The Volokh Conspiracy

Friday, September 3, 2004

[Eric Muller (visiting from isthatlegal.org), September 3, 2004 at 1:56pm] Possible Trackbacks

BROADCASTING REVISIONISM:

Rather than just complaining (as I've noted, justifiably) about its rhetoric, Timothy Burke is thinking carefully about the substantive point of the historians' letter to the media about Michelle Malkin's "In Defense of Internment."

He attributes Malkin's success in drawing uncritical attention from the major media to two things: (a) her saying something contrarian about a matter of current interest, and (b) her being mediagenic.

He then says this:
Taking all this into account, the Historians' Committee for Fairness still has a valid fundamental point. How do you decide what's worth covering and not covering? Because not everything that is contrarian and potentially mediagenic gets the coverage—the coverage without, for the most part, attention to the dissenting views of others—that Malkin has. To put it bluntly, why does Michelle Malkin get on television and David Irving, the infamous Holocaust revisionist, not get on television? Irving's argument that the Nazis did not actually set out to exterminate the Jews is factually detailed and it's certainly contrarian, and he's actually somewhat creepily mediagenic.
. . .
The Historians' Committee for Fairness may have gone about their task the wrong way, but they're entitled to an answer to this question from the media that have given Malkin a hearing. What makes her work worthy of coverage when work of equivalent shoddiness and offensiveness is regarded as absolutely off-limits?

Timothy Burke's point about David Irving and Holocaust revisionism deserves a moment's reflection. Let's consider a hypothetical. Suppose an author were to publish a book revisiting the pogroms across Germany in November of 1938 that we know as "Kristallnacht." Suppose that author's thesis went something like this: "Yes, German and Austrian Jews certainly and regrettably suffered in the attacks of November 9 and 10, 1938, and in the incarceration of some 26,000 in concentration camps for a period of many weeks that followed. We have seen, time and again, the images of the broken storefront windows and the burning synagogues that the Jewish grievance community and politically correct academics want us to see. We have been led to believe that this was an unprovoked outburst of baseless hatred on the part of the German people. But what Jews and academics do not tell you, and do not want you to know, is that the so-called Kristallnacht had a real cause: A Jew did, in fact, murder the German official Ernst vom Rath in Paris on November 7, 1938, at the German Embassy, and documents from the time show that Josef Goebbels knew this and saw the murder as proof of a larger Jewish threat to the Reich."

This, in the context of the Holocaust, is the precise analogue of Malkin's thesis about the Japanese American internment. Please note that I'm not suggesting that Malkin herself believes or has ever said any such thing about Kristallnacht specifically, or the Holocaust generally. I am sure she does not. believe such a thing. I am also not comparing Kristallnacht to the eviction of Japanese Americans. I am instead making a point about the nature--the architecture, if you will--of her argument. It is this: you have been led to believe that what seems to be a groundless, racist government action lacked any foundation and can therefore be explained only as an expression of hatred, but that is not so; in fact, there was a real threat to the government that supplied a foundation for what they did.

So, to return to Timothy Burke's observation: suppose that a mediagenic author were to publish such a work. Would MSNBC, CNBC, Fox, C-SPAN, HBO, and countless radio programs present that work at all? If they did so, would they present it uncritically, and without rebuttal?

Of course they wouldn't. And so the question is: why the difference?

A couple of possible answers suggest themselves to me, and neither is very attractive.

One is that it's easier for us to recognize malevolence in others' ancestors (the Nazis) than in our own. Thus, what seems incontestably unjustifiable in the history of others remains debatable in our own.

The other is that Holocaust survivors and their children and grandchildren (full disclosure: I am one), and the Jewish community more generally, would not countenance an unrebutted presentation of such a work in the major media, whereas the Japanese American community is to some extent still (as it was 60 years ago) a safe target for such an assault.

In the end, Timothy Burke is right:

"If the people who make decisions about programming and content at the talk shows want to tell me and other historians that they wouldn't put Irving on the air because what he says in his work is factually specious and untrue (which it is), then they're telling me that they make these decisions based either on their own personal and professional assessments of the factual truthfulness of works of non-fiction, or they make these decisions based on consultation with experts about what is reasonable, plausible, debatably true work and what is poor, scurrilous, offensive lies. If this is true, the question becomes potent: why is Michelle Malkin on the air now? Because if talk show producers consult experts on internment, they'd certainly find that almost everyone thinks Malkin's work is shoddy and inaccurate, quite aside from its ethical character. If talk show hosts read and assess work independently to decide whether it is worth covering, then I'm hard-pressed to understand why they think Malkin's is legitimate.

And if they just put people on the air because they're mediagenic and interestingly contrarian, I again ask: why not Holocaust revisionists? What sets the boundaries of the fringes, and doesn't the expert assessment of intellectuals and scholars matter in that boundary-setting?"

[Orin Kerr, September 3, 2004 at 11:29am] Possible Trackbacks

Councilman Amicus Brief:

In news relating to the recent First Circuit wiretapping decision in United States v. Councilman (previous posts here and here), a coalition of privacy groups including the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association have just filed an amicus brief in favor of the goverment's petition for rehearing. The brief is available in .pdf format here.

For reasons that become clear once you read the cover page, I think the brief is very persuasive.

[Todd Zywicki, September 3, 2004 at 11:26am] Possible Trackbacks

SOFT DRINKS AND STEVEN MILLOY:

Daniel over on Crooked Timber takes a whack at Steven Milloy's critique of the soft drink study that was discussed last week. (Sorry, I had my first week of classes this week, so I'm just getting back to all this now). Obviously, Steven Milloy can defend himself if he wants, but I figured a few points of elaboration on my original post regarding his essay are warranted. For the record, I don't know Milloy or have any other contact with him except for having read the essay in question.

The testable hypothesis in the study is the null hypothesis that an increase in soft drink consumption like that in the study (less than one per week to one or more per day) will dramatically increase the risk of weight gain and type 2 diabetes. Milloy's piece critiques the study in two ways. First, it argues that there were major methodological problems with the study that undermine its reliability, and that once corrected for, many of the findings of the study are much more questionable than touted. Second, that whatever the findings of the study, the authors have oversold their conclusions, in that the conclusions that they draw are not supportable by what the study actually found. I characterized the overall critique as "devastating," a characterization with which Crooked Timber took issue.

First, Crooked Timber states that Milloy is "a bit of a hack, who got his start with a bit part towards the end of the single largest and most impressive work of intelelctual dishonesty of the previous century, the effort to discredit the scientific work on the linke between tobacco and lung cancer." Others open their responses to Milloy in a similar fashion.

Now, Milloy's article is a critique--he is saying that the authors of the soft drink study have failed to carry the burden of rebutting the null hypothesis that soft drink consumption causes diabetes. I have no idea why Milloy's position on smoking would make the JAMA article on soft drinks more or less persuasive. Either it is methodologically correct or it isn't--the article stands or falls on its own merits. Any defects that Milloy may or may not have does not increase or decrease the JAMA article a whit.

So the real issue is the merits of the critique. First, Milloy says that the once the researchers "statistically adjusted their results for bodyweight (a risk factor for dabetes) and for caloric intake (a proxy measure of consumption of sweetened foods other than soda), the 83 percent increase [in type 2 diabetes prevalence] dropped to an even more statistically dubious (and soft-pedaled) 32 percent increase." Now it seems to me that Milloy is obviously correct here--bodyweight and non-soda caloric intake seem to me to obviously relevant to trying to isolate the marginal effect of the increased soda consumption. So the 83 percent figure is really an irrelevant number--nonetheless, the Washington Post reported on page 1, in the second paragraph of the article, that those who drank more than one serving a day "had more than an 80 percent increased risk of developing Type 2 diabetes" than those who had less than one a month. Then a few days later the Post stated in an editorial, "those who had one or more drinks containing sugar or corn syrup per day were 83 percent more likely to develop Type 2 diabetes than those who drank less than one such drink per month."

But, the reader might object, the researchers cannot be responsible for how the Washington Post characterizes their research. Well, it turns out that the Post story was lifted directly from the press release from the Harvard School of Public Health, which states in paragraph 2, "Those who reported drinking sugar-sweetened sodas more than once per day showed an increased risk for type 2 diabetes of more than 80 percent compared to women in the study who drank less than one per month...." the 32 percent figure, by contrast, appears nowhere in the press release.

Ok, so assume for the moment that Milloy is correct that there is a 32 percent increase in the prevalence of type 2 diabetes in the subject population. Here's the excerpt from Milloy that Daniel quotes, "When the researchers statistically adjusted their results for bodyweight (a risk factor for diabetes) and for caloric intake (a proxy measure for consumption of sweetened foods other than soda), the 83 percent increase dropped to an even more statistically dubious (and soft-pedaled) 32 percent increase. That result is of the same magnitude as the study's reported 21 percent increase in diabetes among consumers of more than one diet soft drink per day."

This is where Daniel gets to the heart of his critique, writing about this passage: "Think about this for a second. According to Milloy, the correct (even the ethical) thing to have done in presenting the results of this study would have been to have headlined the '32 per cent increase' (1.32 relative risk) that one gets in a model which controls for body mass and caloric intake. This is equivalent to suggesting that the correct way to think about the health risks associated with soft drinks is to deal with a model under which somebody goes from drinking one can of Coke a week to more than one per day, but reduces their consumption of other foods so as to maintain a constant total caloric intake. Given that the entire reason why people worry about soft drink consumption is the sugar in the drinks, does this make any sense at all?"

Perhaps I have misread Milloy's point, but I don't read the claim at all the same way as Daniel does. Now what I understand Milloy to be saying is that those who drank more than one REGULAR soft drink per day had a 32% increase in diabetes prevalence, whereas those who drank more than one DIET soft drink per day had a 21% increase. The point, as I understood it, is that there was a noticeable increase in diabetes prevalence REGARDLESS of whether a person drank alot of regular or diet soda. Moreover, there is little difference in the increased prevalence between the two different types (its not clear to me if the 32% versus 21% is a statistically significant difference--Milloy's point seems to be the more colloquial one that the difference is not very large). Milloy's conclusion, therefore, is that the study has not shown that it is the sugar in the regular soft drinks that is causing the increased diabetes prevalence, because there is an increased diabetes prevalence from soft drink consumption regardless of whether it is sugared or non-sugared. If so, Milloy states that this suggests that some other independent factor is to blame, such as lifestyle or genetics, such that those who drink a lot of soda (regardless of which type) to be prone to contracting type 2 diabetes. A hypothesis would be something like those who drink alot of soda don't exercise as much or don't eat as healthy. I have no idea whether this is true or not, but if Milloy is correct then it suggests that the study misses the point by focusing on sugared drinks. It seems to me this is also why Milloy says that it matters what people's other caloric consumption is--if soda consumption is corellated with and is a proxy for other lifestyle habits, we would want to know what people's other caloric consumption (note that the reference point is non-soft drink calorie consumption).

Now that's how I understand the Milloy critique, which seems quite powerful to me if correct. To be honest--and I'm not being rhetorical here--I honestly can't make sense out of how Daniel is characterizing how he understands the claim made by Milloy here. I understand the point of Milloy's critique to be the comparison between regular and diet soda consumption and what that says about the role of sugar in the study. Daniel interprets Milloy as making some othe point about increasing soda consumption and decreasing other foods and the proper statement of the diabetes prevalence, and I don't read Milloy that way. Daniel says that the model (as he summarizes it) is a "stupid model." If Daniel is correct in the way he characterizes Milloy's point, then as I noted, it doesn't really make sense to me either. But it seems to me that what Milloy is intending to say, and actually says as I read it, is not actually stupid. As a general practice, if we assume that an author is trying to make a serious claim, it seems to me that a more logical intellectual policy is to adopt the reading that construes Milloy's claim in a manner that makes sense (leaving aside whether it is right or wrong), rather than to construct it in a manner that does not make sense or is "stupid." In other words, given the choice between construing a claim as a straw man versus a serious claim, it is a better practice to adopt the latter reading on the assumption that is what the author intended.

In addition, other credible commentators have made critiques of the study that are similar to Milloy's. A story on a Bay Area TV website referred to the comments of Karmeen Kulkarni of the American Diabetes Association who said that similar results might be found if researchers studied another food with little nutritional value, such as chips, cakes or cookies. Kulkarni, like Milloy, stressed that lifestyle factors are critically important in determining the effect of soft drink consumption. The story states, "She [Kulkarni] said women in the study who drink more sugary beverages tended to live a less healthy lifestyle — smoking more, working out less, eating more calories and less fiber and protein. The research also relied on the women to write down what they ate, making it less reliable."

Milloy similarly notes that the study does not control for genetics or lifestyle issues--although he goes on to add that the "real explanation for the reported weight gain more likely lies in teh women's geneteics and their overall lifestyles." Now, I don't know whether that last part is true or not--but then again, all I have ever claimed is that Milloy's critique of the weaknesses in the study and its conclusions are very strong. I have never said that in this piece Milloy offers a compelling alternative hypothesis or support for an alternative hypothesis. But it seems obvious to me that lifestyle matters alot (just as Kulkarni observes) and that it would be pretty easy to control for that. It is less obvious to me how much genetics matter (could be a little or a lot) and it might be much more difficult to control for genetics. Nonetheless, it is obvious that these factors should be controlled for.

The quality of this study stands or falls on its own merits. I think that Milloy has identified some very serious methodological flaws in the construction of this study and the conclusions that are drawn from it. The authors of the study appear to be promoting the most expansive and least-supportable interpretation of the study and seem to have done little to address serious alternative interpretations of the data reported in the study. What Milloy may have said about other issues such as smoking, or what his own hypothesis is on this issue, is largely beside the point for purposes of my assessment that this remains a very serious critique of the study.

[Eric Muller (visiting from isthatlegal.org), September 3, 2004 at 9:17am] Possible Trackbacks

WHOM TO BELIEVE? MICHELLE MALKIN, OR THE CANADIAN PRIME MINISTER?

Michelle Malkin's revisionist telling of the story of the Japanese American internment turns crucially on one supposed military fact: Franklin Roosevelt and his top military brass feared a Japanese assault on the West Coast. This, she claims, rather than prejudice, panic, or economic or political pressure, explained their decision to uproot American citizens of Japanese ancestry from the West Coast, while taking no programmatic action anywhere against identically situated Americans of German or Italian ancestry. And, she argues, it explains why Roosevelt and his Secretary of War and Assistant Secretary of War took so seriously a couple of ambiguous references in top-secret decrypted Japanese diplomatic messages referring to the recruitment of "second generation" Japanese spies.

Greg Robinson of the University of Quebec at Montreal has pointed me to the excerpt from Canadian Prime Minister MacKenzie King's diary that you see in this post. It's from June 25, 1942, and reflects a conversation that King had with Roosevelt in Washington during a meeting of the Pacific War Council. (It doesn't reproduce clearly on this page; click on it to get a clearer image.)

According to King, Roosevelt "said he thought the Japanese were foolish in thinking we would be much affected by these attacks they were making on the Pacific Coast. That it was not likely to alarm the people unduly but rather to strengthen their feeling of resistance. It was clear that he, himself, did not contemplate much in the way of an attack on our Pacific Coast but felt that the possession of the bases at Kiska [in the Aleutian chain] and elsewhere were to help to meet the situation that might develop between Japan and Russia."

Admittedly, this is not Roosevelt's diary; it is King's. But it is a far, far clearer window into Roosevelt's thinking about military risks than the suppositions—for that is all Malkin can muster—about which decrypted messages Roosevelt must have seen and what he must have thought they meant in the context of what he must have feared about a Japanese assault on the West Coast.

One other thing: before people start shouting about the American victory at Midway in early June of 1942, and about how the military situation on June 25, 1942 (when he spoke to King) was different from the situation on February 19, 1942 (when he signed the executive order authorizing the military to take action against Japanese Americans and others on the coast), consider this: seven of the ten permanent relocation centers for Japanese Americans in the U.S. interior were not yet open (indeed, had not yet even been built) when Roosevelt talked to King. (Camp opening dates: Granada (Colorado): 8/27/42; Heart Mountain (Wyoming): 8/12/42; Jerome (Arkansas): 10/6/42; Rohwer (Arkansas): 9/18/42; Minidoka (Idaho): 8/10/42; Topaz (Utah): 9/11/42; Gila River (Arizona): 7/20/42.)

Thus, Robinson and I have shown--again--that at the time the government was still developing the bureaucracy and infrastructure of confinement, the Commander in Chief did not himself believe the "military necessity" rationale that Malkin imagines for him.

[Eugene Volokh, September 3, 2004 at 12:11am] Possible Trackbacks

Thursday, September 2, 2004

[Eric Muller (visiting from isthatlegal.org), September 2, 2004 at 7:42pm] Possible Trackbacks

VOX DAY ON MILITARY NECESSITY:

According to Vox Day, any military historian worth his or her salt could tell you that the top military brass back in early 1942 knew that a full-blown Japanese assault on the U.S. mainland was inconceivable--and that their reliance on that rationale for evicting Japanese Americans from the West Coast was therefore bogus.

I'm no military historian, so I can't really venture an opinion on whether or not Day is right about the forces and logistics that would have been necessary for a mainland assault. Perhaps others more expert than I might wish to respond.

Update:Vox Day has posted more facts and figures documenting the impossibility of a Japanese assault on the West Coast. So far, I don't see anybody out there contradicting Day's military analysis. Day also says this: "Malkin has no case whatsoever. If she has any intellectual honesty, she will admit that she was mistaken and disavow her despicable conclusion that the internments were justified on the basis of national security." It'll come as no surpise that I agree entirely. But I'm not holding my breath for the confession of error.

[Orin Kerr, September 2, 2004 at 6:46pm] Possible Trackbacks

NINTH CIRCUIT PROBABLE CAUSE DECISION:

The Ninth Circuit issued an interesting ruling on whether the existence of records indicating that a suspect joined a child pornography website creates probable cause to search the suspect's home for illegal child pornography. I offer an analysis of the case for members of my computer crime update list here. My basic take: the court was probably right on the question of whether probable cause existed, although its analysis is a bit quirky.

[Eugene Volokh, September 2, 2004 at 5:36pm] Possible Trackbacks

Cathy Young on sex differences:

On a break from packing, I read Cathy Young's Reason Online review of Stephen E. Rhoads' Taking Sex Differences Seriously. I haven't read Rhoads' book, but I've generally found Young to be a sensible, thoughtful commentator on these subjects. Her review is definitely worth reading.

[Orin Kerr, September 2, 2004 at 4:03pm] Possible Trackbacks

The War on Terrorism in the Courts:

Over at Begging to Differ, Venkat lists the anti-terrorism cases that DOJ has brought that somehow have ended up falling flat-- via acquittal, dismissal of charges, and the like. If you broaden the category to terrorism cases both charged and uncharged, you might add the case of Yaser Esam Hamdi, who it seems will soon be released. I am less sure than Venkat is about what to make of these cases. The nature of terrorism cases is that the public often only sees the tip of the iceberg, and there may be a lot more going on that we can't see but that would put things in a very different light. Still, the picture drawn by the public side of these cases is troubling.

Thanks to De Novo for the link.

[Eric Muller (visiting from isthatlegal.org), September 2, 2004 at 2:06pm] Possible Trackbacks

I'LL HAVE THE COMMERCE CLAUSE, WITH A SIDE OF FRIES:

A student points me to this funny story at the Onion.

[Eugene Volokh, September 2, 2004 at 12:50pm] Possible Trackbacks

Good and inexpensive restaurants right around Stanford:

Since Leslie and I will be around Stanford for three and a half months, we wanted to find some good and inexpensive restaurants that we could regularly go to and pick up from. We'd like to have a range from the hole in the wall Chinese/Thai/etc. where dinner can be $10/person or less (not counting tax, tip, and alcohol) to the moderately priced places where dinner can be up to $25/person or so. The fancier places we can probably find through Zagat and other sources.

Any suggestions? Please e-mail me at volokh at law.ucla.edu if you have some. Thanks!

[Eric Muller (visiting from isthatlegal.org), September 2, 2004 at 12:44pm] Possible Trackbacks

RHETORIC AND REALITY.

Thanks, as always, to Eugene for the invitation to guest-blog here again. It's always a pleasure.

Yesterday Eugene critiqued a letter I signed in which a group of historians and researchers (including me) complained of the decision made by many TV and radio shows to present, without opposition, Michelle Malkin's revisionist account of the Japanese American internment. (Malkin argues in her book "In Defense of Internment" that the eviction, removal, and detention of 112,000 people of Japanese ancestry in World War II were all justified by solid evidence of widespread espionage by Americans of Japanese ancestry both before and after Pearl Harbor. My (and historian Greg Robinson's) debunking of Malkin's revisionism is here.)

Eugene says that the phrasing of the letter "will likely sound to many like a guild guarding its professional turf against upstart competition, not a substantive critique that should make the media or viewers take notice." The problem, Eugene says, is that the letter buried [the lead—which is that Malkin's book gets history very wrong—]under a different lead that . . . frames the argument exactly the way that professional academics ought not frame it—at least if they want to persuade their lay readers."

I've thought about this a good bit since yesterday. I agree with Eugene's assessment of how many people are likely to read the first few sentences of the letter, especially those who come to the debate suspicious of academics in the first place. I wish I could go back in time and make some of Eugene's suggestions before I signed it.

But I don't regret signing it, even in the format in which it appears, because the letter points out something very important—something that Eugene's well-taken criticism of the rhetoric misses.

The premise of Eugene's criticism is that, in the controversy stirred by the publication of Malkin's book, "a substantive critique" actually has a chance of "mak[ing] the media or viewers take notice," and that it has a shot at reaching, let alone "persuading," some appreciable number of "lay readers."

Since Malkin published this book several weeks ago, she has presented her historical account of "vast networks of Japanese American spies"—unopposed—on probably a half-dozen prime time shows on cable television (Fox, MSNBC, CNBC, HBO, C-SPAN (although that one wasn't primetime)) and many, many national and local radio programs. On just two occasions, both of them on local radio (one in Philadelphia and one in North Carolina), I was invited to present an opposing view and did so. On a third occasion (also on local radio in Philadelphia), I was invited to present a response after Malkin spoke, but the show apparently thought better of it after hearing from Malkin for 15 minutes and hung up on me before giving me a chance to speak so that they could take "an important call from the Republican National Convention." (I wasn't in the listening area so I never learned who the caller was.)

The result of this one-sidedness is exchanges like this wrap-up exchange at the end of her interview yesterday on WPHT radio in Philadelphia:

Radio Host: The bottom line here, Michelle, is don't let your kids be taught that we did despicable things to the Japanese Americans during World War II, 'cause it ain't true.

Malkin: That's right.

One might say, "Well, if you want to get the opposing views out there, you need to do more than gripe about it in some lame letter; you need to appeal directly to these shows to present an opposing view." But here's the thing: I (and others) have done just that. I have approached each and every radio and television show that has showcased Malkin for the last several weeks—in most instances (when I was able to learn of it) before Malkin's appearance—and made the substantive case that Malkin's book presents a history so false that it amounts to a smear on the reputation of an entire ethnic group (not to mention a brief for the mass internment of Arabs and Muslims). In not one instance has any show—radio or television—agreed to present an opposing view; they've just presented Malkin. (The two local radio shows on which I did appear approached me because their producers had seen my blog.)

And the book, as of last weekend, was at #31 on the New York Times bestseller list, and has hovered near the top of amazon.com's sales list for several weeks now.

So, while Eugene might deem Greg Robinson's and my substantive case that Malkin is wrong to be "a point that should be persuasive to media and to viewers, and that appeals to acknowledged media ethics," and that should lead the media to conclude "that at least some contrary voices should be called on to rebut her arguments," the fact is that it hasn't.

I know, I know: some are already itching to fire off an email to me telling me that I'm just jealous because Michelle Malkin's book is selling like hotcakes and being talked about on TV and radio while mine didn't and isn't. Please. Anybody who thinks my efforts of the last few weeks have been about selling books doesn't know me at all (and doesn't know my book). Amazon had two hardcover copies of my book left in stock 3 weeks ago, and—guess what!—it still has two hardcover copies of my book left.

This isn't about selling books, and it isn't about getting my handsome mug on TV or my mellifluous voice on the radio. It's about countering, in the only way I know how, the stunningly successful spread of false insinuations about the loyalty and conduct of a group of Americans I've come to know and care deeply about.

By the way, for those who are curious, I have assumed that the name "Historians' Committee for Fairness" is just a play on the "Fair Play Committee," an organization that formed at one of the ten Japanese American Relocation Centers to protest the government's program of eviction and incarceration. I don't know for sure, as I didn't organize the letter-writing effort. But I don't think it's anything more than that. Certainly it's not the name of a longstanding, established organization such as the American Association of University Professors or the Swift Boat Veterans for Truth.

[Eugene Volokh, September 2, 2004 at 4:25am] Possible Trackbacks

Eric Muller guest-blogging again:

I'm glad to say that my fellow lawprof Eric Muller (IsThatLegal?) will be guest-blogging again today and tomorrow, while my family and I are packing up and driving up to Stanford, where I'll be visiting for the Fall Semester.

Wednesday, September 1, 2004

[Eugene Volokh, September 1, 2004 at 6:50pm] Possible Trackbacks

Tuesday, August 31, 2004

[Orin Kerr, August 31, 2004 at 9:50pm] Possible Trackbacks

Federal Circuit on the DMCA:

Today the Federal Circuit decided Chamberlain Croup v. Skylink Technologies, also known as "the garage door opener case," which considered several interesting and important questions about the scope of the DMCA. The Federal Circuit affirmed. From the opinion:

   We conclude that 17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners. While such a rule of reason may create some uncertainty and consume some judicial resources, it is the only meaningful reading of the statute. Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products. See H.R. Rep. No. 105-551, at 26 (1998). The courts must adhere to the language that Congress enacted to determine how it attempted to achieve that balance.
   . . . .
   . . . . A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization—as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker's device enables either copyright infringement or a prohibited circumvention.

UPDATE: Ernest Miller blogs his thoughts on the case here.

[Eugene Volokh, August 31, 2004 at 1:18pm] Possible Trackbacks

U.K. bans car ads for showing gun:

Bloomberg.com reports:

Ford Motor Co., the world's second biggest carmaker, has had a television commercial for its Land Rover brand banned by the U.K. communications regulator after it was judged to "normalize" the use of guns.

The advertisement, which featured a woman brandishing a gun later revealed to be a starting pistol, breached the Advertising Standards Code and must not be shown again, Ofcom said in an e-mailed statement. The regulator received 348 complaints against the ad, many concerned that the commercial glamorized guns and made it "appear that guns are fun and cool." . . .

Ofcom said glamorization is "part and parcel" of the advertising process but this commercial "normalized" gun ownership in a domestic setting. The pistol, fired by the woman into the air as a man got into his car, was used in "an apparent casual manner and just for fun," Ofcom said. . . .

Handguns, as I understand it, are indeed largely banned in the U.K.; but this wasn't an ad for handguns. (Even under U.S. law, which as I understand it is more speech-protective than are U.K. or European free speech norms, an advertisement for an illegal product is unprotected.) Rather, it was an ad that the government thought spread an idea -- handguns are "fun and cool" -- that the government disapproves of. So of course the solution is: ban it.

Thanks to Dan Gifford for the pointer.

[Eugene Volokh, August 31, 2004 at 12:40pm] Possible Trackbacks

Online poll screw-up

I've long declaimed against online polls, largely because they involve self-selected samples — that X% of the people who chose to participate voted in a particular way tells us next to nothing about what the public at large, or any other segment of the public at large, thinks.

But MSNBC has managed to come up with a poll that has a problem much less subtle than the one I describe above. Here's how the question is framed, I kid you not:

QUESTION OF THE DAY

Did Rudy Giuliani's speech reassure you or move you to support the Bush-Cheney ticket?

Reassure Move you to support

Yup, those are the only two options. The problem is so glaring that I have to assume it was an accident — but what an accident.

Thanks to Marty Lederman for the pointer.

UPDATE: Gil Milbauer reports that this has been fixed, and the choices are now "yes" and "no."

[Eugene Volokh, August 31, 2004 at 5:09am] Possible Trackbacks

Smearing Soros:

It's innuendo, but it's pretty repulsive innuendo (at least unless Dennis Hastert has something to back it up). From Fox News Sunday, Aug. 29, 2004:

[Host Chris] WALLACE: Let me switch subjects. You both had very deep reservations about McCain-Feingold campaign finance reform before it was passed. In fact, I think you say in your book, Mr. Speaker, that you thought it was the worst piece of legislation that had been passed by a Republican Congress since you've come to Washington.

Now that everyone seems upset with these so-called independent 527 groups, whether it's MoveOn.org on the liberal side of the spectrum or Swift Boat Veterans for Truth on the conservative side, do you feel like saying, "I told you so"?

HASTERT: Well, you know, that doesn't do any good. You know, but look behind us at this convention. I remember when I was a kid watching my first convention in 1992, when both the Democratic Party and the Republican Party laid out their platform, laid out their philosophy, and that's what they followed.

Here in this campaign, quote, unquote, "reform," you take party power away from the party, you take the philosophical ideas away from the party, and give them to these independent groups.

You know, I don't know where George Soros gets his money. I don't know where -- if it comes overseas or from drug groups or where it comes from. And I...

WALLACE: Excuse me?

HASTERT: Well, that's what he's been for a number years -- George Soros has been for legalizing drugs in this country. So, I mean, he's got a lot of ancillary interests out there.

WALLACE: You think he may be getting money from the drug cartel?

HASTERT: I'm saying I don't know where groups -- could be people who support this type of thing. I'm saying we don't know. The fact is we don't know where this money comes from.

Before, transparency -- and what we're talking about in transparency in election reform is you know where the money comes from. You get a $25 check or a $2,500 check or $25,000 check, put it up on the Internet. You know where it comes from, and there it is.

Hastert's substantive criticisms of campaign finance may be legitimate -- but the suggestion that Soros might be getting money from illegal drug distributors, even as a hypothetical example, is pretty reprehensible. (Imagine that, say, Ted Kennedy said "I don't know where Swift Boat Veterans for Truth are getting their money, if it comes from overseas or from neo-Nazis"; I take it that we'd be pretty appalled, even if Kennedy was just giving a hypothetical example.) And while "drug groups" may be slightly ambiguous in other contexts, where it might refer to pro-drug legalization groups, in this context it pretty clearly does suggest drug criminals, partly because Hastert didn't deny the connection when Wallace raised it and partly because the pro-legalization groups are funded by Soros, not the other way around.

As Jesse Walker (Hit & Run) points out, illegal drug dealers are actually likely to oppose drug legalization rather than supporting it: "Drug prohibition acts as a price support and a barrier to entry; it helps the cartels maintain their market position. They're about as likely to fund a legalization campaign as they are to give Denny Hastert an all-expenses-paid vacation in Bermuda or -- as long as we're throwing around groundless insinuations -- a free sex tour in Thailand." But in any event, Hastert shouldn't be making such unsupported innuendos, whether they make economic sense or not.

[Eugene Volokh, August 31, 2004 at 3:27am] Possible Trackbacks

Another Crime-Facilitating Speech controversy,

this time over IndyMedia's posting of delegates' "names, home addresses, e-mail addresses and the New York-area hotels where many are staying." The Secret Service is investigating.

I'm not sure whether such postings break any existing laws, or whether a law could indeed ban them consistently with the First Amendment. While such speech may indeed facilitate crime, it is also useful for legal and perhaps even constitutionally protected purposes, such as remonstrating with the delegates or demonstrating outside their hotels (or even their homes). See generally NAACP v. Claiborne Hardware (1982), which held that publishing the names of people who weren't complying with the boycott was constitutionally protected. (The speech in Claiborne didn't involve publishing addresses, but in a small county of about 10,000 people, knowing someone's name could pretty quickly get you his address.)

On the other hand, the Secret Service may be legitimately investigating to see whether any illegal conduct against the delegates is planned. Constitutionally protected speech may often trigger an investigation: This is most obvious after a crime is committed -- if Joe Schmoe is killed, and it turns out that I had earlier expressed the constitutionally protected opinion that he needed killing, the police could certainly investigate me more closely because of what I had said -- but I think it's equally true when the police are trying to prevent a crime. So it's hard to evaluate the investigation based on just the brief snippet that I saw reported.

Monday, August 30, 2004

[Eugene Volokh, August 30, 2004 at 11:41pm] Possible Trackbacks

Impeaching Blair?

Iain Murray (Edge of England's Sword) has several posts on this; go here and scroll down, and also see here.

I'm not sure I agree with the last post, which argues:

It occurs to me that impeachment may actually have been the subject of implied repeal under the much-derided (by me among others), but nevertheless law of the land, Human Rights Act 1998.

How does the impeachment process as described by the authors square with these provisions?

[Article 6] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

How can their Lordships assembled be regarded as an "independent and impartial tribunal"? And:

[Article 7] No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

An undefined "High Crime / Misdemeanour" is patently contrary to this article.

I know nothing about British law, but my instinct is that if an impeachment — even for a "High Crime" — leads only to expulsion from office, it's more akin to the firing of a high government official (though a highly specialized sort of firing) than to a true criminal conviction. It doesn't make much sense to have the same protections for the accused there as when the accused is put in danger of prison, death, or the other consequences of criminal convictions; the main issue here is the welfare of the realm, not the interests of the government official, who ought not be seen as having any property interest in his position. And it would surprise me if English courts interpret these provisions, which seem focused on true criminal prosecutions or at least matters where the individual does have some sort of personal right at stake, as applying to impeachment. But in any event, Iain is the expert on English matters, and I'm not.

UPDATE: I've exchanged a few e-mails with Iain about my quibble, and they reminded me to acknowledge what Iain quite correctly pointed out (and what Mark Kleiman has just blogged about) — — in English history, the most prominent impeachments (centuries ago) have resulted in criminal punishment. The U.S. constitutional rule that an impeachment may at most punish someone by removal from federal office, perhaps coupled with a prohibition on future federal officeholding is actually a reaction to that history.

Nonetheless, I strongly suspect that in this impeachment, all that Blair's enemies would seek is his removal from office. As a political matter, it seems highly counterproductive for them to ask for more. And if that's all they ask for, then I don't think that the process ought to be treated as a criminal process.

FURTHER UPDATE: I told you that Iain is the epxert on English matters and I'm not; he writes that a 1999 report of the Parliamentary Committee on Privilege provides the following:

Under this [. . .] procedure [i.e., impeachment], all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatsoever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There in the name of the House of Commons and of all the Commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order to that House. If a commoner, he is arrested and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints 'managers' for the trial to prepare attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and reexamination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgement is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon. The last impeachment was in 1805 (Lord Melville). The procedure has not been widely adopted in the Commonwealth. However, it survives, in a somewhat different form, in the constitution of the United States of America.

I still think that if the punishment involves only removal from office (and the arrest and bail is omitted or treated as a pure formality), the process looks more like the dismissal of a high government official -- and not a matter of civil rights or criminal punishment -- even if its historical origins involved something much closer to criminal punishment. Nonetheless, I appreciate Iain's points, and I agree that formally speaking the arrest and bail are at least more reminiscent of criminal procedure, and do implicate the person's civil rights (though I'm not sure that even they would be barred by Article 6).

[Orin Kerr, August 30, 2004 at 11:07pm] Possible Trackbacks

Old TV Campaign Ads Never Die,

they just go on the web. Or so you might think after spending some time with The Living Room Candidate, which has collections of presidential campaign ads for every presidential election since 1952. I laughed my way through the Ross Perot ads from 1992, and found lots of other great stuff, too. (Hat tip: Is That Legal?)

[Eugene Volokh, August 30, 2004 at 7:29pm] Possible Trackbacks

University of Montana Law School Ordered

to let Prof. Natelson teach constitutional law: As I reported in early July, quoting a local newspaper:

University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .

In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . .

A hearing officer has ruled that Prof. Natelson was indeed wrongly denied the opportunity to teach constitutional law, and should be allowed to do so; and the University President has therefore ordered the Dean of the law school to let Prof. Natelson teach the class. The decision, though, was based on the law school's having not followed its own traditional informal rules on the matter; the hearing officer said he didn't have to decide whether political discrimination was present. Some of Prof. Natelson other charges, also mentioned in my earlier post, were also seemingly not reached.

The fabulous UCLA Law Library has gotten me copies of the hearing officer's opinion and the President's decision, so I've put them on the Web for those who are interested.

[Orin Kerr, August 30, 2004 at 5:18pm] Possible Trackbacks

Political Conventions and Campaign Finance:

Political conventions don't generate any actual news these days, but look on the bright side: conventions are week-long campaign commercials that the major party candidates don't have to buy. Not that the conventions themselves are free, of course; according to this website, the GOP convention is expected to cost around $64 million.

[Todd Zywicki, August 30, 2004 at 4:59pm] Possible Trackbacks

CELL PHONE RESPONSES:

Three ideas suggested about cell phone regulation (assuming that cell phones and driving impose a cost through riskier driving--a contested proposition, as was noted):

1. Impose a ban/fine: This is Law & Econ 101, so I'm a bit embarrassed that I didn't think of it myself, but as usual Jonathan Klick was able to straighten me out on my economics. A "ban" is usually enforced through a fine, so if you impose, say a $25 dollar fine if someone is busted, then people will automatically tend to sort themselves into high and low users and will minimize the length of their calls to reduce the probability of being hit with a fine. The problem to my mind, is that local governments seem to use traffic regulations to raise revenue rather than to establish optimal rules, so who is to say they will set the rate at the proper price.

2. TAx on moving converstaions: Doug Lichtman had an interesting idea of taxing cell phone conversations differently depending on whether the conversation moves from one cell tower to another or remains on the same cell tower throughout. This is over-inclusive because it catches passengers too, but its a nifty idea because it tries to directly regulate the cost side of the transaction and tax at a higher rate those phone calls that have the greatest propensity to impose costs through risky driving (talking in a moving vehicle) versus low-cost calls that are stationary.

3. Technology and market adjustments: Mike Vos suggested that if there is a real cost here that the market would probably sort it out. He suggested that if cell phone drivers get in more accidents, this would create an incentive to tie cell phones into the "black box" recorders that are now in cars or GPS systems, such that it would be possible to determine if a person was traveling while talking on the phone. This has the added benefit, of course, of providing sound incentives to figure out whether cell phones actually impair driving by relying on adjustments in the insurance market to make that determination.

Thanks to everyone who wrote in with these ideas and others, all of which were very clever.

[Eugene Volokh, August 30, 2004 at 4:58pm] Possible Trackbacks

Sunday, August 29, 2004

[Todd Zywicki, August 29, 2004 at 5:12pm] Possible Trackbacks

THE CELL PHONE, MAYBE NOT-SO-MENACE:

Larry Ribstein notes that the evidence remains somewhat ambiguous on the effects of driving while talking on a cell phone. In particular, as Larry suggests and I should have acknowledged more explicitly in my initial post, any costs associated with cell phone use should be balanced against the benefits, especially in terms of potential social wealth increases. Thus, even if there are costs, if they are small relative to the benefits, then a ban would be inefficient. If we assume for the sake of argument that there is some cost, it is probably basically the same cost regardless of whether the driver is doing high-value work while driving or low-value work. A rule-based solution of a complete ban, therefore, is almost certainly inefficient (unless it is a second-best solution). If there are costs, the optimal regulatory solution would be to permit high-value conversations and stop low-value conversations while driving, but a standard that permitted high-value and banned low-value conversations would be unworkable. Given that neither of these alternatives seems ideal, I suggest the possibility of a norms-based solution that tries to encourage people to self-regulate between high and low value phone calls. There may be other ideas out there on how to sort high-value from low-value, if so, please email me and I'll post any good ideas that come my way.

Of course, as Larry notes, the evidence may show that the costs may be trivial, or nonexistent, or dramatically reduced by hands-free devices, in which case the overwhelming number of calls would have positive social value and there would be no problem.

Update:

Best comment received in response:

"Dear Professor: We then have to also estimate the benifits of drinking... and of driving under the influence, don't we? How many people do you know who met their spouses under the influence? How many could only have met them that way?"

I'm not sure if he's married, but I'll give an anonymous thanks just in case...

[Juan Non-Volokh, August 29, 2004 at 9:25am] Possible Trackbacks

Sunday Song Lyric:

The Dead Kennedys were always an amusing and outrageous band. From the pointed humor of their lyrics and their raucous shows to Jello Biafra's semi-serious run for mayor of San Francisco and the allegedly obscene H.R. Giger poster distributed with the Frankchrist album, the DKs were always worth some attention, even when their music was inconsistent.

With all the talk about whether John Kerry did or did not spend Christmas in 1968 in Cambodia (his campaign admits he didn't), it just seems appropriate to post the DKs 1980 classic "Holiday in Cambodia." (Thanks to a reader for the suggestion, as it hadn't yet crossed my mind.) I won't pretend for a moment that I share the Dead Kennedys' politics but I've hardly made that the basis for my musical tastes (or lyric selections). In any event, here it is.

So you been to school for a year or two
And you know you've seen it all
In daddy's car, thinkin' you'll go far
Back east your type don't crawl
Play ethnincky jazz to parade you snazzy
On your five grand stereo
Braggin' that you know how the n*****s feel the cold
And the slum's got so much soul
It's time to taste what you most fear
Right Guard will not help you here
Brace yourself, my dear...

It's a holiday in Cambodia
It's tough, kid, but it's life
It's a holiday in Cambodia
Don't forget to pack a wife

You're a star-belly sneech, you suck like a leech
You want everyone to act like you
Kiss ass while you bitch so you can get rich
While your boss gets richer off you
Well you'll work harder with a gun in your back
For a bowl of rice a day
Slave for soldiers `til you starve
Then your head is skewered on a stake
Now you can go where people are one
Now you go where they get things done
What you need, my son...

Is a holiday in Cambodia
Where people dress in black
A holiday in Cambodia
Where you'll kiss ass or crack

Pol Pot, Pol Pot, Pol Pot, Pol Pot, ....

And it's a holiday in Cambodia
Where you'll do what you're told
A holiday in Cambodia
Where the slums got so much soul

[Juan Non-Volokh, August 29, 2004 at 12:06am] Possible Trackbacks

Helms-Burton-Kerry:

Apparently Senator Kerry voted for the Helms-Burton Act, before he voted against it. Where have we heard this before? (Don't worry, in this campaign you're bound to hear it again.)

Saturday, August 28, 2004

[Eugene Volokh, August 28, 2004 at 5:27pm] Possible Trackbacks

Negative campaigning:

On NPR this morning, Jim Nayder, host of the Annoying Music Show, quoted this gem from William H. Harrison's campaign against Martin Van Buren:

Who rules us with an iron rod?
Who moves at Satan's beck and nod?
Who heeds not man,
Who heeds not God?
Van Buren, Van Buren!

Thanks to those readers who pointed me to the NPR archive and to Jim Nayder's identity (the original version of this post did not identify him), and to Michelle Dulak and N.Z. Bear who transcribed for me the text of the second stanza, which reads:

Who would his friends, his country sell
Do other deeds too base to tell
Deserves the lowest place in hell
Van Buren, Van Buren!

Sweet!

[Todd Zywicki, August 28, 2004 at 10:52am] Possible Trackbacks

FASCINATING KOREAN BANKRUPTCY LAW:

For the record Orin, I would prefer the piece on Korean bankruptcy law.

Then again, when I was in bankruptcy practice, we used to pester the lending and corporate attorneys to take us to meet their clients for whom they were closing deals and they always blew us off. One finally fessed up that taking a bankruptcy attorney to a deal closing was like taking an undertaker to a wedding. I never asked again.

[Juan Non-Volokh, August 28, 2004 at 10:40am] Possible Trackbacks

Keyes Agonistes

In 2000 Alan Keyes lambasted Hillary Clinton for carpetbagging when she moved to New York to run for the Senate. Suddenly Keyes had a change of heart when given the opportuinity to run for the Senate in Illiois. Yet this has hardly been Keyes' only flip-flop, reports FoxNews. He once opposed slavgery reparations, now he thinks otherwise. In 2000, while running for President, Keyes recommended abolishing the Agriculture Department, now he thinks it is worth keeping. Indeed, if the Fox report is accurate, Keyes attributes this last change to increased efficiency at Ag. And to think Keyes once had the reputation as a principled, if a bit unhinged, political figure. No more.

[Todd Zywicki, August 28, 2004 at 10:38am] Possible Trackbacks

THE CELL PHONE MENACE:

New paper concludes that drivers impaired by driving while talking on cell phones are more dangerous that drunk drivers. The abstract:

We used a high-fidelity driving simulator to compare the performance of cell-phone drivers with drivers who were legally intoxicated from ethanol. When drivers were conversing on either a hand-held or hands-free cell-phone, their braking reactions were delayed and they were involved in more traffic accidents than when they were not conversing on the cell phone. By contrast, when drivers were legally intoxicated they exhibited a more aggressive driving style, following closer to the vehicle immediately in front of them and applying more force while braking. When controlling for driving conditions and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers. The results have implications for legislation addressing driver distraction caused by cell phone conversations.

It has always struck me that the real problem with driving and talking on cell phones is an adverse selection problem. Basically the argument goes like this. Driving and talking on a cell phone is clearly riskier behavior than not talking on the phone while driving. Given that, in general the people who are most likely to talk and drive are those who either are least concerned about externalizing the costs of their risky driving on others or those who tend to underestimate the risk associated with driving in the first place (i.e., below-average drivers). So in other words, it is precisely those who are the worst drivers in the first place who are most likely to ignore the risks associated with talking while driving. Whereas those who are ceteris paribus the best drivers are the ones who are most likely to recognize and account for the risk associated with talking while driving. Same analysis goes for those who eat, put on their makeup, and change cd's while driving.

So you have this downward spiral where the worst drivers do the riskiest things while driving. And at least some of the cost of risky driving behavior is borne as an externality by others. I doubt that banning cell phones while driving is efficient either because there are legitimate uses of course, so it may be a matter of trying to develop social norms that discourage people from gabbing while driving.

And this doesn't even account for them driving slower or poking along in the passing lane oblivious to the world around them because of their cell-phone conversations.

[Todd Zywicki, August 28, 2004 at 10:13am] Possible Trackbacks

NEW CORPORATE LAW BLOG:

Its called BizFems and its a collection of female corporate and commercial law scholars. Its just getting started but has some interesting people on it.

[Todd Zywicki, August 28, 2004 at 9:53am] Possible Trackbacks

DEVASTATING CRITIQUE OF SOFT DRINK STUDY:

Steven Milloy has a devastating critique of the soft drink study. He concludes first that the study itself is riddled with methodological problems. He writes: "Moreover, the study reports that women who consistently drank one or more regular soft drinks per day during those four years actually gained slightly less weight than women who consistently drank less than one soda per week during that same period.

The researchers' contention that soda intake is linked with type 2 diabetes is also not borne out by their data or anyone else's. The media-spotlighted claim of an 83 percent increase in diabetes among consumers of more than one soda per day — itself an inherently weak association from a statistical perspective — is misleading.

When the researchers statistically adjusted their results for bodyweight (a risk factor for diabetes) and for caloric intake (a proxy measure for consumption of sweetened foods other than soda), the 83 percent increase dropped to an even more statistically dubious (and soft-pedaled) 32 percent increase. That result is of the same magnitude as the study's reported 21 percent increase in diabetes among consumers of more than one diet soft drink per day. Diet drinks, of course, do not contain any sugar at all."

In addition he notes that the study itself fails to acknowledge a conlfict with a 2003 study that concluded that sugar intake does not increase the risk of Type 2 dabetes. The problem is that one of the coauthors on the new study was also a co-author on the prior study. "Certainly Willett and his co-authors could claim it was mere oversight on their part to not even mention this major conflicting study in the write-up of their study," Milloy writes, "but that assertion would be on thin ice given that Harvard Medical School's JoAnn Manson was a co-author of both studies!"

[Todd Zywicki, August 28, 2004 at 9:38am] Possible Trackbacks

GLENN WHITMAN ON VENDING MACHINES IN SCHOOLS:

Glenn Whitman has an interesting commentary on Agoraphilia on my observation that there may be justification for banning vending machines from schools even though it will do little to comabt childrens' obesity.

Friday, August 27, 2004

[Orin Kerr, August 27, 2004 at 7:23pm] Possible Trackbacks

Moving Tribute:

Tbogg has a moving post in memory of his father, who passed away on Wednesday. Thanks to TalkLeft for the link.

[Eugene Volokh, August 27, 2004 at 6:40pm] Possible Trackbacks

Clintonism of the Day:

Here's today's Bushism of the Day from Slate (note that "they" refers to the voters):

"They've seen me make decisions, they've seen me under trying times, they've seen me weep, they've seen me laugh, they've seen me hug. And they know who I am, and I believe they're comfortable with the fact that they know I'm not going to shift principles or shift positions based upon polls and focus groups." — Interview with USA Today, Aug. 27, 2004

The subhead of the column is, as always, "The president's accidental wit and wisdom," but this has nothing to do with the misspeaking — whether real or imagined, unusual or commonplace in the normal speech of normal people — that is supposedly Bush's hallmark, and that is thus supposedly accidentally funny. Nothing here is ungrammatical or a malapropism (unless, I suppose, the author is somehow picking on Bush for saying "under trying times" as opposed to "in trying times" or "under trying conditions").

The only thing that I can imagine the Slate author finding amusing is the "they've seen me hug" line, and more broadly the touchy-feeliness of the first sentence. But that's not a Bushism — that's an "I feel your pain" sensitive-guy Clintonism. I confess it puts me off a bit; I hope you'll never hear me say "they've seen me hug" in public. It says more, however, about the Clintonization (or 70s-ification, if you want to go that far back) of American politics than about Bush's accidental wit and wisdom.

UPDATE: Just to make it clear, occasional hugging is fine -- it's just talking a lot about hugging that I disapprove of.

[Eugene Volokh, August 27, 2004 at 6:19pm] Possible Trackbacks

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