The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Wednesday, January 31, 2007

Help us before we censor again
Tom Smith

Yahoo asks US government for help in dealing with China internet rules.

January 31, 2007 | Permalink | Comments (0) | TrackBack (0)

Favorite Movies
Mike Rappaport

One of my favorite movies is the Matrix (the first one, not the second two).   When I tell my colleagues this, sometimes this produces a laugh, especially when I defend the movie as both philosophically interesting and as filled with interesting religious imagery.  So, I read with interest this post from Richard Posner, who wrote that the Matrix was his favorite movie at that time.  Posner goes further than me.   The Matrix is probably only in my top 10.  My number one favorite -- Field of Dreams.    

January 31, 2007 | Permalink | Comments (0) | TrackBack (0)

Media Bias: A Russian Warning?
Maimon Schwarzschild

If and when a Democratic President is elected - with heavy media support, of course - how will the American media behave afterwards?

There is a sad and fascinating piece by Michael Specter in last week's New Yorker about Vladimir Putin's Russia which might offer an implicit warning.  Specter reports on the pervasive corruption and thuggishness of Putin's regime.  This now includes the more or less open murder of Russians who criticise Putin, including the recent radioactive poisoning of one Russian opponent living in London.

A key element in Putin's power, says Specter, is the willingness of the Russian media, especially television, to be Putin's propagandists.  In the 1990s, after the collapse of the Soviet regime, the Russian media had considerable freedom.  When Boris Yeltsin seemed headed for defeat in the 1996 elections, with a possible Communist comeback in the offing, the media bent over backwards to boost Yeltsin.  The media were crucial in re-electing him despite Yeltsin's popularity having fallen into the single digits at the beginning of the campaign.

But this seems to have set the Russian media (back) on the path of propaganda rather than news.

The 1996 election “put a poison seed into the soil,’’ Andrei Norkin, a former anchor for NTV, told me... “And, even if we did not see why, the authorities understood at once: mass media could very easily be manipulated to achieve any goal. Whether the Kremlin needed to raise the rating of a President or bring down an opponent or conduct an operation to destroy a business, or a man, the media could do the job. Once the Kremlin understood that it could use journalists as instruments of its will, and saw that journalists would go along, everything that happened in the Putin era was, sadly, quite logical.”

A few months before Putin became President, in 2000, there was a battle for control of parliament—and, by implication, the government—as Russia prepared for the end of Yeltsin’s administration. One group was backed by the Kremlin and the other by former Prime Minister Yevgeny Primakov... The outcome was determined wholly by television coverage. Most newspapers had lost what influence they had had. Channel 1, the main state network, unleashed a barrage of biased, defamatory reports that destroyed Primakov in less than two months. As Alexander Rodnyansky, who is the head of CTC, one of Russia’s major television networks, put it, “Television is the only reality in which we exist.’’

The Kremlin’s relationship with this pliable, post-Soviet press corps becomes obvious in any political crisis.

Propaganda has become more sophisticated and possibly more effective than it was during the Soviet years, when television was a tool used to sustain an ideology. The goal today is simpler: to support the Kremlin and its corporate interests. “It’s a magic process now,” Anna Kachkaeva, who broadcasts a weekly interview show on Radio Liberty, told me... “There is no censorship—it’s much more advanced. I would call it a system of contacts and agreements between the Kremlin and the heads of television networks. There is no need to start every day with instructions. It is all done with winks and nods. They meet at the end of the week, and the problem, for TV and even in the printed press, is that self-censorship is worse than any other kind. Journalists know—they can feel—what is allowed and what is not.’’

America is not Russia, of course.  But is there a warning here?  There was media bias in the US before 2000, to be sure, but there is reason to feel that it has become far deeper - and more pervasive and unabashed - since George W. Bush was elected (and re-elected) in defiance of the newsrooms' obvious preferences.

A Democratic restoration would be, in significant part, a victory for the media, who have campaigned daily and hard against Bush and Republicans - and of course against the war in Iraq.  With a Democratic President, how beholden would the media feel towards him or her?  How protective and disinclined to report bad news?  Perhaps no more than the media were during Bill Clinton's Presidency.  But perhaps the spirit of the media has changed since then: the partisanship grown deeper.  Michael Specter's report from Russia is sobering.  Whether or not you think it bears a warning for the US, Specter's piece is interesting on its own terms.  Read the whole thing.

January 31, 2007 | Permalink | Comments (5) | TrackBack (0)

Tuesday, January 30, 2007

Is an Independent Air Force Constitutional?
Mike Rappaport

Some of the comments to my previous post have questioned the constitutionality under an originalist view of an independent Air Force.  To my mind, the independence of the Air Force is not relevant to the constitutional question.  If the Air Force is constitutional as part of the Navy, then it is also constitutional as an independent department.

To focus on the independence question, lets make the following assumption: The use of airplanes and other Air Force equipment would be constitutional if used by the Navy.  That is, the term Navy in the Constitution does not preclude the use of this equipment.  (This assumption must hold for the use of Air Force equipment to be constitutional as part of the Navy.)

Consider the following situation.  Congress decides that instead of creating a single Department of the Navy, with a single Secretary of the Navy, it creates two departments: Navy Department A and Navy Department B.  They are independent of one another, but both are under the control of the Secretary of Defense and the President.  Would this be constitutional?  Of course.  There is nothing in the Constitution that requires a single department.  While there is a single clause authorizing Congress to regulate interstate commerce, we have several agencies that regulate different parts of interstate commerce (such as the Federal Trade Commission and the Federal Communications Commission).

Now, add one more wrinkle: Congress has Navy A use different equipment than Navy B.  This is also constitutional.  There is no requirement that they be identical.

Finally, the last step: Congress changes the names from Navy A and Navy B to Navy and Air Force.  This is obviously constitutional, since there is no requirement that any specific name be used.  Put differently, that we call something the Air Force as a statutory matter does not decide the constitutional question of whether it is a Navy. 

What this argument shows is that the independence of the Air Force is irrelevant.  The key question is whether the equipment and weapons it uses are properly treated as part of the Navy or the Army. (Of course, there are other legitimate questions here, such as whether the Air Force should be included in the Army or the Navy.  If the Air Force is properly classified as part of the Navy, then it is not subject to the two year appropriations limitation on the Army.  But that is a separate question.)

January 30, 2007 | Permalink | Comments (16) | TrackBack (0)

Monday, January 29, 2007

Private Unemployment Insurance
Mike Rappaport

In an earlier life, I used to write about insurance.  Perhaps I will one day turn back to it.  Occasionally, I have the pleasure of seeing someone refer to my work.  Over at Cafe Hayek, Don Boudreaux refers to my article on private unemployment insurance.      

January 29, 2007 | Permalink | Comments (1) | TrackBack (0)

Bad Originalism
Mike Rappaport

Over at the Volokh Conspiracy, Ilya Somin and Eugene Volokh have a couple of posts on the claim by some that the Air Force is unconstitutional under originalism.  Of course, this is silly.  The Army and Navy are not limited by the actual or the type of weapons that were employed in 1789.  There is no reason to believe that the terms "Army" or "Navy" would have been understood this way.  Just as new technologies such as balloons and canons would have been easily assimilated into the Army without a second thought about whether they were really part of the Army, so could airplanes and jets.

Ilya lists several prominent law professors who accept this criticism of originalism.  The question is why they accept this argument.  One reason seems straightforward.  Sadly, it turns out that critics of originalism tend not to be good at practicing originalism.  I have often heard this comment made by other originalist scholars.  So, for example, when one reviews an article making both originalist and normative claims about a matter, by an author who does not believe in originalism, it is not surprising when the originalist claim turns out to be quite weak.

Originalism is hard to do -- It only seems easy.  Thus, people who do not practice it regularly are prone to making mistakes.  But another reason also, it would seem, contributes here.  A critic of originalism would be quick to accept silly results produced by originalism.  "Hey, look here, look at this absurd result created by this ridiculous method."   Thus, it is the motivations combined with the difficulty that appears to be the source of the problem.

Of course, originalist errors are not confined to critics of originalism.  Advocates of originalism often make a similar error: they interpret the original meaning too favorably in terms of modern sensibilities.  For example, in my view, the First Amendment Free Speech provision is far less attractive than many originalists seem to assume.  The unconstitutionality of the Sedition Act was at best a hard case.  But the errors produced by advocates of originalism are less egregious because they are often practitioners of originalism and therefore have more knowledge of how the method is practiced.  Moreover, they have an incentive to practice it in a manner that has integrity. 

January 29, 2007 | Permalink | Comments (4) | TrackBack (0)

Friday, January 26, 2007

Worrying About A Nuclear Iran: A History
Mike Rappaport

This article in the New Republic by Yossi Klein Halevi & Michael B. Oren begins with two fascinating paragraphs.  The first one reads:

The first reports from military intelligence about an Iranian nuclear program reached the desk of Yitzhak Rabin shortly after he became prime minister in May 1992. Rabin's conclusion was unequivocal: Only a nuclear Iran, he told aides, could pose an existential threat to which Israel would have no credible response. But, when he tried to warn the Clinton administration, he met with incredulity. The CIA's assessment--which wouldn't change until 1998--was that Iran's nuclear program was civilian, not military. Israeli security officials felt that the CIA's judgment was influenced by internal U.S. politics and privately referred to the agency as the "cpia"--"P" for "politicized."

Well, the CIA appears to have been incompetent and political for a long time.  Not surprisingly, the Clinton Administration overlooked the threats that existed. 

The second paragraph:

The indifference in Washington helped persuade Rabin that Israel needed to begin preparing for an eventual preemptive strike, so he ordered the purchase of long-range bombers capable of reaching Iran. And he made a fateful political decision: He reversed his ambivalence toward negotiating with the PLO and endorsed unofficial talks being conducted between Israeli left-wingers and PLO officials. Rabin's justification for this about-face was that Israel needed to neutralize what he defined as its "inner circle of threat"--the enemies along its borders--in order to focus on the coming confrontation with Iran, the far more dangerous "outer circle of threat."

Wow.  Oslo was the result of an attempt to make Israel stronger defensively against Iran.  This seems a worse blunder than anything Bush's critics accuse him of.  Leaving the PLO in Tunisia would have been a pretty a good defensive position for Israel.

January 26, 2007 | Permalink | Comments (3) | TrackBack (0)

Thursday, January 25, 2007

Hamilton College Says "No" to Alexander Hamilton
Maimon Schwarzschild

The academic malevolence that helped fuel the Duke "rape" case is hardly unique to Duke.  Much the same political religion - and the same bullying, Red Guard style - pervades liberal arts education across the country.  The New Criterion reports on the latest from Hamilton College in upstate New York.   Hamilton College was founded in 1793 and for nearly two centuries it was a staid but good-quality liberal arts college.  But over the past decade or two, it became better known for hijinks involving Ward Churchill (the faux-Indian leftie who cheered the 9/11 attacks), porn stars lecturing on sex toys, and a grim on-campus politburo called the "Kirkland Project".

It seems that an alumnus recently gave the college 3.6 million dollars to fund an Alexander Hamilton Center for the Study of Western Civilization.  It would have been dedicated to promoting “excellence in scholarship through the study of freedom, democracy, and capitalism as these ideas were developed and institutionalized in the United States and within the larger tradition of Western culture.”

Now the grim-left faculty and administration at Hamilton College have howled it down.  It won't happen.  The donor withdrew his gift. 

"The real losers, of course, are the students: this year it costs about $45,000 to attend Hamilton. For that amount of money, parents can rest assured their children will be effectively insulated from any opinion not sanctioned by Hamilton’s left-wing, activist faculty."   

Read the whole, sad, but well-told story here.

And if you are considering contributing money to higher education, think very carefully about whether you want to give unrestricted money to today's academic administrators.  Is there a better alternative?  There is.  The American Council of Trustees and Alumni is a well-run, responsible, and honest way to donate to higher education.  ACTA will make sure that your contribution goes to educational programs that are worthwhile: not to promoting more of the pathology that infects Duke University, Hamilton College, and so much of the "higher education" industry in this country.

January 25, 2007 | Permalink | Comments (3) | TrackBack (0)

Wednesday, January 24, 2007

Iraqi Exit Strategies/Vietnam Exit Strategies
Gail Heriot

I don't pretend to have all the answers about what to do in Iraq, but I thought this little blurb by my friend Jeff Jacoby was worthy of note (as well as topical in its quotation of Gerald Ford):

"Senator Edward Kennedy likes to label Iraq 'George Bush's Vietnam,' as he did last week when he introduced legislation to give Congress the final say on troop levels in Iraq.

"Bush played no role in the fall of South Vietnam and Cambodia to the Communists in 1975, of course. But Kennedy did. He helped lead the congressional drive to cut off financial aid to the pro-American governments in Saigon and Phnom Penh, brushing aside President Gerald Ford's warning that 'the horror and the tragedy that we see on television' would only grow worse if America deserted its allies.

"But Kennedy and the Democrats spurned Ford, and the result was unspeakable agony -- Cambodia's killing fields, Vietnam's re-education camps, waves of 'boat people' hurling themselves into the sea. Having seen the results of US abandonment in Indochina, how can Kennedy advocate the same policy in Iraq?

"'If we cease to help our friends in Indochina,' Ford said, 'we will . . . have been false to ourselves, to our word, and to our friends. No one should think for a moment that we can walk away from that without a deep sense of shame.' Ford, a decent man, couldn't imagine deliberately abandoning a friend in dire straits. Kennedy, it seems, isn't so inhibited."

I can recall only one occasion in my life on which I felt I had so profoundly misjudged a political situation that I should not be allowed to vote--the Fall of Saigon.  I had been an idiot and I knew it.  The Soviet Invasion of Afghanistan was another major misjudgment for me, but within a few months of that, I felt I was beginning to understand where I had gone wrong.  Live and learn.  I hope.   

January 24, 2007 | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 23, 2007

Does the Quest for Diversity Result in Discrimination in Favor of Women and Minority Law Professors?
Gail Heriot

Tom Bell has some interesting data on this issue.  It appears that women and minority members who participate in the AALS "Meat Market" are more likely to get jobs than white males.  It would be interesting to try to control for credentials.  For example, how many job applicants of each race and gender with appellate court clerkships get jobs?  Or perhaps even more interesting, how many without appellate clerkships get jobs?

January 23, 2007 | Permalink | Comments (3) | TrackBack (0)