Kieran Healy rightly celebrates the award of the economics Nobel to Daniel Kahnemann. He describes it as part of a trend toward giving the prize to somewhat non-mainstream figures, and proposes Albert Hirschman as a worthy candidate. I’d add Tibor Scitovsky to that list. And when are they finally going to get around to Tom Schelling?


Two readers point out what I should have known: Scitovsky died over the summer. That makes him eligible for canonization, but ineligible for the Nobel.



David Murray, special assistant to the director of the Office of National Drug Control Policy (the “drug czar’s” office) disagrees (here) with my views here and here) about the great marijuana potency scare.

I suppose I should be honored that someone in Murray’s position spent so much time responding to a month-old post on what was then a truly obscure weblog, though if Murray truly thinks I’m “a smart guy, from whom much can be learned” it’s too bad he is so intent on misstating my arguments to make me look like a fool or a scoundrel. And if he really found what I had to say “hard to figure,” he could have picked up the telephone; he has my number.

In fact, of course, Murray’s official position means that he isn’t allowed to look around for facts and then craft policies to fit them; he starts with a policy choice — cannabis must, at all costs, be kept strictly illegal — and has to find what facts and arguments he can to support it.

I criticized Murray’s boss, John Walters, for saying that “the potency of available marijuana has not merely ‘doubled,’ but increased as much as 30 times.” My estimate was, and is, that potency is up about a factor of three over the past generation.

(Technical note: The potency of cannabis is conventionally measured by its percentage of THC [delta-9 tetrahydrocannabinol], its primary psychoactive agent. That convention isn’t entirely accurate, since several other chemicals in cannabis are also active, and the nature of the intoxication probably varies with the ratios as well as the absolute levels, but the approximation is, as they say, close enough for government work.)

Murray’s attempt to show that I first denied pot had gotten more potent and then affirmed it is just a word game; I denied that it had gotten more potent to anything like the extent his boss alleged, and then reported my own estimate of how much potency had actually grown.

In criticizing that estimate, Murray repeats Walters’s original error: comparing an extreme value today with an average value in the past and citing the ratio of the two as representing an increase. Extremes must be compared with extremes, and averages with averages. The numbers Murray cites — aside from a completely implausible figure of less than one percent potency from 1975 — are actually quite consistent with my estimate of a threefold increase on average, from the range of 2-3% THC to the range of 6-9% THC. Nothing in my argument would change if the growth in potency had actually been fourfold, which seems to me about as far as the data could plausibly be stretched.

The important question is not whether cannabis is stronger, but whether users are getting more intoxicated or face a higher risk of dependency. Murray cites no valid evidence, and I am aware of no valid evidence, that either of those things is true.

The number of treatment episodes and emergency room visits is up. But so is the number of cannabis users, especially younger teenagers. The age at first use has been falling steadily. Self-reported use among middle-school students has more than doubled since 1991, while self-reported use among high-school seniors is up 50%. More users, and younger users, would generate more treatment and ER episodes even if the risks per user had remained constant.

There is good evidence that today’s cannabis users are using less per sitting of the more potent — and more expensive — drug than their parents did. The average size of a “joint” has fallen from nearly half a gram to about a quarter of a gram. Self-reported intoxication levels are unchanged. Murray makes fun of this finding, but why should we assume that kids are incapable of reporting how high they get, or that the relationship between actual intoxication levels and self-reported intoxication levels has changed over time?

Murray seems to think that drinking cognac is more likely to get one drunk than drinking beer, and uses that to “prove” that higher potency must lead to more intoxication. Been a long time since your last kegger, Dave? Beer has remained teenagers’ favorite form of alcohol, by an overwhelming margin, even as the pattern of drinking has tilted toward bingeing and drinking to get drunk. (And self-reported intoxication levels from alcohol have risen correspondingly.)

Price matters. Kids drink mostly beer largely because the tax structure makes beer a cheaper drunk than whiskey. (The best single means of reducing substance abuse among teenagers would be to increase the beer tax.) Cannabis potency matters less than (potency-adjusted) cannabis prices.

I’m old enough to remember acquaintances in college buying marijuana around 1970 for $25 an ounce. Today’s prices are considerably higher; the report “What America’s Users Spend on Illegal Drugs” (prepared for, and published by, the drug czar’s office) gives $296 as the average price of an ounce in 2000. (See Table 9.)

(Note that the report assumes a purchase unit of 1/3 of an ounce, compared to the one-ounce unit my classmates regarded as standard. Smaller purchase units don’t necessarily imply smaller consumption units, but they do provide a hint.)

Adjusting for inflation and a roughly three-fold increase in potency, that means that the real-dollar cost of a milligram of THC has been about constant over that 30-year period, by contrast with 80% decreases in heroin and cocaine prices.

Since Murray remarks that I use “the same arguments that are routinely offered by marijuana legalization advocates,” let me once again put my actual opinion on record (quoting from my earlier post):

”My view is that the risks [related to cannabis use] are substantially greater than most of my well-educated boomer friends believe. Taking the entire population of people who have used cannabis at least five times, the risk in that group of becoming a heavy daily cannabis user for a period of at least months is something like one in nine. Being a pothead isn’t nearly as bad for you as being a drunk, and it usually doesn’t last as long, but it’s still not a good place to be.

”That seems to me a strong enough reason to oppose the legalization of cannabis on any commercial basis; I hate to think what RJR and Miller Brewing (or whoever just bought Miller Brewing) could do if they had cannabis to market the way they now market tobacco and beer. In my ideal world, there would be no law against growing cannabis, using it, or giving it away, but selling it would remain banned. [Emphasis added]

Of course potency isn’t really the point; it’s merely a debating point. Would Murray or Walters, or any of the other drug warriors, support legalization of cannabis up to some potency limit, on the model of Prohibition-era “near beer”? Of course not. Why should they? My opposition to commercial cannabis sales wouldn’t change a bit if a potency limit were added, because people can get just as stoned on 3%-THC pot as on 9%-THC pot.

So why pretend that potency has anything to do with the real issues? There are solid arguments to be made against legalization of cannabis on anything like the current alcohol model. There are good arguments to be made against my preferred grow-your-own policy; that is, it has disadvantages as well as advantages. But the potency argument is just a bogey-man to scare the boomers into disregarding their own experiences, personal or vicarious, with pot. That old dog won’t hunt, Dave; give him a rest.

COMIC-STRIP CALVINISM Eugene Volokh proposes


Eugene Volokh proposes that Calvin’s pet stuffed tiger and imaginary friend is named Hobbes because Calvin himself is “nasty, brutish, and short.” I have to disagree.

[Those who remember the outcome of our set-to about Thucydides (see here and here and here) may be surprised to find me willing to join another literary battle, but though my Greek is marginal at best, I can usually get through the funny pages without moving my lips.]

Hobbes the Tiger, I claim, represents the State of Nature, the war of all against all, but also the insight that peace is necessary for survival. (Note that Hobbes, despite his tigerish form, is actually Calvin’s better angel, constantly warning him against rash action.)

Calvin, by contrast, represents his namesake’s view of the Total Depravity of human nature.

That the (apparently) totally depraved Calvin has invented himself such a wise and loving imaginary friend suggests that Watterson actually dissents from the grim Calvinistic way of looking at the world. Or perhaps the overwhelming force with which Hobbes, as a whirlwind, strikes Calvin again and again is meant to represent Irresistable Grace.

[Extra credit for whoever can recall the other three key tenets of Calvinism.

Hint: the acronym is TULIP.]



Blogger isn’t happy in its work, so I’ve had to set up a temporary site to report the earth-shattering results of my legal research.

Bottom line: The Times had it about right. The deadline Forrester successfully asked to have waived in the spring was a different deadline than the one that Lautenberg successfully asked to have waived in the fall, but if the question is whether the courts can waive election law deadlines, the two cases are precisely parallel.

Eugene Volokh reasonably asks whether the memo by Forrester’s lawyer was purely internal, in which case it would be the lawyer’s opinion and not necessarily the Forrester campaign’s settled view of the matter. It’s a good question, but I don’t think the answer is essential.

Whatever the status of the memo, Forrester did ask to have his ballot position changed, and that request was granted by a court, over the objection of another candidate. Forrester had no right to that change, which was requested after the deadline, unless the courts could waive an election-law deadline.

If it’s Forrester’s position that the New Jersey courts have no right to waive election-law deadlines, then he asked for, and was granted, an illegal advantage in the spring. If the New Jersey courts do have a right to waive election-law deadlines, then asking the US Supreme Court to overrule the New Jersey Supreme Court was an outrage.

Defendant Forrester is convicted of hypocrisy in the first degree and conspiracy to hocus the voters, and is sentenced to be laughed at unmercifully.


“But see,” as the law review footnotes have it, this item from a website called from last spring, which seems to support my original idea that the top spot is (in some convoluted way) in the gift of the party organization. I can’t find that in the statute, but maybe I missed it. Anyway, the article leaves no doubt that (1) there was a deadline; (2) the deadline had passed; and (3) Forrester won in court. Once again Sam Heldman at Ignatz found the facts the rest of us were vainly looking for.


John Rosenberg at Discriminations here and here continues to be outraged at “Joisey” justice, and somehow thinks that the incident illustrates a basic moral failing among liberals. I doubt it.

It turns out that the precedents in New Jersey all point toward the liberal construction of elections-law deadlines. See the opinion of the NJ Supreme Court.

Strict statutory construction is one possible view of how the law should work, and I add my poorly-informed assent to Eugene Volokh’s well-informed assertion that it is in general the better view. But stare decisis — precedent — is the only possible view of how the courts should work. Otherwise the law becomes utterly unpredictable, depending on which judge you drew and what she had for breakfast this morning.

So, given the line of precedents in New Jersey favoring the waiving of deadlines — stretching back half a century, and as recent as this spring, when Forrester asked for and got a waiver of his own — it seems to me that the New Jersey Supreme Court probably did the right thing. The least that can be said is that their action was clearly reasonable. [Jeffrey Cooper, who is, unlike me, qualified to have a professional opinion — he teaches law for a living — lays out the argument in detail.] The seven-member court includes two Republicans and an independent, and six of its seven members were nominated by Republican governors. That a court so constituted reached a unanimous decision should suggest that the decision was not the product of partisan cheating.

That’s what I find outrageous here — an attempt by Forrester and his allies to discredit both the court and the Democrats as having somehow done something sleazy and underhanded. I’m especially annoyed because I was one of the ones taken in. But I think the record is now clear, and those accusations ought to be withdrawn by those who have made them.


While your local newspaper probably wasn’t reporting it, the power-sharing arrangement that looked for a while as if it might actually end the troubles in Northern Island seems to be circling the drain. Kieran Healy explains:

All in all, it seems the art of constitutional politics is just not attractive enough to SF to make it give up its other main hobby, viz, being the friendly front-end of a highly professional terrorist organization.

[Note: SF is Sinn Fein, the IRA’s tame political party.]

For some reason, no one has figured out the obvious five-step solution:

1. Put Gerry Adams and Ian Paisley together in a locked room with a pair of daggers.

2. Wait half an hour.

3. Open the door.

4. Shoot the survivor.

5. Repeat as needed with similar pairs.


One reader asked if the proposed use of daggers reflected a bias on my part toward gun control.

Not at all; but it seems only just that those two gangsters suffer before they die.




For those of you — non-Christian, Christian, or post-Christian — who have been wondering why worshippers of the Prince of Peace seem to have so little scruple about waging war, my old friend Steve Harvester (a United Methodist pastor) has an explanation: it’s mostly the Emperor Constantine’s fault.

The essay is a breath of fresh air because it presents its pacifism straightforwardly, rather than trying to disguise it as policy analysis or international law.

The argument reminds me of one of my favorite lines from one of my unfavorite authors, G.K. Chesterton (The Napoleon of Notting Hill almost makes up for all the bigotry, but not quite):

“Christianity has not been tried and found wanting;

it has been found difficult and left untried.”




According to the Daily Kos, Reno is apparently pulling out all the stops for McBride.

I really hate it when people I despise refuse to act as badly as I expect them to act.

Don’t you?



I’m allergic to carrying out social policy arguments through the medium of Constitutional law, and a skeptic about “originalist” theories of Constitutional interpretation. Still, all Americans ought to acknowledge some sort of allegiance to the deal embodied in the founding document, and textual analysis must have some relevance to determining what that deal meant.

The meaning of the Second Amendment is controversial largely because of the underlying quarrel about gun control. At a textual level, though, the dispute revolves around the meaning of the introductory subordinate clause about “a well-regulated militia.”

The gun controllers would like “militia” to mean “state-sponsored reserve troops,” or what we now call the National Guard. The gun-rights folks would like it to mean what it seems to have meant in 1791, which is the whole body of (male) adult citizens, privately armed but available for collective defense.

If the latter is the right interpretation, then the “right of the people to keep and bear arms” as part of the militia would be an individual right, and a ban on private gun ownership, however desirable socially (for my doubts on that issue, see here), would face a Constitutional bar.

Let me assume, arguendo, that the gun-rights people have the rights of this textual issue. There remains the question of what arms an individual militia member may lawfully keep and bear. Not, presumably, a nuclear weapon, a tank, or a batch of anthrax spores.

The following argument occurred to me; having checked it out with a Second Amendment scholar on the gun-rights side of the question, who did not collapse in uncontrollable laughter, I offer it to the world, or at least to the blogosphere, for what it may be worth. As usual, I write under the correction of those who know more than I on this topic, and will pass their wisdom along to my readers. Here goes, then:

A militia member fights as a soldier, with whatever arms are conventional at the time, and fights lawfully according to the laws of war at the time.

A side-arm is not a weapon of war, because it lacks the range to strike the enemy. No private soldier carries one. Side-arms are for officers, to threaten, or if need be to shoot, disobedient subordinates. The rank-and-file carry long guns.

Moreover, to be lawful, a weapon must be carried openly. A concealed weapon is carried by a spy or an assassin, who can be executed as an “unlawful combatant.”

Ergo, a handgun is not a militia weapon, and in particular a concealed handgun is not a militia weapon.

Ergo, the Second Amendment provides no guarantee of an individual right to own handguns, or to carry them concealed.

Now this proves way too much for the comfort of the gun controllers; under this theory, a fully automatic AR-15 or a rocket-propelled grenade launcher would be militia weapons, as would the fabled “assault rifles.” But, if valid, the argument suggests that handgun controls are likely to pass constitutional muster. And of course it’s handgun controls, and especially rules about concealed carry, that are now at the center of the political argument.

Of course, even if this argument shows that handgun controls, or even a ban on any handgun ownership by individuals, would face no Constitutional bar, it can’t show (what may in fact be false) that any given control measure would improve public safety. But it does suggest that if the National Rifle Association wants to defend the Second Amendment, it ought to remember the meaning of the term “rifle.


Dwight Meredith of P.L.A. provides a link to his post reviewing the scholarly literature on the general Second Amendment question, with several links, including one to a piece by Glenn Reynolds in his law-professor hat. Meredith argues that Supreme Court recognition of an individual right to keep and bear arms would be good for the gun control forces, because:

1. The right, if construed as Reynolds construes it, in terms of an individual right to keep and bear that exists primarily for the purpose of militia service, would be subject to any reasonable restriction that did not amount to disarming the people. This, says Meredith, would allow the gun controllers anything they could reasonably want, and much they wouldn’t even thing about asking for.

2. A Supreme Court decision would, he says, help de-mobilize gun rights advocates politically by giving individual gun owners assurance that their weapons could not be confiscated. (This instantiates one of Eugene Volokh’s proposed solutions to the generalized “slippery slope” problem.)

The article by Reynolds asserts that the right to keep and bear is limited to weapons ordinarily used by soldiers, and points out that “assault rifles” are therefore squarely protected. But he doesn’t directly address the hand gun/long gun distinction.

More to come, no doubt.


Glenn Reynolds responds. It seems we more or less agree, though he suggests that one could plausibly distinguish (as Tennessee jurisprudence apparently does) between “military” and “criminal” handguns. Again, if Reynolds and Meredith are right, such a distinction would be good news politically for the gun-control forces: if in fact a Constitutionally protected right to keep and bear would weaken the gun-rights groups politically, a finding that the right existed but didn’t apply to handguns would undo that benefit.

It is therefore, perhaps, fortunate (from the viewpoint of gun controllers) that I seem to have been wrong about the military use of handguns. I was aware that officers and MPs carry sidearms, and that privates and non-coms are issued sidearms for self-defense while carrying out either non-combat assignments in or near combat zones or combat assignments (as combat engineers, tank crews, those operating crew-served weapons) where long guns would be in the way. None of those seem to me relevant to the notion of a militia, thought of as a group of ordinary citizens assembling ad hoc for local defense.

But there are also, several correspondents inform me, significant numbers of cases in which ordinary combat soldiers need, and use, handguns as offensive weapons (in house-to-house or tunnel fighting, for example.) One reader reports:

I carried a sidearm, as a mid-level enlisted man, just last year in Central Asia. It was there in those cases when I could not carry a rifle. I was issued both, BTW, and I chose which to bear according to the situation.

That being the case, the handgun/long gun distinction can’t be made to do the work I proposed for it.

On the other hand, the concealed weapons idea seems to be on firmer ground. (One reader pointed out that a resistance unit might need concealed weapons, but such forces are not, in general, lawful combatants, however much we admire the work they do.)

Thanks to my correspondents for improving my state of knowledge.






I’m posting the full text of this story from today’s New York Times (with thanks to appellateblogger Howard J. Bashman for finding it). If I tried to paraphrase it, you would suspect me of making it up. In fact, I lack the talent, if not the gall, to invent anything this silly.

I’ve highlighted the good part. It probably doesn’t matter at all legally, but it might matter to the Justices, and it ought to matter to the voters

A couple of questions:

Did Bill Frist know about this when he hand-delivered those pleadings to the Supreme Court?

If so, how DARE he?

If not, how does he feel about being sandbagged this way? (If RNCC keeps giving money to Forrester, we have to conclude that Frist either knew he was conveying a lie to the Supreme Court and to the American electorate, or didn’t much care.)

How come it took until today for someone to find it?

And what do all the Republicans who were shocked — shocked! — about anyone asking a court to waive an election deadline have to say for themselves now?

In New Jersey Senate Race, Another Day Spent in Court


TRENTON, Oct. 4 — New Jersey Democrats asked the United States Supreme Court today to reject a Republican appeal seeking to block Frank R. Lautenberg from taking the place of Senator Robert G. Torricelli on the November ballot. They argued that the Republicans had neither shown any injury to their candidate or to the voters nor demonstrated a constitutional issue.

The Republican National Senatorial Committee, in an emergency appeal, had asked the court on Thursday to block the printing of new ballots and to overturn Wednesday’s ruling by the State Supreme Court that Mr. Lautenberg could replace Mr. Torricelli. The senator withdrew from the race on Monday as his chances for re-election faltered because of ethics allegations against him.

Today, Republican Party lawyers also brought suit in United States District Court here on behalf of two absentee voters, one living in Hawaii and the other in Paris. The suit alleges that the two, and others like them, could have their voting rights abridged because there was not enough time to deliver the new ballots. Judge Garrett E. Brown Jr. accepted the case and set a hearing for Monday.

In their brief to the United States Supreme Court, the Democrats argued that there was plenty of time to get absentee ballots to overseas voters, and that the case was a state matter, without a federal constitutional issue for the Supreme Court to decide. By day’s end, there was no word from Associate Justice David H. Souter, who handles emergency appeals from New Jersey, on whether the high court would hear the case or block the reprinting of ballots.

In an almost mocking tone, Angelo J. Genova, the Democratic Party’s lawyer, suggested in the brief that the Republican candidate, Douglas R. Forrester, was angling to run unopposed.

Mr. Forrester “does not allege irreparable injury to his position as the Republican nominee for the office in question,” Mr. Genova wrote. “Nor could he.” Mr. Forrester “will remain on the revised ballot, and the voters inclined or decided to vote for him may still do so,” Mr. Genova continued. “Applicant’s complaint appears to be that he would prefer to compete with the withdrawn candidate — hence, to compete not at all.”

Mr. Genova also uncovered a legal memorandum from Mr. Forrester’s lawyer written in April, when State Senator Diane Allen, one of Mr. Forrester’s opponents in the Republican primary, was trying to block him from taking the ballot position of James W. Treffinger. Mr. Treffinger, the Essex County executive, had resigned from the race because of scandal three days earlier, or 40 days before the primary.

Senator Allen maintained that moving Mr. Forrester’s name to Mr. Treffinger’s place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester’s lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg’s placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

“Strict compliance to statutory requirements and deadlines within Title 19,” Mr. Sheridan wrote, “are set aside where such rights may be accommodated without significantly impinging upon the election process.”

Mr. Genova said the Forrester campaign was trying to have it both ways. But Mr. Sheridan said today that the two situations were not analogous because “no primary ballots had been issued” in April.

In the current case, some 1,600 absentee ballots with Senator Torricelli’s name have been sent out.

As one of the most tumultuous weeks in New Jersey politics stumbled toward the weekend, Mr. Forrester went to work reinventing a campaign that no longer had Mr. Torricelli and the senator’s ethical problems as a punching bag. Today, he broadcast a one-minute radio ad titled “Purpose” as a rebuttal to the Lautenberg campaign’s messages that, without Mr. Torricelli, the Republican has no reason to run.

“Every day, there seems to be some dramatic change regarding the race for U.S. Senate in New Jersey,” Mr. Forrester says in his rich baritone. “But I want to assure you one thing hasn’t changed: my reasons for running for the United States Senate.” He goes on to stress his interest in protecting national security, safeguarding Social Security and protecting the environment, among other issues.

This evening, Mr. Forrester held a news conference at Newark Liberty International Airport with Senator Fred Thompson, Republican of Tennessee. Mr. Forrester said he would defeat Mr. Lautenberg as, he said, he had beaten Mr. Torricelli.

Meanwhile, greeting homebound commuters at the Rutherford train station, Mr. Lautenberg, who served in the United States Senate for 18 years, immersed himself in the handshaking and the backslapping, the joking and the gibing of his earlier campaigns.

“This is familiar territory,” he said.

NOTE: The argument about primary ballots having been mailed is about as silly as they come. (Unlike the argument that the 51 day deadline ought to be enforced simply because it’s the law, which isn’t silly at all.)

Let’s say the courts allow Lautenberg to substitute for Torricelli, but some voters have already been mailed ballots showing Torricelli as the Democratic candidate. Forrester is on the ballot in any case, so they haven’t lost the chance to vote for him, and it’s hard to see how he has been damaged by the act of mailing out the now-obsolete ballots. (Obviously, he’s damaged by being given a real opponent to replace a withdrawn one.) Those who don’t want to vote for Forrester can still vote for Torricelli. That will be a futile gesture, but it would be the same futile gesture in any case. Or they can write in Lautenberg, which might not be a futile gesture. Or they can write in Ghengiz Khan. A voter who gets a Torricelli v. Forrester ballot for a Lautenberg v. Forrester race will be infinitesimally worse off than if he’d gotten a correct ballot — writing in isn’t really that hard — but not at all worse off than if he’d gotten a ballot with the name of a withdrawn candidate.

And who says there isn’t enough time? Never heard of FedEX? The New Jersey Democrats are already paying $800,000 to reprint the ballots; sending out 1600 absentee ballots by overseas overnight, with return envelopes, shouldn’t add more than $50k to that cost.

What frustrates me is that, if the shoe were on the other foot, the Republicans would do a good job of getting the word out, and the whole country would be laughing at the Democrats. I have no confidence that the Democrats will be as efficient. Note that the Times reporter doesn’t even lead with it. [On the other hand, Joshua Micah Marshall is, as usual, on the case.]


So far, the story seems to have no journalistic “legs;” neither AP nor the Washington Post has picked it up. It’s bouncing around the blogosphere, but so far only on the left. Eugene Volokh, who doesn’t post on weekends, is sure to have something worth reading on Monday; nothing yet on the latest development from Glenn Reynolds, who had been all over the story earlier, including a link to Virginia Postrel’s delicious earlier comment that election law in New Jersey proceeds under the rules of Calvinball.

Ignatz (Sam Heldman) who picked it up before I did, has some useful reflections, and clarifies a point I had slurred over: the Forrester case in the spring was about where he would be on the ballot, not whether he would be on the ballot. Apparently New Jersey still has official party endorsements in primaries, with the endorsee getting the top spot on the ballot; Forrester, having been chosen by the party machinery to replace a candidate who had been forced to drop out due to scandal (his office had just been raided by the FBI) sued for, and got, the improved ballot placement, against the opposition of another Republican candidate.

But the underlying legal question is the same, it seems to me. The legislature set a 51-day-before-the-voting deadline for dropping out and being replaced, and the court then had to decide whether that was a firm deadline or just a guideline for administrative convenience. Forrester took the “administrative convenience” line, and won on it, in the spring; he’s now taking the “firm deadline” line. Does it matter that that was a primary and this is a general? Does it matter that that case involved ballot placement and this involves being on the ballot at all? Does it matter that some absentee ballots have now been sent out, where they hadn’t in the spring? If the courts have some leeway in enforcing the deadline — which Forrester said they did in the earlier case — then only the courts can decide how far that leeway extends. This being a question of New Jersey law, the highest authority is the New Jersey Supreme Court, which has just decided it in favor of giving the voters two real candidates to choose between. End of story, except for the horselaugh Forrester, Frist & Co. have earned for pretending this was a matter of principle, and the secondary horselaugh earned by those of us who were taken in by them.

Having been taken in myself, I can’t criticize anyone else for having been similarly victimized. But everyone who said anything in print or cyberspace about how the New Jersey Democrats were cheating, monkeying with the law, displaying contempt for the rules of fair play, etc., now owes it to his or her readers to take it back, to criticize the New Jersey Republicans for the fraud they attempted to perpetrate, and to remember this the next time one of these tempests-in-a-teapot comes along. There’s an old Texas saying, “Fool me once…”


The Daily Pundit has a long argument that the two cases aren’t parallel. But it doesn’t seem to me to hold together. The statute he cites has to do with a case in which it is determined that “the nomination for an office of a successful candidate at any primary election is null and void.” Nothing had made Treffinger’s designation “null and void;” the raid had merely made him a sure loser, just as the prosecutors’ report had made Torricelli a sure loser. Note that Forrester’s lawyer didn’t even argue that the change complied with the statute, only that the statutory deadline should be “set aside.”

Am I missing something, or is the Daily Pundit stretching?


Eugene Volokh weighs in, sensibly and wittily as usual:

“BANG! — OW! — YOU IDIOT!” That is the sound of the Republican politicos shooting themselves in the foot, if the story about Forrester — that he violated the same deadline in the primary that the Democrats violated with the Lautenberg switch — is correct.

This will now be an interesting case study in blogospherics. Your obedient servant still has a small (or, should I say, “select”?) readership of about 150 a day, and mostly on the Democratic side. The Volokh Conspiracy is more widely read by an order of magnitude (one-and-a-half orders, to be more precise), including mostly folks on the other side of the fence. In particular, Eugene is both read and respected by the blogger-of-record, Glenn Reynolds.

So the right blogosphere may now be assumed to be aware of the new development. Now we get to see how many right-bloggers pass this news along to their readers, and what if any comments they have on having been snookered.

The huge advantage of blogging over print is the capacity to take something back, or say something different, when new information arrives. But it seems to me that some bloggers tend to under-exploit that advantage. I’ll be watching with interest who does, and who does not, make use of it in this instance.

[Early returns: Lee, at Right Thinking from the Left Coast, and Glenn Reynolds, the Instapundit himself, have both linked to Eugene’s note and provided their own frank comments; neither is happy about having been sandbagged.

That’s more testimony to the awesome nature of Volokh Power, as is the fact that this humble page has had more hits in the four hours since the Volokh Conspiracy post than in any previous 24 hours, virtually all of them Volokh Conspiracy referrals.

The Right-Thinker notes that I didn’t provide a link to the New York Times story; instead, I quoted the full text. But here’s the link.]

I will also be watching with interest the capacity of the left blogosphere to pound the drum.


Several readers write to argue that the Forrester case in the spring and the Lautenberg case now aren’t parallel, because Forrester was already on the ballot and Lautenberg wasn’t. It’s true that the facts are different. But they differences aren’t legally relevant.

Here are the facts as I understand them:

In New Jersey, the party machine in each county gets to designate an “official” or “regular” candidate in a primary. That person gets the top spot on the ballot. If the official designee drops out 51 days before the primary, the party can designate a new person, who then gets that slot.

The Bergen County Republicans designated a candidate named Treffinger as their official candidate for governor, giving him the top spot on the ballot in that county. Forty days before the primary, his office was raided by the FBI in a corruption probe. He then dropped out of the race for governor. He hadn’t been disqualified from serving; he simply decided he couldn’t win. When the party tried to give Forrester the top spot in his place, but another Republican candidate challenged that decision in court, arguing that the deadline had passed.

Forrester’s lawyer argued, successfully, that the deadline should not be strictly enforced as long as it could be ignored without fouling up the administration of the election.

Obviously, getting on the ballot is more important than placement on the ballot. So the legislature could rationally have made one rule for changing ballot position and a different rule for getting on the ballot in the first place. But in fact the legislature made a single rule covering both situations: 51 days, unless something intervenes to make a nominee or designee ineligible to serve.

In the spring, Forrester argued that the 51 day deadline shouldn’t be regarded as binding if it could be waived without impinging on the need to administer the election fairly. Now Lautenberg is arguing the same thing. The NJ Supreme Court agreed with Lautenberg.

Maybe that court was wrong to do so, as Eugene Volokh argued (and I agreed). But if the law is to be interpreted liberally rather than strictly, that means the courts get to make the call. And on a matter of New Jersey law, the New Jersey Supreme Court has the final word.

Forrester may well be right that the New Jersey courts had no authority to overrule the New Jersey legislature on the law concerning elections to Congress, since the Constitution gives authority over those elections to the legislature. But if so, then he was asking the court last spring to do what it had no authority to do. That makes his current posture of wounded innocence, with his supporters shouting “lawbreaker” at Frank Lautenberg, a little bit hard to take.


Allons, enfents de la Homeland?

Thanks to Kieran Healy for pointing me to this from CalPundit:

There is, in fact, one European country that shares most of America’s attitudes and values:

Uniquely for western Europe, they value independent military action and have a strong martial culture.

They generally speak only their own language, and when they do speak other languages they do it badly.

They believe in the superiority of their culture and aggressively try to export it abroad — though with minimal success these days.

They bargain aggressively and are often seen as obstreperous and arrogant by their fellow Europeans.

They have a permanent seat in the UN Security Council and aren’t afraid to use it.

Needless to say, the country is France, the bête-noir of Americans because they’re the only European country that acts the way America does. Delightfully ironic, no?

Well, yes and no. France’s obstreperousness is, in some ways, optimal for a small power. Being stubborn is one way to take advantage of the strength of a weak position: the capacity for what Mancur Olsen calls “the exploitation of the great by the small.”

The basic idea is that if you and I have to agree on something to make it work, and it matters a lot to me and only a little to you, you’re in a position to shake me down. For example, imagine we’re partners; we own a piece of land together. I own 90%, you own 10%. The partnership agreement provides that the decision to sell must be unanimous. Now say we get an offer from someone who wants to buy the land for $100,000 more than we could otherwise get for it. That’s a gain of $90,000 to me, and only $10,000 to you. If you say, “I won’t approve the sale unless you give me an extra $10,000,” and you’re stubborn enough so that I believe you, you’ve got me over a barrel. Buying you off for an extra $10,000 is clearly better for me than having the sale fall through.

In a coalition, the unimportant members usually get more than they deserve and contribute less than their share, because the cost to the big partners of giving them what they want is small compared to the costs of having the coalition dissolve. (See Macaulay on the nightmare William of Orange had in managing the German princelings in his war against Louis XIV.)

And that’s the French strategy. Not nice — you wouldn’t really expect “nice” from a country whose national anthem ends “until their polluted blood courses through our gutters,” would you? — but reasonably effective.

However, the attempt of a superpower to behave in the same way is inevitably self-defeating, as the real estate example makes plain. Can you say “Cutting off your nose to spite your face?” I was sure you could.

“Beware,” says Eric Hoffer, “when the strong begin to employ the weapons of the weak.”