Bernsteinblog

2003-08-04T05:31:00.000-07:00

Today marks the end of Bernsteinblog. [crowd shrieks in horror] But wait, it's actually good news, because I am joining the Volokh Conspiracy as a regular contributor. [wild applause] I suspect that most of my readers read Volokh as well, but if you don't, you should. And while I encourage you to become (or continue to be) regular readers of the entire Conspiracy, if you want to read only my posts, you can find them at http://volokh.com/index.htm?bloggers=DavidB. Thanks to all my loyal readers, and the disloyal ones, too.

2003-08-01T09:40:00.000-07:00

Contrary to a reader comment published at Instapundit, a pro-segregation constitutional amendment could not have passed in the United States in 1953. Outside the South, public support for de jure segregation was minimal by this time. The reader in question apparently accepts the "Brown [1954] changed everything" myth. In fact, as Mike Klarman (see citations in the linked-to paper) and others have shown, Brown was an example of the Supreme Court enforcing a national consensus against a recalcitrant local minority.

David Bernstein George Mason University

2003-07-31T21:57:00.000-07:00

Welcome, Volokh Conspiracy readers! Blogging on this page will resume shortly. Meanwhile, why not bookmark it, or, if you are a blogger, add it to your blogroll?

David Bernstein (George Mason University)

2003-07-25T07:20:00.000-07:00

I'm guest-blogging at the Volokh Conspiracy for a week, so check out my posts over there.

2003-07-24T14:01:00.000-07:00

Another sign of out-of-control spending by Congressional Republicans: Preliminary approval of a 4.1% pay increase for federal employees at a time when many states, including my home and employer, Virginia, have pay freezes and are even laying off workers. The job market in general isn't great, as we all know. So why give federal employees a raise of more than double the inflation rate? The answer, unfortunately, is that politicians with money are no more responsible than the proverbial drunken sailors.

2003-07-23T21:19:00.000-07:00

Israel also has its idiotarians. Memo to Shulamit Aloni: The difference between murder and and mere homicide is intent. When a Palestinian sets out to kill innocent Israeli civilians, that is murder. When the Israel Defense Forces inadvertantly kill civilians while pursuing murderers, that's unfortunate, but it surely is not murder. Indeed, the moral burden for those civilian deaths is largely on the terrorists themselves. And whatever Aloni thinks of the "occupation" in general, does she not remember that when her Meretz party was part of Barak's coalition that Israel offered to basically withdraw from the territories, and Arafat rejected it in favor of pursuing the fantastical "right of return?"

Update: NPR ran a story yesterday (Thursday) about Palestinian children killed by Israel in the course of its anti-terrorism operations in the territories. Of course, Linda Gradstein of NPR didn't phrase it that way, instead portraying the children as victims of the "occupation," as such. Gradstein gave the story "balance," by ending with a short paraphrase of a statement by an Israeli government spokesman who, according to Gradstein, stated that he would like to see the human rights groups up in arms about dead Palestinian children pay some heed to the Israeli children killed by suicide murderers. Gradstein concluded, "93 Israeli children have been killed" since the start of the second Intifada. This seemed somewhat sympathetic, but could also be seen as minimizing Israeli suffering, since the report had already noted far higher numbers for Palestinian children. More fundamentally, Gradstein never made the fundamental moral distinction between Israeli children who were intentionally murdered by Palestinians, and Palestinian children who were inadvertantly killed by Israel.

2003-07-23T15:06:00.000-07:00

Whether you were for or against the war, the demise of the Hussein children is something to celebrate. By all accounts they were sadistic fiends. It couldn't happen to two nicer men, and I only hope their deaths weren't painless.

2003-07-23T13:21:00.000-07:00

Hmm. Still can't figure out Amazon.com's ranking system. I thought my forthcoming book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, was ranked 2.5 million+ because it had just become available for preorder purchase, and no one had bought it yet. But a search today tells me that people who bought You Can't Say That also bought other books, such as Mona Charen's Useful Idiots. So at least one person has bought the book, maybe more, but it's still ranked as 2.5 million+. Surely, there aren't 2.5 million books that have sold more than one copy on Amazon in the last two weeks. So what gives? Has anyone out there figured out Amazon's system? Don't worry, I'm not obsessing over book sales (that will wait until after the book is officially released), I'm just very curious about what the rankings mean.

Update: A reader informs me that the rank for books that aren't among the high-sellers are updated infrequently, perhaps once a month. Within a few weeks, then, my book should leave the ranks of the 2 million+ club, and my promise that if my readers could easily move me into the six digits will perhaps be fulfilled.

2003-07-23T11:53:00.000-07:00

I made an offer on a 2003 Lexus IS300 demo at Lexus of Alexandria today, which the dealer did not accept. I offered slightly below invoice, and was told by a very haughty sales manager that Lexus does not sell new cars for under invoice. We seemed to have a disagreement as to whether a car with almost 2,000 miles on it with who knows how many drivers and a reasonable amount of dirt is a new car or a used car. In my view, it's clearly a used car, one that the dealer would be lucky to get invoice on, especially since the end of the model year is approaching. In her view, it was a new car, because it came with the full warranty. Heck, I can buy a certified 2002 Volvo with an overall six year/1000,000 mile warranty, better than the original warranty actually, but that doesn't make it a new car. If she had offered to sell it for me at invoice, I might have said yes, as car-buying is getting wearisome. But I'm glad she didn't, because in retrospect I want to pick my car's color, and the white IS300 didn't send me. Perhaps I'll wait for the 2004 models, and just email all the local dealers with my specifications and see who gives me the best price.

2003-07-22T21:31:00.000-07:00

I'm stumped by the downloading patterns for my articles on SSRN. I've posted three pieces on Lochner v. New York. Two of them have been downloaded about one hundred times. The third piece, on Lochner and protective labor laws for women, has only been downloaded twenty times. Yet, I would have thought that the issue of special laws for women would resonate more with modern concerns than the other two pieces, which have less contemporary relevance. Ahh, you say, but the piece on Lochner and women was a book review, so perhaps readers aren't interested in downloading book reviews. Yet, my most popular SSRN piece (over 300 downloads) is a review of Marcia Angell's book on the breast implant litigation (note to non-legal academics: "book review" in this context is still dozens of pages). So maybe there is less interest in women's issues than I thought. If so, how to explain the fact that I have posted two articles on conflicts between antidiscrimination laws and civil liberties, with the one specifically about sex discrimination laws getting twice as many hits as the more general article? I am puzzled.

2003-07-22T10:50:00.000-07:00

Abbas has announced that he has no intention of disarming Hamas or Islamic Jihad, as he is required to do by the "Roadmap."

2003-07-22T07:13:00.000-07:00

I promised that I would look for an essay I wrote about left-wing anti-Semitism for the school paper, while I was a student at Brandeis University. Here it is, from The Justice, Feb. 17, 1987, p. 16. The piece is perhaps more polemical and less grammatical than what I would write today, but the basic point still holds, especially if you substitute "European" for "Gentile" (the authors of the piece I criticize below were all foreign students, as I recall, leftist Communists from Latin America). Unfortunately, the more things change, the more things stay the same:

Even though I promised myself that I would not respond to articles written by those with differing opinions this year, the blatant anti-Semitism appearing in the latest issue of The Watch has forced me to abandon my resolve. For the many thousands of you who did not read The Watch, there is a very offensive pictorial in it entitled Dachau: Then and Now. Camps are shown, with inane captions underneath. Most offensive is a short paragraph, which states, "Israel is Israel, whose people. . . Are merely selling torture instruments of a higher caliber than those used on themselves. Is this what was learned by the suffering of one people?" The message one can easily get from this is that Hitler was not so evil after all compared to the Jews, and gee, is it too bad the Nazis didn't finish the Jews off when they had a chance so that the Jews couldn't go on to commit worse genocide against others?

From this we can learn a good deal about the nature anti-Semitism. It may be valid to criticize Israel for selling weapons to certain unsavory dictators. But the leading sellers of arms to cruel dictatorships are France, Italy, the United States, and the Soviet Union. So why is Israel singled out for abuse? And why is the criticism juxtaposed with pictures of the death camps?

The answer is obvious. The Jews of the Holocaust, who for the most part "turned the other cheek," fit the perfect in Gentile image of what Jews should be. Jews were saintly in their oppression for thousands of years, turning the other cheek and all that. Those were the good Jews, the passive as Jews who taught the world how to suffer in silence. On the other hand, the Jews of Israel, and all proud and independent Jews today who fight for their rights, they are evil. It is no wonder Cardinal O'Connor said the Holocaust "was the Jews' greatest gift to the world." Traditional Gentile sentiment loves the weak cowering Jew. Remember how they loved us after the Holocaust? Immigration restrictions were lifted, Israel was established by the UN, and it became impolite to be publicly anti-Semitic.

Now that the Jews are once again strong and free, the "Progressives," who once sympathized with our plight, now give aid and comfort to our enemies. These foul weather friends will not be appeased by Israel cutting ties with South Africa or establishing a "Palestinian" state. We will only regain their sympathy if Israel is invaded and destroyed. What crocodile tears they will shed then! The wretched few survivors of the second holocaust to be the object of pity the world over. The immigration barriers will again come down, and magazines now spouting vile anti-Semitic filth like The Watch has done will start publishing articles sympathetic to the Jewish people.

The most appalling thing about this whole situation is the deathly silence with which the chaplains and others who are supposedly concerned with justice in the world have responded to the anti-Semitism present at Brandeis, both this year and last year. I know that unlike racism, the "cause" of antisemitism is not in vogue at Brandeis. In fact, in some odd way, "Progressive opinion" at Brandeis seems to see Jews as the oppressor rather than the oppressed. Perhaps that's because we are in the majority of Brandeis, and most of us had the lack of fortune to be born with white skin. But let me explain something to our professional protesters. I live in Howard Beach, where the racial attack took place in December. I do not know the attackers personally, but I know the type. They the same ones to put glass bottles under my car on Yom Kippur; the same ones who told my sister "We don't want any Jews on this block"; the same ones who carved "Jews suck" into our fence. Even if you do not give a damn about anti-Semitism, you should know that by willfully turning a blind eye to anti-Jewish sentiment in your midst, you are encouraging the forces of racism.

I am disgusted that the lack of response that blatantly anti-Semitic articles inThe Watch have elicited. I wonder if at the very least, our Jewish chaplain Rabbi Axlerad will take a moment from his investment activity to condemn the anti-Semitism present in the article in question. Unfortunately, I doubt it. Like last year, he will probably again shrink for his responsibilities, for fear of upsetting his "Progressives" allies. After all, we all know that there is nothing more important than divestment. Right?

Epilogue: My article led to a movement on campus to "defund" The Watch (which actually meant that they would simply have to get funding through the same means as other campus groups, rather than be the beneficiaries of a media fee set-aside), which failed twice in referanda, getting about 45% of the vote. The swing votes were members of other campus media groups, who feared that if the Watch could be denied guaranteed funding, so could they.

2003-07-21T20:10:00.000-07:00

A reader writes, in relation to my Mercedes story below:

"I wouldn't be surprised if the Mercedes dealer was using a Mercedes-selected-piped-in music service, which makes the playing of a Mercedes-related song much less of a coincidence. Just about all of the
major discount shopping chains have replaced generic Muzak with a corporate-specific Muzak interrupted with advertisements for the store. I've even seen Quizno's do it."

I responded: "Good point, but it wasn't a Mercedes dealer, it was a Chrysler dealer, and they were playing a local radio station, not piped in Muzak." One of the reasons I hesitated to offer more for the car was I wondered how a Mercedes wound up at a Chrysler dealer. I knew it was a former rental car, but I also know that Mercedes dealers would have had first crack at the auction, and for whatever reason passed up the car.

2003-07-21T08:06:00.000-07:00

Interesting story about dissension at the University of Georgia Law School, including the nugget that the faculty shot down two entry-level candidates because the candidates were perceived as "too conservative."

2003-07-21T07:47:00.000-07:00

Concord University, Stanley Kaplan's on-line law school, managed a 60% pass rate on the California bar, a better average than California's ABA-accredited law schools. Bar passage is not the be all and end all of legal education, but, nevertheless, I am duly impressed.

2003-07-21T05:54:00.000-07:00

As a further example of the pervasive sickness of Palestinian society, the issue of the release of Palestinian prisoners has become the key test for the survival of Abbas's government. Perhaps then he must fail. The demand that Israel release thousands of Palestinians, including the most vicious of cold-blooded murderers, before a permanent peace agreement is reached, strikes me as strong evidence that the Palestinian public is not yet ready for a peace agreement. I wouldn't blame the Palestinians for demanding an immediate halt to settlement expansion, evacuation of unauthorized settlements, and withdrawal from more cities. But the focus on releasing terrorist murderers suggests to me that the public still sees these monsters as heroes, and would not hesitate to call them into action again if negotiations with Israel fail (and perhaps even if they succeed). Sharon should stand firm on this one. Instead of engaging in token releases, the policy should be that prisoner releases, even of terrorists without "blood on their hands," is an issue for a peace settlement, not a three-month ceasefire.

2003-07-20T15:01:00.000-07:00

Speaking of coincidences: I was recently at a local car dealership, negotiating over the price of a used Mercedes C240 (alas, we did not come to an agreement on the price). Just when I sat down with the salesman at his desk, the radio station being piped into the dealership started playing, "Lord, Won't You Buy Me a Mercedes-Benz?" It seemed like fate, but given the outcome of the negotiation, I guess not.

BTW, all those auto buying guides that tell you that a dealer's firm price (at a non-"one price" dealership) is never really firm are full of it. I've had two different sales managers refuse to come down a penny on used cars from their initial asking price, claiming that I was already taking advantage of Internet specials. Perhaps this is a new version of the bait and switch: advertise reasonable, but not low prices, knowing that customers will expect to be able to negotiate a bit, but then refuse to negotiate.

2003-07-17T17:08:00.000-07:00

I admire the president's forthright policies on the War on Terror. However, his domestic agenda is a disaster. The teachers at my Bill of Rights Institute conference--some of the top teachers in the country--are all aghast at the administration's federalization of what they perceive as the trainwreck of testing standards that encourage, nay require, rote learning. These aren't lazy good-for-nothing teachers complaining, but the best of the best, who are losing the little flexibility they have to make their classes interesting and engaging. Federal spending is rocketing out of control, with a new Medicare drug entitlement on its way (fellas, at least raise the eligibility threshold to reflect longer lifespans and make up the revenue!), and the drug war continues apace. Even the War on Terror is being undermined by the Justice Department's dangerous claim, going against centuries of Anglo-American liberty, that it alone has the authority to determine whether a suspect is an "enemy combatant" not subject to constitutional protections.

2003-07-17T16:23:00.000-07:00

Left-wing anti-Semitism (via Little Green Footballs). I wrote about this years back when I was a student at Brandeis, and a campus publication dominated by communistic South Americans published a photo essay analogizing Israel to Nazi Germany. I'll try to dig the piece up from my files, and, if I do, will post it here.

2003-07-17T15:48:00.000-07:00

When the PLO withdrew from Beirut in 1983 in a U.S.-brokered deal to save them from annihilation by the Israelis (and also spare Beirut more civilian casualties), an Israeli sniper took a picture of Yasser Arafat to show Israel's obedience to the agreeement--the nation's most mortal enemy was in their gunsights, and they let him flee. I've been wondering recently whether the sniper did the right thing. Sure, he was under orders not to shoot Arafat, but let's say he would have done it anyway. He would have been court-martialed, Israel would have been in temporary hot water with the U.S., and Arafat would have been dead. My relatively vast readings on the current Mideast situation lead me to conclude that the Israelis and Palestinians would have reached an accommodation three years ago before the current Intifada but for Arafat, and that Arafat remains the primary obstacle to peace. A bolder move by the sniper, and who knows...

Israel is losing a second chance to kill Arafat. Perhaps Sharon should simply go back on his promise to Bush, and kill Arafat along with all of his terrorist henchmen holed up in Ramallah. Sure, Bush would be furious. But let's say that Sharon did the truly heroic thing, and resigned the next day. Bush surely couldn't be furious at Sharon's successor for Sharon's breach of promise. And Sharon would have knocked off Arafat, not only serving the interests of justice, but creating the only opportutnity for peace. The Palestinian "street" would be furious, at least for a while, but with Arafat out of the way, a leadership willing to reach an accommodation with Israel could finally possibly take power. Not to mention that the Palestinian leadership would learn that they are not exempt from execution if they continue to make war on Israel; that would be a very sobering lesson.

I don't expect any of this to happen, but my gut feeling is that nothing Sharon could do would better serve the future of Israel than to order Arafat's death, and then resign.

2003-07-17T15:22:00.000-07:00

Concerned about the safety of the car you are thinking of buying? Check out this website from Folksam, Sweden's largest insurance company. Folksam's data is based on real world accident experience, far superior data, from what I can tell, compared to crash tests conducted in non-real world conditions by U.S., European, and Australian safety agencies. The only downside is that the data only includes cars prevalant in Sweden. Also, while the page I link to suggests that each car can be compared to all other cars, a glance at the full report in Swedish makes it obvious even to an English speaker that cars are only supposed to be compared within their size class.

2003-07-16T20:37:00.000-07:00

Sorry for the absence of posting so far this week, but I've been busy being the "host professor" at a very interesting Bill of Rights Institute conference for high school history and government teachers, and runnng some personal errands.

2003-07-12T06:26:00.000-07:00

My forthcoming book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, has debuted with an Amazon.com sales ranking of 2,523,674, which presumably means no one has ordered it yet. By preordering the book (only $14, hardcover), you can single-handedly move it into the six digits (I think; no one really knows how Amazon tabulates its rankings). The book will ship in October.

Update: Still no action on Amazon, but the book has been ordered from B & N.

2003-07-11T08:06:00.000-07:00

Why would the Melbourne Underground Film Festival want to show a documentary by the anti-Semitic Holocaust denying liar David Irving? And why does the article I link to dignify him with the title "revisionist historian?" You might as well say that J.K. Rowling is a revisionist historian of wizardry.

2003-07-11T08:01:00.000-07:00

While I was off galvanting in the Adirondacks, Ted Frank, guestblogging on Overlawyered.com, took on the anti-Daubert report I briefly discussed last week.

2003-07-11T07:00:00.000-07:00

When business organizations try to get tort reform enacted at the federal level--appropriate in my view, given the incentives of elected state judges to screw out of state defendants to benefit in-state plaintiffs, so long as the reforms apply only to cases involving an out of state party--they are told that they are violated principles of federalism. Yet, when business organizations respond to their inability to get comprehensive federal tort reform by getting involved in state judicial elections, they accused of "buying" state judges. Apparently, businesses large and small, doctors, and others at the mercy of the current tort system are simply supposed to allow corrupt state judicial systems to confiscate their money at will.

2003-07-11T06:35:00.000-07:00

There has been a great deal of discussion about H. L. Mencken's purported anti-Semitism, based on some critical comments he made about Jews in his diary. None of these comments, to my recollection, are as harsh as the just-discovered comments made by Harry Truman in his diary, as discussed in the Washington Post:

But the most surprising comments were Truman's remarks on Jews, written on July 21, 1947, after the president had a conversation with Henry Morgenthau, the Jewish former treasury secretary. Morgenthau called to talk about a Jewish ship in Palestine -- possibly the Exodus, the legendary ship carrying 4,500 Jewish refugees who were refused entry into Palestine by the British, then rulers of that land.

"He'd no business, whatever to call me," Truman wrote. "The Jews have no sense of proportion nor do they have any judgement [sic] on world affairs. Henry brought a thousand Jews to New York on a supposedly temporary basis and they stayed."

Truman then went into a rant about Jews: "The Jews, I find, are very, very selfish. They care not how many Estonians, Latvians, Finns, Poles, Yugoslavs or Greeks get murdered or mistreated as D[isplaced] P[ersons] as long as the Jews get special treatment. Yet when they have power, physical, financial or political neither Hitler nor Stalin has anything on them for cruelty or mistreatment to the under dog. Put an underdog on top and it makes no difference whether his name is Russian, Jewish, Negro, Management, Labor, Mormon, Baptist he goes haywire. I've found very, very few who remember their past condition when prosperity comes."

Comment: Truman was clearly venting some anger at the time, and Jewish "selfishness" certainly relates to anti-Semitic stereotypes of Jewish clannishness, etc. However, Truman's record (like Mencken's, who had many Jewish friends and advocated allowing German Jews into the U.S. in the 1930s) is far from anti-Semitic. He had a Jewish business partner, was sympathetic to Jewish refugees in Europe after the Holocaust, and was instrumental in the founding of the State of Israel.

Thus, the Truman diaries provide yet another example of the impoverishment of dialogue about racism, anti-Semitism, and the like, because of the loss of the word "prejudiced." In the old days, it was recognized that many people were prejudiced, having negative stereotypes and attitudes in their minds toward another group, but that those prejudices could be overcome in practice. Truman was apparently prejudiced to some degree against Jews. Mencken certainly was. But does that make them anti-Semites? In current dialogue, yes. Anyone who expresses prejudice is deemed an anti-Semite. In my view, however, the label anti-Semite should be limited to those who actually wish Jews harm, and/or actively try to harm Jews. Someone who has mere prejudices, but lives his life without relying on those prejudices should not be put in the same camp as, say, Nazis. Of course, a prejudiced person may allow those prejudices to affect his day to day life. But even then, the person who votes against having a Jew be a member of his golf club because of prejudice, but doesn't actually wish harm upon Jews is still hardly in the same camp as the Nazi.

Thus, with regard to both Truman and Mencken, we can say that they both were prejudiced against Jews, but their lives and careers showed they rarely acted on that prejudice. Doesn't that seem a lot more sensible then calling them "anti-Semites?"

2003-07-10T19:56:00.000-07:00

Eugene reports on an outrageous Nevada Supreme Court decision requiring the state legislature to suspend a state constitutional requirement of a 2/3 vote for raising taxes. While Eugene suggests impeachment, a more immediate response would be for the state's legislators to agree among themselves that no tax increase will come to a vote unless it's clear it has a 2/3 majority, to prevent the state supreme court from declaring an increase passed with lesser majority a law. And, if such an increase does pass with less than 2/3, the governor should veto it, and, if the veto is overriden (by less than 2/3?) refuse to enforce it, ordering state tax officials to ignore it and/or pardoning any violators.

2003-07-10T19:16:00.000-07:00

I was thinking of writing a short article on Justice Rufus Peckham, most famously the author of Lochner v. New York. Then I remembered that someone told me that his law school classmate wrote a paper glorifying Peckham as one of the great Supreme Court Justices, much to the horror of their professor. If this rings a bell for any readers, please let me know.

2003-07-09T19:47:00.000-07:00

Anti-Israel and, for that matter, anti-Semitic conspiracy theorists have long charged that Israel deliberately attacked a U.S. spy ship, the Liberty, during the Six Day War. Frankly, I was sometimes inclined to believe it myself, having heard rumors that the ship was passing on information about Israeli actions to the Egyptians, quite a perilous position for Israel if true (remember, at this time Israel and the U.S. were not nearly as close as they are today, and last time Egypt and Israel went to war, in 1956, the U.S. sided with the Egyptians). Anyway, Israel always denied that it knew the ship was American, and that story has now been proven conclusively to be true. You can read about the proof here.

Update: Some good links related to this story on the Little Green Footballs comments page.

2003-07-08T20:48:00.000-07:00

I've been on vacation at the beautiful Sagamore Hotel on Lake George, NY, and didn't have a chance to get to a computer. Blogging will resume tomorrow.

2003-07-03T10:36:00.000-07:00

Peter Norberg, of Daubert website fame, misapprehends the point of my post below about the plaintiffs lawyers extorting money from breast implant manufacturers via the use of junk science, and then using some of the money, place in a "Common Benefit Trust," to fund a study arguing for loosening the Daubert reliability standard for the admissibility of expert testimony. My point is not that the study itself is suspect because the authors received funds that flowed from the efforts of plainttiffs lawyers. As Norberg points out, studies, arguments, etc., must stand or fall on their own merits, regardless of funding source. Rather, my point is that the breast implant litigation was based on a junk science premise, that breast implants caused immune system disease. The junk science involved led to the extortion of billions of dollars from implant manufacturers. This, itself, was utterly outrageous; junk-science based claims are a form of fraud, albeit a legal form (and as far as I can tell, not officially unethical for an attorney to bring even if he knows he is relying on junk science, which is itself an outrage). Adding insult to injury is to use the ill-gotten gains from the junk science-based litigation to fund a study arguing for more lenient standards of admissibility of scientific evidence, which would lead to the admission of more junk science, and thus more successful fraudulent claims. Now, I would agree that if the experts who conducted the study were a truly neutral group of scientists with no preconceived notions who just happened to conclude that Daubert was too strict, my outrage would dissipate. But I suspect strongly that the deck was stacked. The Tellus Institute, organization that was in charge of the study, has a left-wing, environmentalist, redistributivist bias, which is obvious from its website. Moreover, the panel that conducted the study had no representative of "hard science" on it: no one from a physics, biology, or chemistry department. Instead, there are professors from the squishy field of Environmental Health, an Urban and Environmental Policy and Planning Professor, and an MD. Apparently, one or more of these professors is a philosopher by training. And the study reads like a legal brief, not a serious critique by scientists of the post-Daubert landscape. Yet the sponsore have the chutzpah to call their website, "defendingscience.org."

Update: Norberg challenges me to specifically critique the report at issue. I could do that, but instead will ask him to wait for the forthcoming New Wigmore: Expert and Scientific Evidence, of which I am co-author. That treatise discusses Daubert and other expert evidence-related issues in great, and, I believe, illuminating detail. As for why I focus on the lack of hard scientists who worked on the report, my point was simply that if the report was meant to be an objective look at how courts are dealing with scientific evidence in the post-Daubert era, it's unlikely that no hard scientists would have been selected. Further update: Oh yeah, and since my point is that the study seems to have been funded with the intent of creating an anti-Daubert manifesto, it's hardly an ad hominem argument to point out that the folks in charge of the study appear to be the sorts who would be predisposed to dislike a stringent reliability standard for scientific evidence in toxic tort cases.

2003-07-01T20:16:00.000-07:00

Here's an outrage: Plaintiffs' lawyers relied on junk science to win billions of dollars in the silicone breast implant litigation (I review the entire fiasco here--the final version was published in the California Law Review). They then used money from the litigation that was placed in a "Common Benefit Trust" to fund a study advocating, you guessed it, that more junk science be admitted at trials through a weakening of the Daubert reliability test for scientific evidence.

2003-07-01T10:33:00.000-07:00

Eugene has an interesting discussion of why Congress needed a constitutional amendment to ban alcohol, but only needs to pass a law to ban drugs: the answer lies in the, ahem, creative interpretaton the Court gave to the Commerce Clause starting in the late 1930s. Next time you see the 1936 anti-mairjuana cult classic, Reefer Madness, notice the FBI agent's response when a concerned mother asks him why the federal government isn't doing more to combat marijuana. (The agent responds ruefully that most marijuana is grown in-state, and therefore the federal government lacks jurisdiction over it.)

2003-06-30T22:28:00.000-07:00

Linda Greenhouse in the New York Times:

"In fact, 'this term suggested a split between two kinds of conservative Republicans,' Walter Dellinger, a former acting solicitor general and longtime student of the court, said in an interview. Justices Kennedy and O'Connor 'share the sensibilities of corporate Republicans, who often have a bit of a libertarian streak in them,' he said, while on social issues, 'Scalia and Thomas represent the Moral Majority strain, which is vocal but not necessarily dominant.'

Chief Justice Rehnquist, Mr. Dellinger said, often occupies a middle position between the two groups."

With all due respect to Prof. Dellinger (and I do respect Prof. Dellinger), there is no way one can argue that Rehnquist has more of libertarian streak than does Scalia, much less Thomas. In fact, when I was in law school, there was a saying that neatly explained 90+% of Rehnquist's jurisprudence: state versus individual--state wins; state versus federal government--state wins; federal government versus individual--government wins (except in Takings and affirmative action cases). Kennedy and Thomas both have libertarian streaks, but Kennedy is more moderate in general, and in particular accepts substantive due process jurisprudence as Thomas does not.

I don't see any particular evidence that O'Connor has a libertarian streak, as such, though as a moderate conservative she sometimes casts votes that lead to smaller government. However, libertarians in general can't abide her because of her extremely annoying tendency to muck up the law with nonsensical balancing tests that fail to convey to anyone what the law will be in any particular future instance. (What would Hayek say? Oy!)

Moreover, and here I'm getting away from the libertarian issue, her opinions also tend to be intellectually vacuous; her opinion in Grutter, the Michigan Law School affirmative action case, which I just read, is one of the least-well-reasoned, least coherent, least consistent with prior reasoning on similar issues, etc. opinions I have ever seen. I think affirmative action at state universities can be given a strong constitutional defense, but Grutter certainly ain't it. What happened to strict scrutiny? Wasn't scrutiny stricter in the VMI case, which was only supposed to involve intermediate scrutiny? Why a 25 year cutoff for affirmative action? Isn't that completely arbitrary? Why are Latinos important for ethnic diversity but not, say, Armenians, Greeks, or Slavs? Or can state universities now admit people based on any ethnic criteria they wish? Should Latinos (including Latinos who look "Caucasian," come from South America where they are considered white, and consider themselves to be white) be treated exactly the same as blacks for equal protection purposes, even if we agree that the compelling interest test should be weaker for "positive discrimination?" How does Michigan Law School's claim that it was adhering to a diversity rationale square with the district court's finding that among Latinos only Mexican Americans and mainland Puerto Ricans benefited from the school's admissions preferences? Why defer to state university officials and their judgment but not to any other government officials with regard to matters of race, especially when VMI officials received no deference? Is Justice O'Connor completely unaware that the diversity rationale is largely a charade masking the (far more defensible) true redistributive and ameliorative intent of AA programs, as most strong proponents of such programs will admit, at least in private? Did O'Connor really look at the statistics involved in the law school case before she wrote that it's clear that race is not outcome determinitive in the Michigan admissions process? Was she being disingenuous? Does she really believe that her opinion, which gives far more leeway to AA than Justice Powell's Bakke opinion did, is no different than Powell's opinion? Unfortunately, the answer to all these questions is, who knows? Justice Scalia points out that O'Connor's opinion leaves open a lot of room for further litigation over the scope of AA. It also, I think, is likely to be overruled if she retires and is replaced by someone conservative, because the opinion is so bad that it simply does not put affirmative action on a sound constitutional footing. A historically-minded opinion could have pointed out that the 14th Amendment was not meant to void all racial classifications, and that the Court has never held that it does. Rather, reasonable classifications are allowed, so long as they are benign and "reasonableness" is considered with the gravity required for something as explosive as racial classifications. Further, O'Connoer could have argued that aiding African Americans and perhaps some other disadvantaged groups, while still avoiding quotas and treating applicants as individuals, is such a reasonable classification. If I were O'Connor, I would have challenged Scalia and Thomas on their own originalist turf, where they are very vulnerable on this issue.

2003-06-30T13:26:00.000-07:00

If you haven't done so recently (or even if you have), be sure to visit Walter Olson's legal blog, Overlawyered.com, which has a new movable-type based format. I've known Wally since I was a Summer intern at the Manhatten Institute, his employer, in 1989. It's no exaggeration to say that he is the leading light of the movement to reform and improve America's civil justice system.

2003-06-28T10:18:00.000-07:00

Two notes on the Duvshani controversy.

Professor Wilkie writes:

"I have a huge problem with the way that the Israelis take the moral high ground from their appalling treatment in the Holocaust, and then inflict gross human rights abuses on the Palestinians because they (the Palestinians) wish to live in their own country."

(1) It was Jews, not Israelis (Israel didn't even exist) that suffered during the Holocaust. Thus, contrary to Eugene's more ambivalent view, this seems like rather naked anti-Semitism to me, of the typical Euro-leftist "well, you see, you can't hold Europe guilty for the Holocaust because the Jews turned around and treated the Palestinians the same way" variety. This manages to combine two elements of anti-Semitism into the same thought, both minimizing the Holocaust and maximizing perceived bad behavior by Jewish Israelis.

(2) Ehud Barak offered the Palestinians 96%+ of the West Bank, extra land in Israel to make up for the rest, and all of Gaza, for a state of their own, just three years ago. But Yasser Arafat decided to insist on an unlimited Palestinian "right of return" to Israel, which means not just wanting a state of their own, but Israel, too. The offer to Arafat was the culmination of the Oslo process, which began when the Palestinian leadership finally gave up its call for the destruction of Israel. Until the Oslo process began, the PLO had, from the day of its founding [update: in 1964, three years before the "occupation" of the West Bank and Israel], called for the total destruction of Israel. Since Israel had no one else to negotiate with (the PLO murdered anyone who tried), how can one say that Israel simply refused to let the Palestinians have their own country? As for Israel's human rights record, it's about as good as can be expected given the suicide-murder situation, and the need to defend its citizens. Remember, no suicide murders=no checkpoints, roadblocks, house demolitions, or assassinations.

The fact that Israel offered the Palestinians a state in almost all the territories, including Arab Jerusalem and the Temple Mount, and folks like Wilkie can still claim with a straight face that Israel has not offered the Palestinians a state shows either willful ignorance or gross bias, or both.

2003-06-28T10:07:00.000-07:00

Eugene over at the Volokh Conspiracy notes the tendency of many Justice Thomas critics to claim that Thomas is basically Scalia's stooge. I ran into this argument a few years ago on an African American studies listserv, and pointed out that Thomas votes with Scalia far less often than Thurgood Marshall voted with William Brennan, but no one accused Marshall of being Brennan's lap dog. I was challenged for exact statistics. I provided them from the Harvard Law Review's annual Supreme Court survey. But I was still met with the argument that Scalia must be dictating Thomas's opinions.

This issues reminds me of when Thomas was first nominated to the Supreme Court, and a raft of biographical sketches appeared, many with the theme, "how did Thomas come to such conservative views." The articles typically tried to assess the effect of various biographical or psychological idiosyncracies on Thomas. None gave any serious weight to Thomas's own explanation, which is that he read a lot, ranging from Ayn Rand to Thomas Sowell, and concluded that libertarianish conservatism made sense. I thought those articles were insulting to Thomas and to blacks in general, and still do. If whites can read and be influenced by Ayn Rand and Thomas Sowell, why can't blacks? And if Scalia can win grudging praise for the sharpness of this legal writings, why can't Thomas, who, if anything, is a bolder and more original thinker than is Scalia?

Update: Ayn Rand?!?!?! This webpage documents Rand's influence on Thomas.

2003-06-27T09:29:00.000-07:00

Why Israel is not excited about the impending unilateral ceasefire.

2003-06-26T12:00:00.000-07:00

SODOMY DECISION: We spent a lot of time in my Con Law II class last semester talking about how the Supreme Court is affected by the attitudes of the times the Justices live in. By the time we got to Bowers v. Hardwick (the Supreme Court's 1987 sodomy case finding no constitutional right to homosexual sodomy), my students had become convinced of the importance of historical context, and were unanimously convinced, or so it seemed to me, that Bowers would be overruled this term. They were right.

2003-06-26T05:50:00.000-07:00

Victory for freedom of speech:

Residents of the enclave of Broad Channel in Jamaica Bay expressed approval yesterday of a judge's decision that three residents' First Amendment rights were violated when they were fired for racial depictions in the 1998 Labor Day parade.

The three men — a former police officer, Joseph Locurto, and two former firefighters, Jonathan Walters and Robert Steiner — dressed in blackface and ate fried chicken and watermelon as they rode on a float called "Black to the Future: Broad Channel 2098."

There was outrage elsewhere over the decision. One tabloid headline called the ruling a "Bigots' Victory" and another announced "Free to Hate." Former Mayor Rudolph W. Giuliani, who supported the firings in 1998, also denounced the ruling.

Little of that anger could be found in Broad Channel yesterday. "The incident sent a wrong message, but as Americans, they have the right to say what they want," said Joe Cutrone, 27, a tugboat mate and lifelong resident who said he knew the men on the float.

Comment: Cutrone is right on target. Of course, a private employer has the right (at least in at-will states) to fire individuals for engaging in private conduct that it thinks reflects badly on the employer's image. But government employees, as a rule, cannot be disciplined for offensive but legal private behavior.

Update: I've thought about this some more, and am less confident about the view I expressed above. Perhaps not being a known racist is in a sense a qualification for being a police officer or a firefighter, as the trust of the community is essential to success in those jobs. Regardless, in the Broad Channel situation the court was almost certainly correct, because (1) the men involved had been working in minority communities and with minority colleagues for years without incidence; and (2) Mayor Guiliani, and not the relevant commissioners, made the decision to fire the men, not based on how it would affect their departments, but based on political considerations. Indeed, Guiliani made it clear before he knew who was involved that he was planning to fire any city employee that participated in the float. Yet, it's hard to see how it matters to an employer, including New York City, whether a janitor or accountant it employs has expressed racist views, so long as that employee keeps his opinions to himself during working hours.

2003-06-25T10:55:00.000-07:00

One-third of all Americans are born out of wedlock. Maybe one or two percent of people I know have had their children out of wedlock, including none of my friends or extended family. I would guess that many members of the "knowledge class" live in similar social isolation.

2003-06-25T06:20:00.000-07:00

Israelis, especially young Israelis, are much thinner than their American counterparts. No wonder. The fruits and vegetables are much fresher and taste much better there, and are served constantly--they are much cheaper there than here, and meat is more expensive. Israelis also have a very long life-span on average, especially considering the poverty that exists in development towns, Arab villages, and ultra-Orthodox neighborhoods. Score one for the Mediterranean diet.

2003-06-25T06:18:00.000-07:00

More reflections on my trip to Israel: Compared to eighteen years ago, my last visit to Israel, the country is far wealthier now. Many more cars are on the road, nice restaurants have largely replaced streetside falafel and schwarma stands, cell phones ring constantly compared to the seven year wait for phone installation in '85 and completely disfunctional public phones, McDonald's, Burger King, and other western firms and products abound, many more people speak English, many more people travel abroad, etc., etc. However, many of the gains have been limited to the big cities; a Acco (Acre), a small town in the North, reminds me of the Israel I remember from 18 years ago: dirty, poor, with a general vague sense of Middle Eastern backwardness.

Two conditions are sorely needed for Israel to reach its full potential: an enforceable peace deal, and further desocialization of the economy. If those conditions materliaze, Israel will have the standard of living of Japan (which is similarly densely populated) or better.

2003-06-25T05:56:00.000-07:00

I've maintained for some time that more and more censorship is inevitable in countries that do not share the United States' constitutional commitment to freedom of speech, but instead allow restrictions on such freedom in the name of equalitarian concerns [see, for example, the final chapter of my forthcoming You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, which discusses the situation in Australia and Canada]. According to an article in the Guardian, a draft proposal for the EU states "that while freedom of expression must be respected, sex discrimination and affronts to human dignity should be banned from media and advertising."

"'The purpose is to avoid throughout all forms of mass media all stereotypical portrayals of women and men, as well as any projection of unacceptable images affecting human dignity and decency in advertisements,' an internal commission document says."

Exactly who is going to be charged with deciding what images are "unaccepable" because they affect "human dignity and decency?" Undoubtedly, if this proposal passes lobby groups will form to get the EU to declare anything that goes against their own ideology as "unacceptable."

Update: I posted the above on a Constitutional Law list. I then responded to a post about whether European rules should necessarily follow American rules, and whether I find it troubling that the Europeans seem unconcerned with stifling festering anti-Semitism, with the following:

"Despite my general views on these issues, I can understand Germany's ban on anti-Semitic speech. Sometimes, rules need to be tailored to particular cultures and histories, and that may be one example. However, the problem [the post I'm responding to] describes, that hate speech rules originally allowed in order to prevent a revival of Naziism in Europe now may shift focus to hate speech rules geared toward preventing speech that offends feminists, is exactly the problem that one would expect to arise once one makes any meaningful exemptions to a free-speech-even-if-it-offends-somone principle (unless an enforceable Constitution very specifically limits the rule to one circumstance, e.g., pro-Nazi speech in Germany). Over the long-term, public policy is driven more by interest groups and political considerations than by moral considerations, so once an exception is made because of strong moral considerations, that exception will later be used and expanded by interest groups seeking to suppress the views of those that disagree with them. Yes, it's a slippery slope argument, but, as Eugene [Volokh] has shown, slippery slope arguments aren't always wrong. As for the specific arguments [in the post I'm responding to] about Jews, I recall reading that anti-hate speech rules in England originally promulgated to protect Jews wound up being used to suppress pro-Israel speech at English universities. Arab student groups argued that since the UN decreed that Zionism is racism, pro-Israel speech is inherently racist and therefore illicit.

2003-06-25T03:35:00.000-07:00

A new poll shows that 25% of American Jews say they will definitely vote for Bush, compared to 46% of other Americans. This is very good news for the Republicans. First, this is the best ratio for any Republican presidential candidate since Ronald Reagan ran against Jimmy Carter in 1980. Carter had the disadvantages of being perceived (fairly) as somewhat anti-Israel and (unfairly) as holding anti-Semitic religious views (because Southern Baptists believe that Jews, along with other non-believers, won't make it to heaven). Reagan, though far more conservative than most Jews, had a non-church going Hollywood background that made him far more comfortable to Jews than Carter, and was staunchly pro-Israel.

Moreover, opinion polls of Jews tend to undercount Russian immigrants (because they don't speak English well and tend to be suspicious of pollsters) and the ultra-Orthodox (suspicious, insular, and often poor, a combination that leaves them less susceptible to polling). Both of these groups tend to be far more likely to vote for Republican presidential candidates than Jews in general. So, if current numbers hold, and Bush gets about 50% of the general popular vote, he is likely to get a bit over 30% of the Jewish vote, about double what he got last time. Bad news for the Dems in several battleground states, though perhaps less so in Florida than many expect, because the Jewish elderly tend to be stubbornly Democratic.

Update: The Republican Jewish Committee sent me a press release claiming that the survey in question was based on only 99 Jewish responses, and suggesting that the RJC expects Bush to do a lot better among Jews than the 99 responses suggest. However, unless Al Sharpton becomes a force in the Democratic Party, I'd be very surprised if Bush receives more than 35% of the Jewish vote.

2003-06-24T16:41:00.000-07:00

Book reviews can be very annoying. Traditionally, reviewers could mangle what the author said or make outrageous, incorrect claims about the book’s thesis without any real chance that he would be called on it. My last book , Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (Duke 2001) has been widely reviewed in history, labor, economics, law, and public policy reviews. You can find many of the reviews here. Most of the reviews have been positive, some wildly so, and even the critical reviews have mostly grudgingly acknowledged that the book makes an important contribution to the literature. I see this as a triumph, given that the book takes on many sacred historical cows, that the review authors have rarely shared my general ideological perspective, and that many of the reviewers have, to put it nicely, been innocent of any knowledge of the public choice and labor economics that are at the heart of the book’s interpretation of its historical subject matter.

However, I have grown annoyed at some reviews I think are inaccurate, ideologically biased, or both. I’ve resisted the temptation to respond, mostly because I’ve been busy working on other things, but also because responding would normally involve writing a letter to the editor of the review, who could then edit the letter as he saw fit, plus invite the reviewer to get the last word. However, the Web, and this blog, change the equation. In the age of the World Wide Web, why should reviewers always have the last word?

A review just appeared in the Summer 2003 issue of the Law and History Review, the journal of the American Society for Legal History, that I decided to respond to on this blog. The review, by Professor Clarence Taylor of Florida Atlantic University, contains some good examples of illogic, error, and exaggeration that have appeared in a few other reviews

Taylor provides a reasonably accurate synopsis of the historical meat of the book:

“Bernstein focuses on several areas in an attempt to demonstrate the adverse affect that occupational regulation had on African Americans. He notes that emigrant agent laws which restricted labor agents from recruiting southern blacks to northern industries; plumbers', barbers', and physicians' licensing laws limiting these professions to whites; the 1926 Railroad Labor Act and the 1934 amendment to the act, which gave racist white unions the power to exclude blacks from their ranks, all helped to maintain a racist and hierarchal labor force. Moreover, Bernstein argues that the 1931 Davis Bacon Act, which made it mandatory that construction workers on public projects be paid above the market rate, all but eliminated blacks from government contract construction work. He also points out the racism of such New Deal programs as the National Industrial Recovery Act, because its minimum wage provision did not cover areas in which African Americans were heavily employed, such as agricultural and domestic work. It also maintained a ‘grandfather’ wage clause creating wage differentials that harshly impacted black workers. The author even suggests that if the NRA had not been ruled unconstitutional, African Americans would have [sic: I wrote ‘might have,’] been forced into a ‘permanent second-class and economic status.’ The NRA and other New Deal legislation such as the Wagner, the Fair Labor Standard, and the Agricultural Adjustment Acts provided benefits to white workers at the same time it reinforced racial barriers.”

Taylor even acknowledges that “Bernstein is correct to note that unions acted to protect the privileges of their white membership at the expense of people of color. Besides using legal remedies to protect white workers, the author correctly points out that the employment of race strikes and even the use of violence on the part of white workers were tools used to assure the denial of certain occupations to African Americans.”

After this fair synopsis and mild praise, the trouble begins. Taylor claims that “[Bernstein] erroneously equates labor's struggle for collective bargaining with a racially exclusionary agenda as though they were one in the same.” First of all, the book is not about “labor’s [sic: only some workers, not some imaginary entity ‘labor,’ wanted collective bargaining; in equating ‘labor’ with prounion workers, Taylor reveals an ideological bias that helps explain his unwillingness to grapple with the interest group theory that underlies the book’s thesis] struggle for collective bargaining,” it is about how facially-neutral labor laws negatively affected African American welfare.

Even in that more limited context, I do not claim that these laws were always motivated by racism, as the “one in the same” comment suggests. In fact, I emphasize in several different places that much of the harm done to African American workers by labor legislation promoted by unions was incidental. Indeed, on page 5 of the book, in the Introduction, I wrote with regard to the labor regulations I discuss:

“The body of the book presents several case studies of how facially-neutral occupational regulations passed between the 1870s and the 1930s harmed African-American workers. Sometimes, racism motivated the laws, either directly (as when the sponsors of the legislation were themselves racists), or indirectly (when legislative sponsors responded to racism among their constituents). Some laws had the primary goal of restricting African-American access to the labor force, while in other instances this was a secondary goal related to the broader goal of limiting competition faced by entrenched workers. In yet other situations, racism did not motivate the laws, but the adverse effects on African-Americans were foreseen, and critics pointed out the likely adverse effects when the legislation was under consideration. And, finally, whether intended or not, whether actually foreseen or not, the adverse effects of some legislation were foreseeable in light of the way labor markets operate.”

Next, Taylor claims that “Bernstein completely ignores what labor historians and others have noted for a long time: management used race to defeat unions.” Since I spend a reasonable amount of time on the fact that blacks disproportionately served as strikebreakers, what Taylor apparently means is that I neglect the old Marxist-Progressive shibboleth that working class white racism was largely fostered by corporations that sought to divide and conquer workers. This ancient way of excusing union (and, more generally, white working class) racism is utter nonsense, and was only made up by Marxists who sought to explain why the fundamental interests of “the workers” were not aligned by class as Marxist theory suggests they should be, and supported by Progressives who turned a blind eye to union racism. It’s true, of course, that companies sometimes took advantage of and helped exacerbate the preexisting hostility whites had for blacks. But, contrary to the traditional view (and apparently Taylor’s view), I argue that labor unions’ racism preexisted any “capitalist” manipulation (note by contrast, that corporations did not, because they could not, take advantage of similar preexisting hostility of, say, Methodists to Baptists), and suggest in the book that blacks were often aware that their interests lay with the “capitalists” who were willing to employ them and not with racist unions who tried to prevent their employment, and acted accordingly.

I plead guilty to Taylor’s “accusation” that I portray black workers as “conscious and willing strikebreakers who desired to take full advantage of labor and management strife.” Taylor argues that “Bernstein’s odd conception of black agency flies in the face of historical reality. There is no mention of how management manipulated black workers desperately in need of employment by hiring them to break strikes.” The notion that blacks were the ignorant and foolish pawns of white industrialists has been around for decades, and has won support on the labor-left from both the enemies of blacks (who though it showed blacks to be foolish simpletons incapable of organization) and their friends (who wished to absolve blacks from the charge of intentional strikebreaking and preserve hope for future black-white amity). As a matter of history, however, the portait of black strikebreakers as simple dupes happens to be inaccurate. While occasionally prounion blacks were mislead into strikebreaking, strikebreaking against racist unions was in blacks’ interest, they knew it, and they followed their interests. As I point out on pages 91-92 of the book,

“African Americans often made their strikebreaking positions into permanent employment. By 1909 African Americans had used strikebreaking to break into the building trades in Chicago, the mining industry in various locales, packinghouses, foundries in Birmingham and Decatur, and the steel industry in Pittsburgh and Youngstown. Years later African American broke into the meatpacking industry following a strike in 1921, the coal industry after a Pennsylvania strike in 1922, the metal trades in Detroit after a strike in 1921, brickmaking after a New Jersey strike in 1923, and railway shop employment after a strike in 1922. According to one expert, the list of industries opened to African Americans by strikebreaking ‘could be continued indefinitely.’”

If one is to engage in history rather than apologetics and propaganda, one will acknowledge that most blacks who encouraged and participated in strikebreaking were aware of the advantages that accrued to them from that activity. If the workers weren't aware of this themselves, there were plenty of church leaders, nationalist leaders (e.g., Marcus Garvey), and other leaders who were more than willing to point this out to them. While modern labor historians, who are far more sensitive to the plight of black workers than previous generations, have acknowledged (most) labor unions' and (most) blacks' mutual hostility in pre-CIO times, these historians have mostly shied away from acknowledging that blacks were willing strikebreakers, because among labor historians, strikebreaking is still considered a great sin. In my experience, most labor historians are pro-union ideologues, even those that acknowledge and excoriate unions' racism, so much so that books published by presitigious university presses casually refer to strikebreakers as scabs, without any sense of awareness that by using this term they are demonstrating an obvious pro-union bias.

In any event, Taylor also complains that I treat industrialists as much more "enlightened" than "their workers" on race. Actually, I make it clear that industrialists shared workers' racist outlook. However, industrialists had an incentive to expand the labor market as much as possible, and to get an accurate idea of how much blacks could contribute. In other words, even racist white industrialists would sometimes be willing hire blacks. It was in their economic interest to do so, unless their white workers imposed extra costs on them for doing so (strikes, slowdowns, racial strife in the workplace, etc). Racist white workers, by contrast, had two options. Try to include blacks and thereby prevent competition from them via strikebreaking, etc. Or exclude blacks through legislation, violence, strikes, harassment etc., reducing the overall supply of labor to union members' benefit. Until the mid-1930s and the rise of industrial unionism, most unions chose the latter route because, as I explain in the book, craft and professional unions served a social function as well as an economic one. For the most part, employers did not lose social status if they hired black workers; for the most part, white workers lost social status if they worked with blacks, and especially if they worked under blacks. And white workers often had access to legislative and other (violence, etc.) means of excluding blacks, thereby ensuring the success of otherwise unstable cartels. By contrast, even if employers wanted to agree to exclude black workers, they rarely had the means to prevent cheating on such agreements. When racist employers could do so, and it was in their economic interest, they also pursued anti-black cartels, as plantation owners did with regard to the emigrant agent laws discussed in Chapter 1. As for the charge that I don't pay sufficient attention to gratuitous discrimination by employers, Taylor should recognize that the book is about the discriminatory effects of labor regulations, not about discrimination in labor markets per se. I argue that free labor markets mitigated discrimination relative to regulated labor markets during a particular historical era, nothing more, nothing less. A reviewer should review the book the author wrote, not the book the reviewer would have written.

Next, Taylor accuses me of an “at best” “misleading” “accusation” that on occasion “socialist W.E.B. Du Bois … advocated African American cooperation with industry against unions.” First of all, it’s not an “accusation;” if I had to make a moral judgment about Du Bois’s advocacy (which I noted in the book was limited to incorrigible AF of L unions), I’d applaud it as just desserts for the racist unions. Second, Taylor does not dispute that what I said is true, but finds it misleading (at best) only because I don’t also note that Du Bois tried to get organized labor to end its racist policies, and more generally I don’t note that Du Bois would have preferred to cooperate with a non-racist labor movement than to cooperate with “capitalists” in opposing a racist labor movement. I would have thought that this fact was implicit in my purposeful reference to Du Bois as a “socialist;” if Taylor can present me with an example of a 1920s socialist who opposed organized labor on principle, I’d be very interested to see it. Nowhere do I suggest that Du Bois was generally anti-union, as opposed to being anti-union when the unions at issue were incorrigibly racist.

Taylor also claims that I argue that a “’classical liberal’ state promoting free market principles is the best remedy to end racial discrimination.” This is an outrageous mischaracterization of what the book says. On pages 109-110, I suggest that a classical liberal alternative to the modern civil rights regime was possible, and would have had some advantages, but I explicitly state that “the classical liberal vision of civil rights admittedly holds little utopian promise. It does not obligate the state to eradicate discrimination, or to guarantee ‘equal opportunity.’” One can charitably attribute Taylor’s interpretation of my statement that a classical liberal state would not eradicate discrimination to mean its exact opposite to utter carelessness, a fault that also apparently led him to overlook my further comment on page 114 that “Lochnerian jurisprudence [which was, of course, classical liberal in nature] cannot presently be supported as sound policy based on the fact that it disproportionately benefited African Americans in the past when they were disenfranchised.”

I could lodge other complaints against the review. For example, Taylor suggests that if my thesis is correct, I could not possibly explain why blacks became strong Democrats who supported the New Deal state. Had he read the book more closely, he would have noticed that I briefly mention this issue on page 107, and discuss it in more detail in the associated footnote 118 on page 156. He could have found this by looking in the index under “New Deal: African American Support for.” He may disagree with the analysis presented, but he should not have implied that I ignored the issue.

I could go on, but I don’t want to try the reader’s patience. Suffice to say that if a student had handed in a similarly-short (two pages) review of this quality to my Constitutional History class, with this many errors, unsupported ideological presuppositions, and distortions, and with its failure to meaningfully engage the book’s thesis, the review would get “at best” a C-. I expect far more from a professor.

2003-06-24T09:34:00.000-07:00

Before the Michigan affirmative action cases were decided, I wrote an op-ed arguing that whatever limits the Supreme Court places on public university affirmative action, private universities should be exempt. While I was away, the piece appeared in the Arizona Star and other Knight-Ridder newspapers.

2003-06-24T07:02:00.000-07:00

I'm back from Tel Aviv. My major impression: Israel is winning the war, and the Palestinians are losing it. True, the economy in Israel is suffering because of the violence; the Intercontinental Hotel in Tel Aviv seemed nearly empty on Monday when I left. More generally, very few tourists were around. And people are worried about themselves and their children. I even met a law professor at Tel Aviv University who was in the cafeteria at Hebrew U. when it was blown up by a suicide murderer; fortunately he emerged unscathed. But, overall, life goes on in Israel almost normally. The restaurants are packed, albeit with security guards at the entrances. Shoppers shop at the malls; workers go to work; kids go to school; sunworshippers hang out at the beach; clubgoers line up at the clubs. I saw no signs that Israeli society is anywhere near a breaking point; the young(ish) Israelis I met who wanted to leave seemed motivated primarily by a desire to meet (a Jewish) someone of the opposite sex (preferably in the US), their social life having stagnated in a very small country. In contrast, the Palestinians have brought upon themselves poverty, unemployment, and misery by embracing suicide murder as a diplomatic tactic.

2003-06-17T14:22:00.000-07:00

Blogging from Tel Aviv, after a wonderful flight in first class (if you've never done this internationally, you must!), and staying at the lovely Intercontinental in Tel Aviv with an ocean view. Having a friend in the travel industry is a great boon. More details to come.

2003-06-16T12:08:00.000-07:00

Blogging will be light for the next week or so.

2003-06-15T17:53:00.000-07:00

A bizarre story about an unapproved by promising drug for Alzheimer's, bizarre because doctors are so hesitant to prescribe a drug not approved by the FDA, even though it's been used safely in Germany for years and there are no good alternatives available for those using it.

"We are all conflicted about this," said Dr. Ronald Petersen, director of the Mayo Clinic's Alzheimer's Disease Research Center in Rochester, Minn. "We want to help our patients and not endanger them, and at the same time we have a moral and ethical obligation to follow the F.D.A.'s guideline."

From where does this FDA fetishism arise? If someone can logically demonstrate to me that doctors have "a moral and ethical obligation" to listen to the FDA (short of staying within the law), I'll be very surprised. And, moreover, this FDAism doesn't square with the fact that almost half of all prescriptions are for off-label uses. Perhaps the FDA rationale is just masking a fear of lawsuits in case the drug turns out not to be safe?

2003-06-15T17:48:00.000-07:00

The NY Times has an article today about "homeless youth" that features a 26 year old and a 20 year old. Homeless they are, but "youth?" Surely, a 26 year old is an adult, and by most definitions, a 20 year old, too.

2003-06-15T14:26:00.000-07:00

This article in the NY Times about rent decontrol in Boston and Cambridge shows typical reportorial ignorance of economics. For one thing, the article harps on the vast increase in rents in those two cities since the end of rent control. What the article fails to mention is that housing prices in Boston and Cambridge have also skyrocketed during the same period. It's hardly a market failure for rental prices to go up at a similar (though, from the data I've seen, somewhat lower) rate than real estate in general. Also, the article notes admonishingly that most new construction has been of luxury apartments, not low income housing. Counterpoint: That's irrelevant, it's the total number of units relative to demand that's important. If new luxury housing gets built, older luxury housing becomes less desirable, and so on down the line, so that building luxury units makes things more affordable for those at the bottom of the housing pyramid.

2003-06-15T08:54:00.000-07:00

Irony: A movie about a fish trying to escape an acquarium has (ahem) spawned a trend of people buying acquaria for hapless fishes.

2003-06-15T08:49:00.000-07:00

More Saudi perfidy:

‘THE PERFECT SLEEPER AGENT’
During his interrogation, KSM identified a man named Ali S. Al-Marri as “the point of contact for AQ operatives arriving in the US for September 11 follow-on operations.” KSM described Al-Marri as “the perfect sleeper agent because he has studied in the United States, had no criminal record, and had a family with whom he could travel.” Actually, Al-Marri had been charged with driving under the influence in Peoria, Ill., in 1990. The Qatari national had returned to the United States on Sept. 10, 2001, to pick up a graduate degree in computer information systems from Peoria’s Bradley University. He was accused by the FBI of phoning an alleged Qaeda operative in the United Arab Emirates, Qaeda paymaster Mustafa Ahmed al-Hawsawi, and lying about it that same December. Al-Marri’s apartment was filled with Islamic jihadist materials. His computer included bookmarked Web sites for hazardous chemicals, computer hacking and fake IDs, according to court documents. Bookmarks in an almanac marked entries for dams, reservoirs and railroads. U.S. officials were outraged when the Saudi Embassy helped Al-Marri’s wife obtain a passport to leave the United States in November (U.S. officials say she was still under subpoena; Saudi lawyers disagree). Al-Marri, who pleaded not guilty to charges of lying to investigators and credit-card fraud, is in prison in Peoria, awaiting trial.

2003-06-15T08:47:00.000-07:00

Attorneys abusing trusteeship and guardianship is, alas, nothing new. But the blase attitude of DC judicial officials is shocking. Why don't DC officials bar attorneys who have previously ignored or abused their positions from being appointed guardians or trustees again? Here's the answer:

"You have to be careful about barring someone from cases," said [senior judge] Hamilton, who oversaw the probate division from 1991 until 1993. "It may be the person's only source of practice."

To be more concerned about lawyers who are neglectful or engage in malfeasance than about their clients who suffer from the neglect or malfeasance is absolutely inexcusable.

Not surprisingly, cronyism is rife in the DC system. Yet another example of how attorneys, who have taken on themselves the role of reforming our health care system, means of regulating tobacco consumption, employee-employer relations, products development and sales, and many other things, have not come close to cleaning up their own house.

And what exactly is the DC Bar Association doing with my annual dues, when such abuses are going on right under bar officials' noses?

Update: Ethical Esq. says that the Post piece should be mandatory reading for bar associations and others concerned about legal ethics.

2003-06-14T05:54:00.000-07:00

This speaks for itself:

Leila Saleh, 55, who was sitting nearby with another patient, said her 2-year-old grandson wrapped a belt around his waist one day and played suicide bomber. "I said 'What's this?' and he said 'I want to blow myself up and kill the Jews.' "

Saleh said she was unfazed. "Listen, if it would be permitted to me, I would go myself," she said. "You only die once."

2003-06-13T13:02:00.000-07:00

AP is still repeating the canard that Tuesday's suicide murder on a Jerusalem bus was in retaliation for the attempted assassination of Hamas leader Rantisi, accepting the whole "cycle of violence" shtick. Anyone who closely follows the new from Israel knows that before, during, and after the Aqaba summit there was an unprecedented level of terror alerts based on intelligence information, most of which fortunately were thwarted by Israel, and none of which had anything to do with Israel's attempt to knock off Rantisi, who by the way was at the time busy coordinating attacks with Islamic Jihad and Fatah.

2003-06-13T05:41:00.000-07:00

If Hamas ultimately agrees to a ceasefire, the explicit purpose of which is to give Abbas time to strengthen his security forces sufficiently that he can later crush Hamas, what would the motive be? The only two optimisitic possibilities are that Hamas leaders are extremely stupid, which is unlikely to be the case, or that Hamas is ready to lay down its arms in favor of politics, which is doubtful. A darker possibility is that Hamas would agree to the ceasfire betting that it could make better use of the time--in terms of arming itself, recuperating from Israeli attacks, organizing its dreamed of "mega terror" attack--than Abbas can. If so, it would be crucial for the Saudis and others to cut off their funding to Hamas during any ceasefire.

Update: I've misplaced the link, but a high-level Saudi official was quoted today as acknowledging that his government still supports the families of suicide murderers--but only, you see, because the families are in need, not to encourage terrorism. How dumb do the Saudis think we are?

2003-06-12T13:28:00.000-07:00

A group called the Committe for Justice is trumpeting a poll purporting to show that almost 90% of Hispanics want Miguel Estrada to be cofirmed to the DC Circuit. James Taranto of Best of the Web trumpeted the poll today. But if you look at the actual poll, it's laughably biased in favor of Estrada. Basically, the pollsters asked a series of "questions" designed to make Estrada look great, and the nomination process unfair, without providing any of the Democrats' counter-arguments. If I was teaching a class on polling, this one would get an "F". Taranto is usually much too careful to fall for stuff like this.

Update: BTW, my personal opinion is that all nominated judges should get a reasonably prompt up or down vote from the full Senate. And while I can't say I've studied Estrada's record carefully, I haven't seen anything remotely resembling a strong case that he shouldn't be confirmed. On the other hand, as I've noted before, here and here Fifth Circuit nominee Pickering seems like a poor choice.

2003-06-11T22:51:00.000-07:00

Reuters: "Washington blames Osama bin Laden's al Qaeda group for the Sept. 11 attacks that killed more than 3,000 people."

Blame? Hel-lo! Al Qaeda's leaders not only admit it, but actually brag about it. Implicitly questioning Al Qaeda's responsibility is a consistent piece of Reuters nonsense, and it almost makes you wonder if the writers there think 9/11 was a zionist plot.

2003-06-11T22:23:00.000-07:00

I'll be in Israel soon, visiting my girlfriend's family. They want us to spend some of our time in Eilat a resort area in the southern desert, because it's "safe" there (no suicide murders, yet). The last time I visited Israel, in 1985, I went wherever I wanted to, didn't fear traveling on buses, etc. But, of course, that was before the "peace process."

2003-06-11T20:49:00.000-07:00

Excellent article in Ha'aretz on who's to blame for the most recent wave of violence in the Land of Israel: Palestinian rejectionists are to blame for the violence, Sharon is to blame for political ineptitude in how he has responded to the violence, and the Bush Administration is to blame for its various missteps in handling the road map.

2003-06-11T20:44:00.000-07:00

I read about this at the time, but seeing it again in print is still jarring: "In October 2001, only weeks after the Sept. 11 attacks, the authorities in an Italian seaport discovered an Egyptian man suspected of Qaeda membership hiding in a shipping container bound for Halifax, Nova Scotia; airport maps and security passes were also found in the container, which he had outfitted with a bed and bathroom. The man disappeared while on bail." THEY LET THE GUY OUT ON BAIL!?!?!

2003-06-11T10:35:00.000-07:00

Peggy Noonan: "And Mr. Bush is pushing a Mideast roadmap because he knows what all but children know: 9/11 grew from, was gestated in, the intense hatred of the Arab-Israeli conflict."

Actually, it seems safe to say that 9/11 grew from, and was gestated in: (1) the war against the Soviets in Afghanistan, in which the U.S. allowed Saudi Arabia and Pakistan to funnel U.S. money primarily to anti-Western, antideluvian fundamentalist rebels, who, after defeating one great atheistic Satan, turned their attention to the other; (2) the first Gulf War, which led to the permanent stationing of American soldier infidels in holy Arabia; and (3) the feeble U.S. response to earlier provocations by radical Islamists, including everything from hostage-taking in Iran in 1979 to Khobar Towers. I've always thought one of Ronald Reagan's biggest mistakes was not responding to the release of the hostages on his inauguration day with a large volley of missles over downtown Tehran.
The Arab-Israeli conflict has now become a front and center issue to Moslems worldwide, but that is a relatively recent phenomenon of the Second Intifada. Before that, it seemed that the conflict was moving toward resolution (and would have gotten there but for Arafat) and there was no Al-Jazeera to demagogue it throughout the Arab world. Al-Qaeda itself paid very little attention to Israel in its public statements until very recently.

2003-06-10T20:51:00.000-07:00

Good column by Daniel Pipes on the current Israel-Palestinian situation. The basic point is that the US must hold the Palestinians to their agreements, which successive Israeli governments did not do.

2003-06-09T22:12:00.000-07:00

Michael Greve has an interesting piece in National Review Online about Republicans and the Supreme Court. Though I liked the article, as well as Randy Barnett's comment on it, as the unofficial self-proclaimed world's leading expert on Lochner v. New York and related matters, I can't resist correcting one statement in Michael's article. Michael wrote:

"Activist Supreme Courts — the Marshall Court, the Lochner Court, and the Warren-Brennan Court — have typically enacted the agenda of identifiable political constituencies and, usually, of a political party. The politics have varied: The Lochner Court curtailed the Democratic party's program, while the Brennan Court promoted it. But the identification was close in each case, which gave the activism charges of those eras their plausibility."

In fact, it's very hard to correlate the Lochner Court with any particular political party. The two most Lochnerian Justices, David Brewer and Rufus Peckham, were Republicans, as were three of the 'Four Horsemen' who dominated the Court from 1923-1933. However, Justice Holmes, the Court's leading anti-Lochnerian, was also a Republican appointee, and arch-Lochnerian Justice James McReynolds, who is largely responsible for modern substantive due process jurisprudence due to his opinion in Meyer v. Nebraska, was appointed by Democrat Woodrow Wilson. Republican Herbert Hoover's appointments--Cardozo, Stone, and Roberts--were very deferential to regulatory legislation. All nine Justices, including Democrat Louis Brandeis, voted to overturn the centerpiece of the first New Deal, the National Industrial Recovery Act. More generally, it was not at all clear until the New Deal era which party was more generally sympathetic to laissez-faire. Each party had a progressive wing, and each party also had a limited government wing. In 1924, the candidates for both parties were from the respective limited government wings, while in '32, both candidates were from their parties' progressive wings. The influence of the pro-laissez faire "[Grover] Cleveland Democrats" did not finally wane until the 1930s.

So, while it's true that the Lochner Court impeded the Democratic New Deal through both its federalism jurisprudence and its economic liberty jurisprudence, it would be very difficult to attribute this to a Republican/Democrat split, and more plausible to attribute it to an ideological split that transcended the party system.

2003-06-08T21:15:00.000-07:00

My latest academic paper, "Lochner's Feminist Legacy," is available at SSRN. It's a lengthy review of Julie Novkov's book, Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and New Deal Years, and will appear soon in the Michigan Law Review.

2003-06-08T12:21:00.000-07:00

Home sale prices have risen tremendously over the last few years, supposedly in response to reduced interest rates that make monthly payments more affordable. If true, I wonder if this is economically rational. If interest rates go down, that is because expectations of inflation have gone down. So, while you pay a lower nominal interest rate, over the long term the real interest rate may be exacly the same. It gets worse. The mortgage interest deduction may make higher interest rates better for home buyers. Let's say the real interest rate is 4%. Inflation is expected to be 1%, so the nominal interest rate is 5%. A buyer is in the 33% bracket, state and federal. The nominal interest rate goes down from 5% to approximate 3.33%, leave a real interest rate of 2.33%. On the other hand, let's say inflation is expected to be 5%, the real interest rate is 4%, and the nominal interest rate is therefore 9%. The same buyer gets a 3% income tax break, leaving a 6% nominal rate, and a 1% real rate. Now, I recognize that it's not quite that simple, because higher inflation rates imply (1) more volatility an (2) more out of control gov't, both of which will likely lead to a somewhat higher real interest rate. But still, the simplified example shows that lower rates aren't clearly in the interest of homebuyers. It should also go without saying that if interest rates are low, and that means inflation expectations are low, this also means that less of a buyer's debt will be inflated away, and the buyer will also get lower raises in a higher-inflation environment (update: not to mention lower nominal increases in home values). I suppose in the short run you still do better with lower nominal interest rates, because it's less money immediately out of your pocket. But if you hold a loan for 30 years....

2003-06-07T16:21:00.000-07:00

It's obvious what the U.S. should do with Iraq's oil, isn't it? Pump lots of it, to destroy the OPEC cartel and bring oil prices down to market levels, with the side benefit of destabilizing Iran (it would destabilize Arabia do, which would be less likely to work out well than destabilizing Iran; on the other hand, without gobs of oil money, S.A. becomes just another Third World basket case, no threat to the U.S.)

2003-06-07T12:09:00.000-07:00

The Times has a piece today on the coming USSC confirmation war. Here's hoping that Bush confounds the opposition by appointing a libertarian-oriented conservative like Alex Kozinski, Morris Arnold, or Jerry Smith, who won't fit the stereotype of a social issues right-winger. It's long been forgotten, but a key to Clarence Thomas's confirmation was that the ACLU stayed neutral. The ACLUers (correctly) believed that Thomas would be more libertarian on at least some civil liberties issues that a Scalia or Rehnquist type.

2003-06-07T10:08:00.000-07:00

If Saddam didn't have weapons of mass destruction, why did he bother to obstruct the UN inspectors? Why not just give them free and unmitigated access to everything? The fact that this question does not seem to even occur to those so willing to believe that the whole WMD issue was just made up is troubling. I don't put it past the government to lie, and lie egregiously, but Saddam's obstinancy certainly suggests he had something to hide.

2003-06-06T07:37:00.000-07:00

This is lame: "The Justice Department has barred a group of employees from holding their annual gay pride event at the department's headquarters, the first time such an event has been blocked by any federal agency, gay rights leaders said today."

Justice justifies its action with some mumbo-jumbo about presidential declarations, but far more likely it's another example of Ashcroft attempting to turn Justice into a bastion of "traditional values". Ashcroft can refuse to attend the event. He can refuse to endorse it. He can even denounce it. But what appropriate purpose is served by preventing it from taking place, other than to kowtow to a fundamentalist constituency? If I were in charge of the Human Rights Campaign, I'd file a FOIA request demanding all documents relating to this decision, and, if I could show that the presidential declarations business was a mere pretext for a content-based refusal to allow the gay pride event, slap Ashcroft with a First Amendment expressive association lawsuit.

2003-06-06T05:44:00.000-07:00

Charles Krauthammer disputes the notion that anything resembling progress was made at the two summits in the Middle East this past week. We will soon get a chance to find out, because Arafat belittled the Aqaba summit, and Hamas has now rejected any talk of a ceasefire. Will other Arab states and Europe isolate Arafat and cut off his funding? Will Abbas go after Hamas? I wouldn't hold my breath.

2003-06-06T04:55:00.000-07:00

Jim Miller complains that the Pew study of international public opinion regarding the U.S. has been widely misrepresented, focusing on a decline in support for the U.S. since 2000, instead of on the favorable trend in such support since the end of the Iraq War. (Via Instapundit). Perhaps, but if that is misrepresentation, then Pew itself is guilty of misrepresentation. Check out the first paragraph of its press release, and note the emphasis on the negative aspects of the report:

"The speed of the war in Iraq and the prevailing belief that the Iraqi people are better off as a result have modestly improved the image of America. But in most countries, opinions of the U.S. are markedly lower than they were a year ago. The war has widened the rift between Americans and Western Europeans, further inflamed the Muslim world, softened support for the war on terrorism, and significantly weakened global public support for the pillars of the post-World War II era -- the U.N. and the North Atlantic alliance."

This sort of thing happens all the time; a study with ambiguous implications comes out, and the tone of coverage is dictated by the accompanying press release.

2003-06-05T21:06:00.000-07:00

One wonders why the Palestinians blame Israel, rather than Hamas, Islamic Jihad, and the Al Aska Brigade, for the checkpoints, roadblocks, etc. After all, before suicide bombs, tens of thousands of Palestinians worked in Israel. There were no checkpoints. No roadblocks. It's a joke when campus activists put up mock "checkpoints" and compare Israel to South Africa. Again, there were no checkpoints before there were suicide bombs. This can't be emphasized often enough, though judging by their performance on the talk shows, Israeli spokespeople haven't figured this out.

Along the same lines, just once when Hanan Ashrawi states on a debate show that the suicide bombings are caused by the "occupation," I would like to see the Israeli side point out that Barak offered to end the "occupation," and give the Palestinians first 90, then 97% of the relevant lands, plus land in the Negev to make up for the other 3%, and was met with consistent violence.

Finally, I'd like to see Israeli authorities point out that Israel didn't have much of an opportunity to help create a Palestianian state for the first two decades after the Six Day War because the only Palestinian organization worth talking to, the PLO, was officially and unofficially committed to Israel's destruction. Not exactly an organization you'd welcome as rulers of neighboring territy.

These are three points that should be repeated over and over, but simply are not. It makes one wonder if Israeli officials are required to do any media training.

2003-06-05T19:22:00.000-07:00

A couple hundred thousand Jews have moved to Germany from the former Soviet Union since free emigration commenced late in the Gorbacheve era. Another million have moved to Israel. Several hundred thousand more have come to the United States. I remember when I was a senior at Brandeis, one of the students active in the peace movement (last name Solomon, I think) took a propaganda tour to the Soviet Union. He was thoroughly taken in. He came back and wrote an article for the school paper stating that the Jews of the Soviet Union want to stay there, so long as there was no longer official anti-Semitism. Two years later, 400,000 fled to Israel within a few months when the doors were opened.

2003-06-05T15:43:00.000-07:00

Whoops!

Eugene over at the Volokh Conspiracy is bragging that new Conspirator Randy Barnett adds some Gentile diversity to the largely Jewish Conspiracy (hmm, bet I'll get some hits from nutty people doing Google searches for that one!) Except that Randy is actually Jewish. In fact, he's on this (scroll down) Internet list of prominent libertarian Jews (the list is missing Julian Simon, Thomas Szasz, and Ludwig Von Mises, of those I can think of offhand). I can't blame Eugene, Barnett is not a very Jewish-sounding name. On the other hand, Cato's David Boaz, who has a very Jewish-sounding name (a member of the Israeli cabinet, in fact, was named David Boaz a while back), is most definitely not Jewish. Anyway, if you thought all Jews were socialists or at least sympathetic to socialism, the list of libertarian Jews, including Von Mises, Milton Friedman, Ayn Rand, Frank Chodorov, Robert Nozick, Richard Epstein, and Murray Rothbard, shows that the anti-Socialist side would be much, much weaker without its Jewish component.

Of couse, none of this makes any difference to anti-Semites. Jews have been hated for being capitalists and for being socialists; for being atheists and for being religious; for being Jewish nationalists, native country nationalists, and internationalists; for being conservative and radical; and for all sorts of other contradictory things. Anti-Semitism, of course, is not a product of reason.

2003-06-05T14:53:00.000-07:00

Israel is becoming overlawyered. The US has about 1 million attorney for 290 or so million people, or one lawyer per 290 population. Israel, with a far less litigious legal system, has 30,000 attorneys for 6 million people, or one lawyer per 200, half of them admitted to the bar in the last five years. This doesn't bode well, as more lawyers inevitably leads to pressure for more law and more lawsuits.

2003-06-05T07:49:00.000-07:00

Roger Baldwin, founder and longtime leader of the American Civil Liberties Union, was for many years at best an apologist for Soviet crimes, and at worst an open sympathizer with Stalinism. Upon returning from a trip to the Stalinist Soviet Union in 1928, Baldwin criticized the "bourgeois mind" concerned with "individual liberties" instead of the economic freedom purportedly enjoyed by Soviet peasants, "a freedom vastly more real to the average worker than shadowy intellectual liberties." Roger N. Baldwin, Liberty Under the Soviets 24 (1928). In 1934, when millions of Soviet citizens were dying in government-engineered famines, Baldwin defended the Soviet dictatorship on the grounds that "the Soviet Union has already created liberties far greater than exist elsewhere in the world." Quoted in Cletus E. Daniel, The ACLU and the Wagner Act 82 (Cornell ILR Press 1980).

Soviet communism lost its luster among many American leftists, including Baldwin, when Stalin formed a pact with Hitler in 1939. The following year, the ACLU board of directors voted to expunge all communist influence from the organization, and for several decades thereafter, the ACLU was largely devoted to expanding the protection of freedom of speech from government. Nevertheless, Baldwin's reputation deserves to be tarnished by his flirtation with Stalinism, making him complicit with some of the great crimes of the century. Ironically, however, recent Baldwin and ACLU biographers have focused their criticism not on Baldwin's romance with communism, but on the ACLU's later determination to exclude communists from the organization. Would someone please explain to me why anyone would expect a civil liberties organization to allow members of a totalitarian movement to gain influence within it?

2003-06-05T07:26:00.000-07:00

The Cato Institute, which is publishing my forthcoming book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, just sent me a list of those who have agreed to write a blurb for the book. I don't know if publishing etiquette permits me to name them now and without the content of their blurbs, so I'll refrain. But it's a very high-profile, impressive and well-published group, from within and without academia. I'm tickled.

2003-06-03T22:08:00.000-07:00

I think it's outrageous that state and federal governments are cracking down on companies that help facilitate Americans' abilities to buy drugs from Canada. Drug prices are regulated by the government in Canada, and are cheaper there. But why should Americans pay more for drugs than Canadians, and in effect subsidize Canadian consumers? If the pharmaceutical industry thinks that Canada offers inadequate pricing drug companies should refuse to sell their drugs there. That would certainly stop Americans from importing drugs from Canada. What obviously needs to happen is that American drug prices need to come down a little, and Canadian (and Mexican, Australian, etc.) drug prices need to go up a lot. Americans aren't going to tolerate having their health care costs subsidize foreigners protected by their governments, and it's hard to think of why they should. If Americans are paying full price plus and in doing so are subsidizing world drug consumers, then Americans are patsies. If the pharmaceutical industry doesn't find a market-oriented way of resolving this, it is going to wind up with regulated prices in the U.S., and we will all be worse off as pharmaceutical research grounds to a halt. Perhaps a world treaty on drug prices, with the wealthy nations directly subsidizing the poor nations, is needed. Meanwhile, I know that if I needed an expensive drug not covered by insurance, I'd get it from Canada (I have already imported drugs from Australia and England that weren't yet approved here). I'd feel a little bad about getting the drugs at a below-market price, but, again, why should I be the sucker who pays full price when everyone else around the world is getting lower prices at my expense?

2003-06-03T12:04:00.000-07:00

Brandeis and Republicans update: Blogger Laura Gleason recently wrote here (scroll down to June 1) about the more recent travails of non-liberal students at Brandeis. An open-minded liberal, she wanted more conservatives on campus.
Update: This story suggests that Brandeis hadn't changed much fifteen years after I attended. The worst part about being an active non-liberal at Brandeis was not the crap you took from fellow students, but that the administration either stayed neutral when it should have helped you (under its own rules), or, worse yet, piled on. Just one example: An administrator threatened me with suspension for passing out literature inside an auditorium where a speech was soon to take place. When I got back to my dorm room, I read the relevant handbook and discovered that under university rules, I had the right to hand out literature anywhere and any time so long as I was not disrupting an ongoing event, which I surely had not been.

2003-06-03T06:05:00.000-07:00

Judeophobia in Britain:

Judeophobia in contemporary Britain is also not an
organized conspiracy. It does constitute,
however, an opportunistic coalition of interest
for the new left, the far right and radical
Islamists. It includes human rights campaigners
and activists, who, while perhaps more
well-meaning than others, in their singular
obsession contribute to Israel's demonization,
and by extension, to all Jews. Israel is now the
new cause celebre for the liberal left
intelligentsia, educated in the days of student
action, anti-Vietnam war protest, the
anti-apartheid movement, and the polarized
politics of the Cold War. Many of this 1968
generation now occupy senior positions in the
universities, media and established churches. For
them, Israel represents an outpost of what they
most abhor about liberal western democracy.

In retrospect, this new metamorphosis of
Judeophobia was predictable as soon as Jews
asserted themselves as equals in Western
societies or alternatively on the international
stage as a nation state. As the perceived - and
in most cases, loyal - supporters of the State of
Israel, Diaspora Jewish communities inevitably
have become the target of anger and hostility,
catalyzed by world events. Few would have
predicted, however, that in this toxic mix, it is
the progressives who appear so keen to put the
Jews back where they belong - in the ghetto.

The advantage of hindsight is that it makes even
the surprising look predictable. Thus it becomes
clear that the current animus is rooted in
Soviet-style anti-Zionist doctrine that provided
the ideological foundation for the British left.
It has a clear Marxist provenance which rejects
the notion of Jews a nation and sees them only as
a class. Their nationalism is therefore
illegitimate. In Stalin's "classless" Soviet
Union, any form of alternative religious
authenticity was likewise taboo. Its ultimate
goal is not biological, but cultural and
political.

Read the whole thing.

2003-06-02T19:42:00.000-07:00

Laci Peterson killed by Satanists!!! (Or maybe defense lawyers just have a bit of a problem with avoiding making claims that know are false)

2003-06-02T07:02:00.000-07:00

A couple of my colleagues object to my criticism of federal district judge and Fifth Circuit judicial nominee Pickering for soliciting endorsement letters from attorneys who will likely appear before him in the future. I noted that these attorneys will obviously feel pressured to provide the letters, raising issues of both coercion and at least the appearance of unfairness to attorneys who find themselves litigating before Judge Pickering in the future but who refused to provide the letters. The response I've received is that Judge Pickering's behavior is permitted by the rules of professional responsibility for judges, and that should be the standard. I rejoined:

There are all sorts of actions I could take with regard to students that the university handbook does not ban, but that I don't engage in because I think they would be unethical. It's an outrage that state judges who run for elections are permitted to take money from future litigants, and then are not required to recuse themselves when those litigants appear before them. But I can't blame an individual judge for doing so, because even if he doesn't, his opponent will. On the other hand, Judge Pickering, it seems to me, is not merely fighting fire with fire. I am not aware that there is anyone on the other side of the aisle who is behaving in an analogous fashion, i.e., putting attorneys in the position of publicly opposing Judge Pickering or potentially incurring the wrath of other Fifth Circuit judges. Pickering's choice to solicit the letters is an escalation and an unwelcome one, moving the federal appointments process closer to the abysmal ethical standards of state judicial elections.

2003-06-01T20:42:00.000-07:00

On the subject of intolerance of Republicans, my father e-mailed me a reminder of an incident that happened to him and my mother a couple of years ago. One of the members of the small Jewish congregation in the small Summer community where my parents were vacationing managed to persuade a bigshot in Jewish Republican circles to present a lecture to the congregation during the Friday night service. As my parents were sitting down to the Oneg (reception) after the service, a young couple sat down next to them. My parents, making small talk, remarked that the lecture was very interesting. The couple replied, "We don't see how any Jew could in good conscience be a Republican, or why such a person should be invited to speak here." My father responded, "we happen to be proud Jewish Republicans." At which point the other couple, without even excusing themselves, grabbed their plates, rose, and walked over to another table and sat down there.

2003-06-01T11:11:00.000-07:00

While on a short vacation, I read David Frum's How We Got Here: The 70's: The Decade That Brought You Modern Life--For Better or Worse. I highly recommend it, especially for those, like me, who grew up in the depressing 70s (energy crisis! Watergate! Fall of Vietnam! hostage crisis! gas lines! malaise! Jimmy Carter!) and were too young to understand what was going on, much less put it in perspective. The basic them of the book is that the big turning point in American cultural life--the sexual revolution, women's rights, the rise of Christian fundamentalism, distrust in government, lawsuit-happiness, public susceptibility to conspiracy theories and bogus public health scares, and more--were mainly products of the '70s. To a large extent, he makes a persuasive case. Moreover, the book is well-written, filled with interesting and appropriate quotes and anecdotes from the decade, and shows a great deal of knowledge of everything from pop culture to free market economics. The book is about 50 pages too long, and the hardback edition I read needed much better proofreading, but hopefully many of the errors and omissions were corrected in the paperback. Also, Frum has a somewhat inexplicable fondness for the Progressives. But those are minor quibbles regarding a book well worth reading.

2003-06-01T08:53:00.000-07:00

Instapundit, Eugene Volokh, and other bloggers have commented on this article discussing prejudice against Republicans. Among other anecdotes, the (Jewish) author recounts his experiences on a first date with a Jewish woman in New York. After the author revealed that he was one of the "Asshole Republicans" that his date scorned, the following conversation ensued:

Then she smiled, as she finally grasped the situation. "Oh, you're kidding, right?"
"No, I really am a Republican."
"What? Nobody told me."
I tried to blunt the blow. "I'm actually not terribly interested in politics." This is, in fact, true.
No matter.
"Well, look," she said as she pulled her purse out from under her seat. "I'm sorry but I can't deal with this. Please don't think me rude, but I really think it would be best if I just left."

This sort of thing happens to Republican, conservative, libertarian, and even moderate Jewish men all the time (Jewish men, for some reason, being far more likely to be non-liberal than Jewish women). And it reminds me of the story from my sophomore year of college at Brandeis University. In those days, I was much (much!) more active and interested in partisan politics, and was much more of a mainstream Republican. I was walking with my girlfriend (now a doctor in New Jersey) in the Usdan student center, when a campus radical Dan Weintraub spotted us holding hands. Completely ignoring my existence, and apparently incredulous that any woman would date a known Republican, Dan approached my girlfriend and asked her, "Are you David Bernstein's girlfriend?" A bit taken aback, she acknowledged that she was. Dan then asked in a conspiratorial tone: "Do you realize that he's a Republican?" My girlfriend, who was basically apolitical replied, "Yeah, so?" I stood by, both amazed at Dan's chutzpah, and appreciative that he was giving my girlfriend some indication of what I had to routinely put up with at Brandeis, where it was simply assumed that all decent, thoughtful people were to the left of Michael Dukakis.

In a sense, this and other Brandeis experiences are great advertisements for intellectual diversity at universities. As a mostly Jewishly-populated, liberal arts school in Massachusetts in the the pre-William Weld days it was literally true that many of my classmates had never met a Republican before, at least not one who would admit it. And their imaginations about what Republicans must be like ran wild. My class at Brandeis had the most active Republican group in the school's history; amazingly, until 1980, there had never been three students (all you needed) at Brandeis at one time interested enough to start a Republican club, and the 1980 club died out until the campaign of 1984. There was also a sprinkling of libertarians (who often joined the Republican club out of despair) and Objectivists. I'm sure being forced to confront non-left-wing ideas benefited those students who chose not to ignore them (some of th em even told me so). I know that I learned a lot by having my ideas challenged from the left.

2003-05-27T20:12:00.000-07:00

Blogging will resume June 3, 2003. Have a great week!
Update: Make that June 1.

2003-05-26T21:34:00.000-07:00

This story casts federal district judge and 5th Circuit nominee Charles Pickering, Sr. in a rather bad light. Badgering the Justice Dept. to reduce the charges against a man who burned a cross on the lawn of an interracial couple is questionable behavior for a judge (separation of powers concerns, ex parte communciations, etc.), but more so when part of the rationale is that local whites will resent too tough a sentence. The sentence would have been 7.5 years; harsh, yes, but federal sentencing in general is harsh, and the sentence does not seem especially disproportionate for threatening the lives of an interracial couple (which is what a cross-burning does).

Equally troubling, though in a different way, is this: "The Judiciary Committee has received letters from Mississippi lawyers endorsing Pickering that the judge has said he solicited directly, a practice that attracted criticism at his hearing. Pickering requested that the letters, including some from present or former litigants in his court, be faxed directly to his chambers." To solicit letters from past, present, and potentially future litigants before your court seems coercive on the one hand, and also will give rise to an appearance of impropriety on the other. Would you want to be represented by the attorney who declined to send a letter on Judge Pickering's behalf, when your opponent was represented by someone who did send such a letter?

Update: Some interesting commentary and more links about the Pickering story over at Silver Rights.

2003-05-26T18:26:00.000-07:00

From the Washington Post: "Royal Ahold NV, the Dutch company that owns several large U.S. retail food chains, said today that it had found $29 million in intentional accounting mistakes in its Tops Markets subsidiary."

This is an odd use of the word "mistake," a word that suggests lack of intent (or so I thought!).

2003-05-26T15:28:00.000-07:00

Traffic to the website for my last book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal is up quite a bit since I started this blog. I've received two emails this weekend informing me that the link on the book's webpage to Laissez Faire Books, which sells brand new copies of Only One Place of Redress for just under half price ($19.95), is broken. It seems as if LFB has started a new website, and the old links are no longer valid. The new links, meanwhile, aren't working well. So, if you are interested in buying the book, go to www.laissezfairebooks.com, and search for Only One Place of Redress. Also, as of this writing, someone is selling a used copy on Amazon for $19.95. I hope the broken link hasn't inconvenienced anyone.

2003-05-26T13:21:00.000-07:00

More Weaseling :

The French foreign minister, Dominique de Villepin, met today with Yasir Arafat, ignoring Israel's call to boycott the Palestinian leader, who despite Mr. Abbas's new post as Palestinian prime minister remains the head of the governing Palestinian Authority.

"Israel has to stop military operations, settlement activities, withdraw its forces and release prisoners," said Mr. de Villepin, who also held talks with Mr. Abbas. "It is important for the Palestinians to stop any kind of violence."

Note that de Villepin not only is underming U.S. policy vis a vis Arafat, but always speaks in terms of what Israel MUST do, and the Palestinians SHOULD do.

2003-05-23T18:45:00.000-07:00

The Times Magazine for this Sunday has a story about campus conservatives at Bucknell that states the following:

Just how influential is clear when you talk to Bucknell faculty members. Geoff Schneider, an economics professor at Bucknell, says that the conservative group's constant charge in The Counterweight, that the university is infected by political correctness and that professors seek to indoctrinate students with a liberal agenda, has had an effect in the classroom. ''As the conservatives have become more prominent, other students are more prone to believe that they are being indoctrinated,'' Schneider says. ''So the openness of a number of students to new ideas and new ways of looking at things has actually moved in a disturbing direction. Students are much more willing to write off something as 'liberal talk' -- oh, I don't need to think about that, that's just ideology -- as opposed to thinking, in a complex way, about all of the different ideas and evaluating them.'' Kim Daubman, a social psychology professor, concurs. Recently she taught a class in which she talked about the theory that news coverage of warfare in Iraq could lead to a rise in homicides in the United States. ''I could see the students rolling their eyes,'' she says. ''I could just hear them thinking, 'Oh, there she goes again!'''

You could read this charitably, and conclude that some students are being too dismissive of views they don't find congenial. Or you can read this uncharitably, and think that the two professors doth protest too much, that they are annoyed that students today regard what they say skeptically, instead of simply jotting it down and regurgitating it the way they may have done ten years ago.

It's always discomfiting when ideas that remained unchallenged for a long time suddenly no longer command deference. The Yale Law Class of 1991, which I was a member of, was the first in decades to have a substantial (about 10%, vocal and nonvocal, compared to about 3% in previous classes) contingent of conservatives and libertarians. I remember sitting in the dining hall with some other 1Ls and upperclassmen in Fall 1988 when one of the 3Ls made an off the cuff anti-Scalia remark. One of my classmates piped up to defend Scalia, at which point the 3L banged the table with his fist and exclaimed: "What's the matter with the first-years? You can't even make a Scalia joke around here anymore without someone objecting!" I don't mind the Scalia jokes, as such, but this student and his classmates would likely have had a better, more interesting, and more useful education if they had had to defend and debate their views with conservatives and libertarians for three years instead of one. Of course, one has to have some openness to debate and discussion. Some of my "liberal" Yale classmates dealt with their conservative and libertarian peers by refusing to talk to them, period.

2003-05-23T07:23:00.000-07:00

Anti-Semitism in Israel! Non-Jewish Russian immigrants (and, though the article doesn't mention it, perhaps some Jews, too; there have been KKK leaders later revealed to be of Jewish origin) who immigrated to Israel under the Law of Return (which means they have some Jewish ancestry, are closely related to Jews, or fraudulently claimed to be Jews) have brought their anti-Semitism with them, as described in Haaretz.

2003-05-23T06:05:00.000-07:00

More evidence that Governor Ehrlich has his head on straight, from the Washington Post:

Ehrlich crossed swords with politicians from liberals to Bush administration officials. On other issues, he won praise from the same groups, reinforcing his record as a lawmaker who is careful not to stray too far from the center.

"These are not easy issues, not easy bills," Ehrlich said of the measures he has signed and vetoed over the past two days. Taken together, he said, his decisions reflect an administration committed to bipartisan governance and "balanced with a unique dash of independence."

He was particularly firm in his support for the marijuana measure. It does not legalize the drug but provides that seriously ill people caught using marijuana for medical purposes cannot be jailed or be fined more than $100. The White House and some conservative supporters urged the governor to reject the bill, but Ehrlich cited his longtime support for the measure.

"If you look at my views over the years, there are clearly two wings of the party on social issues," he said. "One is more conservative, and one is more libertarian. I belong to the latter, and I always have."

2003-05-22T07:46:00.001-07:00

The real meaning of freedom of speech.

2003-05-21T21:56:00.000-07:00

Governor Ehrlich of Maryland has vetoed a bill pushed by schoolchildren to designate walking the state exercise, on the grounds the bill was "silly." Good for him! I've never been a fan of schemes to get schoolkids interested in the legislative process by having them lobby for some insipid piece of legislation. The adults who sponsor these campaigns essentially blackmail politicians into wasting time and money passing stupid laws and proclamations because, after all, who wants to be the big bad meanie who gets negative publicitly by telling the kids to buzz off. But I find that humoring the kiddies, besides wasting time and money, is actually patronizing, and teaches children nothing about how the legislative process really works. I learned about that pretty quickly as a child, when some of the older kids in my neighborhood got good (New York) City jobs for the Summer--but only after their parents gathered hundreds of signatures and did other menial work for the local politicians who controlled this particular bit of patronage. In retrospect, I also suspect that these jobs were supposed to be for underprivileged youth, none of which existed in my solidly middle to upper middle class neighborhood.