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Rational Security vs. Symbolic Security

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12 Responses

  1. Dave Hoffman says:

    Attacked? No way. But you are still wrong, I think. Hope to post more tomorrow (if readers appear interested in yet more of this!). I wonder, though, whether you are similarly suspicious of deference to the government in the ordinary Chevron-agency context? w/respect to the SEC? An AUSA requesting an extension of time to file a brief?

  2. Dave — Yes, attacked, on the very place where I blog, on my own soil. . . . I know you mentioned a few points in agreement, but I’m focusing on where we diverge. “Attacked” is more dramatic and exciting than “disagreed with somewhat.”

    I’m generally not a big fan of deference. As I explain to Mike in the comments to my earlier post when he asks me about my views on Commerce Clause deference, my answer is that the focus of my views about deference concern mainly the Bill of Rights. That’s the focus of my article The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999).

    As far as Chevron deference, I don’t know enough about the cases and issues to cast more than just a “gut opinion.” My inclination is to disfavor deference, as it is often practiced as a shortcut for engaging in meaningful judicial review.

    As for the AUSAs, I believe that the courts should threat them the same as any other litigant, and not give them special deference. That said, courts should be respectful of attorneys and the pressures they face.

  3. Stephen says:

    This is one reader who would be interested in seeing more of this debate. It’s not often that one-person gets to take on two and wax them both so decisively.

    The anti-deference law review is fantastic and Mazzone is out of it if he thinks subways searches demonstrate “awe and surprise.” Thanks for the adaptation of the ad agency pro-war slogan “shock and awe,” but it’s not “awe-inspiring” to see cops rumaging through old ladies’ purses or racial profiling and it’s not “shocking” if they tell everybody that they’re going to be doing it. And how exactly do you put a foot down along the slippery slope towards cavity searches? That’d send a signal too, right? Why not do it? It’s all about image and deterrence, right?

    Mazzone is also being batted around on the comments section of his Dec. 5th post. Public approval means that the search passes 4th Amendment muster? Come on.

  4. thrashor says:

    Terrorism, police, and the NYC subway

    There has been an interesting debate over the past couple of days between the authors of the Concurring Opinions blog regarding the wisdom of police conducting random searches on the NYC subway system. The debate centres on whether such searches:

  5. Subway Searches and Korematsu

    As I was drafting my previous post critiquing the ruling upholding New York City’s random, suspicionless search program at subway entrances, I was reluctant at first to invoke the da…

  6. Paul Gowder says:

    The very “show of force” that Jason extols has another impact he doesn’t mention — it is also a display of police power to all people. Totalitarian societies also would engage in such displays of power — as a way of programming the population for greater social control and acceptance of that way of life.

    YES! YES! YES! This is so important. We so rarely acknowledge that we’re doing any harm to our society when we let soldiers loose to march through the streets.

  7. Subways, Searches, and Slippery Slopes

    The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in a several places and exaggerates some of my…

  8. vibes says:

    I strongly recommend the book “Beyond Fear” by Bruce Schneir on tradeoffs in the context of security.

  9. Subways, Searches, and Slippery Slopes

    The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims….

  10. Secondary Screenings on the Subways

    There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

  11. Bruce says:

    Dan, I missed your earlier post, and I sympathize with the sentiment: flashy but small risks tend to attract a disproportionate response than huge but boring risks. Sharks are a great example: vastly more people drown, and drowning is I’m sure a terrifying experience, but the risks of drowning receive nowhere near the attention the avg. 4 US deaths per year from sharks do. Reminiscent of your post, during the DC sniper shootings I compared the death rate from the snipers (9 fatalities in 13 days at that point) with the expected number of automobile fatalities in the DC metropolitan area for the same period. Auto accidents kill at (as best I recall) nearly 4 times the rate the snipers were going. That said, I too avoided suburban gas stations just like everyone else. As Scully says in one episode of the X-Files: “Yes, I’m afraid. But it’s an irrational fear.”

    Still, I think terrorist attacks have some features sharks and flu and even snipers lack. For one thing, they’re localized in ways that, say, flu deaths are not. Second, they cause not merely death, but significant economic and social disruption as well, in addition to destruction of infrastructure. Third, part of the power of terror attacks in general, and al-Qaeda attacks in particular, is that they are sharply discontinuous, meaning that they create significant fear of the unknown. Years can go by without an incident, but when one occurs, it is unclear whether it is just one (Oklahoma City), one of four (as on 9/11) or one of ten. But I think the fourth difference is the most significant: terrorist attacks carry a symbolic significance most other hazards, even other murders, lack. Indeed, that’s the whole purpose of most attacks. Preventing such attacks may therefore be worth investments far greater than the expenditures that would prevent an equal number of deaths from other causes.

  12. Subways, Searches, and Slippery Slopes

    The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself. I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims….