Saturday, May 31, 2003

[Will, 8:06 PM]

Hmm. So a couple of people have told me that they've tried reading this blog and can't, because it's too involved, or too intense, or too prone to dropping into the middle of a conversation with no context. This is of course an eternal dilemma on behalf of the writer. On the one hand, I know that most of the people who read this thing read it regularly, and I don't want to simply rehash everything previously said all the time, since it's so easy to link to it. On the other hand, we want to be perfectly accomodating to people who just skim the blog occasionally.

I know I'm prone to getting caught up in legalese sometimes, (ironic, since I haven't actually studied that much law myself) and I'll try to work on mitigating that. If there are other things you can think of that would make the blog easier on the unattentative, the uninitiated, or anybody else, I'd love to hear them. Please drop me a line.

[Will, 2:00 AM]
Affirmative Action?:

Writing about the affirmative action teapot at IU has made me ponder the question a number of people have asked me-- what should the court do with affirmative action?

First of all, let me say that I think the court has interpreted the 14th Amendment all wrong. I'm particularly amazed at the Scalia-Thomas line of reasoning, that the 14th Amendment enshrines a principle of race blindness and very little else. After all, the 14th Amendment eschews use of the word race altogether (even though race is mentioned in the very next, nearly contemporary amendment, which grants suffrage to all races). Add to this pregnant textual omission the significant weight of history-- decades and decades of segregation indicate that nobody who adopted the 14th Amendment thought it meant colorblindness-- and the position becomes a little odd for originalists. (Add to that puzzlement the fact that Scalia and Thomas unquestioningly apply the 14th Amendment's guarantee of equal protection (which applies only to the states) also the Federal Government, under the "equal protection component of the due process clause" of the Fifth Amendment).

Of course, we don't live in an originalist world. As a policy matter, the color-blind position appeals to me, for exactly the reasons that Justice Thomas espouses it. If I only thought it was actually supported by text or history, I'd be on board. So where does that leave us? Possibly applying strict scrutiny, asking first whether "diversity" is compelling, and if so, whether Michigan's affirmative action programs are narrowly tailored to achieve it.

As to the first question, I think it depends on whether you mean "racial diversity" or "intellectual diversity." Racial Diversity would be a convenient answer, but unacceptably circular. (We should be granted an exemption to the general presumption against race-based laws. Why? Because, we . . . . want to alter our racial makeup.) So it must be Intellectual Diversity that the universities are after. Then to believe the narrow-tailoring prong, you'd have to believe that Race really did Matter, in some capital-letter sense (not just that these measures were necessary to achieve a desired racial makeup; of course they are). From the briefs that I did read (by no means all of them) this was the one step in the analysis I didn't see made explicit. It's not enough to show that without affirmative action, Michigan's black enrollment would be cut in half. One has to show that those non-blacks who replaced the blacks in the hypothetical, AA-free world, were not as "intellectually diverse" as the blacks whose spots they held. Of course, I think that's a claim that will make some of the court's moderates a little uncomfortable, so if they rely upon it, I think they're likely to gloss over it, or defer to the expertise of university admissions boards on it (which is not an entirely senseless thing to do).

Of course, I think that the race game isn't what "equal protection" should really focus on, or at least I think it's not what the court really cares about. Reading Romer v. Evans (a case about homosexuals in colorado) makes me think the court really wants to extend protection to "discrete and insular minorities," (a la Carolene Products). In other words, under the Constitution as I understand it, Michigan's policies probably ought to be constitutional; I like the colorblind world that Scalia and Thomas pitch, and I dislike strict scrutiny, but it's a giant leap from text, tradition, or precedent to get there. As a policy matter? That's a post for another day.

[Will, 1:42 AM]
Tempests, Teapots, and Scott Dillon: Affirmative Action at IU Law

This is a bit of a delicate matter to blog on, since both of my parents work at the Indiana University School of Law and are therefore privvy to plenty of conversation on the matter that isn't public knowledge, but the folks at The Hoosier Review need a bit of commentary, I think, and I won't quote anything here that isn't publicly available.

As Josh Claybourn notes, The Indianapolis Star has an article about a minor tempest-in-a-teapot that took place at IU Law school. IU-Law Graduate Scott Dillon distributed packets of information about IU's admissions policy into student mailboxes, and these packets then disappeared. The Dean, Lauren Robel, then circulated an email to all students, telling them what had happened and giving them Mr. Dillon's email address so they could get the data directly from him if they wanted it. (Incidentally, here's Mr. Dillon's email address so you can too.)

Dillon complained that police weren't taking the "theft of his data" seriously enough. The Indianapolis Star story uses the phrase "data theft," but doesn't attribute it to Dillon, and I hope that's because they made it up and not him. In common parlance, I think, data "theft" usually implies either that somebody took from you your main copy of the data (by sneaking into your computer, say) or acquired a copy of data that you had meant to keep secret. But if, for example, I print out a copy of one of my econ papers, write "for Peter N." on it, and leave it in the dorm lounge where it's taken by somebody else, it seems highly misleading to call that "data theft". This is not to say that nothing was stolen (though the IU police department is of the opinion that since mailslots are open to the public, no theft had occurred). But the theft was of non-unique copies of pieces of paper containing information. Calling that "data theft" is a little like calling it art theft when somebody swipes a computer printed picture off of my door.

All the same, I'm curious about what Mr. Dillon has to say. I've emailed him asking for a copy of his data, but no response as of yet (I'll update if there is; see UPDATE). I'm a little intrigued (and confused) by the Indianapolis Star's brief summary.
Dillon said data he obtained from the school on test scores from 1990 to 1999 showed the number of blacks admitted to the law school remained constant despite an increase in black applicants.
"To me, that looks like they're interested in maintaining a minimum level of minorities regardless of objective qualifications," Dillon said.

I'm confused. Indiana has not increased minority admissions in proportion to minority applications? If Dillon means to be showing that Indiana is discriminating against blacks, this would be an interesting bit of potential evidence. But as he is widely described as an affirmative action foe, I assume that he's trying to show that Indiana once admitted more blacks than were "qualified". Or maybe he's just trying to show that Indiana doesn't admit a constant percentage of each race (the article doesn't mention, by the way, whether there was an increase in the percentage of black applicants or only the total number (my LSAT skills showing off)).... Anyway, to me that looks like data Dillon ought to be applauding

Rereading the article, I think Dillon is arguing that this shows that the law school uses racial quotas. Which is possible, I suppose, though I'm not convinced that this couldn't be a "threshhold" system instead, like the one Michigan claims to use. Of course, I'm not sure about the functional difference between a quota and a threshhold. In any case, there are plenty of plausible and innocuous explanations, like the possibility that IU has pushed for more minority applicants in recent years but received mostly unqualified ones. Finally, here are a pair of op-eds on the matter by IU professors-- one by professor Robert Heidt and a response by professor Jeff Stake.
By Robert Heidt

By implication, the legal challenge to race discrimination in admissions at the Michigan Law School now before the Supreme Court of the United States also challenges the race discrimination in admissions at the Indiana University Law School in Bloomington.

As at Ann Arbor, we at Bloomington enforce a de facto quota of the minimum number of blacks and other minorities we are determined to enroll in each first-year law school class. And as at Ann Arbor, we engineer our admissions process to guarantee that when the first-year class shows up in late August, our de facto quota will once again be met. We differ in that to meet our de facto quota, we regularly lower our usual standards of admission more than our counterparts at Michigan lower theirs. For example, to meet our de facto quota of blacks in each first-year class, we deviate from our usual standards of admission more than any remotely comparable law school is willing to do. In fact, of all the law schools in the country approved by the American Bar Association, none regularly lowers its standards of admission for affirmative action purposes as much as we do. As a result, black applicants whose low grades, LSAT scores and extracurricular record would otherwise win admission only to Howard Law School in Washington, D.C., regularly win admission from us. And the overwhelming majority of applicants -- perhaps 80 percent -- for whom we lower our standards so drastically are from out of state.

Such is the affirmative action admissions policy we at the IU Bloomington Law School have followed for more than 30 years. We follow a similarly heavy-handed affirmative action policy for financial aid and faculty recruitment.

A policy however well-meaning in the abstract can feel foul to those given the job of implementing it. And in my four years on the admissions committee, routinely leapfrogging minority applicants over so many dramatically more qualified non-minority applicants, foul is how our affirmative action policy came to feel. Seeing the photographs and reading the record and personal statements of non-minority applicants whom we rejected in order to admit the far less qualified left me feeling as though I should wash. Eventually, I could not acquiesce in this policy any longer.

To be sure, every applicant has something positive in his or her record to which an admissions officer can point in order to justify admission. The great weight given race and ethnicity only becomes apparent when one sees the many positives in the records of those non-minority applicants denied admission.

Roughly speaking, to meet our de facto quotas, we must leapfrog less qualified minority applicants over approximately 330 more qualified non-minority applicants each year, many of whom, of course, will be Indiana residents.

Predictably, my opposition to our policy has been futile. Memos of my concerns -- concerns now taken up by the U.S. Supreme Court -- received no reply. As I said to the Indiana Policy Review in submitting a statistical report on our policy a few months ago, "On this subject the faculty and administration are entrenched in a Thermopylae of poor judgment and blocked imagination from which apparently no force on earth can dislodge us."

How entrenched we are in our policy may be revealed if the Supreme Court strikes down as unconstitutional Michigan's policy. Just recently, the IU administration, in an article published in our local newspaper, denied ever discriminating in favor of blacks and minorities in admissions. One cannot help but admire such brazenness. However, many fervent supporters of our policy are idealists, and, as the saying goes, the first thing an idealist will do for his ideals is lie.

Even if IU eventually 'fesses up, it still has left a host of technical claims about how the Supreme Court's decree does not apply to us, not to mention the options of delay and defiance. I believe that bringing a colorblind admissions policy to IU will require the determination of state legislators who are not afraid to use their control of our purse strings and who are savvy enough not to expect good-faith compliance from the faculty and administration.

But no court, not even the Supreme Court, can light such a fire under our state legislators. The match for that fire can only be struck by the people of Indiana.

Heidt, who teaches law at Indiana University in Bloomington and who has sat on the school's admissions committee, is an adjunct scholar of the Indiana Policy Review Foundation.

Professor Stake's Response:

A recent op-ed by a faculty member has seriously misinformed Star readers about admissions procedures at Indiana University School of Law - Bloomington. As Chair of the Admissions Committee, I would like to correct some of the regrettable misimpressions created by that op-ed.

IU Law does not use racial quotas in its admissions process. We do not assign a number or percentage to any racial group; nor do we establish any admissions goal for any such group; nor do we allot a specified number of seats based on race. We do not set a minimum, or a maximum, or an ideal. We do not "engineer" our admissions process to reach racial quotas. In short, we follow the dictates of the United States Supreme Court's Bakke decision.

In addition to our primary concerns for academic qualifications and integrity of character, the Admissions Committee strives to bring in a diverse class. Consistent with the Bakke decision, race is one of many diversity factors we consider. The diversity we seek also includes ethnicity, geography, viewpoint, undergraduate field of study, work experience, participation in community services and campus life, economic background, and military service.

All of those "plus" factors are considered when the Dean of Admissions and the Admissions Committee read the files of the applicants. All files are read holistically and the entire file is evaluated based on all considerations. We do not rank applicants on academic criteria and then look to see whether they belong to a minority group. All of the applicants we admit are wonderfully talented persons.

Along with others on the Committee and in the Administration, I view quotas to be illegal and I would never consider achieving diversity by breaking the law. I am absolutely confident that IU Law will not respond with either "defiance" or deception if the Supreme Court or the Legislature changes the law to prohibit race-conscious admissions. It is our obligation, as an institution of the State and especially as a law school, to obey the law. The suggestions, in print, that IU Law would defy the Supreme Court or respond in bad faith to the Legislature unfairly impugn what I know to be a faculty and institution of great integrity.

Professor Jeffrey E. Stake
Chair, Admissions Committee
Indiana University School of Law - Bloomington

UPDATE: Mr. Dillon has sent me his data which I'm poring over now (early on the morning of 5/31/03). I'll blog thoughts if I have them.

UPDATE TWO: Paul Musgrave from The Hoosier Review points out that IU's campus newspaper, the IDS did a better job of carrying Ms. Robel's response.

[Amanda Butler, 12:35 AM]
Curse the options:

[a link and quote-free post. sorry, don't have the time.]

I finally saw the admirably respectul recent film adaptation of Graham Greene's The Quiet American. The novel is set in the French Indochina as Vietnam struggles for independence from France, the Communists struggle to gain control within Vietnam, and the Americans -- well, I don't know the history to tell how far fact diverges from fiction in this recounting -- the Americans take sides. The main characters are Fowler, the 40ish British journalist; Pyle, the young quiet American; and Phong, the Vietnamese woman they both love. Fowler's policy is not to get involved, although that position is untenable. Pyle sees the French as fools and the Communists as, well, Commies, and presents himself as an agent of proper change.

But why are we--the Stranger, Other, Anglos--involved in the first place? Because we're there. If the Vietnamese chose to democratically elect themselves a Communist government -- a great fear of the Americans during this book -- what moral right do the rest of us of have to do anything other than send our economists over to lecture righteously at them? At one point, Fowler asks Pyle what it means for Vietnam "to go". He doesn't understand, he says, the American concern that countries will fall like dominos to Communism. As far as he can tell, even if it goes, it will still be there; its people and ways will outlast New York or Moscow.

It's . . . aie. . . how to put it. . . the novel indicts so many things. Neither Fowler nor Pyle''s approach to the Indochine situation survives the end of the story; indeed, Pyle does not survive the end. It attacks Pyle's presumption to understand the situation and to able to control anything, and then it attacks Pyle for actually gaining and using his control over the situation. Fowler wants to be able to care for Phuong the woman, her very corporeal self, let her interests fall where they may. His idea of separability fails. To have her, he must concern himself with her concerns, and to remain human in Vietnam, he must take action.

Here -- when Fowler finally does decide to act -- he choses the smallest amount of action possible, the most passive route he can take. It works, if accomplishing a discrete and isolated end constitutes working. [pardon some vagueness. Pyle's death is announced in the first chapter, so I don't think that's a spoiler.] But in a grander sense, does it work -- is there anything Fowler could do that would have worked? The Quiet American was published in 1955. As the movie makes clear with its ending shots of newspaper headlines through to the mid-1960s, America had no shortage of Pyles to carry on it missions of "aid".

And we, gentle readers, are left high and try with bad ideas laid out on the table, identified, and nothing approaching a solution. You can't even sleep contented for one night, temporarily believing that something propositioned might stand a chance of functioning. The End of the Affair left me with this feeling too -- the feeling that no amount of deus ex machina could create a happy ending (oddly, The Quiet American still manages to end a comedy).

I know I said I wouldn't, but... the epigraph comes from Canto I of Lord Bryon's "Don Juan".
"This is the patent age of new inventions
For killing bodies, and for saving souls,
All propagated with the best intentions."

[No. No. Now is not the time to read long poems.]

Sigh... questions for this summer when I have the time... how did Greene get to be so prophetic sounding -- where does he get his insight as a historical novelist? -- and what (why) does he think of Catholicism -- to be answered with more than "complicated" or "tortured" can explain.

Friday, May 30, 2003

[Will, 7:52 PM]
Decisions and Revisions:

And another question of blogging philosphy: when should a blogger delete her posts?

After consulting technorati I was preplexed to discover that recent links to our page had disappeared, until I discovered what happened. Sara Butler, embarrassed by the error in her post on contraceptives, has deleted it. Obviously a blogger doesn't want to perpetuate mis-information. (Obviously? Well, a good-faith blogger) But is it better to delete or merely to flag with a note saying "oops! this is completely wrong." On the one hand, blogging already encourages off-the-cuff remarking so much it makes some sense to let people revise as they think more carefully. On the other hand, the whole point of blogging is to expose arguments and responses, and it can be disorienting if you link to a post in error only to have your link's target dry up and go away.


(None of this, of course, is to criticize Sara's choice to take her post down, though I do wish I could remember what it said, and sadly Google didn't cache it recently enough).

[Will, 7:44 PM]

The Chicago Maroon contains an opinion piece by yours truly on school choice. If you read my previous "monster post," there's not really much new material, but it's there if you're curious. And that's the last piece I needed to make staff, which is good because there aren't any more issues for the quarter that I can write for.

[Will, 7:38 PM]
Augustus Schultz:

If your name is Augustus Schultz and you sent me an email in the past six hours, please send it again. I deleted it on accident.

Thank you for your time.

[Will, 6:44 PM]
Clinton and Clinton:

Hillary Clinton is being attacked by the left for "neglecting her base" and not taking up enough of a leftist agenda. They supposedly fear that she'll be like Bill Clinton. I dare to dream.

Bill Clinton, meanwhile, is suggesting that a two-term limit on presidents makes little sense.
"There may come a time when we have elected a president at age 45 or 50 and then 20 years later, the country comes up with the same sorts of problems the president faced before, and the people would like to bring that man or woman back,"

Matthew Yglesias has conducted some sort of unspoken analysis and concluded that Clinton is right and that unlimited terms would make the world "a marginally better place." Maybe.

I think there's a lot of sense in worrying about the incumbency effect in a president, and so it might be wise to want to restrict the possibility of future F.D.R.-esque rulers-for-life, like mayors Daley, writ large. But I do think Clinton's vision, that a country might want to go back "to the good old days," might well be accurate, and I think he's a good case in point. So why not amend the constitution to allow presidents to serve only two consecutive terms? That way, every eight years we'd be sure to usher some new blood in the system, but we wouldn't be deprived of turning back to a Clinton or a Reagan if the intervening president had led us far astray.

[Will, 6:35 PM]
Oh yes we do, redux:

It's an eternal dilemma. Blogger eats your post. (Which is to say, you clumsily click the wrong key and send the entire thing tumbling into cyber-oblivion). Do you retype the post or do you growl and stalk off? Personally, I can't rest unless I've retyped the post. Does that make me an addict?

The New York Times features a fascinating Ohio Case asking whether a woman can be convicted for violating a protective order protecting her. In this case, Ms. Lucas had been abused by her husband, got a protective order, then later "recklessly exposed herself to the offender from whom she has sought protection." The Ohio Supreme Court is trying to figure out whether her conviction makes any sense.

The practical and legal issues are intriguing here. My general belief is that we don't take domestic violence nearly serious enough, and so I'm wary of a legal rule that will discourage women even further from going to the police when they're being beaten up. (After all, it's easy to imagine the bad-faith mischief to which a state could get up, under this rule) On the other hand, granting a protective order creates a certain amount of "moral hazard" and I can see why a state might want to say, "yes, we'll protect you, but help us out here. Keep your head down."

The broader philosophical issue, though, is also interesting, especially to those (unlike me) who believe that it's sometimes okay to punish people for violating a law that exists "for their own good." Andrew Sanderson, Ms. Lucas's lawyer, argues that we shouldn't:
"Women in abusive relationships are not always in a position where they're going to act in their own best interest," he said. "The analogy I continually draw is between girls who get involved with older men. We don't prosecute them for aiding and abetting in statutory rape, no matter how worldly and solicitous they may be."

And yet, of course, we do things like this all the time. Drug use is the most obvious example, where we jail people for years even when they've done nothing more serious than smoke marijuana in their own homes, or grow some for their own use. If the laws are justified on the grounds of protecting people from drug dealers who would otherwise prey upon them, this is a little counter-intuitive. And, of course, there's the Glenbrook North hazing (can't you let it die?--ed. No!) where the school punished hazed juniors and not just hazing seniors. And William Saletan mentioned an interesting incest case in Tennessee, State v. Smith (Lexis access required) where the court upheld an incest law against a constitutional challenge from a young (and mentally injured) girl (named Ami Smith) who had been convicted of having sex with her uncle since the age of 16. (The case itself has interesting bearing on Lawrence v. Texas, the sodomy case currently before the Supreme Court. Tennessee upheld the incest law despite a previous decision by a higher appeals court that held as "fundamental" "an adult's right to engage in consensual and noncommercial sexual activities in the privacy of that adult's home," not because they said the incest wasn't consensual (how could they? they were prosecuting Ami) but because the previous decision "had swept too broadly," which is another way of saying, "they didn't mean it.")

There's obviously some sense in having laws like this-- the state punishes you for your own good because it knows you'll thank it later, or would if you were thinking "rationally" about the whole thing (so that's why they call them "paternalistic" . . .). On the other hand, it's not clear how effective paternalistic laws really are in some of these vice cases. If the problem is that people ignore risk and discount the future too highly, it's not clear how much they'll heed the risk of future prosecution. Rational drug users, on the other hand (if they exist), who properly weigh the drug's benefits against its harms, will be strongly deterred when the state adds a ten-year prison sentence to the list of harms. This isn't to say that paternalist drug laws don't affect the less rational as well as the rational, only that we shouldn't be surprised if they disproportionately help the very people who don't need them, while jailing (or ignoring) those who do.

Returning to the instant case, common sense might recognize the state's desire to say "we'll help you out, but don't make this difficult for us." After all, that's why the Chicago police are more sympathetic to a white college student's mugging complaint if she's mugged at 55th and Everett than if she's mugged at 102nd and Ashland. But then again, maybe it's unjust to require victims of wrongful violence to make sacrifices to prevent violence in the future. If the state is serious about stopping its citizens from beating one another up, (and I think it should be serious about that) then why shouldn't it stop them regardless of how "recklessly" they "expose" themselves to one another? Maybe those who are being "protected" should get just as much rights as anybody else who has done nothing wrong, and the violent should just learn to keep their hands to themselves.

I think both sides of this argument are compelling-- a protective order is a prophylactic rule designed to keep potential offenders away, and we don't want the holders of such orders to be able to make them almost impossible to enforce (by, for example, camping out just outside of your apartment so that you violate them by leaving home). But we should be wary of getting obsessed with prohibiting sometimes-harmful conduct (zero-tolerance) rather than focusing on protecting people from actual harm (harm reduction).

[Amanda Butler, 4:02 AM]

I can't sleep. So what do I do? I turn to Flannery O'Connor. At least I figure once I get to sleep the dreams will be wonderfully bizarre and disturbing.

"She meant to stand on that platform in August with the General sitting in his wheel chair on the stage behind her and she meant to hold up her head very high as if she were saying, "See him! See him! My kin, all you upstarts! Glorious upright old man standing for the old traditions! Dignity! Honor! Courage! See him!" One night in her sleep she screamed, "See him! See him!" and turned her head and found him sitting in his wheel chair behind her with a terrible expression on his face and with all his clothes off except the general's hat and she had waked up and had not dared to go back to sleep that night." -- from "A Late Encounter with the Enemy"

ah yes, be careful what you wish for. I always return to this passage from O'Connor, also with that same cautionary moral.

"Mr. Shiftlet was so shocked that for about a hundred feet he drove along slowly with the door still open. A cloud, the exact color of the boy's hat and shaped like a turnip, had descended over the sun, and another, worse looking, crouched behind the car. Mr. Shiftlet felt that the rottenness of the wrold was about to engulf him. He raised his arm and let it fall again to his breast. 'Oh Lord!' he prayed. 'Break forth and wash the slime from this earth!'

"The turnip continued slowly to descend. After a few minutes there was a guffawing peal of thunder from behind and fantastic raindrops, like tin-can tops, crashed over the rear of Mr. Shiftlet's car. Very quickly he stepped on the gas and with his stump sticking out the window he raced the galloping shower into Mobile." -- from "The Life You Save May Be Your Own"

sometimes I do wish I saw the world working in that way

[Will, 2:14 AM]
Oryx and Crake:

I've just finished Margaret Atwood's Oryx and Crake. (Sven Birkerts reviews it here, I respond here, Jeremy Reff here). It's very good. Yes, of course it has a leftist political message. Is it a good story? Absolutely. Is it ironclad political philosophy? Of course not. Is it literature with a capital "L"? Without a doubt.

It's good in the way that The Blind Assassin was good, without being tiresome in the way that A Handmaid's Tale was tiresome (even if good). That is, it paints a dystopia based on certain excesses, but it indicts in a purely literary manner, not a philosophical one. Atwood manages to instill both a chill sensation yet also eerie amazement that she has done so with such an ambiguous moral light. That is, she tars capitalism, nanotech, and child pornography, but with a strangely grey brush. The novel thus avoids Handmaid's "cautionary tale" trope in favor of the "inevitable tale" motif, which is much more effective in her hands.

And of course there's the rapidly shifting narrative style, which causes Atwood-lovers to swoon and Atwood-haters to reach for their air sickness bags, as modern day plot is mixed with past exposition-- like in Cat's Eye, Bodily Harm, Blind Assassin, and all the rest. But like the Blind Assassin, and unlike Cat's Eye, she manages to give more vitality to her modern day, even if the story is smoother and less surprising than Blind Assassin. In other words, Oryx and Crake is sort of like an Atwood table wine; it smooths out the major excesses and failings of her other works, even if it fails to make the mouth water quite as much as the best vintage. The narrative is a little easier to keep track of (there are only two timelines and one narrator), it has an ending (of sorts), it avoids being too preoccupied with its own premise, but also fleshes that premise out. The details make Crake's earth stand out from Handmaid's strangely generic world. I have always had psychological trouble with foie gras, but after ChickieNobs Nubbins . . . it will be a long time before I return to Chick-fil-A, (let alone these chicken rings!).

Of course, I also liked the book because of personal resonances. I'm tentatively working on a political theory piece called Reasoning Intelligently in a Post-Apocalyptic World, an activity at the center of Snowman's life. The thought of snats scuttling across the flooded basement floor makes me bring my feet up on the chair, especially given the losing battle my roommate and I are fighting with a rodent population. And as always, there's the Atwood take on love-- a little dirty and sickening, but strangely satisfing, like too many oreos late at night. Her narrator is male, which is vey unusual for her, but she writes him convincingly, which is impressive for an author whose books are all so soaked by gender and by sex.

As I said, the interplay between love and child pornography was particularly surprising to me (but I don't think I've spoiled anything), and the not unusual drama of love, friendship, duty, and all the rest happens to squarely strike my history. There's a strange echo of Chuck Palanhuik in this book. Maybe it's a Canadian thing.

And what of Birkerts' claim, that "what Atwood's inventive treatment of first and last things lacks is a plausible psychological basis. The man who would play God, who would rewrite creation, needs to be something more than a knowingly enigmatic figure conjured onto the page"? He wasn't reading carefully enough. Atwood makes it clear enough, though there is no Bond-like scene where the characters all recount their darkest plans to one another. "You can tell a lot about a person from their fridge magnets, not that he'd thought much about them at the time." Atwood's characters are subtle and her narrator decidedly limited. But Birkerts claim that backgrounds are "arbitrarily assigned" and "true complexity of character" lacking are absurd. I suspect that he skipped or skimmed the last third of the book, or failing that, didn't stop to think long and hard at the end of chapter 12.

And of course, there are also the curious touches that make this a book worth re-reading once or twice-- not on the weblike level of The Blind Assassin or Ada-- but the two digs (one explicit on page 196, one all but on page 151) at the Worst Case Scenario Handbooks are priceless. The misuse of "comprised" on page 109 is a little off-putting, though. And could this post be complete without quotes?
"Don't even think about it," he tells himself. Sex is like drink, it's bad to start brooding about it too early in the day.

"...You used to be so . . . you had ideals, then."
"Sure," said Jimmy's father in a tired voice. "I've still got them. I just can't afford them."

Why hyphenate, why parenthesize, unless absolutely necessary?

"You know I love you. You're the only one." She isn't the first woman he's ever said that to. He shouldn't have used it up so much earlier in his life, he shouldn't have treated it like a tool, a wedge, a key to open women. By the time he got around to meaning it, the words had sounded fraudulent to him and he'd been ashamed to pronounce them. "No, really . . ."

"You can't buy . . ." He wanted to say love, but he hesitated. It was too soppy.
"You can't buy it, but it has a price," said Oryx. "Everything has a price."
"Not me," said Jimmy, trying to joke. "I don't have a price."
Wrong, as usual.

He wasn't lying though, not all the time. He really did love these women, sort of. He really did want to make them feel better. It was just that he had a short attention span.

Thursday, May 29, 2003

[Amy, 3:35 AM]
Plus ca change...

Matthew Yglesias thinks that the Democrats need to get themselves some religion. He writes:

A substantial portion of politics is about moral argument, and for most Americans morality and religion are closely tied together. This is not, in my opinion, an ideal situation, but it's the situation we've got so the Democrats might as well learn to live with it.

I find this particularly interesting since I wrote my B.A. on the development of absolutism in sixteenth century France, and one of the things I concluded was that the monarchy used piety as a means to convince the populace that it would limit its own exercise of power. On the one hand this makes a certain kind of intuitive sense. If it is very important to you that a politician always be honest, would you prefer a politician who believed that lying was usually of negative net utility, or one that believed his soul would rot in hell for all eternity were he to tell a lie? The problem with this sort of test, though, is that it makes it very difficult to catch the really big liars--the ones who are willing to lie not only about political matters, but also their beliefs as to the potential consequeses in the afterlife for lying. Much better to set up institutional checks that will ensure that lying really will be of negative net utility, and elect politicians that seem intelligent enough to recognize this fact. Sure this won't stop some liars from trying to beat the system, but it certainly is much better than one that only disadvantages ethical athiests.

There are thus two reasons why democrats would not want to buy into a system in which religious professions served as a proxy basis for judging the ethics of a candidate. The first is that, as the French people discovered, politicians are perfectly capable of making sincere protestations of piety at the same time as they trample your rights in the dust, making this an inherently bad proxy system. The second is that a test that provides the greatest disadvantage to ethical athiests will also provide more disadvantage to the Democrats that are more likely to be athiests than Republicans who are more likely to be Christians.

[Will, 1:38 AM]

Jacob Levy's New Republic piece is up (there's too much to quote; go read it; I'll wait), and it deals essentially with gag rules, discussing how conservatives insist that religious groups ought to be able to get money to enact social services even though they also espouse religious views, while liberals insist that international groups ought to be able to get money to distribute condoms even though they also want to enact U.S.-style abortion protections abroad.

He does a good job of teasing out the troubles behind the free speech subsidy/penalty question. On the one hand, there is certainly no right to receive federal money; not getting a handout is much different from getting thrown in jail. On the other hand, it's easy to imagine ways that prohibitive penalties can masquerade as subsidies. What if the government enacted a $500 annual head tax, but also offered a $500 subsidy to anybody who decided not to discuss abortion? What if the sum was $5000000?

Incidentally, the law on this is something of a legal morass. Professor Levy cites Rust v. Sullivan, which does establish the government's power in the abortion context, but a later case called Legal Services v. Velazquez (which said that a government program to provide free lawyers couldn't limit the kind of welfare cases they could work on) seems to fly in Rust's face (without explicitly overruling it), and nobody I've talked to yet can sort out what distinction the two draw, unless it's that lawyers are protected where doctors are not.

I think that the government ought to be allowed (constitutionally) to enact discriminatory subsidies but that it ought not do it often. There are classic thought experiments to support this intuition: if our government had erected the Statue of Liberty, it could hardly be required to erect the Statue of Oppression next to it. Indeed, the government funds the National Endowment for Democracy which hires people to pledge the virtues of democracy abroad, and I don't think the constitution should require it to provide equal funding to those who would rather preach the virtues of fascism.

The idea that underlies our dual intuitions is that the government shouldn't be kept out of the marketplace of ideas but also shouldn't be allowed oppressive power over the market. For this reason, we strictly scrutinize its attempts to criminalize or penalize disfavored content and viewpoints (is there a good distinction between content- and viewpoint- discrimination?--ed. a post for another day), because it is acting in ways that no other speaker can, gaining an unfair advantage out of its monopoly on force. Similarly, we grant the government broad leniency to actually promote messages it agrees with just as you or I or Bill Gates can, because we don't want to cripple our government by forcing it to be ideologically neutral all of the time. (Ambassadors, for example, express a specific viewpoint, and the government subsidizes their expression without subsidizing those who wish to undermine our foreign policy).

The tensions come when an issue is divisive in a way that abortion is but democracy is not. Our particular fear is that even when the government is doing nothing but spending money on those it agrees with, it's different because the government gets its money-- and it has a lot of it-- by taking it from us, somewhat against our will.

Of course, this is a problem not unique to speech. Wouldn't we be almost as troubled if the government decided to simply subsidize those who engaged in non-homosexual conduct (if it could find the "rational basis" under the 14th Amendment) or if it offered $1000 to anybody who waived his right to a trial by jury? The trouble, I think, is attempting a sophisticated analysis of the 1st Amendment uncoupled from a sophisticated analysis of taxation, takings, and givings under the neglected bit of the 5th amendment (which proscribes uncompensated takings). Richard Epstein has done a lot of work in this field which I've only started to understand, but I think his ideas offer a lot of promise, but they would force a fundamental rethinking of takings law. And sadly I'm not sure the court is willing to do that to settle a relatively minor point of its more-beloved 1st Amendment.

All of that, of course, concerns only the constitutional and not the political. I think that a democratic government generally ought to shy away from subsidizing one viewpoint in matters on which there is little consensus. Of course, no constitutional provision is needed to stop politicians from taking positions that are truly unpopular; elections do that just fine. Now if only some candidate would offer a rule that worked both ways, my vote for 2004 would be decided.

Wednesday, May 28, 2003

[Will, 11:48 PM]
Spam, continued:

I've finally gotten a rise out of the conservatism blog, although despite my arguments he still thinks I'm a "good-willed chap." Good. At any rate, he makes some arguments. He numbers them. So I'm going to use the same numbering system.

Argument One: Spam is indirect theft. Indirect theft is a very odd term, and I won't reflect on it too deeply. I think what Stephen means to say is that Spam imposes costs, which is to say that it imposes externalities. That is, Spam is no more "theft" than is littering, or shouting through a loudspeaker at a movie premiere, or throwing rocks with notes on them through the windows of an abortion clinic. It is behavior that imposes costs on other people, takes use of their private space, and annoys the hell out of everybody. The theft metaphor is strained, but also unimportant.

Argument Two: Free speech isn't absolute. (Stephen wonders. Am I liberal? Am I political?-- I'm sure political, but not exactly liberal. Not conservative, either. I'll keep him guessing). Yes, yes, free speech is not absolute, so they tell us at every turn. Of course, that's the argument that anybody trots out whenever they want to restrict speech and sometimes they're right and sometimes they're wrong. Incidentally, shouting "fire" in a crowded theater is probably protected speech under Brandenberg v. Ohio, (which pretty much overruled Schenck v. U.S., the case that Stephen is paraphrasing). The First Amendment analysis is actually pretty interesting, and deserves its own law review article. I'll just say in brief that Spam is probably constitutionally regulable because it is "commercial speech" but wouldn't be if it weren't. Whether this distinction makes any sense is another question. Judge Alex Kozinski and Volokite Stuart Banner suggest not. Think about it.

Argument Three: Private control methods would ruin the internet. The system I chiefly propose is a personal ability to charge for access to one's inbox. This is not a revolutionary new limit on communication. After all, I can already block correspondence to my inbox by whomever I wish. My yahoo account, for example, automatically blocks all email that doesn't contain the word "othello" in the subject line. All I'm proposing is the creation of an accounting system to create a more nuanced filter. In essence, you could presumptively filter out strangers, but also let in strangers who wanted to pay some money. Nobody proposes that blocking email addresses "ruins the spirit of the open nature of the Internet," and my solution is less restrictive than that. Incidentally, if one takes seriously "the spirit of the open nature of the Internet," I'm not sure how one can believe that the government ought to decide which emails are commercial and undesirable and inflict criminal sanctions on them.

Furthermore, Stephen suggests, I just say this because I don't get that much spam. Actually, I get a lot of Spam, probably fifty-odd pieces a day to my uchicago account (what can I say? I'm promiscuous with my email account), and far more to my yahoo and hotmail accounts; I get another hundred-odd emails daily from various listservs and automatic email functions that I usually don't bother to read either. I am acquainted with my delete button, and we are happy together.
Argument Four: Spam is fraudulent, and this is not being content-biased. The traditional response to fraudulent commercial speech is to regulate it or ban it. I'm not going to argue about whether that's a bad idea. But the traditional response to non-fraudulent commercial speech is to permit it. If all Stephen proposes is liability for false Spam, more power to him. But I think he is proposing more than that. And the fact that SPAM works shouldn't be ignored. What that means is that a non-vanishing number of people respond to these emails, that the senders have proposed some commercial transaction that the consumer (the poor sap) would like to engage in. That's points in Spammers favor.

Stephen, of course, is far too savvy to ever buy anything from SPAM, and therefore would like to make them stop pestering him. And I, of course, am far too savvy to ever become a communist and would like them to stop pestering me. And my friend claims that he is far too savvy to ever be convinced by Jeff Wall and would like him to be regulated as subversive. Maybe. Then again, maybe an intelligent and principled response to annoying speech is to delete it or take private measures to keep it out of one's inbox. Weilding the oppressive arm of the state against it is a bit heavy-handed.

Having opened your inbox to the general public, you shouldn't come crying to the federal government when the general public has responded by saying things to you. If you don't like it, white list it.

(And what do I think of child pornography, Stephen asks? Ooh. No comment for now, but there are interesting issues at play there. What does Stephen think of videos that record acts of theft and murder?)

[Will, 11:03 PM]
Sodomy, Liberty, etc.:

So I'm sorry my postings have been fairly scant today. I've spent about 4 hours this afternoon trying to figure out what the court should do with Lawrence v. Texas. On the one hand, there's a fairly straightforward substantive due process claim. On the other hand, it's substantive due process. (As Justice Scalia says, only lawyers could come up with a phrase like this. close your eyes and imagine it. Substantive process. The opposite of procedural substance.)

So anyway, I don't have anything new or coherent to write, and I'll spare you the long lecture on whether it is intellectually dishonest/morally indefensible to enforce as fundamental liberties mainstream privacy interests but not fringe ones ("where do you get off, Justice White . . ." the angry libertarian might begin, "getting cold feet just when my rights come to the table?")

I just want to link to and quote an amicus brief in the case from The Institute for Justice, one of the neater semi-Libertarian outfits, that does a lot of cool legal work. In an effort to show why one can believe that Texas is wrong without signing on to controversial (and possibly unhelpful) legal theories, they wrote:
Substantive due process depends largely on whether the liberty interest at issue has historically been treated as a “fundamental” right . . . The problem with these approaches, and particularly with the fundamental rights inquiry, is that there are countless private activities that are protected by no tradition or express constitutional provision. It would be unimaginable that they could be prohibited in a free society, even if some objection could be raised to them – cooking unhealthy meals, staying up too late, spending a slothful day drinking coffee and doing puzzles instead of accomplishing something productive. Indeed, almost anything that an ordinary person might spend his or her weekend doing, from gardening to cleaning to touching up house paint, would probably not qualify as a “fundamental” right . . . Yet such private activities, in the aggregate, are the essence of ordered liberty.

Right or wrong? I don't know. But it does make me feel kind of warm inside.

[Amy, 6:36 PM]
Let no one else's work evade your eyes
Remember why the good Lord made your eyes
So don't shade your eyes
But plagiarize, plagiarize, plagiarize
Only be sure always to call it please research

-Nicolai Ivanovich Lobachevsky, as reported by Tom Lehrer

Daniel Drezner has an interesting, if rather disconnected, post up about plagerism. He raises three separate, but interesting issues--the use of ghostwriters and research assistants by well-known columnists, the extent to which tough restictions on plagiarism inhibit the spread of ideas, and the attitude of the blogosphere on the plagiarism question. I'll be interested to see if the response is as he predicts.

[Amy, 6:30 PM]
Not the Real Slippery Slope

As you might note from my previous post, the truly bothersome slippery slope argument in the morning-after pill debate is not from abortion to morning-after pill, but from morning-after pill to the pill. How many conservatives do you see owning up to that one? And speaking as a woman, I may have a fair degree of sympathy for anti-abortion measures, but when it comes to hormone-based contraception, "from my cold, dead hands!" say I.

[Will, 5:38 PM]
Brief Shot:

From the fact that Shonda Werry sees fit to mention that Time calls the morning-after pill a contraceptive method, I assume she disagrees. My illustrious co-blogger Amy Lamboley has already given some good reasons I think this probably isn't so. But really, this position has always amazed me. Having failed to secure a right to regulate abortion, anti-abortion partisans are now arguing that even more things should be considered abortion.

It may be this is philosophically defensible, or even philosophically demanded, but it strikes me as a curious strategy, politically. One would almost expect it to be the liberals crying "If they can regulate abortion they can regulate the morning after pill!" So it's both baffling and pleasing to me when conservatives own up to their own slippery slopes.

[Will, 5:33 PM]
Abortion... AGAIN.

Yeesh. Blog about SPAM, and nobody cares, but talk about abortion, and they beat a path to your door. At any rate, After Abortion has uncovered my response to Sara's (admittedly misnamed) post to end all posts.

She writes, in part:
So why this frantic concern that if states choose to resent the murder of unborn babies that their mothers have chosen to bear, pretty soon there'll be no more Roe v Wade?

In other words, the debate about abortion--as far as Ellen Goodman is concerned--simply IS a debate about the moral status of the fetus, and it is a debate where the state is obliged to affirmatively assert the non-personhood of the unborn.

That's pretty shaky ground, especially when many people are pro-choice not because they think unborn children aren't real people--they may be agnostic on that--but because they hesitate to force women who (rightly or wrongly) don't see an unborn child as a real human being to go through a pregnancy against her will. . . .

And later,
. . . if we are all to agree that the personhood of the fetus is not completely straightforward in the way that the personhood of a two-week-old baby is completely straightfoward unless you are Peter Singer, think of how strange it is that anyone can maintain with a straight face that the only emotion women feel after abortion is relief.

Does anyone seriously believe that it is in the nature of womankind as we know it to have an abortion as a frightened 17-year-old and then to never henceforward have thoughts cross your mind about whether what you aborted was a real baby? If people who haven't personally aborted a child struggle with this question, as they do, and often with passion and distress--is it such a stretch to suppose that these same questions might cross in a considerably more tormenting way the minds of those who have chosen abortion?

Emily is making two entirely different claims and I think it's important to dis-entangle them. In reverse order. . . her second claim is that there's nothing wrong with women feeling emotional torment over abortion. Fine. If one thinks that one's own fetus might be entitled to moral weight (and whatever I think about abortion, it seems clear that there's nothing wrong with a woman refusing to abort her own fetus), then it's perfectly consistent to be hesitant to kill it, and even to perhaps feel regre it once you do. (Whether or not it seems good to celebrate this regret and pain as Emily generally seems inclined to, is a separate question not considered here).

Nonetheless, I don't think there's anything wrong with somebody who does feel only relief, and not guilt. If Emily has encountered people who think it's irrational to feel guilty for choosing an abortion, I'm not quite sure where they are, but they aren't me, but I also don't think it's irrational not to. I had thought that was the whole point of the "choice" bit.

But what about the political point that starts her rolling, "this frantic concern that if states choose to resent the murder of unborn babies that their mothers have chosen to bear, pretty soon there'll be no more Roe v Wade?"

Especially in the realm of substantive due process (probably the hook on which the right to an abortion is being hung), legal arguments are very vulnerable to slippery slopes. The court sometimes looks to state legislatures to determine what "national consensus" demands, which in turn can help it decide whether or not to override its tenuous doctrine of stare decisis. Recognizing this, those who want to keep abortion in the pantheon of "fundamental liberties," want to stop state legislatures from expressing a "consensus" that fetuses are entitled to significant moral weight, especially since it is a consensus that excludes their viewpoint.

Emily seems to be annoyed that people are applying pressure on democratically elected bodies to support the views with which they agree rather than the views with which the other side agree. Well, big surprise. What I think she ought to admit is that fetal-protection-laws do provide some threat to continued abortion jurisprudence and for the most part, both sides know this. Of course, there may be some independent moral reason to have such laws, but then, that's precisely what we're arguing about. How much weight does a fetus get?

If Emily disagrees, fine. But she shouldn't seem so appalled that people with moral views are petitioning the state to reflect their moral views. Of course they are!

[Will, 5:10 PM]
Geekdom II:

I've got Amy marginally beat. I'm 40.23669% - Major Geek.

[Amy, 4:35 PM]

According to the Innergeek website Geek Test, my geekiness is 35.30572% - Major Geek.

Tuesday, May 27, 2003

[Will, 11:47 PM]
Laundry Lists:

Ask, and ye shall receive:

LAUNDRY LIST, noun (1955-60) [so called from the listing of articles sent to the laundry]: a long list of items to be obtained, discussed, done, or not done; a lengthy, especially random list of items < the laundry list of new consumer-protection bills; a laundry list of hoped-for presents> (Random House, Merriam-Webster, Chapman’s Dictionary of American Slang)

[Will, 11:38 PM]

As should be manifestly obvious, the little links on the sidebar have changed. I've now created an individualized section for each blogger, plus a general section for things used by three or more of us. Hopefully this will give you some idea of where each of the links might take you, and personalize things a bit more. Let me know what you think of this.

[Amanda Butler, 11:05 PM]

Why do we refer to 'laundry lists'? What is a laundry list? I know how it's used in speech, but what is one? I don't ever list anything in relation to my dirty (or clean) laundry. Is there a reason the term got adopted? Wouldn't it make more sense to call these long lists that you can't even finish a 'grocery list'?

Clearly, I need to be thinking more high-quality thoughts than I am at the moment, if this is what's in my mind.

[Amanda Butler, 9:50 PM]
And after this, I too will end this topic:

"Do the Christians at issue think that they're propagating mis-information?" No, they don't. Nor do people who propagate the idea that the earth is flat, or that kissing and public toilets spreads the HIV virus. At what point do you draw the line and say, enough's enough, go educate yourself.

Ah, you say, but those are statements we can prove wrong with a few quick & ready facts. Well, how do you combat someone who claims to have found proof that Islam is "regressive, fradulent, and violent"? He'll produce his Christian with ears cut off, courtesy of some Muslims, and I'll produce Christians and Muslims living together without cutting off each others ears. At the end of the day, no one will be convinced, I still won't have seen this "proof" he's been talking about, and I'll continue to refer to a lot of what he says as "mis-information".

Do I want to go argue theology with a fundamentalist? I think I see a boulder with my name on it that needs rolling up a hill.

[Will, 9:33 PM]
Evil, one last time:

And here's my last post on the increasingly self-referential evangelist question. Amanda writes:
Crescat scientia, vita excolatur, come on, Will, Crescat scientia. There's nothing logically necessary to Christianity or to the salvation of souls in an Evangelical Christian sense that needs the propagation of mis-information.

But that's the whole question. Do the Christians at issue think that they're propagating mis-information? (Leave aside for now the question of whether they should think it's worth it.) I think they probably don't. I think they think they're propagating God's Truth. (Leave aside the question of whether they're right, unless you want to go argue theology with a fundamentalist.)

[Amanda Butler, 9:19 PM]
Sorry, I didn't mean you to infer from "Satan's influence just isn't necessary" to a statement that "Satan isn't present here." [Pretend it's an LSAT question... not necessary doesn't mean non-existant.] Satan can cause bad things to happen. Free will can cause bad things to happen. And if someone can prove to me a means of distinguishing the two, I'll listen with interest; until that time, I'll consider them indistinguishable on the basis of whatever observations we mortals can make. [To be perfectly honest, I think it's all free will, but I'll allow the existence of Satan to serve as an example.]

Crescat scientia, vita excolatur, come on, Will, Crescat scientia. There's nothing logically necessary to Christianity or to the salvation of souls in an Evangelical Christian sense that needs the propagation of mis-information. The knowledge a person has not found Jesus is sufficient unto their ends.

[Will, 8:54 PM]
Problems of Evil:
Amanda criticizes the gung-ho evangelists who think Islam is evil. Amy points out that they're just talking, offering cookies, and plotting strategy-- all the things we hope for in a society where people care deeply about things but also have to respect the rights of those who disagree. Amanda says the trouble is that these evangelists are wrong-- Islam isn't an evil, it's just been "hijacked by extremists." Peter replies, oh yes it is, at least from a fundamentalist Christian point of view. Amanda answers, no, the word is "incorrect," or "wrong."

I think the problem is a disagreement both about the assumptions that the Christians are operating under, and the degree to which people are theologically culpable for ignorance. From the evangelical (you're using "evangelical" and "fundamentalist" interchangeably. I hate that..--ed. But these guys are both fundamentalist and evangelical, I think) point of view, all those who do not accept Jesus Christ as their savior will burn in hell. Saving their souls is the ultimate good, and letting them perish the ultimate bad. Islam itself-- a religion-- is a tool that hinders the saving of souls. Therefore, it's bad. (Or so the logic goes).

Is it a tool of Satan? Is it an evil bad? Amanda thinks that "Satan's influence just isn't necessary". Maybe. First of all, (bold words added in light of Amanda's comment above) I question Amanda's intellectual right to tell the evangelists "no, you think Satan's necessarily at work here, but you're wrong, it's possibly just bad luck". (After all, what does she know of Satan and why should they listen to her?). Second of all, in a world of omnipotent God, one of the most plausible solutions to "The Problem of Evil" (If God is good and all-powerful, why do people suffer in the world? Why does he let their souls be led astray?) is the existence of Satan. So I think that the idea that all of the really bad things in the world are caused by Satan isn't just logical, it's logically necessary to Christianity.

But I also think most of that is fairly beside-the point. The Christian evangelicals aren't doing anything that we think is evil, are they? I don't mean to delve into the relative religious faiths on this blog, but the only people who should think that peaceful Christian evangelism is wrong are those who believe that Islam is the only way to salvation. Those who think one way or the other is the only way to heaven should cheer on mightily for our team, doing everything we can to help our side (we could distribute banners, like at a basketball game). And those who think this is just a matter of semantics, that both sides or neither side is right, or that professing opinions on the "truth" of centuries-old-literature is a mostly harmless and entirely trivial pastime, should laugh a little bit and thank our stars that they're using chocolate cookies and not broadswords. We've come a long way.

[Will, 8:37 PM]

Amy calls to my attention a sort of super-disciplinarian school run in Costa Rica that just dissolved once the kids learned they had a legal right to leave. It's terrible, of course.

But what disturbs me the most about the New York Times piece is how little anybody seems to blame the parents. On the one hand, some of the schools appear to have been somewhat deceptive. On the other hand, sending your child off into the hands of strangers without investigating their backgrounds, taking the time to check on your child's health and well-being, and sometimes without even heeding their letters home isn't just being lied to. It's criminal neglect.

First of all, those schools that did truly egregious things and those that willfully defrauded parent and child about the nature of what was going on should be prosecuted. But we shouldn't stop there. Any parent who can't show that he was fairly seriously deceived about some of the things going on here . . . we should prosecute.

Parents deserve quite a bit of latitude in deciding how to raise their children. Indeed, for the past 80 years, it's been a constitutionally-protected right (it's not just the liberals who make use of a "living constitution"). But surely this oughtn't extend to the right to subject one's children to some forms of torture, to irrationally imprison them, and so on, and surely it's not much better to subcontract one's child abuse.

If a parent decides to hand off their kids to an abusive babysitting service they find on the internet and don't investigate, shouldn't the parents' conduct be punishable too? With the right to fairly severe tyrrany over one's offspring comes the obligation to look out for them. At least until I lead a juvenile-rights revolution.

[Amanda Butler, 8:22 PM]
There are more words than just evil:

In response to Peter (directly below). He write,
" "Islam isn't an evil faith," Amanda writes. Isn't it? If one believes, as these missionaries do, that the only path to salvation is through Jesus Christ; if one adds to this a belief in eternal torment for those who are not saved, then how could a faith that leads billions away from Jesus be anything but a tool of Satan? How, within that logic, can Islan be anything but evil?"

I think within that logic it would be "incorrect" or "wrong."

"A tool of Satan?" No, sometimes Satan's influence just isn't necessary. Humans can mess up and posit incorrect conclusions about God perfectly well without his help.

Is dying a young baby, or in a place which no missionairies spreading the Gospel have reached an "evil" occurance, or is a travesty?

[Peter, 8:15 PM]
IF YOU REALLY CARED ABOUT ME, YOU'D SAVE ME FROM HELL: I'm afraid I must take issue with Amanda's reply regarding Christian evangelists' intolerance of Islam. Both the original New York Times article and Amanda's responses to it seem to me evidence of the extreme difficulty that secularists have understanding the internal logic of fundamentalism. "Islam isn't an evil faith," Amanda writes. Isn't it? If one believes, as these missionaries do, that the only path to salvation is through Jesus Christ; if one adds to this a belief in eternal torment for those who are not saved, then how could a faith that leads billions away from Jesus be anything but a tool of Satan? How, within that logic, can Islan be anything but evil?

Secularists need to really try to understand what people like Pat McEvoy, a high school secretary who sees Somali immigrant children as conversion opportunities, mean when they say things like this:
She says she felt an obligation to save them from an eternity in Hell.
"If I had the answer for cancer, what sort of a human would I be not to share it?" Ms. McEvoy said.
We need to understand that this isn't a crazy analogy. Wouldn't you, like Elaine in the classic Seinfeld episode, be hurt by a loved one's failure to care about your eternal damnation?

Of course, understanding fundamentalism doesn't mean we should tolerate all its logical extensions. Conversion by the sword is a rational response to the problem of unbelief; it is also unacceptable. I'm less worried about cookies and free meals. The problem, of course, lies in legitimating that line-drawing exercise. How big of a tent should we pitch? If we knew that, probabilistically speaking, parents indoctrinating their children with fundamentalist beliefs lead towards either violence or democraticly enacted restrictions in liberty, would that be grounds for taking action? (Note to self: read John Tomasi's and Stephen Macedo's books on the subject over the summer.)

[Amanda Butler, 7:25 PM]
Ah, but would the the Evangelicals were better informed:

I admit, I have not attended these seminars at which Evangelical Christians learn to spread the Gospel to Muslims. Had I been there, I would have been able to learn for myself first hand what the Muslim faith is like from someone who has been a missionary in Lebanon, who can "prove[] Islam was regressive, fradulent, and violent." I would likely to continue to believe that most Muslims are, like most people, good at heart, but I would have learned -- the horror! the horror! -- that they are "deceived by a diabolical religion."

Alright, enough of that. Although my post earlier today didn't show it, I do actually have sympathies and respect for people who believe in a faith and, truly concerned for others who are not of their faith, attempt to mission to them. Particuarly in the more secular parts of American society, it's not an endeavour that's going to win you points in a popularity contest. However, I think there are better and worse ways of going about it. And yes, Amy, "kindness and courtesy" are good. My downstairs neighbors in my apartment building this summer were a pair of 19 year old Mormon missionaries. They introduced themselves, "Hi, we're from the Church of Jesus Christ of Latter-Day Saints, we're here to mission to the people of Chicago, we'd like to explain our faith to you, our door is always open." They were friendly fellows and I did end up talking to them, but about matters like why it was the landlord couldn't bothered to fix the broken screen doors and dryer. Importantly, though, their approach was not based on false knowledge or presumptions. They knew they were LDS and I was not; they did not assume rashly about me.

If these profiled Evangelical missionaries had based their rationale for conversion around the idea that Muslims do not accept Jesus Christ as their Lord and Saviour, the holy begotten Son of God, then I would not be troubled. It is true that Muslims accept Jesus as a prophet. This fact underscores a legitimate and significant theological difference. If you believe that accepting Jesus is necessary for salvation, then a person's non-acceptance of Jesus becomes a motive to convert them to Christianity.

What troubles me about these missionaries is that they teach and propagate what I believe are falsehoods. I don't question that some of the students truly believe what they have learned about Islam. Islam isn't an evil faith. I'd much rather hear Bush talk about is as "a peaceful religion that has been "hijacked" by extremists." I sigh in annoyed sadness to read, "The Koran's good verses are like the food an assassin adds to poison to disguise a deadly taste," writes Don Richardson, a well-known missionary who worked in Muslim countries, in "Secrets of the Koran" (Regal Books, 2003). "Better to find the same food, sans poison, in the Bible." The prostletizers are operating on mis-information. That bothers me. I can laugh at the tip "Don't bring them to your church, because they will misunderstand the singing and clapping as a party," because I find it ridiculous that one group of adults presumes another group can't distinguish between a religious ceremony and a party. But I can't laugh in general at well-intended ignorance. It reminds me of the pavement on the road to hell.

* an emailer notes: "A similar thing occurred all through the 1990s as evangelical Christians flew to Eastern Europe and Russia to convert the godless Orthodox Christians. The refuge of post-rational religion is fervor mixed with disdain for the religious beliefs of others."

[Amy, 5:09 PM]
Rights for Kids

Given Will's attitude towards parents and education, I'm surprised he hasn't been all over this story about an uprising of mostly American teens at a harsh private school in Costa Rica. While I generally think that parents should have a fair degree of say in the education of their children, it disturbs me very much that parents can send children out of the country, and hence beyond the reach of American child abuse laws, if they so choose. It does seem that most of the parents were unaware of the severity of the school, but I'm not sure to what extent that should excuse them in these circumstances, or what is the best way to prevent such incidents in the future. Thoughts?

[Amy, 4:47 PM]
Evangelicals being Evangelical

Amanda seems upset that not everyone is as exquisitely culturally sensitive as she would like. Apparently it bothers her that groups of like-minded people are sharing advice on how to convince another group of people of the error of their ways. Now, if Evangelical Christians were proposing that Muslims be converted at the point of a gun, I too would be upset. But the methods they are proposing include conversation, hospitality, and chocolate chip cookies. What on earth is wrong with this? Isn't this exactly how we want people to go about persuading others of the potential error of their ways? Or does Amanda think there's something inherently coercive about chocolate chip cookies?

Perhaps it's the one-sided nature of these sessions that bothers her. But if a group of pro-choice activists gathered to discuss the various ways that the pro-life position could be refuted without also including a graphic description of the abortion procedure and a short presentation by an abortion survivor as to why getting an abortion was the greatest mistake of her life, would Amanda be upset? And if the presentation were to conclude with the advice that potential converts should not be taken to a pro-abortion rally, but rather invited over for dinner and discussion, would she think that made things better or worse?

Tolerance should mean exactly what is seems to mean to these Evangelicals--that all people should be treated with courtesy and respect, no matter how erroneous or detestable one finds there views. It should not mean that one is required by the PC police to shrug one's shoulders and get on with life rather than attempt to convince others of the error of their ways. What good, after all, is a marketplace of ideas if people don't visit it to hawk their wares? Be they the New York Times preaching evangelical urban liberalism, or the Southern Baptist Convention preaching evangelical Christianity, we should be pleased to see them addressing their opponents with kindness and courtesy, and displeased to see them doing so with coercion or contempt.

[Will, 2:39 PM]

Responding mostly to Amanda's concerns about proselytizing in the middle east, but also to my brief concern about religious currency, Brian Ulrich emails to say (among other things):
Why can't we just let Iraqis develop strict secularism on their own if they so choose, rather than trying to shove down their throats a constitutional clause we only tenuously follow ourselves (In God We Trust, and all that.)

Leaving aside the question of whether we ought to force secularism upon our occupied territory (and I think it's a very open question), I hope I didn't convey the impression that I think we "only tenuously follow" the dictates of the Establishment Clause of the U.S. Constitution. Far from it. Despite the fact that Establishment Clause jurisprudence is something of a mess (torn as it is between the aptly-named Lemon test, the Coercion test, and the Endorsement test), I think that it is too hostile to religion about as often as it is too accomodating. That is, the court makes what I think are mistakes, but in both directions. In my tentative view, Permitting legislative prayer ought to be impermissible but creating logical school districts ought to be permissible. If anything, both of those things ought to be permissible under a reasonable reading of the Establishment Clause (depending, I think, on the degree of originalism one thinks one ought to bring to bear).

In any case, in a country whose Constitution forbids a religious speaker at non-mandatory high school commencement, I think it's difficult to say that we "only tenuously follow (it) ourselves." We may interpret it wrongly, sometimes, but the Establishment clause definitely has Constitutional teeth in a way that the Second Amendment and the Takings Clause do not.

[Will, 12:25 PM]
"Justice" meted out:

So the mostly final punishments have now been meted out in the Glenbrook North hazing saga. The seniors are expelled but can graduate anyway, receiving their diplomas if they perform various amounts of community service. Juniors are suspended and still have to take their final exams. 31 seniors and 20 juniors were punished, and all but three of the seniors have signed waivers agreeing not to contest their punishments.

For the reasons I've already recounted in the Chicago Maroon and on this blog, I think that the school's choice to punish the seniors was probably misguided, and that its decision to punish the juniors definitely was. There may be some rationale to suspending out-of-school-bullies in order to allieve an in-school climate of intimidation. That offers little support to the choice to suspend those who were being bullied.

Schools often punish both people in a "fight" because they don't know who started it. But the school ought to decide whether what took place was a "fight" in which case it oughtn't exercise its dubious jurisdiction, or a more one-sided "intimidation" (regardless of who fought back), in which case it might be a good idea to punish the intimidators, (though I think more concern ought to be shown to ensuring they receive due process).

And a quote from the Chicago Tribune article:
He said the seniors who signed waivers were actually getting off easier than the juniors who were hazed. "The seniors get to skip finals and keep their grades," Soskin said. "The juniors are suspended, then have to be back in time for finals."

[Will, 11:26 AM]

Does U.S. Currency constitute an establishment of religion within the meaning of the First Amendment? If not, why not?

[Will, 11:16 AM]

The Supreme Court released one of the cases I've been eager to see, Chavez v. Martinez. The case dealt with whether a defendant's right to be free from self-incrimination in a criminal case was violated if police questioned him without Miranda warnings, but never charged him with a crime

If you thought the lower court decision in BCRA or the web of opinions in Virginia v. Black was confusing, I bring you . . .
THOMAS, J., announced the judgment of the Court and delivered an opinion, which was joined by REHNQUIST, C. J., in full, by O’CONNOR, J., as to Parts I and II–A, and by SCALIA, J., as to Parts I and II. SOUTER, J., delivered an opinion, Part II of which was for the Court and was joined by STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., and Part I of which concurred in the judgment and was joined by BREYER, J. SCALIA, J., filed an opinion concurring in part in the judgment. STEVENS, J., filed an opinion concurring in part and dissenting in part. KENNEDY, J., filed an opinion concurring in part and dissenting in part, which was joined by STEVENS, J., in full and by GINSBURG, J., as to Parts II and III. GINSBURG, J., filed an opinion concurring in part and dissenting in part.

Got that? Then, as How Appealing notes, add in this: Justice Kennedy writes:
Accordingly, I would affirm the decision of the Court of Appeals that a cause of action under sec. 1983 has been stated. The other opinions filed today, however, reach different conclusions as to the correct disposition of the case. Were JUSTICE STEVENS, JUSTICE GINSBURG, and I to adhere to our position, there would be no controlling judgment of the Court. In these circumstances, and because a ruling on substantive due process in this case could provide much of the essential protection the Self-Incrimination Clause secures, I join Part II of JUSTICE SOUTER's opinion and would remand the case for further consideration.

And Justice Ginsburg writes:
Convinced that Chavez's conduct violated Martinez's right to be spared from self-incriminating interrogation, I would affirm the judgment of the Court of Appeals. To assure a controlling judgment of the Court, however, see ante, at 11 (KENNEDY, J., concurring in part and dissenting in part), I join Part II of JUSTICE SOUTER's opinion.

Whew. I feel like this could be the beginning of a good LSAT logic games question.

UPDATE: And Eugene Volokh explains what all of the concurring and dissenting actually amounts to.

[Will, 10:59 AM]

A few days ago I posted about appellate panels in the 7th circuit, asking why they kept the identity of the judges secret until the morning of the hearing, and whether other circuits had the same practice (Amy's responded with a Noble Lie theory, and I responded to that).

Stuart Buck writes to tell me that the 11th and 5th circuits do indeed release panel information ahead of time. This makes the "Noble Lie" theory even more curious, in my view. Or is it somehow a necessary response to having both Posner and Easterbrook on the circuit?

[Amanda Butler, 8:26 AM]
Disturbing: Can't you people just learn to respect each other?

The NYT has this report on evangelical Christians converting Muslims, "Seeing Islam as 'Evil' Faith, Evangelicals Seek Converts'. The courses train the missionaries to be nice, friendly, hand out copies of the New Testament and chocolate chip cookies. Right. What's the motive?

"Evangelicals have always believed that all other religions are wrong, but what is notable now is the vituperation.

"The Koran's good verses are like the food an assassin adds to poison to disguise a deadly taste," writes Don Richardson, a well-known missionary who worked in Muslim countries, in "Secrets of the Koran" (Regal Books, 2003). "Better to find the same food, sans poison, in the Bible." This month, he is scheduled to speak on Islam at churches in five American cities."

Yup. Perhaps if I believed the Southern Baptists and the other evangelical churches when they said that their way is the only way to salvation and all other paths lead to eternal torment, I'd be a bit more sympathetic to their cause. I just find it hard to respect their missionaries when some of the advice they learn in conversion school includes tips like "Don't bring them to your church, because they will misunderstand the singing and clapping as a party."

[Will, 1:06 AM]
Insufficient Cures:

Judge James Robertson has a suggestion for helping to mitigate the politicization of the judiciary:
It is time for Congress to consider amending the Judiciary Act to provide once more for just a single category of judges below the Supreme Court. Call all these jurists simply "Article III judges" or U.S. judges. Most of the time they would sit as trial judges, but for, say, three months a year they would be assigned to appellate panels. Congress could require a minimum of five years' trial court experience before an Article III judge became eligible to hear appeals.

The payoff, for Congress, for the judiciary and for the American people, would be the virtual elimination of partisan politics from the judicial appointment process -- or at least the dispersion of political fire across a broad field of nominees, none of whom could be assigned to an appellate case until after five years (and then only periodically). The concerns that have given rise to the political obstruction of judicial appointments in recent years would melt away.

This view of the process seems rather rosy to me. If district court judges are given the authority of appellate judges, it's more likely that the senate will apply considerations to the lot of them. Consider, after all, if Supreme Court appointments were determined by rotating ten year shifts from appellate judges. We wouldn't see an un-politicized Supreme Court; we'd see Congress being more careful who it let onto the appellate court. Or imagine that we create a position called "pre judge" from which appellate panels are randomly selected (pre-judges are otherwise given uninteresting bureaucratic duties) after a five-year waiting period. It should be clear that the political qualifications for being a pre-judge would be the same as those of being an appellate judge.

I think the argument rests on the assumption that the 90 district courts would create too many nominees for congress to police. Given the availability of interest group information and congressional staffs, this seems unlikely. If the president can figure out who to appoint, then a body of 100 high-ranking officials can probably figure out who it's in their interests to confirm.

[Will, 12:46 AM]
SPAM Crusade:

The Conservatism Blog continues its tirade against Spam. He simultaneously applauds an email-confirmation adopted by Earthlink and applauds California's Spam liability rules. As I think I've said before (but will continue to harp for a little while), private methods of controlling access to one's own email address seem immensely preferable over content-based government regulations on what email may be sent to whom. The fact that the former methods (Earthlink's email-confirmation) are becoming both popular and effective should just drive the point home.

Monday, May 26, 2003

[Will, 3:50 PM]
'Till Death Do Us:

A reader submits this rather troubling report, that the US is floating plans to create a death row in Guantanamo. If it's true, I think it's a bad idea. While we usually give governments some limited latitude to kill people during war, part of that is by necessity. It's difficult to hold a fair trial on a battlefield; the robes keep catching on fire and the wigs get shot off. Once the terrorists are in custody and time is less of the essence, principled reasons for short-cuts become less convincing. I don't mean to say there's anything unconstitutional about the whole mess-- I have no idea-- but I do think it's a pretty bad idea. And it would be nice if the government, having "accomplished" its supposed "mission" (if one believes Bush over Lugar) showed at least some interest in convincing the rest of the world that it cares what they thought. It may not be true, but it would be sort of a polite lie.

All that said, I think the story misses the point a little bit. Of course killing people is bad and all of that, and the death penalty often raises consciences that might otherwise have remained blissfully blithe, but I think the Guantanamo stuff should be almost as troubling death-penalty-or-not. The tendency to villify the death penalty sometimes goes along with a tendency to trivialize wrongful imprisonment. We should avoid that. So if it's wrong to kill off the folks at Guantanamo (and they'll get a trial first), we should think about whether it's wrong to lock them up there too.


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