Eugene Volokh's Blog, page 2629
January 21, 2012
"Words Are a Scarce Resource" ... Is This a Methodology Leading to These Conclusions?
Andres Marroquin, a Guatemalan economics blogger I follow with interest, has a new draft paper (co-authored with Julio Cole), "Economical Writing (Or, Think Hemingway)." It is summarized at Marroquin's blog post, The Economics of Writing.
Literature [Nobel] laureates tend to use shorter words than laureates in other disciplines, and the difference is statistically significant. These results confirm Salant's idea that words are a scarce resource and should be used efficiently. This includes using short words instead of longer ones whenever possible. In short, good writing is also "economical writing." [Table omitted.]
Note that the lowest average word lengths are for the Literature prize. In terms of syllables/word the Literature laureates' word lengths were, on average, almost 8% shorter than the weighted average for non-Literature laureates, and about 6.6% shorter in terms of characters/word.
Salant (1969) argued that the use of short words is an indication of good writing. We found support for this hypothesis by comparing the banquet speeches of Nobel laureates. To be sure, word length is only one dimension of what makes for "good writing." But it seems that it is a necessary dimension. Words are a scarce resource and must be used efficiently. This includes using short words rather than longer ones, whenever possible. "Economical" writing might indeed be the key for "good" writing. We leave for debate the different implications of our paper.
I invite readers to consider in the comments whether the method pursued here is suited to the task at hand, or whether it is instead an example of a method gone in search of something to measure, or something again entirely. Note that this is different from asking whether good writing indeed consistently uses shorter words (the Hemingway or Orwell "plain prose" aesthetic), or whether good writing is much more variable on this metric than one might have guessed (Blaise Cendrars, for example, or Garcia Marquez or Milan Kundera). Finally, is it true that "words are a scarce resource?" Don't the authors mean, rather, that more words are always available and that reader attention is the scarce resource? (BTW, in posting this, I should ask whether I have been taken in by a parody — someone bidding for an Ignoble Prize?)
Ryan Calo on Regulatory Gaps and Robotics
Ryan Calo, director for robotics at Stanford Law School's Center for Internet and Society, has a new, op-ed length essay on the ways in which robots fall in-between regulatory stools as they move from specialized factory or military functions into everyday life. Who Will Regulate Robots?
Students of this transformative technology should keep their eye on both the claims and disavowals of authority over robots by state and federal agencies. Each hold potential dangers for our civil liberties and for the future of robotics ... the mainstreaming of robotics will pose challenges for regulators. Even if it is clear that a given agency should have something to say about a robot, it is not clear exactly what the scope of their authority will be.
The Federal Aviation Administration worries about (and, for now, restricts) the domestic use of drones on the basis of safety. But the agency does not appear to have anything to say about the potential of this technology to infringe upon citizen and consumer privacy. Similarly, the National Highway Safety Traffic Safety Administration thinks about the impact of autonomous vehicles on safety but does not appear to have given any thought to the effects of driveless cars on citizen autonomy—for instance, were law enforcement to claim a right to force an autonomous car to slow down or pull over.
When I first mentioned my interest in robotics and the law beyond the battlefield where I have been studying it for several years, a sophisticated law professor friend asked how there were legal issues beyond tort and products liability. The rest of the potential issues — intellectual property, etc. — were not particularly special to robots. Ryan Calo's scholarship has been central to showing the many ways in which this potentially transformative, but also disruptive, technology raises in its knock-on effects many legal questions. And as he says, the avowals and disavowals of regulatory authority by existing regulatory agencies over different types and aspects of robotics raise the specter of regulating things we wish were not regulated, but also failing to regulate things we might wish were. Comments open for this post.
January 20, 2012
Glenn Greenwald on Anti-Semitism
Glenn Greenwald has a very Glenn Greenwaldesque post on the controversy over alleged use of anti-Semitic language by bloggers at the Center for American Progress, which I discussed last week.
One would never know from reading Greenwald's piece that the controversy primarily revolved around the use of the term "Israel-firster" to describe supporters of Israel, much less that one can say two things about that term without much fear of contradiction: (1) it originated on the neo-Nazi fringe, and has only been adopted by left-wingers in the last few years; (2) it's a term that not only substitutes insults for argument, but it implies loyalty to a foreign power, a longstanding theme in anti-Semitic literature.
As I said before, that doesn't make the phrase somehow "objectively" anti-Semitic if used by individuals who had no anti-Jewish intent. However, as I also noted, most people of good will try to avoid using phrases related to Jews once they recognize that they have the odor of neo-Naziism about them (and indeed the CAP bloggers deleted the posts in question after the controversy broke). Others, however, like Greenwald, continue to think the phrase perfectly appropriate.
Moreover, left-wing writers tend to be especially sensitive about using language that has potentially racist implications, and also tend to be quick to accuse others of using "dog whistle" phrases–phrases that sound neutral, but are meant to stir racial animosity or invoke racial stereotypes.
In Greenwald's defense, unlike many other left-wing anti-Israel writers who are quick to reject colorable charges of anti-Semitism, he has been a fearless opponent of political correctness, and has defended Republicans and conservatives from questionable charges of racism.
Actually, that's not true. Actually, the opposite is true. Here, for example, is Glenn Greenwald in 2008, accusing John McCain of delivering "one of the ugliest, nastiest, most invective-filled" attacks "a major candidate has ever delivered, blatantly designed to stoke raw racial resentments." The offending language? (Italics are Greenwald's): It's as if somehow the usual rules don't apply, and where other candidates have to explain themselves and their records, Senator Obama seems to think he is above all that . . . His campaign had to return $33,000 in illegal foreign funds from Palestinian donors, and this weekend, we found out about another $28,000 in illegal donations. Why has Senator Obama refused to disclose the people who are funding his campaign? Again, the American people deserve answers.
Let's get this straight. Suggesting that the usual rules don't apply to Obama, stating that he returned illegal campaign contributions from Palestinian donors, and claiming that Obama refuses to disclose his funders isn't just overheated (or silly) campaign rhetoric, isn't even just ugly and nasty, but "is blatantly designed to stoke raw racial resentments."
So, mentioning illegal Palestinian donations = blatant racism; adopting language appropriated from neo-Nazis within the decade about Israel's supporters = clearly not anti-Semitic. Suggesting that a Obama has avoided "the usual rules" = blatant racism; suggesting that pro-Israel Americans care more about Israel than about the U.S. = clearly not anti-Semitic. Accusing someone of using anti-Semitism for using the Israel-firster slur makes you part of a "smear campaign"; accusing John McCain of blatant racism for claiming that Obama has not disclosed his campaign donors makes you a courageous left-wing blogger speaking truth to power.
I'm not going to argue that Greenwald's racism argument is completely absurd–he's a good lawyer, and he makes at least a marginally colorable argument in the rest of his post. But his argument is MUCH more of a stretch, or, if you will, much less well-founded, than the argument that "Israel-firster" is anti-Semitic language.
Obviously, Greenwald's sensitivity to offensive language depends on whether he likes/agrees with the target. When his favored candidate, Barack Obama, was being attacked by John McCain, he was extremely quick to accuse McCain of using language designed to appeal to racist sentiment. When pro-Israel activists and politicians, a Greenwald-disfavored group, are being attacked by his anti-Israel compatriots, suddenly they are inherently immune from any hint of using anti-Semitic (a form, of course, of racism) language unless, perhaps, they are wearing swastikas and celebrating Hitler's birthday. And the fact that Greenwald can and has come up with examples of where some of Israel's supporters have used charges of anti-Semitism in inappropriate or exaggerated contexts is quite irrelevant to the point, just as it would be irrelevant to Greenwald's post about McCain if someone pointed out that charges of racism against Obama's opponents are at times inappropriate or exaggerated.
Some Comments on the Privilege Against Self-Incrimination, from 25 Years Ago
The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney's Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North's and John Poindexter's decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:
[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there's nothing he'd like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.
[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.
[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan's national security aides of "deserting their country" by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. "These guys are being praised as national heroes," Sen. David Durenberger (R., Minn.) told reporters. "If they are such heroes, why are they deserting their country when they are finally being put to the true test?"
[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North's voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.
I express no opinion on whether such views are right or wrong, either with regard to North and Poindexter or with regard to Patrick J. Cunningham, the federal prosecutor who is taking the Fifth in the Fast and Furious investigation.
Discrimination Based on "Any Vote [a] Voter May Cast or Consider or Intend to Cast"
A North Carolina statute, § 163–274(a)(6), makes it a misdemeanor "to discharge or threaten to discharge from employment ... any legally qualified voter on account of any vote such voter may cast or consider or intend to cast." North Carolina employment law also generally makes it civilly actionable to fire an employee "in contravention of express policy declarations contained in the North Carolina General Statutes," which I suspect means that actions that violate this criminal statute would probably also be tortious.
Say that a private employer in North Carolina fires an employee for expressing support for a candidate or a proposed constitutional amendment that the employer views as highly reprehensible. Say, for instance, the employee says "Newt Gingrich is the best presidential candidate out there," though without an express statement that "I'm going to vote for him," or "I'm glad that a constitutional proposal to expressly forbid same-sex marriage is finally on the ballot." And say that the employer then fires the employee based on that statement.
Should that be viewed as discharging the employee "on account of any vote such voter may ... consider or intend to cast," and therefore actionable? Or would it likely be viewed as discharge based on the employee's pro-candidate speech rather than the employee's perceived intended future vote, and therefore not actionable? (North Carolina is not one of the 16 states that generally bars private employer discrimination based on an employee's speech or partisan political activity.) I ask this because I'm finishing up an article that would list the state and local laws that ban private employer discrimination based on speech or certain kinds of political activity, and I'm trying to decide whether to categorize this statute as a possible protection for speech supporting or opposing a candidate or constitutional amendment.
Justice Stevens on The Colbert Report
I'm not sure what to make of this, but the ending is good.
The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive
Thanks to How Appealing for the link.
Did Gingrich Really Ask for an "Open Marriage"?
That's the report–but that's not what the facts seem to indicate as noted by James Taranto:
The interview aired on "Nightline" some 90 minutes after the debate ended, and the bombshell turned out to be a dud. The supposed big revelation–that "he wanted an open marriage," as she, not he, put it–turned out in context to be trivial.
As Mrs. Gingrich told the story, the then-speaker informed her over the phone that he wanted a divorce. "I said to him, 'Newt, we've been married a long time.' And he said, 'Yes. But you want me all to yourself. Callista doesn't care what I do.' "
"What was he saying to you, do you think?" asked interviewer Brian Ross.
Mrs. Gingrich: "Oh, he was asking to have an open marriage and I refused."
By her account, he first asked for a divorce. She protested, and he made clear that he was unwilling to give up his then-mistress. It's unclear from Marianne Gingrich's account whether Mr. Gingrich actually offered to remain married in exchange for tolerance of his infidelity, or if this was merely her inference.
In either case, there is an enormous difference between offering such an arrangement as a "compromise" to a spouse who does not wish to divorce, which is what Mr. Gingrich appears to have done, and flat-out asking for an open marriage. Neither reflects well on him, but the former is within the normal range of cruel and confused behavior during a breakup, whereas the latter is, at least by American standards, deviant.
Note first that Gingrich never proposed having an "open marriage"–that's the ex's characterization. And it doesn't seem accurate to me either. It looks like what Gingrich told her is (1) I'm in love with Callista, (2) I would like a divorce, (3) that he was planning on remaining with Callista regardless of whether she granted him a divorce, and (4) it is ambiguous (to me) what "Callista doesn't care what I do" it could reasonably interpreted that Callista would tolerate infidelity or it could also reasonably interpreted that he was saying that Callista didn't care whether he got a divorce or remarried (again recall this is the ex's characterization of a conversation a long time ago and what was actually said between those two meanings would require a lot of nuanced parsing). One could use a lot of terms to describe that set of facts (none of them flattering) but "he was asking to have an open marriage" isn't how I would characterize it nor do I think most people would characterize it that way. Especially because, as Taranto notes, the use of that term in the United States connotes deviancy such as swinging with multiple sex partners, rather than a long-term extra-marital affair.
To which I'll add that given the facts as they appear to be and that the inflammatory term was provided by the ex, not by Gingrich, I think he was justified to berate John King for giving credence to the story–and I would say the interpretation that he "asked for an open marriage" is so inaccurate to actually be false (although others might disagree).
It should be obvious that I am not defending Gingrich's behavior but I'll say that explicitly just to make sure. I also think that character issues such as this are not necessarily out of bounds for the media because they matter to some voters. I'm just saying that this is an exceedingly dubious characterization of the story, which is not nearly so deviant as reported.
A Milestone Week for the Net
Well, that was interesting!
Wednesday's day of protest marks, I believe, a profoundly important turning-point in the history of the Net and of its place in human society. Several months ago, in one of my many periodic rants about the dreadful, unconstitutional, and repellant features of the intellectual property laws introduced into this session of Congress (SOPA and Protect-IP), I wrote:
The IP bills that Congress now has before it . . . are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I'd be interested to hear them.
I co-authored (with Mark Lemley and Dave Levine) a "Law Professors' Letter of Opposition," and I've blogged about it a number of times before (as have others), . But I'm going to keep at it because this is an issue that really needs more public traction than it is getting. I'm not going to stand here and say that this law will destroy the Internet as we know it, although I actually believe that to be true. I'm not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I'll put that aside and focus on the principles at stake; even if the damned thing weren't going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you'll agree with me.
What's most gratifying about the events of the last couple of days — and I assume that you don't need me to point you to the Wikipedia blackout, the Google petition, etc. etc., and the avalanche of media coverage this generated — is not just that these awful bills now stand a much, much lower chance of passage than they did a week ago (though that's very gratifying). (Chris Dodd, head of the MPAA and one of the prime backers of the bills, is quoted in today's NY Times as being ready to sit down with the tech companies and talk about the best ways to fight online piracy — a sure sign that the copyright maximalists have pretty much raised the white flag, at least temporarily, in this battle).
And it's gratifying, too, on a personal level, to have participated, in even a small way, in bringing these events to pass. I do think that our Law Profs' Letter, released early in the game, helped draw attention to the issues involved and to galvanize the opposition; there were 60,000 or so downloads from scribd.com, a good deal more than I'm accustomed to, and our op-Eds at the Stanford Law Review and Huffington Post got lots of play as well.
But that's not the most gratifying thing about these events, either. The most gratifying thing, to me, is that we helped push the Net to an inflection point that is, in a way, its only hope of survival. The Internet is a much more fragile thing than most people believe it to be, and if it is to thrive it will need a kind of civic engagement that we haven't had — until now. About a year and a half ago I gave a keynote talk at a conference at Michigan State on "The Challenge(s) of Cyberlaw," and I said the following:
Let me start with an observation the great Lon Fuller made many years ago, an observation I like so much I've put it somewhere in probably half the things I've ever published. Fuller wrote, at the end of a discussion of the future of international law:
"[L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . . When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this. . . ."
What did he mean? And what does it have to do with what we're doing? The tree can "realize its own capacity for perfection," but only when "all concerned genuinely want it to grow properly," and our task is "to make them want this." ???
What it means, to me, is this: Our task, as lawyers and law professors and "experts" on these difficult questions, is not really to solve the many problems bedeviling "Internet law." Rather, our task is to help others to think about those problems, and to galvanize them into doing so, to make want the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to give a damn, and to set the wheels in motion whereby sensible law might – might – get made.
That happens, I'd suggest, when people start to think of themselves as "citizens" of this new place, this "imagined community." Because that is what citizens do: they care – they have standing to care, a kind of entitlement to care – about events, especially legally significant events, transpiring in faraway places, because those events affect them as citizens of a common place. People may, of course, care about other events affecting others, those with whom they do not share the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran – but they care about those things in a different way, a non-participatory way.
And the other thing that citizens do is they defend their place when it is threatened or under attack.
I think, in short, that our task is to somehow help people to think of themselves as "Netizens." There – I've said it.
Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy to ridicule, especially in its more ridiculous formulations. But we should resist the temptation. Just to be clear, here's what I don't mean by it. I don't mean that we will or should cast off the shackles of this earthly existence, renounce our citizenship in the dinosaur-like nation-states we have been bequeathed, and begin building the New Jerusalem online. And I don't mean that we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with, our status as citizens of the United States (or France, or Brazil, or wherever).
That's not what being a Netizen means. What it does mean is that we are all now members of a global community with a very specific, very particular shared interest in the health and well-being of this network, and that we should begin thinking and acting as such; that we all have a stake, along with all the other members of that community, equally, in what happens on and to that network, and that we have a right, and possibly even a duty, to find ways to participate in shaping and governing it so that it remains as vibrant and open as we want it to be (whatever we collectively think that means).
It's a terrible label — "netizen" — but an important concept. If people don't really believe they have an interest in this thing that we have built, then it is doomed. The converse, alas, isn't true — but people giving a damn about the health of the Internet is a necessary (though not sufficient) condition for it to be healthy, going forward. And that's what the events of this past week were about. All of a sudden, millions of people (check out some of the astonishing numbers hereh) took the Net seriously as a place that needed defending, and millions more tried to figure out why those first millions were so upset and what they were upset about. It does not, by itself, solve any problems — we might still get some terrible law down the road, on this issue or any one of a number of others, that will strangle this medium. But it sets the foundation for processes that can solve those problems, and that is a very, very good thing.
Marriage For Me But Not For Thee
John Corvino, a philosophy professor, notes a potential complication for Newt Gingrich's claim that he has repented, namely, that he continues to commit adultery in the form of remarriage:
Gingrich speaks with a straight face about the sanctity of "one man, one woman" marriage. . . His defenders from the religious right . . . claim that Jesus offers forgiveness and redemption to repentant sinners. Presumably, in their minds, anyone in a committed same-sex relationship counts as unrepentant. . . .
Yes, the Bible speaks of forgiveness and redemption. But if marriage really is "until death do us part," then Gingrich is still committing adultery with Callista. But don't take my word for it, take Jesus':
"Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery." (Mark 10: 11–12)
This double standard is worth pointing out, frequently, publicly and forcefully.
Under the traditional natural-law and Catholic view, marriage is the union of one man and one woman for life. Nevertheless, those who commit adultery and get divorced are certainly not disqualified from the presidency. More to the point, under the civil law, we even permit them to marry.
I assume Gingrich agrees that this latter violation of the natural law — divorce and remarriage — should be allowed under civil law. (It would be interesting to know if he does not.) Yet he has certainly not joined a crusade of constitutional amendment-making to prohibit divorce and remarriage, nor so much as uttered a word in support of such an effort. He wants his own preferred marriage practices to be free and legal, but wants to prohibit the marriages of same-sex couples. I can imagine reasons for that distinction, but Gingrich has never explained them before the audiences that drown him in cheers. And I am at a loss to find a justification for supporting civil remarriage — while opposing civil gay marriage – in the religious and philosophical teachings he claims as his own.
Indonesian Atheist's Statement Leads to Mob Beating, Criminal Prosecution
The Telegraph (UK) reports:
An Indonesian civil servant who posted a Facebook message asserting that God did not exist was taken into protective custody after being badly beaten by a mob, some of them his colleagues.
The atheist identified as Alexander, who goes by just one name, now faces five years imprisonment for blasphemy after police officially arrested and charged him on Friday.
The Indonesian Council of Ulema, the Islamic religious authority, reported him over his remarks on a Facebook page he moderated which said: "God does not exist[.]" Mr Alexander, 31, turned up at his government planning offices in Dharmasraya, western Sumatra, on Wednesday to be confronted by a group of men who beat him and then took him to the police.
Thanks to Opher Banarie for the pointer.
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