hogwarts is a pitiless jungle where competition, violence and the cult of winning run riot.

Indeed, Rowling's vision is relentlessly meritocratic: it champions those such as Hermione, who are able to achieve despite their low-caste Muggle origins. Yocaris, along with the Malfoys, would undoubtedly prefer a world where such wizards knew their place, and where the authority of the political classes went unquestioned. (The same goes for other creatures as well: "freeing" house-elves from servanthood only exposes them to wage slavery!)

The psychological conditioning of the apprentice sorcerers is clearly based on a culture of confrontation: competition among students to be prefect; competition among Hogwarts "houses" to win points; competition among sorcery schools to win the Goblet of Fire; and, ultimately, the bloody competition between the forces of Good and Evil.

If only one could just get along with the murderers of innocents, instead of always trying to compete with them. Wouldn't it be better if we just tried to meet their insane demands for absolute power halfway?

This permanent state of war ends up redefining the role of institutions: faced with ever-more violent conflicts, they are no longer able to protect individuals against the menaces that they face everywhere. The minister of magic fails pitifully in his combat against Evil, and the regulatory constraints of school life hinder Harry and his friends in defending themselves against the attacks and provocations that they constantly encounter.

Here we see the real problem with the fight against Voldemort; it ends up undermining institutions. (I almost wrote "international institutions" there -- I wonder why.) Indeed, most of Harry's battles are really pre-emptive strikes; before the fourth book, Voldemort hadn't even taken on physical form, much less done anything to attack him! (Other than kill his parents, and refuse to declare his basilisk stockpiles. But those don't represent a casus belli.)

The apprentice sorcerers are thus alone in their struggle to survive in a hostile milieu, and the weakest, like Harry's schoolmate Cedric Diggory, are inexorably eliminated.

Before we accuse Rowling of crude Social Darwinism, we might ask whether the "eliminat[ion]" of Cedric Diggory is presented as a good thing. ("[R]emember what happened to a boy who was good, and kind, and brave, because he strayed across the path of Lord Voldemort.") Into the dustbin of history, Cedric!

These circumstances influence the education given the young students of Hogwarts. The only disciplines that matter are those that can give students an immediately exploitable practical knowledge that can help them in their battle to survive.

That's not astonishing, considering how this prestigious school aims to form, above all, graduates who can compete in the job market and fight against Evil. Artistic subjects are thus absent from Hogwarts's curriculum, and the teaching of social sciences is considered of little value: the students have only some tedious courses of history. It's very revealing that Harry finds them "as boring as Percy's reports cauldron-bottom report." In other words, in the cultural universe of Harry Potter, social sciences are as useless and obsolete as state regulation.

Hogwarts' curriculum has long been a source of confusion. Does anyone take foreign languages at Hogwarts? Do they have professional-ethics classes on the use of memory charms? And wouldn't wizard economics be even more important when some have the power to create goods ex nihilo?

Let's face it: Hogwarts is a trade school. It exists, not to promote the higher things in life, but merely as a training grounds to help students not get killed by evil warlocks. How bourgeois! How Anglo-Saxon!

Harry Potter, probably unintentionally, thus appears as a summary of the social and educational aims of neoliberal capitalism.

Probably unintentionally. Let's not go out on a limb here.

Like Orwellian totalitarianism, this capitalism tries to fashion not only the real world, but also the imagination of consumer-citizens.

No, what's really Orwellian is the surveillance system adopted by the Ministry to catch unapproved magic use. Think about it -- they monitor Harry for extra-curricular magic use 24 hours a day. He can't even turn his aunt into a balloon without attracting the notice of the state! (And if any Muggles see it, the wizards erase their minds...)

Even more concerningly, this surveillance system seems completely unable to catch Voldemort or other bad actors when they employ unapproved magic of their own. So the Ministry focuses its vast intelligence apparatus, not on the real terrorists, but on the children. The children.

The underlying message to young fans is this: You can imagine as many fictional worlds, parallel universes or educational systems as you want, they will still all be regulated by the laws of the market. Given the success of the Harry Potter series, several generations of young people will be indelibly marked by this lesson.

Indeed, Yocaris has identified a disturbing trend in children's literature. Just think about it:

Narnia -- a crypto-Christian allegory, marketed to impressionable secular minds.

Ender's Game -- relentlessly individualistic and competitive.

Lord of the Rings -- status-obsessed, feudal, and bellicose; allows Farmer Maggot his "own" farm. (Those mushrooms were stolen from the people!)

The Berenstein Bears -- endorses bourgeois family structure, solidifies socially-constructed gender roles.

The Phantom Tollbooth -- the very notion of "tolls" implies the personal possession of currency.

Ilias Yocaris is a professor of literary theory and French literature at the University Institute of Teacher Training in Nice. This article was translated by The Times from the French.

'Nuff said.

2004-07-12T17:59:00.000-04:00

Defending Saddam: From a recent post on The Corner:

An e-mail: "I'm a law school student working at the London office of a mega American law firm... A firmwide email was just sent out requesting volunteers who could help with the Saddam defence. Disgusted and appalled, I was hoping you might know whom I should contact if I want to volunteer with Saddam's prosecution."

I know it's often argued that even guilty defendants have a right to counsel, and that the system needs defense lawyers there to keep the prosecution honest. But neither of these claims presents a reason why any particular lawyer (who has not undertaken such responsibilities as a public defender), should exert effort to keep a horrible murderer out of jail. To my mind, regardless of the law, the moral right to counsel is only a right to be represented by a counselor who agrees to represent you; it would not justify the conscription of a defense lawyer off the streets.

In fact, is it really that great a loss if someone has no access to counsel, not because they're poor, but because all other lawyers have refused on moral grounds? Say that someone is caught red-handed by police, as well as by surveillance cameras and CNN News, in the act of mercilessly beating to death a small child. The defendant, who is not mentally incompetent, relishes the publicity a trial will bring (in the hopes of a future book deal) and insists on pleading not guilty and claiming actual innocence. If no other lawyer could take the case in good conscience, would you, as the last lawyer on earth, be obliged to act as his or her zealous advocate? Would you be obliged to tell the jury, "He didn't do it"?

It seems to me that the need to "keep the system working" is ultimately a slippery-slope argument, alleging that if the prosecution isn't kept honest, an innocent person in a future trial might face a greater risk of conviction. But there are a lot of lawyers in the world, and in almost any case where there's a chance of actual innocence--or even where the client is guilty, but there's been serious police misconduct--somebody would be willing to work for pay. As a result, the situation described, where everyone refuses to take a legitimate case on purely moral grounds, thus seems sufficiently unlikely as to be irrelevant to whether the system works or fails. In other words, this slope doesn't slip.

On a different note, I think it's worth questioning how the lawyers who take these cases are allocating their time. It's not like Saddam is lacking in defense lawyers, which his family's stolen billions can easily pay for. The high-profile defendants whose lawyers make the news are hardly the neediest of clients; as Josh pointed out when we discussed the issue today, O.J. Simpson was not exactly impoverished. Normally I think that acts of charity shouldn't be looked down upon simply because some other act might have been more productive. But if you're going to volunteer your time in an effort to keep someone out of jail, aren't there people in this world far more deserving than a vicious tyrant, and far less likely to receive aid? One of Saddam's lawyers, Curtis Doebbler, has previously represented Sudanese refugees from genocide and written articles on behalf of Egyptian intellectual and human-rights activist Said Eddin Ibrahim. Why, then, spend one's limited time and resources in an effort to free someone who has notoriously committed genocides, or murdered dissenters like Ibrahim left and right?

2004-07-12T17:56:00.000-04:00

The Long Silence: I know I haven't been posting too regularly, but I've been pretty busy recently. Last weekend I went to Barcelona with Josh, which was fantastic. Since then, back in frigid and raining England, I've been working pretty hard on revising my thesis on the medieval law merchant. Occasional posts will, however, continue in the meanwhile...

2004-07-01T21:12:00.000-04:00

Saddam as Hostage: Every time you think the Guardian can't sink any lower, they manage to surprise you. Here's a recent and appalling cartoon by Steve Bell:

Arbitrarily capturing and decapitating innocents; affording a murderous dictator a fair trial. Mr. Bell doesn't see any difference. Do you?

Meanwhile, on the print side, repellent MP George Galloway refers to Saddam's trial as a "show trial," a "rigged trial being carried out by criminals." He writes:

These people who are described as the "government" of Iraq are no such thing, and it follows that any judge they appoint is entirely illegitimate. These people are hand-picked puppets, stooges of the American occupation. Their judges are the puppets' puppets, the stooge's stooge. So there can be little doubt that it will be exactly what the Americans have decided it will be.

Funny, I don't remember Galloway complaining that the "government" of Syria is no such thing, or that its officials are stooges of the Assad regime. Yet Iraq's U.N.-recognized government is the one of the most broadly-based in the Arab world, and will be facing elections no later than Jan. 31. I also don't remember reading a single word of Galloway's column that expresses any joy that the dictator is now answering for his crimes--no surprise, given that he's one of Saddam's most persistent defenders.

Were British politics always this sick?

2004-06-30T04:29:00.000-04:00

The Eurocentric Left: Earlier this month, an email circulated around Oxford asking students to participate in a "World Rally Against Torture." The email was universal in scope, calling for "a day of popular rallies in every city of every country in the world," in order "to demonstrate our anger and to demand [that] all Nations respect the Geneva Convention." On the website, however, the examples of torture chosen (and translated into three languages) betrayed, shall we say, a certain bias:

WORLD RALLY AGAINST TORTURE
SPONTANEOUS SOCIAL MOVEMENT

After the tortures of the Inquisition during the Middle Ages, Nazi and Stalinist tortures, tortures in Algeria, and now in Afghanistan, Iraq, Guantanamo Bay… The time has come for everyone who believes in Human Dignity to take a stand!

Hmm... What could all of these things have in common? The skin color of the perpetrators, perhaps?

I've written before on the dangers of ignoring oppression when it fails to fit the typical racial/colonial narrative, but this takes the cake. Does any serious person really think that the worst cases of torture in the world right now are going on in Guantanamo Bay? (Or, given that the examples date back to the Middle Ages, that torture only became an issue in Iraq after Saddam fell?) If this really is a demand for protests "in every city of every country in the world," maybe the organizers ought to show a little more concern for those unfortunate enough to be tortured by people who aren't white.

2004-06-26T11:01:00.000-04:00

FIFA, Kenya, and Iraq: Those following the Euro Cup might have missed some developments elsewhere in the soccer world. Early this June, Kenya was suspended from international play by the governing body FIFA. The Kenyan Football Federation (KFF), which oversees Kenyan soccer, had been accused along with its top officials of corruption and financial mismanagement. When the government dissolved the KFF and replaced it with a new interim body, FIFA criticized the "blatant interference in local football affairs" and suspended Kenya indefinitely. FIFA also condemned the arrest of three KFF officials on corruption charges; the officials were later released on bond.

Now, maybe these officials' prosecutions were politically motivated, and maybe FIFA has performed a noble service by protecting the unjustly accused. (Those same officials are now threatening to boycott FIFA's attempts at mediation.) Still, it's odd that the international sporting world would leap to the defense of an allegedly corrupt football federation, amid facts that are very unclear, when it was perfectly satisfied with the well-documented torture and humiliation of players in Saddam's Iraq.

The Iraqi national soccer team recently qualified for the 2004 Olympics, and according to Reuters, FIFA officials have an explanation for that success:

The United States-led invasion of Iraq and its bloody aftermath may even have contributed to those successes, according to a senior FIFA development official.

"Maybe if the Iraqis were not facing these difficult obstacles, they would not have achieved all this success," Paul Mony told Reuters.

"The war gave them reason to try harder and also prompted help from countries like England, Germany, Italy, United States, as well as FIFA. This help would not have been forthcoming had they not been in trouble."

Of course, the athletes themselves offer a different explanation:

Captain Hussam Fawzi said in London that the team, once run by Saddam's feared son Uday, were glad to put the past behind them.

"(The past is) something that's horrible and a dark cloud over all the Iraqi players," Fawzi told a news conference on Tuesday.

"Athletes should not go through this -- they were tortured, they were imprisoned."

Uday, who with his brother Qusay was killed in a battle with American soldiers in the northern Iraqi city of Mosul last July, ran the team, as well as the national Olympic Committee, and was known to physically punish underperforming players.

Let's see what this "physically punish" could mean:

Soccer Players Describe Torture by Hussein's Son
(May 6, 2003)

By JOHN F. BURNS
The New York Times

BAGHDAD, Iraq — It was little surprise that Habib Jaafer, star midfielder of the Iraqi national soccer team for the past 17 years, stiffened as he approached the National Olympic Committee.

...

His fear is understandable. This building was equipped with torture contraptions that included a sarcophagus, with long nails pointing inward from every surface, including the lid, so victims could be punctured and suffocated.

Another device, witnesses said, was a metal framework designed to clamp over a prisoner's body, with footrests at the bottom, rings at the shoulders and attachment points for power cables, so the victim could be hoisted and subjected to electric shocks.

After the Olympic building burned, reporters visiting the ruins found the sarcophagus with nails abandoned out back, as if dragged there by the looters who emptied the building of its furniture before it burned.

...

After drawing or losing games, players were punished. A missed penalty or other poor play entailed a ritual head shaving at the Stadium of the People, or being spat on by Uday's bodyguards.

A series of poor passes, carefully counted, could result in a player's being forced to stand before the president's son in the dressing room, hands at his side, while he was punched or slapped in the face an equal number of times.

But those were the lesser miseries. Some players endured long periods in a military prison, beaten on their backs with electric cables until blood flowed. Other punishments included "matches" kicking concrete balls around the prison yard in 130-degree heat, and 12-hour sessions of push-ups, sprints and other fitness drills, wearing heavy military fatigues and boots.

The Paul Mony who made such innocent comments to Reuters is, in fact, the same person who visited Iraq in 1997 to investigate these allegations. After speaking only to players Uday allowed him to speak to, and seeing what Uday allowed him to see, he concluded (surprise, surprise) that there was no torture of soccer players in Iraq. From ESPN, writing in December 2002:

He looked. He saw nothing. He exonerated.

But one of the two FIFA officials who cleared Iraq of allegations that soccer players were tortured in 1997 says he does not doubt the credibility of other Iraqi athletes who are now coming forward with more allegations of abuse.

"I can't say they are lying," said Rustum Baker, a FIFA representative from Qatar. "I just didn't see anything."

Baker and Paul Mony Samuel, a soccer official from Malaysia, spent two days in Baghdad in the service of FIFA, which had responded to reports that some players were punished after Iraq lost a World Cup qualifying game to Kazakhstan in 1997. They talked to Iraqi soccer officials and coaches, and some but not all -- 12 -- of the players. None of them said they were tortured, and the investigators examined them for physical evidence of abuse.

Their findings from the two-day investigation have been ridiculed by Iraqi athletes and other exiles familiar with the consequences for speaking out in the police state.

"Do they think a player inside Iraq has the guts and capability to talk against Uday?" said Entifadh Qanbar, who runs the Washington office of the Iraqi National Congress, a coalition of opposition groups. "They should know better. That's like going to streets of Chicago in the 1930s and asking the shop owners, 'Do you like Al Capone?' "

When asked if he thought players had the ability to tell him the truth, Baker said: "We're supposed to respect all people. We cannot say that they couldn't tell us the truth."

Sharar Haydar, who played for the Iraqi national team at the time, says he missed that game with injury and was not interviewed by FIFA officials. But he says players were, in fact, tortured after that game. He expects more players on that team to come forward if Saddam Hussein is removed from power.

The International Olympic Committee hardly fared better when investigating claims of torture. Here's their response to a complaint filed in 2002:

IOC president Jacques Rogge acknowledged last week that his organization received the complaint and says it is in the hands of the ethics committee. But IOC member Richard Pound says that it is "important to remember these are just allegations, and you have to make sure this is not all tied to the Iraq-U.S. dispute, that we are not being used for propaganda. You just never know."

"That disgusts me that someone would say that," says Haydar, the former soccer star. "I wish they would run their hands over our scars, see the pain in our eyes and float in raw sewage. Then there would be no questions."

"The problem for the IOC is going to be when Saddam is overthrown and people walk into the Olympic headquarters and see the torture chamber and the blood on the floor," Forrest says. "What will they say then?"

Well, it's already happened, but there haven't been too many apologies. An interview with FIFA's Paul Mony in Malaysia, his country of origin, notes his role as an investigator but makes no mention of his indifference to a horrific decade of torture. The gushing Reuters report quoted above notes that Mony is still active in Iraq, protecting his former Baathist pals:

Firm action from Iraqi officials and FIFA, which resisted U.S. pressure to prevent supporters of Saddam's toppled Baath party from standing for IFA elections, has aided the rejuvenation of the beautiful game in Iraq.

The U.S. administration had expressed concern about interim committee president Hussein Saeed, one of the driving forces behind Iraq's recent success.

Before the war, Saeed served as vice president of the IFA under Uday.

"Hussein Saeed is one of the most popular soccer personalities in Iraq. He did a lot of work after the war to make sure Iraq's top players continued to play in competitive matches," said Mony.

Funny, Saeed also seems remarkably quick to put the past behind him:

Hussein Saeed, assistant secretary-general of Iraq's Olympic Committee, has said athletes should forget the past.

"We put this period behind us and say let bygones be bygones. Let us start a new direction," said Saeed, a former soccer player who was Odai's deputy.

So let's get this straight. Beat your players with electric cables, or imprison them in a sarcophagus full of nails, and FIFA might eventually launch a half-hearted investigation. But arrest an official for allegedly mishandling funds, and FIFA will have your head by morning. Glad to know the sports world hasn't lost its sense of shame.

2004-06-25T20:02:00.000-04:00

The Senate 0wnZ j00! One of the things I learned as an intern for the House Judiciary Democrats is that members of Congress can reserve specific numbers for the bills they introduce. (Thus, Dick Armey's 2001 tax reform bill was numbered H.R. 1040.)

A suggestion by Steve Wu led to the following discovery. Sen. Maria Cantwell (D-Wash.) has been described as "one of the most tech-savvy candidates," and was "one of the first 10 employees of Real Networks." Which raises the question: during the 107th Congress, when she introduced this bill, was she consciously seeking to raise a generation of 1337 h4X0rZ?

2004-06-25T19:43:00.000-04:00

Wow. I can think of no words appropriate to describe this story:

Moonie leader 'crowned' in Senate

Republicans and Democrats attend cult blessing ceremony

Julian Borger in Washington
Thursday June 24, 2004
The Guardian

The US Senate was used for a bizarre ritual in which the Rev Sun Myung Moon, the head of the Unification church, was "crowned" and declared himself the messiah in the presence of more than a dozen Republican and Democratic members of Congress, it was reported yesterday.

"Emperors, kings and presidents ... have declared to all heaven and Earth that Reverend Sun Myung Moon is none other than humanity's saviour, messiah, returning Lord and true parent," the 85-year-old Korean "Moonie" cult leader told several hundred guests at the meeting in one of the Senate's office buildings on March 23, according to the Washington Post.

He also claimed endorsement from Marx, Lenin, Stalin and Hitler, who had all been reformed and reborn through his church's teachings - an idiosyncratic version of Christianity which rejects the use of the cross as a symbol and denounces homosexuals as "dirty dung-eating dogs".

An account of the ceremony was first published by a Washington investigative journalist, John Gorenfeld.

According to a transcript of the event, Mr Moon declared: "I am God's ambassador, sent to Earth with his full authority. I am sent to accomplish his command to save the world's six billion people, restoring them to Heaven with the original goodness in which they were created."

...

An Illinois congressman, Danny Davis, wore white gloves and carried a purple cushion bearing a medieval-style "international crown of peace", which was placed on Mr Moon's head, at an event at which 100 Americans from 50 states were also given lesser "national" and "state" peace awards.

The event was an "innocent ceremony," Mr Davis told the Guardian. "It was a banquet to give out awards. I didn't have any way of knowing Reverend Moon would say he was the messiah, or whatever he said."

Mr Davis acknowledged that "three or four individuals directly related to Rev Moon" took part in a fund-raiser for his primary campaign in Illinois earlier this year, but said small sums of money were involved.

Other members of Congress who attended the event said they had been fooled into going by being told only that people from their constituencies would be honoured at the ceremony.

A spokeswoman for a Democratic senator from Minnesota, Mark Dayton, said: "We fell victim to it. We were duped."

It was unclear who gave permission for the Senate office building to be used.

2004-06-18T10:39:00.000-04:00

Sentimental Education: I've recently begun reading fiction again. Apart from the odd novel or two over a vacation, it's something I haven't done seriously in years, and I thought that Trinity Term, with exams looming over my head, was the perfect time to start. On the recommendation of a friend, I began with Flaubert's Sentimental Education. As I read the first chapter, I began to laugh out loud, as it reminded me so vividly of my own middle school crushes and adolescent thoughts. It was humbling to find some of the same emotions I had felt in earlier life, which I had naively assumed to be of my own invention, described so accurately in someone else's hundred-year-old novel:

But Frederic soon made his way back to the awning where Madame Arnoux had also returned. She was reading a slim volume in a grey binding. From time to time the corners of her mouth would twitch and her face light up with pleasure. Frederic felt jealous of this man who'd thought up these things which seemed to be interesting her....

On the right was a broad plain, on the left grazing land rising gently up towards a hill with vineyards and walnut trees and a mill set amidst greenery; little paths zigzagged up the pale rock to the skyline. How wonderful to walk up there together side by side with his arm round her waist while her skirt swept over the yellow leaves, listening to the sound of her voice, basking in the radiance of her eyes! The boat might stop, they'd only have to go ashore; yet stopping the sun would have been easier.

The passage above is from another translation, since I've already lent my copy away, and it doesn't do justice to the dry, flat, objective, merciless tone Flaubert adopts toward all of his characters. Scenes are sculpted with a scalpel's precision, and all the base elements of the human character are openly put on display. (When Frederic shares some of his poetry with a friend, Flaubert notes that the poems were "admired," but "he did not ask for more.") There are no entirely honorable people in this novel, no one from whom the reader can take inspiration--except, perhaps, for Madame Arnoux herself, which makes me wonder whether Flaubert did not bear an even deeper love for her than did Frederic.

Over the course of the novel, though--and especially in its heartwrenchingly placid final chapter--I noticed echoes of another set of thoughts I had considered my own. The novel explores a powerful conflict between its characters' youthful ideals and the contingencies of human life. Flaubert's characters are overwhelmed by events; not merely the tumults of 1848, the great tides that sweep through all France, but the twists and turns of individual experience. Frederic never controls his fate; he is merely subject to it. Offers, rejections, inheritances, duels, proposals of marriage, pregnancies--all are things that happen to him, and his life is determined by their all-important timing. I've written before on the awfulness of contingency, but Flaubert provides a clear example of its effect on a person's character. Deprived of agency, Frederic weakens. Trapped in a web of conflicting loyalties, he becomes unable to live up to his ideals, or even to convince anyone that he still holds them; and eventually--dishonest to his lovers, indifferent to his child--they are corrupted beyond recognition. The same occurs on a larger scale with the failure of Deslauriers' political dreams, and he ends as cynical and as disillusioned as, perhaps, all of France under Napoleon III.

In fact, by the end of the novel, it is not even clear whether Frederic has indeed been educated. Unlike the many authors who would be tempted to praise youthful idealism, regardless of its effects, Flaubert offers no palliative; the friends' reminiscences of the days of their youth are all the more painful and hollow given what has passed. Once in a long while, we encounter old men whose lives serve as a warning to us, examples we should fear to emulate. Flaubert's novel derives its great power by telling the story of an education every reader would surely wish to avoid.

2004-06-18T10:37:00.000-04:00

What Site Logs Will Tell You: SteveSachs -- your front-page Google result for "superogatory sex"! (I wonder whether neoterric.cc.purdue.edu found whatever he or she was looking for -- or the person at Enterprise Rent-A-Car who was searching for "missouri prostitution laws"...)

2004-06-18T10:24:00.000-04:00

Apologies Again: Got back Wednesday from a week in the U.S. Semi-regular posting will now resume.

2004-06-08T06:21:00.000-04:00

Freedom! From Oxford exams. Some much-delayed posting to follow in the next few days.

UPDATE: Thanks, Josh.

2004-06-01T06:16:00.000-04:00

Treason, Schmeason: While thinking about the case of Jose Padilla, the U.S. citizen classified as an "enemy combatant" by the Bush administration, I started to examine the limits placed by the U.S. Constitution on the crime of treason. The Article III, sec. 3 definition of treason reads as follows:

c. 1. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

c. 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

These provisions were clearly intended to limit the power of the new government to punish political offenses, compared to contemporary abuses in England. But suppose that Congress were to establish a new crime called "schmeason," which consists in exactly the same conduct as treason and carries exactly the same penalties. Thus, schmeason would serve as a perfect substitute for treason from a prosecutor's perspective. Does the Constitution, then, require a confession or the testimony of two witnesses before the defendant's conduct is judged to be schmeasonous? And could forfeiture or Corruption of Blood result from an Attainder of Schmeason?

For those committed to an "original intent" view of constitutional interpretation, it would seem that Congress can't evade the intent of the founders simply by changing the name of the crime. It's a purely linguistic change, which can't expand the power of Congress beyond what the Constitution offers. For example, in the Bill of Rights, could Congress escape the Fifth Amendment prohibition of double jeopardy by creating a dozen identical offenses to cover each fact pattern (so that no one would be accused of "the same offense" twice)? Or could it make an end run around the Third Amendment protections against quartering soldiers in peacetime by creating a new category of non-soldier "civil defense personnel"? Surely Congress should not be able to amend the Constitution simply by choosing its language with care. And surely whatever purpose the founders might have had in restricting the penalties and procedures of a treason conviction would be entirely vitiated by a law against schmeason.

Yet consider what the result would be if the new crime had instead been called "enemy-combatant-ness." The case of Jose Padilla, a U.S. citizen arrested on U.S. soil and held by the military as an enemy combatant, makes this question no longer academic. The constitutional description of treason is exactly what Padilla is accused of doing -- levying war against the United States, or adhering to its enemies, giving them aid and comfort. In fact, this conduct seems to be the very definition of an enemy combatant. How, then, could it be constitutional to try or imprison Padilla without the testimony of two witnesses, or a confession in open court?

When I raised this issue with Josh Chafetz last Friday night (a discussion far less exciting, perhaps, than our earlier musings on pornography, prostitution, and asset valuation), he argued that Congress could create a separate crime of schmeason, and that other crimes--say, espionage--might cover similar fact patterns but lack treason's protections. Under the English common law, treason was an extraordinary crime, with connotations far beyond those of a run-of-the-mill felony. That's the reason why the penalty clause prohibits the use of "Corruption of Blood" or forfeiture of the family's possessions. Thus, the framers might have had reason to limit the applicability of this terrible crime, without necessarily intending to prevent Congress from punishing similar acts by other means.

I don't necessarily subscribe to an original intent interpretation, nor am I an expert on the treason clause. But the two strands of argument seem to be in tension to me, and given that most supporters of original intent tend to be more conservative (and thus generally more likely to support a Republican administration's policies), I'd be interested in learning if anyone has addressed the conflict head on.

(One further issue -- the Article III definition includes "adhering to their Enemies," where "their" refers to the enemies of the United States. This raises a further question, which as far as I know has not been tested: what's an enemy? What if I give aid and comfort to friends of the U.S. -- say, agents of the government of Pakistan, which (albeit repressive) has been designated a "major non-NATO ally"? I might still be guilty of other crimes, such as espionage, but presumably I wouldn't be guilty of treason. It seems, then, that a reasonable person may not be able to determine whether a given country is an enemy of the U.S. -- especially if, for example, our government is secretly attempting to undermine a government with which it publicly claims good relations. Does the specification of "Enemies" here carry any legal meaning? And if it does, and a reasonable person cannot tell whether certain conduct would fit the definition, can a crime explicitly defined by the Constitution turn out to be unconstitutionally vague?)

2004-06-01T06:07:00.000-04:00

Tyson vs. Ayer: Just came across an old TNR piece by Simon Blackburn, reviewing a biography of philosopher A. J. Ayer. I don't know if it's true, but I thought the following anecdote was at least worth remembering:

At yet another party he had befriended Sanchez [Fernando Sanchez, a fashionable designer famous for women's underclothes]. Ayer was now standing near the entrance to the great white living-room of Sanchez's West 57th Street apartment, chatting to a group of young models and designers, when a woman rushed in saying that a friend was being assaulted in a bedroom. Ayer went to investigate and found Mike Tyson forcing himself on a young south London model called Naomi Campbell, then just beginning her career. Ayer warned Tyson to desist. Tyson: "Do you know who the f--- I am? I'm the heavyweight champion of the world." Ayer stood his ground. "And I am the former Wykeham Professor of Logic. We are both pre-eminent in our field; I suggest that we talk about this like rational men." Ayer and Tyson began to talk. Naomi Campbell slipped out.

2004-05-28T14:34:00.000-04:00

Buchanan on Blasphemy: I always thought Pat Buchanan was crazy. But I didn't know he was that crazy:

When Bush speaks of freedom as God's gift to humanity, does he mean the First Amendment freedom of Larry Flynt to produce pornography and of Salman Rushdie to publish The Satanic Verses, a book considered blasphemous to the Islamic faith? If the Islamic world rejects this notion of freedom, why is it our duty to change their thinking? Why are they wrong?

Michael Totten comments:

Now that is just astonishing. A tyrannical fascist regime in Iran orders the execution of a novelist in Britain. Iran's Ayatollah Khomeini sent death squads after a man who had never even been to Iran. And Pat Buchanan wants to know why that's wrong.

It seems to me it ought to be self-evident to a man who writes books that it's not cool if you're executed by a foreign government because it doesn't like what you've written. But I guess it isn't self-evident if you're a religious nutjob who can't get past the word blasphemy.

I'm still astonished that this man ever won New Hampshire. Whatever happened to "Live Free or Die"?

2004-05-26T18:51:00.000-04:00

When in Rome... After finishing two exams today, I decided to search for information on President Bush's June 4 visit to Rome. (I had also hoped to visit Rome that day, to attend a friend's wedding, but unfortunately I can't go.) My search for bush rome june 2004 turned up this site on the first page.

Cute, huh? Guess that's why they call it the "peace movement."

(Good thing they didn't send it by mail!)

2004-05-21T17:31:00.000-04:00

Thought for the Day: From Gray's "Ode on the Pleasure Arising from Vicissitude":

Smiles on past misfortune's brow
Soft reflection's hand can trace,
And o'er the cheek of sorrow throw
A melancholy grace;
While hope prolongs our happier hour,
Or deepest shades, that dimly lour
And blacken round our weary way,
Gilds with a gleam of distant day.

2004-05-21T17:12:00.000-04:00

Where is the Outcry, Part II: I recently sent a second email to the list (see post below), and decided to post that as well.

By some coincidence, I received [the initial] email asking "where is the outcry?" not long after reading about the ongoing genocide in Sudan. Human Rights Watch summarizes the conflict as follows:

The government of Sudan is responsible for "ethnic cleansing" and crimes against humanity in Darfur, one of the world’s poorest and most inaccessible regions, on Sudan’s western border with Chad. The Sudanese government and the Arab "Janjaweed" militias it arms and supports have committed numerous attacks on the civilian populations of the African Fur, Masalit and Zaghawa ethnic groups. Government forces oversaw and directly participated in massacres, summary executions of civilians-including women and children—burnings of towns and villages, and the forcible depopulation of wide swathes of land long inhabited by the Fur, Masalit and Zaghawa....

The government and its Janjaweed allies have killed thousands of Fur, Masalit, and Zaghawa-- often in cold blood, raped women, and destroyed villages, food stocks and other supplies essential to the civilian population. They have driven more than one million civilians, mostly farmers, into camps and settlements in Darfur where they live on the very edge of survival, hostage to Janjaweed abuses. More than 110,000 others have fled to neighbouring Chad but the vast majority of war victims remain trapped in Darfur.

The stories of some of these 1 million refugees are told by the L.A. Times (linked here):

GOUNGOUR, On the Chad-Sudan border -- Barefoot and half-naked, Hamesa Adam carried two sons on her back for six days across the searing Sudanese desert. Two other children, missing their dead father, walked barefoot, and two more rode a donkey.

But 6-year-old Mohammed, one of the children on the donkey, got weaker and weaker.

He cried constantly, clutching at his side. There was not enough food. On the fourth day, Mohammed struggled off the donkey and fell onto the sand.

They buried him nearby, about 2 feet down, placing branches on the grave to keep animals from digging up his body.

According to Doctors Without Borders, more than 20 percent of children under 5 in Darfur are already suffering from malnutrition, and about 5 percent had already died in the last three months. ("These levels of mortality are well in excess of death rates defined as an emergency.") The U.S. Department of State believes that between 15,000 and 30,000 civilians have already been killed in the conflict, and that "hundreds of thousands" are in "imminent danger." If the 30,000 figure is accurate, that would be several times the highest estimates for the number of civilian casualties in Iraq, and more than 10 times the number of Palestinians (civilian or otherwise) who have died in the second intifada. (Additionally, although both the perpetrators and victims in Darfur happen to be Muslim, the conflict isn't free of religious motives: those killed belong to a different denomination of Islam than the militias, and according to Human Rights Watch, the militias "have destroyed mosques, killed Muslim religious leaders, and desecrated Qorans belonging to their enemies.")

Now, in mentioning all this, I'm hardly making the argument that because there's currently ethnic cleansing in Sudan, we can't be outraged by suffering elsewhere. (That would be akin to the bizarre argument against intervening in Iraq, that "there are many other countries with human rights violations." I can see how this might be a reason why one isn't obliged to intervene everywhere, but I can't see how that would be a reason why one shouldn't intervene anywhere.)

And I'm certainly not making the appalling argument that "Well, some Arabs got their houses torn down, but some other Arabs burnt somebody's village, so it all balances out in the end." What I'm trying to ask is why Sudan hasn't attracted the kind of outcry that other causes have received. We have, RIGHT NOW, a genocidal conflict going on that has already claimed tens of thousands of lives (and may claim hundreds of thousands more, if the refugees cannot receive food and medicine). We have a war, RIGHT NOW, that seems to be fulfilling all the worst fears of those who opposed the war in Iraq: targeted at civilians, motivated by ethnic and religious hatred, blatantly directed at the murder of Muslims. Why, then, have those concerned for peace not adopted Darfur as their central cause? Where are the protests in New York and Geneva at Sudan's reelection to the Human Rights Commission? Why have the street corners of Oxford, which have blossomed with political posters in the last two years, not been covered by stickers calling for peace in Darfur? Some of my friends here marched in London last year; of the millions who marched worldwide to protest the war in Iraq, do you know a single person who has marched to stop the killing in Darfur? Where are the international coalitions to "stop war and end racism" now that a racist war is being prosecuted under our very noses?

I'm not trying to accuse anyone of hypocrisy; I know that many of those who called for peace last year did so out of sincere conviction. (Moreover, I haven't marched for Sudan either; I've written my congressman, but that's about it.) What I'm trying to ask, and what [the initial] subject line made me consider, is why the global movements that emerged during the buildup to the Iraq war have been so comparatively quiet when faced with a war whose motives and consequences are undeniably more terrible. To my mind, it's hard to avoid the suspicion that the movements' attention is simply not engaged by violence that fails to fit a certain profile, that can't be told in a familiar anti-colonial narrative; that if innocent people are being murdered, the identity of the perpetrators is the most significant factor in whether it will be opposed. But don't the lives of the victims--Muslim lives, African lives, human lives in general--deserve protection in their own right? Why have the movements, which last year championed the wretched of the earth, here responded with silence?

2004-05-21T11:57:00.000-04:00

"Where is the Outcry?" I recently received an email over a mailing list with a link to this BBC report, under the subject heading "Where is the Outcry?" The report described the destruction of houses in the town of Rafah, Gaza, by the Israeli military.

A few hours later, I made the following comments over the list, which I've decided to re-post:

If you want a cynical, non-justificatory answer, I'd say that most people react to stories like this by immediately filing them under the "More Violence in Middle East" category, and don't pay them any more attention. People tend to get desensitized to long-running violence, even if that's a horrible way to respond to suffering.

A somewhat more sophisticated answer would be that it's hard to know how to feel about a story like this without knowing all the facts. I think destroying houses is generally awful, mainly because I don't see how the destruction of the house per se can be of military necessity. To me, something like this smacks of collective punishment, intended to make others pay for the wrong actions of a few.

However, suppose for the moment that the Israeli army is right in claiming that the houses it destroyed had been used to hide illicit weapons tunnels--not an uncommon thing, unfortunately, on the Egyptian border--or as safe houses for gunmen. The case might then be different, and the army might have a legitimate reason to want to clear the area, either to prevent the tunnels' operation or to deny the militants shelter. Provisionally, the army would then have an obligation to give the civilian inhabitants somewhere else to live. However, if the tunnel or the gunmen had been operating with the inhabitants' knowledge and consent--how many of us would notice weapons being smuggled up from the basement?--this might complicate their status as non-combatants. (If I willingly quarter combatants in my house, can I claim non-combatant status when my house is fired upon?) The distinction is even further muddied by the fact that this is a conflict in which all the hallmarks of organized armies--clear military hierarchy, uniforms and insignia visible at a distance, carrying arms openly, conducting military operations in accordance with the laws and customs of war--are notably absent.

Now, I don't carry any water for the Israeli army, and I have no idea whether its factual claims are true. (The Israeli Supreme Court, in rejecting petitions on Sunday from residents of Block O of Rafah, had required that any destructions of homes take place only in the circumstances described above, but there's no easy way of knowing whether that decision was followed.) But I do think it's important to note that even in what could be seen as a clear-cut case of collective punishment, there can still be the possibility of legitimate motives for the military's actions. In a conflict where at least one party attempts to blend into the civilian population, civilians will be inevitably drawn in, either by simple error or by the explicit design of those who use them as human shields. In such a context, everything seems to depend on the exact fact pattern surrounding the house's destruction. (It's notable in this context that the BBC reporter didn't see the area firsthand--admittedly, due to Israeli restrictions--but rather spoke to Mrs. Abu Libdeh via cell phone.) I think it's perfectly possible for someone who shares your moral concern for the destruction of innocent people's houses to feel unready to join the outcry--to be inclined to reserve judgment, until they feel they have a better grasp of the facts.

(To me, these issues also point to a deep and pressing question in the ethics of conflict -- how may an organized military act when facing a party that does not respect the laws of war (especially the division between soldiers and non-combatants)? Can we develop a "non-ideal theory" of warfare? The laws of war, as they currently stand, seem unprepared for their own routine violation. The doctrines stick to the easy stuff, condemning both sides equally -- the party who hides arms in a place of worship, and the party who raids the place of worship in response; the party who takes cover among civilians, and the party who fires on the crowd. But although this all-around condemnation may be satisfying, and assure us of clean hands, it doesn't seem to give us any tools for describing how we should proceed, should we find ourselves in the middle of this conflict, and should surrender not be a moral option. Do we just accept Thomas Nagel's argument in "War and Massacre," that there are some situations in which both choices are morally prohibited? Or do we draw up new rules that distinguish between different kinds of civilians, and that take account of our opponents' responsibility for their own immoral actions?)

2004-05-21T11:56:00.000-04:00

Sorry for the Silence: Exams start Monday. Studying. (Or should be.)

2004-05-17T01:54:00.000-04:00

Thought for the Day: From Chapter 2 of the National Security Strategy of the United States:

No people on earth yearn to be oppressed, aspire to servitude, or eagerly await the midnight knock of the secret police.

2004-05-17T01:53:00.000-04:00

Catastrophic Terrorism and the International System: In the course of studying for Oxford final exams, I've chosen to post another essay from my International Relations tutorial. (Links to earlier IR essays can be found here and here.) This essay looks at the changing nature of global terrorism, and argues that threatened states will have strong reasons to act unilaterally and preventively rather than through established multilateral mechanisms. From the introduction:

The terrorist attacks of Sept. 11, 2001, demonstrated the need for a complete reassessment of the existing threats to international security. Writing shortly after Sept. 11, Seyla Benhabib suggested two "unprecedented aspects of our current condition": first, "the emergence of non-state agents capable of waging destruction at a level hitherto thought to be only the province of states," and second, "the emergence of a supranational ideological vision with an undefinable moral and political content, which can hardly be satisfied by ordinary political tactics and negotiations." To which one could perhaps add a third: the growing potential for catastrophic violence to be inflicted instantaneously in the course of a single operation, such as through the use of weapons of mass destruction.

The combination of these three factors poses a new kind of security threat to nations such as the United States, one perhaps more severe than any to which those nations are accustomed. Yet the possibility of catastrophic terrorism also threatens the nature of the international order, giving states which are the targets of terrorism strong incentives to act outside current norms of the international system. Proposals to address terrorism through globally accepted means, such as a strengthened international law-enforcement framework or aid targeted to the "root causes" of terror, are either unlikely to succeed in the short term or unlikely to be accepted by states under threat. As a result, the potential for unilateral military action in contravention of previous norms on the use of force has greatly increased. Unless the international community is willing to revise those norms to give greater latitude to counterterrorist efforts, one can expect greater frictions within the international community to be a further consequence of the new kind of terrorism.

You can read the rest here.

2004-05-14T05:10:00.000-04:00

The Fetishization of Rules: Finally, someone who understands. This customer-service debacle happened to take place with Orange Mobile, but it could have been any firm in England. One of the first things I learned after arriving here is that English bureaucrats, whether in public or private employment, would rather spend twice as much time (and lose twice as much money) inventing justifications for the existing rules than crafting new ones. Cory Doctorow documents the fetish:

At the end of the day, it came to this: These are our rules. We will stick to them. We will not make exceptions to them. We will hug them to our bosom beyond any kind of rationality or reason.

I am such a goddamned telephone junkie. I'm no Joi Ito with his $3,500 GPRS bills, but I've been spending $200 or $300 on cellular telephone damned near every month since 1992. I am every mobile carrier's dream. Any rational carrier would jump at my business.

But Orange isn't rational. It doesn't have a business plan, it has a bunch of superstitions to which it rigidly hews regardless of circumstance . . . .

My econ classes got it all wrong. Firms here don't seek to maximize profits; they seek to minimize employee effort.

UPDATE: A friend passes along an Economist article that confirms the stereotype:

A team led by Chris Voss of the London Business School found that service quality in Britain is typically worse than in America. One reason, the research suggests, is that British customers complain less about bad service than hard-to-please Americans do.
...
The result, Mr Voss finds, is that Brits suffer. But so do companies in Britain's service industries: they do not receive so much unsolicited feedback, and thus lose a chance to improve service quality. Indeed, they may spend more than they need to do on service-quality improvements, because they do not get direct help from customers.

2004-05-11T07:31:00.000-04:00

On a Lighter Note: Steve Wu notes the power of exam proctors, as described by our groundbreaking serialized graphic novel, Herbert the Walrus. Of course, now that I'm studying for finals myself, I can't help but remember the exams Herbert faced... (Modified for width -- click here for the original version.)

2004-05-11T07:07:00.000-04:00

For Their Sake and Ours: From a commenter on AndrewSullivan.com:

Imagine the next terrorist attack. Suppose nuclear devices are set off simultaneously in New York, Washington, and Los Angeles. Suppose not 3000 dead but 300000 dead. What do you think the American people will demand of our President then? My greatest fear is that we will become genocidal. The cry will be to kill them all. As much as we are there to protect the US against the Arab Muslims, we are also there to protect the Arabs from the US. It is one thing for Bin Laden to issue a fatwah to kill all the Americans. He does not have the capability to do it. It is something else entirely for the US to decide to kill all the Arabs. We have the capability. We are closer than everyone thinks to this day. For their sake and ours, we must stay and prevail.

I don't think we are, in fact, close to that day. But when I read the news about Iraq now, when I read how we've squandered some of our moral credibility at Abu Ghraib, when I read how modern science has simplified the task of killing civilians with radiation, when I read how suicide bombing has become for some groups a standard tool of domestic politics -- I worry, not only for American lives, but for the survival of American values. As I wrote to a friend in February 2003:

I think this is our generation's equivalent of the Cold War threat of World War III, when our parents had to put their head under the desk at school; it's hard to see how any other issue matters much in comparison. If there were a major WMD attack on American soil, much of what we value about our society -- its openness, its adventurousness, its prosperity, its commitment to civil liberties -- might disappear. A terrorist attack on a sufficient scale, or a series of smaller attacks, would turn this country into an armed camp. And how tolerant of other cultures or other countries' positions, and how willing to pour our treasures into fighting poverty or the AIDS epidemic, would we be then?
...
I also think this is why the left, in a fundamental way, is out of touch with people's concerns. I recently came across an article written by Susan George in The Nation about a year ago . . . . What struck me most was this quote: "The adversary hasn't changed since September 11. That adversary is still 'Davos' and everything Davos stands for, whether meeting in the mountains or on the banks of the Hudson. Homo davosiensis wants all the resources, all the wealth, all the power and all the freedom to extend his ascendancy across time and space."

As I wrote then, I just can't see the enemy as the man from Davos. However much one desires to reduce global poverty in the long term, the adversaries in the short and medium-term are Osama bin Laden, those eager to follow his model, and those willing to supply or support them. And I don't see an easier way to counter the bin Ladens of the world than to redirect the energy that's now going towards terrorism and deadly weapons, to work to create a democratic order where individuals can find dignity outside of martyrdom.

Those who truly care about the former cause must commit themselves to achieving success in the latter. But we don't have much time left. For their sake and ours.

2004-05-08T07:20:00.000-04:00

Apologies for the late post: I was away from my computer most of yesterday. In other news, despite a valiant effort, the Merton 6 team was defeated by Keble 1 yesterday in the 2004 Oxford University Croquet Cuppers tournament. Although their tournament run is now over, they will be performing in exhibition games throughout the summer...

2004-05-08T07:04:00.000-04:00

Reflections on the Duty to Vote, Part IV: The duty to vote (discussed in Part I, Part II, and Part III) is tricky in part because voting is fundamentally a group practice. Most moral theories are designed for individual agents, telling a single person how to live and act. But when they are applied to questions that require group coordination, they can produce some strange results.

For instance, according to the theory of "act consequentialism" (AC), an action is right if it produces the best (or equal best) consequences of any action available to the agent. This doctrine is relatively popular among philosophers for its simplicity; yet for a doctrine focused on the consequences, AC itself has consequences that are very odd.

For instance, suppose that a patient Joe approaches his doctor with a mild skin complaint, which she can treat with one of three drugs. Drug A would relieve Joe's condition but not cure it entirely; drugs B and C would each cure the condition completely for one-half of the population but instantly kill the other half--and no one can predict which will happen to Joe. Most people think the right thing to do would be to prescribe drug A; the marginal improvement in the skin condition simply isn't worth the risk of killing him. But in fact, this act could never be right according to AC, since it is guaranteed to produce less-than-optimal consequences. The best consequences are, in this case, achieved by prescribing drug B, which just happens to be the drug that will cure Joe entirely. The fact that the doctor didn't know this is irrelevant to AC's assessment of the consequences. Prescribing drug B was an available act, and had the doctor prescribed drug B on a hunch, her action would have right according to AC. In short, to an act-consequentialist, it can never be wrong to guess right.

One might be forgiven for thinking that there is something deeply wrong with a consequentialism which is so exacting. Indeed, such a doctrine can be shown to be flawed on its own terms. Consider the following case. I am a resident of the flooded city referred to in Part II, and when the call goes up for volunteers, no one leaves their homes to help sandbag. How will AC judge my decision to stay home? Well, given that no one else is helping, I am clearly doing the right thing. Of the actions available to me, staying at home is the best thing I could do; my own attempts at sandbagging would be woefully insufficient to save the city, and I can at least get some enjoyment out of the evening. (Assume that there are no other projects I could work on from home, like reconnecting lost puppies with their owners over the Internet, that would be a better use of my time.) Moreover, since the same argument could be made from anyone's perspective, we are all acting rightly according to AC. And the city drowns.

(Perhaps the consequentialist could object that we are not acting rightly on this very basis, as the best consequences would actually be produced by a large group of volunteers. Yet this would be to forget that act-consequentialism judges actions from the individual's point of view. Whether an action is "available" to me must take the simultaneous actions of others as given. Consider Bernard Williams' example of the traveller Jim, who is about to witness the execution of 20 innocent men, and is given the opportunity to save them by executing one innocent man himself. To the utilitarian, Jim is obliged to take the opportunity and save 19 lives. It would be no objection that the best "available" action would be for all the executioners to repent and change their ways; the crucial question is what actions would be available to Jim. Returning to the flood case, if I am unable to communicate with the thousands of needed volunteers, I cannot regard such coordinated action as "available" in any meaningful sense.)

Now consider a second case, where every resident of the flooded city turns out to help sandbag. In this case, my assistance is entirely unnecessary. The city will certainly be saved, and my efforts achieve no further benefit. I might as well go home and take the night off; doing so will make the world no worse a place, and in fact (by my enjoying a pleasant evening) will make it better. Thus, of the actions available to me, the best consequences would be produced by my staying home. And again, since the same argument could be made from anyone's perspective, we are all acting wrongly according to AC. Yet the city is saved.

Thus, a world in which AC was universally satisfied (the world where everyone stays home) could have worse consequences than a world in which AC were universally violated (and everyone helps sandbag). Universal attention to the consequences would not, even in theory, always produce better consequences, and may in fact produce inferior ones. Yet if our accepting a doctrine such as AC was motivated by the love of good consequences, why should we retain it when the world is thereby worsened? For those interested in pursuing this argument in greater detail, in my essay "Is Objective Consequentialism Self-Defeating?" I present what I believe to be a proof that every "objective" consequentialist theory -- one in which the rightness of an act does not depend on the agent's own beliefs, thoughts, or motivations -- will be flawed in this way. Consequentialism simply cannot capture everything we want to say about the consequences. And if such moral accuracy is unattainable, not merely in practice, but even in theory, then we might well wonder whether objective consequentialism is an appropriate theory to accept.

Moving beyond the issues addressed in that essay, even a subjective consequentialism -- demanding that we act in whatever way we subjectively expect to produce the best consequences -- will often, through its universal adherence, make the consequences worse. Due to my ignorance of the physics of floods and of the likely response by other volunteers, my expected benefit from sandbagging is negligible, below that of almost any alternative act. In that case, "doing my part" to save the city is not merely morally superogatory, but in fact morally perverse. I must stop sandbagging, if I am to act morally, and instead turn my attention to other affairs. Similarly, if one believes on consequentialist grounds that the duty to vote is so weak as to be permanently outweighed by other concerns--if one could always find something better to do than voting--then it is difficult to avoid the conclusion that one almost always has a duty not to vote. Even if the election is in fact going to be split, if I am unaware of this fact in advance, I am under a duty not to cast the deciding vote. Everyone who participates in an election, then, no matter how crucial the decision or how monstrous the opposing candidate, has acted wrongly. How can this be the case? How can it be that a morally required outcome for the group could only be achieved by morally forbidden individual acts?

For many moral theories, this won't pose a problem. A Kantian might well approve of the decision not to violate someone's rights, even where doing so would have resulted in a smaller number of rights violations overall. Yet for a theory that finds its motivations solely in the desire to maximize good consequences, we are unable to ignore the fact that our doctrines have made the world a worse place to live. Perhaps the case of voting is telling us something fundamental about ethics: that we must look beyond mere consequences to find where the aims of morality lie.

2004-05-06T16:36:00.000-04:00

Reflections on the Duty to Vote, Part III: Part II of this series (see Part I below) argued for a duty to vote based on an intuition against hypocrisy -- that we should not make exceptions of ourselves by expecting others to step forward where we would not. If we care about whether a city is destroyed by flood (as we ought to), and if we want thousands of people to volunteer to lay sandbags to control the river, we cannot fail to see a reason to lay sandbags ourselves. Similarly, if we care about the outcome of an election (as we ought to), and if we want millions of citizens to come forward and elect the right candidate, we must recognize some degree of obligation to join them in voting rather than sit at home.

Unfortunately, I don't think this clinches the case. Deciding that I have a reason to lay sandbags, or even a duty to vote, doesn't mean that these duties are absolute. Most of our moral choices are not between action and a state of vegetative inaction (or watching television, which is close enough), but rather between two different types of duties. The duty to vote proposed here flows from an 'imperfect' duty to assist others (the reason why we ought to care about the election result), which is not as specific in application as, say, the 'perfect' duty not to defraud. And as my friend pointed out, there might be many other imperfect duties which we ought to fulfill. For instance, consider three of her examples:

(a) People--millions of them--ought to become doctors and treat the sick.
(b) I am a person.

(a) Millions of people should work toward alleviating poverty.
(b) I am a person.

(a) Thousands of talented people should run for political office at various levels so local, state, and national governments will function well.
(b) I am a person.

How is it possible for anyone completely to fulfill their imperfect duties? And if doing so would be impossible--or if there is a distinction to be made between the morally necessary and the morally superogatory--how ought we to choose which imperfect duties to satisfy?

If voting were truly costless, then there would be no question here; we would simply vote and then move on to our next project. But voting is rarely costless, at least in terms of time. Should we not dedicate the time we would have spent voting (as well as researching the candidates) to generating income to donate to charity instead--or, if we want to make good on a civic duty to help our country, to performing other public services? When I mailed my ballot for the Missouri primary, I chose to send it via expedited air mail for £4 (~$7), rather than guaranteed delivery for £34 (~$60). As a result, it may not have arrived in time. But would my duty to vote have required me to spend the extra $53 on guaranteed delivery, rather than buying civics texts for needy schoolchildren (or even donating it to my candidate of choice)? And couldn't even that $7 have made a greater difference at Oxfam instead of merely changing the Missouri vote totals by one?

To be honest, I'm not sure there's a way to put the individual duty to vote on a consequentialist foundation. Thus far, I haven't attempted arguments based on a doctrine of political obligation, in which voting might be a perfect duty, one that can't be replaced by performing imperfect duties such as providing civics books to schoolchildren or teaching naturalization classes to immigrants. And one could always decide to vote for one's own enjoyment (a feeling of empowerment, say, or a certain pride in seeing the great experiment of democracy continue). But our political obligations are very tricky to nail down (and open up a whole other range of arguments), and a duty based on personal enjoyment wouldn't apply to anyone who'd rather sit at home.

The problem of imperfect duties is a very difficult one for any moral theory primarily concerned with how we make practical decisions. (It's easier for a moral theory like utilitarianism, which is more concerned with what happens as opposed to how we decide, and tells us to do whatever will be most effective in making the world a better place. It might be impossible to live that theory rigorously, but it's not very hard to describe it.) We can't really compare imperfect duties and to see how strong they are without first knowing how they were derived, and even then the answer isn't clear. Which is more effective, voting or teaching naturalization classes, at respecting others' humanity and treating them as ends in themselves? Of all of the joint projects in which a society might be engaged--protecting the environment, healing the sick, preserving domestic tranquility--where should voting stand in importance?

At the very least, though, I think it's worthwhile to point out what has been achieved. The argument from hypocrisy does provide resources for chastising those who see voting as truly worthless, and who would do nothing better with their time. And the problem of imperfect duties is certainly nothing new; if the duty to vote is no more shaky than many well-recognized duties, then it's pretty well-established. Moreover, I'd claim that the question of voting provides very strong reasons to accept a moral theory that pays attention to our decision-making, and may actually invalidate some common consequentialist alternatives. But to find out what those reasons are, you'll have to tune in tomorrow.

UPDATE: See further post above.

2004-05-05T05:37:00.000-04:00

Human Rights? What? We interrupt this series to note Sudan's re-election to a position on the U.N. Human Rights Commission. Sudan's victory comes amid its continued practices of ethnic cleansing, chattel slavery, and recruiting child soldiers. (Which raises the question -- what, precisely, does a nation have to do to get kicked off the HRC?)

But the bigger story, though, concerns all the other countries on this august body who will be welcoming Sudan with open arms. As I wrote in the statistical study I posted back in June, the regimes with the worst human-rights records are now significantly over-represented on the HRC, having secured seats to prevent criticism of their own records. Let's see what Freedom House has to say about some of the other countries that will be on the commission next year, including:

Bhutan, which is ruled by an absolute monarchy that does not permit free expresion and arbitrarily detains dissenters;
China, "one of the most authoritarian states in the world";
Congo, where government forces are accused of "extrajudicial execution, torture, rape, beating, and arbitrary detention";
Cuba, which holds political prisoners convicted of "disseminating enemy propaganda" or "dangerousness," and whose delegates to the Human Rights Commission recently beat unconscious a human rights organizer inside the U.N. building in Geneva;
Egypt, where Amnesty International reports that "everyone taken into detention . . . is at risk of torture";
Eritrea, where senior ruling-party members who publicly criticized the government were arrested for treason;
Guinea, whose elections displayed such widespread manipulation that the EU refused to send monitors;
Nigeria, where women convicted of adultery are sentenced to death by stoning (and where approximately 60 percent are subjected to genital mutilation);
Pakistan, which maintains a mandatory death sentence for blasphemy;
Qatar, where women cannot apply for driver's licenses without the permission of a male guardian;
Russia, whose legal system is arbitrary and bribe-ridden;
Saudi Arabia, which criminalizes public non-Wahhabi religious worship, and which discounts the testimony of women compared to that of men;
Swaziland, whose absolute monarch had a lawsuit dismissed regarding an 18-year-old woman abducted to be his tenth wife;
Togo, which criminalizes "'defaming or insulting' the president, state institutions, courts, the armed forces, and public administration bodies," and which punishes "insulting the head of state" with a jail term of one to five years; and
Zimbabwe, where Robert Mugabe presides over a corrupt regime that politically manipulates international food aid for the starving.

Remind me again why the U.N. is losing credibility...

2004-05-05T05:21:00.000-04:00

Reflections on the Duty to Vote, Part II: Yesterday's post tried to estimate the chance of a split presidential election in the U.S., and found that under relatively common circumstances, the odds against an election being decided by a single ballot are astronomical. No matter how crucial the election, in a 56-44 race, the zillion-to-one chance against my casting the deciding vote renders any calculation of expected benefit meaningless. Additionally, if we ignore any effect an individual vote might have in changing the perceived strength of the winner's mandate (an effect that would also be vanishingly small), voting must appear to be an almost absurdly irrational means of making the world a better place. How, then, can a supposed duty to vote have any force at all?

A few months after my friend initially raised the question, I responded with the following argument. During the 1993 floods on the Mississippi, the cities on the river's banks would sometimes call for volunteers to help lay sandbags to keep the river from overflowing its banks. Assume that one year there's a particularly terrible flood, one that threatens the entire city with destruction. Moreover, assume -- and I don't know the physics, but I'd think this is justified in the case of floods -- that what matters is ultimately not the sheer number of sandbags laid, but whether the number of sandbags exceeds some threshold that nobody knows in advance. That is, there's some number of sandbags that is sufficient to block the water from spilling over; any fewer than that number results in the whole thing being swept away, and any sandbags above that are just gravy. However, nobody knows how high the threshold is, and so everyone fears that the city will be destroyed.

Now imagine one night when the city makes an emergency call for volunteers, and I choose instead to sit at home and watch television. My reasoning is that there are several tens of thousands of people out there throwing sandbags, and no matter what the magic number is, we'll probably miss it or exceed it by a couple thousand at least. As a result, it seems like there's a very high probability that my own contribution of sandbags won't make the ultimate difference. The same logic holds for everyone else on the line. Their actions are praiseworthy in some sense, since they're taking on a responsibility without personal gain, but also a little bit silly, since the effort they expend has a very minimal probability of making any difference at all. For myself, if the river breaks the banks and we all drown, well, at least I'll have caught another episode of the Simpsons before I go.

My motivations here seem, I think, somewhat contradictory. It isn't that the volunteers are in a particularly dangerous situation (getting crushed by sandbags, threatened by sharks, etc.) or that I have something else worth doing at home, or even that I see the enterprise of protecting the city as unimportant; I want the city saved as much as anyone else. In fact, I think it's really important that other people go out and volunteer, or that people volunteer in general, but I just don't see this importance as a reason to volunteer myself. Something like means-ends rationality is implicated here; it seems impossible to hold a set of two beliefs,

(a) People--thousands of them--ought to go out and lay sandbags.
(b) I am a person.

and fail to conclude that I have a reason to go out and lay sandbags. If I chose to sit at home and do nothing, I would be making an exception of myself; I would have a strong desire that other people act in a certain way, but I wouldn't not willing to entertain doing so on my own. The relevant sin isn't apathy, but hypocrisy. I may not be morally bound to lay sandbags above all else, but I can't rationally view a call to volunteer as entirely without normative power, if I care about the outcome. And the rest of moral theory would tell me that I ought to care about the outcome (in which the city would be destroyed, puppies would drown, etc.).

To my mind, pretty much the same argument can be made in the context of voting. We know that there's some magic number of votes Candidate A will need to defeat Candidate B; it's just that no one has any idea what that number is. We may know that we'll probably miss it by a significant amount, but don't know for certain, even with polling, in which direction the error will be ("Dewey Defeats Truman," etc.). And I don't know if it's rationally possible to have a fervent desire that others -- we're talking millions of people! -- end up voting a certain way, and yet not have a sufficient desire to engage in a near-costless act of voting myself. Of course, this desire hinges on the fact that I'm not indifferent between the candidates. But the rest of moral theory would tell me why indifference is wrong in this case, and why I ought to care about the outcome (in which the budget deficit would increase, puppies would drown, etc.). And the strength of this morally-required desire would then reveal my how strong my duty to vote would be.

(To be continued tomorrow...)

UPDATE: See Part III above.

2004-05-04T06:50:00.000-04:00

Reflections on the Duty to Vote, Part I: Late last January, I sent in my absentee ballot for the Missouri primary. In the course of applying for the ballot, I remembered a discussion I had with a good friend a while back on whether citizens had a general duty to vote. My friend's argument was based on the well-known position that "my vote won't make a difference." She wasn't claiming that political process was irrelevant; the president of the United States has a vast amount of power, and putting the wrong person in office could seriously disrupt the lives of millions. Rather, she advanced the claim that voting couldn't be justified based solely on its effects. Ever since then, I've been working on a response, which has turned into this four-part series of blog posts.

Even in an important election, the argument goes, when the candidates' differences are pronounced, one vote will still be just a drop in the bucket. No one person's vote will change the outcome of a nationwide election. The same, of course, might be said of charity work; no one person's efforts will end world hunger. But in the case of charity, even a drop in the bucket can still be valuable in its own right -- it still represents a few more hot meals served, a few more sacks of grain, a few more warm winter coats. In an election, however, a single vote that does not decide the winner will have absolutely no consequences at all--it just changes the vote totals by one. And although one of the closest elections in American history recently came down to 500-odd votes in the state of Florida, given how many tens of millions of votes were cast, it's unlikely that an election will ever become any closer. Why should we vote, then, if the election is never really going to be tied?

Derek Parfit, in Reasons and Persons (summarized here), tries to answer this question with standard act-consequentialist analysis. On Parfit's argument, I should only vote if the expected costs of my voting are less than or equal to the expected benefit -- the benefit to the world of the superior candidate winning, multiplied by the chance that my ballot will decide the election. The costs of my voting are small (one half-hour on a given Tuesday), while the benefits of the superior candidate are large. In fact, if we look only at the economy (and ignore the other responsibilities of the office, like being commander-in-chief), assuming that a bad president would cost 0.5 percent of GDP means the benefit of a good one is something on the order of $50 billion.

The argument here crucially relies on the exact measure of the probability. Parfit estimates the chance of a split election at 1 in 100 million. By our benefit estimate above, though, that means the expected benefit from voting is $500--and that's ignoring most of what the president does. But is 100 million even low enough? How can we calculate the exact probability of a split election?

To make the calculations easier, we can start with some simplifying assumptions. First, let's assume that the election is entirely decided by the popular vote (goodbye, electoral college). Second, let's assume that there are two candidates, Bush and Gore, who are exactly tied in the polls (each at 50 percent support). As in the 2000 election, let's say there are 105,363,298 people who cast their votes before I do. What's the chance that the election would come out exactly split, and that my ballot will decide the election?

One way to estimate this chance is to pretend that each voter has a 50 percent chance, once in the voting booth, of casting a ballot for either Bush or Gore. Determining the chance of a split result is sort of like determining the chance that a fair coin, tossed a certain number of times, will come up exactly half heads and half tails. On the advice of Dr. Math, I used the binomial probability formula. If I flip a coin n times, the chance of r heads is given by P = C(n,r) · p^r · q^(n-r), where p is the chance of heads, q is the chance of tails, and C(n,r) = n! / (r! · (n-r)!). (Roughly, the p^r and q^(n-r) terms identify the chance of so many heads and so many tails, and C(n,r) identifies the different ways those heads and tails can be distributed in the order of tosses.) For instance, if we want to flip a coin 4 times and come up with 2 heads, then n is 4, r is 2, p = q = 0.5, and the final probability (calculating out all the factorials) is 0.375, or 3/8. In the election case, then, if we assume that n is 105,363,298, r is half that (or 52,681,649), and p = q = 0.5, what's the probability P?

This formula involves numbers far too large for most calculators--try taking the factorial of 100 million, and you'll see what I mean--so I eventually had to resort to programming. And after the numbers crunched, I found a truly surprising result: the probability figure was 7.7727·10^-5. This is roughly one in 13,000, for an expected value of $3,886,350 per ballot -- a benefit far outweighing any conceivable costs.

Obviously, this figure is far too large. We've had a good number of elections in the U.S. since the republic was founded, and the idea that one in 13,000 would result in an even split (with 100 million people voting!) is simply incredible. What could have gone wrong?

One possibility is simple programming error; but given that the programs seemed to work well at lower numbers, giving consistent results using theoretically equivalent algorithms, this is unlikely to be the problem. (If you're interested in checking the math, I've posted the GAWK source code. I originally used the simple binomial program here, but when the numbers got too large, I was forced to switch to adding up logarithms (here) and then expanding the sum at the end. A third program provided a more efficient means of adding the logarithms (here), since many of the terms in the factorials cancel out, and produced the same results as the first two.)

A second possibility is inaccuracy in the description of the problem. "Of course," one might argue, "actual voters don't flip a coin when they go into the voting booth. There's a set number of people who are going to vote for Bush, and a set number of people who are going to vote for Gore. So your 50-50 probability has nothing to do with which candidates people actually choose." This objection can be countered by looking at the situation from the perspective of the voting machine, which doesn't know which candidate the person who just entered the booth supports. All it knows is that the person will pull the lever either for Bush or for Gore, and that roughly 50 percent have been pulling the lever for each. (Alternatively, imagine that there is a pre-set population of people who support Bush or Gore, but that not all of them will end up voting. Those who actually do go out and vote are randomly selected from this 50-50 group--or, more precisely, the process whereby certain individuals end up voting doesn't bias the election in favor of one candidate or the other, so it seems like we've taken a random sample. In this case, we really are taking a 50 percent chance that the next voter we select, or just the next voter to enter the booth, will vote for a given candidate. This assumption that the two candidates' supporters vote at equal rates isn't often true in actual elections, since one candidate's supporters may be more committed than the other's; in that case, assume that the poll data has been weighted to reflect the how likely a voter the respondent is, and that the final figures are still 50-50.) From these perspectives, the election does seem like a matter of probability. The issue here isn't that the election result is actually random and unpredictable, like quantum mechanics, but rather that we can use probability theory to produce a reasonable ex ante estimate when we don't know who the actual voters will be.

A third possibility, and the one that seems most likely to me, is that the assumption of exact 50-50 support is unrealistic. This formula, especially with large number of voters, is incredibly sensitive to minor variations in the level of support. If Bush were receiving 50.1 percent support in the polls, for instance, instead of being 50-50, the chance of a split election would drop to roughly 1 in 1.3·10⁹⁶, which is tiny beyond comprehension. (10⁹⁶ is much larger than the number of atoms in the universe.) And since polls generally have a margin of error of ±3 percent, the chance that the level of support is exactly 50-50 is also miniscule.

These extraordinarily low probabilities make it seem far more likely that the math is right, since it accords with our intuition that evenly split elections are extraordinarily rare. So we really need to conduct our analysis at two levels. First, what is the actual breakdown of Bush and Gore supporters in the country? This question probably won't be answered with a single number (it could be, but we don't know it); instead, it's a probability distribution over various values within the margins of error for our poll data. Plus, given that polls themselves aren't always right, the distribution could be a lot wider than that.

Second, once we have the distribution of possible support breakdowns, what is the probability that, given a random sampling of that population (so we'd have to weight the support breakdown to reflect the fact that not everyone is equally likely to go to the polls), we get a split election? To my mind, if differences that minor can produce huge changes in the probabilities, this means that the actual chance of getting a split election is vanishingly small. If the polls are showing a statistical dead heat, there may be some minute chance that a vote would make a difference. (How small? The chance of a split election in a 50.01-49.99 race is roughly 1 in 100,000; if we assume--inaccurately, but conservatively--that a 50-50 poll means there's a 1-in-1000 chance that the actual level of support is between 50.01 and 49.99 percent, then we're back at Parfit's 1-in-100-million figure.) But if the polls are showing a 53-47 race, or a 56-44 race, the probability that my vote would make a difference is too small even to consider. I might as well stay home.

But should I stay home? Do these probability calculations invalidate any duty we have to vote? To find out, tune in for tomorrow's post.

UPDATE: See further post above.

2004-05-02T14:36:00.000-04:00

Pornography and Prostitution, Part IV: It's an idea that's catching on -- Columbia Business School's Jonathan Knee, in his NYT op-ed today, suggests regulating pornography through conduct-focused laws:

The law of obscenity has not fundamentally changed since the Supreme Court in 1973 vaguely directed a jury to apply "contemporary community standards" in reaching a verdict. In the Internet era, the question of what community and what standards is even less clear. Amending the Constitution is impractical. The Justice Department's strategy of bringing test cases to clarify the meaning of obscenity is time-consuming and unpredictable.

What we need is a kind of regulation that does not implicate the First Amendment at all -- yet goes to the heart of the enterprises that fuel the multibillion-dollar pornography industry. The value of laws against prostitution is well established. What if we were to enact laws that made it illegal to give or receive payment to perform sex acts?

The policy justifications for such a law are similar to those for laws against prostitution: society objects on principle to the commodification and commercialization of sexual relations, even between consenting adults. Such a law would not implicate the profanity or nudity that has been the recent focus of the F.C.C. -- it would deal exclusively with sex acts, which the Internet seems to revel in.

I'd argue, though, that many existing prostitution laws already prohibit payment for sex acts, and could easily be enforced against the commercial manufacture of pornography. (See the earlier posts -- Part I, Part II, and Part III--in this series.) The Missouri statute is broadly drafted, and the legislature has already shown an interest in cracking down on smut. Why not try an alternative legal tactic? Maybe if someone in Gov. Holden's office took note...

2004-05-01T11:27:00.000-04:00

Interview with the Apologist: Filmmaker Oliver Stone, whose new movie on Fidel Castro will be released shortly by HBO, was recently interviewed by Slate's Ann Louise Bardach. Castro has always received something of a pass from many people who otherwise claim to despise dictatorship; my friend Ross Douthat once memorably characterized Cuba as the "Tickle-Me Elmo" of totalitarian states. (While in Russia, I had a conversation with a bright, well-educated American student who had visited Cuba as part of a government-approved academic tour. She told me that Castro had "only" 300 political prisoners, fewer than the number of accused terrorists held in Guantanamo Bay, many of whom may be innocent. My dumbfounded suggestion that a falsely suspected Taliban member and a librarian who stocks the wrong books might be "innocent" in different ways was met with a change of topic.)

Stone's take, which is apparently harder on Castro than his previous glowing biopic Commandante, falls squarely within this trend: it's chock full of excuses, omissions, and breathtaking moral equivalence. Some excerpts:

ALB: Let me ask you about the part [in the film] where Castro's in front of eight prisoners charged with attempting to hijack a plane [to Miami]. He says to them, "I want you all to speak frankly and freely." What do you make of that whole scene, where you have these prisoners who happened to be wearing perfectly starched, nice blue shirts?

OS: Let me give you the background. He obviously set it up overnight. It was in that spirit that he said, "Ask whatever you want. I'm sitting here. I want to hear it too. I want to hear what they're thinking." He let me run the tribunal, so to speak.

ALB: But Cuba's leader for life is sitting in front of these guys who are facing life in prison, and you're asking them, "Are you well treated in prison?" Did you think they could honestly answer that question?

OS: If they were being horribly mistreated, then I don't know that they could be worse mistreated [afterward].

ALB: So in other words, you think they thought this was their best shot to air grievances? Rather than that if they did speak candidly, there'd be hell to pay when they got back to prison?

OS: I must say, you're really picturing a Stalinist state. It doesn't feel that way. You can always find horrible prisons if you go to any country in Central America.

ALB: Did you go to the prisons in Cuba?

OS: No, I didn't.

ALB: So you don't know if they're any different than, say, the prisons in Honduras then?

OS: I think that those prisoners are being honest.

ALB: What about when you ask them what they think is a fair sentence for their crimes, and one of them starts to talk about how he'd like to have 30 years in prison?

OS: I was shocked at that. But Bush would have shot these people, is what Castro said. ... I don't know what the parole system is.

Stone seems hardly concerned by the anti-democratic elements of Castro's government, in part because he's not too hot on democracy himself:

ALB: Did you ever think to bring up why he doesn't hold a presidential election?

OS: I did. He said something to the effect, "We have elections."

ALB: Local representative elections. But what about a presidential election?

OS: We didn't talk about it, especially in view of the fact that our own 2000 elections were a little bit discredited.

ALB: In the first film, Comandante, he asked you, "Is it so bad to be a dictator?" Did you think you should have responded to that question?

OS: I don't think that was the place to do it. ... You know, dictator or tyrant, those words are used very easily. In the Greek political system, democracy didn't work out that well. There were what they called benevolent dictators back in those days.

ALB: And you think he might be in that category?

OS: Well, not benevolent to everybody, no.

But at least Stone pays attention to what's important:

ALB: I've called him the movie star dictator. Did you get that sense about him?

OS: Totally. I think it would be a mistake to see him as a Ceausescu. I would compare him more to Reagan and Clinton. ... They were both tall and had great shoulders, and so does Fidel.

True, I don't know how Bardach's might have been hidden in those ellipses, but Stone can hardly claim that his comments were taken out of context. What still puzzles me is, why is shilling for a dictator taken as a legitimate political position? How can a reportedly anti-fascist movement take such people under its wing?

Personally, I'm still agnostic as to the wisdom of the U.S. embargo; maybe it's hindering our efforts, and the best way to establish a democratic regime would be to open up more contacts with Cuba. Whatever the possible failures of our current policy, though, they shouldn't change our ultimate goal of replacing Castro with a legitimate government. And they don't excuse the ambivalence towards human freedom displayed by people like Oliver Stone--and their refusal to call tyranny by its true name.

(Link thanks to ALDaily.)

2004-04-27T15:59:00.000-04:00

Ads Run Amok: One of the most disturbing things I've seen on the net recently: Burger King's new marketing venture, subservientchicken.com.

2004-04-26T10:33:00.000-04:00

Unions and Democracy: Just before leaving for Spain, though, I started flipping through Will Hutton's book The State We're In. Hutton is fiercely critical of a number of Margaret Thatcher's reforms, which he argues had yet to produce sustainable benefits for the economy as a whole. (Of course, despite Hutton's dour economic forecast, the book hit the shelves just before the boom of the late 90's, one of Britain's most impressive macroeconomic performances in history. Note to self: never make verifiable predictions in print--and if you do, make sure those predictions can't be proven wrong until long after you're dead.)

I haven't yet had the chance to analyze Hutton's arguments in detail, but while reading I noticed the following paragraph:

Beside these severe economic and social costs must be ranked the loss of civil liberties and the qualification of democratic principles entailed in the Conservative governments' version of trade union reform. The right of a majority, after a secret ballot, to require acquiescence in agreed decisions, should be a sacrosanct democratic principle--but not for British trade unions. Here the government has enshrined a higher principle: the right of the individual to work or to reach an individual arrangement with his or her employer so that majority decisions need not bind them. The right of free association has been curtailed by laws outlawing secondary picketing and sympathetic action. Important freedoms and a long-respected conception of democracy have been sacrificed--but for what?

It was interesting to read these words at a time when mail delivery in Oxford had been interrupted for a full three weeks, due to an unofficial "wildcat" strike by local postal workers. I've never been very comfortable with strikes by public-sector unions--such as postal workers, say, or the British firefighters (!) who went on an extended strike last year. A strike at a private factor primarily affects the owner of the firm (as it loses orders to its competitors), and it can be considered just part of the rough-and-tumble process of labor negotiation. But public-sector unions usually operate in industries with a government monopoly, where there are no competitors to pick up the slack. (When teachers go on strike for a month, we can't send our kids off to private schools as easily as GM can pick another steel supplier.)

But Hutton inadvertently provides another argument against public-sector strikes--that they're fundamentally antidemocratic. The public and its elected representatives, through a democratic process, decided to establish a postal system, to create public schools, and to build a network of firehouses. It did so because a majority of citizens wanted services from their government (like communication, and education, and protection from fires). This same majority also selected representatives to oversee the management of these services, and to offer certain packages of wages and benefits to those who sought employment at public expense. Why, then, shouldn't public-sector employees feel bound by this democratic decision? Why shouldn't we "require acquiescence" in this agreed decision of the majority? A strike in a non-competitive, public-sector industry affects everyone, not just the workers in the local post office. So why should those whose paychecks are drawn on the public treasury have the right to reach an "individual arrangement," especially by using as a bargaining chip three weeks' worth of other citizens' mail?

Majoritarian decisions aren't always "democratic"--or, perhaps more precisely, they're not always appropriate. It's not always clear whether the majority ought to be making the decision, and if so who that relevant majority might be. The closed shop can be a triumph of democratic decision-making, or it can be a violation of the worker's right to free association; the prohibition on sympathy strikes can be a violation of unions' free association or a triumph of the democratic institutions that prohibited them. Which interpretation is correct will depend on what line we draw between public and private affairs; the old tension between freedom and equality rears its ugly head. And the best way to resolve this tension--to make "civil liberties" compatible with "democratic principles"--isn't nearly as obvious as Hutton suggests.

2004-04-25T19:57:00.000-04:00

Back from Spain: Just returned a few days ago from a wonderful week in Andalucia. Reflections from the trip may have to wait a few days, though, due to my recent discovery of some petty annoyances known as "Oxford final exams."

2004-04-13T21:12:00.000-04:00

No Posts for a Week: On vacation in Seville; will be back next week.

2004-04-12T06:11:00.000-04:00

John Grisham He Ain't: Nowadays, North Korean dictator Kim Jong Il is primarily known for his reclusive nature, his pursuit of nuclear weapons, and his tyrannical rule of a famine-ridden gulag state. But those who know him well also know him as something of a film buff. In fact, in 2001, he published a book of criticism, On the Art of Cinema, which you can buy at Amazon.com. I haven't had the pleasure of reading it yet, but here's an excerpt from the preface:

The cinema is now one of the main objects on which efforts should be concentrated in order to conduct the revolution in art and literature. The cinema occupies an important place in the overall development of art and literature. As such it is a powerful ideological weapon for the revolution and construction. Therefore, concentrating efforts on the cinema, making breakthroughs and following up success in all areas of art and literature is the basic principle that we must adhere to in revolutionizing art and literature.

Unfortunately, On the Art of Cinema hasn't sold very well thus far, with a disappointing sales rank of #455,145. Kim's other critical work, Kim Jong Il on the Art of Opera: Talk to Creative Workers in the Field of Art and Literature September 4-6, 1974, ranks even lower at #789,855. And his real potboiler, Our Socialism Centered on the Masses Shall Not Perish, reached only a paltry #1,060,827.

What kind of showing is that for the absolute leader of a totalitarian state? Where are the mass purchases, the sycophantic reader reviews? Which faceless apparatchik has fallen asleep at the wheel? (I was tempted to buy a few copies, just to help the poor guy out, but decided that I could find better uses for my money than supporting the concentration camps.)

In a strange twist of fate, Kim's literary success has now been eclipsed by that of UCLA professor Eugene Volokh, whose Academic Legal Writing (which I purchased in the course of revising my thesis) now ranks at a healthy #2,118.

Which should just go to show you: in the fight between the friends and enemies of freedom, the bloggers will always win.

UPDATE: Tim Worstall writes in with his own experiences handling Kim Jong Il's prose...

2004-04-11T05:46:00.000-04:00

Feeling Our Pain: For us Americans in Europe, these aren't easy times. From this week's Onion:

Dollar Losing Value Against The Quarter

NEW YORK—After falling 6 percent in the past three weeks, the U.S. dollar hit a 208-year low against the U.S. quarter, which had been valued at exactly 0.25 dollars since its introduction in 1796. "The dollar continues to slide against most major currencies," Morgan Stanley analyst Richard Jemison said. "At the end of the day Tuesday, the quarter was trading at .267 yen, .203 euros, and US$0.28. But what we're really seeing here is not just a dollar weakened by a sluggish economy, but an exceptionally resilient quarter-dollar." Jemison was quick to point out that the dollar remains very strong against the nickel.

2004-04-10T14:50:00.000-04:00

Privacy, Shmivacy: Defenders of civil liberties have found another intrusive government program to worry about: looking for people who cheat on their taxes, and actually catching them. According to the AP:

State revenue agencies across the nation are hunting for tax evaders with new high-tech tools: computer programs that mine an increasing number of databases for clues on the finances of people and businesses.

...

In Massachusetts, for example, the state tax agency can scan a U.S. Customs and Border Protection database of people who paid duties on big-ticket items entering the country - so anyone who fails to pay the state the required 5-percent "use tax" gets flagged.

The state also has tried comparing motor-vehicle registration data with tax returns, looking for people who might be driving Rolls Royces or Jaguars but declaring only a small income, Revenue Commissioner Alan LeBovidge said.

Of course, an eminently sensible policy can't be without its detractors:

The new tools have reaped hundreds of millions of dollars in increased tax collections, officials say. But the government's growing sophistication at collecting and scrutinizing data about taxpayers is sounding alarms among privacy advocates.

Perhaps I'm an authoritarian at heart, but I just don't see this as an invasion of privacy. The system also allows officials to find tax cheats who stop paying taxes after they change addresses, or who receive professional licenses. To my mind, the greater outrage is that a government-licensed doctor or lawyer might get away with not filing a tax return. Most middle-income Americans have their taxes withheld, and never get the chance to cheat; why should we be so forgiving to the wealthier Americans who fail to pay their due? For "privacy advocates," however,

such methods can violate a fundamental privacy principle: data collected for one purpose shouldn't be used for another without a person's permission.

I don't get it. The government has legitimate access to my tax records, and to my vehicle registration data; putting two and two together is simply good police work. If the FBI were trying to indict Al Capone on tax evasion charges, would we be upset if they looked up the car he drives? It's also not as if any of this information is personally sensitive (like medical information or juvenile criminal records). Anyone who wants to find out about a member of the Missouri Bar can simply check the website; why shouldn't the Missouri Department of Revenue be entitled to do the same?

The worst thing about such Chicken-Little scares is that they distract attention from real privacy threats, like these:

WASHINGTON - New light-scanning technology borrowed from the slaughterhouse promises to help hospital workers, restaurant employees — one day, even kids — make sure that hand washing zaps some germs that can carry deadly illnesses.

A device the size of an electric hand dryer detects fecal contamination and pinpoints on a digital display where on a person's hands more scrubbing is needed.

eMerge Interactive Inc., a struggling technology company in Sebastian, Fla., is hoping to tweak light scanners it already sells to beef plants to detect the same kinds of nasty germs on humans.

...

Using a specific light wavelength, the scanners cause a fluorescence in even minuscule amounts of fecal contamination that could carry dangerous bacteria like E. coli; it shows up on a built-in display as a bright red spot on a person's dirty hand.

Can an Orwellian future be far behind? As usual, Gary Larson predicted it long ago:

2004-04-08T08:13:00.000-04:00

Rare Books: Daniel Drezner recently described an encounter in L.A., in which he asked a television actor for an autograph

on the only blank piece of paper I had -- the back cover to Steven Pinker's The Blank Slate....

So I now own the ultimate academic geek artifact -- a copy of The Blank Slate autographed by a Buffy the Vampire Slayer cast member.

His post reminded me how many years ago, under similarly inadvertent circumstances, I came to possess Earth's only copy of Madame Bovary autographed by folk singer Arlo Guthrie. He was playing Duluth, and a group of Camp Nebagamon staffers decided to bring their campers on a field trip. I had never heard of him before, but hey, he was giving autographs, and it was the only paper I had.

How much could I get for it on eBay? Doesn't matter; I'm not selling.

UPDATE: Actor Van Heflin, who played Charles Bovary in the 1949 movie version, was born on Dec. 13, 1910. "Alice's Restaurant," the famous hit by Arlo Guthrie, was released on Dec. 13, 1969. Coincidence? I think not.

UPDATE #2: The longest gap on the Nixon Watergate tapes was 18 1/2 minutes long. The 1969 recording of "Alice's Restaurant" was 18 1/2 minutes long. Coincidence? I think not. (As Arlo told us in Duluth, "Music can bring down governments!")

2004-04-06T10:25:00.000-04:00

Back in Town: A few days ago, I arrived back in Oxford after eleven days in Russia -- just about evenly split between St. Petersburg and Moscow. Though the trip had its ups and downs (I may post more on the downs later), I had a wonderful time. I can't boil down eleven days into a single blog post, but I came away with at least three lasting impressions:

First, this is a country that has been misruled for a very, very long time. When we first arrived in St. Petersburg, there was a very obvious contrast between the beautiful Italian baroque architecture of Peter the Great and the vast and soulless concrete boxes erected under the Soviets. (We had a 15-minute walk to our metro stop, and 10 of them were spent passing a single apartment building.) Our hotel in Moscow, one of the largest in Europe, had 6,000 beds. It was hard not to feel repulsed by the megalomania of central planning -- the idea that everyone would live in the same kind of apartment, would eat in the same kind of office cafeteria, would wear the same clothes, and would hold the same fundamental beliefs -- and, most of all, that this system drawn up by all-powerful bureaucracies would work. It requires an incredible amount of arrogance to think that a relatively small number of fallible human beings, sitting in their GOSPLAN offices, can possibly be wise and well-informed enough to micromanage an entire society. This may be the judgment of hindsight, but I find it difficult to understand the doctrine that one way of life is best for everyone, and moreover that it involves substantial amounts of poured concrete. (But isn't this, one participant in the trip asked me -- apparently without irony -- exactly what the U.S. is doing in Iraq?)

Of course, the problems with Russian society didn't start in 1917. It takes a certain kind of authoritarian regime to be able to declare the building of a new capital and to watch it become a great city in a single lifetime. Looking at the treasures assembled in the Hermitage, the Kremlin armory, and the palace of Catherine the Great at Tsarskoye Selo, it was clear that the days of empire had poured the resources of a continent into the hands of a small aristocracy. (Which seems to have happened all over again in the 1990s.) So there isn't much of a pre-Soviet tradition of good governance to draw on.

What this means is that although there are many beautiful things and places in Russia, they seem to have survived despite, rather than because of, the terrors of the last century. Today's Russia, though perhaps better off than it was a few years ago, still faces a declining population and terrifying health statistics. (Whatever one's political views, a society in which 60 percent of pregnancies end in abortion is not one whose people have much hope for the future.)

Second, Russia seems to have genuine difficulties in accepting its history. The Great Patriotic War is remembered everywhere, of course -- especially in St. Petersburg, a city which suffered in World War II as have few others. (How would the U.S. remember a conflict in which 20 million Americans had died? The Civil War was a minor skirmish in comparison.)

But there seems to be nothing even approaching a consensus on the greater question, how to remember the 80-year experience of communism. The most common response seems to be a bizarre syncretism: the curtain at the main stage of the Bolshoi Theatre bears the imperial double-eagle on its top half, and the hammer-and-sickle on the bottom. The Kremlin still bears the red stars on its towers, and Lenin's tomb still stands proudly in Red Square -- across from the GUM department store, and yet other symbols of capitalism.

More curiously, Stalin's headstone is still located just behind the tomb, along with those of several former leaders (but not Kruschev). In fact, the day we visited, Stalin had more flowers than anyone except Yuri Gagarin. It's hard to know what to think when faced with the tombstone of a man who's on the short list for Worst Human Being Ever. How should one regard a monument to someone responsible for the murder of tens of millions? It made me wonder what would have happened if Hitler had died in a jail cell rather than committing suicide, or if his ashes had not been scattered and lost. Would the Allies have allowed him a tombstone and a marked grave? Would we have allowed it to become a shrine, with sympathizers leaving flowers? Or would we have sought to erase him from memory -- would he have become a modern version of Tiberius Gracchus, whose body was thrown into the Tiber to prevent his followers from obtaining relics?

(I hadn't know this before I went, but along with many prominent figures in the October Revolution rest the remains of Westerners such as John Reed and William "Big Bill" Haywood. Perhaps this is an example of American triumphalism, but I can think of few better ways than being buried in Red Square to place yourself on the wrong side of history.)

A visit to the museum of the KGB (oh, sorry, it's "FSB" now) drove home the contradictions. The representative of the agency was as unreconstructed a communist as one can be and still feel unwavering support for President Vladimir Putin (himself an old KGB man). To this official, the ideal of socialism was still unblemished; it was only the personal flaws in Russia's previous leaders which had sent it into decline. Again, it was unclear how to feel in a museum commemorating past intelligence "successes," most of which had served to extend and deepen the power of a corrupt and oppressive regime. I knew kids in my elementary school who were the children of a defector; she had been pursued by the KGB throughout Europe and was convinced that they were still looking for her in the United States. While at the museum, only one member of our tour group, whose family was persecuted during the revolution (some managed to flee, others died in prison), had the temerity to ask about the KGB's less savory actions in the past. The answers were less than enlightening.

The problem of confronting the past certainly isn't unique to Russia -- other countries, such as Germany and South Africa, may have even deeper problems. Without any consensus on the past, though, it's hard to know what Russians will be looking for in a future government. One of our guides in Moscow was convinced that Putin would become a dictator in the next 15 years -- not because of any specific policy, but because the schools and government press had begun to lay groundwork for a cult of personality. Putin had been a good son, an admirable student, a dutiful public servant; everything that schoolchildren had once been taught about Lenin. The idea of a nuclear-armed autocracy on Europe's border is, well, almost as scary as it was the last time -- and perhaps more so, given Russia's extreme weakness in non-military fields. Just as many people sought a scapegoat after the rise of Mao, I wonder whether, in a few years, we'll start debating "Who Lost Russia?"

(Unrelated observation: two of my female friends here have repeatedly expressed the belief that Putin, in addition to controlling the world's largest stock of nuclear weapons, is an intensely attractive man. One even went so far as to obtain two framed pictures of him while in Russia, which are now displayed in her room just as prominently as pictures of her boyfriend.* Personally, I don't know what they see in him--but perhaps women often fall for guys with raw animal charisma, darling blue eyes, and increasingly authoritarian styles of governance...)

Third, and on a much lighter note, I wish to take this opportunity to express my lasting friendship for the people of the Republic of Georgia, who have produced a cuisine deserving of worldwide fame. I'd never gone to a Georgian restaurant before, but having had spectacular meals at two of them ("Cheburychnya" by Vassilevskaya metro in St. Petersburg, and the "Restoran Dioskyuria" off Novy Arbat in Moscow), I'm hoping that I'll be able to find them back in the U.S. We also had a good experience at Caravan Sarai, an Uzbek restaurant in St. Petersburg, from the appetizers (Uzbek horse-meat sausages) to the desserts (memorably mistranslated on the English menu as "Eastern Sweetness"). I know that Georgia and Uzbekistan have more to worry about right now than their cuisine; but it's always fun to discover new aspects of cultures you barely knew existed. The world is a various and beautiful place.

CORRECTION: The pictures of Putin in my friend's room are not, in fact, displayed as prominently as those of her boyfriend. In fact, the photograph of Putin on her desk (wearing a white sweater and bearing a kindly expression) is further from her chair than the seven pictures of her boyfriend on the bulletin board. Moreover, the painted portrait of Putin in a suit, radiating power and authority, is on a small table apparently ill-positioned for viewing elsewhere in the room, while a remaining picture of her boyfriend is on her nighttable. I stand corrected.

2004-03-20T14:29:00.000-05:00

No Posting for a While: On vacation -- check back in early April.

2004-03-15T04:42:00.000-05:00

When Swords are Outlawed: Only outlaws will have swords. (Link via Volokh)

2004-03-14T17:17:00.000-05:00

Letter to the Editors: Printed in last Monday's Harvard Crimson:

To the editors:

"The Case for Separation" (Staff Ed, March 2) objects to "state funds paying for a dogmatic and colored religious education," and fears that the free use of government-funded vouchers would produce "de facto state sponsorship of one religious mindset." Does the staff also wish to prevent welfare recipients from donating to religious charities? Surely the flow of taxpayer dollars into the collection plate constitutes "de facto state sponsorship"—yet such sponsorship is hardly terrifying when it comes, not from the hand of a government bureaucrat, but from the choices of individuals.

Stephen E. Sachs '02
Oxford, U.K.
March 2, 2004

2004-03-11T20:46:00.000-05:00

Pornography and Prostitution, Part III: One final issue, developed late on a Thursday evening with Josh Chafetz (no, not in that way) -- all of the above discussion (Part I, Part II) assumes that the money or object changing hands is uncontroversially a "thing of value." But what if this couldn't easily be proven? Suppose that A is the owner of an asset--shares in a private corporation, very complex financial instruments, the copyright in an as-yet-unpublished work of unspecified sentimental value (say, "The 'Law Merchant' and the Fair Court of St. Ives, 1270-1324")--whose worth is not easily assessed. Whether a sex act conditioned on the transfer of this asset qualifies as prostitution might depend on how the asset is valued in court.

For instance, suppose that persons A and B sign a contract according to which A transfers the copyright to B, B transfers $500 to A, and A and B have sex. According to the Missouri definition, A has committed prostitution only if A has engaged in sexual conduct with B "in return for something of value" to be received by A or a third party C. If the copyright is worth more than $500, then neither A nor any third party C has received something of value; in fact, A lost money on the deal. Furthermore, A has "patronize[d] prostitution" only if A gives something of value to B, in return for which B engages in sexual conduct with A or a third party C. If the copyright is worth less than $500, then A has given nothing of value to B; in fact, B has lost money on the deal.

So convicting A of either prostitution or patronizing prostitution will require establishing the value of the copyright beyond reasonable doubt--or at least whether or not it exceeds $500. The same logic, of course, holds true for B: either A was the prostitute and B the patron, or B was the prostitute and A the patron. It's obvious from the nature of the transaction that A and B have both committed a crime; it's just impossible to know which committed which. And the American legal system (as well as the drafting of the statute) requires that each person be convicted of one or the other offense. This is one of those unusual situations where the affirmative defense to a given crime is having committed an entirely different crime. ("He couldn't possibly have been the gunman, your Honor, because he was too busy transporting minors across state lines.") If A and B were both involved in a murder, but only one person fired the gun, it would be necessary to prove that A was guilty of murder or that A was an accessory to murder--we couldn't simply convict him because he had done at least something bad. And even though the evidence introduced by the defense lawyer might be used against A in another trial, there might be enough uncertainty to produce a reasonable doubt in each case -- in which case A would have to be acquitted on both charges. There's also no possibility of catching A on a general conspiracy charge, at least in the case of prostitution; Missouri's catchall "promoting prostitution" offense--Chapter 567.010(1)--only applies to someone "acting other than as a prostitute or a patron of a prostitute," and A falls into at least one of these categories by definition.

Another concern for valuation -- the asset is a "thing of value" for whom? Is the value of the copyright subjectively determined by the giver or the receiver, or is it objectively determined by a neutral observer? Could A and B both be patrons, and neither prostitutes, if their valuations of the copyright disagree? And what if A transfers to B something that has significant market value, but that B doesn't necessarily want, such as an unmanageably large amount of scrap metal?

I don't pretend to have the answers to these questions, but I think they hold a great deal of promise. To escape liability, prostitutes might choose to condition their sexual favors on highly complex financial transactions. (Imagine a jury in a prostitution case having to work through the Black-Scholes equation.) So long as the payment has been appropriately cloaked, both patron and prostitute will fall through the cracks of the legal system -- an appropriate reward, perhaps, for their entrepreneurial innovation.

2004-03-11T20:45:00.000-05:00

Pornography and Prostitution, Part II: What site logs will tell you: SteveSachs is your Internet source for "pornography and prostitution in Missouri"!

Unsurprisingly, that post has generated a fair bit of reader email. First, PW asks, "Is the sex act without the intent to achieve gratification still the sex act?" According to Missouri Revised Statutes chapter 567.010(4), not necessarily. Most acts, when committed in return for a thing of value, are automatically considered "prostitution" regardless of intent. But others must be "done for the purpose of arousing or gratifying sexual desire of either party." (Which are which? I won't go into detail, because despite what you might think, this is a family website.)

PW also distinguishes pornography from the manufacture of murders-on-film on the grounds that (1) the participants in a pornographic video are willing, unlike the unwilling victim of a murder, and (2) the act of sex is itself legal, while murder is not. I don't think either of these distinctions are material as far as legality's concerned. On the first, the participants in an act of prostitution might also be willing, but that doesn't mean it's legal (although that might, depending on one's libertarian convictions, mean it should be). On the second, even if the sex per se is legal, the situation changes once money gets involved. Donating a kidney is itself legal, but doing so on the understanding that I will be paid by the recipient is not.

KW makes the following business proposal:

on your site you question why some enterprising young DA hasn't gone after prostitution. an equally pertinent question would be why hasn't some enterprising young pimp started filming his prostitutes' transactions (with the camera appropriately concealing the identities of certain parties) and paying a buck to each party involved. the money that he receives from the gentleman is for the tape at the end.

(i'll make millions.)

SP, however, counters with the following real-life example (well, from TV, but close enough):

All I know about prostitution vs. pornography is from LA Law, so bear with me but...

The production of pornography does not need to be protected by the First Amendment in that it is not illegal to have sex. It is not illegal to film someone having sex (with their permission). Under the First Amendment, it is not illegal to sell that film or to earn a profit off of it. Therefore, the "actor" is not being paid to have sex but is in fact being paid for the film rights.

It's a fine line, but the main distinction is distribution. As long as you are making money off of the distribution of said film, then you are not paying them to have sex. But if the tape is never distributed (and this is where the LA Law episode comes in) and you are paying two people to have sex for your own viewing pleasure, that IS prostitution, as you are clearly NOT paying them for the film rights.

At least, that's what the porn industry argues.

...

p.s. The "author" of film, even if copyright is established by contract, is the director. That really pisses off writers, but hey, that's the way it goes. So you say usually say Spielberg's "Indiana Jones," even though Lucas wrote it and Paramount still holds the copyright.

I can understand how this argument might be used in practice, by prosecutors who don't want to make trouble. But to be honest, I can't believe that it would stand up in court if the government really wanted to test it. The actors in a pornographic movie clearly participate pursuant to an agreement that they will receive a "thing of value" in exchange for their actions--namely, a share of the valuable film rights. (They might not know exactly how valuable they might be--but would prostitution no longer be illegal if its practitioners were paid in stock options?)

What's important is that the participants know that they will profit from their sexual activity--and they know that, should they suddenly decide not to have sex once the cameras were rolling, they wouldn't get paid. Having sex is believed to be a necessary condition for payment, and that's all the law demands. (Suppose that A lies to B, and engages in sexual conduct without any intention of actually paying. Under Missouri law, even if no money changes hands, A is still guilty of patronizing prostitution--what matters is that A led B to act in the expectation of reward.)

To provide a better example, suppose that I'm a government contractor, and I inform a procurement official that I would like to film the ceremony at which she awards a contract to my company. In fact, I would be willing to give her a share of the rights to the film's distribution, which will be valuable, because all my wealthy friends want to purchase hundreds of copies. It's not illegal for an official to award a contract to my company. It's not illegal to film it (with her permission). Under the First Amendment, it's not illegal to sell that film or to earn a profit on it. Therefore, the official is not being illegally bribed into sending me a plum contract--she's just being paid for the film rights.

If the film had already been made (and the contract awarded) before any suggestion were made of money changing hands, the transaction would be perfectly legal, and there would be no suspicion of bribery. But because the promise of valuable film rights led to the expectation of reward, I couldn't get out of jail by explaining that it was all in the name of cinema. I don't see why money-for-contracts should be treated any differently from money-for-sex; and I don't know why more prosecutors haven't tried their hand at this approach.

UPDATE: See further post above.