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Saturday, August 25, 2007
Nationwide Decline in Housing Prices Predicted for 2007:
N.Y. Times:
The median price of American homes is expected to fall this year for the first time since federal housing agencies began keeping statistics in 1950.
Economists say the decline, which could be foreshadowed in a widely followed government price index to be released this week, will probably be modest — from 1 percent to 2 percent — but could continue in 2008 and 2009. Rather than being limited to the once-booming Northeast and California, price declines are also occurring in cities like Chicago, Minneapolis and Houston, where the increases of the last decade were modest by comparison.
The reversal is particularly striking because many government officials and housing-industry executives had said that a nationwide decline would never happen, even though prices had fallen in some coastal areas as recently as the early 1990s.
As I noted over a year ago, the idea that a nationwide year over year decline in housing prices was virtually impossible, despite an unprecedented nationwide price bubble--driven by low interest rates and incredibly lax lending standards--was extremely ill-considered (okay, last time I called it "idiotic").
On the Deductibilityof Mortgage Interest:
Allowing individuals to deduct the interest they pay on their mortgages and home equity loans, no matter what, but not on regular loans, must rank up there with the worst public policy moves of all time. The rationale for allowing tax deductions of mortgage interest payments is to encourage home ownership, which is reasonably thought to have positive societal externalities. By contrast, allowing individuals to deduct their interest payments when they refinance for a much higher sum than their original purchase price, and to deduct home equity loan interest, actually encourages individuals to put their home at risk. As a recent housing shopper with sharp internet research skills, I was amazed at how many individuals who should have had their original mortgage completely paid off instead owed hundreds of thousands of dollars from either refinancing or home equity loans, often almost as much or more than the house was currently worth. Unfortunately, many people bought into the demonstrably false mantra (wasn't anyone paying attention in the late '80s and early '90s?) that "housing prices never go down," and just kept taking more equity out of their home every so often, usually for present consumption, on the theory that they could always refinance again if they ran into trouble repaying their loan.
The newspapers are now full of stories about families that are losing their homes after refinancing or taking out home equity loans. How much dumber can a social policy be than to encourage, through the tax code, individuals to risk title to their house so they can finance SUVs, cruises, and the like? If anything, home equity loans and cash-back refinancing should not be deductible and loans for cars, boats, and vacations should be. At least then, the government would be encouraging individuals to take loans that carry much less risk to themselves and their families; having your SUV repossessed is a far cry from losing your house to foreclosure.
The Duke Ellington Orchestra Plays "Mood Indigo":
A very good performance by a wonderful band, with a particularly strong Jimmy Hamilton Russell Procope clarinet solo. (Incidentally, I would date the performance from 1950-53 based on the introductory card stating that it is a " Snader Telescription.")
We Might Know Who You Voted For:
Via ACSBlog comes this disturbing story suggesting Ohio's e-voting machines may generate paper time-stamped paper trails that could enable election workers to determine who voted for which candidate.
Law of the Land:
Albany law professor Patricia Salkin has a new blog on zoning and land-use law, Law of the Land. Check it out.
Tenth Circuit Denies Rehearing in United States v. Andrus:
Back in April, I blogged about the Tenth Circuit's very interesting 2-1 decision in United States v. Andrus, a Fourth Amendment case involving third party consent to search a computer. My post, "Virtual Analogies, Physical Searches, and the Fourth Amendment," is here. Yesterday the Tenth Circuit denied rehearing in the case in an order you can view here. There were several votes for rehearing -- Judges Kelly, Lucero, McConnell and Holmes, in addition to Judge McKay on the original panel -- but not quite enough. The two judges in the original panel majority (Murphy and Gorsuch) did add a "note" in the order denying rehearing to clarify that the decision was intended to be very narrow: In denying rehearing, however, the panel majority notes that its opinion is limited to the narrow question of the apparent authority of a homeowner to consent to a search of a computer on premises in the specific factual setting presented, including the undisputed fact that the owner had access to the computer, paid for internet access, and had an e-mail address used to register on a website providing access to the files of interest to law enforcement.
Among the questions not presented in this matter, and for which there is no factual development in the record, are the extent of capability and activation of password protection or user profiles on home computers, the capability of EnCase software to detect the presence of password protection or a user profile, or the degree to which law enforcement confronts password protection or user profiles on home computers.
Beware of Ellipses:
I recently came across the following quote on the Internet, attributed to Ariel Sharon in 1988: "You don’t simply bundle people onto trucks and drive them away. I prefer to advocate a more positive policy... to create, in effect, a condition that in a positive way will induce people to leave." The quotation is used, consistently, to suggest that Israel is continuing Sharon's policy of encouraging Palestinians to leave the West Bank and Gaza through "positive" action, by which the quoters mean making the Palestinians' life so miserable that they will want to leave.
Courtesy of Lexis-Nexis, I was able to track down the original source, at article in the Times of London in August 1988. Here is what that sources states:
He [Sharon] said: 'You don't simply bundle people on to trucks and drive them away.' Rather, he added, 'I prefer to advocate a positive policy, like enhancing the levels of technical education in the (occupied) areas to create, in effect, a condition that in a positive way will induce people to leave."
Let's first note that there are two potential problems with this quote even in its original context. Sharon was undoubtedly speaking in Hebrew, and this is an English translation, which may or may not capture the nuances of what he said, and for that matter may or may not be accurate. Second, while the author makes it look like this is one continuous quotation, it's not clear that it is; the two sentences may have been spoken well apart, changing the meaning substantially.
But let's take the London Times story at face value. What Sharon is saying is that if we make life better for the Palestinians, by, for example, increasing their levels of technical education, they will be induced to seek better opportunities abroad, and will thus leave voluntarily. "Positive," then, was meant to connote action that helps the Palestinians while at the same time serving Israelis interests by encouraging Palestinians to seek greener pastures elsewhere. One may still very reasonably object to this sentiment, but it's a far cry from the truncated version peddled on anti-Israel websites, which intentionally leaves out Sharon's one example of "positive" action, enhancing technical education, and instead makes it seem like Sharon was promoting far a more ominous form of "positive" action. [Update: Note that in the original Hebrew, this would likely have been clear even without the example, because Sharon assumedly used a Hebrew word meaning something like "favorable" or "beneficial", without the ambiguity of the English word "positive."]
I've learned over the years not to trust quotations that contain an ellipsis. (Some websites get around this skepticism by eliminating the ellipsis, and pretending they are reprinting a direct quote from Sharon.) It's not that such quotations never accurately reflect the original; I use ellipses myself. Rather, it's that such quotations are too easily manipulated, and to the extent they are used to prove something profound, the reader must simply be skeptical until he gets his hands on the entire original quotation. (Some leading scholars have even been known to ellipsis-out a "not", changing the meaning of a quotation to its exact opposite).
The Sharon example provides a perfect case where one should be presumptively skeptical--websites are using a 20 year old quotation, with a controversial figure saying something that seems completely outrageous, to prove a political point.
UPDATE: BTW, some websites even use the Sharon quote to claim that Sharon favored forcible transfer of the Palestinian population, when in context it's clear that he was arguing against such policies.
Friday, August 24, 2007
Dating Across Ideological Lines:
A great many people believe that it is wrong to date anyone whose political views differ significantly from their own. James Kirchick challenges that view in this article (hat tip Amber Taylor, whose post led me to Kirchick's article by a circuitous route). Kirchick's piece focuses on the reluctance of many gay liberals to date gay conservatives and libertarians like himself. But the underlying issue goes beyond the gay community.
In general, I am sympathetic to Kirchick's view that much of the reluctance to date across ideological lines stems from unjustified intolerance. However, I also have some reservations. First, the reasons for agreement.
I. Why People Overestimate the Undesirability of Cross-Ideological Dating.
I suspect that the most important reason for excessive reluctance to date across ideological lines is overestimation of the extent to which people's political views dictate other aspects of their lives. Ideologies that claim that "the personal is political" (a left-wing slogan that has important analogues in parts of the "family values" right) exacerbate this tendency. In reality, most people's views on public policy have only a modest impact on the way they live their lives. For example, my libertarian views are vastly different from those of most liberal law professors. But the way I live my life when I'm not writing about ideological subjects is very similar to the way most of them live theirs.
An exception are those people who embrace ideologies that really do dictate the conduct of all aspects of their lives, such as members of certain cult groups, or communists in the days when belonging to the Party meant belonging to the sort of all-encompassing group depicted by Richard Wright in "I Tried to be a Communist." However, most people in the US today don't try to inject ideology into every aspect of their lives.
The second-biggest reason is probably the perception that certain political views are not just mistakes, but proof that the person who holds them has corrupt values. As I will argue below, this is occasionally true. But it's not true nearly as often as many believe. Partisans and ideologues routinely overestimate the extent to which political disagreements reflect differences in fundamental values rather than divergent evaluations of the best way to achieve the same or similar values. A very high proportion of the disagreements between conservatives, liberals, and libertarians in the US today fall into the latter category. There are some important exceptions, such as the conflict over abortion. But even these partly turn on divergent views of how to apply shared values to particular cases. For example, both sides in the abortion debate claim to value both life and freedom; they differ, however, over the threshold at which a person acquires a right to life sufficient to override another person's right to bodily autonomy. Moreover, at least some of the issues where adherents of the three major US ideologies really do diverge on basic values have arisen in part because the issues in question are genuinely hard (as the abortion issue surely is). If so, one can embrace the wrong values on that issue without necessarily being a moral cretin in general.
II. Defensible Limits of Political Tolerance in Dating.
At the same time, there are genuine reasons to avoid dating people with certain types of political views. Some views really are an indication of moral depravity. James Kirchick is willing to date liberals. But he probably would not date a racist or a Nazi - and for good reason. Similarly, I would not date a communist or an apologist for that system. Claims that "anyone who believes X must be evil/depraved/immoral" are made far more often than is justified. But that doesn't mean that they are never true.
There is also a more pragmatic case against cross-ideological dating. Even if you don't think that disagreement with your political views is a sign of immorality, strong disagreement can be a point of conflict in a relationship - especially if one or both partners are intolerant or don't like to have their views questioned. The problem is likely to be heightened if both people care intensely about their ideologies or if one of them is a committed activist.
Whether or not such pragmatic considerations are weighty enough to prevent a relationship will vary from case to case. However, it is important to recognize that they should in fact be judged on a case by case basis. If the potential date's views are not intrinsically evil (a category that should be defined narrowly), the mere fact of political disagreement should usually not be viewed as a categorical bar to dating, but merely as one factor to be weighed against others. For many people who are strongly interested in politics, discussing issues with someone who doesn't agree is actually sometimes more interesting and stimulating than just getting an echo chamber of your own views.
UPDATE: Commenters and others will inevitably wonder whether my views on this issue are the result of painful personal experiences of the kind described in Kirchick's article. I'm not going to discuss my personal life in detail here (very disappointing, I know...). But I will say that the answer to this question is "no." I have never been rejected by anyone I was seriously interested in because of ideological disagreement; nor have I have ever had a relationship that failed for that reason (though I have had cross-ideological relationships that fell apart for unrelated reasons).
Atlanta Councilmembers Propose Ban on Baggy Pants:
Councilmembers C.T. Martin, Ceasar C. Mitchell, H. Lamar Willis, and Ivory L. Young, Jr. are proposing a citywide ban on "[t]he indecent exposure of [one's] undergarments." The goal: stamping out "the dress fad of wearing low hanging/saggy pants which exposes ones underwear."
Such ordinances are bad for many reasons, but consider just one set, which I blogged out when a similar law was proposed in Dallas: How does one distinguish impermissible dress from the permissible? Much underwear, after all, is not easily distinguishable from many swimsuits.
Would the rule be that it's OK to wear a boxer or a brief or a swimsuit top if you're wearing it alone, OK if you're covering it up with pants or a shirt, but not OK if it's halfway in between? (What about a woman who's wearing a swimsuit top with a shirt thrown over it, but the shirt hanging open in front, so that the swimsuit top is visible?) Would the law distinguish by fabric, on the theory that swim trunks and bikini tops tend to be made of a different fabric than briefs, boxers, and bras? Where would sport bras fit?
The councilmembers react to all this by punting: They recognize that they can't ban all exposure of undergarments, but want to ban some exposure of undergarments, so they settle on banning "indecent" exposure. But that just means that individual judges, prosecutors, and perhaps jurors have to decide which displays are "indecent."
Perhaps the term "indecent" may be sensible in those areas in which there's something of a settled socially accepted meaning for it — "indecent exposure" of one's body parts might qualify, though even there the term is problematic, and well-drafted indecent exposure laws define the prohibited conduct in detail. But I know of no such accepted meaning for "indecent exposure of ... undergarments."
Is showing the top inch of a pair of boxers "indecent" (setting aside whether it's ugly or associated with what one sees as a bad attitude)? What about letting a bra strap occasionally peek out from a string top? Does a white tanktop of the sort often worn by men in cold climates under a shirt count as an "undergarment[]" — and, if so, does wearing just such a tanktop (and pants, of course) qualify as "indecent"?
I accept that the government may sometimes ban certain kinds of offensive public behavior, simply because it's offensive in particular ways. I'd keep the zone quite narrow, but I do think that public nudity can properly be banned; even many of those who disagree with me on that would, I take it, allow bans on public sex. I also accept that some laws will inevitably be relatively vague; consider laws punishing criminally negligent homicide, for instance. But such vagueness is a weakness of laws, not their strength; it should only be accepted when it's necessary to do something really important. Banning "indecent exposure of ... undergarments" doesn't qualify.
Clayton Cramer, who is more upset by the underlying practice than I am, nonetheless shares my view about the weaknesses of trying to ban the practice. Thanks to Nolan Reichl for the pointer to the story.
Not Everyone Has A Sense of Humor At Nixon Peabody:
Despite having the phrase "Everyone's a winner at Nixon Peabody!" stuck in my head all day today — seriously, it's like a CD track on permanent repeat — I'm still kinda disappointed to learn that the firm pulled the song from YouTube. I thought they work to keep it fun, they work to keep it cool — you know, that's how the whole team spirit thrives. Oh well. UPDATE: Jonathan Last comments, "it's like a bad '70s used car jingle done by Earth Wind & Fire." I disagree: this is pure Pointer Sisters.
Words and Dictionaries:
Well, it turns out that some people aren't joking in endorsing this suggestion:
Instead of creating a new word to represent someone who is receiving guidance under a mentor as a 'mentee', couldn't someone (not certain of who is responsible for adding/changing definitions to the official dictionaries) simply add an additional definition to the word protege to allow for further meaning?
Recall the context: On the "mentee" thread, some commenters suggested that "protege" was an adequate substitute for "mentee." Others pointed out that "protege" tends to have a different meaning (a protege gets patronage and support, while mentees tend to just get advice). Then came the above quote.
Wow. So here we have a word ("mentee") that has been around for several decades, that is common enough to be listed in several leading dictionaries, and that is easily understandable (especially in context), both because it's not uncommon and because it fits a common pattern of English word formation. Now I'm not saying comprehensibility is enough; "udnerstadnable" is probably understandable, too, but I'm not advising you to use it. But surely comprehensibility is pretty important.
But some people disapprove of "mentee," whether because it's a back formation that doesn't correspond to an actual verb "to ment," or because they just think it's ugly. So instead, the suggestion is to add a definition to the dictionary.
What exactly do people think will happen when this definition is added? Will it, like domain name registry entries, get automatically propagated over the following 48 hours through the minds of English speakers? Will there be public service announcements on TV telling people, "Please remember that starting 2 am Sunday, the word 'protege' will also mean someone who gets merely advice and not patronage or support"?
No: The same people who today hear "protege" and think not just someone who is being mentored, but rather someone who is being politically backed, will keep on thinking this. Perhaps over time, some of them will look up the word in the dictionary, learn the new definition, and slowly spread the definition to listeners (in contexts in which the listeners will recognize the new definition, rather than just being confused). Perhaps, and only over many years. In the meantime, the extra definition in the dictionary will in no way affect what the word actually communicates to listeners. The new meaning will not be properly comprehended.
On top of that, imagine what would happen even if the suggestion worked: We'd take a word that usually has a moderately crisp definition ("a person under the patronage, protection, or care of someone interested in his or her career or welfare"), and add to it another, materially different definition (a person who is simply receiving advice) -- thus making the word ambiguous (or at least more ambiguous). Now sometimes words do acquire new meanings that make them ambiguous, and often there's not much to be done about that. But do we really want to deliberately create extra ambiguity? Is an ambiguous "protege" really better than an unambiguous "protege" plus an unambiguous (even if ugly-sounding to some, or etymologically impure to some) "mentee," to the point that we should deliberately choose making "protege" ambiguous?
Third, and this returns in some measure to the comprehensibility point, authors of dictionary have a certain professional responsibility to readers. They should inform the readers of what a word in fact means when English speakers generally use it. They could, if they want to, inform the readers of what meanings are socially condemned, or even what meanings the dictionary authors think are in some sense "the best." But can it be right for them just to add a meaning that English speakers don't generally use, simply on the theory that English would somehow be a more elegant language if English speakers did use such a meaning?
I think that if we read a dictionary and learned a definition that, it turned out, was just the authors' own pet project rather than an actual current meaning of the word, we'd rightly feel duped. The dictionary would have made us less likely to communicate effectively rather than more.
Finally, I think all this illustrates a broader point about words and dictionaries. Dictionaries are not the language; they are useful snapshots of the language. Prescriptivists might argue that dictionaries should condemn certain aspects of the language. And indeed dictionaries do in some measure mold the language. But no-one, prescriptivist or descriptivist, should assume that the language will change just because a definition is added to the dictionary, and no-one should accept a dictionary that simply invents new definitions that the authors think might be useful. Drawing a new street on a map won't actually change the city. Adding a new definition to the dictionary won't actually change the language.
The 82-Minute Sentence:
The Associated Press reports: Nicole Richie was released from jail Thursday after serving 82 minutes of a four-day sentence for driving under the influence of drugs.
The reality show star, who checked into a women's jail at 3:15 p.m., was released at 4:37 p.m. "based on her sentence and federal guidelines," Los Angeles County Sheriff's Deputy Maribel Rizo said without elaborating.
Under a federal court mandate to manage jail overcrowding, arrestees sentenced to 30 days or less for a nonviolent offense are usually released within 12 hours, the sheriff's department said in a statement.
Under the guidelines, Richie was "treated in the same manner as other inmates with a similar sentence," the statement said . . .
Richie arrived at jail with her attorney Shawn Chapman Holley and her boyfriend, Good Charlotte singer Joel Madden. Her time at the Century Regional Detention Facility was spent getting booked, including taking a mugshot and submitting her fingerprints, Holley said.
She didn't reach her jail cell. My criminal law class today covered utilitarian rationales for punishment, including deterrence, rehabilitation, and incapacitation. Your assignment: Discuss.
Simple Advice for People Who Want To Get Into Law Teaching:
Before "going on the market" -- preferably a year or two before -- call your old law school. Sometimes the school will have a faculty member appointed to help people like you. Even if it doesn't, the dean's office will often be glad to get you in touch with someone who can give you some advice.
It doesn't matter that you never stayed in touch with your old faculty members. You don't need personal contacts for this (though those never hurt): Many law schools see helping alumni get into law teaching as being part of their duties, and as being in their own interests, and will help you even if no-one at the school remembers who you are.
What can the advice do? It can help you avoid going on the market too early. It can give you a more realistic sense of your chances, so you won't be too dispirited. It can help you format your resume more effectively. It can help you know what stage your new project should be in before you give it as a job talk. And once you reconnect with the school, you can get more than just advice: For instance, the school might arrange practice job talks, so that your real job talks are more effective.
I've seen quite a few people who went on the market far too early, or presented their resumes the wrong way, or made other mistakes that they might have avoided if they had some guidance. So call up the people who are most likely to be able to guide you. At worst, you'll just waste a little time -- at best, you can get some valuable help.
Business Torts:
A question for those readers who took a second-/third-year law school class on business torts -- torts like interference with business relations, misrepresentation, bad faith breach of contract, and the like: Have you found this class useful in your practice?
Implications of Variation in Presidential Performance for the Debate Over Executive Power in Times of Crisis:
An important aspect of executive power in times of crisis is the large variation in presidential performance between different administrations. As I explained in my last post on this subject, the top echelon of the executive branch is usually controlled by just a small group of people - the president himself and a few trusted advisers. In addition to the points I made in that post, this reality has one more crucial implication: we can expect much greater variation in the quality of presidential performance than in that of other branches of government, especially Congress.
Basic statistical theory shows that, holding other variables constant, small samples are likely to vary more than large ones drawn from the same underlying distribution (group of people or things). Just by random chance, the former are likely to deviate far more from the mean and the median. For a technical explanation, see this discussion of the law of large numbers. In this case, the underlying distribution is, roughly speaking, prominent American politicians, and presidents are the small sample group, while members of Congress and justices of the Supreme Court are relatively larger samples (in the case of Congress, with its 535 members, much larger).
The downside of this is that it makes it far more likely that a given administration will display extremely poor performance than a given Congress. In the last 40 years alone, I would suggest that we have had at least three administrations with extremely poor performance due to incompetence at the top (Jimmy Carter, George W. Bush) or venality (Richard Nixon). Those who differ from me on the ideological spectrum will probably disagree with me on some of these cases. But few are likely to have a list of extremely poor presidents that is much shorter than mine.
The unusually high variation of presidential performance suggests that even if Eric Posner and Adrian Vermeule are right (as I believe they are) to argue that the executive is on average more competent to manage crises than Congress and the Supreme Court, it does not necessarily follow that the other branches of government should give broad deference to executive decisions. We also have to take into account the damage caused by those cases where executive decisionmaking is far worse than that of the other branches due to the fact that the administration in power is unusually incompetent, unusually venal, or both.
To be sure, the high variation in presidential performance suggests that we are also more likely to have an extraordinarily good president than an equally wonderful Congress or Supreme Court. As against Carter and George W. Bush, we can set George Washington, Abraham Lincoln, and a few others who managed crises extremely well. Ultimately, this aspect of the executive power debate comes down to a question of whether we have more to fear from extremely bad executives than hope from extremely good ones. As a libertarian, I definitely come down on the side of fear rather than hope when it comes to government power. In my judgment, a very bad president can do far more harm in a crisis than a very good president can do on the other side of the scale.
Moreover, even in a nondeferential system, an unusually competent executive will generally be able to build up sufficient political capital that Congress and the Supreme Court will be reluctant to challenge him too much in a crisis even if they retain the authority to do so. Thus, an unusually competent executive should be able to manage crises relatively well even if the other two branches retain considerable power to constrain him. On the other hand, such countervailing power can play a valuable role in limiting the damage done by an unusually bad president.
Please Tell Me You're Joking:
On the "mentee" thread, some commenters suggested that "protege" was an adequate substitute for "mentee." Others pointed out that "protege" tends to have a different meaning (a protege gets patronage and support, while mentees tend to just get advice). But one wrote:
Instead of creating a new word to represent someone who is receiving guidance under a mentor as a 'mentee', couldn't someone (not certain of who is responsible for adding/changing definitions to the official dictionaries) simply add an additional definition to the word protege to allow for further meaning?
I so much hope that this is just a very subtle parody of prescriptivism, rather than a serious suggestion.
Show Off Your Inner Geek With A Volokh Conspiracy T-Shirt:
I'm happy to announce the introduction of Volokh Conspiracy merchandise — t-shirts, a mug, even a tote bag. You can visit the VC's mechandise store here. Here's the website's computer-generated picture of what a Volokh Conspiracy t-shirt looks like: 
I purchased a t-shirt last week, and the green color is a tiny bit lighter than it appears in the picture. But the picture is otherwise pretty accurate. Some legal disclaimers while I'm at it. Although the products say "The Volokh Conspiracy," they are really being purchased through Cafe Press. We designed the item and we're letting CafePress sell them, but we're not involved in printing up the products and we're not making a dime off of the sales, either. Cafe Press makes the product when you place an order, and we don't see it and can't guarantee it will come out the way you like it. I can tell you that the shirt I ordered last week looks decent, but I haven't seen what the other shirts or the tote bag or mug look like. Family members of Volokh Conspirators are ineligible to win. Void where prohibited.
Thursday, August 23, 2007
Law Firms, the Blogosphere, and Unexpected Attention:
So imagine you're a partner at a large law firm, and a high-profile blogger gets a copy of an incredibly cheesy song your marketing department put together to celebrate the firm at an internal law firm event. The blogger posts a copy of the song on YouTube and it becomes a hit immediately, drawing 10,000 listens in 12 hours. How should you respond? Should you: (a) assert your legal rights and demand that the copies of the song be taken down, or, (b) laugh along with it and bask in the fact that thousands of lawyers and law students can't get the phrase "everyone's a winner at [your firm]" out of their minds?
The Ben Gamla School:
While the new Arabic language school in Brooklyn has attracted national headlines and controversy, far less has been written about a new English-Hebrew language public charter school in South Florida. The school's principal is a rabbi, the food in the cafeteria is kosher, and there are allegations that the school is intended to be a Jewish day school in disguise, violating the First Amendment's ban on government endorsement of religion. If successful, with tuition at Jewish day schools generally exceeding $10,0000 in the U.S., this model could easily spread nationwide in non-Orthodox communities (the Orthodox would generally want much more explicit religious education). In places such as South Africa, Australia, and Quebec, where the government funds state schools that primarily serve Jewish students, a high percentage of Jewish students (I once read 80% in Australia) attend such schools. The American Jewish community is more assimiliated, and more committed to the ideal of "neutral" public schools, that the Jews of those countries, but nevertheless the Ben Gamla model would have great appeal to many here, especially, I'd guess, former Israelis and Russians.
UPDATE: The New York Times has a story today on the school. Interestingly, 37% of parents at the school name Hebrew as their first language, and 17% name Spanish. One problem the school seems to have is to find materials that teach Hebrew that have no religious references--such materials are usually either from Israel, where public schools teach religion, or from the U.S., where they are geared to either day schools or synagogue programs. But Hebrew has been offered as an elective in New York City public schools, and I assume elsewhere, so I doubt this problem is insurmountable. Also interesting is that the school was well oversubscribed.
Systematic Shortcomings of Broad Executive Power in Times of Crisis:
In this post, I take to heart Eric Posner's admonition that the scope of executive power in wartime should be determined by the relative strengths and weaknesses of the presidency as an institution rather than by our evaluation of any one president. He is absolutely right that "the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term." He is also right to emphasize that, although there have been many "mediocre" (or worse) presidents, this fact is balanced by the reality that there have also been many mediocre Supreme Court justices and members of Congress. Incompetence and mediocrity is rarely in short supply in any branch of government. I even agree with Posner's claim that the Bush administration has trampled on civil liberties far less than previous wartime administration's, such as Lincoln's, FDR's, and Lyndon Johnson's (a view also endorsed by prominent liberal civil liberties scholar Geoffrey Stone).
Nonetheless, Posner and coauthor Adrian Vermeule are wrong to draw from all this the conclusion that:
The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don’t see how any other factor would play a role.
It is true that the executive can act more quickly, decisively, and secretly than Congress or the courts. It is not true that this is the only factor that matters, even in an emergency. The comparative executive advantages stressed by Posner and Vermeule are balanced by several comparative shortcomings. Relative to Congress and the courts, the executive is more likely to fall prey to irrational small-group decisionmaking, more likely to excessively restrict civil liberties, and more likely to fall prey to a short time horizon. Let's unpack these three flaws.
I. Irrational Small-Group Decisionmaking.
A great deal of social science literature shows that, other things equal - small, like-minded groups are more likely to fall prey to error than larger groups with more diverse perspectives. For a good summary of the evidence, see this book by Cass Sunstein. Relative to Congress, the executive is far more likely to fall into the hands of a small group of like-minded individuals. In most administrations, the key decisionmakers are the president himself and a small group of advisers most of whom tend to be adherents of the same party and ideology as he is. It is easy for such a group to fall prey to ideological "groupthink" or simply to persuade themselves that whatever is in their immediate political self-interest is also good for the country.
By contrast, Congress is a much larger and more ideologically diverse body than the executive. Even the members of the president's own party in Congress are likely to be a more diverse group than the top echelon of executive branch advisers. While there are undoubtedly some deluded ideologues in Congress, it is far more difficult for a small group of such people to seize control of the institution than it is for the same thing to happen with the presidency.
Even the Supreme Court, with only nine members, is less prone to this pathology than the executive. Because Supreme Court justices are appointed by different administrations and confirmed by different Senates over a long period of time, the composition of the Supreme Court at any given point in time is likely to be more diverse than that of the executive branch.
II. Incentives to Overrestrict Civil Liberties.
If the nation is hit by a terrorist attack or suffers a military defeat, the executive is far more likely to be blamed for not doing enough to prevent it than Congress or the Supreme Court. Most voters tend to assign the lion's share of responsibility for such setbacks to the president rather than to other branches of government. In principle, the executive is also likely to be blamed for excessive violations of civil liberties. However, in times of crisis, historical evidence strongly suggests that the average voter will care far about security against attack than about even quite flagrant civil liberties violations.
As a result, a politically rational president faced with possible tradeoffs between security liberty is likely to err in favor of former. It may well be politically rational for the president to sacrifice civil liberties for the sake of possible increases in security even in cases where the cost is very high and the benefits very small. This problem is not confined to the Bush administration. Indeed, as I noted in my last post, it was far worse under many previous wartime administrations. The most notorious example is FDR's order to intern the Japanese-Americans during World War II despite the near-total absence of evidence that they posed any real threat.
Congress and the courts are not immune to this pathology. But precisely because they are less likely to be blamed for any security setbacks, they have a comparative advantage in protecting civil liberties. I do not suggest that security should always be sacrificed for the sake of civil liberties. However, it is important that Congress and the courts serve as at least a partial check on presidential excesses in this field.
III. Short Time Horizons.
Presidents are subject to election every four years, and under the Twenty-Second Amemdment, cannot serve more than eight years. By contrast, Supreme Court justices serve for life (an average tenure of 26 years), and many congressional leaders also serve for many years. So to do many rank and file senators and congressmen. Even congressmen, who are up for reelection every two years, are rarely genuinely at risk of defeat this often, because most represent "safe" districts.
For this reason, presidents have much stronger incentives than either Congress or Supreme Court justices to sacrifice the longterm to short-run political expediency. This problem is particularly important during times of war or emergency, when opportunities to score short-term political points at the expense of the long run abound. The tendency to overrestrict civil liberties for the sake of minor or even nonexistent security gains is just one of many such temptations. As a partial (though by no means complete) solution to this problem, it is important that institutions with a relatively more longterm orientation serve as a check on those with a shorter time horizon.
How Much Deference Should the President Get in Times of Crisis?
Opinio Juris has an interesting series of posts on Eric Posner and Adrian Vermeule's recent book Terror in the Balance, which makes a powerful case for the claim that Congress and the Courts should largely defer to presidential decisions in times of war and emergency. Posner and Vermeule argue that the president should get such deference because, on average, the executive has greater competence in making national security decisions than either Congress or the judiciary, and of course also has greater ability to act quickly and decisively. They also contend that, even when the executive goes wrong, there is - on average - little reason to expect that judges' or legislators' efforts to improve matters will make things better rather than worse.
In this post, Posner makes the important point that decisions about the balance of power between the branches of government cannot be based on our evaluation of the performance of any one president (such as George W. Bush), but must instead be based on a broader evaluation of the strengths and weaknesses of the presidency as an institution.
Posner and Vermeule have made what is perhaps the strongest case so far for very broad executive power in wartime. Nonetheless, I have serious reservations about their argument, which I will develop in a followup post.
Federal Gents:
From the Westlaw summary of U.S. v. Alverez-Tejeda, 491 F.3d 1013 (9th Cir. 2007):
Holdings: ... (1) incident staged by federal gents was justified ...
I suspect they mean "federal agents," but I like "federal gents" better.
Jactitation:
Commenter Mike BUSL07 reminds me of a fabulous legal term -- "jactitation of marriage," "a cause of action which arises when a person falsely alleges that he or she is married to the petitioner," R.H. Graveson, Conflict of Laws 349 (7th ed. 1974) (quoted in Black's Law Dictionary). Few people these days engage in such misbehavior. The most recent extensive discussion I found of this in an American case comes from Sell v. Sell, 58 Mont. 329 (1920) (paragraph breaks added):
It is urged by counsel for respondent that the allegation of nonmarriage as a ground for affirmative relief is warranted by the course of procedure at common law and is in the nature of a cross-bill setting forth the grounds of complaint in an action for jactitation of marriage.
Anciently, at common law, where one person, not being married to another, pretended that a marriage existed between them and proclaimed it to others, the person against whom the claim was made, upon due proof, was entitled to a decree enjoining the offender from the false boasting. Cases of that character arose occasionally in England, but they were peculiarly within the cognizance of the ecclesiastical courts. (Blackstone, 93). The action, however, fell into disrepute in 1776, when the House of Lords in the Duchess of Kingstone's Case (20 How. St. Tr. 543) decided that the final decree was not conclusive of the fact of nonmarriage.
In this jurisdiction the power to decree a divorce is purely statutory. (Rumping v. Rumping, 36 Mont. 39, 12 Ann. Cas. 1090, 12 L. R. A. (n. s.) 1197, 91 P. 1057.) Ample provision is apparently made by our Codes for the protection of the marital relation, and the significant fact that an action is authorized to establish marriage whenever either party to it denies the existence of the relationship (sec. 3634, Rev. Codes), tends to negative the existence of the right which is now sought to be asserted.
We think it can be said in all fairness that the right of action for jactitation of marriage has never been recognized as warranted by the common law as it was introduced in and adopted by this country.
Jactitation of screwing around, on the other hand, sounds like a cause of action with a future.
American Constitution Society's Student Article Topic Database:
ACS just set it up, and already has 76 topics.
This is an excellent idea; I hope that people continue contributing topics, and that students use the topics. I tried something similar several years ago, and found it quite hard to get good submissions. But I wish ACS all the best with this, and commend them on trying (and, with the first batch of submissions, succeeding).
So please submit topics if you have some to recommend, and search or browse for topics if you're looking for something to write about. Naturally, the topics will largely end up being focused largely on those matters that interest ACS's largely liberal constituency, but that strikes me as perfectly fine.
Alienation of Affections:
For a modern — April 19, 2007 — decision involving this tort, see Fitch v. Valentine.
Mississippi is apparently one of six states that continues to recognize this tort, a tort that generally covers behavior through which a spouse "is wrongfully deprived of [his or her] rights to the 'services and companionship and consortium [of the other spouse].'" In many cases, including this one, the wrongful conduct is an outsider's sexual affair with one of the spouses. In principle, though, other behavior — including persuading a person to divorce the spouse, even without having sex with the person — could be covered as well.
How New Words Often Come About:
The commenter who disparaged the term "mentee" wrote,
While I will reluctantly overlook the use of "Mentor" as a verb (that battle is lost), I refuse to acknowledge the existence of the verb "to ment" that "mentee" necessarily implies.
As it happens, it's true that "mentor" comes not from a verb "to ment," but rather -- according to the OED -- from "the name of a character in F. de S. de la Mothe-Fénelon's Les Aventures de Télémaque (1699), after ancient Greek [Mentor], the name of a character in the Odyssey, in whose likeness Athena appears to Telemachus and acts as his guide and adviser."
But so what? "Workaholic" doesn't come from a longstanding suffix "-aholic" meaning "addicted to"; it comes from the last syllable of "alcohol." Likewise with "telethon," which I take it stems indirectly from the place name "Marathon." We can all come up with more examples (consider the various "-gate" scandals).
True, these words tend to have a mildly humorous feel, at least at first; so does, in my view, "mentee." But accepting them hardly "necessarily implies" any particular etymology. It just necessarily implies a recognition that English words come about in lots of different ways, and that stems are often borrowed from one word into another in ways that do not fit well with the source words' own origins.
"Is Not a Word":
This comment on the recent thread on misspelled phrases reminds me of one of my pet peeves: I find "mentee" so offensive that I disparage its usage at every opportunity. While I will reluctantly overlook the use of "Mentor" as a verb (that battle is lost), I refuse to acknowledge the existence of the verb "to ment" that "mentee" necessarily implies. Resumes containing this word require no further review. I recently returned a fundraising letter in its business reply envelope with the word circled and the written comment, "This is not a word." I reserve such vitriol and summary dismissal for this error alone. This is because it is what might be called a Homeric error. And I don't mean Homer Simpson. Please warn your students against this fatally discrediting usage.
Here's one thing I find so offensive that I disparage its usage at every opportunity: The use of a phrase "is not a word" -- which you'd think would have the standard meaning of, well, "is not a word" -- to mean "should not be a word" or "is a word that annoys me." English speakers use "mentee," and use it often enough that it's gotten into the OED (attested for over 40 years), as well as the Random House Dictionary and the American Heritage Dictionary. It is, which is to say "is," a word, which is to say "a unit of language, consisting of one or more spoken sounds or their written representation, that functions as a principal carrier of meaning" -- with the function and the meaning attested by the authorities in the field (dictionaries).
I have nothing against complaints that some word or phrase is inelegant or confusing, or admonitions to students that using some word or phrase will lead some readers to think the less of them. The earlier thread was all about collecting data for such admonitions.
But those complaints should, I think, be put that way. They should not be made by claiming that something is not a word when it is a word under any sensible and common definition of the term "word."
(Note that there may be an exception when the claim is clearly hyperbole, but here this exception doesn't apply: A reader may well assume that "mentee" is actually an uncommon error, rather than a usage that is common enough that it has been recognized by lexicographers as a normal part of the English language.)
"The Right to Romance":
Do Faculty Have a Constitutional Right to Sleep With Their Students? Heh.
The ESA vs. Private Conservation:
For decades land rights activists have complained that Section 9 of the Endangered Species Act punishes private conservation. Under the Act, the reward for maintaining or creating endangered species habitat is the imposition of federal land-use controls. Specifically, landowners are prohibited from modifying such land without permission from the U.S. Fish & Wildlife Service. Commented one state wildlife official in 1993, “The incentives are wrong here. If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears.” This perverse incentive discouraged landowners from maintaining habitat. At the extreme, it induced landowners and resources users to “shoot, shovel, and shut up.”
While such claims were common, the only direct evidence that landowners responded to such incentives was anecdotal. There was no doubt that some landowners took preemptive action to destroy or degrade potential habitat before it could become subject to federal regulation – as happened in Boiling Springs Lakes, North Carolina – but there was little evidence documenting the extent of such responses to the Act’s restrictions. Defenders of the ESA could argue, with some justification, that the occasional horror did not demonstrate that there was anything fundamentally wrong with the Act.
In recent years, however, more substantial empirical evidence has started to roll in, confirming that the ESA’s perverse incentives encourage the destruction and degradation of species habitat on private land. As I detail in “Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land-Use Controls,” there are now four empirical studies examining the effect of the ESA on landowner willingness to maintain habitat. All four of these studies find the predicted effect. Taken together, these studies provide powerful evidence that the ESA may be endangering endangered species on private land. Interestingly enough, only one of these studies has received any meaningful attention in the environmental law literature to date. (I searched Westlaw for all four this morning.)
Two of the four studies look at the ESA’s effect on private timber management practices and habitat for the endangered red-cockaded woodpecker (RCW). The two studies utilize slightly different methodologies, but both found that landowners have responded to the risk of ESA regulation by altering timber management practices so as to make private timberland less hospitable for RCWs. Specifically, landowners increase the rate of cutting, and decrease the age at which timber is harvested, so as to avoid land-use restrictions. This matters for the RCW. Cutting timber stands prematurely deprives RCWs of habitat because the woodpeckers rely upon older trees for nesting cavities. Cutting trees prematurely is perfectly legal. But over time it will result in a significant reduction of RCW habitat.
A third study examined landowner responses to the listing of the Preble’s Meadow jumping mouse. This study, a survey or private landowners, found that a significant number of landowners took actions to make their lands less hospitable to the mouse after it was listed as an endangered species. It also found that landowners became significantly less likely to grant wildlife biologists access to their land for research purposes. This is important because accurate data on species populations and their habitat is essential to successful conservation efforts.
A fourth study looked at preemptive habitat destruction near Tucson, Arizona. Consistent with the other studies, this study found that the threat of regulation of habitat for the Cactus Ferruginous pygmy owl accelerates the rate at which privately owned species habitat is developed. These findings are reinforced by additional data showing that the value of undeveloped land designated as critical habitat fell relative to other lands in the study area. Although as a strict legal matter, critical habitat designation is not necessary for land to be burdened by the ESA’s regulatory strictures, it provides a signal to landowners about the likelihood of future regulatory restraints.
These studies, taken together, provide powerful evidence that the ESA is discouraging species conservation on private land. They help explain why the ESA has been particularly ineffective at conserving endangered species on private land. Only a handful of species have been “recovered” since the ESA was enacted in 1973, and none of the recoveries – not one – is attributable to the enforcement of Section 9 on private land. Since most endangered species rely upon private land for some or all of their habitat, this is a particularly egregious failing of the Act. The purpose of the ESA is to conserve endangered and threatened species. Instead it appears that the Act may be endangering them. Related Posts (on one page): - The ESA vs. Private Conservation:
- Compensate for Conservation's Sake:
Bush Administration Backs Mountaintop Removal:
As has been expected, the Bush Administration is proposing to make it easier for mining companies to engage in so-called mountaintop mining aka mountaintop removal. This mining method involves blowing the tops off of mountains so as to expose coal deposits, and depositing the resulting rubble in adjacent valleys and streams. On Friday, the official day for most Bush Administration environmental announcements, the Office of Surface Mining will publish proposed regulations explicitly allowing for the practice subject to certain conditions, according to the New York Times. "The new rule would allow the practice to continue and expand, providing only that mine operators minimize the debris and cause the least environmental harm, although those terms are not clearly defined and to some extent merely restate existing law." Among other things, mining companies will be required to engage in some land reclamation after mining is complete.
Roughly half the coal in West Virginia is from mountaintop mining, which is generally cheaper, safer and more efficient than extraction from underground mines like the Crandall Canyon Mine in Utah, which may have claimed the lives of nine miners and rescuers, and the Sago Mine in West Virginia, where 12 miners were killed last year.
The rule, which would apply to waste from both types of mines, is known as the stream buffer zone rule. First adopted in 1983, it forbids virtually all mining within 100 feet of a river or stream.
The Interior Department drafted the proposal to try to clear up a 10-year legal and regulatory dispute over how the 1983 rule should be applied. The change is to be published on Friday in The Federal Register, officials said.
The Army Corps of Engineers, state mining authorities and local courts have read the rule liberally, allowing extensive mountaintop mining and dumping of debris in coal-rich regions of West Virginia, Kentucky, Tennessee and Virginia.
From 1985 to 2001, 724 miles of streams were buried under mining waste, according to the environmental impact statement accompanying the new rule.
If current practices continue, another 724 river miles will be buried by 2018, the report says. . . .
Interior Department officials said they could not comment on the rule because it had not been published. But a senior official of the Office of Surface Mining said the stream buffer rule was never intended to prohibit all mining in and around streams, but rather just to minimize the effects of such work.
Even with the best techniques and most careful reclamation, surface or underground mining will always generate mountains of dirt and rock, he said.
“There’s really no place to put the material except in the upper reaches of hollows,” the official said. “If you can’t put anything in a stream, there’s really no way to even underground mine.”
He said the regulation would explicitly state that the buffer zone rule does not apply for hundreds of miles of streams and valleys and that he hoped, but did not expect, that the rule would end the fight over mine waste.
White House Web Page Was Out-of-Date:
Apparently the White House web page has not kept pace with the Bush Administration's conception of executive authority. The Washington Post reports:
The Bush administration argued in court papers this week that the White House Office of Administration is not subject to the Freedom of Information Act as part of its effort to fend off a civil lawsuit seeking the release of internal documents about a large number of e-mails missing from White House servers.
The claim, made in a motion filed Tuesday by the Justice Department, is at odds with a depiction of the office on the White House's own Web site. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA.
According to the Post, the White House declined comment.
Wednesday, August 22, 2007
Eric Posner and Adrian Vermeule's Terror in the Balance:
Opinio Juris is holding a very interesting online symposium about this new book.
Fascinating Interview with DNI McConnell about New FISA Legislation:
The El Paso Times has printed the transcript of a fascinating interview with Director of National Intelligence Michael McConnell about the need for the Protect America Act, the new FISA amendments. It's worth a full read, but here are some excerpts (with paragraph breaks added by me): Question: How much has President Bush or members of his administration formed your response to the FISA debate?
Answer: Not at all. When I came back in, remember my previous assignment was director of the NSA, so this was an area I have known a little bit about. So I came back in. I was nominated the first week of January. The administration had made a decision to put the terrorist surveillance program into the FISA court. I think that happened the 7th of Jan. . . . . The FISA court ruled . . . and they said the program is what you say it is and it's appropriate and it's legitimate, it's not an issue and was had approval.
But the FISA process has a renewal. It comes up every so many days and there are 11 FISA judges. So the second judge looked at the same data and said well wait a minute I interpret the law, which is the FISA law, differently. And it came down to, if it's on a wire and it's foreign in a foreign country, you have to have a warrant and so we found ourselves in a position of actually losing ground because it was the first review was less capability, we got a stay and that took us to the 31st of May.
After the 31st of May we were in extremis because now we have significantly less capability. And meantime, the community, before I came back, had been working on a National Intelligence Estimate on terrorist threat to the homeland. . . . [T]hey had discovered [a safe haven for Al Qaeda] in the border area between Pakistan and Afghanistan. . . . . This area is referred to as the FATA, federally administered tribal areas, they have the recruits and now the objective is to get them into the United States for mass casualties to conduct terrorist operations to achieve mass casualties. . . .They have em, but they haven't been successful. One of the major tools for us to keep them out is the FISA program, a significant tool and we're going the wrong direction.
So, for me it was extremis to start talking not only to the administration, but to members of the hill. So from June until the bill was passed, I think I talked to probably 260 members, senators and congressmen. . . .
Q: Can't you get the warrant after the fact?
A: The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven't done that in wireless for years.
Q: So you end up with people tied up doing paperwork?
A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it's foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it's a very complex process, so now, I've got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you've got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We're going backwards, we couldn't keep up. Thanks to Marty Lederman for the link.
Hero:
From the official site of the allied forces in Iraq:
An Iraqi man saved the lives of four U.S. Soldiers and eight civilians when he intercepted a suicide bomber during a Concerned Citizens meeting in the town of al-Arafia Aug. 18.
The incident occurred while Soldiers from 3rd Squadron, 1st Cavalry Regiment, were talking with members of the al-Arafia Concerned Citizens, a volunteer community group, at a member’s house.
"I was about 12 feet away when the bomber came around the corner," said Staff Sgt. Sean Kane, of Los Altos, Calif., acting platoon sergeant of Troop B, 3-1 Cav. "I was about to engage when he jumped in front of us and intercepted the bomber as he ran toward us. As he pushed him away, the bomb went off." ...
"He could have run behind us or away from us, but he made the decision to sacrifice himself to protect everyone. Having talked with his father, I was told that even if he would have known the outcome before hand, he wouldn’t have acted differently."
The man's name isn't mentioned; I take it this is because of eminently reasonable concern for the security of his family, but it's too bad that we can't properly honor and remember him by name.
Thanks to InstaPundit for the pointer.
A Phrase Judges Should Probably Avoid:
"In my humble opinion." Why? First, a lot of judges are not humble. Second, if their opinions really are humble, they probably don't need to point out how humble they are. True, the phrase "in my humble opinion" can be used as a signal of courtesy rather than humility. But I don't think that meaning comes across well in judicial opinions. Opinions usually are written in a confident style; the judge tries to make his decision seem indisputably correct. Given that, the use of "in my humble opinion" suggests a false humility rather than an earnest respectfulness. (Just a thought inspired by reading this concurring opinion , where a district judge sitting by designation in the 11th Circuit writes a concurrence arguing that "in my humble opinion," the Supreme Court's 8-1 directly on point decision from a few months ago was wrongly decided. It doesn't help that the district judge's interpretation of that precedent was pretty far off the mark).
Tuesday, August 21, 2007
Back-to-School Blawg Review:
The syllabus is here.
Are Blogs Less Worthy of Various Protections Than Magazines?
I sometimes hear people argue that blogs are unworthy of various legal protections -- for instance, journalist privileges, exemptions from campaign finance laws, and the like -- because they aren't Serious Journalism. Let me offer a few thoughts about this.
1. As I've argued before, it's hard to say what "blogs are," just as it's hard to say what "books are." Blogs, like books, vary widely in topic, readership, quality, depth, breadth, and more. Most blogs, like most books ever published, aren't particularly good or useful. But if we are to evaluate blogs or books, the focus should be on the ones that do attract a broad readership, not to the great majority that are ignored.
2. We should thus focus on the most prominent blogs (not just the 10 most prominent, but still not blogs #1,000,000-2,000,000). And we should compare those blogs not against the Best of the Best, but against other media as they actually are. I've generally argued that the high-readership blogs tend to be most analogous to magazines, because both tend to offer opinion and commentary on the news (with "news" defined broadly). And in fact many special legal protections for the media include magazines alongside blogs.
3. This having been said, what are those magazines that get protection under many journalist privilege statutes, under many campaign finance statutes (including the federal one), and more? Well, here's the list of the Top 25 magazines, by circulation, based on Audit Bureau of Circulations data (note that this includes both weeklies and monthlies, and perhaps other magazines):
| AARP THE MAGAZINE | 23,250,882 |
| AARP BULLETIN | 22,621,079 |
| READER'S DIGEST | 10,094,284 |
| BETTER HOMES AND GARDENS | 7,627,046 |
| NATIONAL GEOGRAPHIC | 5,072,478 |
| GOOD HOUSEKEEPING | 4,675,281 |
| LADIES' HOME JOURNAL | 4,136,462 |
| TIME-THE WEEKLY NEWS MAGAZINE | 4,082,740 |
| WOMAN'S DAY | 4,014,278 |
| FAMILY CIRCLE | 4,000,887 |
| PEOPLE | 3,786,360 |
| AAA WESTWAYS | 3,733,561 |
| TV GUIDE | 3,499,746 |
| PREVENTION | 3,324,440 |
| SPORTS ILLUSTRATED | 3,208,630 |
| NEWSWEEK | 3,130,600 |
| PLAYBOY | 3,016,453 |
| COSMOPOLITAN | 2,928,041 |
| SOUTHERN LIVING | 2,822,542 |
| VIA MAGAZINE | 2,808,377 |
| MAXIM | 2,540,146 |
| AAA GOING PLACES | 2,528,014 |
| AMERICAN LEGION MAGAZINE | 2,525,264 |
| AAA LIVING | 2,411,813 |
| REDBOOK | 2,389,456 |
A mixed bag -- just as blogs are a mixed bag. Some news, some gossip, some lifestyle, some hobby, just as is the case with blogs.
I don't know of an authoritative list of top-visitor blogs, and I'm not sure how to evaluate the relative quality of the ones I've seen, or to judge whether top-link lists are good proxies for influence or likely visitor counts. (Please do let me know what you think are the best lists of most influential blogs.) But my guess is that the profile of the top blogs won't be radically different from the profile of the top magazines. And I'm pretty sure it won't be far "worse" -- if the criterion of quality is either focus on Important Issues, Seriously Discussed, or the credentials of the authors -- than what we see among the top magazines.
Most Commonly Misspelled Phrases:
"All intensive purposes." "Baited breath." "Tough road to hoe." "Free reign." These are all common misspellings. At some point, they become common enough to be correct alternative spellings, and some may be correct even now in their own way: "Free reign," especially, makes sense as a figurative phrase. But wise law students should be careful not to use such phrases, because whether or not they are in some metaphysi |