Sunday, February 29, 2004


I saw much of a very interesting show on CMT last night: Waiting in the Wings: African-Americans in Country Music. It looked at the history of blacks in country music, from Charlie Pride to a few up-and-comers struggling to make a name for themselves.

It occurs to me that much of the music world is effectively segregated, perhaps more so than ever. When I look at the Billboard top 100, all the black artists are in the rap/hip-hop genre. When I think back over the past 15 years or so of pop/rock music, I can think of only one major pop/rock group that had a black lead singer, or (as far as I know) any black members at all (Hootie and the Blowfish). There are a couple of rock bands with black lead singers that I like -- Splender, and the Tait Band -- but they aren't all that well-known. My overall impression is that right now, you just can't find any major black artists outside of rap/hip-hop.

Why is that, I wonder? Because of the interests of aspiring musicians? Because of racial categorization by record companies? Because of the tastes of the music-buying (or downloading) public? According to the CMT program, it's probably all of the above. Whatever the reason(s), it's too bad: there are probably a lot of good singers or musicians who don't get a chance to use their abilities to the fullest extent because they are the "wrong" race for the genre.

Saturday, February 28, 2004

More on Locke v. Davey

A commenter on The Right Christians makes the following point:
Imagine two possible worlds. In one world, the government taxes all property at 5% of its value, but church property gets no taxes. In the second world, the government taxes no property, but gives churches a yearly bonus equal to 5% of the value of their property. In world two, I'll bet that just about everyone would admit that the state is actively financing churches. But how is world one (which happens to be the actual world) any different? In either world, the state has decided that churches should be 5% (of the value of their property) better off than everyone else.
The economic equivalence of tax deductions and government expenditures is a well-known topic of debate in law review literature. Many scholars reason as does the above commenter: An exemption or deduction is the same as a subsidy, because in either case the church is better off.

But one famous tax scholar, Boris Bittker, argues that an exemption is equivalent to a subsidy ONLY if everyone agrees that the tax base would OTHERWISE have included the church. It's impossible for every tax to touch on everything that exists, says Bittker, and you can have reasonable disagreements over what any particular tax is aimed at in the first place. In his words, "The assertion that an exemption is equivalent to a subsidy is untrue, meaningless, or circular, depending on context, unless we can agree on a 'correct' or "ideal' or "normal' taxing structure as a benchmark from which to measure departures." Boris I. Bittker, Churches, Taxes and the Constitution, 78 Yale L.J. 1285, 1304 (1969).

In other words, if you define the tax base as "all property owned by anyone," then the exemption for churches and other charities looks like, well, an exemption. But if you define the tax base as "all property owned by private individuals or for-profit businesses," then it no longer as obvious the churches and charities are really getting an "exemption" that is equivalent to a subsidy in economic terms.

More generically, if you tax A and B but not C, does that mean that C has an exemption that is equivalent to a subsidy? Or does it mean that you've decided to tax a group of things and that this group just happens not to include C?

I don't know whether I fully agree with Bittker's point here; I have to admit that if the government taxed all property but had an exemption only for churches (and not any other type of charities), it would look uncomfortably like an attempt to subsidize churches. I'm not as troubled by the exemption for all types of charities, although I'm not sure that I have a systematic reason for this distinction.

* * *
My friends Tom West of the University of Dallas and Ken Masugi of the Claremont Institute are debating the result in Locke. West argues that Scalia and Thomas are flatly wrong, because 1) the Constitution does not mandate complete neutrality towards religion (otherwise the Pledge would be unconstitutional), and 2) conservatives should be nervous about promoting the idea that where the government declines to fund an activity, it is the same as if the government denied a constitutional right. Masugi's response argues that what happened in Locke really arose from discrimination against religion. West's further response is here.

Thursday, February 26, 2004

Locke v. Davey

As you probably know by now, the Supreme Court issued an opinion yesterday in Locke v. Davey, which was about whether the state of Washington could run a scholarship program that was available to all college students for any course of study -- except for those students who majored in "devotional theology." The Supreme Court upheld the exclusion.

Two observations:

1. Imagine two possible worlds. In world one, the state of Washington taxes all its citizens, and then gives everyone a $1500 scholarship, as long as they don't major in theology. In world two, the state of Washington doesn't tax anyone and doesn't provide any scholarships, but it levies a fine of $1500 on any student who majors in theology. In world two, I'd bet that just about everyone would admit that Washington was penalizing the free exercise of religion by actually fining theology students. But how is world one (which happens to be the actual world) any different? In either world, the government has decided that theology majors should be $1500 worse off than all other students.

2. The central portion of the majority opinion is also the weakest:
We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. 508 U.S., at 535. In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not require students to choose between their religious beliefs and receiving a government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963). The State has merely chosen not to fund a distinct category of instruction.
The program does not require students to "choose between their religious beliefs and receiving a government benefit"? Huh? What if someone thinks that his religious beliefs require him to study theology? It's not so far-fetched a possibility, after all, that someone's religious beliefs might have something to do with theology. But if he follows that particular religious belief, he is suddenly ineligible for the scholarship program that is available to everyone else for every other course of study.

In fact, the very next paragraph of the opinion immediately reverses course, hinting that it would be problematic to fund theology study precisely because such a course of study arises from religious belief:
Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193 (1967) (holding public funds may not be expended for “that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct”); App. 40 (Davey stating his “religious beliefs [were] the only reason for [him] to seek a college degree”).
I don't see how those two paragraphs can be squared with each other. If a theological course of study is "akin to a religious calling" for purposes of whether the state can give a nod to Establishment Clause concerns, then it is also "akin to a religious calling" for purposes of whether the state can deny a generally-available benefit.

Wednesday, February 25, 2004

The Importance of Avoiding Typos

A hilarious story:
Judge Slashes Lawyer's Rate for Typos, Careless Writing

Finding that attorney Brian Puricelli's courtroom work was 'smooth' and 'artful' in securing a $430,000 verdict in a civil rights suit, but that his written work was 'careless' and laden with typographical errors, a federal magistrate judge has ruled that his court-awarded fees should be paid at two rates -- $300 per hour for the courtroom work, but $150 per hour for work on the pleadings.

'Mr. Puricelli's complete lack of care in his written product shows disrespect for the court. His errors, not just typographical, caused the court a considerable amount of work. Hence, a substantial reduction is in order. We believe that $150 per hour is, in fact, generous,' U.S. Magistrate Judge Jacob P. Hart wrote in his 12-page fee opinion in Devore v. City of Philadelphia.

In the suit, plaintiff John Devore, a former Philadelphia police officer, claimed that he was harassed and ultimately fired in retaliation for reporting that his partner had stolen a cell phone.

Hart said he recognized that the case was a complicated one, but said he found some of Puricelli's writing in the amended complaint to be 'nearly unintelligible.'

When defense lawyers complained that the typographical errors in Puricelli's work were 'epidemic,' Puricelli's response included several more typos, Hart said. The judge quoted a paragraph from Puricelli's response, adding '[sic]' after each typo.

Puricelli wrote: 'As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for Mr. Devore. Further, had the Defendants not tired [sic] to paper Plaintiff's counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by the Defendants, thus they should not case [sic] stones."

Hart seemed almost amused.

"If these mistakes were purposeful, they would be brilliant," Hart wrote. "However, based on the history of the case and Mr. Puricelli's filings, we know otherwise."

In his most recent letter to the court, Hart noted, Puricelli misspelled the judge's name, referring to him as the "Honorable Jacon [sic] Hart."

"I appreciate the elevation to what sounds like a character in The Lord of the Rings," Hart wrote, "but alas, I am but a judge."

Tuesday, February 24, 2004

Obnoxious Fiance

Yes, I hate to admit it, but I happened to see the first episode of "My Big Fat Obnoxious Fiance," and then had to watch the show from then on. (I never watch reality TV. Honest. Or TV period. All a bunch of mindless swill. Except "Alias" and "24.")

This led to the following conversation with a friend of mine:

Friend: You know the guy that is playing the part of Randi's fiance? The actor?

Me: Yeah.

Friend: I just saw him on a commercial. I had seen the commercial before, but I never realized that it was him.

Me: Aha. So he really is an actor, not just someone that they hired to play the part of . . . an actor.

Monday, February 23, 2004

TSA Detention Is No Joke

This anecdote about Larry Klayman is interesting:
Klayman was just about to go through the metal detector at National last fall en route to Fort Lauderdale, Fla., on United Flight 2899, when he announced that the package he was carrying (a little container for his cat) was not a bomb.

According to another waiting passenger nearby, Klayman told the screeners that the cat wasn't a terrorist and didn't have a bomb. With that, we're told, he was instantly taken out of line by the security people and put in handcuffs.

He was then apparently taken somewhere for questioning, where agents most likely didn't recognize him or realize that he was famous. He was eventually released, and he hopped a later flight.
I'm having a hard time imagining why it would be useful to handcuff someone merely for saying that he did not have a bomb. The airport security need not assume that people are innocent until proven guilty. But I don't see how protesting one's innocence is a positive indication of guilt. I thought that sort of thing happened only in movie parodies, like Meet the Parents, as in the scene where Ben Stiller's character gets arrested for saying, "It's not like I have a bomb."
Howard Dean has a message responding to the Nader candidacy. One paragraph caught my eye:
Ralph Nader has made many great contributions to America over 40 years. But if George W. Bush is re-elected, the health, safety, consumer, environmental, and open government provisions Ralph Nader has fought for will be undermined. George Bush's right-wing appointees will still be serving as judges fifty years from now, and our Constitution will be shredded. It will be government by, of, and for, the corporations - exactly what Ralph Nader has struggled against.
None of the above is really worth responding to. It's just the usual partisan hyperbole -- both sides do it -- that no one in their right mind could take seriously.

Still, Dean's remark about Bush's judges serving "fifty years from now" is as ludicrous as Quayle spelling "potato" with an "e." The average life expectancy in the U.S. is currently 77.3 years. If Bush's judges could be expected to serve for another 50 years, then that implies that Bush has been appointing judges who are in their late 20s, just out of law school. That is not the case. Bush's youngest appointment thus far is Mark Filip (N.D. Ill.), who was born in 1966. It's possible that Filip might live to be 87, and that he might serve as a judge for that entire time. Still, it is not likely that any substantial number of Bush's appointments, who are mostly in their mid-40s, will serve for 50 years. One recent appointment, Charles Pickering, is going to be 67 years old in May. If he served for another 50 years, he would have to live to age 117.

Now maybe Dean was envisioning that we'll dramatically increase our life-spans over the next fifty years, such that people will commonly work a demanding full-time job well into their 100s. But if that's what Dean thinks, it wasn't reflected in his plan for Social Security.

Sunday, February 22, 2004


I was amused by the opening to this Miss Manners column:
Defending privacy has become a lonely task, Miss Manners finds. In a society where shame is marketable and public interest in one's underwear is the sign of professional success, there is not a lot of support for the concept.

True, one hears righteous outcries from people whose private lives have been violated. A government agency may be asking for personal information that people customarily only reveal on their Web sites, in blogs and by filling out the warranty cards for everything they buy.
This puts me in mind of a well-liked blog posting from last year. I think I'll repeat it here:
Amidst all the civil libertarian furor over the Patriot Act I, no one has yet commented on the "citizen reporting" provision. By this provision, every adult in America, even those not suspected of any crime whatsoever, will be required to file a yearly report on themselves, and send it to a new government office that is charged with tracking every person's whereabouts, living circumstances, etc. The yearly report required from each adult must contain:
  • Name
  • current address
  • name of spouse (if any)
  • names of children (if any)
  • Social Security numbers for all the above
  • title of job
  • address of employer
  • amount of income
  • any significant expenditures during the year
  • information about bank accounts or any investments
  • information about loans, mortgages, and other obligations
  • information about what charities the adult supports with his or her money
  • information about medical bills
  • Potentially much more.
As should be obvious, these reporting requirements are onerous, intrusive, and only serve to allow a massive federal bureaucracy to monitor Americans' lives. I'm surprised that there hasn't been more publicity and protest over these proposed violations of the constitutional right to privacy that we all should enjoy.

By the way, I'm just kidding about the Patriot Act. What I described is actually the current requirement re: reporting to the IRS every April 15. I just feel like venting on that subject this time of year.

Saturday, February 21, 2004

Harvard Law

I'd have to agree with this student's overall impression of how conservatives fare at Harvard Law School:
There's an interesting post over at the Volokhs about liberalism at Yale Law School. I don't know anything about YLS, so I'll just say you should take the post for what it's worth. I do know about HLS, though, and I've got to say that the situation here is just fine, as far as I see it. The one caveat about what I write below is that it's true I've sent five years in European universities. Compared to that, even a law school that was called "Democrats are Glorious Supermen" would have seemed relatively congenial, though I do find that Europeans are very good about listening respectfully and engaging in argument even when they think your views are insane or barbaric.

First, even though it's clear most of the Professors are Democrats, largely because their resumes include some sort of Clinton era service, it's not usually that obvious in class. All the profs I've had have been respectful of conservative viewpoints - that is to say, they've shot them down with the same regularity they shoot everything else down. In fact, if I've noticed anything on this front, it's that some professors are so desperate to seem fair that they let poorly argued conservative points be made at great and tortuous length, when they would have cut someone else off. I've heard from other people this isn't universally true, but I haven't seen a really bad example of classroom bias yet.
I agree. The professors are overwhelmingly in the wide range of opinion from far-left to moderate liberal, but are typically very fair to all viewpoints in classroom discussions. On the other hand, there were two occasions where I saw some students boo and hiss because another student had made a moderately conservative point in class. On one of the occasions, the student was very left-wing herself, but was nonetheless fair-minded and had merely tried to point out a counterargument (i.e., "some people might think x, y, and z about that doctrine.") Yet even she got booed and hissed, merely for acknowledging a counterargument in class. As I say, it was only on two occasions that this happened during my 3 years of law school, so it's not representative of the entire experience. Still, I can't imagine anyone ever hissing or booing in the classes I took at the University of Georgia.

Type I vs. Type II errors

This Washington Post article is a good example of the Type I error that I wrote about earlier:
Between 1998 and 2000, the CIA and President Bill Clinton's national security team were caught up in paralyzing policy disputes as they secretly debated the legal permissions for covert operations against Osama bin Laden in Afghanistan.
* * *
It was common in Clinton's cabinet and among his National Security Council aides to see the CIA as much too cautious, paralyzed by fears of legal and political risks. At Langley, this criticism rankled. The CIA's senior managers believed officials at the White House wanted to have it both ways: They liked to blame the agency for its supposed lack of aggression, yet they sent over classified legal memos full of wiggle words.
* * *
In fashioning this sensitive policy in the midst of an impeachment crisis that lasted into early 1999, Clinton's national security adviser, Samuel R. "Sandy" Berger, struggled to forge a consensus within the White House national security team. Among other things, he had to keep on board a skeptical Attorney General Janet Reno and her Justice Department colleagues, who were deeply invested in law enforcement approaches to terrorism, according to senior officials involved.
* * *
Imagine that instead of erring on the side of inaction, Clinton and his team had erred on the side of going after bin Laden gung-ho. No one can predict what would have happened, or how that policy would have been implemented. Indeed, even if they had killed bin Laden, that is no guarantee that al Qaeda wouldn't have been able to pull off the 9/11 attacks anyway. But I strongly suspect that it would have been more difficult for al Qaeda to succeed if the Clinton administration had erred on the side of action, rather than on the side of inaction.

Again, you can't have perfect information or perfect decision-making. The only way to avoid erring on the side of inaction, as the Clinton administration apparently did, is to err on the side of action, as the Bush administration may have done with Iraq. I'm worried about the ongoing demonization of Bush as a "liar" as to every instance where Saddam's dangerousness turned out to be overrated. This may have the effect of producing an intel process that again errs on the side of inaction, and that consistently underestimates our enemies.

Thursday, February 19, 2004

Stereotype Threat

Some encouraging news from a recent Dallas Morning News story:
'Brain science is showing us that our conception of intelligence as this fixed thing is wrong,' said Joshua Aronson, a professor of applied psychology at New York University. 'Difficulties are surmountable.'
Since the early 1990s, psychologists led by Stanford professor Claude Steele have examined what they call 'stereotype threat.' The central idea: If you can convince kids that performance stereotypes don't limit their potential, they can do wonderful things.

Their latest study, published in The Journal of Applied Developmental Psychology in December, was conducted on 138 seventh-graders at Del Valle Junior High.

Dr. Aronson and the other researchers asked a group of University of Texas at Austin students to serve as mentors to the kids. The mentors spent about 90 minutes with small groups of students who were given different messages:

The first group was told that your brain is a muscle. The more you work it, the stronger it grows. Intelligence isn't a fixed endowment you're handed at birth. Study hard and, brain science tells us, your neurons will adapt and make new connections. Things that seem hard now will seem easy soon enough.

The second group was told that, yes, seventh grade is hard. But it's hard for everybody. It's a big adjustment from elementary school, but people tend to bounce back. The fact that many kids struggle in junior high is because it's a new situation, not because they've suddenly turned stupid. Most kids' grades go up by the time they reach eighth grade.

In other words, both messages were meant to tell students that any academic troubles they're having are not permanent. They can, with time and hard work, go away.

A third group of students heard a combination of the two messages. The fourth and final group – the control group, in experimental terms – was told only about the dangers of drug use.

At year's end, all the students took the state's TAAS test. The results were powerful. Minority students who got one of the experimental messages scored 4 or 5 percentage points higher on the reading TAAS than the control group.

The results for girls were even more striking. Girls who got one of the experimental messages scored 8 to 10 points higher on the math test than the control group.Those gains might not look that exciting, thanks to the slightly arcane way TAAS was scored. Look at it another way: The control group girls scored in the bottom 20 percent of the state; those who got the experimental messages were almost exactly at the state average.

"Kids need to understand that their intelligence is not fixed and can grow," Dr. Aronson said. "It sounds trite to say, 'All children can learn,' but these kids get lots of subtle messages that say they can't learn."

Wednesday, February 18, 2004

New Law Review Articles

I'm just copying Larry Solum's blog here, but there are some great new law review articles.

First, Michael Stokes Paulsen (U. Minnesota) has a piece called The Irrepressible Myth of Marbury, in which he argues that the reasoning used by Justice Marshall in Marbury v. Madison logically and inexorably leads not to judicial supremacy, as is so often thought, but to the right of both the executive and legislative branches to interpret the Constitution for themselves, even to the point of refusing to enforce a judicial decision that departs from the Constitution.

Short version: Marshall supported judicial review by saying that if a judge is presented with a law that appears to him to violate the Constitution, his oath to the Constitution must come first. According to Paulsen, the exact same logic applies to the other branches: If a President is presented with a judicial decision that appears to him to violate the Constitution, his oath to the Constitution must come first.

Anyway, Paulsen's piece is very provocative and well-worth reading, as is everything that he has ever written.

Next comes two articles on the Ninth Amendment by Loyola's Kurt Lash: The Lost History Of The Ninth Amendment (I): The Lost Original Meaning
The Lost History of the Ninth Amendment (II): The Lost Jurisprudence.

I haven't read these two articles, but based on having read Lash's work on the Establishment Clause, I have no doubt that they're worth reading.

Larry Kramer article

NYU law professor Larry Kramer, a noted constitutional scholar, has a new piece in the Boston Review titled We the People: Who has the last word on the Constitution? . An excerpt:
Who has the last word when it comes to the meaning of the Constitution? Who ultimately decides whether a state can regulate or outlaw abortion? Or whether Congress can legislate to protect the elderly or the disabled? Who decides the winner in a contested presidential election? On these and countless other matters of fundamental interest to society, the answer in recent years has been the Supreme Court. And most Americans seem willing, even happy, to leave it at that. Indeed, if recent surveys are to be believed, most think this is how our Founding Fathers meant it to be. What lawyers call "judicial supremacy"—the idea that judges decide finally and for everyone what the Constitution means—has found wide public acceptance. Other actors get to have their say, of course. The president, Congress, the states, and ordinary citizens can all express opinions about the meaning of the Constitution. But the Justices decide whether those opinions are right or wrong, and the Justices' judgments are supposed to settle matters for everyone, subject only to the practically impossible process of formal amendment.

It was not always thus. On the contrary, broad acceptance of judicial supremacy is of surprisingly recent vintage, a development that really only began in the 1960s and did not come to fruition until the 1980s. Certainly the men and women of our founding generation would not have accepted—did not accept—being told that a lawyerly elite had charge of the Constitution, and they would have been incredulous if told (as we are often told today) that the main reason to worry about who becomes president is that the winner will control judicial appointments. Giving an unelected judiciary that kind of importance and deference "makes the Judiciary Department paramount in fact," James Madison mused in 1788, "which was never intended and can never be proper." The Constitution of the founding generation was a popular one: the people's charter, made by the people. And it was, in Madison's words, "the people themselves"—working through and responding to their agents in government—who "can alone declare [the Constitution's] true meaning and enforce its observance." The idea of turning this responsibility over to judges was simply unthinkable.

Tuesday, February 17, 2004

Religious Freedom Cases

A friend from the upper ranks of the Department of Justice has emailed to point out that the Civil Rights Division has just put out the first issue of a newsletter called "Religious Freedom in Focus." The newsletter can be found here, and it describes recent cases that DOJ has litigated on behalf of religious freedom in the U.S.

Monday, February 16, 2004

My Sister's Album

One of my sisters -- Sarah (Buck) LaFon -- has just put out her first album. You can find her website here, along with some sound clips here.

The musical style is pop, somewhat resembling Celine Dion. This probably has something to do with the fact that her album was produced by Robert White Johnson in Nashville, who has worked with Celine Dion, as well as the Beach Boys, Lynyrd Skynyrd, and others. As Johnson told me, Sarah has a great voice, especially compared to other pop singers. He said (and I paraphrase from memory): "What impressed me that when I met her, I asked her to sing something, and she sang this song right there on the spot, and it sounded gorgeous. You wouldn't believe how rare it is, even in Nashville, that someone can sing really well live. What's more typical is that when I ask someone to sing, they start to cough and then they say, 'Why don't you just listen to my demo.'"

I can confirm this, not as her brother but as a professionally trained musician. Many female pop singers can't really sing at all (Britney Spears), and are known more for lip-synching their way though acrobatic routines. A few can sing passably well on recordings (where everything is electronically manipulated) but can't sing live. The very few who can sing live seem to think that everything should be belted out in an affected chest voice (Christina Aguilera, Celine Dion). Sarah, on the other hand, has a rich, smooth, lyrical voice that reflects her years of classical training. (She has a bachelor's in music performance from the University of Arkansas, where, by the way, she was first in her class with a 4.0.)

Check out the lyrics to Getting Over You, which are clever with a poignant twist at the end, and be sure to listen to What No One Else Could Do.

UPDATE: Sarah tells me that the CDs won't be ready to send out for a few weeks, so keep that in mind if you order one.

Stories I Don't Care About

This could be a regular series, due to the regularity with which other people (journalists, bloggers) become seized with a baffling monomania on some subject that I find irrelevant (the Dean "scream," etc.). The latest monomania is over the minute-by-minute minutiae of Bush's whereabouts during the early 70s. I don't care. And I'll add that I didn't much care for the accusation that Clinton was a "draft dodger" either. I'm more interested in what the candidates' positions are today.

Sunday, February 15, 2004

Public Commentary on Regulation

The post below highlights what I think is a recurring problem with public commentary (whether in newspapers or on blogs) on federal regulation. All too often, people 1) assume that the regulatory agency is acting at the sole direction of the President (which is much less often true than one might think); 2) assume the worst possible motives for the agency's action; 3) utterly ignore the possibility that the agency might be acting in order to implement a) laws passed by Congress or b) court decisions. (For other examples, see my posts on the media consolidation debate here and here, where critics seemed to be completely unaware that the FCC had to loosen its rules because courts kept holding that the FCC's old rules failed to follow Congress's direction.)

Closed Captioning

A recent op-ed from the Palm Beach Post claims that the Bush administration is trying to censor television programming for deaf people:
The Bush administration has decided that people with bad hearing have bad judgment, too, and need special guidance from the federal government.

So the U.S. Department of Education is declaring about 200 television programs inappropriate for closed-captioning and denying federal grant requests to make them accessible to the hearing-impaired.

The department made its decisions based on the recommendations of a five-member panel. Who the five members are, only the government seems to know, and it isn't saying. But the shows they censored suggest a perspective that is Talibanesque.

The government is refusing to caption Bewitched and I Dream of Jeannie, apparently fearing that the deaf would fall prey to witchcraft if they viewed the classic sitcoms.

Your government also believes that Law & Order is too intense for the hard-of-hearing. So is Power Rangers. You can rest easy knowing that your federal tax dollars aren't being spent to promote Sanford and Son, Judge Wapner's Animal Court and The Loretta Young Show within the deaf community. Kids with hearing problems can forget about watching Teenage Mutant Ninja Turtles, classic cartoons or Nickelodeon features. Even Roy Rogers and Robin Hood are out.
* * *
Lots of bloggers are commenting on this story, mostly taking a critical view of the Bush administration's "censorship."

What the commenters seem not to know is that the Department of Education is just following a law signed by President Clinton on June 4, 1997. The law -- which amended the Individuals with Disabilities Education Act -- can be found at P.L. 105-17. The relevant section (201(c)) was codified at 20 U.S.C. 1487, and it requires that after fiscal year 2001, the Department of Education can provide public funds for closed captioning only for "educational, news, and informational television, videos, or materials."

Thus, when the Department of Education issues a notice (as it did last July) inviting projects to submit requests for a closed-captioning grant, each project must create a "consumer advisory group" that will "certify that each program captioned or described with project funds is educational, news, or informational programming."

One might quibble with some of the choices made by the Department of Education. (You can find a list of the non-approved and approved television programs here.) But the fact remains: the law signed by President Clinton does limit the Department of Education's ability to fund the closed-captioning of fluffy entertainment programs. (Yes, I'm assuming for purposes of discussion that Bewitched, Sanford and Son, Teenage Mutant Ninja Turtles, and the like, do not remotely qualify as "educational, news, or informational.") Those who are unhappy with this situation should lobby Congress to change the law, rather than accuse the Department of Education of being "Talibanesque."

Friday, February 13, 2004

Justice Thomas

Via Howard Bashman, an interesting observation from Justice Thomas (speaking at Hillsdale College):
"We're still back in the race business," he said, when asked about the 50th anniversary of Brown v. Board of Education, a Supreme Court decision that ended school segregation. "We haven't solved the problem of educating people of my race or other minorities. We seem to be answering that by putting black men in prison. That's sad."

Tuesday, February 10, 2004

A Good Childhood

Harry at Crooked Timber has an interesting post discussing what makes for a good childhood:
But I do want to prompt a discussion about one thing -- the exposure of young children to commercial culture. Evangelical Christians in the US seem to have developed a kind of counter-culture for kids which shields them from the worst aspects of commercial culture (as well as some of the better aspects of secular liberalism, no doubt). But I'm amazed at the scorn that secular leftist pour on them for this. It seems to me that they are doing what any sensible person would do (and I try to do with my daughters). Popular culture is infused with values that nobody would deliberately teach their children. It just isn't good to spend your life trying to make lots of money; to use your sexuality for personal gain, to idolize sports stars, celebrities, the rich, or to indulge one's desires without judgment or self-restraint. Like the evangelical Christians, secular leftists hold contrary values; and like the evangelical Christians they want their children (and all children) to learn a different set of values than those which corporate America has a material interest in spreading.

Friday, February 06, 2004

Gould and the Goldberg Variations

I just got a CD of Glenn Gould's 1959 live performance of the Goldberg Variations in Salzburg. It's a great performance; I probably prefer it over his 1955 and 1981 studio recordings, for the reasons expressed here.

Thursday, February 05, 2004


States I've visited:

I'm not sure whether I should have any moral qualms about including Utah. The only time I set foot there was when I was fifteen and my family drove to the Four Corners (where Utah, Colorado, Arizona, and New Mexico meet).

Wednesday, February 04, 2004

The Super Bowl

In all the endless discussion of the Super Bowl halftime show, I haven't seen any mention elsewhere of this possible act of censorship:
CBS did in fact practice some very aggressive censorship last night, if I am not mistaken. After a while I noticed when looking at the end zones shots you always get when a team is attempting a field goal or an extra point, that some fans were holding up bright yellow poster boards that were, apparently, blank. Why in the world would someone hold up bright yellow blank poster boards? When I looked more closely at the “posters,” it was apparent that they were digitally enhanced, blocking out some lettering behind the yellow. Now these posters were situated where I normally see “John 3:16” posters at football games, including the Super Bowl.

Perhaps someone has additional information about this, such as a shot of the end zone without bright yellow digital censorship to show what the suspect posters said. I would not be surprised if they did, in fact, proclaim, John 3:16.
Not that it makes any difference to me, I suppose. Such is my obliviousness to the world of trivial pursuits (I mean, sports) that I didn't know the Super Bowl was taking place until the day of the event.

New Blog

A new law-and-religion blog has sprung up: Mirror of Justice. Its initial post says that it's a "group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law." Among the eleven professor-contributors are Stephen Bainbridge, whose eponymous blog is well worth reading, and my friend Rick Garnett, who also blogs at the excellent (though somewhat esoteric) Punishment Theory. I couldn't decide whether to put it under my list of "Religion" blogs or "Legal" blogs, so I created a brand new category: "Religion and Law."

Movies and Books

Some stuff I've watched or read lately:

Stevie. This is an award-winning documentary made by the same guy who made Hoop Dreams. It's about a man named Stevie, who was beaten and abused as a child, and who ended up in trouble with the law. It is one of the most moving and heart-wrenching films I've ever seen. For a full review, go here (scroll down), or check out all the rave reviews at Rotten Tomatoes.

Warranted Christian Belief. I finally finished Alvin Plantinga's third installment in his trilogy on epistemology. Definitely worth reading. (Also highly recommended: Warrant and Proper Function.)

All Shook Up: Music, Passion, and Politics, by Carson Holloway. This book examines the role of music in political philosophy, from Plato to Rousseau to Nietzsche to Allan Bloom. The historical chapters are quite interesting, and I find it odd that current political philosophy tends to ignore the many great philosophers who have argued that the characteristics of a regime can be influenced by music and its effect on the passions. Holloway's prescriptions as to modern America, however, are a bit vague and not so well-defended.


An interesting perspective from Republican Senator Chuck Grassley: "I think it's legitimate for me to question all of our intelligence information because that I never learned anything from those briefings that I hadn't learned in the newspapers. If they don't know anything more than they're telling us, what's the use of having an intelligence agency, and why bother to brief us?"