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Saturday, May 25, 2002


HOW NOT TO PRESENT STATISTICS: I'm actually quite happy that many Americans are giving their race and ethnicity as simply "American," but one item in the Washington Post article about this slightly annoyed me:
Even in New York, where more than one-third of the population is foreign born, 238,000 New Yorkers simply declared themselves American, a rise of about 81,000 from the 1990 Census.
     That sounds like a lot -- 238,000. But is it? Depends a lot on how many New Yorkers there are. My very tentative guess is that it's about 7 million (I assume they mean New York City, incidentally, and not New York state, but I can only infer that from the "more than one-third of the population is foreign born" item), so 238,000 would be a bit over 3%. (UPDATE: Reader Paul Donnelly tells me the relevant number is likely 7.8M; and that New York City grew about 10% from 1990, which means the percentage rose from about 2.2% to about 3%.) But I might be quite wrong, and I'm pretty knowledgeable about such matters -- most people would probably have even less of a sense, I suspect.

     Now perhaps the raw number is also useful; that hundreds of thousands of people are taking some view is itself a useful data point, even in a city of many million. But the percentage is usually more useful. Maybe it's good to have both, but if you have only one number, it's much more informative to use the percentage -- and leading newspapers that have some aspiration to helping people think through policy questions should make that a policy.


THE SUPPOSED DANGERS OF COGNITIVE THERAPIES: The usually sensible Economist has an article titled "The ethics of brain science"; the little introductory blurb says:
Genetics may yet threaten privacy, kill autonomy, make society homogeneous and gut the concept of human nature. But neuroscience could do all of these things first.
     I don't buy the complaints, for much the same reason that I don't buy complaints about parents trying to influence the genetic makeup of their children; I think there are some possible problems, but I think that they're mostly vastly overstated, and vastly outweighed by the potential benefits. But I could be wrong, and the issues that the article describes are certainly quite intriguing. Read it and judge for yourself.


WHY DON'T MORE FATHERS WANT THEIR DAUGHTERS TO BE LESBIANS? I'm actually 30% (well, 28.73%) serious here. I'm not a father, but if I were one (and I hope to be one some day), and had a daughter, the prospect of having my little darling having sex with some guy would just give me the creeps, even when she's indubitably old enough.

     (Warning: This post is considerably, er, different from the usual ones. While I've tried not to make it unduly vulgar, this ain't the usual calm discussion on public policy. Now, back to our regularly scheduled programming.)

     First, I'm a guy, so I know that many guys, especially in their late teens and twenties, basically want women primarily for sex. That's not true of all guys, and certain not of all relationships for all guys; and I'm not saying that this is even necessarily wrong. But it tends to be different from what women want (a generalization, I realize, but a generally accurate one), and the result is many women feeling used and hurt.

     In the abstract, that's just life in the big bad city (setting aside for now the possibility of the men using violence or deception). But the very idea of that happening to my little girl really bothers me -- not just because she'll be emotionally hurt, but because she'll be some sex object being used by some dirty nasty man -- and I don't even have a little girl yet! I can't claim to be an expert on lesbian relationships, but my sense is that because there are two women involved, such relationships tend to (again, I stress "tend to") be somewhat more emotional and romantic (and, or so rumor has it, on average somewhat longer-lasting) as well as physically sexual.

     Second, while I'm being blunt, let me get blunter: Penetration. Yup, it feels just great for us when we (guys) do it, but it gives us (i.e., "it gives me, and I will just assume that I can speak for my entire gender") the willies to even contemplate it happening to us -- or to my hypothetical daughter. Some guy sticking his prick into my little sweetheart? Awful, just awful.

     Compared to that, lesbian sex seems much less repulsive, much less of an indignity. Yes, I know that penetration goes on there too; but penetration with fingers or objects just somehow lacks the indignity of penetration with genetalia. My daughter with a woman vs. my daughter with a man -- there's just no contest; it's perfectly clear which one I'd prefer.

     Third, the practical: pregnancy and sexually transmitted diseases (to my knowledge, lesbian sex is less likely to transmit STDs). Which would trouble you less as a practical matter -- your 16-year-old, or even your 18-year-old, being out half the night having wild sex with a boy, or with a girl? In terms of raw physical risk, you've got to prefer the girl.

     This is of course not a claim about how people should behave -- the feelings I describe above are mostly nonrational. Rather, it's a question about why people don't behave this way more often. Maybe I'm just weird, but if I'm not, why don't we hear about guys saying "Gee, I'd much rather my daughter was a lesbian"?

     Now of course some people have moral or visceral objections to lesbianism; they wouldn't take this view, and I understand that. But many, like me, have no such objections. Other people may feel very strongly about wanting grandkids -- but many lesbians do have children, and in any event many men have both sons and daughters, so the sons can impregnate some woman. Still others might just feel that, though they don't mind lesbianism, others do, and that therefore their daughter will just have a harder life as a lesbian; I suppose that's a significant factor, but viscerally to me the other three I mention above just drown this out.

     I realize that for most women, lesbianism just wouldn't be a choice, just like I don't think I'd choose homosexuality even if there were good practical reasons for it. As I understand it, there are quite a few women who are primarily lesbians for some time in their late teens and twenties and then generally return to heterosexuality (which has its plusses from the father's perspective, too, given the arguments I mention above); still, I imagine that most women just aren't interested. But again my question isn't about whether a desire to see one's daughter become lesbian is likely to be satisfied; men desire all sorts of things that they're unlikely to get. Rather, it's about why we don't see more of this desire.

     Finally, I'll stress again that this question is in part facetious: I'm pretty sure fathers don't actually devoutly wish for their daughters to be lesbians, and I'm asking this mostly because it's amusing and a bit absurdist to wonder why it isn't this way. But it does have a serious component: Given fathers' notorious sexual protectiveness of their daughters, why don't we see more of the attitude I describe?


TEEN SEX: Look, when others are getting zillions of search engine hits by talking about Teen Sex, how can I resist?

     There's a lot of reason for skepticism about many aspects of Anti-Teen-Sex campaigns. Among other things, laws in some states that outlaw all sex among kids under age 18 -- and not just sex between, say, 14-to-18-year-olds and considerably older adults -- seem to me quite troublesome. Any criminal law that's so vastly underenforced is likely to be enforced quite selectively (and often improperly so) when it is indeed enforced; it's likely to breed at least some disrespect for the law; and it's also just plain unfair to put millions of decent kids, kids whose behavior society in fact largely, condones at risk of felony prosecution.

     What's more, it's worth noting that some places -- such as Canada, where the age of consent is 14, and many European countries -- seem to survive quite well with a fairly low age of consent; in many states of the union, the age of consent is 16; and in Hawaii, the age is 14. This makes it hard to see why having sex with a 17-year-olds really should be treated as an appalling sex crime. (Obligatory disclaimer: I've never had sex with anyone under 18, and since my own majority, haven't even wanted to. Believe it or not, as you'd like.)

     The Web site has a pretty thorough, and based on my quite limited checking, generally reliable, summary of age of consent law throughout the U.S. and the world. I suspect the site's aficionados aren't primarily focused on public policy scholarship, but it seems like a good resource for those purposes as well as, er, others. (Obligatory disclaimer: I found the site while doing research for the Teacher's Manual's entry for a problem in my textbook [p. 76].)

     Nonetheless, some of the rules here aren't as silly as they appear. For instance, I don't think I'd say that it's a "contradiction" (as observed by Instapundit, based on an argument made by Robert George in The Corner) for us to "insist that teenagers be treated as children when it comes to sex, but as adults when it comes to murder." (One of the proposed amendments that I got, from Philippe Richards, made a similar point in proposing a ban on age discrimination among over-18-year-olds: "They can vote, they can drive a car, they can die (first, no less), but they can't drink legally?" Yes, I'll get back to the amendments again soon, but at least this post can make a tiny dent in the backlog.)

     The age of majority is not some metaphysical point, deducible from first principles, when people become responsible for their actions, with all the benefits and burdens that this entails. Rather, it's a judgment that's based on (1) people's average level of responsibility at a particular age, (2) young people's relative need to be able to engage in a certain kind of conduct, (3) the harm to society from irresponsible exercises of that conduct, and (4) the felt moral need to treat certain kinds of conduct in certain ways even when it's engaged in by young people.

     The drinking age, for instance, is higher than the driving age not so much because you need more maturity to drink responsibly than to drive responsibly, but because depriving 16-to-21-year-olds of the ability to legally drink in bars is less burdensome to them than depriving them of the ability to legally drive (which would dramatically interfere with their employment and their education). Maybe the ages are miscalibrated, but the difference in the ages doesn't itself prove this.

     The same goes for the age at which a person can be tried as an adult for murder and the age at which he can lawfully have sex. Many voters feel, in my view for good reasons, that most teenagers who commit murder have committed a morally heinous act (in a way different from, say, a 7-year-old who kills someone, though we may also be shocked and appalled by that). They knew what they were doing, they should have known that it was wrong, and they should be held culpable for it. Some people defend this on deterrence grounds, but I think the main reason for it is a sense that justice demands that these murderers be firmly punished.

     This moral imperative to treat, say, a 16-year-old the same as an 18-year-old does not, in most people's view, arise with sex. It might arise for those who believe that it's deeply morally wrong to deny 16-year-olds the ability to have sex, even for a couple of years, but the majority of people (even those who think that adults have a basic right to have sex) probably doesn't take this view. And the perceived harms of treating 16-year-olds the same as 18-year-olds -- especially greater risk of pregnancy and sexually transmitted diseases, given that 16-year-olds are probably even less responsible sexually than most people are -- seem to many to be quite great. So it makes sense to them to draw the line in one place for sex, in another for driving, in another for drinking, and in another for criminal prosecution.

     Again, there are lots of good arguments for a lower age of consent, or for that matter for a higher age threshold for treating criminals as adults. (I'm not an expert on the latter point, and while I viscerally support generally treating 14-to-18-year-olds as adults for purposes of prosecutions for muder and other serious crimes, I realize that I may well be mistaken. And I suspect that if the juvenile justice system wasn't seen by many as such a revolving door, the campaign to treat these teenagers as adults probably wouldn't have gotten anywhere near as far as it has.)

     But I don't think these arguments are much advanced simply by noting that the age thresholds are different, and pronouncing that a contradiction or even, in Robert George's words, an "interesting tension." (Literally, it might be an interesting tension, in the sense of a difference that should arouse our interest in figuring out whether the difference is justified; but in my experience "interesting tension" is generally a mild-mannered way of suggesting at least a minor contradiction, which I think is how Glenn Reynolds took it.)

     Human maturation is a gradual process, a continuum rather than a sharp change. And while the law must generally draw bright lines in this area, it makes sense for the lines to be drawn on different places on the continuum, depending on the regulated activity's specific harms and benefits.

Friday, May 24, 2002


PRISONERS AND THE RIGHT TO HAVE CHILDREN: The U.S. Court of Appeals for the Ninth Circuit has just held (by a 6-5 vote) that a prisoner serving a life term did not have the right to ship his sperm to his wife so that they could have a child. (Courtesy of Instapundit and AppellateBlog.)

     When I first heard about the original three-judge panel decision that held the contrary, I thought the prisoner's argument was patently silly (I have little patience for most prisoners' rights claims), but the panel decision persuaded me. I look forward to reading the new opinion, which reverses the panel, and seeing if I'll be persuaded back. Not likely, though -- my former boss Judge Kozinski, with whose views I generally agree, was in the dissent, voting for the prisoner.

     Note that the prisoner is not claiming a right to conjugal visits -- only a right to ship his sperm out of the prison.

UPDATE: Read the opinion, and it didn't change my mind -- odd as it may seem, I think the prisoner should have won (though, as Judge Kozinski's dissent points out, perhaps the result should have been different if the legislature had explicitly decided that loss of the right to procreate should be part of the intended punishment for the offense). And as I expected, I agree with the Kozinski dissent entirely.


AND ONE MORE: "My PID is Inigo Montoya. You killed my parent process. Prepare to vi."

     The "vi" part is less amusing than it could be ("vi" is a UNIX-based editor, which I used to use back in the mid-1980s), unless I'm missing something. But it's still pretty funny.


ANOTHER BUMPER STICKER SEEN BY MY DAD: "Do not meddle in the affairs of dragons. For you are crunchy and taste good with ketchup."

     Applies (or so I hope) to some important recent events.


RACISM ET AL.: My former student Mike Lopez has a new blog (higheredintel) focused mostly on higher education issues; definitely worth checking out. Here's a line I particularly like:
The University of South Carolina has a Women's Studies class that has the following 'Guidelines For Classroom Discussion." Thanks to TheFire for the link. Let's take them one at a time.

1. Acknowledge that racism, classism, sexism, heterosexism, and other institutionalized forms of oppression exist.

Well, yes, but not always perpetrated by the people you'd think . . . .


PLAGIARISM: Jeff Cooper, a fellow law professor, has an excellent post on plagiarism. Among other things, he points out that some students think that it's OK to paraphrase scholarly work nearly exactly, so long as they provide a citation.

     I agree entirely that this is bad behavior when citing academic work. The trouble is that when one is citing cases, especially in practical legal writing, this is perfectly fine. "Law," someone once said, "is the only field where 'that's an original idea' is a pejorative." When you're writing a brief, you're supposed to rely closely on the authorities, and while sometimes you quote them, sometimes -- either for stylistic reasons (to keep the text from being wall-to-wall quotes) or, more likely, because you need to adapt the reasoning to your case -- you do exactly what Jeff Cooper's student did: Paraphrase the text very closely and provide a cite. No-one would think you're doing anything wrong.

     Practical writing that paraphrases judicial decisions is of course different from academic writing that paraphrases other academics' work. (How one treats practical writing that paraphrases academic work and academic writing that paraphrases judicial decisions might actually pose tougher questions.) Most significantly, academic work is graded on originality (either officially by professors or informally by readers), so one must be scrupulous about acknowledging which material is unoriginal. So Prof. Cooper was right to be alarmed by the student's actions. But I think the propriety of paraphrasing in a closely related area highlights the importance of reminding students -- especially law students -- that academic work is governed by different rules.

     Incidentally, the blog post shows one passage from the student's paper and the corresponding, almost identical, passage from the source; and then suggests how the student could have rewritten the passage to avoid the problem. Curiously, the rewritten passage is much shorter and more readable -- and thus independently better -- than the original.


MORE ON RELIGION AND POLITICS: Chris Bertram, on Junius, disagrees with my post on why religious people are as entitled as secular people to enact their morality into law. He agrees "that religious people have moral views like everyone else, that it's ok for everyone to seek to enact their moral views into law and that to disbar the religious from doing so is to treat them as second class citizens." But he reasons that
What I do think is objectionable is for believers or unbelievers to pursue agendas on these issues in ways that dont appeal and couldnt appeal to the shared reason of their fellow citizens. The public power belongs to everyone and when majorities hijack it for sectarian purposes they act oppressively. Many religious believers can advance arguments in the public sphere in terms that respect their fellow citizens. For example, the natural law tradition grounds morality both on Gods command and on human reason, so Catholics could if they chose to advance arguments in ways that non-believers might plausibly accept. If they do so, thats fine. But religious believers who seek to legislate and give as their supporting grounds Holy Scripture or the command of a religious authority (a fatwa, say) that they know perfectly well others dont recognise, are acting in a tyrannical manner. When they succeed, it is the non-sharers of their beliefs who are turned into second-class citizens.
     I've heard this argument before, and I just don't buy it. People have different worldviews, and sometimes the arguments of one worldview (whether Catholic, Marxist, deconstructionist, objectivist, Kantian, animal-rights-based, or what have you) just don't make sense to another. There's nothing "disrespectful" of one's fellow citizens to rely on such arguments. In fact, it's inevitable, given that argument one makes "could[] appeal to" everyone.

     Aha, the usual response goes, but at least people who don't share Marxist / libertarian / animal rights views theoretically could accept arguments based on those views, because the views are based "on human reason." People who don't share certain theological views, on the other hand, just cannot accept arguments based on those views, because those theological views are based only "on religious authority."

     But that doesn't make much sense to me. Everyone could, if they became persuaded, accept either the axioms of some secular school of thought or of some religious school of thought. But of course not everyone does accept those axioms. We can no more expect someone who devoutly believes that all morality comes from God to accept, say, objectivist or Marxist thinking than we can expect someone who devoutly believes that all morality comes from human reason to accept Baptist or Muslim thinking.

     Would we endorse the argument that "[secular thinkers] who seek to legislate and give as their supporting grounds [a view of morality based on secular reason] that they know perfectly well others [devout Muslims or orthodox Jews] don’t recognise, are acting in a tyrannical manner"? I don't think so. Neither should we accept the argument that "religious believers who seek to legislate and give as their supporting grounds Holy Scripture or the command of a religious authority . . . that they know perfectly well others don’t recognise, are acting in a tyrannical manner." If we did accept the latter but not the former, we would be treating religious believers as second-class citizens as compared to secular believers.

     We cannot demand that religious believers leave their deepest beliefs unspoken, while secular believers remain free to speak their own deepest beliefs. Sometimes it is pragmatically better for people to speak in terms that appeal to a broader audience (though such arguments often get breadth of support at the expense of depth). But morally, people are perfectly entitled to use those arguments that resonate most with their own views. There's nothing inherently "disrespectful," "tyrannical," or "oppressive" about making decisions based on your own worldview, and urging others who share it to do the same.

     Of course the outcome of the decisionmaking process may in our view be tyrannical or oppressive, if the process reaches results that seem to us to be sufficiently evil. But it's the results that are oppressive, whether they come from a religious or secular process -- not the religiosity or secularity of the arguments that are being made.

Thursday, May 23, 2002


BUSHISMS OF THE DAY: I'd like to get my hands on transcripts of talks that Jacob Weisberg gives. Who knows, maybe he's one of those people who speaks perfectly, in entire paragraphs of correct prose. If that's so, he'd be one up on most people, as anyone who's read transcripts of panel discussions, depositions, or a variety of other presentations knows.

     So here's today's "Bushism of the Day", part of a series that Weisberg has been collecting: "This is a nation that loves our freedom, loves our country," something Bush said in a May 17 speech. Ha ha ha -- how inarticulate! A nation that loves our country; what a silly redundancy.

     Except that it's pretty clear what Bush meant, and it wasn't at all redundant: We are a nation of people who love our freedom and love our country. (The entire paragraph, which I got from a Federal News Service transcript, is "They found out we think differently here in America. We think differently because this is a nation that loves our freedom, loves our country. And this is a nation that has got citizens who are willing to sacrifice for a cause greater than themselves.")

     Did he misspeak? Sure. About the same way that I suspect you and I misspeak dozens of time each day. Did listeners understand what he meant? I'd bet that they did, and that most didn't even really notice the error -- the meaning, while hardly profound, was clear. Does this sort of error tell us much of interest about anything? Your call.


COOL CATS: According to an ad I saw while reading Slate -- an ad for one of Slate's columns, actually -- "William F. Buckley calls Slate's Today's Papers 'Cool cats, having a great time, and doing as much for the reader.'" Cool cats? Really? Or is this supposed to be a bit of self-mockery about Buckley's age, and I'm just missing the gag?


"GUN CONTROL & GUN RIGHTS": I just got my copy of "Gun Control & Gun Rights: a reader & guide", by Andrew McClurg, David Kopel, and Brannon Denning (NYU Press). It's thorough (covering criminological, constitutional, and moral questions), but more importantly it's balanced: McClurg is a leading pro-control commentator, while Kopel and Denning are leading gun control skeptics.

     The text is aimed at university courses (both undergraduate and graduate), but many people who are personally interested in gun issues may find it helpful, too; and it's only $19 at Barnes & Noble! I highly recommend it.


CLASS AT PUBLIC UNIVERSITY "LIMITED TO NATIVE AMERICAN STUDENTS": According to TheFIRE (a public interest organization aimed at fighting speech restrictions and race preferences at colleges and universities), an Arizona State University class on Navajo history was listed in the course catalog as "limited to Native American students." TheFIRE has gotten ASU to drop the restriction.

     My only source for this is a press release from TheFIRE, but I've generally found them to be quite trustworthy, and the copy of the letter from ASU (apparently entered by them rather than photographed from the original, but I have confidence in their veracity) bears their story out.


RELIGION AND POLITICS: Over tea last Friday, a perennial argument came up: Isn't it illegitimate for the government to ban cloning, when most of the arguments against cloning are essentially religious? Isn't that an unconstitutional violation of the separation of church and state, or at least a violation of some democratic norm that people ought not force their religious views on others? The same argument has been raised with regard to abortion restrictions, bans on homosexual conduct, and a variety of other prohibitions.

     I think the answer is no. I oppose many cloning bans, but I do so because I think they are wrong on the merits -- not because people support them for religious reasons.

     My reason is simple: Most of the coercive laws that we hotly debate involve the forcing of a majority's views on the minority. That's true of laws protecting endangered species, antislavery laws, antidiscrimination laws, intellectual property laws -- or for that matter bans on infanticide, child sexual abuse, or more generally murder, rape, or theft. Some of these laws may be sound on the merits, and others unsound. But the fact that they force one group's views on another doesn't make them wrong.

     Religious people have moral views just like secular people do, and they're just as entitled as secular people to use the political process to enact their views into law. True, religious people's moral views may rest on unproven and probably unprovable metaphysical assumptions -- but the same is generally true as to secular people's moral views.

     To say that religious arguments must be excluded from public debate, while equally unprovable secular moral arguments may continue to be made, would be to turn into second-class citizens those people whose basic moral views come from their religion. Neither the Constitution nor sound political morality require this.

     In fact, many important political movements -- the antislavery movement, the civil rights movement, and various antiwar movements -- were composed in large part of religious people who acted for explicitly religious reasons, and justified their positions using explicitly religious arguments. Would we say that opposition to slavery was illegitimate because it was mostly overtly religious? If not, then we also can't condemn opposition to cloning or abortion on these grounds.

     But what about the Establishment Clause? Well, the Supreme Court has explicitly held that the Establishment Clause doesn't invalidate laws simply because their supporters backed them for religious reasons. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Harris v. McRae, 448 U.S 297, 319-20 (1980). And for the reasons I mention above, the Court's decisions here were correct. True, the First Amendment does bar the government from teaching religion, from requiring religious practices such as prayer, and (generally) from singling out conduct for better or worse treatment because it's religiously motivated (e.g., punishing religious animal sacrifices but not secularly motivated animal killing, or giving a sales tax exemption to religious publications but not secular ones). But it doesn't bar the government from implementing religiously-motivated prohibitions on people's conduct, whether as to murder, theft, slavery, civil rights, cloning, or abortion.

     I stress again: There are lots of good arguments to oppose cloning bans, abortion bans, or bans on homosexual conduct. The supporters of such prohibitions may be wrong on moral or pragmatic grounds. But the bans aren't made invalid by the fact that many of their supporters act for religiously influenced moral reasons, as opposed to secularly influenced moral reasons.


HOW CONGRESSMEN EXERCISE SCHOOL CHOICE: The Heritage Foundation has a great update of their piece on many Congressional school choice opponents sending their kids to private schools:
[M]any Members of Congress effectively deny poor school children the educational opportunities their own children enjoy. Of the high percentage of Members who now send or at any time have sent a child to private school, many continually vote against legislation that would enable parents of poor children trapped in failing or unsafe public schools to exercise the same choice. Many, such as Senator Hillary Clinton (D-NY), whose daughter Chelsea had attended an elite secondary private school in Washington, D.C., argue that giving vouchers to disadvantaged children to attend a school of choice would undermine public schools. Two of the Senate's wealthiest members, Edward M. Kennedy (D-MA) and John D. Rockefeller (D-WV), voted against school choice but provided their own children with a private education. Such rhetoric is common on Capitol Hill.


BOOK: I was happy to learn yesterday that Foundation Press accepted my proposal for a short soft-cover book on advanced legal writing, chiefly focusing on student-written law review articles and seminar papers.

     The book will be based on my "Writing a Student Article" article, but I'd like to add some more material. At the very least I'd have to add some special stuff on seminar papers, but I'd also like to add some tips on how to soundly rely on historical and social science sources (I might even give some negative examples from Michael Bellesiles' "Arming America"); and, more broadly, I'd like to add whatever else students might find handy.

     If any of you -- whether legal academics, academics in other fields, lawyers, professional writers, or others -- have some tips for me on this, I'd love to hear them (and exploit them!). Please e-mail them to me at volokh at


IAIN MURRAY ON STATISTICS: Another fine piece by Iain Murray on statistics in the news -- specifically (1) watching TV supposedly leading to violence, (2) kids being hit by falling TVs ("watching Jaws on TV is more dangerous than swimming in the Pacific"!), and (3) a fishy claim of increased workplace death risk among Hispanics. Much worth reading.

Wednesday, May 22, 2002


WOW: I just looked again at Howard Bashman's AppellateBlog (a k a How Appealing), "The Web's first blog devoted to appellate litigation" -- great slogan if you want just lawyers to read you, not so hot otherwise -- and was very impressed. (I'd seen it before, but must have just skimmed it too quickly to really appreciate its full quality.)

     It's thoroughly substantive and thoughtful, yet well-written. And because it covers a lot of interesting and newsy court decisions, from the Supreme Court on down, I suspect it will be quite interesting and accessible to policy-minded lay readers as well as to lawyers. Good stuff.


WHAT THE NUREMBERG FILES CASE ISN'T ABOUT: Dahlia Lithwick has a generally very thoughtful and interesting Slate piece about the Nuremberg Files case. I think she misses the mark, though, in arguing "Why should you be able to hand a potential killer someone's address and get away with it?"

     Whether the law may punish speech on the grounds that it conveys information which facilitates crime by others is an important and unanswered question in First Amendment jurisprudence. It has come up in a few lower-court cases (chiefly Rice v. Paladin Press a few years ago, which involved a purported instruction guide for contract killer), and has also arisen as to the statute banning publication of bomb-making information (18 U.S.C. § 842(p)). Even this sort of crime-facilitating speech may be protected; but at least there's a special argument for why it should be punishable where merely menacing speech or crime-advocating speech cannot be. I have been trying, without much success, to write an academic article about this subject for the last couple of years.

     But this case was not litigated on this theory. The jury wasn't instructed to find liability on the grounds that defendants' speech facilitated crime by others. (See note 7 in the original panel decision and note 10 in the dissent from the most recent decision.) The jury's decision may very easily have rested entirely on the menacing quality of speech that did nothing to reveal people's addresses and the like. And the precedent set by the Ninth Circuit in affirming the jury's decision therefore is by no means limited to the situation that Lithwick describes.

     Now Lithwick makes other arguments that suggest that maybe First Amendment law should be changed to allow punishment of menacing speech even more broadly. They have considerable force to them, though they would require the Supreme Court to reverse its decision in NAACP v. Claiborne Hardware (1982) .

     But some people have focused instead (as Lithwick in some measure does) on the Nuremberg Files revealing information that might help facilitate crime ("Why should you be able to hand a potential killer someone's address and get away with it?") -- perhaps because such a focus would require one to defend a much narrower restriction on speech, one would still leave speakers rather free to engage in harsh political rhetoric, even against a backdrop of violence by others. And if that's so, then the solution is not to affirm the jury verdict, as the Ninth Circuit did. Rather, it's to reverse the jury verdict and have the case be retried under the limited crime-facilitating-speech theory, and not the much broader menacing-speech theory.


GENTLE NITTY-GRITTY: My brother Sasha, who knows much more about language than I do, points out that if one really wants to stop using words with offensive etymology, one should also "stop using the word 'gentle,' which . . . perpetuates the aristocratic class structure." (The term derives from the Old French "gentil," which means "high-born," as in "gentleman.")


From Sasha, MAMMAL OF THE YEAR: First, let it be said that I hate hay fever.
I hate hay fever.
There. Second, as I always say, better smoke than insects.

Third, another wonderful movie. Maybe this is selection bias -- most of the movies here are American, so if something German's going to be in the regular theaters, it had better be good, and I'm only watching German movies. (Well, except I did see And Quiet Flows the Don (USSR, 1957) yesterday, though dubbed in German.) So this other one is called Vaya con Dios (despite its name, German, and the phrase doesn't appear in the movie), a road movie about monks, in various ways reminiscent of this (also good) Spanish movie I saw some years ago, Suspiros de España (y Portugal). It features chase scenes, a secret book, an evil Jesuit, and the redeeming power of a cappella, something of The Name of the Rose meets Star Wars meets, um, Flashdance? Well, no, not quite. . . . Anyway, out of the three good German movies I've seen so far (Die Scheinheiligen, Bella Martha, and Vaya con Dios), surely they'll release at least one in the U.S. some day?

D, two fun museums. The German Hunting and Fishing Museum, with a huge bronze boar sitting outside. They've got stuffed beasts, stuffed birds, stuffed fish, and a huge historic rifle collection. Also they reveal that this one otter was Mammal of the Year for 1999. Plus, they have this stuffed petting zoo -- you know, these mammals are so furry and cute and adorable, and a good thing they're both stuffed and behind glass so they don't bite my hand off . . . and tackle me to the ground . . . and rip my throat out . . . and God only knows what else. There was also a nice Bavarian man who worked there who -- when I told him I'd been hunting, fishing, and shooting -- explained to me all about this one air rifle the Austrians used to fight Napoleon, and about a huge 500-pound prehistoric stag, and about how that building used to be an abbey before it was nationalized in the early 19th century.

Next, the Center for Unusual Museums, which has the world's largest collection (Guinness certified) of Easter bunnies, toy pedal cars, guardian angel paraphernalia, chamberpots (including special ones for women called Bourdalous, yes I know, what a stupid name for women). Also they've got a Sissi museum, which is all stuff about or owned by this assassinated late-19th-century Austrian empress called Elizabeth, apparently the Princess Di of her age.

And fifth, the news for today. Heirbert Prantl writes in, what else, the Süddeutsche Zeitung (just in case you're wondering, this means the South German Times):
The Great Amazement -- on the return of the fundamental in politics

The Pentecost miracle of social democracy already began in the week before Pentecost: a new spirit descended on the federal chancellor -- and the SPD [Social-democratic Party of Germany] president [same guy] suddenly began to speak a tongue that has so far been foreign to him: Gerhard Schröder spoke about justice and a fair social order, which should be protected even in the age of globalization. . . .

He spoke in such a way that mid- and low-level functionaries, baffled, rubbed their eyes and asked themselves: Isn't this the man who wanted to teach us in the last four years to no longer say 'Justice' but 'Innovation'? . . . Isn't this the man who made us nervous because he acted like a pink neoliberal [that's German for 'Newt clone with a human face']? The same who forbade us the old social-democratic songs? And now he's singing them himself, only slightly altered for a globalization setting! . . .

Maybe at the last moment the chancellor realized that his electoral campaign machine was running on empty -- and that he could be at fault because he forgot the main advice of his old rival [Oskar] Lafontaine: Only he who is himself inspired can inspire others. For four years Schröder spent far too little time and energy inspiring his party. On the contrary. He ran the trusty thing down, and turned his economic and social program into a social-democratic self-reproach for all the prejudices which conservatives and libertarians could have mobilized against social-democratic policies in the last twenty years. . . .

The heartless phrase of the social net as a 'trampoline' or 'springboard' entered into the highest social-democratic vocabulary and it spoke less of the new ideas of the SPD than of its new feelinglessness, since both terms apply to healthy and efficient people. And so not only did the SPD gain no new trust, it gambled away the old one. Consequently it lost that capital with which it could still grow in the last federal legislative elections: its social competence.
The article goes on to explain how, with this new 'social justice' program, the SPD is going to fight the FDP (the apparently libertarian-leaning party which is still in favor of tax cuts and the like and which got 18% in the recent elections); and how the right isn't fighting back because the FDP head is only into political marketing (and has to deal with anti-Semites in his party) and because conservative candidate Edmund Stoiber thinks vision ('the vision thing'?) is something 'only leftists' need.

Again, everything old is new again. The party that campaigns with ideas and inspiration tends to have the upper hand over the party that relies on mere competence. But campaigning with ideas is a dangerous proposition for the Left, since they got elected (in the U.S., in the U.K., and in Germany) partly by jettisoning the old Left and all their baggage. It's a beautiful and strong strategy for them, since my belief (and maybe I'll explain this in greater detail later) is that mainstream economics, translated into politics, leads most naturally to a moderate left (i.e., Clintonite) agenda. The business community and the middle class can eat that stuff up.

But the Left stays vulnerable to the extent they feel they have to retain their core. Which opens up a beautiful opportunity for the Right to campaign on their own inspiring ideas. Provided they believe in them.


DEFEATISM OR REALISM: I'm not sure I agree with Mark Horowitz's mocking FBI Director Mueller for saying "There will be another terrorist attack. We will not be able to stop it. It's something we all live with." Instapundit calls Mueller's statement defeatist, but that's not how I interpreted it -- nor do I think that the District Attorneys in the audience for Mueller's talk, not a defeatist bunch, would interpret it this way.

     Mueller's point, which is a good one, is that the public should not expect a war with no more casualties, or even a war with no more casualties on U.S. soil. Such zero-damage expectations themselves risk creating a feeling of defeatism when the expectations understandably fail to come true. Rather, people should realize that more civilians will indeed die (just as they're dying in Israel, despite the efforts of the Israeli government), and that while of course we should try to prevent such deaths, we shouldn't let these inevitable losses dispirit us.

     The better analogy, I think, isn't to Vince Lombardi saying to his players "Boys, we're gonna get beat and beat bad, and there's not a damn thing we can do about it" (Horowitz's example, as quoted by Instapundit), but to him saying "Boys, this is a tough team and they're going to score on us; but you can't let their occasional successes break your spriit." I don't know if it's the sort of thing Lombardi would have said, but if he had said it, I'd think it quite sensible.

UPDATE: Reader Damon Haas sends, in support of the point above, another Lombardi quote: "It's not whether you get knocked down. It's whether you get up." I think Mueller was telling us to accept that we'll be knocked down, so that we can focus on gathering the will to get up, and to keep fighting. (Of course, it would help if Mueller was trying to make sure we get knocked down less often, but I hope that should go without saying.)


SEPARATION OF SYNAGOGUE AND STATE: A federal court of appeals just struck down New York's kosher enforcement law -- the law barred labeling food as kosher unless the food preparation complied with requirements enforced by the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets. Other courts over the past decade have done the same.

     The kosher enforcement laws are, I think, well-intentioned: They're aimed at preventing a form of fraud, one that my Orthodox friends tell me unfortunately does happen, and that is understandably seen as particularly offensive. Jews who keep kosher naturally feel grievously deceived and defrauded when they learn that they have been led to unwittingly consume unkosher food. Moreover, if they bring the food home, they'd have to purify the plates and flatware used to eat it -- and a rabbi friend tells me that some material, such as expensive china, can't be purified and has to be thrown out.

     But the court was right to strike the law down: It's just no business of the government to decide the quintessentially religious question of what really is kosher and what isn't. (The Department argued that this wasn't a problem because "no one disputes the meaning of the term 'kosher'" -- you'd think New Yorkers would realize that we Jews dispute everything.)

     And fortunately, it turns out that kosher enforcement laws aren't really necessary to protect people from fraud. Neither is it necessary to enlist more convential laws barring false statements about one's goods; enforcing those laws would still require courts -- government officials -- to decide whether the label "kosher" is accurate.

     Rather, people can rely on trademark law. There are kosher certification authorities, such as the Union of Orthodox Jewish Congregations of America, that license special certification marks (in the Union's case, a capital "U" inside a circle) to those businesses who comply with the Union's rules and subject themselves to the Union's investigations. Individual rabbis do the same for local restaurants. If someone uses the certification mark or a rabbi's name when they aren't licensed to do so, they're violating trademark law -- and the government can punish them for violating this secular law without any judgment about whether their actions also violated religious law.

     The religious judgments (did so-and-so complying with kosher laws?) are purely in the hands of religious authorities. The secular authorities have to pass only secular judgments (did the person use the certification mark or the rabbi's name without permission?). The result is separation of church and state, a phrase that's often abused, but that is quite proper here. (Of course, there might still be concerns about the certification authority, whether an organization or an individual rabbi, erring in its certification decisions -- but the same concerns apply to the Kosher Law Enforcement Division.)

     And this, I think, illustrates a broader point: Separating religion and state is best accomplished when the government takes no cognizance of religion -- gives it no special benefits and imposes on it no special burdens or exclusions. Trademark law is equally available to everyone, religious or not. It provides a benefit to religious organizations, but only on equal footing with other organizations.

     Such equal treatment is proper, whether as to trademarks, income tax exemptions for charitable contributions, or school choice programs. But special benefits for religion, especially ones that require the government to make quintessentially religious judgments, are generally not proper.


CO-CONSPIRATOR: We're delighted to introduce Erik Jaffe, our new co-blogger. Erik is now an appellate lawyer in D.C.; before that, he clerked for Judge Douglas Ginsburg on the D.C. Circuit and a few years later for Justice Thomas. I know him through the Vast Law-Clerk Conspiracy, via a mutual friend who actually clerked for Judge Reinhardt, of all people (which should illustrate the open-mindedness of all three of us!).


BEING OFFENDED: Andrew Sullivan, whose work I much like, writes (the precise subject is irrelevant here) "I will try not to be personally offended by my friend Stanley's generalizations. Being offended isn't an argument." An obvious truth, but very well said -- and unfortunately, it needs to be said, despite its obviousness.


     The National Endowment for the Humanities has withdrawn its name from a fellowship for a professor facing accusations of research fraud over his book about the history of gun ownership in America.

     Chicago's Newberry Library "was in error when it awarded an NEH-supported fellowship" to Emory University history professor Michael Bellesiles, NEH Deputy Chairman Lynne Munson wrote Monday in a letter to Newberry officials.

     The library, Miss Munson wrote, awarded the fellowship in February 2001 despite "serious challenges to Professor Bellesiles' research" in his 2000 book, "Arming America," which claimed that gun ownership was rare in early America.

     "Because the name of the National Endowment for the Humanities represents a standard that Professor Bellesiles' application [for the fellowship] did not meet, we are revoking the NEH's name from this fellowship," Miss Munson wrote to James Grossman, vice president for research and education at the Newberry Library. "Please remove from all Newberry materials, including your Web site, any association of Professor Bellesiles with the NEH."

     Mary Lou Beatty, acting director of communications policy for the NEH, said that no federal funds were involved in the Bellesiles fellowship. . . .

     "Essentially, our business is with the Newberry Library and whether they did due diligence in looking at the application for a grant," she said. "We had asked for some verifications from them about their process and the answers just weren't satisfactory." . . .

     In her letter to the Newberry Library, Miss Munson wrote that "it is the Endowment's opinion that the Newberry's procedure for handling cases of research misconduct is flawed. The federal research misconduct policy calls for investigation and adjudication of fraudulent claims made not only in grant products, but also in applications for federal funds submitted to federal agencies and to their institutional grantees." . . .
     This is probably the right thing to do, even before the independent committee returns its opinion on the Bellesiles controversy. This really is a case of serious academic misconduct, and the academic community -- including the NEH, the Newberry, and universities like both Emory and UCLA -- has both a strong moral obligation and a strong selfish interest in investigating, condemning, punishing, and deterring misconduct like this.

     My one fear is that some Bellesiles defenders might spin this as a political step, The Government versus Independent Scholar. But I don't think this tactic will be effective, for the same reason that there are so few Bellesiles defenders left: The case against Bellesiles is so strong that the obvious response is "Well, The Government is right. What's your problem with that?" (Even if someone's claim is that Bellesiles didn't commit intentional fraud, at the very least he is guilty of gross scholarly negligence -- and I think even the merely grossly negligent shouldn't be awarded NEH fellowships.)


NITTY-GRITTY AND SLAVERY: The Times of London (sorry, no free link) reports a London police department brouhaha over the word "nitty-gritty." Some supposedly claim that the term is racist, because "nitty-gritty refers to the debris -- mostly lice -- left at the bottom of a slave ship after a voyage." On the other hand, lexicographers apparently find no evidence that this was in fact the word's origin.

     This reminds me of a couple of incidents a few years back when people complained about my using the term "handicapped," rather than "disabled." "Handicapped," they pointed out, comes from "cap in hand," referring to handicapped people begging with their caps in their hands. (A NEXIS search reveals several newspaper stories in which other people also make this claim.)

     Uh, no: It comes from "hand in cap," a betting game (see, e.g., the New Shorter Oxford, but I've found the same derivation in other sources); from there it evolved into handicaps as burdens that one party labors under in a game (as in golf or horse racing); and from there it apparently evolved into burdens that people labor under as a result of cruel fate. People getting offended -- and then trying to use that offense to change others' speech -- based on sheer myth.

     Likewise, contrary to common myth, "rule of thumb" does not seem to come from a supposed English common-law rule allowing men to beat their wives with sticks no thicker than a thumb. There was apparently never such a rule (according to quite thorough-seeming research by my colleague Andy Kelly here at the UCLA English Department), and in any event the term seems to come from carpenters' tendency to use the thumb as a rough measure.

     But what if these derivations weren't mythical? What if the origin of "handicapped," "nitty-gritty," or "rule of thumb" were indeed in some past offensive practice (and of course the past is chock full of offensive practices?

     My answer is that etymology does not equal meaning. The term "villain," for instance, derives from the supposed bad attributes of the peasantry (cf. "villein"). But the term's use today shouldn't be barred on the grounds that it is "classist."

     Of course, using a word as an intentional slur makes it, well, an intentional slur; and using a word that's still commonly used as a pejorative for some group may lead listeners to assume (even if erroneously in the particular case) that the speaker is intending that reference. But if the original meaning has been lost for centuries, exhuming it today makes no sense. If anything, such complaints -- even if etymologically accurate, and many aren't -- will only increase the aggregate level of offense: Some people will become offended by terms that they would have (correctly) seen as currently entirely innocent; and others will become offended by demands that they change the way they express themselves.

     But if you disagree with this analysis, I have one request for you: Immediately stop using the word "slave."

     The term, after all, derives from "Slav," "the Slavonic peoples having been reduced to a servile state by conquest during the 9th cent." (quoting the New Shorter Oxford, though I've seen this etymology in many other places). By using this tainted word, you are either endorsing the enslavement of the Slavs (and I should mention that my Ukrainian birth, blondish hair, and grey eyes suggest that quite a bit of Slavic blood flows in my veins), or are at the very least complicit in the centuries-old practice of ignoring their historical misery.

     So no "debris left at the bottom of a slave ship" for you, buddy: Find some other term that we Slavo-Americans (or Slavo-Englishmen) won't find as deeply offensive.

Tuesday, May 21, 2002


PALESTINIAN WILL TO KEEP FIGHTING: Daniel Pipes in Slate argues that if the Israelis persist, the Palestinian will to keep fighting may ebb.
Their endurance until now results from a combination of factors, of which three stand out.

The first is acute anger at the very existence of Israel and a belief that the Palestinian identity can be reclaimed only when the Jewish state is vanquished and replaced by a Palestine extending from the Jordan River to the Mediterranean Sea. The second factor is the fear that comes from living in the near-totalitarian atmosphere of the Palestinian Authority, where a lack of ardor for the long fight opens one to accusations of being a "collaborator," with all the dangers that implies, including being murdered.

The third and perhaps most powerful factor is the belief that the Palestinians are on a roll, on their way to weakening Israel and readying it for destruction -- and the concurrent belief that sacrifice brings victory closer. Judging by all accounts, Palestinians as a whole really do believe these days that they are battering Israel into submission. By conjuring statistics out of thin air, they seem to have convinced themselves that Israel is reeling and divided. Hamas spokesman Abd-al-Aziz al-Rantisi declared on Egyptian television that "around 1 million Israelis fled the Jewish state" lately as a result of the suicide bombings. He also pointed to a supposed flight of capital from the country and concluded that "life in the Jewish state has been paralyzed."

This is unadulterated nonsense. . . . In reality, sending out more suicide bombers and other killers is doing more harm to the Palestinian cause than to Israel. Violence effectively destroyed the Palestinian Authority, not the Israeli government. The campaign of murder has led to three times more Palestinian deaths than Israeli ones. The effort to impoverish and demoralize Israelis has precisely backfired.


MOUSSAOUI TRIAL: Did Moussaoui ask his instructors only to learn how to fly a 747, and not how to take off or land? The stories I've heard in the media and from friends say yes, but Slate's Explainer says no. I haven't tried to track down the straight dope on this, but I thought I'd mention that there's at least a controversy about it.


U. OF MICHIGAN RACE PREFERENCE CASE: Stuart Taylor (a political moderate, by the way) has a characteristically excellent piece on this in The Atlantic Monthly.


SECOND AMENDMENT, WITH TIMELINE: The San Jose Mercury-News has kindly agreed to merge my Second Amendment op-ed with the accompanying timeline, so the result looks a lot clearer than it had before. (I much enjoyed working with the editors there, by the way, and unlike most other newspapers, they actually did a bit of fact-checking, which is to their credit.)

     The piece was supposed to also run on the Knight Ridder wire, so some other newspapers might pick it up, but I can never figure out who does and who doesn't; if you see it in one of your local papers, please drop me an e-mail (volokh at with the title, date, and page number.


ACCIDENTS AND HANDGUNS VS. LONG GUNS: Reader Dick Aubrey writes, responding to an earlier post here, that long guns might indeed be less likely to lead to accidental shootings than handguns: Because a long gun is, well, longer, one is less likely to accidentally point it at oneself. About half of all firearms accidents involve people shooting themselves, and this may therefore decrease this subset of all shootings.

     On the other hand, if someone is accidentally shot with a long gun (whether he was shot by himself, or by someone else), the wound is more likely to be lethal. What's more, we're talking about a comparatively small number of fatal accidents in any event -- there were under 900 fatal gun accidents in the U.S. in 1999; past studies suggest that about half (under 450) would be people shooting themselves; so even if a handgun ban could reduce aggregate firearms accident deaths by one half (unlikely), that would be a savings of about 200 deaths.

     Not chopped liver, obviously, but not, in my view, justification for a total handgun ban -- and if it is, we should ban motorcycles (over 2000 deaths per year) or swimming pools (many hundred deaths per year) first. The gun debate, let's face it, generally is not and should not be driven by accidents, which are tragedies but still only a tiny part of the total set of tragic accidental death in the country. The main issues in the gun debate have to do with gun crimes (about 500,000 per year) and gun homicides (about 12,000 per year) versus defensive gun uses (100,000-2.5 million per year) and the possible deterrent effect of guns (hard to estimate for sure, though John Lott's More Guns, Less Crime has tried, yielding much controversy).

     But say that you disagree with me, and think that saving 200 deaths per year is a good enough reason to ban handguns. This would merely prove my original point, which is that long gun owners should be worried that a handgun ban will eventually lead to a long gun ban. After all, saving those 200 deaths per year will still leave over 600 deaths per year from long guns. If saving 200 lives is seen as justifying a total handgun ban, then presumably many people will also see trying to save 600 more lives as justifying a total long gun ban.


[From Sasha] THE REAL INSPECTOR HOUND: Well, I see I cant leave the country without all hell breaking loose. First, they towed my car some days ago without telling me about it. . . next, I have personally discovered that One mans floor is another mans ceiling (downstairs neighbor, plumbing). . . . And as for this, that is, like, soooooo not my voice.

In better news, the hotel next door seems much better, and I have two nice roommates, Salvatore from Italy and Mustafa, a Tunisian student also from Italy. They’re smokers, but better smoke than insects, is what I always say. Yes, I always say that. I introduced Mustafa, who had a headache and toothache and just generally felt under the weather, to the joys of generic Tylenol and now he’s my bestest friend. He fortunately speaks French, but when Salvatore’s around our only common language is Italian, in which we had a nice conversation about soccer yesterday.

As for that movie I saw the other day, Im pretty sure its not a romantic comedy about the biotech industry, because last night, believe it or not, I actually did see a romantic comedy about the biotech industry (and its not I Love Trouble). Its called Bella Martha, and its about a gourmet chef who suddenly has to take care of her dead sisters eight-year-old daughter, and her relationship with the Italian chef Mario who comes to work in her restaurant. Something like About a Boy meets Eat Drink Man Woman. Anyway, its really good, so when one day it comes out in the U.S. under the name Mostly Martha or something, you should really go see it, its a little gem of a movie.

But where, you may fairly ask, is the biotech? (I think we are entitled to ask.) Well, what is cooking but a form of low-tech biotech. Nanotech without the nano.

Meanwhile, reassuring news that in all different political cultures, there are some constants of existence. The by now familiar Süddeutsche Zeitung writes:
Fear of Tax Lies -- The Union [a coalition of conservative parties] takes back its promise and distances itself from the FDP [a ‘liberal’ party, which in Europe means ‘more libertarian among the conservatives’]

Politicians want nothing more longingly than great poll numbers. As far as actual numbers go, Union representatives must be happy these days: all opinion researchers see a Black-Yellow majority [SV: wouldn’t it be neat if we referred to our own parties by their colors?]. However, the largest opposition party cannot carefreely enjoy its good mood. The more probable a change of government, the more the Union leadership must occupy itself with reality, which is from time to time far removed from the party’s own program. For instance, tax policy: if there were a political prize for the quickest backpedaling, the Union would have good chances of winning it.

For two years, the CDU/CSU [the political parties in the Union] gave the red-green tax reform [I think that’s what we have now, with the social democrats and the Greens in power] a hard time. Countless speeches and papers spoke of a grandiose failure of the finance minister. The ‘Bookkeeper Hans Eichel,’ so the Union’s mockery of the SPD [social-democratic] politician went, lacked courage and vision. The demand for bringing forward the tax reform, whose next stages go into effect in 2003 and 2005, belonged to the standard repertoire.

Nothing is left of all this rhetoric. . . . The fear of being trapped in a tax lie is going around.

Correspondingly, the possible governing party-to-be articulates itself vaguely. Chancellor candidate Edmund Stoiber (CDU) promises a tax reform starting in 2004, but doesn’t say what it should look like. Also, the only clear thing about one explosive detail -- a corporate sales tax exemption [SV: not sure I have that right, it’s ‘Steuerfreiheit für Veräußerungsgewinne der Konzerne’] -- is that everything is unclear. . . .

Instead of unambiguous statements, the Union contents itself with oracular analyses: ‘The wiggle room is narrow,’ says [one of Stoiber’s people]. The Swabian from the East [same guy] calls ‘funny’ the tax reduction plans of the potential coalition partner FDP: ‘Such ideas will quickly be finished.’
Yes, this is a constant of political existence, even in Germany. (Say what you will about proportional representation, which is indeed problematic, but at least these pro-tax-cut guys get a party in the legislature and can make trouble on an ongoing basis. Sure, we have a more-pro-tax-cut wing among the Republicans, so it’s not so totally different. I’m just saying is all.)

Just saw a nice political ad: ‘Happy? Then vote Red-Green. Otherwise, vote for __________ of the FDP.’ Unfortunately, the FDP has problems of its own: one of its candidates in North Rhine-Westphalia, ex-Green Jamal Karsli, was just caught complaining to the media about Jewish influence on the media and politics. Oh well. . . .


OH, AND A BIT MORE ON BELLESILES AND THE HISTORIAN'S CRAFT: When the Arming America scandal first started to break, I read through the book with an eye out for claims that struck me as odd. Actually, since I’m not a historian, relatively little struck me that way, since I knew so little about the underlying claims. But there were about a dozen assertions, mostly about law, that surprised me. And when I checked the footnotes and had the library pull the sources, the majority of the assertions proved to be wrong, incomplete in important ways, or unsupported.

     One in particular sticks in my head, though it’s actually less severe than some of the other problems that others -- Jim Lindgren, Clayton Cramer, Randy Roth, Joyce Malcolm, and other scholars -- have found. (It doesn’t actually involve an apparently false claim, which by standards of this scandal makes this a very minor peccadillo.) On p. 7, “Arming America” (2000 hardcover edition) says:
Five days before the shootings in Littleton, Colorado, Supreme Court Justice Antonin Scalia agreed with this view that citizens have a constitutionally protected right to own machine guns.
     Now that's pretty interesting, I thought to myself: I know that in his piece in the Matter of Interpretation book, Scalia expressed some sympathy for the individual right view, but I'd never heard that he said the right extends to machine guns. So I checked the cite, which is the Baltimore Sun, April 30, 1999. It turns out that the article is an opinion column; and here is the relevant excerpt:
     FIVE days before two teen-agers went on a murderous shooting rampage in a Colorado high school, U.S. Supreme Court Justice Antonin Scalia told a group of students at the Park School in Baltimore County that if he had his way, people would have more -- not less -- access to deadly weapons.

     At a small luncheon following his speech to 300 students there, Justice Scalia said that citizens have a right to own machine guns, said Jessica Munitz, a 17-year-old Park senior.

     Pressing the outer limits of his thinking on this matter, Jessica -- who has earned early admission to Princeton University -- said she asked Justice Scalia if he thought people should also 'be allowed to have hand-held rockets that can bring down airplanes.'

     After a moment of contemplation, Justice Scalia told Jessica he didn't like that idea. Justice Scalia fancies himself an 'originalist' -- someone who thinks the Constitution means today exactly what it meant when it was adopted two centuries ago.

     So not surprisingly, Justice Scalia says the language of the Second Amendment, which gives citizens the right to bear arms, is a license for people to amass a nearly limitless arsenal of weapons.

     That's outrageous. . . .
     Now I wonder: Is it considered standard practice for historians to make assertions -- with no qualification or explanation of the possible weakness of the source (either in the text or the footnotes), but merely as "Justice Antonin Scalia agreed with . . ." -- based on a single newspaper opinion piece, that uses as its source a high school student who says she heard someone say something at a small luncheon?

     I don't claim that the source was certainly wrong; it might possibly be right. But maybe Scalia was misquoted. Maybe he said that the 2nd Am protects "assault weapons," and the student incorrectly remembered this -- as often happens -- as "machine guns.” Maybe he made a devil's advocate argument, or asked "Well, why doesn't it protect machine guns." Maybe he might have, as a former law professor, presented one side of an issue to the students, hoping to get them to argue the other side. Maybe the student otherwise misunderstood or misremembered.

     More broadly, maybe a 17-year-old's paraphrase is not reliable enough to support an unqualified assertion. Odd, given that this -- the sound evaluation of the likely reliability of historical sources, and the frank acknowledgement of possible errors in such sources -- is what historians are supposed to be schooled in.


BELLESILES: The doubts about Bellesiles' stories just keep on coming; see Prof. Jerome Sternstein's piece about Bellesiles' a flood destroyed my notes story.

     I doubt, incidentally, that such an article would have been written about another professor's claim of destroyed data; people would have just taken it on faith, and actually sympathized. But once there are enough errors in one's other claims, people start questioning everything you say. And here the continued questioning seems to be uncovering more and more problems.

UPDATE: Two items from Melissa Seckora -- who helped break the story last fall in her National Review articles -- on another aspect of this scandal. Click here and here.


A CRITIQUE FROM THE LEFT OF THE "WHY DIDN'T THE BUSH ADMINISTRATION DO SOMETHING?" ARGUMENT: Brendan O'Neill has an interesting critique of Bush's critics:
With their demands that Bush do more, more, more, the anti-Bush left have effectively given him carte blanche to clamp down on civil liberties, issue panicky warnings that will heighten people’s sense of fear, and even to intervene abroad in the name of stopping attacks on the USA. The left have argued that ‘precautionary action’ should be the centre of American politics -- and Bush might just be happy to take up their offer.
There are parts of O'Neill's piece with which I disagree, but he makes some interesting points, which really ought to resonate with those on the Left. (Note that my Netscape 4.79 crashes when trying to read his page, though Internet Explorer works fine with it.)


KIDS THESE DAYS: Daniel Henninger's piece (from last Friday) is a good old-fashioned bit of O-Tempora!-O-Mores! world-is-going-to-hell-in-a-handbasket curmudgeonliness. Now there's a lot to be said for this genre -- but apparently curmudgeonliness ain't what it used to be (now when I was a kid, we had real curmudgeons).

     The article's thesis is that "Our Age [Has] Dumbed Down Even Invective" (to quote the title). Modern insults, such as "Sharon and Hitler are the same. Only difference is the name" or Eminem's "Fuck You, Miss Cheney" aren't the real, high-quality outbursts of the past; they are "invective freed of thought or limits, like much else in the ditch just now."

     And the key reasons for this decline, the article argues, are (1) campus speech codes ("I think there is a connection between the effort to proscribe who may say what about whom, as these codes attempted, and 'Hitler should have finished the job'"), and (2) feminism ("Simultaneously, at the very moment that some speech was shut down, another, related political movement announced that 'the personal is political' and made words its instrument.").

     There are, I think, three problems with this analysis:

     1. If you're trying to show that things are getting worse, you need to do three things: (a) Show the way things are now, (b) show the way they were, and (c) show that (a) is worse than (b). The trouble is that the article focuses only on the first of these. It just takes for granted that once upon a time political invective was part of an "honorable tradition," "blistering, biting [and] appropriate."

     Of course, I can't insist on scientific studies of Invective Quality (average 3.7 megablisters today, 8.2 megablisters in 1962). An author is entitled to his impressionistic assessment. But I wonder whether the article might be comparing not today's average with yesterday's average, or today's worst examples with yesterday's worst (and surely there were plenty, from plain and simple racial insults to the Supreme-Court-precedent-setting "Fuck the Draft"), but today's worst with yesterday's best.

     Currently lived experience, we always have to remember, is different from remembered experience, and even more from recorded experience. History, and in some measure our memories (especially the memories of the nostalgic), record the biting quips, the Churchillian wit. They often rightly forget some putz's inane sloganeering.

     There are plenty of first-rate rants, as blistering, biting, and appropriate as anything you might hope for today (consider Jim Lileks, for instance), as there were in the past. There was also plenty of dreck in the past, just as there is now. I have no reason to think that the ratio has changed appreciably -- and the article, unfortunately, provides no evidence that this is so.

     I say all this, of course, because this problem isn't limited to complaints about the declining quality of invective; people often claim that, say, there's more of [fill in the blank] than ever, simply because there's more that they see now than they remember or read about with regard to the past. One should always be careful of such claims.

     2. So I'm not sure that there is a decline in quality of invective -- but if there is one, I don't quite see the connection to campus speech codes. The article's argument is that
Perhaps the adults [who implemented the codes] are responsible for infantilizing speech. Their speech codes, and how they were enforced, made it clear that opinions about certain "highly charged topics" were verboten. Whole classes of people -- women, native Americans, people of color -- were immunized against being the subject of critical speech. Whether faculty or student, one had to be fastidious about one's words, or risk termination, public condemnation or expulsion.
     Now I strongly oppose campus speech codes, and I've written extensively in the related area of hostile environment harassment law. But for all their flaws, it is an overstatement to say that they made "opinions about certain 'highly charged topics'" "verboten," or "immunized" "[w]hole classes of people" from "critical speech."

     There were some complaints brought on the basis of political opinion, though most were dismissed; and the existence of the codes, and their vagueness, did deter the expression of such opinion in some measure. But it just wasn't the case that critical speech about various groups was prohibited. There were plenty of things people could say, especially if they said them without epithets, and people did say such things. Even this relatively modest level of restriction, I think, is unconstitutional (at government-run universities) and a violation of academic freedom (at all universities). I'm glad that the student speech codes were struck down in every case in which they were challenged (at least five by my count). But let's keep some perspective about this.

     More importantly, though, why should we think that speech codes, for all their faults, have led to more insults rather than less? I realize that public policies sometimes have perverse results, but I see no evidence of such results here. I doubt that speech codes, even when they were in effect, reduced the number of gutter insults; but exactly what reason is there to think that they increased them?

     3. Likewise, I don't see how one can fault feminism for the condition that the article describes. Here's the article's argument on this:
Simultaneously, at the very moment that some speech was shut down, another, related political movement announced that "the personal is political" and made words its instrument. In this world, words stretched to support any imaginable argument. This movement insisted that the most quotidian, private corners of life -- child rearing, sex, simple conversations -- were in fact fodder for hard political debate and codification into rules or law.

     And so it happened that language, mere words, had to carry the burden of these contradictory movements -- figuring out when it was permissible to use words for opinion (as regulated by published codes or social ostracism), and how far words could be pushed to justify whatever theory of social reorganization floated into view. We made the young and people at work live with both unfreedom of expression and freedom to voice any outrage, provided it had political immunity from the institution's authority figures.
     I support much of what has been done in the name of feminism, but I share the author's disagreement with other aspects. Still, it's again important to be accurate.

     For instance, it's hardly feminism that "insisted that . . . sex . . . [was] in fact fodder for . . . codification into rules or law." The law has longer recognized that some legal regulation of sex was required: It banned (correctly) rape, sexual abuse of children, and in particular incestuous abuse of children, and (in my view incorrectly) homosexuality, premarital sex, various consensual adult sexual practices, masturbatory devices, pornography (which is generally used as a masturbatory device), and prostitution.

     One thus can't claim that it was feminism that first started to regulate "the most quotidian, private corners of life." Pre-feminist conservatism took quite a few stabs at this as well. Now feminism went further, going after -- chiefly in workplaces and schools -- sexual extortion, unwanted fondling, repeated sexual propositions, sexually themed jokes, and so on. Some of these restrictions were wrong, while others (such as the attempts to stop sexual extortion or unwanted fondling by coworkers and supervisors) are much more defensible, though one can fault the particular mechanisms that have been used to go after them. But again, let's limit the criticisms of feminism to the actually well-earned ones.

     And beyond this, I again don't see how feminism's supposed incursions into "private corners of life," and its insistence that "the personal is political" (and surely the political arena should consider whether and how to combat abusive conduct in the fields of "child rearing [and] sex"), have led to a degradation of public discourse. There were gutter insults in the pre-feminist era; there are some now. Perhaps they were less often seen in public venues, such as rallies and demonstrations (though query whether they were that rare, e.g., in bitter labor disputes, racist campaigns, and the like); the liberalization of public mores in the 1960s may have had something to do with it. But where is the causal connection between feminism and that?

* * *

     I actually don't think things are getting worse in American society generally. There are surely problems, and some have indeed gotten worse since, say, the 1950s: crime, for instance (especially before the huge and not fully understood declines of the last half decade); in considerable measure education; probably the abuse of the more harmful drugs; and other matters. But other things have gotten much better -- race relations, the opportunities open to women, overall wealth and health, technology and the everyday benefits it brings (such as the opportunity for people to communicate with people in ways that were impossible before).

     I agree that we should try hard to figure out what caused the deterioration that has indeed taken place, and I am prepared to find culprits in places that I'd rather not find them. For instance, though as a libertarian I'm happy in principle about the sexual revolution of the 1960s and 1970s, and many aspects of the cultural revolution of that era, there are plausible arguments that many social ills of today are linked to those very events. But I think that the connections have to be demonstrated much more carefully than many (both on the Left and the Right) have done.


THE ECONOMIC MODEL OF CLASS ACTIONS: Does efficiency always come in bigger boxes? You be the judge. (Well, Easterbrook is The Judge really, but you can play along at home.)

     In the recent Firestone case addressing the certification of a class action, Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit considers the appropriate model for hearing, analyzing, and applying information in the context of a potential class.
The district judge did not doubt that differences within the class would lead to difficulties in managing the litigation. But the judge thought it better to cope with these differences than to scatter the suits to the winds and require hundreds of judges to resolve thousands of claims under 50 or more bodies of law. Efficiency is a vital goal in any legal system--but the vision of "efficiency" underlying this class certification is the model of the central planner. Plaintiffs share the premise of the ALI's Complex Litigation Project (1993), which devotes more than 700 pages to an analysis of means to consolidate litigation as quickly as possible, by which the authors mean, before multiple trials break out. The authors take as given the benefits of that step. Yet the benefits are elusive. The central planning model--one case, one court, one set of rules, one settlement price for all involved--suppresses information that is vital to accurate resolution. What is the law of Michigan, or Arkansas, or Guam, as applied to this problem? Judges and lawyers will have to guess, because the central planning model keeps the litigation far away from state courts. . . . And if the law were clear, how would the facts (and thus the damages per plaintiff) be ascertained? One suit is an all-or-none affair, with high risk even if the parties supply all the information at their disposal. Getting things right the first time would be an ccident. Similarly Gosplan or another central planner may hit on the price of wheat, but that would be serendipity. Markets instead use diversified decisionmaking to supply and evaluate information. Thousands of traders affect prices by their purchases and sales over the course of a crop year. This method looks "inefficient" from the planner's perspective, but it produces more information, more accurate prices, and a vibrant, growing economy. See Thomas Sowell, Knowledge and Decisions (1980). When courts think of efficiency, they should think of market models rather than central-planning models.
Of course, Judge Easterbrook is not claiming that the certification of class actions is never efficient. The co-author of The Economic Structure of Corporate Law understands the concept of efficiencies of scale, but the aggregation of vastly different objects (cases included) into one big pile misses the point of scale.


NEW INSTAPUNDIT ADDRESS: Instapundit is at; the address will point there in a few days. should forward there automatically, but intermittent blogspot glitches this morning have kept that from consistently happening.

Monday, May 20, 2002


FRANCE, HISTORIANS, AND FREE SPEECH: Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

     The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

     Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work) -- under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:
Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no “serious proof” of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.
(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof . . . of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

     Now I say all this not because I feel competent to tell the French how to run their legal system. They've got their laws and we've got ours, and while I think I prefer ours, I don't know enough about French culture, society, or legal system to be highly confident about what works best for them.

     But I repeatedly hear, mostly from law professors but also from others, calls for adapting American free speech law -- and American constitutional law more broadly -- to fit the European mold. America is the only Western country, the argument runs, that's so insensitive to the plight of victims, or so hospitable to racists and other bigots, or just so downright goofy in its First Amendment zealotry that it fails to punish Clearly Harmful And Valueless Speech such as Holocaust denial or racist advocacy or what have you.

     The trouble with these sorts of speech restrictions, though, is that narrow, reasonable-seeming constraints -- after all, what harm will it do if we suppress Nazis or anti-Semitic Holocaust deniers? -- end up growing and growing. It might be censorship envy, or the influence of precedent, or a desire for equality, but what the ACLU and other "extremists" say tends to be true: You start by suppressing Communists, and then you get to Communist sympathizers, and then to fellow travelers, and then to liberals. You start by suppressing racial or sexual slurs, and then you get to hard-core pornography in the workplace, and from there to supposedly bigoted political advocacy, sexually themed humor, classical art, or religious proselytizing. And you start by going after Holocaust denial and soon enough you punish respected historians for supposedly not providing a balanced presentation -- balanced, that is, in the eyes of the judge.

     Cases like the one I describe provide a useful example of what happens when one tries to take a more "reasonable", less "extreme" view of free speech. And from what I've seen, it seems to me that we shouldn't be too quick to jettison our First Amendment tradition, for all its flaws, in favor of the supposedly more internationally approved, interest-balancing, and sensitive European model.


ACCIDENTS: Reader Adam Bonin asks a sensible question:
     Quick question on the guns/substitution effect question, one for which I am curious about the answer. Even if true that accidental discharge is more likely to be fatal from a rifle/shotgun than from a handgun, might it also be possible that the likelihood of accidental discharge itself is lower from a rifle/shotgun than from a handgun? I'm wondering if any differences in design make such firearms less likely to discharge accidentally, and whether there's a lower probability that such firearms would be/could be left in a position more prone to accidental firing -- you can't just leave one on a counter, say, and perhaps children/other untrained people are less likely to have access to them.

     This is all ad hoc, and I don't know that any of this has any basis, but it occurred to me -- so I figured, why not ask?
     On the other hand, Don Kates, a leading skeptic of gun-control proposals and a pioneer of the individual-rights scholarship, writes in his "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Mich L. Rev. 204, 262-63 (1983):
This danger is multiplied by the fact that a rifle or shotgun kept loaded for home or store defense is much more likely to suffer accidental discharge than is a handgun. A rifle or shotgun kept ready to fire can discharge simply through impact if dropped on a floor; a modern revolver will not. A long gun is also much more difficult than a handgun to lock or hide away from inquisitive children. Finally, if an inquisitive three-year-old does locate a loaded rifle or shotgun, pushing the safety to 'off' and pulling the trigger is literally 'child's play'; he would not be strong enough to operate the trigger on a revolver or the slide on an automatic pistol.
So which is it?

     I can't say for sure; there simply is no reliable data, at least that I know of, on the subject, so all we have is guesswork. Nonetheless, here's my sense of the matter:
  1. Over 90% of all fatal gun accidents involve adults or children above the age of 10, see the CDC site.

  2. None of the handguns that I've handled (admittedly an unrepresentative sample) have triggers that are particularly easy to pull accidentally, at least compared to the rifles or shotguns that I've handled; and to my knowledge most handguns are quite unlikely to go off when, say, accidentally dropped.

  3. Partly because of this, my guess is that most fatal gun accidents happen when people pull the trigger when they shouldn't -- when they're playing around thinking the gun isn't loaded. (See generally the rather scanty data collected in Gary Kleck, Point Blank pp. 313-17 (1991).)
     So I would suspect that the risks of an accidental discharge involving a handgun kept for self-defense and a long gun kept for self-defense would be quite similar. I certainly have no reason to think that the handgun risks are higher than the long gun risks, and while it's possible that they're lower, I doubt that this is particularly likely.

     But there's no question that, if an accidental discharge occurs, a shotgun injury is much more likely to be lethal than most handgun injuries, and rifle injuries should also be more dangerous (at least when compared to handguns of the same caliber, and often even when compared to larger-caliber handguns).


CHEAP SHOT: A cheap shot from Michael Kinsley -- but a funny one.


HOLD THAT TIGER! William Saletan, writing in Slate, has some wise words about the dangers of hindsight. The piece is much worth reading in its entirety, but here's how he begins:
If only the Bush administration had heeded a 1999 Library of Congress report on The Sociology and Psychology of Terrorism, the latest terrorist strike against the United States need never have happened. In that report, experts commissioned by the National Intelligence Council outlined "New Forms of Terrorist-Threat Scenarios." From that discussion and clues in other government reports, the FBI, the CIA, and the White House could have pieced together and averted the deadly plot that has since unfolded.

The plot to which I'm referring, of course, is last week's suicide bombing of a U.S. Navy destroyer docked in Baltimore, which claimed the lives of Deputy Defense Secretary Paul Wolfowitz and more than 100 sailors. This despicable deed, perpetrated by Tamil guerrillas using a small submarine packed with explosives, was telegraphed years in advance. It should have been obvious to anyone who read the 1999 NIC report and other intelligence-related documents freely available on the Internet.

The NIC report advised policymakers, "The world leaders in terrorist suicide attacks are not the Islamic fundamentalists, but the Tamils of Sri Lanka." The report warned that the Liberation Tigers of Tamil Eelam, or LTTE, was "the only terrorist group to have assassinated three heads of government" and that it posed a threat to the United States.

. . .


MORE INTERNATIONAL GREETINGS: Hello to our visitors from Vanuatu and Niue; the latter takes the honor of being the first visitor from a country that I'd never heard of (and I'm actually pretty geography-savvy for an American). According to my plugin (highly recommended, by the way), Niue is
An island dependency of New Zealand in the south-central Pacific Ocean east of Tonga. Discovered by Capt. James Cook in 1774, it became internally self-governing in 1974. Alofi is the capital. Population: 3,578.
     Now I should mention that a Vietnamese friend of mine, Hao-Nhien Vu once had (unless I misremember) a domain name of, registered through Vanuatu. As a Volokh, I'm appalled at the shameless discrimination in favor of the Vus and the Ngs (Nigeria); even my friends Mike Ha, Jim Ho, two-letter though they might be, can't take advantage of this. What's my point? Oh, yeah, that maybe the .vu visitors were actually not from Vanuatu after all. And while the Niue guy (.nu) seems legit, who knows?

     In any case, we'll take your visits no matter where you're coming from.


A RARE BIT OF USEFUL SPAM: I'm not wild about spammers, though I don't have as negative a view of them as some people do. But this bit of a spam actually seemed quite useful to me. I've had my share of job interviews, and I've also done them from the employer side, and I think these are really good though simple points. Some may seem pretty obvious, but sometimes it's good to restate the obvious.

     The spam was sent around by Yeah, I know I'm encouraging spammers by this, but I think I need to give credit where credit is due. Here are the items that struck me as the most useful:
1. Tell me about you!

Keep your answer to one or two minutes; don't ramble. . . .

3. Why do you want to work for us?

Don't talk about what you want; first, talk about their needs: You would like to be part of a specific company project; you would like to solve a company problem; you can make a definite contribution to specific company goals.

4. What would you do for us?

What they really want to know is . . . What can you do for us that someone else can't?

Relate past experiences that show you've had success in solving previous employer problem(s) that may be similar to those of the prospective employer. . . .

5. What about the job offered do you find the most attractive? Least attractive?

List three or more attractive factors and only one minor unattractive factor.

6. Why should we hire you?

Because of your knowledge, experience, abilities and skills.

7. What do you look for in a job?

An opportunity to use your skills, to perform and be recognized.

8. Please give me your definition of . . . (the position for which you are being interviewed).

Keep it brief -- give an action- and results-oriented definition.

9. How long would it take you to make a meaningful contribution to our firm?

Not long at all -- you expect only a brief period of adjustment to the learning curve.

10. How long would you stay with us?

As long as we both feel I'm contributing, achieving, growing, etc.


SOURCES: Reader Irwin Mortman asked me for links to the Justice Department's briefs endorsing the individual rights view of the Second Amendment. I didn't have them -- our excellent research librarians here at UCLA got me faxed copies shortly after the briefs were filed -- but Mr. Mortman did more research and tracked them down. For those who are interested: the Emerson brief and the Haney brief.


EUGENE VOLOKH writes: ALIENS STOLE MY BROTHER, and replaced him with a parody. Well, no, actually someone signed on as him using the password that was exposed during Weird Blogger Glitch #372 last weekend and posted the following (we had some difficulty changing our passwords, but that's taken care of now). In the interests of History, and because it's actually kind of amusing, I'm retaining the post below. But it ain't his.

Well, my new hotel in Munich didn't work out either (no king-size beds), so I had to fly back home in order to get a good night's sleep. It's great to be back! Besides, I must really keep a closer eye on what my co-conspirators post on this board because lately there have been some questionable posts made here. For instance, who cares about slippery slopes or the Washington Post drivel, when 24 CFR § 3280.204 still remains on the books yet is clearly unconstitutional in so far as it purports to set kitchen cabinet protection requirements in non-metric units? And while we are on the subject of Washington Post, I wonder why my co-authors even bother to read it. I prefer the Washington Times; I find it is usually right on point, thus eradicating the need to survey various blogs to get a correct opinion on the news. Finally, if I were to be dragged into a discussion about the posts made here during my brief absence, I would have to note that I partially disagree with Eugene’s post on the Substitution Effects, in particular, point # 4, which involves his predictions about the effect of a handgun ban on drive-by homicides. I doubt that substituting rifles for handguns would lead to an increase in drive-by shootings, given that a rifle cannot be shot from a moped, a bicycle, or a Segway.


FEARING THE SUPER-READERS: Historian Rick Perlstein writes in the Village Voice and the History News Network on the Doris Kearns Goodwin affair; and while I can't pass judgment on the whole piece, I very much liked the following item:
. . . Historians must write in the grip of an abiding fear. Composing a paragraph one imagines two audiences: the everyreaders, and the three or four people who know more about what you are writing in a particular paragraph than you do, who have read any book you're inclined to plagiarize, who, for God's sake, may have written the book you're inclined to plagiarize.

     It is an existential matter. Goodwin originally excused herself by claiming she replaced her messy practice of taking notes in longhand -- which she says accounted for the Fitzgeralds and the Kennedys error -- with a bang-up computer system, once she learned about her plagiarism problem in the late '80s (a lie in any event, because she later acknowledged that she had not changed her system during the production of her 1994 book No Ordinary Time). But what Goodwin really did had nothing to do with long yellow legal pads or fancy new footnoting software: She willfully banned those three or four super-readers from her mind as she composed each page.

     I'm fascinated by what it takes for a historian to drop this fear -- the fear of being found out. . . .
May more of us absorb this fear.


EAT THE WHALES: The annual meeting of the International Whaling Commission opened today in Shimonoseki, Japan. On the agenda is a Japanese proposal to end to the sixteen-year moratorium on commercial whaling. Japanese officials note that most whale populations are increasing. They argue that whales should be viewed no differently than other marine resources (i.e. fish) and that commercial harvesting for human consumption should be permitted. (Of course, it already is for some groups, but that's another story.) Animal rights groups oppose whaling vehemently, though PETA runs "eat the". I say why bother. I've had whale meat, and it's just not that tasty.


SUBSTITUTION EFFECTS, AND ENFORCEMENT NEED SLIPPERY SLOPES: I've been blogging a lot about guns recently. This is partly because I actually know quite a bit about gun control policy, which is more than I can say about terrorism, the Middle East, or child molestation scandals. But it's also partly because the gun control debates provide such interesting examples of broader public policy analysis points. The purpose of the firearms regulation policy seminar that I teach at UCLA Law School is precisely to use gun debates to illuminate these broader policy issues.

     Mary McGrory's Washington Post piece, which I mentioned in an earlier post, provides a good illustration. Gun owners, McGrory writes, "have been brainwashed by the NRA to think a handgun ban would mean the confiscation of their hunting rifles. No one seems able to convince them that even the mouthiest Massachusetts liberal has no designs on long guns."

     Does this make sense? Would a handgun ban (note that this is what McGrory seems to be endorsing as the moderate form of gun control) have no tendency to lead to a ban on rifles (and, I presume, shotguns)? Or do sane, non-"nut[ty]", un-"brainwashed" long gun owners have reason to worry that a handgun ban will in fact lead to a broader ban?

     Now for starters, it's worth noting that, according to some recent surveys, 17-22% of all respondents would support a ban on all guns, while 33-47% would support a ban on handguns. (Source: Gary Kleck, Targeting Guns p. 346, tbl. 10.2 (1997).) If the former group is largely a subset of the latter (not logically necessary, as I'll explain below, but practically likely). This means that half of all McGrory's fellow supporters of handgun bans do "ha[ve] designs on long guns."

     It's also worth noting that Washington, D.C., where McGrory works, not only bans handguns, but bans possession of rifles and shotguns unless they're kept locked and unloaded. Now it's true that this doesn't prohibit long guns kept for hunting, but it does show that the campaign against arms kept in self-defense does indeed extend to long guns.

     SUBSTITUTION EFFECTS: But let's focus for a moment on another question -- what will handgun owners (whether they own handguns for self-defense or for criminal purposes) do if handguns are banned?

     Presumably, the great majority of these people will switch to either rifles or shotguns. They might prefer handguns now, but if handguns are prohibited, they'll probably prefer a long gun over nothing at all. Not everyone will switch, but many will. This is a so-called substitution effect -- a control measure leads not to people entirely stopping an activity, but rather to shifting to other activity. What will be the consequences of this phenomenon for the various problems that pro-control forces are concerned about?
  1. Accidents, home and hunting (the great majority of fatal firearms accidents) -- probably an increase in deaths, since rifles and shotguns are generally more lethal than handguns, rifles because of their higher muzzle velocity, and shotguns because they shoot multiple pieces of lead. (For information on the kinetic energy of various firearms projectiles, see Trudy Ann Karlson & Stephen W. Hargarten, Reducing Firearm Injury and Death: A Public Health Sourcebook on Guns pp. 68-69 tbls. 4.1-4.2 (1997).)

  2. Suicides. Probably no effect, or perhaps a slight increase, again because rifles and shotguns are surely no less lethal than handguns.

  3. Domestic homicides. Probably an increase in deaths, since long guns can be used in homicides at home as easily as handguns, and since again they are much more lethal.

  4. Drive-by homicides. Probably an increase in deaths, for the same reason.

  5. Street homicides. Here a handgun ban might have some effect, since rifles and shotguns are harder to conceal than handguns. Some robbers and other street thugs might therefore stop carrying handguns and not substitute to rifles and shotguns.

    But how likely is this? First, the thugs are already willing to break laws against robbery and perhaps murder -- why wouldn't they break the law against owning a handgun? (Note that there are probably over 80 million handguns out there, so there'll be a huge stock still available to criminals on the black market, even if the handguns are all outlawed. Source: Kleck, pp. 96-97, tbl. 3.1.)

    And second, inside every rifle is a handgun waiting to get out. A handgun is simply a shorter rifle, and a rifle can be turned into a serviceable handgun by the use of a saw. The result won't be a great gun, but it will be ample for short-distance robberies and murders; and while it won't be as concealable as some handguns, a coat or even a jacket will hide it just fine. Shotguns can likewise be sawn off, and the result is a weapon that is much more lethal than a handgun.

    So some criminals might forego their guns, because they don't want the hassle of sawing off a long gun (or buying such a gun) -- the result may be less death. Others will buy handguns on the black market -- no effect on homicides or other crime. And still others will use a sawed-off gun -- perhaps more death, if it's a shotgun that's being sawed off. And this doesn't even consider the criminogenic effects of denying citizens the ability to defend themselves with handguns of their own.
     So what are the implications of all this? One is that a handgun ban might have no meaningful effect on crime.

     ENFORCEMENT NEED SLIPPERY SLOPES: But another, and here I return to McGrory's "brainwashing" / "no designs on long guns" theory, will be that a handgun ban, if it's effective in reducing the criminal use of handguns, will increase the criminal use of rifles or shotguns. Today, it's true that most gun deaths and gun crimes come from handguns, but that's because they're more convenient for certain uses.

     Change the relative convenience, and people will substitute to long guns. There will then be either more gun deaths than before, about the same amount, or possibly (though in my view not probably) a little fewer gun deaths but still tens of thousands each year.

     What will the supporters of handgun bans do then? Will they say "Well, too bad that there are all these long gun deaths out there, but we said we had no designs on long guns, so we're just going to stop at the handgun ban"? Or will they say "We must plug the long gun loophole, which is keeping our handgun ban from being effective -- now that handgun crime is down but long gun crime is up, we need to extend our successful handgun ban to long guns as well"?

     I suspect most gun control proponents will say the latter, even if they aren't yet saying this (or even thinking it) now, when the debate is focused on handguns and most gun crime and gun death comes from handguns. This is what I call the "enforcement need slippery slope," which I discuss in Part II.B of this forthcoming Harvard Law Review article.

     So maybe it's not "brainwash[ing]" that makes many long gun owners doubt the assurances of McGrory et al. Maybe it's just common sense.


ABORTION NUTS: Mary McGrory's Washington Post column critizing John Ashcroft is wrong in a lot of ways, probably more than I'll have the time to mention (though I'll try again later today). But what struck me in particular were a couple of lines that McGrory wrote about Attorney General Janet Reno's support for abortion rights: "Various people have various ideas about what the country needs most. Seniors think it's prescription drug benefits; the young are for more liberal college loans. But our [former] attorney general, [Janet Reno], has the most novel: [Sh]e thinks what this country needs is more [abortions]. . . . It is somewhat embarrassing that the [former] chief law enforcement officer of our country is [an abortion] nut, but it is more than that."

     Oh, wait, McGrory didn't actually write exactly that -- rather, she wrote those very words not about Janet Reno and abortion, but about John Ashcroft and guns (the brackets mark my only changes). But what if a conservative commentator did write what I quote above in 1998? (If you want maximum parallelism, assume that the lower courts had generally not found that the constitution secures an abortion right, the Supreme Court had not definitively resolved the issue, but much of the public -- including the Administration -- did believe in such a right.) What would people say?

     I suppose they might say that supporting a right to have an abortion doesn't necessarily mean that one wants to see more abortions, but more that one thinks people should have the right to choose an abortion. They might also say that, whatever one thinks of abortions in a perfect world, given the realities of our world, banning abortions would do more harm than good.

     As importantly, they might argue that those who support a strong right to an abortion aren't exactly "abortion nuts," even if one disagrees with them; and that calling them that is argument by name-calling (cf., on the other side, "left-wing toilet[s]") rather than by actual reasoning. I'm pretty sure some writers in the Washington Post would say exactly that -- and suggest that labels such as "abortion nuts" show that the anti-abortion-rights speaker, not the pro-abortion-rights target, is the real fanatic.

     But of course this isn't about abortions, so it's about guns, and demonizing the pro-gun-rights people is considered perfectly fair game. Oh well. Still, if fairness doesn't have much appeal, consider practicality: Ms. McGrory, you complain that "gun owners . . . have been brainwashed by the NRA to think a handgun ban would mean the confiscation of their hunting rifles. No one seems able to convince them that even the mouthiest Massachusetts liberal has no designs on long guns."

     Is your attempt to convince gun owners of this helped or hurt by your calling gun ownership supporters "gun nuts" and "embarrass[ments]"? Or for that matter by telling them that they "have been brainwashed"?


U.S. SCIENCE FICTION WRITER CORPS: Some have suggested (see Mickey Kaus, quoting N.Z. Bear, partly quoting Instapundit reader Harry Helms) that "to avoid [government intelligence agencies'] failure of imagination, . . . science fiction writers should be called on to staff a government 'dream team' to think of what terrorists might do next."

     In an odd (but not unexpected) bit of circularity, it turns out that this very idea was itself suggested -- albeit in the subtly different context of an interstellar invasion -- by master SF writers Larry Niven and Jerry Pournelle, in Footfall (1985). Of course, as N.Z. Bear's list reflects, the creative team targeting terrorists should be more focused on techno-thriller writers rather than just hard science-fiction people.

     As I-have-no-idea-who said, "Anything you can do, I can do meta."

UPDATE: Lawprofs Brannon Denning and Glenn Reynolds tell me that "Anything you can do, I can do meta" is generally credited to Yale law professor Leon Lipson. Published sources confirm this (to the extent that published sources can confirm things.)


POSTED ON SASHA's BEHALF -- GRUESSE AUS BAYERN: Today it's cold and rainy in Munich, and most things are closed, as it's a holiday they call Pfingstmontag, Britons call Whitmonday, and we -- actually I have no idea what this holiday is. So I'm spending a lot of time in cafes and churches. Meanwhile, my alleged youth hotel in fact contained bedbugs, so I moved in the slightly more expensive (= slightly superior, by the Efficient Markets Hypothesis) hotel next door.

Also, I saw a movie called Die Scheinheiligen (The Hypocrites); it was in heavy Bavarian dialect, so while I think I understood the plot, I didn't actually understand a single complete sentence (I would have understood over half if it had been in decent High German). But the main plot involves an old woman who owns property right where the crooked local politicians (in this rural Bavarian town) want the highway to pass through. Lots of good stuff about fighting City Hall, and some more or less positive use of guns. :) Also a crooked priest and crooked cops with hearts of gold, I think, though, who knows, maybe this was a romantic comedy about the biotech industry.

Meanwhile, who says Greens are good for nothing? Suddeutsche Zeitung writes (again, all translation errors are mine):
[Green minister of agriculture Renate] Kunast calls Bush inconsiderate -- 'Farm subsidies subvert fair globalization.'

Before the visit of the U.S. President George W. Bush to Berlin, the federal government [of Germany] has criticized U.S. agricultural policy. The Green minister of agriculture Renate Kunast accuses Bush of untrustworthiness and inconsiderate behavior toward developing countries. 'My idea of fair globalization doesn't fit with this new farm policy,' she said to the Suddeutsche Zeitung. [According to her,] Bush supports above all multinational U.S. corporations and treats the Third World unfairly. 'Thus the opponents of globalization are getting a further argument in their hand,' said Kunast.

The minister also sees here a considerable potential for danger. To fight terror, international structures must change; more precisely, developing countries must bring themselves more strongly into world commerce and for example be able to sell their farm products more easily. This could contribute to fighting against poverty as a cause of terrorism, said Kunast. However, the new U.S. subsidies could wreck this process. 'Bush is getting a credibility problem,' said the minister.
Well, I wouldn't exactly put it that way or use precisely that rhetoric. But, I would approximately. It's almost (but not quite) enough to make one love environmentalists.

UPDATE: Reader Duncan Frissell tells me that the whole Pfingsten holiday, including both Pfingstein (Whitsun) and Pfingstmontag (Whit Monday), is what we call Pentecost. I really ought to know this stuff, Papophile that I am.

Sunday, May 19, 2002


SAN JOSE MERCURY-NEWS READERS: This is a Web log coauthored by Eugene Volokh, professor of law at UCLA School of Law. The sources cited in the Second Amendment article are here. For commentary on a variety of other matters -- by Eugene Volokh and by his coauthors -- read further.


POSTED ON SASHA'S BEHALF -- POSTCARD FROM MUNICH (where the Y and Z kezs are reversed on the kezboard): More news on the German animal rights front, noted earlier by Quare. Why, after years of arguing and doing nothing (largely because of opposition from the German scientific research community, which experiments on bunnies), did a massive constituency suddenly appear for including animal protection in the German constitution? The Munich newspaper Süddeutsche Zeitung reports (my own imperfect translation):
So it's not accidental that research organizations resisted the constitutional amendment until now. But the Union [apparently a coalition of political parties] weighed in too. Possibly in the belief that animal protection was popular and thus would bring votes.

One factor was also surely January's constitutional court decision in which the highest German court explained that slaughtering animals according to Islamic law was permissible. Thus the religious freedom as well as the professional freedom of Muslim butchers achieved priority over animal protection.

The decision from Karlsruhe [that's where the Court sits] set off a storm of indignation which apparently blew aside many misgivings. But if in fact the slaughter decision was a catalyst, one must admit that the love for four-legged creatures now leads to a limitation of that very freedom which the constitutional court wanted to strengthen with its decision.
I'll leave myself to a mostly reporting function for now and just raise a couple of questions: the way our Slaughterhouse Cases might/should have
turned out? A cautionary tale about how the political process resists judicial activism (with obvious parallels in American constitutional history)? A telling sign of ethnic politics in Europe (in Germany)? An omnious parallel with past generations of animal-rights activists and environmentalists (who of course spearheaded this whole campaign)? All of the above?

The article also has some fascinating stuff about how the German research organiyations lobbied for a change of wording. The current text reads: 'The State also protects, as its responsibility to future generations, natural life-foundations and animals'; the animals language was added by the Greens and animal-rights folks. The research organizations lobbied for the wording 'including animals.

As the article says, they lost, but they were cleverly advised: 'Including' would have subordinated animals to the life-foundations, and thus would have subordinated them, as 'foundations,' to people. Now, with the 'and,' all bets are off. One can already look up the coming debate in Musil's The Man Without Qualities, in which Ulrich's father writes to his son: "This is exactly what raises Thinkers over Laymen, that they distinguish an 'or' where the latter simply put an 'and.'" Or an 'including.'

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