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Wednesday, August 25, 2004

[David Bernstein, August 25, 2004 at 5:07pm] Possible Trackbacks

Janice Brown and "Battered Woman Syndrome"

Justice Brown, whose nomination to the D.C. Circuit has been stalled by Senate Democrats, easily gets the better of her California Supreme Court colleagues in a dissent. The majority's opinion makes it absurdly easy for a prosecutor to present expert testimony claiming that a woman's recantation of a prior claim of a single incident of domestic violence was due to the woman suffering from "Battered Woman Syndrome." The evidence in question clearly didn't meet the specific California statutory standard for the admissibility of this sort of evidence, nor should the evidence have been admitted under California's general expert testimony standard, which requires that expert testimony "assist the trier of fact." Even granting the (very controversial) theory behind "Battered Woman Syndrome," mainstream advocates of the theory haven't been known to claim that a single violent incident creates the "learned helplessness" that is a hallmark of the sufferer of the syndrome. Justice Brown has once again shown why she deserves to be a D.C. Circuit judge.

[Eugene Volokh, August 25, 2004 at 2:47pm] Possible Trackbacks

Silly supposed math conundrum:

I'm amazed how often people think there's some puzzle about whether zero is odd or even. (Do a google search on "is zero even" and you'll see.) The question has even made its way into news stories, usually when some government institutes "odd-even" gasoline rationing in which the days you can buy gas depend on whether the last digit of your license plate is a 0.

The answer couldn't be simpler: Zero is even because it is exactly divisible by 2 (i.e., when divided by 2 it yields no remainder) or, if you prefer, because it is a multiple of 2 (just as 2, 4, and the like are). That's the dictionary definition, and it's also the standard mathematical definition.

Nor would there be any reason to define evenness the same way. Mathematical definitions are sometimes chosen with an eye towards convenience, for instance when prime numbers are defined to exclude 1, so as to guarantee that every positive integer above 1 has a unique prime factorization. One could define prime numbers so that 1 is included (any positive integer that's divisible only by 1 and itself) rather than so 1 is excluded (any positive integer that has exactly two different positive integer divisors); but mathematicians have chosen the latter definition for their convenience. Still, I know of no reason why evenness would be defined so 0 wouldn't be even, and I've never seen any such odd definition. (Of course, zero isn't an even positive integer, but that's because it's not positive, not because it's not even. I've also heard it said that in some versions of roulette, if you bet on the evens, you'll lose if the ball lands on 0, but naturally doesn't really tell us much about the mathematical definition.)

Incidentally, I once ran across an article whose author was saying some political question was unanswerable, much like the question whether zero is even. I e-mailed him to say that the is-zero-even question is very much answerable. He responded with an apology, and a suggestion that he should have used some other example, such as "Is there an infinite number of primes?"

I felt compelled to respond that actually there is an infinite number of primes, and there's an elegantly simple proof developed of this over 2000 years ago (by Euclid). Ah, the perils of drawing analogies to a subject that one doesn't really know well.

[Todd Zywicki, August 25, 2004 at 11:34am] Possible Trackbacks

SOFT DRINKS AND OBESITY:

A front page story in today's Washington Post suggests that increased consumption of soft drinks by children and adults helps to explain America's obesity crisis. It also suggests that this finding lends support to efforts to ban vending machines in schools.

First, it is clear that if you drink alot of regular soft drinks, you will probably gain weight--an increase in calories consumed without offsetting increases in calorie expenditures leads to increased weight. Second, it appears that liquid calories are processed differently in the body from food colories--whereas food calories tend to displace the desire for other calories to at least some extent (a snack tends to decrease your appetite at meals), liquid calories do not offset to the same extent. Third, the science suggests that high fructose corn syrup is especially problemmatic, in that it appears that the body does not metabolize it the same way as sugar, and thus it gets converted into weight gain more rapidly.

But can the increase in obesity be explained by an increase in soft drinks? Kelly Brownell thinks so. "This is a strong study, which joins a number of others in showing that soft drink consumption is related to poor diet and obesity, yet the soft drink industry says the opposite," said Kelly Brownell, who is director of the Yale University Center for Eating and Weight Disorders. "They lose credibility by the day. Reducing soft drink consumption may be a powerful means of addressing the obesity crisis." Brownell, of course, has argued without trace of irony that America's toxic food culture simultaneously causes anorexia and obesity.

But what does the data show on soft drink consumption? Note the following graph on beverage consumption, taken from the USDA's food disappearance data (the standard data set for tracking these sorts of things):

(If you have trouble reading the chart because it is small, just click on it and it opens in a new larger window.)

As this quite plainly shows, soft drink consumption has been largely constant for about 15 years (as has diet sodas). Ironically, bottled water is the fastest-growing component of beverage consumption.

Studies also indicate that soft drink consumption for children at all ages has been largely constant over this period as well. There does seem to be some increase in the consumption of fruit drinks, such as fruit boxes, which may account for some of the problem.

What about vending machines? Well, according to the data, only 4 percent of soft drink consumption by children, and only 3 percent of children purchase soft drinks from vending machines. See Simone A. French, Biing-Hwan Lin, and Joanne F. Guthrie, National Trends in Soft Drink Consumption Among Children and Adolescents Age 6 to 17 years: Prevalence, Amounts, and Sources, 1977/1978 to 1994/1998, 103 J. AM. DIETETIC ASSOC. 1326, 1329 (2003). About half of soft drink consumption comes at home and most of the remainder comes at restaurants. Thus, the overwhelming majority of soft drink consumption by children comes under parental supervision. There is thus little reason to believe that removing vending machines from schools will do much at all to reduce childrens' obesity.

In fact, children's soft drink consumption--like all aspects of children's diets--has followed exactly the same trends in recent years as their parents. In short, kids eat--and drink--what their parents eat and drink. I have a chart showing this in my powerpoint presentation that I gave at Cato in June.

Once I finish up my series on direct shipment of wine, I'll discuss these issues in greater depth.

Update:

Matthew Malewski at FROG takes me to task for my overly-casual presentation of the science of HFCS in my earlier post. I plead guilty and refer you to Matthew's blog for a more precise statement of the science involved. I agree that the research is inconclusive at this point, but my impression is that the hypothesis is plausible enough to warrant further testing.

[Eugene Volokh, August 25, 2004 at 11:25am] Possible Trackbacks

O'Reilly Radio:

I should be on Bill O'Reilly's radio show today at 10 am Pacific, talking about the First Amendment rules that would apply to protests at the Republican National Convention.

[Todd Zywicki, August 25, 2004 at 10:07am] Possible Trackbacks

10TH CIRCUIT UPHOLDS FUNERAL DIRECTOR'S MONOPOLY ON BOX SALES:

Disappointing decision by the 10th Circuit in Powers v. Oklahoma this week upholding Oklahoma's law permitting only licensed funeral directors to sell caskets. Why someone would need a to embalm 25 bodies, pass a licensing examination, and complete a specified 60-credit program of undergraduate training for the required funeral director's license just to sell a box remains unclear to me. Indeed, given the complete lack of any link between box-selling and embalming, it is surprising that the funeral home directors don't just go ahead and have their monopoly extend to all forms of box-selling, including cardboard boxes and luggage.

These restrictions have always struck me as especially distasteful, in that these guys mark up their caskets by a couple hundred percent and take advantage of people who may be grieving. To add insult to injury, the price-gouging morticians defend their practices by saying that they are proctecting people in their time of need.

One of the more disturbing aspects about this opinion is that it suggests that protecting an interest-group from economic competition is itself a legitimate government purpose. "In contrast, the Supreme Court has consistently held that protecting or favoring one particular intrastate industry, absent a specific federal constitutional or statutory violation, is a legitimate state interest." On the other hand, there is a refreshing honesty to the court's characterization of the realities of the political process (especially when it comes to regulation of the licensed professions): "We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." The court goes on to state, however, "While the creation of such a libertarian paradise may be a worthy goal, Plaintiffs must turn to the Oklahoma electorate for its institution, not us."

In fact, according to FTC studies of the funeral industry, it turns out that in many families there is one person who essentially specializes in buying funerals--i.e., "Uncle Joe" or "Aunt Sue" handles all the funeral arrangements for family funerals. So in fact the decision-maker can and will shop--if given the chance. These sorts of laws like the Oklahoma decision in Powers instead just deliver up consumers to get ripped-off by a licensed monopoply. And it has been well-recognized since at least Mancur Olson that the political process is likely to fail in exactly this situation--where there is a delivery of concentrated benefits to a well-organized interest group and the costs are borne by dispersed consumers as a whole who lack the incentive and ability to organize themselves to overturn these regulations. Indeed, in this situation the incentives would appear to be even more attenuated, in that purchase of funeral goods and services is at best a rare shopping incursion, distinguishing it from such goods and services as plumbers, lawyers, and doctors.

The 10th Circuit's opinion creates a circuit split with the 6th Circuit's decision in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002), so perhaps this will make the issue ripe for Supreme Court cert.

A nice summary and analysis is provided by Fritz Schrank at sneakingsuspicions.com, who brought the decision to my attention.

Tuesday, August 24, 2004

[Eugene Volokh, August 24, 2004 at 7:14pm] Possible Trackbacks

More on the Harper's error:

I called Harper's, and was told that Lewis Lapham would have an explanation of the error (they acknowledged it was an error) in the October issue, which should be out about a month from now. To their credit, by the way, someone called me back from Harper's within an hour.

I should have asked -- and I encourage others to call them to ask -- whether they'd be distributing the explanation earlier. They do have a Web site, after all. Bloggers who make a mistake can and generally do correct it, apologize for it, or explain it (or some combination of these) within hours or days. Seems to me Harper's ought to as well, no?

[Todd Zywicki, August 24, 2004 at 7:04pm] Possible Trackbacks

CARLY FIORINA ON GLOBALIZATION:

While on the topic of great speeches by public figures, I commend to all a remarkable speech by Carly Fiorina of HP in support of globalization. She is extremely effective in providing anecdotes and personal stories that support the abstract insights of economic theory on why globalization is good for the poor.

Using Thomas Sowell's effective insights and terminology from A Conflict of Visions, this speech is a nice example of how to sell globalization to those who have an "unconstrained" vision of human nature, as opposed to the "constrained" vision of economists.

[Todd Zywicki, August 24, 2004 at 6:53pm] Possible Trackbacks

NOTE ON "THE TIMES":

In response to my earlier designation of the Washington Times as the "Good" Times, a friend of mine remarked that I'm the only person in America who reads the New York Times solely for the sports news (last year I had 2 Giants and 1 Jet on my fantasy football team). Strange, but true.

[Juan Non-Volokh, August 24, 2004 at 5:28pm] Possible Trackbacks

Why Bush Bashes 527s:

When President Bush signed the McCain-Feingold campaign finance law, he made clear that he did not care all that much about legal protection for political speech. (Ditto the Supreme Court when it upheld the law.) So no one should be surprised that Bush is now calling for an end to independent political advertisements, such as those run by "527" organizations. After all, eliminating these "shadowy" groups is clearly in the President's political interest (contrary to the suggestions of Matt Yglesias and Amy Sullivan).

While there are prominent GOP-leaning 527s, the vast majority of 527 money is flowing to anti-Bush organizations. As detailed on OpenSecrets.org, most of the multi-million-dollar 527s are lined up against the President. Indeed, only one of the ten largest 527s, the Club for Growth, is anti-Kerry. Yet much of the Club's money goes to support "pro-growth" House and Senate races and to defeat Republican lawmakers who vote to raise taxes. Yglesias cites to the National Federation of Republican Women, but they're only the 49th largest 527 listed by OpenSecrets.org. Losing the benefit of NFRW and other small groups would be a small price for the GOP to pay in return for eliminating the Media Fund, America Coming Together, and MoveOn.org -- just to name three of the largest 527s in the nation, each of which opposes Bush with sums that make NFRW's budget look like chump change.

Let me be clear: I oppose the President's position on 527s. I am against most, if not all, limits on campaign speech -- including those by independent groups. The President was wrong to sign McCain-Feingold into law, and he is wrong again here. I would further argue that fewer donors would give to such independent groups -- and we'd have fewer "shadowy" ads -- if it were easier to give larger amounts directly to candidates or to provide traditional "soft money" contributions to political parties. President Bush's position strikes me as rank opportunism -- and it is so , in part, because 527 contributions have overwhelmingly benefitted his opposition.

[Todd Zywicki, August 24, 2004 at 5:06pm] Possible Trackbacks

ENVIRONMENTALIST BOBOS:

t has long been my belief that environmentalism in practice is really more of a religious lifestyle, rather than a science-based effort to actually protect the environment. My article "Baptists? The Political Economy of Environmental Interest Groups" makes this argument. Two articles from yesterday's headlines shed some light on the subject of whether environmentalists are really "civic republicans" or rather just acting out of economic self-interest, broadly defined.

The first is an article from the Washington Post, which notes that the Toyota Prius car is dramatically outselling the Honda Civic Hybrid car. The main reason? From the article: "The Prius and Civic have similar new technologies, so it's not just fuel efficiency that's causing drivers to flock to Toyota's hybrid. 'The Prius is a fashion statement,' said Art Spinella, a consultant with CNW Marketing Research who surveys car-buying trends. 'It looks different. Other people know the driver is driving a hybrid vehicle. It clearly makes a bigger statement about the person than does the Civic, which basically looks like a Civic.'"

Turns out that Prius buyers buy their cars for the same reason that generations of Americans have bought Camaros, Corvettes, or Cadillacs--they like the image that it projects to the world. "That's classic car-buying behavior, said Michael Marsden, dean of academic affairs at St. Norbert College in Wisconsin and an expert on popular culture. 'Automobile culture has always been about status. The whole industry is based on symbols,' he said. 'With the Prius, you're bringing attention to yourself . . . saying, "I bought something upscale, something people will talk about." It is a conversation piece, an attention-getter.'"

A second article (that I saw referenced in the Good (i.e., Washington) Times notes a study of the leadership of environmental interest groups and their salaries. Amazingly, according to the report, the head of NRDC earns $368,000 per year and the head of EDF earns $327,000. Nonetheless, I have been criticized for my thesis that economic self-interest explains some part of the actions of environmental interest groups. Keep that in mind the next time NRDC passes the offering plate, er, I mean, requests a donation to save some endangered species.

Update:

There's a great speech by Michael Crichton by the good folks at PERC on the topic of environmentalism as a religion that I hadn't seen before.

Thanks to Bob Ayers for the pointer.

Update:

An alert reader notes an extended critique of Crichton's speech. Obviously I'm not endorsing every fact in Crichton's speech in commending it as reading material, although I think the general thesis is insightful.

[Todd Zywicki, August 24, 2004 at 4:37pm] Possible Trackbacks

WINE WARS, PART 11�SUBSEQUENT LEGISLATIVE ENACTMENTS:

An alternative argument that has been offered is that even if the 21st Amendment does not transfer Congress's commerce clause authority to the states, Congress essentially reconveyed its commerce clause power to the states legislatively through the Webb-Kenyon Act. Thus, the dormant Commerce Clause is said to be irrelevant to this case, because protectionist state laws have been enacted pursuant to an affirmative exercise of Congress's Commerce Clause power, not in contravention of the dormant Commerce Clause.

First, as noted earlier, this is clearly not what was initially done through the Webb-Kenyon Act, as the previously quoted colloquy between Sen. Wagner and Sen. Blaine made clear that Congress was affirmatively exercising its Commerce Clause authority to allow the states to apply their police powers to liquor shipped in interstate commerce on the same basis as domestically-produced liquor.

It is argued that the enactment of the Twenty-First Amendment Enforcement Act in 2000, 27 U.S.C. §122a, as an amendment to the Webb-Kenyon law, further evidenced this recoveyance of power. By its own terms, however, the Twenty-First Amendment Enforcement Act applies only to a state law "that is a valid exercise of power vested in the States" under the 21st Amendment, and further provides that the act "shall not be construed to grant the States any additional power." 27 U.S.C. §122a(e).

This language was designed precisely to preclude the argument now advanced that the Act could be used to enforce discriminatory state laws. This language was a more general statement of the original "Goodlatte" amendment which had passed the House, and which provided, "No State may enforce under this Act a law regulating the importation or transportation of any intoxicating liquor that unconstitutionally discriminates against interstate commerce by out-of-State sellers by favoring local industries, thus erecting barriers to competition and constituting mere economic protectionism." 145 Cong. Rec. 6868; see also 145 Cong. Rec. 6869.

Legislative history makes clear that the purpose of the Goodlatte Amendment and the language eventually enacted, was designed specifically to reject the idea that protectionist state laws are consistent with Webb-Kenyon and the 21st Amendment. Congressman Cox for instance stated, "In vindicating the purposes of the 21st Amendment, a State cannot discriminate as mere economic protectionism against other sellers, other producers in the rest of the United States." Id. at 6871. Similarly Congressman Conyers stated, "[The amendment] will make it clear that neither this act nor Webb Kenyon are in anyway designed to supersede any other provision of the Constitution, such as the first amendment or the Commerce clause (including the so-called `dormant' Commerce clause. Id. at 6873. Congressman Kolbe added, "The 21st Amendment was designed to give States the power to regulate alcohol sales within their States, and to ban it altogether, if they choose. It was not designed to give States the power to keep the wine sales of some distributors out while allowing others in." Similar comments were offered by Senate supporters of the language that was finally enacted. Statement of Sen. Feinstein, S. Hrg. 106-141 (March 9, 1999).

Indeed, if the states' interpretation of the 21st Amendment were adopted, it would cast into doubt all of Congress's power to regulate interstate commerce in alcohol. Among other things, this could interfere with federal efforts to combat terrorism. For example, a federal provision, passed after the attacks on September 11, 2001, to reduce the number of bulky packages on airlines, permits wineries to ship wine directly to consumers if the wine purchaser "was physically present at the winery" at the time of purchase, is "of legal age to purchase alcohol," and "could have carried the wine lawfully into the State * * * to which the wine is shipped." 27 U.S.C. 124. Consistent with a proper interpretation 21st Amendment, this law respects state laws governing purely local alcohol issues, but regulates the manner in which otherwise lawful alcohol imports can be shipped through interstate commerce in the interest of national security. If the Supreme Court adopts the expansive definition of the 21st Amendment as a tender of plenary power over interstate commerce to the states, however, this anti-terrorism law would likely be unconstitutional.

It is remarkable to me, that given the importance of the War on Terrorism, federal officials have not been more alert to recognizing an adverse decision in the wine cases could potentially interfere with the federal government's war on terror.

[Eugene Volokh, August 24, 2004 at 3:25pm] Possible Trackbacks

Lawyer demographics:

My colleague Rick Sander is one of the researchers on the "After the JD" project; they're interviewing a huge (about 3800) and fairly representative sample of people who graduated from law school in 2000, and they're just beginning to come up with data. (They intend to interview them again on several occasions in the years to come.) Rick gave a great presentation at UCLA yesterday about it, and much of the data will be posted on the NALP Foundation and American Bar Foundation sites.

Here's one tidbit, far from the most important one, but one that I thought might be interesting, from p. 19 of the study:

2.5% of the [After the JD] respondents reported that they are gay or lesbian. This figure is not very different from the 2.1% of the general population, and 3.5% of the college educated population, that self-identified as homosexual in the 1991 Laumann et al survey . . . .

A footnote notes that "Given that younger people may be more likely to report homosexuality, and that more people are openly gay now than a decade ago, it is likely that the AJD sample reflects some underreporting by the respondents. Those who reported being gay or lesbian were distributed very much like the rest of the respondents by gender, race, practice settings, and income, with a slight geographic overrepresentation in New York and San Francisco."

The data can't be entirely precise, partly because of the limitations of self-reporting, and partly because homosexuals are such a small part of the population that random variations might throw off the numbers considerably. (Also, I'm not sure how the study treated bisexuals; I hope to get more data soon on that.) But it does seem that homosexuals are roughly as represented in law as they are in the population at large.

On the other hand, one can't make the same claim about Jews; Jews are 2% of the full-time working population, but 7% of the survey respondents said they were Jewish (p. 20). Some stereotypes are indeed accurate.

The survey also reported that 30% self-reported as Protestant, 27% as Catholic, and 23% as having no religious identity, which suggests that the irreligious are also overrepresented, though of course "no religious identity" can be defined very differently in different contexts, and it's thus hard to compare these numbers across surveys. (Note also that some of the 23% might be secular Jews, so the Jewish numbers might be higher than 7%.)

[Eugene Volokh, August 24, 2004 at 2:45pm] Possible Trackbacks

Editors writing things they know are not accurate:

I at first didn't want to get too outraged about Lewis Lapham's writing -- before he actually had a chance to see the Republican convention -- about "the platform on which [George W. Bush] was trundled into New York City this August with Arnold Schwarzenegger, the heavy law enforcement, and the paper elephants," and adding

The speeches in Madison Square Garden affirmed the great truths now routinely preached from the pulpits of Fox News and the Wall Street Journal--government the problem, not the solution; the social contract a dead letter; the free market the answer to every maiden's prayer--and while listening to the hollow rattle of the rhetorical brass and tin, I remembered the question that [Richard] Hofstadter didn't stay to answer. How did a set of ideas both archaic and bizarre make its way into the center ring of the American political circus?

The falsehood was so obvious (Harper's subscribers would read this before the convention), and its obviousness must have been so obvious to Lapham, that it's hard to see this as a deliberate lie. If a 5'6" man tells you he's 5'8", that might be a lie. If he tells you he's 6'6", then it seems like something else -- a joke, maybe, or a delusion, or irony that's way too deep for me.

But I wonder what that "something else" here. One explanation is that Lapham wrote the column to be published after the Convention -- but that's really not an innocent explanation: He's writing that he listened to something, and giving his characterization of what he heard (or at least heard about), even though at the time of writing he hadn't actually listened to it, and thus had no opportunity to characterize things accurately.

A more innocent explanation might be that he wrote this as a draft, meant to go back to update this if necessary, but somehow the article slipped out early. That's an odd way to write a column, and bespeaks a certain closed-mindedness: I'd think most writers would have left the paragraph blank, and filled it in afterwards, perhaps with some telling details and with an eye towards reflecting the actual proceedings -- yes, conventions are predictable, but they're not completely predictable, so why mentally box oneself in with a first draft? Nonetheless, different writers write differently, and in principle if a writer wants to write a draft of what he expects the article to be like, with the expectation that he'd revise it later, that's fine.

But is this really what Lapham did? Or did he just say "Hey, I'll just write it now as if I'd seen the whole thing, and send it now to be printed as is later"? If it's the latter, then shouldn't someone announce, well, a scandal or something?

Also, if this really was a screw-up, how many people had to have screwed up for something like this to happen?

[Eugene Volokh, August 24, 2004 at 2:27pm] Possible Trackbacks

Michelle Malkin responds to Cathy Young

here. I linked to Cathy's column, and provided an excerpt here.

[Eugene Volokh, August 24, 2004 at 1:03pm] Possible Trackbacks

Lewis Lapham in Harper's:

Good thing that people still read the reliable, credible Real Media instead of those nasty inaccurate, un-fact-checked blogs. That way, they get the benefit of what Jacob Sullum (whose work I have generally found quite trustworthy) says is Lewis Lapham's clairvoyance:

In the latest issue of Harper's, Lewis Lapham has a long, tiresome essay on the "Republican propaganda mill" . . . . [Important substantive criticisms by Sullum omitted, in the interests of getting to the shallower but juicy stuff. -EV]

Perhaps the most revealing part of the article is the paragraph where Lapham pretends to have heard the speeches at the Republican National Convention that does not open until a week from today. Referring to "the platform on which [George W. Bush] was trundled into New York City this August with Arnold Schwarzenegger, the heavy law enforcement, and the paper elephants," Lapham writes:

The speeches in Madison Square Garden affirmed the great truths now routinely preached from the pulpits of Fox News and the Wall Street Journal--government the problem, not the solution; the social contract a dead letter; the free market the answer to every maiden's prayer--and while listening to the hollow rattle of the rhetorical brass and tin, I remembered the question that [Richard] Hofstadter didn't stay to answer. How did a set of ideas both archaic and bizarre make its way into the center ring of the American political circus?

True, the issue is dated September, but I got my copy in early August, and Lapham must have written those words in July. . . .

Ramesh Ponnuru (of the National Review) noted the same thing.

Is there some context here that Sullum or Ponnuru are omitting, which might make this make sense (for instance, if Lapham makes clear that this is his prediction, or that he's joking, or some such)?

Seriously, if Sullum's account (and Ponnuru's terser account) is correct and in context, this is the editor of a leading magazine knowingly making factual assertions — that he was at some place and heard some things — that aren't true. Not very good behavior, it seems to me.

The odd thing is that of course Harper's readers will realize they aren't true. What happened here? Did he prewrite the article, and then accidentally release it too early? (That would actually be pretty bad as well, unless he had been planning to go back to revise it in light of what he actually heard at the convention.)

UPDATE: Readers Michelle Dulak and Dick Riley (who regularly read Harper's) confirm that there's nothing in the context that would change Lapham's meaning.

[Eugene Volokh, August 24, 2004 at 11:58am] Possible Trackbacks

Air America gun control debate:

A couple of readers pointed me to this file, which they say contains the Air America gun control debate I was involved in last Friday. I haven't yet been able to check it myself, or to figure out where in the file the debate starts, but I thought I'd pass it along in any event.

UPDATE: A helpful reader reports that the debate starts at around 44:00 in the program.

[Juan Non-Volokh, August 24, 2004 at 7:55am] Possible Trackbacks

Bohener v. McDermott Redux:

In 1996, Representative Jim McDermott obtained a tape of an illegally intercepted cellphone call between Representative John Boehner, then-Speaker Newt Gingrich, and other members of the House Republican leadership. McDermott turned the tape over to the New York Times, which published a story on the tape's contents, and Rep. Boehner sued. The district court initially dismissed the case on First Amendment grounds, the U.S. Court of Appeals for the D.C. Circuit reversed, and then the Supreme Courtvacated the D.C Circuit's opinion and remanded the case in light of another decision holding the relevant statute unconstitutional on First Amendment grounds.

Now, back at the district court, Rep. Boehner appears to have won the case (for the time being). In this opinion released yesterday, Judge Hogan distinguishes the relevant Supreme Court holding and holds for Rep. Boehner. According to Judge Hogan, "because Defendant McDermott participated in an illegal transaction when he accepted the tape from the Martins, he is without First Amendment protection and Plaintiff Boehner is therefore entitled to judgment as a matter of law." A subsequent hearing will determine the extent of the damages.

As one might expect, the New York Times is not happy. "Judge Hogan's decision may be extremely harmful," commendted one of the paper's attorneys, "since it goes well beyond past cases to hold that a totally passive recipient of information, who did not solicit or pay for it, can be held liable. Under this new rule, much of the information reporters acquire every day, from the Pentagon Papers on down, would become legally suspect." The case will certainly be appealed, and the key issue will be whether the distinction drawn by Judge Hogan holds.

[Todd Zywicki, August 24, 2004 at 7:03am] Possible Trackbacks

WINE WARS, PART 10�PROPOSED BUT NOT ENACTED §3 OF THE 21ST AMENDMENT:

The contemporaneous debates in Congress over the proposed but never enacted §3 of the 21st Amendment further indicate that the purpose of §2 was to restore the constitutional balance disrupted by the 18th Amendment by returning local police power authority to the states, but not to grant to the states new powers to interfere with federal authority over interstate commerce. Defenders of state alcohol protectionism have relied heavily on the defeat of this section as well as the debates surrounding it to suggest that it evidences an intent of Congress to give wet states a sword to engage in economic warfare against one another, as opposed to simply giving dry states a shield to protect themselves against being forced to tolerate evasions of their alcohol regimes. As a result, even though it was never enacted, it is an important part of the 21st Amendment debate.

Again, the entire thrust of the debate over §3 was whether the states would have sole control over local affairs governing alcohol, neither §3 itself nor the debates over it pertain to whether the states would be given new unprecedented, unjustified, and unnecessary powers to regulate interstate commerce, but merely to constitutionalize the Wilson Act and Webb-Kenyon, thereby enabling the states to apply their police power regulations on the same terms to alcohol shipped in interstate commerce equally as to alcohol produced inside the state.

Proposed §3 of the 21st Amendment read: "Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." 76 Cong. Rec. 4141. This provision would have given the federal government concurrent power with the states to regulate saloons. Id. (Statement of Sen. Blaine). Notwithstanding this enumeration of "concurrent" power, however, the operation of the Supremacy Clause meant that federal law would prevail in the event of conflict. Id. at 4143 (Statement of Sen. Wagner). Critics of §3 objected that this intermingling of state and national authority was precisely the source of the problems that plagued effective enforcement of national Prohibition under the 18th Amendment in that it encouraged federal meddling in wholly local police power affairs governing alcohol. See Part 8. Senator Wagner similarly observed, "The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility. No law can live unless it finds lodgment in the public conscience and is nourished by public support."

As Senator Wagner observed in his criticism of proposed §3, the purpose of the 21st Amendment was to "restore the constitutional balance of power and authority in our Federal system which [had] been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution." Cong. Rec. at 4144 (Statement of Sen. Wagner). By contrast, §3 would give to the federal government a new power that it lacked prior to the enactment of Prohibition-what would amount to a general police power authority to regulate in the area of saloons, an intrastate transaction that Congress otherwise would have been unable to reach under the prevailing interpretation of the Commerce Clause during that era. The federal government has no independent police power authority (as most recently noted in Lopez), and could not likely have regulated the purely local transactions described in §3 under the prevailing interpretation of the Commerce Clause at that time, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542-548 (1935). As a result, the deletion of §3 was sufficient to remove the federal government from conflict with the states' intrastate police power.

Senator Wagner noted that while the 21st Amendment as proposed "pretends to restore to the States responsibility for their local liquor problems," because of proposed §3, it "does not in fact repeal the inherently false philosophy of the eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed ...." Cong. Rec. at 4144 (Statement of Sen. Wagner); see also id. at 4147 (noting that §3 could enable Congress to comprehensively regulate local issues related to saloons). As a result of §3, the 21st Amendment would "expel[] the system of national control through the front door of section 1 and readmit[] it forthwith through the back door of section 3." Id. at 4147. Because proposed §3 was inconsistent with the goal of restoring the pre-18th Amendment constitutional balance, it was deleted. Just as the grant of a new power to Congress to effectively engage in police power regulation of saloons was considered an undesirable departure from the pre-Prohibition constitutional balance, so too would an unprecedented plenary power of the states to impose discriminatory barriers to interstate commerce.

Thus, §3 would not merely have been a minor incursion on absolute state power over all aspects of liquor sales and importation. Rather, it was an incursion of a specific kind—it would have retained the de facto federal police power of the 18th Amendment that had proven so disastrous as both a policy and a constitutional principle.

Note that if it were true that §2 gives the states plenary power over interstate commerce in alcohol, then if §3 had been enacted it would have created a regime where the states regulated interstate commerce in alcohol and the federal government would have regulated the local operations of saloons (due to its primacy under the supremacy clause). It is a far more plausible interpretation of §2 and §3 together that the former provision meant to restore the traditional constitutional balance and the latter was inconsistent with this goal.

[Orin Kerr, August 24, 2004 at 12:23am] Possible Trackbacks

The Supreme Court and Life in the 1950s:

I recently came across Kremen v. United States, 353 U.S. 346 (1957), an old Fourth Amendment decision. FBI agents located a fugitive in a secluded cabin; after arresting the fugutive and two other men, agents seized the entire contents of the cabin and sent the contents off to FBI headquarters. The Supreme Court issued a very short per curiam opinion saying without analysis that this was impermissible. The case doesn't say much about the law, but I was struck by the very interesting list of items seized from the cabin included as an Appendix to the Court's opinion. The Appendix lists about 200 items — everything in the cabin, I assume — and gives us an interesting insight into life in the mid-1950s. (Ok, so it's not like everybody lived in a cabin in the 1950s, but you get the idea.) Here are just a few items on the list:

1 Package lighter flints - Ronson
1 Prince Albert tobacco - pocket size can
1 Ronson cigarette lighter & cigarette case combination (empty)
1 Jar scalp pomade, dark, by Ogelvie Sisters, N. Y.
2 Tubes toothpaste, Chlorodent (1 small & 1 large size)
1 Bottle Pepto Bismol, marked 98
1 Can Sopronol for athletes foot
1 Can Rise Shave Cream marked "59" on side
1 Newspaper clipping captioned, "Drive Two Hours - Then Rest"
1 Yellow plastic toothbrush in case
1 Cash register receipt, dated 4/10 for $1.88 to Palmer's Drug Store, Hayward, California
1 RCA portable radio, Model B X 57
1 Sentinel portable radio with plastic case, Model 316P, serial 29004
1 Pair black rubber overshoes
2 Windshield wiper blades
1 Clipping - "San Jose Evening News," 8/26/53 (Inside Labor)
30 Sheets unused stencil paper
1 Columbia record - "Edith Piaf Encores"
1 Pair white bobby soxs
1 Portable Royal typewriter, serial #0-431783

To see the whole list, click on the link above and scroll down a bit.

Monday, August 23, 2004

[Eugene Volokh, August 23, 2004 at 11:04pm] Possible Trackbacks

Perfect sand:

Slate has the story on the exacting sand standards required by serious beach volleyball competitions. Surprisingly interesting.

[Todd Zywicki, August 23, 2004 at 7:55pm] Possible Trackbacks

WINE WARS, PART 9�THE 21ST AMENDMENT §2:

At last, we get to the 21st Amendment. Section 1 simply repeals the 18th Amendment ("Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed."). Section 2 of the 21st Amendment provides, "Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." As noted in Part 8, the problem with Prohibition was that it tried to nationalize alcohol prohibition by imposing it on communities that didn't want it. In other words, not only was alcohol regulation traditionally a local affair, but there was good reasons why. The 21st Amendment essentially amounted to a "do over"—it was intended to restore the constitutional and political balance that had been upset by the 18th Amendment by removing the federal government from interfering in local affairs regarding alcohol and reinstating state police power authority over alcohol regulation.

In addition, the 21st Amendment also constitutionalized the Wilson and Webb-Kenyon Acts, thereby assuring dry states that the public sentiment that led to the repeal of Prohibition wouldn't sweep within it a repeal of the Wilson and Webb-Kenyon Acts which had provided assurance to dry states that they wouldn't be forced to accept interstate alcohol shipments. By contrast, there is nothing in the history that led up to the ratification of the 21st Amendment to suggest that there would have been any reason to give the states plenary power over interstate commerce regarding alcohol. This Part will discuss §2, which was intended to reinstate the regime that prevailed prior to the 18th Amendment. The next entry will discuss proposed but never enacted §3, which as will be seen, was rejected because it was inconsistent with the purpose of the 21st Amendment to restore the constitutional balance that had been interrupted by national prohibition.

Section 2, therefore, was designed aid dry states in the valid exercise of their police power "constitutionalizing" the statutory protections previously afforded by the national government to the states. "The wording of §2 ... closely follows the Webb-Kenyon and Wilson Acts, expressing the framers' clear intention of constitutionalizing the Commerce Clause framework established under those statutes." Craig, 429 U.S. at 205-06. In particular, dry states were concerned about the continued political and constitutional validity of Webb-Kenyon following the repeal of Prohibition, so dry states desired that their ability to remain dry be written into the Constitution to prevent against backsliding by Congress or the Supreme Court.

Although the constitutionality of Webb-Kenyon was upheld in Clark Distilling, at the time of its enactment there were serious questions about its validity. Indeed, President Taft initially vetoed the law because he considered it unconstitutional, 49 Cong. Rec. 4291 (1913) a view that was shared by Attorney General Wickersham at the time, 30 Op. Att'y Gen. 88 (1913). It was also noted that the Supreme Court's opinion in Clark Distilling was a "divided opinion," that there had been changes in the membership of the Court that cast further doubt on the vitality of Clark Distilling, in that Justice Sutherland had been in the Senate when Webb-Kenyon was passed and had argued against its constitutionality at that time. 76 Cong. Rec. 4170 (Statement of Sen. Borah), and that there was continuing debate about the constitutionality of Webb-Kenyon, see id. (expressing dry states' fear that Webb-Kenyon "might very well be held unconstitutional upon a re-presentation of it"). Senator Borah also noted that from its very inception, there had been aggressive legislative and litigation efforts to overturn Webb-kenyon.

Senator Blaine expressed nearly identical sentiments in his remarks: "In [Clark] there was a divided opinion. There has been a divided opinion in respect to the earlier cases, and that division of opinion seems to have come down to a very late day. So to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line." 76 Cong. Rec. 4141 (Statement of Sen. Blaine).

Senator Borah similarly explained that he was "rather uneasy about leaving the Webb-Kenyon Act to the protection of the Supreme Court of the United States," Id. at 4171, nor was he comfortable "rely[ing] upon the Congress ... to maintain indefinitely the Webb-Kenyon law " 76 Cong. Rec. 4170 (Statement of Sen Borah). To remove these constitutional and political uncertainties, the Amendment's sponsor Senator Borah explained that §2 would "incorporat[e Webb-Kenyon] permanently in the Constitution of the United States." 76 Cong. Rec. 4172 (statement of Sen. Borah). As Judge Easterbrook wrote in Bridenbaugh, "Like the Wilson Act and the Webb-Kenyon Act before Prohibition, §2 enables a state to do to importation of liquor-including direct deliveries to consumers in original packages-what it chooses to do to internal sales of liquor, but nothing more." Bridenbaugh, 227 F.3d at 853.

Finally, the legislative history is rife with references to the fact that what this was about was the power of the states to effectuate their police power. Borah states, for instance, "We hear a great deal in these days about the eighteenth Amendment destroying the police powers of the states. I venture to say that anyone who has taken the trouble to familiarize himself with the destruction of the police powers of the States relative to the liquor question will have to conclude that the police powers had been destroyed prior to the adoption of the eighteenth amendment, taken away from the States prior to that time through the decisions of the Supreme Court of the United States and the constant and persistent attack of the liquor interests upon the rights of the States to be dry and to exercise their police powers to the end that they might be dry."

There is no indication that §2 was intended to anything more than assist dry states in the exercise of their police powers by treating interstate liquor the same as in-state. It was well-established by this time that the state police powers did not provide a license to discriminate, and there is no indication that §2 was intended to give wet states new, unprecedented, unmentioned, and illogical powers to erect protectionist barriers against other states' products.

[Eugene Volokh, August 23, 2004 at 7:28pm] Possible Trackbacks

Ow!

A journal article the very title of which makes one cringe:

O'Halloran RL, Dietz PE: Autorerotic fatalities with power hydraulics. Journal of Forensic Sciences, 38:359-364, 1993.

UPDATE: Reader Jeff Driscoll found the abstract on the Web. I'm not sure that I'm glad he found it -- reading it just triples the "ow!" factor for me -- but I thought I'd add the link for those who are curious.

[Orin Kerr, August 23, 2004 at 7:22pm] Possible Trackbacks

Richard Posner

is guest blogging over at Lessig Blog. Don't miss it.

[Eugene Volokh, August 23, 2004 at 7:06pm] Possible Trackbacks

Oral sex in the armed forces:

United States v. Marcum, just decided by the U.S. Court of Appeals for the Armed Forces, (1) declines to decide whether the Lawrence v. Texas right to sexual autonomy generally applies to members of the armed forces, and (2) holds that a noncommissioned officer can be punished for engaging in nonforcible oral sex with a subordinate.

Though the allegations in the case involved nonforcible but nonconsensual sex (the defendant was supposedly performing oral sex on the subordinate as the subordinate was waking up), I don't believe the military verdict specifically found absence of consent. Therefore, as I read it, the court's reasoning focused on the hierarchical relationship between the parties rather than absence of consent, and is thus generally applicable to any oral or anal sex (heterosexual or homosexual) between a defendant servicemember and another servicemember over whom the defendant has supervisory authority.

[Eugene Volokh, August 23, 2004 at 6:43pm] Possible Trackbacks

Shooting fleeing soldiers:

Christopher Hitchens writes:

John Kerry actually claims to have shot a fleeing Viet Cong soldier from the riverbank, something that I personally would have kept very quiet about. He used to claim that he was a witness to, and almost a participant in, much worse than that.

Maybe there's part of the story that I'm missing here — quite likely, since I haven't been following the Kerry-in-Vietnam matters very closely (except the Christmas in Cambodia story, which I've been following chiefly because it seems relatively simple compared to the other items) — but what's wrong with shooting a fleeing enemy soldier?

Shooting a surrendering soldier is forbidden; but fleeing soldiers generally flee to fight another day, or even to fight you again when they get behind cover. This is why, as I understand it, shooting fleeing soldiers, assuming you have sufficient reason to believe them to indeed be enemy soldiers, is quite legal and in my view quite morally permissible. Or is there some other fact (say, some aspect of the rules of engagement in Vietnam) that would make this behavior improper?

UPDATE: A couple of readers suggest that Hitchens is merely saying that shooting a fleeing soldier isn't enough to justify a medal for valor, rather than saying that it's an atrocity or even immoral. I'm not sure that's quite right, given the "would have kept very quiet about" line, and the connection drawn by the next sentence to atrocities. (The sentence does say that Kerry's atrocity allegations were indeed related to much worse behavior, but the connection suggests that the atrocities and the shooting of the fleeing soldier are at least of the same kind, though very different in degree.) Still, if that's simply Hitchens' point -- that shooting a fleeing soldier in the back isn't a sign of bravery, though it isn't criminal or evil, and wouldn't disqualify one for a medal earned earlier in the firefight -- then that makes more sense.

[Eugene Volokh, August 23, 2004 at 6:27pm] Possible Trackbacks

Cathy Young on Michelle Malkin's book:

An excerpt:

Ironically, the profiling measures Malkin advocates today, such as selective monitoring of aliens and visitors from countries with terrorist links, are moderate and fairly sensible. She is right that it's ludicrous to invoke Japanese internment as a parallel. But surely, defending something as extreme as mass internment can only undermine her case. The people Malkin dubs "profiling alarmists" argue that if you accept any ethnic profiling, you're on a slippery slope to defending internment camps. And Malkin does her best to prove it for them.

[Eugene Volokh, August 23, 2004 at 6:16pm] Possible Trackbacks

Notes on my Air America gun control debate:

Some people have e-mailed to ask whether I know of any audio recording or transcript of the Air America gun control debate I did last Friday. The answer is no, but Publicola was blogging the debate as he was listening.

[Eugene Volokh, August 23, 2004 at 1:50pm] Possible Trackbacks

"We and They":

Something -- I don't know what -- recently reminded me of Rudyard Kipling's We and They, so I thought I'd post it:

Father and Mother, and Me, Sister and Auntie say All the people like us are We, And every one else is They. And They live over the sea, While We live over the way, But -- would you believe it? -- They look upon We As only a sort of They!

We eat pork and beef With cow-horn-handled knives. They who gobble Their rice off a leaf, Are horrified out of Their lives; While they who live up a tree, And feast on grubs and clay, (Isn't it scandalous?) look upon We As a simply disgusting They!

We shoot birds with a gun. They stick lions with spears. Their full-dress is un-. We dress up to Our ears. They like Their friends for tea. We like Our friends to stay; And, after all that, They look upon We As an utterly ignorant They!

We eat kitcheny food. We have doors that latch. They drink milk or blood, Under an open thatch. We have Doctors to fee. They have Wizards to pay. And (impudent heathen!) They look upon We As a quite impossible They!

All good people agree, And all good people say, All nice people, like Us, are We And every one else is They: But if you cross over the sea, Instead of over the way, You may end by (think of it!) looking on We As only a sort of They!

[Todd Zywicki, August 23, 2004 at 11:30am] Possible Trackbacks

ALL THINGS FAMILY GUY:

Ok, if you haven't seen it yet, Family Guy is one of the funniest shows of all time and it is coming back to Fox this fall. FG is not for those who are easily offended and, do not--repeat, DO NOT--watch the Family Guy if you have PC sensibilities. Anyway I just learned of a web site that discusses all the obscure references and other things in the Family Guy: http://www.familyguyfiles.com/main.php

I have the dvd set of the first two seasons and must confess that the commentary tracks are really terrible and uninteresting, so if you catch them on Toon and Fox you aren't missing much by not having the dvd's.

And if you watch FG and offended, I deny ever recommending it.

[Todd Zywicki, August 23, 2004 at 10:57am] Possible Trackbacks

WINE WARS, PART 8--THE FAIULRE OF NATIONAL PROHIBITION AND THE 18TH AMENDMENT:

In the era before the 18th Amendment, the state and federal governments had thus reached a general accommodation on the balance of authority between the state police power and national commerce power. The states had the authority to regulate purely local affairs, such as rules governing the manufacture and consumption of alcohol, especially with respect to bars and saloons, where alcohol was sold and consumed on the premises. The federal government retained complete control over matters involving interstate commerce. Under the Wilson Act and Webb-Kenyon, the federal government assisted the states in the enforcement of their police powers by making alcohol that was shipped in interstate commerce subject to the same rules as locally produced and sold alcohol—no better and no worse.

The ratification of the 18th Amendment and the enactment of the National Prohibition Act upset this balance. Although the 18th Amendment technically gave the state and federal governments concurrent power to regulate the manufacture, sale, and consumption of alcohol, because of the Supremacy Clause, it essentially gave the federal government absolute authority to regulate all aspects of alcohol, including purely local matters traditionally regulated by the states pursuant to their police powers, such as closing times of saloons, conditions of sale of alcohol, and the like. Stated more precisely, the states could impose stricter regulations pertaining to alcohol, but not weaker or different penalties that conflicted with the Volstead Act.

As Sidney Spaeth wrote in the California Law Review, "The enforcement of Prohibition represented the nadir of government regulation of liquor." 79 Calif. L. Rev. 161, 162 (1991). Local communities that were wet prior to the imposition of Prohibition resisted national efforts to impose Prohibition. As one Congressman noted, "If prohibition can only be enforced by the use of sawed-off shotguns in the hands of irresponsible Government agents, then indeed, we have reached the high tide of fanaticism and bigotry in this matter. We have reached a point where responsible citizens have not only the right but the duty to replace prohibition with some method of Government control under which law and order will prevail." 71 Cong. Rec. 2671 (1929) (Rep. Pittenger). During the era of Prohibition, the efforts of the federal government to enforce Prohibition where it was not wanted spawned violence, bloodshed, and corruption. This is precisely why police power issues involving moral issues was traditionally held to be a local matter—because of the divergence of views among different communities, it was thought that the exercise of police power authority was uniquely well-suited to state and local governments rather than the federal government. Indeed, the peculiarly local nature of alcohol regulation may be best exemplified by the fact that even in those areas that imposed prohibition, this was usually not even done on a statewide basis, but rather by permitting communities the "local option" to go dry—thus, local prohibition was rooted in truly local morals and authority. As Spaeth writes, "The United States learned a hard lesson from Prohibition."

The fundamental problem of national Prohibition, therefore, was that it essentially created a new police power for the federal government, one that it specifically lacks in any other area and which it is peculiarly unsuited to exercise, as the Supreme Court noted in the Lopez case. As will be seen, the purpose of the 21st Amendment is to rectify this aspect of Prohbition by removing the federal government from its unwise intervention into local police power regulation and thereby to reestablish the constitutional balance that prevailed prior to the 18th Amendment. The problem of Prohibition, which the 21st Amendment sought to correct, was federal overreaching into local police power matters—and crucially, had nothing whatsoever to do with the states' inability to regulate interstate commerce, and especially, to erect protectionist barriers to interstate commerce.

The problem with Prohibition was thus federal meddling in state and local affairs. As Secretary of the Treasury Andrew Mellon noted in is annual report for 1926: "The Treasury felt with respect to local law enforcement that too much responsibility had been placed upon the Federal Government. Even in those States which already had satisfactory State laws, and in which local machinery for enforcement had been provided, citizens and officials were looking to the Federal forces for the performance of police duties which were purely local. This misinterpretation of jurisdiction, while perhaps natural and for that reason excusable, proved a serious hindrance to the successful enforcement of the national prohibition law. Were the Federal Government to accept this responsibility, it must organize large police forces in the various communities, and, in addition, must provide adequate judicial machinery for the disposition of the local cases—and interference by the Federal Government with local government which could not be other than obnoxious to every right-thinking citizen." Quoted in Spaeth at 176.

The failure of Prohibition that prompted its repeal was an improper meddling of the federal government into a matter that traditionally fell under the states' police power. There is nothing in the history of Prohibition or its repeal to suggest that—after the enactment of the Wilson Act and Webb-Kenyon—the states needed additional interstate commerce powers to effectuate their local prohibition regimes.

As noted previously, one other effect of national prohibition was to cast doubt on the continued legal validity of the Webb-Kenyon Act, which prompted Congress to later reenact Webb-Kenyon after the 21st Amendment to ensure its effectiveness.

Sunday, August 22, 2004

[Juan Non-Volokh, August 22, 2004 at 5:57pm] Possible Trackbacks

Sunday Song Lyric:

With the Olympics still going on, it would make sense to keep the Olympic theme going with today's Sunday Song Lyric. Believe it or not, there aren't many Olympic-themed - or even sports themed - songs wit h lyrics worth posting. (I know, I know, that's never stopped me before . . . ). In any event, the Hives have a new album out, Tyrannosaurus Hives. The album is a strong follow-up to the Swendish quintet's smash debut. Among the more amusing songs is "Dead Quote Olympics," written (like all of the songs on album) by Randy Fitzsimmons -- and it keeps the Olympic-theme going (well, kinda).

The Dead Quote Olympics

Can't make an omelette without breaking an egg
And I can't make a headache if I don't aim at the head
You had enough of their thoughts have your own
The you wouldn't have to be such a clone
That just won't get you nowhere, you thought it would?

The Dead Quote Olympics

This time you've really got something it's such a clever idea
But it doesn't mean it's good `cause you found it at the library
Yes they were smart but they are dead
And you're repeating al that they said
You know it don't make you cleaver like you thought it would

The Dead Quote Olympics

It's on! You won! I'm done!
You didn't read between the lines so it won't do you any good it's true
And that moment that you live for it doesn't live for you
When weekends set standard and pace
We are all showered in books and berets
And that will just get you nowhere, who thought it would?

[Orin Kerr, August 22, 2004 at 2:43pm] Possible Trackbacks

The Power of the Law:

Check out this pretty cool blog post from a law firm associate blogging as The Uncivil Litigator about how he sued the INS to keep his wife in the United States-- and won. The unnamed district judge in the story is a recent Bush appointee who comes off as quite a hero. Hat tip: Stuart Buck.

[Orin Kerr, August 22, 2004 at 11:08am] Possible Trackbacks

Was 9/11 Meant for 9/18?

In today's Washington Post, retired Foreign Service Officer Kenneth M. Quinn offers a theory that the attacks of 9/11/01 might originally have been planned for 9/18/01 to coincide with the Jewish holidays. It's just speculation, but it's pretty interesting speculation.

Saturday, August 21, 2004

[Todd Zywicki, August 21, 2004 at 6:10pm] Possible Trackbacks

WINE WARS--SUPPLEMENTAL MATERIAL ON WEBB-KENYON:

Given the primacy of Webb-Kenyon to the understanding of the 21st Amendment, I thought it might be useful to post some additional excerpts from the legislative history of Webb-kenyon to illustrate the point that the purpose of that Act was to enable the states to enforce their police powers against interstate liquor, not to given them a new power to engage in protectionism:

Senate Judiciary Sub-Committee

Senator Nelson:
* "The police power of the State does not extend to all of these subjects [such as clothing and wheat]. It is only those that are considered detrimental to health and morals. There the police power of the State is complete; but the police power of the State would not extend to prevent the sale of flour or any wholesome commodity .... In the Mugler case ... they passed upon the question of whether this commodity was within the police power of the State, and the question back of it all is the question that has not been discussed according to my mind, and that is this question: The Supreme Court has held that the State has complete police power over the sale and manufacture of liquor .... Now, if the people of Oklahoma have no right to engage in the manufacture and sale of intoxicating liquors in your State, why should I, as a citizen of Minnesota, have a greater right in your State than your own citizens?"

Hon. Fred S. Caldwell (the speaker before the Sub-Committee):
* "[T]ake the Mugler case. There the Supreme Court of the United States held this: That Mugler had no right as a citizen of the United States to maintain and operate his brewery in the State of Kansas in violation of the laws of the State of Kansas, even though he intended the product for his own personal use and interstate commerce to points outside of the State. That, I think, is what was held in that case. Now, then, in my judgment, they could not say that that would be the law if Mugler has been operating a gristmill. If the State of Kansas had passed a law providing that all gristmills, even though operated in a way that could not offend on any ground of public policy ... in my judgment the Kansas law would have been clearly unconstitutional and void .... And in that sense I say that whisky stands on a different basis from flour."

* "[In the lottery case, Champion v. Ames 188 U.S. 321 (1903), the Court said:] `As a State may, for the purposes of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the widespread pestilence of lotteries and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another....' The Court says there that Congress has the right to regulate interstate commerce so as not to defeat the police powers of the State."
* "Remember that the police power of the State is inferior to the power of Congress over interstate commerce. At any rate, if it is not inferior, where the two come in conflict the commerce power of the Constitution is supreme. So that if the State can in the exercise of its police powers prohibit a certain use of a thing or prohibit the sale of a thing, or prohibit its manufacture, what is there in the Constitution of the United States to prohibit Congress from saying that there shall be no interstate commerce in things so intended for use in violation of the laws of the States. I see no reason. But I think you would have to discriminate between flour and whisky. I do not think you could put them on the same basis. I think the Supreme Court would hold this, that as to whisky, as Senator Rayner has suggested, it might be absolutely taken out of interstate commerce, but flour could not be."

Senate Floor:

Senator McCumber:
* "Having power to prohibit interstate commerce in intoxicating liquors [Congress] has the lesser power, which must be included in the greater, of allowing interstate commerce in intoxicating liquors under certain conditions, and those conditions may be that the commodities shall be subjected to the police powers of a State the moment they cross the State line; not that the State law shall be the effective law and be approved by Congress, but Congress shall relinquish its hold upon the articles upon certain conditions when they arrive within a State." [Which seems to be why the Act is entitled: An Act divesting intoxicating liquors of their interstate character in certain cases - the certain cases language seems to refer to those cases when the state police power operates]
* "Has Congress the right to prohibit intoxicating liquors from entering into interstate commerce? If it has no such power, then I am willing to concede that it has no power to subject that liquor to the condition sought in the bill. If intoxicating liquors as a commodity have inherently all of the rights that clothing or bread could have, then we may well doubt the constitutionality of this law."

Senator Borah:
* "That having a right to prohibit interstate commerce in intoxicating liquors it has the lesser right, which is included in the greater, of declaring a condition for the allowance of the article to enter into interstate commerce that it shall be divested of its Federal protection as a commodity in interstate commerce whenever conditions arise, and that the condition which will so divest it may be that it is intended to be used in violaton of the police powers of the State."

[Todd Zywicki, August 21, 2004 at 6:07pm] Possible Trackbacks

WINE WARS, PART 7--WEBB-KENYON ACT:

The enactment of the Webb-Kenyon Act is consistent with the history that came before it in reconciling the state¡¦s police power over local affairs with the federal government¡¦s power over interstate commerce. As noted in Part 5, under the traditional balance of power, the states had essentially plenary power to regulate the manufacture and consumption of alcohol pursuant to its police power (including imposing state-wide prohibition), but did not have the power to discriminate against interstate commerce (Walling v. Michigan). But under the prevailing interstate commerce clause jurisprudence of the 19th century, states could prohibit internal manufacture and sale of alcohol, but could not prohibit its importation and resale in its ¡§original package.¡¨ This effected a perverse discrimination in favor of interstate commerce. As noted in Part 6, the Wilson Act attempted to correct this problem by providing that alcohol imported into the state for sale would be treated the same as local liquor. Moreover, the Supreme Court held in Scott v. Donald that the Wilson Act did not authorize states to discriminate against out-of-state sellers of alcohol. But the Wilson Act also left a loophole, in that it did not allow dry states to prohibit the importation of alcohol for personal use.

The Webb-Kenyon Act was passed in 1913 to enable the states to close this remaining loophole that essentially discriminated in favor of out-of-state sellers of alcohol and undermined the states¡¦ ability to enforce their laws in dry states. Webb-Kenyon prohibited, as a matter of federal law, ¡§[t]he shipment or transportation¡¨ of alcohol into a State of intoxicating liquor that ¡§is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State.¡¨ Webb-Kenyon, therefore, was an enforcement law, not a substantive law¡Xthe substance of Webb-Kenyon was grounded in state laws enacted pursuant to their police power. Thus, state laws first had to be a valid substantive exercise of the state¡¦s police power before it was incorporated into Webb-Kenyon and could be applied to interstate shipments of liquor. Thus, there was no indication that Webb-Kenyon was intended to modify the traditional limits on the state police power that forbade states from using the police power to discriminate against interstate commerce. Instead, the initial law that the state sought to enforce against interstate commerce must itself be an externally valid exercise of the state¡¦s police power. McCormick v. Brown, 286 US 131 (1932).

As Senator Kenyon himself stated about the Act, its purpose was to enable the states to better effectuate their police powers by eliminating the discrimination in favor of out-of-state sellers. He said: ¡§This bill, if enacted would not be a law to bring about prohibition. It would not be a law to stop personal use of intoxicating liquors ,,m Its purpose, and its only purpose, is to remove the impediment existing as to the States in the exercise of their police powers regarding the traffic or control of intoxicating liquors within their own borders.¡¨ 49 Cong. Rec. 760.

Kenyon also stated, "Every State in which the trqaffic liquors has been prohibited by law is deluged with whisky sent in by people form other States under the shelter of the interestate-commerce law. There are daily trainloas of liquors in bottles, jugs, and other packages sent into the State consigned to persons, real and fictitious, and every railway station and every express company office in the State are converted into the most extensive and active whisky shops, from which whisky is openly distributed in great quantities. Liquor dealers in other States secure the names of all persons in a community, and through the mails flood them with advertisements of whisky, with the most liberal and attractive propositions for the sale and shipment of the same.... It is eveident that under such circumstances the prohibition law of a State is practically nillified, and intoxicating liquors are imposed upon its people against the will of the majority." 49 Cong. Rec. 761 (1912) (Statement of Sen. Kenyon).

Other supporters of the Act echoed Senator Kenyon¡¦s views. Senator Sanders, for instance, indicated that the Act was designed to avoid the Court¡¦s precedents holding that a ¡§State [could] regulate the quality of liquor sold within the State, but it [could] not regulate the quality of liquor sold from outside the State.¡¨ The only effect he added, was that ¡§It only stops the business of selling liquor within dry territory by persons outside that territory in violation of law.¡¨

Webb-Kenyon, therefore, was intended to be a shield to protect dry states from being forced to receive imports in violation of its state laws, not to be a sword for wet states to engage in economic warfare against the products of other states.

The Supreme Court also recognized that Webb-Kenyon was merely an effort to extend the Wilson Act to reach this remaining hole in the states¡¦ enforcement power. As the Supreme Court noted in upholding the constitutionality of Webb-Kenyon, ¡§Reading the Webb-Kenyon Law in the light thus thrown upon it by the Wilson Act and the decisions of this court ... there is no room for doubt that it was enacted simply to extend that which was done by the Wilson Act.¡¨ Clark Distilling Co. v. W. Maryland Ry. Co., 242 U.S. 311, 323-24 (1917). In particular, the court held, the purpose of the Webb-Kenyon Act was ¡§to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in states contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught.¡¨ Clark Distilling Co., 242 U.S. at 323-324. In contrast, nothing in the legislative history or elsewhere suggests that Congress intended to modify or repeal the non-discrimination principle of the Wilson Act recognized in Donald, which is particularly noteworthy in that the Court had decided Donald more than a decade beforehand.

In fact, contemporaneous court decisions applying Webb-Kenyon expressly held that the nondiscrimination principle of the Wilson Act was preserved in Webb-Kenyon. Interpreting Webb-Kenyon in 1916, for instance, the South Carolina Supreme Court held: ¡§The act of Congress of March 1, 1913, known as the Webb Kenyon Act, * * * does divest intoxicating liquors shipped into a state in violation of its laws of their interstate character and withdraw from them the protection of interstate commerce, [but] it evidently contemplated the violation of only valid state laws. It was not intended to confer and did not confer upon any state the power to make injurious discriminations against the products of other states which are recognized as subjects of lawful commerce by the law of the state making such discriminations, nor the power to make unjust discriminations between its own citizens.¡¨ Brennen v. Southern Express Co., 106 S.C. 102, 90 S.E. 402, 404 (1916).

Indeed, it was well-understood for decades (based on cases such as Brennen and other similar cases of the era) that Webb-Kenyon did not permit discrimination against interstate commerce. See Note, 85 U. Pa. L. Rev. 322 (1946-1937) (¡§The aim of the legislation, culminating in the Webb-Kenyon Act, which preceded the Twenty-First Amendment was to prevent the exclusive power of Congress over interstate commerce from rendering nugatory state police regulation of the liquor traffic.¡¨); Rogers, Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va L. Rev. 174 (1916); Howard S. Friedman, 21 Cornell L.Q. 504 (1935-1936) (¡§The cases under the Webb-Kenyon Act uphold state prohibition and regulation in the exercise of the police power yet they clearly forbid laws which discriminate arbitrarily and unreasonably against liquor produced outside of the state.¡¨) Note, 55 Yale L.J. 817 (1945-1946) (noting that under the Act ¡§it was successively reiterated that only uses specifically forbidden by state law were prohibited, that interference with interstate commerce was permissible only in the exercise of valid state police power, and that discriminatory state statutes did not represent proper exercises of such power.¡¨). Brennen and similar cases simply evidenced the prevailing consensus that Webb-Kenyon did not create a new power for states to discriminate against interstate commerce.

Following Prohibition and its repeal, there was some concern that the enactment of the National Prohibition Act (which had implemented the 18th Amendment) had implicitly repealed Webb-Kenyon. In particular, it was thought that the National Prohibition Act may have eliminated the states¡¦ authority to define the term ¡§liquor¡¨ pursuant to their state police power. Indeed, this challenge was raised expressly in McCormick v. Brown. In order to quiet this objection, in 1935 Congress reenacted Webb-Kenyon. As one commentator observed in 1938, ¡§Most congressmen seem to have believed that the Webb-Kenyon Act was still in effect, but to make certain, it was reenacted in 1935.¡¨ 7 Geo. Wash. L. Rev. 406 (1938-1939).

This is where things stood at the time of the enactment of national prohibition by the 18th Amendment.

Update:

In reviewing the legislative history of the 21st Amendment in connection with preparing more recent posts, I noticed the following colloquy that nicely demonstrates that the purpose of Webb-Kenyon expressly was not to delegate Congress's interstate commerce power to the states. Cong. Rec. p. 4140 (Feb. 15, 1933):
SEN. BLAINE: "Then came an amendment ot hte Wilson Act known as the Webb-Kenyon Act.... The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actally entered the confines of the State...."
SEN. WAGNER: "Mr. President, will the Senator yield?"
SEN. BLAINE: "I see my able friend from New York shaking his head. I yield to him."
SEN. WAGNER: "I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce."
SEN. BLAINE: "I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same--that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress."

[Todd Zywicki, August 21, 2004 at 4:55pm] Possible Trackbacks

AN ECONOMIC ANALYSIS OF THE CONSUMER BANKRUPTCY CRISIS

Law Review editors can be on the look-out for my new article, a comprehensive empirical analysis of the causes of the consumer bankruptcy crisis over the past twenty-five years. I have not yet posted the paper as a working paper (I'll let you know when the working paper is available), but here's the abstract for those who are interested:

ABSTRACT

Since the inception of the first permanent American bankruptcy law in 1898, the intellectual and political understanding of consumer bankruptcy has been anchored in a model that views bankruptcies as resulting from household financial distress. For much of the Twentieth Century, this "traditional model" provided a plausible explanation of bankruptcy filing patterns and clear normative policy implications. Moreover, the widespread intellectual and social consensus on the traditional model was reflected in the enactment of the current Bankruptcy Code in 1978, which rests on the intellectual foundation of the traditional model. To this day, leading bankruptcy scholars adhere to the traditional model and its implications. Over the past twenty-fiver years, however, the traditional model has broken down. During a period of unprecedented prosperity and economic stability, personal bankruptcies have soared, raising fundamental questions about the validity of the traditional model.

This article argues that there has been an unacknowledged sea-change in the economics of consumer bankruptcy in America. This article first provides a scientific analysis of the traditional model to determine whether these new trends can be accommodated within the traditional model. It focuses on the key variables offered by the traditional model as components of household financial distress: first, high levels of household indebtedness, including the influences of credit cards and home mortgages; second, unemployment and downsizing; third, divorce; and fourth, health problems, health care costs, and lack of health insurance. A scientific analysis of the evidence demonstrates that although these factors can explain part of the background exogenous level of bankruptcies, as well as some regional variation in bankruptcy filing rates, they cannot explain the upward trend in bankruptcy filing rates over the past twenty-five years. The article then briefly discusses an alternative model of consumer bankruptcy that can explain the increased propensity for consumers to file bankruptcy through an examination of the legal, social, and economic institutions of the consumer bankruptcy system.

If anyone is itching to get their hands on it, I'll be happy to email you a copy of the current draft of it if you would like.

Friday, August 20, 2004

[Eugene Volokh, August 20, 2004 at 10:21pm] Possible Trackbacks

A note about the Air America debate:

My friend Glen Whitman (Agoraphilia) writes this, apropos the debate:

I was amused by the following juxtaposition:

(1) Within 5 minutes of the debate's opening, they were openly discussing the need to expand the assault weapons ban to include some handguns, and you had to argue against full-on gun prohibition.

(2) Toward the end of the debate, Scher called gun owners "paranoid" for thinking that minor gun restrictions would lead to full-on gun prohibition.

Indeed.

[Eugene Volokh, August 20, 2004 at 8:30pm] Possible Trackbacks

Welcome, visitors from Air America Radio:

A few links you might find interesting:

Copies of original historical sources on the Second Amendment.
My testimony on the Second Amendment.
A list of people and organizations who have called for broad bans on guns, or on handguns. This is the reason I'm skeptical of claims that "no one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed."
While we're talking of slippery slope fears — and, hey, you've made slippery slope arguments, too, whether you're liberal, conservative, or libertarian, you might just make them on different subjects (for instance, abortion, privacy, free speech) than others do — here's my article on the subject, plus a shorter version that I cowrote for Legal Affairs. It's a scholarly piece, not a political one; and, trust me, there's something in it for people all over the political map.
In case we get into the perennial assault weapons debates, here's a quote from Tom Diaz of the Violence Policy Center, NPR, Mar. 11, 2004: "If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference one way or another in terms of our objective, which is reducing death and injury and getting a particularly lethal class of firearms off the streets." Here's one from Charles Krauthammer, Wash. Post, Apr. 5, 1996, at A19, who is a proponent of a total gun ban:

Its [the assault weapons ban's] only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation . . . . De-escalation begins with a change in mentality . . . . The real steps, like the banning of handguns, will never occur unless this one is taken first . . .

And here's a recent source that makes clear that (1) assault weapons "were used in only a small fraction of gun crimes prior to the ban: about 2% according to most studies and no more than 8%" (PDF page 7) and (2) the differences between assault weapons and other guns are in large part cosmetic (things like whether it has a bayonet mount, or a folding stock) (PDF page 11).

[Jacob T. Levy, August 20, 2004 at 5:24pm] Possible Trackbacks

Newly posted:

The paper I've been writing this summer instead of blogging (where are my priorities?) is now online (DOC, PDF.) [UPDATE: Links fixed.]

"Beyond Publius: Montesquieu, liberal republicanism, and the small-republic thesis"

Abstract: The idea that republicanism as a form of government was only suitable for small states, given its definitive 18th-century formulation by Montesquieu, rested in that formulation on three major pillars: the difficulty of sustaining public-spirited virtue in the face of diversity of interests and inequality of fortunes; the problem of knowing the public interest when citizens' circumstances varied; and the danger posed to republican government by a large state's large armed forces. The first two worries declined as republican theory changed from classical and civic to modern and liberal, a change associated with Hume's and Publius' re-understanding of faction and interest in large republics. But Publius did not offer the only, or the final, defense of large republics. Other liberal republicans understood the problems differently, or denied that there as a problem at all. The intertwined problems of executive-legislative and civil-military relations, the worry that republicanism in large states would end in military rule à la Caesar, Cromwell, or Bonaparte, stimulated continuing work in constitutional theory decades after The Federalist. Accordingly, even among those who endorsed the new logic of faction, institutional remedies for the problems facing large republics remained, with particular dispute over federalism, the makeup of the executive, and the creation of a neutral or conservation-preserving power. This paper aims to broaden our view of the shift in republican constitutional thought beyond Hume and Publius; to bridge the Atlantic gap in our understanding of late 18th-century constitutional thought; and to show the breadth of the rejection of civic republican assumptions as well as the range of thought about institutional design in the era.

[Eugene Volokh, August 20, 2004 at 1:29pm] Possible Trackbacks

Air America:

I should be on Air America at 5:15 Pacific time today, debating gun control with Bill Scher (Liberal Oasis).

[Eugene Volokh, August 20, 2004 at 1:00pm] Possible Trackbacks

New York Times interviewer saddened by teaching of scientific theories:

te-jik points to this New York Times Magazine interview with a Yale economics professor (thanks to Clayton Cramer for the pointer):

[Q:] As a professor of economics at Yale, you are known for creating an econometric equation that has predicted presidential elections with relative accuracy.

[A:] My latest prediction shows that Bush will receive 57.5 percent of the two-party votes. . . .

[Q:] Why should we trust your equation, which seems unusually reductive?

[A:] It has done well historically. The average mistake of the equation is about 2.5 percentage points.

[Q:] In your book "Predicting Presidential Elections and Other Things," you claim that economic growth and inflation are the only variables that matter in a presidential race. Are you saying that the war in Iraq will have no influence on the election?

[A:] Historically, issues like war haven't swamped the economics. If the equation is correctly specified, then the chances that Bush loses are very small.

[Q:] But the country hasn't been this polarized since the 60's, and voters seem genuinely engaged by social issues like gay marriage and the overall question of a more just society.

[A:] We throw all those into what we call the error term. In the past, all that stuff that you think should count averages about 2.5 percent, and that is pretty small.

[Q:] It saddens me that you teach this to students at Yale, who could be thinking about society in complex and meaningful ways. . . .

It saddens a New York Times interviewer that an economics professor is teaching students about what he thinks is a sound scientific theory. Not that the professor is wrong, if he is (which would indeed be cause for sadness). Not that voters are so focused on certain matters that their behavior is so predictable (which some might approve of and some disapprove of). She's sad that the professor is teaching students about such behavior. Funny, I thought that understanding facts (if they are facts) about human behavior is a meaningful addition to one's thinking about society, even if they are facts that New York Times reporters don't much like.

Of course, this also misses the fact that each class in a university is supposed to focus on a particular subject, not deal with society in all its complexity and depth of meaning. Doubtless students learn about lots of other aspects of society in other classes, which may intentionally omit econometrics and focus on other matters. Adding an econometric analysis into the mix gives students a more complex and meaningful picture of society than would be the case if one excluded this analysis.

Oh, and here's something from later in the interview:

[Q:] Are you a Republican?

[A:] [Arch game theory humor omitted. -EV]

[Q:] I don't want to do game theory. I just want to know if you are a Kerry supporter.

[A:] Backing away from game theory, which is kind of cute, I am a Kerry supporter.

[Q:] I believe you entirely, although I'm a little surprised, because your predictions implicitly lend support to Bush.

[A:] I am not attempting to be an advocate for one party or another. I am attempting to be a social scientist trying to explain voting behavior.

[Q:] But in the process you are shaping opinion. Predictions can be self-confirming, because wishy-washy voters might go with the candidate who is perceived to be more successful. . . .

Maybe the journalist is just trying to be provocative here, and the questions don't reveal her own thinking. Still, it seems a bit odd that the questions (1) express surprise that a scholar who is trying to describe the world would reveal (not just in political editorials, but in his scholarship or in his teaching) a truth that he himself finds politically unwelcome, and (2) implicitly criticize the scholar for expressing this truth (since this truth may, heaven forbid, influence people to vote in a way that he dislikes).

UPDATE: Reader Jack Sullivan writes: "If you read Solomon's interviews at the front of the magazine on a regular basis, you'll notice that the questions tend to be fairly jokey (think Jon Stewart or David Letterman type ironic attitude). Certainly not much cause for hand wringing." If this is so — and I don't read those interviews — then I would indeed be much less troubled by the interview.

[Eugene Volokh, August 20, 2004 at 12:29pm] Possible Trackbacks

Alan Keyes on slavery reparations:

Paul Caron (TaxProf) has more on Alan Keyes' slavery reparations plan, including Keyes' attempt to reconcile his plan with his harsh condemnation of reparations proposals in 2002. I'm not persuaded by Keyes' answer, which seems to distinguish the waiving of taxes from cash grants:

Not at all. I have taken a strong position against schemes of extortion from the fellow citizens of people here in America, based on the idea that somehow or another that would be requital for slavery. And I made clear over the years that I think the blood and treasured sacrifice during the Civil War constituted that requital.

But I have also made clear every time I was asked that there was objective damage done to black Americans by the slave system. And there have been frequent efforts in American history not thus far successful to address the wounds that were left by that legacy. What I have laid on the table repeatedly is a thoroughly Republican, thoroughly conservative approach that is actually borrowed from ancient history in terms of what the Roman empire used to do to respond to damaged communities. You give them tax relief. You give them a tax break to make up for the fact, for instance in this case, the black folks toiled for generations at what was effectively 100 percent tax rate.

And by doing this, you unleash their enterprise. Give them an incentive to work. Give people an incentive to own businesses without taking pennies out of anybody else's pocket, you're able to create an environment where people are encouraged to work and put a strong foundation under themselves instead of putting money in a democracy to dominate their lives that undermines the moral foundations of their families and destroys their economic incentives.

As a matter of fact, it's a thoroughly conservative, thoroughly consistent Republican approach to a very serious challenge.

But if you compare (1) raising taxes on whites to pay for the lowering of taxes on blacks and (2) raising taxes on whites and blacks to pay for cash grants to blacks, it's hard to see how either is any more or less "extortion from the fellow citizens of people here in America, based on the idea that somehow or another that would be requital for slavery" than the other.

[Eugene Volokh, August 20, 2004 at 12:20pm] Possible Trackbacks

Car insurance discounts based on where you drive:

Ted Balaker (Out of Control, Reason Public Policy Institute) writes:

Insurance companies are beginning to monitor customers' driving in exchange for lower rates:

* Progressive will announce its TripSense trial in Minnesota on Aug. 24. Customers who sign up will get a device the size of a Tic Tac box to plug into their cars. The device will track speed and how many miles are driven at what times of day. Every few months, customers would unplug the device from the car, plug it into a computer, download the data and send it to Progressive. Depending on results, discounts will range from 5% to 25%.

* In Great Britain, major insurer Norwich Union will start its Pay As You Drive test in a few weeks. Volunteers will get a device the size of a Palm computer installed in their cars. The gadget will use global positioning satellite technology to track where the car goes, constantly sending information to Norwich Union wirelessly. Cars that spend more time in safer areas will qualify for bigger discounts. . . .

I wonder if technology used by Progressive and Norwich Union could be [broadened] . . . . Perhaps (with the driver's ok) the act of buckling up could be tracked by insurance companies. This approach would also throw a carrot into the mix, for buckling up would be rewarded with lower rates. . . .

Read the rest of Ted's piece for more.

I think this sort of monitoring is a good idea. Naturally, I'd want insurance companies to promise to keep the information confidential; and if I were an insurance company, I'd offer a deal by which people could disconnect the device for some time and lose part of the discount (naturally the fact of the disconnection would itself be interesting information, but less informative than the collected details would have been), perhaps a part related to the time the device is disconnected. But while I realize that such confidentiality can never be perfect -- and certainly if the insurance companies don't promptly throw out the data, a subpoena could pierce the confidentiality -- I think that on balance the benefits of giving more choices to safe drivers and drivers who drive in safe parts of town make the proposals worthwhile.

I realize that some drivers are stuck in bad parts of town because they live or work there, and they're not morally at fault for that. But I don't see why that's relevant. Those drivers will have foreseeably more expenses for which insurance will have to pay. If you make it illegal for insurance companies to distinguish those drivers from other drivers, then the low-risk drivers will essentially be legally required to cross-subsidize the high-risk drivers. I think that's both wrong and economically inefficient. If you want to subsidize drivers who may not be able to afford insurance, subsidize them directly (with the equivalent of food stamps) rather than by requiring the low-risk drivers to subsidize the high-risk ones, whether those high-risk ones are rich or poor. And this goes double if the insurance company does measure easily changeable behavior, such as speeding or seat belt use.

We don't require life insurance companies to charge the same premiums to old people as to young people. It's not the old people's fault that they're old, but they are higher risk than the young, and it would be wrong and inefficient to make young people subsidize the old. (The inefficiency comes because the result will be that young people will buy too little life insurance, since it's a bad deal for them; and the old people will still end up paying high prices, since as young people fall out of the pool, the old people will have to pay more.)

And, yes, I'd also support health insurance companies charging high-risk people more, though I'd want to make sure that the system doesn't discourage the buying of health insurance early in life (or even before your birth, when your parents would buy it for you), when your future health is relatively uncertain, and when you can pool risk with a lot of other people. If we think that we should compensate people with genetic predisposition to disease, or help poor sick people, we should do that directly, rather than by requiring cross-subsidization. And at the very least this should be so as to people whose diseases are in part affected by their lifestyles (smoking, low exercise [like me], obesity, high-risk sports, excessive drinking or drug use, and the like), to the extent that this can be determined.

Finally, I realize that there are some prohibitions on race and sex discrimination in insurance sales that don't make actuarial sense, in that they require people who are known to be higher risk to pool their risk with people who are clearly lower risk. But if they are justified, they are justified because of some special concerns about race and sex discrimination, concerns that shouldn't, I think, carry over to other situations (such as age in life insurance, which is just as much outside our control as race or sex).

[Eugene Volokh, August 20, 2004 at 11:54am] Possible Trackbacks

White House Press Secretary

calling for restrictions on political speech?

Aaron Swartz points to this press conference:

Q There's a new ad by MoveOn.org that talks about — that criticizes Bush's record in the National Guard. What's your response to that, and what do you say to Harkin, who called Cheney a coward for not serving?

MR. McCLELLAN: We have been on the receiving end of more than $62 million in negative political attacks from these shadowy groups that are funded by unregulated soft money. And the President has condemned all of the ads and activity going on by these shadowy groups. We've called on Senator Kerry to join us and call for an end to all of this unregulated soft money activity. And so we continue to call on him to join us in condemning all these ads and calling for an end to all of this activity. . . .

Q But, Scott, the MoveOn.org ad, back to that. Senator Kerry denounced the ad specifically, saying it's not indicative of their — the way they feel about the Bush service in the National Guard. He specifically denounced the ad, which is something that they're saying the Bush-Cheney campaign has not specifically done about the Swift Boats ad.

MR. McCLELLAN: Let's be clear here. What the senator did was, he said one thing at the same time his campaign was doing another. His campaign went out there and essentially promoted this false negative attack at the same time Senator Kerry was saying he condemned it. The President has condemned all of this kind of activity, and he should join us in doing the same and calling for an end to all of it. Apparently he was against soft money before he was for it. And the President thought he got rid of all of this unregulated soft money activity when he signed the bipartisan campaign finance reforms into law. And so it's another example of — the senator's latest comments are another example of him saying one thing and doing another.

I certainly hope that the Administration is not indeed calling for "an end" — a legal end, via an extension to the Bipartisan Campaign Reform Act — to people pooling resources to express their political views, including their views about candidates. You can call it "soft money," but it's speech, of the sort that political movements such as the antislavery movement, the temperance movement, the civil rights movement, and many other movements (good and bad) have engaged in. Without such speech, who gets to speak effectively, in the large traditional media? The media itself; the parties; and the politicians who have the infrastructure to raise hard money in $2000 chunks; and a few super-rich people (unless they're shut up, too). People who care deeply about a subject, enough to pool even tens of thousands of their dollars with others who care equally strongly, would be shut out.

This sort of speech doesn't involve campaign contributions to officeholders, which Buckley v. Valeo has held can be restricted (in part precisely because such restrictions leave open alternative channels, such as independent expenditures). It isn't even corporate expenditures, which Austin v. Michigan Chamber of Commerce and McConnell v. FEC held — wrongly, I think — to be restrictable. This is independent spending on political expression, which Buckley specifically held was constitutionally protected, by a 7-1 vote that include liberals, moderates, and conservatives in the majority (the only dissenter was Justice White). I certainly hope that McClellan's views don't represent the policy agenda of the White House. (For a more detailed argument on why such speech should be protected, see here.)

UPDATE: Unfortunately, President Bush seems to be taking the same view:

G. BUSH: Well, I say they ought to get rid of all those 527s, independent expenditures that have flooded the airwaves. There have been millions of dollars spent up until this point in time. I signed a law that I thought would get rid of those, and I called on the senator to -- let's just get anybody who feels like they got to run to not do so. KING: Do you condemn the statements made about his... G. BUSH: Well, I haven't seen the ad, but what I do condemn is these unregulated, soft-money expenditures by very wealthy people, and they've said some bad things about me. I guess they're saying bad things about him. And what I think we ought to do is not have them on the air. I think there ought to be full disclosure. The campaign funding law I signed I thought was going to get rid of that. But evidently the Federal Election Commission had a different view.

A reader suggested, in response to the original post, that maybe McClellan was calling for "an end" simply in the sense of urging people not to do this sort of thing. But the references to thinking that BCRA would have gotten rid of such speech strongly suggest that "an end" means a legally mandated end. Bad stuff.

[Orin Kerr, August 20, 2004 at 11:36am] Possible Trackbacks

U.S. News College Rankings:

The 2005 U.S. News College Rankings are out. Brian Leiter's assessment: The latest US News Fraud on the Public.

[Eugene Volokh, August 20, 2004 at 11:31am] Possible Trackbacks

Cool federalism debate

(in the context of assisted suicide) at Southern Appeal, between Steve (Feddie), Ramesh Ponnuru, and Jonathan Adler.

[Juan Non-Volokh, August 20, 2004 at 10:08am] Possible Trackbacks

Vote Suppression in Florida:

Stuart Buck investigates continued allegations of voter suppression in Florida during the 2000 election.

[Juan Non-Volokh, August 20, 2004 at 10:08am] Possible Trackbacks

Migration on the Move:

Earlier this week I heard a provocative talk on migration by Philip Martin of the University of California at Davis. In short, Martin argued that pressure for international migration will increase in coming decades for both demographic and economic reasons. Incomes are substantially higher, and population density is lower, in industrialized nations, making them more attractive places to live than many developing countries. Moreover, the income gap between rich and poor nations appears to be on the rise. At the same time, technology and globalization have made it easier for people to cross borders. Combined, these factors suggest a substantial increase in global migration.

Efforts to restrict or control immigration have generally failed, Martin suggested, in part because "people are very difficult to manage" and they fail to address the causes of population shifts. If anything it will be even more difficult to control national borders in the future than it is today, particularly without increased economic development in the developing world.

Martin also suggested that escalating immigration, legal and otherwise, could force industrialized nations to scale back their welfare programs. This could improve assimilation, however, as participation in the labor force is a powerful integrative force. I don't know much about immigration policy, but it was a provocative talk.

Thursday, August 19, 2004

[Eugene Volokh, August 19, 2004 at 7:59pm] Possible Trackbacks

ExpressO:

(This post is for authors of law review articles, and for law review editors.) I used Berkeley Electronic Press's ExpressO service (FAQ here) to submit my last article, and I was quite happy with it — I basically selected the journals I wanted to submit to, uploaded my paper, my cover letter, and my list of publications, and they did all the work. There were a few small glitches, but all in all it went well. And people who don't have secretaries who do the address location, copying, labeling, and envelope stuffing for them should find ExpressO indispensable. It's much better to pay $2 per electronic submission and $6.50 per paper submission than to go through all the hassle yourself, especially since nonlawprofs should typically submit to 50-100 journals (at least) to get a good shot at getting accepted. Plus some schools subsidize their students' ExpressO submissions — check whether yours does. Kaimi at Tutissima Cassis points out, however, that several journals cannot be submitted to via ExpressO, including but not limited to:

Alabama Law Review
Cardozo Law Review
Connecticut Law Review
George Mason Law Review
Georgia Law Review
North Carolina Law Review
Notre Dame Law Review
Ohio State Law Journal
Tennessee Law Review
U.C. Davis Law Review
University of Colorado Law Review
University of Miami Law Review
Washington Law Review

This leads me to offer four pieces of advice:

As I mentioned above, submit via ExpressO.
If you want to be thorough, remember to submit to the above journals (many of which are in the Top 50) on paper.
If you're an editor at one of the above journals, get on the ExpressO list, or else you're going to lose out on a lot of submissions. Some people will still submit to you on paper, but other people will just skip you and submit to the other journals. The downside is that you'd have to accept electronic submissions; the ExpressO people tell me that they only do paper submissions to a few journals, mostly those in the Top 20 but also a few that I suspect are included for historical reasons. They don't want to do paper submissions to more journals, even though they charge more for the paper submissions, because they're short on manpower and doubt that the extra money will let them hire more people (and I assume that they don't think it's feasible to hike the paper submission costs much above the $6.50 to cover those extra costs). But while accepting electronic submissions can be something of a hassle (since you'd have to print out copies yourself), it can also prove to be a benefit, since it might let you organize the submissions more easily. And more importantly, I think you need to do that to compete effectively.
Finally, if you're an editor at one of the journals that get paper submissions (Arizona, California, Columbia, Duke, Emory, Florida, Georgetown, Harvard, Michigan, Minnesota, NYU, Northwestern, Southern California, Stanford, Texas, UCLA, U Chicago, U Pennsylvania, U Pittsburgh, Vanderbilt, and William & Mary), also talk to your people about switching to electronic submissions. True, you do get the submissions in any event, and few people will be stymied by the extra $4.50. But you'll get them several days after your competitors who get electronic submissions. Those competitors may give offers on some articles — likely the hottest ones — just a day or two after they get those articles electronically, and before you even get the paper copies in the mail. That means that when the author tries to shop up to you, you might not be able to respond quickly enough, and you might thus end up losing out on a great article. True, some submitters may adapt to this by using ExpressO to submit to you on paper, and then using it to submit to the other journals electronically a few days later, so it lands in everyone's e-mailboxes and mailboxes simultaneously. But most submitters won't do that; and as a result, your competitors will steal a march on you. You're law students, you're law review editors, you're super-competitive, no? So make sure you're competitive on this.

[David Bernstein, August 19, 2004 at 6:06pm] Possible Trackbacks

Speech in Chicago:

I will be speaking in Chicago on Monday at noon on behalf of the Chicago Lawyers' Division of the Federal Society. The topic: "You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws." For details and RSVP contact CROHRBAC at skadden.com.

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