A friend alerts me by email that a new Rousseau biography is out in the US. “Jean-Jacques Rousseau: An Unruly Mind”:http://www.amazon.com/exec/obidos/ASIN/0618446966/junius-20 by Leo Damrosch is “reviewed in the books section of the NYT”:http://www.nytimes.com/2005/11/06/books/review/06schiff.html today. It is hard to see how this will better Cranston, although Cranston unfortunately died before he completed his final volume (it was finished by someone else and is the thinnest of the three). I’m off to the US tomorrow, and will get myself a copy of Damrosch’s book asap.

Getting drunk part of Australian culture, study finds. “The National Drug and Alcohol Research Council study of 1,500 Australians found that some 58 percent of people agreed that sometimes having too much to drink was ‘simply part of the Australian way of life.'”

Eugene Volokh strikes a blow against the “judicial activism=judgifying I don’t like” equation. The 9th Circuit determined that “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children.” (The case involves a questionnaire administered to 7-11 year-old public school students in California whose parents had signed a permission slip. Among the questions were a number of a sexual nature. I agree with the plaintiffs that the permission slip was misleading, and many would regard the questions as inappropriate, and someone should get a slap from the human subjects board at their university. However, this isn’t a reason to divine new rights in the Constitution…)

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On a couple of long plane flights this week, I read Janet Browne’s Charles Darwin: The Power of Place, the second volume of her biography of Darwin. (I haven’t read “Volume One”:http://www.amazon.com/exec/obidos/ASIN/0691026068/kieranhealysw-20/.) I strongly recommend it. Three things stood out for me.

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I haven’t seen much discussion of this AP report that Ayatollah Sistani is likely to call for a withdrawal of US troops after the elections on December 15 (found via Juan Cole).

It’s unclear whether this is an accurate report of Sistani’s intentions, a trial balloon, or an attempt by some in his circle to create a fait accompli. But assuming the report is accurate, it seems clear, as Cole says, that any attempt to resist such a demand from Sistani would be futile, especially now that the Sadrists, still violently opposed to the occupation, are likely to play a large role in the new government. Nevertheless, the US, backed by current PM Jaafari is currently seeking a 12-month extension of the occupation mandate from the UN, instead of the 6-month extensions sought previously.

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I don’t often just reproduce someone else’s post verbatim, but I just surfed over to the Virtual Stoa where “Chris has”:http://users.ox.ac.uk/~magd1368/weblog/2005_11_01_archive.html#113096578158707788 the following from the “US Department of Justice”:http://www.ojp.usdoj.gov/bjs/pub/press/ppus04pr.htm

bq. ALMOST 7 MILLION ADULTS UNDER CORRECTIONAL SUPERVISION BEHIND BARS OR ON PROBATION OR PAROLE IN THE COMMUNITY

bq. WASHINGTON, D.C. — The number of adults in prison, jail, or on probation or parole reached almost 7 million during 2004, the Department of Justice’s Bureau of Justice Statistics (BJS) announced today. The number has grown by more than 1.6 million adults under correctional authority control since 1995.

bq. The nation’s total correctional population was 6,996,500 in 2004, of which 4,151,125 were living in the community on probation; 1,421,911 were in a state or federal prison; 765,355 were living in the community on parole; and 713,990 were in jail, according to the BJS report on probation and parole. At year-end one in every 31 adults were under correctional supervision, which was 3.2 percent of the U.S. adult population…

As Chris says, wow.

Surfing over to “Nationmaster”:http://www.nationmaster.com/index.php — which uses the stats for 2003 and so has slightly fewer actual prisoners — I see that the US also has the highest absolute number of prisoners in the world (more than China!) , and the highest number per capita (715 per 100k). For comparison, the higher number per capita in the EU is 210 per 100k (Poland) and 144 for “older” Europe (Spain). For some reason the UK isn’t listed, but I think the figure works out at about 125.

Norm Ornstein, who sometimes seems to be the AEI’s sole remaining scrap of credibility, has an op-ed in _Roll Call_ today on the Alito nomination. The original version is behind _Roll Call_’s paywall, but “Steve Clemons”:http://www.thewashingtonnote.com/archives/001056.html has the relevant extracts.

To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce — and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.”

Whatever it is, it’s not judicial restraint.

… Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don’t like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don’t even pay lip service to the principle when voting to overturn legislative acts.)

Now Ornstein’s writing from the perspective of a Congress scholar who wants to preserve Congress’s role and prerogatives. But he has a very serious point. If Alito has aligned himself, as he “seems to have”:http://corner.nationalreview.com/05_10_30_corner-archive.asp#081332, with a highly restrictive view of Congress’s powers to regulate interstate commerce, he’s bad news for the left.

Update: the complete column is “here”:http://www.aei.org/publications/pubID.23406,filter.all/pub_detail.asp (thanks to schwa in comments).

While we’re on the subject of Google Map and Google Earth overlays, “Kathryn Cramer”:http://www.kathryncramer.com/kathryn_cramer/2005/10/google_earth_dy.html and her friends have been doing some interesting and important work on importing satellite data as overlays, and using this as a means to disseminate information about, and focus attention, on natural disasters. This information can be used to discover hill carvings of knights and dragons; but it can also (and this is Kathryn’s main point) bring home what’s happening in disaster zones such as the earthquake region in Pakistan.

I see that the left sidebar now has a permanent link to Eszter’s “Frappr Map of Crooked Timber”:http://www.frappr.com/crookedtimber readers (scroll down: under Frenzy of Renown). Add yourselves (if you want to and you haven’t already – especially if you come from Africa, South America, Eastern Europe or Antarctica).

Wow, there is some serious pumpkin-carving talent out there.

Anyone see any interesting costumes this year? One of my students had two “ears” on her head and pasted a “left click” and “right click” sign on her shirt. I thought that was cute.

I printed out a bunch of signs saying ebay, PayPal, some emails, some instructions to enter your password, and some login screens. I put those on my clothes and also had a plastic fish in my hand. What was I?

An addendum to the previous post: when Zywicki says that:

bq. I think this cultural temperament may reflect itself in a anti-elitist streak rebelling against the arrogance of the Supreme Court and the federal judiciary and a humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.

he’s setting himself up for more trouble than he’s bargained for. Consider this “recent NYT article”:http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?ex=1278302400&en=0e5fac7774080327&ei=5090&partner=rssuserland&emc=rss.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more “liberal” – Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens – vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Whatever conservative justices are showing here, it sure ain’t “humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.” But as “Atrios”:http://atrios.blogspot.com/2005_10_30_atrios_archive.html#113080046968302435 says, the conservative critique of “Judicial Activism” usually reduces down to a rather less impressive sounding hostility to “Judgifying I don’t like.” If Zywicki genuinely thinks that lack of judicial deference to Congress is a fundamental problem, he should take the obvious next step – start pushing for a new Justice along the lines of Ginsburg or Breyer rather than Thomas or Scalia. Need I say that I’m not holding my breath?

Update: “Orin Kerr”:https://crookedtimber.org/2005/11/01/judgifying-i-dont-like/#comment-116641 and others in comments make a good point that I hadn’t considered. To the extent that conservative legal thought is more skeptical of federal law and left wing legal thought more skeptical of state law, Golder and Gewirtz’s analysis (which deals only with rulings overturning federal law) probably stacks the decks. But while this may mean that the snark in my final two sentences was unjustified, it doesn’t give a free pass to conservatives by any stretch. The conservative expressed preference for state law over federal law is hardly unrelated to the fact that (a) the state laws at issue are frequently substantively closer to conservative preferences than are federal laws, and (b) that a strong emphasis on states’ rights makes various forms of economic and political regulation much less feasible in an interconnected economy of 50 states. So too for liberals of course, but the point is that humility in the face of democratic legislatures isn’t the driving force here – it’s calculations about substantive outcomes. The political science literature here has very strong evidence indeed on how judges’ ideologies affect their rulings – Epstein and Segal’s _Advice and Consent_ finds that justices’ ideology is a “remarkably good predictor” of how they will vote on the Supreme Court. And indeed when issues of state law versus federal law collide with the substantive ideological desires of judges, the latter frequently lose, as witnessed by _Bush v. Gore_ which Epstein and Segal correctly describe as a “thinly veiled attempt on the part of the Court’s conservatives to put George W. Bush in the White House.”

It’s all confirmthem.com, all of the time at the Volokhs today; Todd Zywicki chimes in with his little “bit”:http://www.volokh.com/archives/archive_2005_10_30-2005_11_05.shtml#1130797431.

bq. For those like myself (and I hazard to guess Scalia, Alito, and Thomas) conservatism is attractive because it now seems to be the party of meritocracy where one is judged on your character and ability, and not on your connections or demographics. As the doors of schools such as Princeton and Yale Law School (in Alito’s case), and the professions themselves have been thrown open to Italians, Poles, Irish, etc., individuals such as Scalia and Alito have had the opportunity to prove themselves. Among other things, I think this cultural upbringing reflects itself in a skepticism about racial preferences in college admissions and hiring. It is difficult to say, from what I can tell, that Sam Alito’s ascent to the Supreme Court came about through some sort of unfair advantage, money, or family connections. In the legal arena, I think this cultural temperament may reflect itself in a anti-elitist streak rebelling against the arrogance of the Supreme Court and the federal judiciary and a humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.

The best rejoinder to this conservatism-as-meritocracy trope that I’ve seen is Walter Benn Michaels’ brilliant little essay on the neoliberal imagination for “N+1 magazine”:http://www.nplusonemag.com/ (not available online – but see “here”:http://www.boston.com/news/globe/ideas/articles/2005/10/09/class_fictions/ for a shorter version). Michaels’ essay is devastating as a critique both of liberal and neo-liberal/conservative attempts to brush the issue of class under the carpet. When conservatives claim that in the absence of formal discrimination, merit will out, they’re making a claim that isn’t any better justified by the empirics than the liberal notion that a carefully metered dose of ‘diversity’ makes up in any substantial sense for a system that’s overwhelmingly skewed against the poor. [click to continue…]

Ed Felten quotes a disturbing snippet from an interview with SBC CEO Edward Whitacre concering traffic flowing through SBC pipes:

Q: How concerned are you about Internet upstarts like Google, MSN, Vonage, and others?

A: How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?

The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes [for] free is nuts!

Ed (Felten that is) rightly notes that calling the service free is hardly correct when SBC customers (me being one of them) pay monthly fees for it. He then goes on to discuss some other problems with the quote. But I want to focus on one particular issue having to do with SBC’s status as a common carrier.

Randy Zagar correctly points out in the comments to Ed’s post that common carriers are legally prohibited from monitoring the content of the traffic that flows through their pipes, which means that they cannot legally discriminate among content the user requests. So how could they do what CEO Ed Whitacre is suggesting? I’m not a legal scholar nor am I up-to-date on possible recent developments, but I am quite sure this law is still in effect. I welcome clarification.

The conversation on Ed’s blog regarding this matter seems to focus mostly on prices and commercial considerations. But how about political ones? What if an Internet service provider company had a leadership that was especially supportive of a certain political view (whether backing a particular political candidate or taking a certain side in a debate over, say, abortion or gay rights). Let’s say the leadership in said company was aligned enough with a particular perspective that they did not care if restricting access to certain content perhaps even led to lost revenues (in the short term or long). Let’s assume they were more interested in pushing a certain political perspective and decided to block access to Web sites that disagreed with these views. What then? If there are several players in town then the user can perhaps switch providers. That said, blocking usually happens in a way that doesn’t make it at all clear to the user what happened and why a certain site is inaccessible. So it is not clear that the user will know what alternative route to take to access the desired content.

The reason I decided to get DSL at home instead of cable is precisely because of the law concerning common carriers and their neutral stance with respect to content. I don’t want my provider to discriminate among the types of material I request. I went so far as to bother getting a land line installed just for my DSL connection despite the fact that I am already paying for basic cable anyway as part of my building’s assessment fees and so getting Internet access on cable would have been easier (and possibly cheaper). I realize this level of obsession with having guaranteed access to different types of content is probably not common, but I believed it to be an important enough distinction to bother. But what was the point if the CEO of my common carrier believes in what is articulated in the above quote?

Do head over to Ed’s post for more on problems with Whitacre’s comments.

UPDATE: I just came across this piece that points to a draft of the new broadband legislation. Among other things, it “[e]nsures network neutrality to prevent broadband providers from blocking subscriber access to lawful content.”

Go nominate some deserving soul, or souls, for best history blogging in various categories.