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Saturday, June 21, 2003


Lesbian Barbie: Reuters reports (thanks to How Appealing for the pointer):
A New York teen-ager alleged on Thursday that teachers violated her civil rights when they suspended her from school for wearing a "Barbie is a Lesbian" T-shirt.

Lawyers who filed a lawsuit on her behalf in Manhattan federal court said 14-year-old Natalie Young is openly lesbian and that a teacher laughed at her, calling the garment and its reference to the popular Barbie doll "inappropriate."

Young alleged that the principal held her for three hours in an office at the school in the borough of Queens on April 10, 2002 and refused to allow her to return to class while she wore the T-shirt. . . .
If these facts are accurate (and no important details are omitted), then that's pretty clearly unconstitutional -- if one may wear black armbands as a symbol of opposition to the war (and the Supreme Court held that one may), then one may wear "Lesbian Barbie" T-shirts as a symbol of support for the propriety of lesbianism. If the T-shirt causes disruption, or if there's credible evidence that it's likely to cause disruption, then the speech may be restricted, as the Supreme Court acknowledged. But there was no evidence of such disruption cited in the Reuters report.

Friday, June 20, 2003


My "Please Spam Me Registry" concerns have been largely alleviated, and I've mostly retracted this post below; click there and scroll down to the UPDATE and FURTHER UPDATE for the information. Thanks to those who helped set me straight on this!


D.C. Circuit upholds Justice Department's blocking of the Holy Land Foundation's assets: The decision is here. The government blocked the Foundation's assets under the International Emergency Economic Powers Act, because the Foundation is apparently closely linked to Hamas. The Foundation raised objections under the Act itself, under the Administrative Procedure Act, under the Religious Freedom Restoration Act, and under the First, Fourth, and Fifth Amendments; the D.C. Circuit rejected all of these claims.


Senators on possible Supreme Court nominees: The AP reports:
Democratic presidential candidate John Kerry said Friday that he is prepared to block any Supreme Court nominee who would not uphold the Roe v. Wade decision that legalized abortion.

"I am prepared to filibuster, if necessary, any Supreme Court nominee who would turn back the clock on a woman's right to choose or the constitutional right to privacy, on civil rights and individual liberties and on the laws protecting workers and the environment," Kerry said in remarks via satellite at a meeting of Democratic party officials in St. Paul, Minn.

"The test is basic -- any person who thinks it's his or her job to push an extreme political agenda rather than to interpret the law should not be a Supreme Court justice." . . .
How exactly is the opposition to a constitutional right to abortion "an extreme political agenda"? As best I can tell from the polls that I've read, huge chunks of the American public take this view. Seems to me that a perfectly nonextreme judge who is interested in "interpret[ing] the law" (which to the judge would include the text of the Constitution) might quite sensibly conclude that the Constitution doesn't secure the right to an abortion, or even a general right to privacy.

     I certainly understand why some Senators might want to let through only those potential Justices who share their views on important issues -- just as I can understand why some Presidents may take the same view. But Kerry isn't really against candidates who have "an extreme political agenda" or who don't want "to interpret the law." He's against candidates who disagree with his political agenda, and who want to interpret the law differently than he does. (I freely admit, incidentally, that Republicans haven't always been above this sort of political rhetoric, either.)

     The article goes on:
Kerry also has said if elected president he would only appoint judges who support Roe v. Wade, while his opponents for the nomination say they would not impose a litmus test on nominees.

"I don't believe in litmus tests, but I believe very strongly that the right to choose and the right to privacy are fundamental constitutional rights and I can't imagine supporting a Supreme Court nominee who doesn't share my view of the Constitution," said presidential candidate Sen. John Edwards, D-N.C., in a statement. "I would use every effective means to stop a nominee I oppose." . . .
And what exactly is the difference between a "litmus test," in which Edwards doesn't believe, and "us[ing] every effective means to stop a nominee" "who doesn't share [Edwards'] view of the Constitution" in which "the right to choose and the right to privacy are fundamental constitutional rights"?


Museum of Obscure Patents: Every week, lawprof Eugene Quinn offers some amusing commentary about a bizarre patent that has been granted. Worth checking out. You can view his commentary here.


Illegal for you to send an unsolicited resume to a potential employer? It seems to me that Sen. Schumer's new anti-spam bill might outlaw a good deal of pretty normal behavior. It doesn't focus just on bulk unsolicited commercial mail; it applies to all messages "the primary purpose of which is to advertise or promote, for a commercial purpose, a commercial product or service." That would cover:
  1. sending your resume to someone (at least unless the recipient has sought to officially provide express consent to receiving resumes at that address) -- after all, that's promoting a commercial service, since selling one's labor is generally treated by the law as commerce;

  2. e-mailing a friend to ask if he might be interested in buying your car;

  3. e-mailing your coworkers to say that you'll be on leave for some months, and that if any of them know of someone who needs to rent a house for a short time, your place will be available;

  4. e-mailing a colleague to ask if he might be interested in adopting your textbook for his class.
The bill does have an "implied consent" exception but, that applies only when the sender and the recipient have had a business relationship -- social relationships aren't enough.

     And if your message is covered, then you have to (1) mark it as "ADV:" in the subject, just like bulk spam is marked -- good luck getting your resume read then! -- and (2) check whether the recipient's address is in the Registry. The bill doesn't require the FTC to make the Registry publicly available for ordinary citizens so that they can easily check it for free; in fact, in sec. 103, it calls for the Registry to be distributed "to marketers" and with "fees." That means that it might be quite hard for you to check whether your prospective employer, your friend, or your colleague is on the Registry. And of course many people, who don't really realize that the law applies to a few messages that they send, won't even think about labeling it properly or checking the Registry.

     Now of course in most of these cases, the senders won't be punished for their conduct, though the statute condemns it as "unlawful": None of the people who are allowed to sue -- the FTC, the state attorneys general, the ISPs, and the recipients -- will try to enforce the law. (Sec. 305 allows statutory damages of up to $1000 per message, but that's a ceiling, not a floor, so even a mildly annoyed recipient probably won't have much incentive to sue someone over a "are you looking for employees?," "want to buy my car?," or "want to adopt my textbook?" message.)

     But the conduct would still be "unlawful," even if the recipient doesn't complain, and even if the recipient was glad to receive the message. Do we really want still more laws on the books that we expect people to routinely flout? Is it good to tell people "Oh, sure, the law makes the conduct unlawful, but don't worry about it -- go ahead and send around your resume, no-one will sue"?

     And it seems to me there is a pretty good solution to the problem: Ban bulk spam, defined more or less as commercial e-mail sent in more than some number (100, 1000, 5000, what have you) identical or nearly identical copies. That would ban (whether or not successfully -- neither this alternative nor the Schumer bill will do much against offshore spammers) the stuff that's causing the real trouble, and leave people legally free to engage in the low-level commercial promotion in which many of us do often engage, both to our benefit and the benefit of many of our prospective business partners.


The "Please Spam Me Registry"? Sen. Schumer's new anti-spam bill would let people add their e-mail addresses to a National No-Spam Registry; marketers then would be barred from e-mailing spam to those people.

     But if the text of the Registry leaks out to offshore spammers, then it will be a goldmine of e-mail addresses for them to start spamming. (True, the recipients seem unlikely buyers, since they've generally announced that they dislike spam, but spamming has always relied on making money from even tiny response rates, since sending the messages is so cheap.) The bill might then diminish domestic spam, but increase foreign spam, which can't really be stopped because the offshore spammers would be outside U.S. jurisdiction.

     Presumably one solution would be to distribute the Registry in an encrypted format. I expect that the Registry can't just be kept in a central location, since that would make checking thousands of e-mail addresses extremely time-consuming; and the statute does call for the Registry to indeed be distributed to third parties: Sec. 103 of the bill calls for the Federal Trade Commission to "issue regulations for . . . providing secure distribution of the Registry to marketers . . . [and] protecting the Registry from unauthorized use."

     So, for instance, the e-mail addresses might be encrypted by the FTC using a private key. Then when a marketer wants to check whether it may e-mail a particular address, it can encrypt the address with a public key, and then look up that encrypted value. But because the marketer (or someone to whom an employee of the marketer leaks the data) doesn't have the private key, it can't just decrypt all the addresses to harvest them for spam purposes.

     And yet a great deal would then turn on keeping the private key private. If one FTC employee sells the private key to some offshore spammers, then millions of e-mail addresses could be quickly decrypted. Seems pretty risky.

     Thanks to Michael Paranzino for alerting me to this point; he has a somewhat harsher condemnation of Sen. Schumer on his blog -- I think encryption might make Sen. Schumer's proposal more plausible than Mr. Paranzino does, but I do think that the risk of the key leaking out is enough to make the proposal pretty dangerous.

UPDATE: Some people suggest that some hashing functions might (1) be practically irreversible, whether or not one is leaked all the details about any keys the function uses, and (2) be more or less one-to-one, so it would be almost certain that two e-mail addresses will not hash into the same result. If that's so, and the FTC uses such a function, that would be great. Unfortunately, I'm not technically knowledgeable enough to know whether it is indeed so; let me know if you know.

FURTHER UPDATE: I've since heard from quite a few people who seem to know what they're talking about; and they've persuaded me that there are one way hashing algorithms that satisfy the criteria I mention above. My knowledge of computers, which is very substantial in some areas and very small in others, including this one, likewise leads me on reflection to trust that view. So I suppose that this won't be a problem if the FTC does a good job with this. I'm assuming they will -- but it will be worth watching to make sure that they do, if some such bill is indeed enacted.


Evan Caminker likely to be new dean at the University of Michigan School of Law: From the story, it sounds like it's close to a done deal -- the Administration recommended him to the Board of Regents, and I suspect the Regents generally say yes. This is the first I've heard of this, but I think it's great for the law school (with which I now feel something of a bond, because my lovely wife graduated from there): Evan, who was my colleague for several years at UCLA, is a very smart, thoughtful, articulate, fairminded, and straightforward guy. He and I don't see at all eye to eye politically, but I always enjoyed talking to him, and I'd have great confidence in him if he were the dean of my school. It's impossible to tell for sure how any particular academic will do in this sort of job (for instance, how he'll do at fundraising), but I think he'll do very well.


Drezner relocates: Due to Bloggerplications, Dan Drezner has temporarily moved to, pending a transition to MT.


The revolving door: From an AP story:
A convicted sex offender whose case led to a U.S. Supreme Court ruling setting guidelines on keeping sexual predators locked up after their sentences end has been charged with a rape committed after his release.

Michael T. Crane, 41, was arrested Wednesday and charged with attacking a woman in her car after she parked outside an apartment on March 22.

Crane was convicted in 1994 in Johnson County, Kan., for an attack on a video store clerk in suburban Leawood the previous year. Earlier, he got probation in 1987 for attempted forcible rape and two counts of sex abuse in Missouri.

In the 1994 case, he was sentenced to 35 years to life on his convictions for kidnapping, attempted rape and attempted sodomy.

But the convictions were overturned on technical grounds by the Kansas Supreme Court in 1996, and the following year Crane pleaded guilty to a reduced charge of aggravated sexual battery. He was sentenced to three to 10 years in prison.

As he was approaching release, the state sought to have him kept in confinement, and a jury determined him to be a violent sexual predator. The Kansas Supreme Court overturned that finding, but Crane remained in confinement while the state appealed to the U.S. Supreme Court.

Last year, the court ruled in a 7-2 decision that states must prove that convicted sex offenders can't control themselves if they are to be confined after they finish their prison terms.

The Kansas court had said the state would have to show that inmates totally lacked control of their behavior, but the federal high court said it was enough to prove "serious difficulty in controlling behavior."

Crane, who remained in custody for more than three years after finishing his sentence, was released in January last year after doctors concluded his mental condition had changed and that he was no longer a threat. . . .
As I wrote a few months ago, these sorts of examples (I was writing about a different category of example, but it's similar enough for these purposes) show
why many voters -- including those who support laws such as Megan's Laws or Three Strikes laws -- aren't persuaded by arguments that some people have been "rehabilitated."

"This criminal has been rehabilitated" at best means "this criminal has persuaded a psychiatrist or two that he has been rehabilitated." That sort of inquiry is hardly an exact science, and it's not surprising that many people don't put much stock in its results.


The Idiot is the Writer's Best Friend I have often wondered how many people actually read the books they buy. For a long time I've looked for data on this question and found nothing (email me if you have a lead).

For the most part, people read books to construct a favorable self-image for themselves. They like to think of themselves as the kind of person who buys book X. Or perhaps they want it for their coffeetable. I've also had publishing insiders tell me that the books most likely to be read are the least substantive (from an academic point of view), such as self-help books.

So many writers complain that no one reads or understands their books. But maybe this is a blessing in disguise. If the readers cared about the content of the book, the publisher would too, to a greater extent. It would be harder to write the kind of book that you want. Right now all you need is a sexy title, or some name, or a good opening chapter. Then the rest is up to you. The Brave New World, full of carefully read books, might not look like this. After all, most people do in fact watch the movies they go to, and look at the results.

So thank you, out there, all of you who only want to impress your friends, and who don't care what I have to say.


Free speech lets artist distribute a print that features Tiger Woods: So the Sixth Circuit just said this morning, in a very interesting -- and, I think, quite sound -- opinion. For more on why this should be allowed, see Part IV of my free speech vs. intellectual property piece. (Thanks to How Appealing for the pointer.)


Whiteness studies: Yes, it really exists, at least at some universities. Read all about it here. An excerpt from the article:
  Advocates of whiteness studies -- most of whom are white liberals who hope to dismantle notions of race -- believe that white Americans are so accustomed to being part of a privileged majority they do not see themselves as part of a race.
  "Historically, it has been common to see whites as a people who don't have a race, to see racial identity as something others have," said Howard Winant, a white professor of sociology at the University of California at Santa Barbara and a strong proponent of whiteness studies. "It's a great advance to start looking at whiteness as a group."
  Winant said whiteness studies advocates must be careful not to paint white heritage with a broad brush, or stray from the historical record. Generalizations, he said, will only demonize whiteness.
  But opponents say whiteness studies has already done that. David Horowitz, a conservative social critic who is white, said whiteness studies is leftist philosophy spiraling out of control. "Black studies celebrates blackness, Chicano studies celebrates Chicanos, women's studies celebrates women, and white studies attacks white people as evil," Horowitz said.


Lost Maxims of Equity: Here's a very short piece of mine that was just published in the Journal of Legal Education, vol. 52, p. 619. It will be meaningless to most nonlawyers -- and explaining won't much help -- and I can't even vouch that it will be funny to the lawyers. But I thought I'd pass it along.
Lost Maxims of Equity
uncovered by Eugene Volokh, UCLA School of Law

Equity abhors a nudnik.
Equity delights in a good practical joke.
He who seeks equity must do so with full pockets.
Equity is not for the squeamish.
Equity, schmequity.
Equity can be grumpy before its first cup of coffee.
Equity is crunchy on the outside, soft and chewy on the inside.
Equity is a mean drunk.
Equity, like all of us, prefers the rich and good-looking.

Thursday, June 19, 2003


Eric Muller asks, "Does the headline of this news story read like a headline from The Onion, or what?" Yes, it certainly does.


Chukchas: Jacob Levy's post about how academics aren't buying academic books reminded me about one of my favorite jokes. Russians tell jokes about Chukchas (pronounced "Chookchas"), the indigenous inhabitants of the Chukotka peninsula, which is north of Kamchatka, much like Americans tell Polack jokes, Canadians tell Newfie jokes, French tell Belgian jokes, and so on. The convention is that (1) the Chukcha is named "Chukcha," and (2) he speaks mangled Russian, which I will render as mangled English. In any case, here's the joke:

     A man meets a Chukcha. "What do you do for a living, Chukcha?," he asks.

     "Chuckcha writer," Chukcha replies.

     "Oh, that's very interesting," the man says. "Who are your favorite writers -- Pushkin? Tolstoy? Dostoyevsky?"

     "Chukcha not reader. Chukcha writer."

     Of course, as with some of the best such jokes in all languages, this particular joke is not really about Chukchas at all.


THE FARIS CASE: It has just become public that a U.S. citizen captured in Pakistan in March was later brought to the U.S. to face secret charges. The man's name is Iyman Faris, also known as Mohammed Rauf. The U.S. had conducted extensive monitoring of Faris, including monitoring his websurfing-- very possibly pursuant to powers granted under the Patriot Act. The Justice Department and the FBI have kept the proceedings against Faris secret, but Newsweek leaked the story recently and now the U.S. District Court in Alexandria, Virginia has unsealed the case record.

      Sounds like it will be a controversial case, right? After all, the case involves a citizen, secret detentions, and (probably) surveillance authorized by the Patriot Act. Well, maybe not. It turns out that Faris has pleaded guilty to being an Al-Qaeda member who helped to plan serious terrorist attacks against the United States. (Read the actual plea agreement here, and the MSNBC story here.) Thanks to Instapundit for the link.


Ethical dilemma: Earlier today I bought a few items at a store a few blocks from my apartment. I went up to the cashier and placed three items on the counter, and a few moments later the cashier told me that the total was $5 and change. That sounded a bit low to me; I had pulled out a $10 bill from my wallet and had figured that the total would be around $8. When I looked up at the cashier's monitor, I saw that the cashier had rung up just two items instead of three. So I told the cashier, "I think you missed the third item." He waved his hand, as if to say "whatever," and stood there waiting for the money. I gave him the $10, and he gave me back four one-dollar bills and some change. As he was bagging up the three items, I decided to try again. I pointed at the third item and said, "Um, I think you forgot to charge me for that." This time he looked me in the eye, and said, "Don't worry about it." I stood there awkwardly for a few seconds, and then walked out of the store with the three items even though I only paid for two.

     The question is, what to do? I would rather have just paid for the third item than have left the store knowing that I was leaving with something I didn't buy. Indeed, I made efforts twice to get the cashier to charge me for the item. At the same time, for an item that only costs $2.50 it's arguably not worth anyone's time to worry about it. In my case, it would probably take me a half an hour to go over to the store and ask to speak to the manager about it, or to just put $2.50 in the mail to at least feel that I'm not benefiting from the acts of a lazy or dishonest cashier. I don't think I'm ethically obligated to take such relatively-time-consuming steps in response to such a low-level event.

     On the other hand, it would be good to tip off the store manager about the employee if this is happening a lot, and I only saw a piece of what happened. Co sider the cashier's incentive for doing what he did. It's possible that he just didn't see the third item at first, and then was just too lazy to worry much about it when I pointed it out. In that case, it's probably not worth talking to the manager about it. On the other hand, perhaps the cashier doesn't like his job and wants to hurt his employer, $2.50 at a time. In that case the store manager probably wants to know about it and would appreciate my contacting him. (I don't see what else the cashier might have been up to: it's not like he rang up two items and charged me for three, and then pocketed the difference.) And of course, contacting the manager would make me feel better.

    Hmm. Puzzling.

     UPDATE: So I called the store and spoke with the manager about what happened. The manager seemed to know who the cashier was pretty quickly-- I can't be sure, but I suspect that this employee has caused some trouble before. The manager was thankful that I called to report what happened, and didn't seem to care very much one way or the other about the $2.50. I do plan to put the $2.50 in the mail so that I've officially paid for the item, though. Or, I might just return the item, as I realized later this afternoon that I won't actually be needing it. (Kind of ironic, eh?) Either way, it's the right thing to do, I think.


"Superhero Strongman Showdown": Who's stronger -- the Terminator or the Hulk? Popular Science gets to the bottom of this.


Interesting settlement of a religious accommodation claim: From The Becket Fund:
Capt. Ryan Berry, an Air Force missileer who was punished by superior officers merely for requesting a religious accommodation, finally won the long battle to clear his record today. In an settlement negotiated by The Becket Fund and ratified by U.S. District Court Judge Ellen Segal Huvelle, the U.S. Air Force and the Department of Defense agreed to remove all derogatory material that had been placed in Berry's military records and on USAF and DOD websites.

The settlement agreement resolves a federal lawsuit filed on August 29, 2002, in which the Air Force and DOD were charged with violating Capt. Berry's rights under the Religious Freedom Restoration Act, the Free Exercise and Free Speech Clauses of the U.S. Constitution and the Privacy Act.

Berry is a 1996 honors graduate of the U.S. Military Academy. He was cross-commissioned in the Air Force, where he was trained in the operation of Minuteman III missiles and assigned to Minot Air Force Base. When told of the potential for being assigned to missile alerts with a female officer (24 to 48 hours in a small underground bunker with very little privacy), Berry asked that he not be required (absent military necessity) to serve alerts with female officers as an accommodation of his Catholic belief that he should avoid situations in which he might "develop inappropriate intimacy -- even platonic -- with a woman who is not his wife." Berry regularly worked with women in all other aspects of his job and received a favorable evaluation from his female superior officer.

Three successive squadron commanders granted Berry the accommodation, but in December 1998, a new commander terminated the accommodation. Soon after Berry's renewed request for accommodation, a number of false and derogatory statements were placed in his official record. Efforts to have the negative material removed were rejected by the Air Force, leaving him no alternative but to file suit last year. Today's settlement gives Capt. Berry everything he had asked for during the long battle to clear his record.

"This was a particularly disturbing case, because Capt. Berry was punished simply for asking for a religious accommodation," Becket Fund President Kevin J. Hasson said. "There's an important lesson here for everyone in the Pentagon: handle requests for religious accommodation with respect and sensitivity for the constitutional rights of members of the armed services."


Another travel-related blog: My friend Gary Leff also has a blog that focuses on the process rather than the destination -- he writes about things like getting cheap fares and upgrades, maximizing frequent flyer miles, and so on. Worth checking out.


The kind of argument I usually don't like to make Is it shocking to suggest that there is a strong moral argument against antitrust? I don't just mean the usual libertarian property rights stuff, which militates against virtually all government.

Isn't the application of antitrust law almost a kind of slavery?

Take an athlete -- say Michael Jordan -- who monopolizes his own services and restricts his output to the market. It is hard to find a clearer case of market power, not to mention barriers to entry. Wouldn't it be a kind of slavery to go "trust-busting" and force MJ to do more commercials, or play another year of basketball? I say yes.

But is the corporate case really that much different? What if some people organize into a group and do the same thing? How can it be justified to force them to produce more output? Under some economic assumptions, the output restrictions of monopoly cause more factors of production to switch into other sectors (though then you have to wonder if anyone measures the net output restriction, the answer is they don't). Under other assumptions, there is no switching. Output restriction simply means that the monopolist and its employees work less hard.

And we are back to antitrust policy being a kind of quasi-slavery. In my view, you don't have to be a Bob Nozick to be worried about this.


Recognition of foreign marriages: Reader Michael Friedman asks:
Re your posts on gay marriage, any thoughts on how the current push to get gay marriage allowed via the courts (ie. in Vermont and Canada) might impact people who are pushing for recognition of polygamous marriages?

After all, polygamy, unlike gay marriage, has a long history world wide (including in the United States) and is allowed (and encouraged) by one of the world’s most popular religions as well as by many minority religions. . . .
This is a great question, and it also lets me mention an important conceptual point: A state may recognize certain foreign marriages for certain purposes but not for other purposes.

     Consider two cases. In People v. Ezeonu, 588 N.Y.S.2d 116 (1992), Ezeonu was being prosecuted for statutory rape of a woman under the age of 14. Under New York law (as under the law of many other states), statutory rape laws do not apply when the defendant is married to the girl; and though New York doesn't let such young girls marry in New York, many states (presumably including New York) do recognize marriages that were lawfully entered into in jurisdictions where the age boundaries are lower. (Some states exclude marriages where the couple left the state precisely in order to take advantage of another state's more liberal marriage laws, but that doesn't apply here.)

     But the problem here was that Ezeonu was prosecuted for having sex with his second wife, and the parties stipulated that the polygamous marriage was lawful under Nigerian law, where the marriage took place. Doesn't matter, the trial judge held: New York law doesn't recognize such foreign marriages.

     On the other hand, in In re Bir's Estate, 83 Cal. App. 2d 256 (1948), the California Court of Appeal held that California would recognize a foreign polygamous marriage for the purposes of intestate succession. Though California public policy might lead to a different result "if decedent had attempted to cohabit with his two wives in California," "[w]here only the question of descent of property is involved, 'public policy' is not affected." Both wives were thus allowed to share equally in the decedent's property. Earlier cases took a similar view, especially as to the question whether the children of the second and later wives were to be treated as legitimate, back when more legal rules turned on legitimacy. These matter came up in some cases involving American Indian tribes, as well as marriages recognized in foreign countries.

     Now it's possible that these cases simply represent two views -- don't recognize polygamous marriages as marriages at all, or do recognize them as marriages for all purposes. But the California case seems to suggest otherwise; it suggests that a foreign marriage may be treated one way when distributing property on death, and another way when applying the state laws related to cohabitation. Likewise, the New York court might have reached the opposite result if the only matter was how to distribute the property in Nigeria (especially if the wives lived in Nigeria), rather than whether a man should be allowed to have sex with his 13-year-old second wife. When the question is whether the foreign marriage contradicts a state's "public policy," and therefore ought not be recognized by the state, it may be sensible for courts to decide (in the absence of clear legislative statements to the contrary) that different public polices are involved to different degrees in various decisions where the "are they married?" question arises.


Publishing: According to this article in the Chronicle,
The business of university publishing had entered into dangerous arithmetic. Production grew almost four times faster than the market. The total output of all university presses in 2000 was 31 million books. After deducting the five million books bought by libraries, each and every one of the million faculty members in academe in the United States would need to buy 26 university-press books a year to reach market equilibrium.
Twenty-six?? The crisis at university presses would be solved if each of us bought a measly twenty-six university-press monographs per year? Come on, people! Get shopping! I last emptied my "newly-purchased-and-to-be-shelved" pile of books about two weeks ago-- and there are already thirteen qualifying books in it again. At that pace, I'm doing my part plus the part of twenty-five other should-be book buyers. That might be a little high-- we've had a sale at our bookstore in those two weeks-- but I'd be surprised if I bought fewer than 150 such books per year, and wouldn't be at all surprised to find that it was more like 250.

I guess the calculation needs to be adjusted to take into account the non-book-dependency of the hard sciences and math; but there are also all those monographs that get assigned in classes. The volume doesn't rival that of textbooks, but there are still a lot sold that way.

I was just surprised, I guess, to see that the figure was so low, and that academics don't average a couple of dozen such books per year.


More on recognition of gay marriage: Apropos my post on this yesterday, it turns out that there have already been American cases dealing with whether states should recognize out-of-state gay marriages. I've seen two written opinions so far: Langan v. St. Vincent's Hospital, 2003 WL 21294889 (N.Y. trial court, April 10, 2003), holds that a Vermont civil union should be treated as a marriage for purposes of New York wrongful death law, which lets one spouse sue over the death of the other; Rosengarten v. Downes, 71 Conn. App. 372 (2002), holds that a Vermont civil union should not be treated as a marriage for purposes of Connecticut divorce law, and that Connecticut courts therefore lacked jurisdiction to dissolve Vermont civil unions, and presumably to make the various decisions about property, child custody, and the like that would normally be made in a divorce.

     Incidentally, the Langan court further illustrates that people's concerns that gay rights laws may lead down a slippery slope to recognition of gay marriage may be quite logical. The court stressed the various ways in which the legislature endorsed gay rights --- for instance, by allowing same sex domestic partners to get employment benefits and September 11 survivors' benefits, by banning discrimination based on sexual orientation, and so on -- in concluding that there was no state public policy against recognizing out-of-state marriages.

      The legislature itself didn't provide for such recognition; New York marriages are still limited to heterosexual marriages; and the legislature didn't even broaden its wrongful death law to allow same sex domestic partners (as opposed to spouses) to sue. But the legislatures' other past decisions influenced the court (or at least so the court said) to make the decision to treat people who entered into a Vermont civil union as "spouses" for the purposes of New York wrongful death law. (See my slippery slopes article, PDF pages 58-61, for a discussion of how there may indeed have been such a slippery slope visible in the Vermont Supreme Court's decision mandating the recognition of civil unions.) Perhaps the slippery slope led to a good result here; as I've mentioned before, I tentatively support the recognition of gay marriages. But it does seem to have taken place.


Dorm speech code at University of Alabama: According to the student newspaper there,
A new Office of Residential Life policy addressing public displays in residence halls will go into effect this fall, potentially affecting students with flags, posters and pictures hanging in windows or on the doors of their dormitory rooms.

According to a draft that Office of Student Judicial Affairs assistant director Mark Foster sent to Byrd Hall professor-in-residence Byron Rush White, the new policy prohibits displays that are "inconsistent with accepted standards or University policies."

Examples of prohibited displays include nude pictures or photographs and anything considered "harassing or intimidating." The draft of the policy maintains that while First Amendment rights of expression for students will remain intact, they are encouraged to exercise those rights responsibly. . . .

Last week, students living in Byrd Hall, home to the Mallet Assembly, said Res Life officials told them to remove a Confederate flag hanging in the dormitory's second-floor hallway in accordance with the new policy. . . .

"They were citing an impending rule that would be in effect this fall," White said. "We refused based on First Amendment rights, and a day later Residential Life dropped the issue."

White said he does not believe the rule is a result of the incident at Byrd Hall.

"It seems that the root cause is most likely the flags and other displays in the windows at [Mary] Burke Hall," White said. "However, this incident did tip the University's hand as far as the new rule was concerned." . . .

[Foster] said Res Life assistant director Allan Guenther and other UA officials will review and revise the initial draft.

"What flavor the policy has is still being determined," Foster said.

White said he believes the Byrd incident reflects how the University will enforce the new policy.

"The incident at Mallet shows us how Residential Life plans to use this rule," he said. "Someone complains, whatever is complained about is declared offensive and the owner must take the display down or face punishment."

Foster said violators of the new rule will be punished under the Res Life Code of Conduct. First-time offenders will receive a fine or service-based punishment. Repeat offenders will be charged under Section 4, Article III of the Student Code of Conduct, which states that a violation of published UA policies, such as the Res Life Code of Conduct, is subject to disciplinary sanctions. . . .
The policy pretty clearly seems unconstitutionally vague (what's "harassing"?) and likely to be applied in viewpoint-based ways. The government does have considerable authority over what is posted on the walls of its property, and may limit this sort of forum in certain ways. But these sorts of viewpoint-based and vague restrictions are impermissible even in nonpublic fora, and certainly in designated public fora, which is what the dorm rooms windows and doors seem to be.


Student art and poetry as threats: The L.A. Times has an interesting article on high school and junior high school students who are expelled and often even prosecuted for art and poetry that seems to contain threats. It's fiction, say the students; we understood it as a real threat, say the school authorities and the police. Quite a tough and interesting question.


Proto-travel-bloggers: I recently realized that my friends Kristina Johnson and David Franke are actually proto-bloggers (I know this depends on the definition of "blog" you use, but I choose a capacious one). If you're interested in their site, which began in 1998 with their 9-month-long round-the-world trip (Hawaii, Fiji, New Zealand, Australia, Indonesia, Malaysia, Thailand, Nepal, Hong Kong, Macao, Mainland China, Taiwan, England, Holland, France, Spain, Portugal, Morocco, Italy, and Switzerland) check out Chock full of pictures as well as descriptions, of course.


Praise for my colleague and coblogger Stuart Banner: The Federal Lawyer has a very positive review of his book The Death Penalty: An American History, which the editors were kind enough to let me post on my site. An excerpt:
In charting and covering the breadth and depth of the death penalty debate, one can ask for no better guide than The Death Penalty: An American History. Banner’s accomplishment in providing a historical dimension to the issue cannot be underestimated.


Academic freedom in Australia: Gun Control Australia has put out a press release calling for the government "to stop funding" a public university department that lets one of its faculty members advocate gun decontrol:
The University of Adelaide is supporting a most remarkable attack on the people of Australia. It is backing a gun fanatic who wants to change Australian gun laws into those of America.

America has a vastly greater number of gun deaths than Australia but that does not seem to matter to the University of Adelaide. It wants to encourage its lecturers to give their wisdom to the people -- in this case the wisdom speaks of death.

When a pistol club member used his legally acquired handguns to shoot two students dead and injure five others at Monash University in October 2002, it was obvious that the rules governing pistol clubs were tragically weak. It is obvious to any sensible person in Australia that students must not bring guns to school or to University. Apparently the University of Adelaide disagrees -- it is supporting the views of its strange lecturer Dr John Whitley.

Dr Whitley has associations with two extremist gun organizations and wants all students to carry guns so they can protect themselves.

Not only does the Adelaide University support Dr Whitley promoting his extremely dangerous views, but the department where he works seems to be backing him by allowing him to give his University titles in his promotions. . . .

It's . . . obvious that [the University's] Economics Department has little concern with the financial disaster awaiting Australia if the nation takes lecturer Whitley's desired path and encourages students to bring their guns into classes. One would expect quite a few law suits against the Adelaide University as innocent students bear the brunt of armed students with a grudge. . . .

Perhaps the Economics Department of Adelaide University simply does not care about such costs. All of us should ask the Federal and State Governments to stop funding them if that is the case. The financial cost to our tourism industry will also be immense once overseas people realise that most people in Australia are armed. . . .
     Naturally, the Australians have their own views on free speech, which differ from those of Americans. But under any definition of academic freedom, what Whitley is doing is within its core zone: He's arguing that a democracy should change its law, because he believes that the evidence shows the new law would be better for the nation than the old. Even if one accepts that certain kinds of legal change (e.g., advocacy of legalizing genocide) would be so monstrously evil that advocating for them is outside the boundaries of academic freedom -- a view that some democracies may take, though I think they'd be generally mistaken to do so -- it seems to me quite clear that advocating broader gun possession and gun carrying is far outside this narrow exception.

     Nor does it make a difference that the university is "allowing [the professor] to give his University titles in his promotions." In the U.S., professors routinely use their titles, which are an important part of their credentials. Precisely because academics are free to express their own views, people know that a professor speaks for himself, and not necessarily for the university. I strongly suspect that the rule is exactly the same in Australia, and professors are free to speak on a wide variety of public issues while giving their titles (see, e.g., here, here, and here).

     So the group is essentially trying to pressure a university to shut up a faculty member who is making law reform proposals with which it disagrees. I can't speak to how prominent or popular Gun Control Australia is; perhaps they're just a fringe group (I certainly hope so). If they are, however, an influential organization, then their willingness to lobby for such suppression is a bad sign for freedom in Australia, far outside the area of guns. (Thanks to Richard Griffiths, a member of a discussion list that I'm on, for alerting me to this story.)


Harry Potter copyright owners suing the New York Daily News: According to CNN,
Author J.K. Rowling and publisher Scholastic are suing the New York Daily News for unauthorized publication of excerpts of "Harry Potter and the Order of the Phoenix." The book is scheduled for release one minute after midnight on June 21, but the paper published a plot synopsis and brief quotes from the 870-page novel in its Wednesday edition.

The suit was filed in federal court in Manhattan Wednesday and seeks damages in the tens of millions of dollars, according to a Scholastic press release. A copy of the lawsuit was not immediately available.

"We will vigorously defend any action and are confident we did nothing wrong journalistically or legally," Ken Frydman, a spokesman for the Daily News told CNN Wednesday.

The article, by Tracy Connor, was written from a copy of the book that was being sold ahead of the release date at a health food store in Brooklyn.

Before the plot synopsis, the article warns readers not to read further if they don't want to have the story ruined. . . .
I think that Rowling and Scholastic actually have a pretty sound (though hardly open and shut) claim. Though the Daily News article (UPDATE: That link no longer works, but reader Spencer Macdonald sent a link to this copy, which seems accurate) includes very few literal quotes, it does include what copyright law would treat as Rowling's "expression" -- quite a few details of plot and character. Each individual item may be unprotected by copyright, but when put together, copying of several such items may well constitute infringement. And though the fair use defense would allow such copying in, say, a book review, fair use has a much narrower scope as to unpublished works; I'm not completely sure, but I suspect that Rowling's work would be treated as unpublished, because it hasn't yet been distributed to the public with the copyright owner's authorization. See generally Harper & Row v. Nation Enterprises (1985), a case that's not squarely analogous, but that does cut in Rowling's favor.

     So the Rowling lawsuit isn't a sure winner, but it's quite a serious claim, and possibly a winner. Perhaps copyright law shouldn't be this broad; I express no opinion here on this. But it may well in fact be broad enough to let the plaintiffs win (though probably not the "tens of millions of dollars" that they are seeking). (Thanks to reader Tom Thatcher for alerting me to this story.)


Brett Kavanaugh: I know Brett (who, as Orin points out, is likely to be nominated shortly to the U.S. Court of Appeals for the D.C. Circuit) pretty well -- he clerked for Judge Kozinski the year before I did, and clerked for Justice Kennedy the year I clerked for Justice O'Connor -- and think very highly of him. He's a very smart, thoughtful, and capable guy, and would make an excellent judge.

Wednesday, June 18, 2003


I don't think Hillary is going to like this: Tomorrow's Washington Post brings news that President Bush plans to nominate White House lawyer Brett Kavanaugh for a seat on the U.S. Court of Appeals for the D.C. Circuit. Read the Post article here.


In print: In the June 16 National Review, ("NRODT," as they call it) John Derbyshire has a column about barbershops. You'll never guess what topic manages to make an appearance!
When adolescence arrived with its attendant vanities in train, I... decided to patronize a tonier establishment in the town center, whose window sported headshots of Mediterranean types with their hair cut in different styles. This was another one-man business, run by a dapper and very attentive fellow in middle age. I quickly grasped, however, that if not the factotum of the city, he was very well connected in a certain subculture whose existence I was just, by hearsay, becoming aware of. At our first professional engagement he asked me, while preparatorily combing down my hair rather more slowly than I would have liked, whether I attended the town's premier boys' school. I said I did. 'Ah,' he purred, 'then you must know my friend Ronnie Douglas.' My blood froze. I did indeed know Ronnie. Of the 40-odd masters, Ronnie was the most obvious pederast. A middle-aged bachelor, his chief delight was to punish a boy who talked in class by taking him to a store-room and spanking him very slowly with a large gym slipper, murmuring the while, 'Naughty boy. Naughty boy.' (p. 49)
And Derbyshire's chief delight remains, all these years later, the frisson he can give himself by writing about such things whenever humanly possible. (Not in print but on related topics: don't miss Andrew Sullivan's and Kevin Drum's replies to the latest NRObsessing about gay marriage.)
piece from my colleague Mark Lilla on Europe, nationalism, and Israel (I disagree with Lilla's argument in some fundamental ways, but felt compelled to sit down and read it carefully twice through, to think about it carefully); and, the finest piece in the issue, James Wood's review of Norman Rush's new novel, Mortals. Mortals has gotten a pretty bimodal distribution of reviews, and I'd been unsure about shelling out for it in hardcover. Wood's review-- a really marvelous piece of writing in its own right-- convinced me to. Wood is a figure of considerable controversy, and I don't by any means always ag ee with him. (I loved The Corrections.) But to have a fiction reviewer who can be a figure of controvery, someone who writes about novels as if they matter and as if what we think about them matters and as if we can argue and reason about them, not merely react-- and to have him in a political opinion magazine!-- is an act of respect to readers. And his review of Mortals doesn't just react; it persuades me. Much the same can be said about Jed Perl's arts coverage.

It can also be said of the section's frequent reviews by academics of academic books. They are often very controversial-- I've written a furious letter to the editor (which wasn't published) about one myself. (No, I'm not going to say which review.) But they're serious, thoughtful, and treat the enterprises of thinking, writing, and reading with respect. Moreover, they choose serious books and serious reviewers. The intellectual weight of the reviews dwarfs that of most pieces on academic books in the NYT, which mostly selects presidential biographies and Civil War histories and the like for review in the first place. The NYRoB-- well, sometimes, but it's so often tedious and self- or mutually-congratulatory. TNR's reviews are often the only ones I know of on this side of the Atlantic comparable to those that appear in the London Review of Books-- pieces that are genuinely about the books in question while still offering arguments of their own about the underlying subject and teaching the reader something interesting in their own right.

Of course, I often find something to be annoyed by in an issue of TNR, even now in the post-Gore years. (Though I don't find things to be creeped out by a la Derbyshire.) Its core political doctrines aren't especially close to my own. Still proud to be associated with it, though, and grateful that it exists. I'll let you know what I think of Mortals in due course...


More on foreign gay marriages: As Slate's Explainer points out, states don't have to recognize foreign marriages, but they usually do. A state legislature or the voters may pass a law refusing to recognize certain foreign marriages (as has been done by most states as to gay marriage); but absent that, state courts will generally recognize marriages -- even those that couldn't be lawfully entered into in the state -- unless such recognition violates a "strong public policy" of the state.

     But how is a court to figure out what's a "strong public policy" of the state? By hypothesis, the legislature hasn't specifically prohibited recognition of the foreign marriage (if it had, then the answer would be simple) -- but it has prohibited residents of the state from entering into such a marriage. What should the judges do?

     Here's a non-gay-marriage example: Marriages between uncles and nieces. Most states, I believe, prohibit such marriages; but some states and apparently quite a few foreign countries allow them. (Rhode Island, for instance, generally bars uncle-niece marriages, but provides an exemption for "any marriage which is solemnized among the Jews, within the degrees of affinity or consanguinity allowed by their religion," and at least some Jews accept uncle-niece marriages as permissible.) Some courts have therefore recognized such out-of-state marriages, see, e.g., Campione v. Campione, 107 N.Y.S.2d 170 (1951); Leszinske v. Poole, 110 N.M. 663 (1990), and others have refused to recognize them, see, e.g., Bucca v. State, 43 N.J. Super. 315 (1957).

     One formulation of the test that courts apply here comes from a 1936 California case, McDonald v. McDonald, 6 Cal. 2d 457: whether "the marriage is regarded as odious by common consent of nations; e. g., where it is polygamous or incestuous by the laws of nature." The New Mexico court in Leszinske applied this test and decided that because "twenty-three South and Central American and northern European nations recognize [uncle-niece] marriages," they aren't "odious by common consent of nations," and thus shouldn't be seen as against New Mexico's "strong public policy." But naturally, a state court's own view of the matter -- or its sense of the views of the state's citizens as embodied in the decisions of their elected officials -- may also sway a judgment that's as vague as whether the marriage offends a "strong public policy"; judges may thus reject even an internationally recognized practice if they oppose it strongly enough, or if the state's elected officials oppose it strongly enough (the Bucca decision relied in part on the views of the New Jersey Attorney General).

     So here's my tentative sense of the matter:

     1. In most states, 37 by Slate's count, foreign gay marriages wouldn't be recognized, because the state legislature has so said.

     2. In the remaining states, there's a presumption in favor of recognizing them.

     3. Even in those states, courts may reject that presumption if they think gay marriages are against the state's public policy, and judgments about "public policy" are naturally easily affected by the judges' own views of right and wrong.

     4. If the state's elected officials speak out against gay marriages (even if no legislation is enacted), this may help sway the courts against recognizing the foreign gay marriages.

     5. But the more foreign countries allow gay marriages, the more this will sway at least some courts in favor of recognizing such marriages.


Roomba and the future: Reader Colin Fraizer points me to a Wired article called "The New Pet Craze: Robovacs," apropos my blogging several weeks ago about the Roomba robotic vacuum cleaner. Colin writes:
Best graf:

"We received one testimonial from a retired professor who lived alone and considered it her companion," she said. "It's a little bizarre."

Could be Volokh in 20 years?
I certainly hope not!


Chief Moose resigns: From this story:
Charles A. Moose has resigned as county police chief, County Executive Douglas M. Duncan (D) confirmed today in Rockville.

Duncan said he met with the chief at the Il Pizzico restaurant in Rockville on Monday night. Moose told him that he wanted to resign.

"We both agreed it was the right decision, but it was with tremendous regret that I accepted his resignation," Duncan said. "It was just a very sad day for me."

Acting chief William C. O'Toole will continue in that capacity indefinitely while the county launches a search for a new chief, Duncan said.

Moose's resignation is effective June 28, two months short of the chief's fourth anniversary with the police department.

The 49-year-old chief told Duncan that he was resigning to pursue a $100,000-plus book and movie deal on his life and role in October's sniper investigation. . . .


Less culture? So what? Did you see that judgment was rendered against the major music companies for fixing prices of CDs? I believe each victimized consumer can lay claim to $14.

Speaking strictly as an economist (forget about the intrinsic value of art, at least for now), should we care much about the output restrictions of monopoly, in the case of popular culture? We don't have a good model of why people buy popular culture. Often I suspect they are not buying culture. Almost all music bought is of incredibly recent vintage. Is music getting that much better every year? I doubt it.

Instead I suspect that people are following trends, signaling to their peers, joining "hot" movements, and so on. They're only buying the music in part, mostly they are buying a form of cultural participation. Given this possibility, might music serve the same function if there were less of it? Maybe producing more music is just a form of rent-seeking, searching after profits to hold the favored position of market leader? Perhaps we could sort by peer groups nearly as effectively with just half the current quantity of music.

If this is the case, there is no economic argument for subsidizing these arts. Nor should we, as economists, be so worried about the economic costs of monopoly in popular culture. Nor should we be so worried about file-sharing and the possible breakdown of copyright.

If you're tempted to flame me for not loving the arts, let me note that I own at least 5000 CDs.


Time to have a talk with Bill O'Reilly: Or at least I'm currently scheduled to be a guest on The O'Reilly Factor tonight. The topic will be fighting crime on the Internet. I expect we'll talk about this, and maybe some of this. I just hope he doesn't realize I'm friends with Eugene, given this.


"Is a Canadian Same-Sex Marriage Valid Here?" Slate's Explainer explains this, and gets it quite right. The key point:
The United States recognizes most foreign marriages because of "comity," the legal version of the Golden Rule. The principle holds that lawful conduct in one jurisdiction should be respected in another, lest travelers worry about their marriages being invalidated as they cross borders. But comity is more a custom than an obligation, and neither the states nor the federal government are compelled to extend the courtesy to every couple wed abroad. They can decline if the marriage in question violates a jurisdiction's definition of an acceptable union -- say, if the bride is below the age of consent, or if the couple are close blood relations. Or, in the case of same-sex marriages, if a local law explicitly defines marriage as a union between a man and a woman.
So some state courts in some states may choose to recognize such marriages, at least unless the legislature intervenes -- but some may not.


Absurd contracts: Dahlia Lithwick, Slate's legal columnist, has just cowritten Me v. Everybody: Absurd Contracts for an Absurd World: "a collection of 20 humorous legal agreements ordering those parts of life we all wish the law could govern -- like splitting the restaurant bill, going on a blind date, sharing the TV remote control, and keeping your pet in line." (I particularly want that last one, but I hear that enforcement can be really tough.) I haven't had a chance to read the book yet, but the snippets on the Web site are good, and more to the point Dahlia is just an excellent and witty writer -- I'm sure the same humor and astuteness that I've seen in her Slate pieces will be reflected here.


Interesting blog: I just came across Amazon World: Highlighting Some of the More Interesting User Reviews Found on The author excerpts Amazon user reviews of well-known books and offers a few biting comments. Pretty funny. To my surprise, however, there are no excerpted reviews of Eugene's book on Academic Legal Writing. You can find Eugene's book on amazon here, just in case you didn't know that.


Eenie, meenie: A recent incident (more on that in several days, I hope) reminded me of this op-ed that I wrote several months ago. A journalism organization distributed it to a bunch of newspapers, but to my knowledge none have picked it up -- things sometimes happen that way. In any case, I thought I'd pass it along rather than just let it gather e-dust in my files; the incident isn't in the news any more, but the legal issue still very much remains -- for more on the subject of "hostile public accommodations environment harassment" law, see Parts IV and V of this article, and for more on the clash between First Amendment and harassment law more generally, see here.
     "Eenie, meenie, minie, moe; pick a seat, we gotta go," says a Southwest Airlines flight attendant. This speech may violate the law, rules a federal judge. Hard to believe in a nation with the First Amendment -- but welcome to the wild world of hostile environment law.

     Two African-American passengers are suing Southwest, claiming the "eenie, meenie" line violated antidiscrimination law. The original child's rhyme, it turns out, ended with "catch a nigger by his toe," though for decades it's been rendered "catch a tiger by the toe" -- that's how I heard it in the 1970s, and how the flight attendant says she learned it.

     "Because of [this] history," Judge Kathryn Vratil held last week, "the phrase 'eenie, meenie, minie, moe' could reasonably be viewed as objectively racist and offensive." It's thus up to the jury to "decide whether [the flight attendant's] remark was racist, or simply a benign and innocent attempt at humor." (The passengers also claim they were the only ones in the aisle when the statement was made, though the flight attendant says otherwise, and says she's often used the line on other flights.)

     Of course, if this ruling is upheld, things can't stop there. Presumably I'll be able to sue about references to "a pound of flesh" because they remind me of the anti-Semitism of Merchant of Venice. Chinese-Americans could sue over "chink in the armor" because "chink," in other contexts, is a racial slur. "Niggardly," "denigrate," and "spic and span" would likewise be punished -- not just by public opinion, but by government coercion done through the threat of massive damages verdicts.

     Southwest might escape liability if the jury decides the flight attendant had no racist motive. But how much consolation is that? Would you feel free to say things that might lead to a lawsuit, on the hopes that you could -- tens of thousands of dollars in attorney fees later -- persuade a jury that your intentions were "benign and innocent"?

     More importantly, would your employer let you say such things? More likely, the employer would reasonably decide to play it safe, and demand that its workers stop using all these terms, for fear that some jury will assume the worst about the speaker's motivations. That's the "chilling effect" that the Supreme Court has often warned about.

     This wave of speech suppression began in the 1980s with hostile work environment harassment law, which punishes speech that's "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" for employees based on race, religion, sex, and so on. This vague standard has been found to potentially cover jokes, political statements, art, religious proselytizing, and more.

     Now this law has spread to other places. If the government can suppress speech that may cause an "offensive work environment," it can do the same for speech that creates an "offensive educational environment" -- that's how the new wave of campus speech codes is being justified. Likewise, speech that creates an "offensive public accommodations environment" can also be punished. And just as coworkers' speech can lead to a lawsuit, so can speech said by patrons, if they aren't promptly silenced by the business owner. Remember that next time you say "eenie, meenie" in a restaurant where a waiter or another patron may be offended.

     In all this, the First Amendment has been largely ignored. A few cases have endorsed First Amendment defenses, slightly more have rejected them, and most haven't even mentioned them. The ACLU and other civil libertarian organizations have mostly remained silent about harassment law's excesses (though to her credit, ACLU Board President Nadine Strossen has spoken out about this on her own). It's as if the words "civil rights law" are a universal solvent that destroys all First Amendment protection.

     Last week, The New York Sun attacked free speech from the right, by suggesting that antiwar advocacy may be suppressed because it helps our enemies and is thus supposedly treasonous. Now, a federal court attacks free speech from the left, by holding that speech may be punished if it reminds people of bigoted expressions. The notion that a free people must deal even with offensive speech, and that the public deserves to hear all viewpoints, is again under assault from both sides. And if this assault isn't constantly fought, even in seemingly small matters such as the Southwest case, the censorship will spread -- as it has spread in the strange career of hostile environment law.


Law professor Eric Muller (IsThatLegal?) on Academic Legal Writing: A very nice review, which I of course much appreciate (though I can't endorse the post title!). Chock full of interesting points, such as "Query whether efforts by the Missouri legislature to strip Missouri courts of jurisdiction over claims including notices of lis pendens filed under Alabama law would violate the federal Full Faith and Credit Clause, the Rule Against Perpetuities, or The Hague Convention." No, really, most of the review isn't about that.

     The book, by the way, is still available personalized, from me, and normally, from the publisher. It's also on amazon, but though they've sold over 100 copies, there seem to be some shipping delays there, so the other sources are probably best.

Tuesday, June 17, 2003


Roe (of Roe v. Wade) petitioning the Court to reverse Roe: This is in the news today:
The "Roe" of the landmark Roe v. Wade Supreme Court decision is asking the nation's highest court to overturn its 1973 ruling that made abortion legal throughout the United States.

On the 33rd anniversary of her initial lawsuit, which resulted in the high court's historic ruling three years later, Norma McCorvey announced Tuesday she will petition the court to reopen the original case, based on changes in law and technology over the last 30 years.

"I'm sorry that I signed that affidavit," McCorvey said during the press conference Tuesday, referring to when she became the plaintiff in the original case. . . .
     I don't know whether this is effective publicity for the pro-life cause or not. I don't even know exactly how these sorts of cases under Rule 60 of the Federal Rules of Civil Procedure are handled, so I can't say whether the case would get bumped on procedural grounds -- the issue comes up every so often, and sometimes in constitutional cases (such as Agostini v. Felton), but I leave it for the civil procedure experts.

     But I do know that if there were five votes on the Court to reject the constitutional right to an abortion, it would so hold in some case, with or without Rule 60 -- there are certainly plenty of other parties who could litigate this even if Roe's case is thrown out on procedural grounds. And given that there don't seem to be five such votes on the Court, then Rule 60 or not, the Court will not reject the constitutional right to an abortion; even if Roe's case isn't thrown out on procedural grounds, it'll be rejected on the substantive grounds.

     So this legal maneuver may or may not be good politics -- but it will not have any effect on the law.


The menace of books predux: Reader David Vaughn pointed out that Michael Kinsley wrote something in Slate six years ago that's quite similar to what I wrote in response to Bill O'Reilly anti-Internet piece. I don't remember reading Kinsley's piece, but perhaps I did; and in any event, he says this a lot better than I did. Here's the intro, but it's worth reading in its entirety:
We hesitate, frankly, to offer a paper edition of Slate. Why? Because paper is a dangerous medium, all too prone to misuse by pedophiles, political extremists, paranoid conspiracy mongers, and purveyors of bad casserole recipes. Hitler's Mein Kampf was written on paper. So were many of Stalin's most bestial orders for mass executions. Those of us at Slate who are parents must naturally wonder whether paper should be allowed into a house where young children can read or -- worse -- write on it.

As many newspapers, magazines, and other timber-industry byproducts have pointed out in the wake of the Heaven's Gate mass suicide, Slate's preferred medium of the Internet has some darker byways of its own. That's true. But this anti-Internet alarmism is a heavy-handed attempt to distract attention from the really dangerous medium: paper. J'accuse. Quis custodiet ipsos custodes? Et cetera. . . .
And it just gets better.


More on attacking Hamas: My colleague Jonathan Zasloff passes this along, as a follow-up to his earlier post:
A superb analysis of Israel's war on Hamas, and America's reaction in today's Ha'aretz. The interesting money quote, from Ha'aretz' Arab Affairs editor, Zvi Bar'el:
At this point, Hamas has a clear interest in agreeing to a moratorium on terror attacks, Bar'el says. "Hamas reads the internal Palestinian political map extremely well, and in the current situation, terror attacks may actually cause them to lose popular support among the Palestinian population."

"American pressure truly plays no role in Hamas reckoning," Bar'el adds. "America has no leverage that would make Hamas panic. What Israel does is also of no consequence, because it has been fighting Hamas since it was founded in the late 1980s. So Hamas can dismiss out of hand what America does, or what Israel does. But it cannot dismiss the Palestinian public. In this regard, Hamas certainly has good reasons for concern at the moment, with the slow but perceptible development of a peace process, Bar'el says.

"When Palestinians begin to see the possibility of going out to work from the Gaza Strip's main Erez exit to Israel, when people begin to sense an improvement in their plight, they will oppose attacks that can bring this to an end."

As a result, the trigger for the Rantisi "hit" -- a joint Hamas-Islamic Jihad-Fatah operation in which gunmen posed as workers leaving Erez, then killed four IDF soldiers in a nearby army position -- actually sapped Hamas support.

Palestinians reacted with great anger to the operation, viewing it as an attack on their own opportunity to go out and make a living, Bar'el says. "People were clearly greatly disappointed at being unable to go out to work in Israel. Today the ambition of the Palestinian public is to go to work, to make a living, and therefore, to see the peace process advance.

"To the Palestinian population, it did not matter that the attack was presented as a 'symbol of the unity of the struggle.' While the attack was going on, seven thousand Palestinians were standing waiting to pass the terminal gates into Israel, only to be turned away because of the shooting.

"When there is a period of no hope, no change, the Hamas 'rides high,' accumulating more and more popularity points among Palestinians. But the moment the pipeline to socio-economic welfare is opened, Hamas must immediately find an alternative. It can find a bad alternative in mounting a terror attack, which we cause Israel to clamp down, but in reading the 'map' today, Hamas knows that what people really want, is to go to work, to begin to live their lives again."
Once again, this shows an important truth: attacking Hamas hurts, well, Hamas. It certainly doesn't hurt the peace process.


Slippery Slopes: Just checked the hit counts on the UCLA server, and it turns out that the 3-page version of my slippery slopes piece has been visited 7,500 times, the PDF and HTML versions of the long article have been visited a total of over 5,500 times put together, and the 50-page version has been visited over 1,500 times. Now naturally, a visit isn't the same as an actual read, especially for the 100-page behemoth; but given that I suspect that my print and WESTLAW versions have been read many, many fewer times than that, I'm extremely pleased.


The G4G bug? I doubt it, but here's the rumor:
A rumour is spreading like the plague over the internet: Google has reached overbooking. The most popular search engine has space problems, or more precisely, it could have them in the future. In fact, is seems that Google is about to reach the limit of its capacity of listed pages: 4,294,967,296. A numeric problem that is mainly due to a calculation error.
Again, I'm skeptical, but if it's real, I dibs the name!

UPDATE: Reader Kurt Hemr points out that google's front page says "Searching 3,083,324,652 web pages," well short of 4G, though presumably it will reach 4G some time soon. Another beautiful theory destroyed by ugly fact. (Though, to be fair to the utterly unsubstantiated rumor, it's possible that google's internal indexing counts are close to 4G, and that the "Searching . . . web pages" message doesn't report that -- for instance, if the internal indexing counts have been incremented for all pages that google has ever seen, but the message reports only those pages that were still active on google's last pass, to produce an utterly hypothetical scenario.)


Al-Qaeda in America: A very interesting cover story from Newsweek.


Another e-mail from Iraq: My friend stationed in Baghdad writes with another report. This time, just two excerpts, again with just minimal editing on my part. First, he offers an interesting perspective on the electricity outages:
  As you probably know, electricity continues to be unpredictable. Some of it's supply and demand, but it's also distribution. People complain how we have made it worse here [in Baghdad] . . . well, part of the reason is that the rest of the country said "enough." For years, Baghdad has not produced enough power for itself, and siphoned what it needed from the surrounding areas. Well, they are not allowing Baghdad to do that anymore and so Baghdad now suffers the blackouts that the other parts of the country used to go through. Already the country is producing more power than it was pre-war. But like many things, no investments were made in the underlying infrastructure, so reliability is lacking.
Here's his take on Bremer, and the rumor mill:
  I have been impressed with Ambassador Bremer. He has a good feel for people and for the politics of the region. There seems to be so much in the bad rumor business in this country that he knows he has to demonstrate the good words that President Bush and PM Blair have been speaking. The challenge comes in trying to get that word out to the public. The ministry of information, umm, well, it's gone. (Word on the street is one of amazement that we were able to hit the proper corner on the proper floor to knock out the entire operation with minimal damage ... I'll take a picture next time I drive by). There's not a whole lot to go with. So, the Imams often have the best means of communicating - the pulpit (as it were). Newspapers are starting up all over, which is neat to see. So, hopefully we can get some truth out there to combat the fact that (as I read the other day) "In Iraq, rumor is hard currency."
  . . . .
  The other day I took one of our translators along to the airport. Young woman, 23, she's a school teacher. . . . [A]s we got to the airport, she was surprised; she thought it had all burned up and that there was a huge battle out there that destroyed the airport. Far from it. Again, the disinformation minister. Now why don't they know that? No Newschopper4, no roving reporters, etc.


Courting Trouble: Stuart Taylor has a handy cover story in the National Journal on the propsect of a Supreme Court vacancy, and what to expect. The article is fairly comprehensive (complete with sidebars here and here). Alas, the article also has one small error. Taylor writes that the nomination of Associate Justice Abe Fortas to replace Earl Warren as Chief Justice was blocked by a "Republican filibuster." This is untrue. The filibuster of Fortas was bipartisan. In addition, as I've noted before, the Fortas filibuster was quiteunique in that it was driven by specific allegations of ethical improprieties.


Another weird Bushism of the Day item:
"I am determined to keep the process on the road to peace." -- Washington, D.C., June 10, 2003
Again, what exactly is the problem here? Is it that processes can't be on the road anywhere? Well, "on the road to peace" is a metaphor -- "The economy is on the road to recovery" would be literally incorrect, too (intangibles like the economy can't very well be on physical roads), but that's fine, because the phrase isn't used literally. But if economies can be on the road to something, why can't processes, too? It seems to be a perfectly permissible, though hardly terribly eloquent, figurative usage.

     Now maybe the Bushisms author thought Bush was essentially saying "I am determined to keep the [peace] process on the road to peace," which would be pretty clumsy -- if you infer that by "process" he meant to say "peace process." But Bush didn't say peace process; it sounds like he was referring to the process of negotiation. The process of negotiations can lead to peace, or to stalemate and continuing violence. Bush was saying he was determined to keep the negotiation process going towards peace. What exactly is incorrect, clumsy, or remotely amusing about that?


The DNC has an animated short that depicts President Bush creating a "Bushenstein" to serve as the next Supreme Court Justice. I have no problem with objecting to a specific nominee or to a general trend in nominations, but this short is to intellectual integrity what reality TV is to reality.

     How will most voters react? Well, no doubt most voters will never see the film. In the least random sample possible, I will quote two of my friends' reactions:

Friend A: "Well, that did it. This prevents me from voting for any Democratic candidate."

Friend B: "That's the worst piece of *#& I've ever seen. And I'm not talking about the policy; just the production


A bit more data related to my National Review article: If you were surprised by my article's point that most gun homicide victims are disproportionately likely to be criminals themselves -- I cite a 1999 San Francisco study in which two thirds had an arrest record -- well, don't be. Other studies have pretty consistently found the very same data (as to homicide victims; the S.F. study is the only one I've seen for suicide victims, of whom one-third had arrest records). Just to give one example, a Boston study of gun and knife homicide victims age 24 and under, 75% "had been arraigned for at least one offense in Massachusetts courts." Other studies likewise show that gun homicide victims are especially likely to have criminal records.

     Moreover, the San Francisco study shows that over 80% of the victims (the study aggregates gun homicide victims and gun wounding victims, but there's no reason to think there's a huge difference between the two) with an arrest record had more than just one arrest, and more than 80% had arrests in the recent past. And 60% of those gun wounding victims had arrest records, and who were hospitalized and released after being wounded, were then rearrested in San Francisco by 2001.

     Of course, I say this not to pooh-pooh the harm caused by gun homicide; many victims are not criminals, and even the victims who have criminal records usually don't deserve to die. Rather, my point is that a correlation between household gun ownership and gun death in the household can't suggest that gun ownership causes the gun death until one controls for the gun owner's criminal record, gang membership, participation in drug markets, and the like. These latter factors may well cause both gun death in the household and household gun ownership. As I say,
[T]hat two things are correlated doesn't prove that one causes the other. The sex-crime rate is correlated over time with the use of air conditioning, but not because air conditioning causes sex crime; rather, both rise during the summer months. Likewise, whether someone in your home has been to the hospital recently is correlated with death in your home, but not because hospital care tends to kill people (though sometimes it does). Rather, both hospital stays and deaths often have a common cause: serious illness.
     Likewise, I feel pretty confident that the potential confounding factor I point to -- the victim's criminal involvement -- is very serious, and that any study that fails to control for this confounding factor will not yield sound data.


Tully's Coffee and falafel/hummus: Readers Kirk Robinson and Aaron Lav share the honors for being the first to give the answer to yesterday's puzzle. Recall that the puzzle was: Find the conceptual connection between Tully's, a coffee store, and falafel and hummus. The answer, as Aaron Lav puts it, is:
Tully is a form of Marcus Tullius Cicero, and that the name Cicero is derived from Latin cicer, chickpea, which is a key ingredient in falafel and hummus.
Cicero is rarely called Tully these days, but I think Tully was a pretty common term in English usage of the last few centuries; and as I understand it, the cognomen Cicero was indeed derived from the garbanzo bean.


An unsound gun study: From my piece this morning at National Review Online:
"If you keep a gun in your home," a University of Pennsylvania press release said last week, "you dramatically increase the odds that you will die of a gunshot wound, according to research published in the June issue of the Annals of Emergency Medicine." "Keeping guns at home is dangerous," the researcher was quoted as saying. A New York Times story likewise reported: "People with guns in their homes are almost twice as likely to be killed by guns as people who do not keep them at home." Another article echoed the same point; so do the websites of advocacy groups (here and here).

Frightening results for people who own guns, or who are thinking of buying them. Frightening but, it turns out, meaningless -- another example of how unsound social science is being used in public-policy debates. . . .
Click here to read the details, and to see the links to the study itself, the press release, the article, and other things. I'll probably blog a bit more today about some of the technical issues here, but for now I hope the article itself makes the point clearly enough.


Super-villians: From the witty John Holbo, blogger on matters political, literary, and geeky:
I am not alone, I trust, in my bemusement at the Taki/Buchanan collaboration that is The American Conservative.

How to put it?

It's like one of those odd Marvel supervillian team-ups - one of the really incongruous ones, like: Galactus and the Kingpin! Or: the Red Skull and Loki! Just because they're BOTH sinister, doesn't mean it makes narrative sense for them to work together...

And, like surly teamed-up villains, Bully Boy Bucky and Taki are often talking about themselves...

I imagine that a typical scene in the editorial offices of The American Conservative unfolds somewhat like this:

Buchanan: With my powers of irate, pugnacious nativist jingoism, I will rule the -

Taki: Never forget, my American friend, that it is I, Taki, Greek Eurotrash, jetsetting shipping magnate libertine extraordinaire, who--
Many of you are now looking at me blankly, but trust me on this one-- if you knew what he was talking about you'd find this very funny.

Monday, June 16, 2003


The Edge of England's Sword, Iain Murray's excellent blog, has moved to Update your links.


Books -- a menace and a cesspool: They're just an appalling, awful technology; and the worst of it is no-one is controlling them. Not only are books published each year containing falsehoods and unimaginable filth, but some of the greatest crimes of human history have been accomplished with the help of books. What, never heard of Mein Kampf? The Communist Manifesto? A vile, filthy product, and one that responsible entities can't really do anything about; after all, any schmoe with a printing press can churn out this horrible slime.

     What makes the above paragraph silly isn't that it's factually false (its factual claims are relatively accurate): It's that the screed indicts a tremendously useful communication technology because some people abuse it, without even mentioning the fact that many people use the technology quite properly, and to great benefit. And this, I think, helps put into perspective this item from Bill O'Reilly. I include a few more detailed items below, but the broad point is the one the first paragraph of this post implicitly made -- talking about what a horrible thing "the Internet" is because it's sometimes abused is as unsound as making the same complaints about books, newspaper, or for that matter human language itself:
Sex, lies and videotape on the Internet, that's the subject of this evening's Talking Points Memo. Nearly everyday, there's something written on the Internet about me that's flat out untrue. And I'm not alone. Nearly every famous person in the country's under siege.

Today's example comes from Web sites that picked up a false report from The San Francisco Chronicle that said a San Francisco radio station dropped The Radio Factor. If anyone had bothered to make even one phone call, they would have learned that Westwood One made a deal with another San Francisco radio station, weeks ago to move The Radio Factor. Thus the word "dropped" is obviously inaccurate and dishonest. We'll see if The Chronicle runs a correction, but you can bet you won't be seeing many corrections on the net.

The reason these net people get away with all kinds of stuff is that they work for no one. They put stuff up with no restraints. This, of course, is dangerous, but it symbolizes what the Internet is becoming.
It's interesting that the original error wasn't on the Internet, but in a newspaper, and "these newspaper people" do work for someone and yet still sometimes make mistake. As to betting how many corrections you see on the Internet, my experience (for instance, from the Cynthia McKinney misquote from earlier this year) is that it's much easier to get a Web site to run a correction (or to remove an incorrect claim) than to get a newspaper to do so. Perhaps I have an unrepresentative sample, but at the very least the contrary claim is far from obvious.
In truth, The Chronicle's story [is] small stuff compared to other Internet sins. The child molestation people have now figured out a way to chat about their crimes without being charged with obscenity.
Actually, chatting about child molestation generally isn't obscenity, whether on the Internet or off it. (In some very rare cases, it might be, but it usually isn't.)
And the Supreme Court actually helped these people by ruling that virtual child porn, computerized images of kids being raped, are legal, an extension of free speech.
The Supreme Court held that virtual child porn, which is computerized images that look like fictional kids having sex, is not punishable as child pornography. It is still punishable as obscenity, if it's sexually explicit enough, and may thus be illegal. A technical point, but still an important one, especially in an article that starts out by complaining about how the Internet is full of "inaccura[cies]."
So all over the country, we have people posting the most vile stuff imaginable, hiding behind high tech capabilities. Sometimes the violators are punished, but most are not. We have now have teenagers ruining the reputations of their peers in schools on the Internet. Ideologues accusing public officials of the worst things imaginable.
Ideologues accusing public officials of the worst things imaginable dates back in America, to my knowledge, to at least the late 1700s.
And creeps gossiping about celebrities in the crudest of ways.

The Internet has become a sewer of slander and libel, an unpatrolled polluted waterway, where just about anything goes. For example, the guy who raped and murdered a 10-year old in Massachusetts says he got the idea from the NAMBLA Web site that he accessed from the Boston public library. The ACLU's defending NAMBLA in that civil lawsuit.
Well, he says that -- but do we have any reason to believe him? My sense, though I may be mistaken, is that people who commit heinous crimes generally "[get] the idea" for them just fine from their own heads.

     More significantly, though, these sorts of claims of copycat crimes -- crimes inspired by supposedly favorable accounts of crime, such as the movies like Natural Born Killers -- are pretty familiar. There's been lots of litigation about them, focused on movies, TV programs, musical albums, and the like. And somehow it all happened before that "unpatrolled polluted waterway" of the Internet.
Talking Points noted with interest the hue and cry that went up from some quarters about the FCC changing the rules and allowing big corporations to own even more media properties. But big corporations are big targets. If they misbehave, they can be sued for big bucks. These small time hit and run operators on the net, however, can traffic in perversity and falsehoods all day long with impunity. It's almost impossible to rein them in.
The difficulty with the argument is that it says nothing about the possibility that there's a benefit to having speakers whom it's "impossible to rein . . . in," as well as the cost.
So which is the bigger threat to America? The big companies or the criminals at the computer? Interesting question.
Well, it seems to me that it's entirely the wrong question. It's an unsound way to respond to the claim that we shouldn't care that much about corporations owning more media properties: If corporations owning more media properties is bad, then it's hardly helpful to compare it to "the criminals at the computer." We don't, for instance, respond to charges that robbery is bad by pointing to the misdeeds of rapists, and saying "So which is the bigger threat to America? Robbery or rape?" Both could be bad.

     What's more, it's an unsound way to argue about the supposed failings of the Internet as a medium (which I take it is the chief point of the argument), for reasons with which I started this post. "The criminals at the computer" (or the criminals writing books, such as Hitler) do bad things; "the law-abiding people at the computer" do good things. "The criminals in the car[s]" are probably are a greater threat to America than either the big companies or cyber-criminals. (Lots of crimes are greatly facilitated by cars.) That tells us very little about the aggregate social merits, or lack thereof, of cars. Likewise, it seems to me, with the Internet.


Do you trust a Washington Times blurb for a book? Richard Vinen's A History in Fragments: Europe in the Twentieth Century reflects its title. The author sticks to offering insights, rather than following any standard model of how to cover material.

Two of my favorite bits:

"Sometimes, aspects of popular culture that seemed peculiarly American to Europeans were designated for export precisely because of their limited success in the United States itself. This was true of McDonald's, which chased European markets partly because it had suffered so badly from the competition of (British-owned) Burger King in America."

"The Kalashnikov was probably the only Soviet product to achieve international brand recognition."

I've also started a reread of Edmund Spenser's The Faerie Queene, which I may teach part of in Law and Literature next year. Very cinematic, full of blood and guts, carves out a dream world, and never lets us think we are safe. The true sequel to Ovid. All about human imperfection, lust, and justice. One of the truly great books, and one of the least read great books (though Camille Paglia is a big fan of it). Why?


Blogues' gallery: Here's the latest in our occasional series of coconspirators' pictures; this one is of Sasha, and though it was taken several years ago, he hasn't changed much.


The old days: The latest issue of the George Washington University Law School's alumni magazine quotes a blurb from a January 1978 issue of the law school student newspaper:
A 'LEXIS' computer-assisted legal research terminal will be installed on the third floor of the Law Library on Feb 6. Briefly, LEXIS is a quick-access research tool in which an operator can summon selected case law, statutes, and administrative legal materials by effective manipulation of the terminal's keyboard. Requested items are then received on a small television-like screen situated on top of the terminal.
The article says nothing about free mugs, frisbees, or t-shirts. I guess those came later.


Discretionary income: I was buying a few CDs at Tower Records earlier today when I saw an advertisement for a new compilation, The Essential Eddie Money. And I thought to myself, kind of an oxymoron, isn't it?


See Now: Those of you who are recent arrivals to the L.A. might like to know this useful mnemonic for figuring out what side of the street a building is on:
The even numbers are almost always on the South and East sides; the odd numbers are almost always on the North and West.


Which Justices are retiring? Everyone is asking this question (I know I am!), and some reporters are actually asking it of me, I suppose on the theory that they should ask everyone. My response is one that I'd heard from Linda Greenhouse several years ago on (if I recall correctly) the same point: "Those who know don't tell, and those who tell don't know." But I add that I fall into the yet broader category of people who neither know nor tell.


Another puzzling Bushism of the Day:
"The true strength of America happens when a neighbor loves a neighbor just like they'd like to be loved themselves." -- Elizabeth, N.J., June 16, 2003
Again, I'm just mystified as to why the Bushism column is poking fun at this particular usage, and why the author thinks it's funny, telling, or even particularly clumsy. Actually, this is a Bushism in one traditional sense of "-ism": "love a neighbor just like they'd like to be loved themselves" is a common phrase in Bush's speeches. It's obviously a variant on the Golden Rule, but changed to the third person, and changed to the plural as an attempt to avoid assigning a gender to each hypothetical neighbor.

     Maybe the Bushism author thought this was clumsy because the "they" would seem to literally refer to both neighbors, so the statement becomes somewhat tautological ("X loves Y and Y loves X just like they'd both like to be loved"). But of course no-one would interpret it that way: People would interpret it as "The true strength of America manifests itself when one neighbor loves another neighbor just like the first neighbor would like to be loved him- or herself" -- except Bush's way of putting it is more colloquial and understandable than this revision. (Or is the objection that "strength happens" isn't quite right, because it should be "strength manifests itself"? If that's it, then it seems pretty picayune to me, especially when we're talking about oral remarks delivered in an intentionally colloquial style.)

     As I've mentioned before, when one sets out to try to find errors in one particular person's oral remarks, the result is neither fair -- because nearly everyone will flub something on occasion while speaking, since virtually no-one speaks in grammatically perfect, carefully edited prose, even when speaking from prepared remarks -- nor particularly funny.


Prof. Michael Madison's book review of Academic Legal Writing: Prof. Michael Madison of the University of Pittsburgh School of Law will have this book review coming out soon in the University of Pittsburgh Law Review. Go there to see why the book is called "both useful and sly." (In case you've been having trouble at and, you can also get the book here.)


University of Houston settles lawsuit over anti-abortion speech: From the Houston Chronicle
University of Houston will eliminate some restrictions on campus speech and pay $93,000 in attorneys' fees to settle an antiabortion student group's lawsuit, school officials said Wednesday.

UH will amend its free speech policy by June 30 by allowing exhibits to go up in Butler Plaza, in front of the main library. That location became the center of last year's legal dispute when UH tried to ban 15-foot-tall pictures of dead fetuses.

UH will also eliminate a ban on anonymous leaflets on campus and on students carrying signs or wearing sandwich boards, said Benjamin Bull, an attorney representing the Pro-Life Cougars student group.

"Universities are not black holes where only orthodox views are allowed to shine," said Bull, who works for the Alliance Defense Fund, a Christian legal organization in Scottsdale, Ariz. "Students are entitled to learn the truth about all difficult issues, including abortion. . . ." . . .
Points to Mr. Bull for his victory -- but minus a few, for the butchered metaphor.


Puzzle for those who know too many useless facts: I was in Seattle several months ago, and saw a coffee store called Tully's. It occurred to me that, while it doubtless did not serve falafel and hummus, it did have a rather odd conceptual connection with those foods.

     What was that connection? Honorable mention to the persons who (1) first respond with the answer, (2) first respond with the answer and can certify that they did so without using google, a dictionary, or a similar reference source (except to confirm what they already knew), and (3) first respond with the answer and can certify that they neither used a reference source (as in 2) nor have a degree or an academic specialty in the field that will yield the answer (naturally, I'm not telling what the field is).

UPDATE: The honorable mentions have already been awarded, but I won't post the answer until tomorrow, in case you folks want to think about it.


Melons: Just had one of the juiciest melons I've ever tasted -- a Juan Canary, which is about the size and the flavor of a honeydew, and is canary in color (I don't know where the Juan comes from). If you see some at your store, try them. At my Pavilions, the produce man actually cut a piece for me to try right there, which is what got me to buy it. Delicious.


Hair today, gone tomorrow: The Washington Post has a rather unusual story this morning about a man named David Kobren who apparently makes a living as a "self-proclaimed advocate of the bald and balding." Kobren is strange, very strange. An excerpt from the article:
  When the first plane slammed into the World Trade Center on Sept. 11, 2001, Kobren was awakened in his apartment, a block and a half away. Unsure of what was happening, but aware he'd have to leave in a hurry, Kobren did what came naturally: He made sure his hair looked good.
  After a quick shower, he went through his usual regimen of blow-drying and brushing, followed by applications of hairspray and Toppik, a scalp-covering makeup.
  The concussion from the second plane's impact threw him across his apartment, injuring his back. As he and his girlfriend crawled from their building into a nightmare of debris and devastation, a thought wedged into his carefully coiffed head: "I was hoping there wouldn't be any strong winds."
  Shortly thereafter, he moved to Los Angeles.
  Kobren is so particular about his hair that he refused to let anyone cut it for 12 years. He did it himself. "It wasn't easy," he says in an interview from his home, "and looking back on the pictures, it wasn't that great. I know it sounds bizarre but I was so ashamed of being outed for my hair loss at a young age. You go into one of those [salons] and there are a lot of young chicks around. When someone is standing over my head staring at your baldness, it's just not a comfortable feeling." With coaxing from friends, Kobren eventually found a sympathetic barber, whom he's been visiting for the past four years.


Civilization and agriculture: Jared Diamond, author of Guns, Germs, and Steel, has an interesting article in Sunday's L.A. Times explaining "[t]he Fertile Crescent's current desperation":
So how did Fertile Crescent peoples lose [the] big lead [it had thousands of years ago]? The short answer is ecological suicide: They inadvertently destroyed the environmental resources on which their society depended. Just as the region's rise wasn't due to any special virtue of its people, its fall wasn't due to any special blindness on their part. Instead, they had the misfortune to be living in an extremely fragile environment, which, because of its low rainfall, was particularly susceptible to deforestation.

When you clear a forest in a high-rainfall tropical area, new trees grow up to a height of 15 feet within a year; in a dry area like the Fertile Crescent, regeneration is much slower. And when you add to the equation grazing by sheep and goats, new trees stand little chance. Deforestation led to soil erosion, and irrigation agriculture led to salinization, both by releasing salt buried deep in the ground and by adding salt through irrigation water. After centuries of degradation, areas of Iraq that formerly supported productive irrigation agriculture are today salt pans where nothing grows.

Once the Fertile Crescent began to decline for those environmental reasons, hostile neighbors helped speed the process. The original flow of power westward from the Fertile Crescent reversed in 330 BC, when the Macedonian army of Alexander the Great advanced eastward to conquer the eastern Mediterranean. In the Middle Ages, Mongol invaders from Central Asia destroyed Iraq's irrigation systems. After World War I, England and France dismembered the Ottoman Empire and carved out Iraq and other states as pawns of European colonial interests. As the end product of this history, the former world center of wealth, power and civilization is now poor in everything except oil. Iraq's leaders ensured that few benefits of that oil reached their people. . . .
Now this may be accurate so far as it goes -- the fall of the Fertile Crescent might well have flowed in large measure from ecological factors and decisions that interfered with agriculture. But Diamond goes on to suggest that similar problems are causing international difficulties today:
Iraq's decline holds a broader significance. Many other countries today face similar crippling environmental problems, including the deforestation, overgrazing, erosion and salinization that brought down the Fertile Crescent. Other countries already crippled or nearly so by such problems include Haiti, Somalia, Rwanda, Afghanistan, Pakistan, Nepal, the Philippines and Indonesia.

You may well detect a similarity between this list of looming environmental disasters and the CIA's list of overseas trouble spots, places prone to civil wars and violent regime changes -- places to which we often end up dispatching U.S. troops. Those two lists are related by cause and effect. When environmental damage makes people economically desperate, they are likely to suffer from poor health and short life spans, blame their governments, kill each other, end up with crazy leaders and seek to immigrate illegally to more favored landscapes. . . .
I wonder how sound this more modern analysis is. The key to prosperity today, as best I can tell, isn't the agricultural economy -- it's the manufacturing economy and increasingly the information economy. Japan is the classic example, but I suspect that most of the other recently developed Asian nations largely fit that mold, too.

     Now perhaps success in the agricultural sector can't lift most nations out of poverty, but failure in that sector can mire them more deeply. But is even that true? A country that's effectively shifting to more modern sources of wealth can buy the food it needs (again, Japan is, as best I can tell, a classic example).

     Naturally, this isn't an argument in favor of environmental degradation for its own sake -- a country that ruins its agricultural sector (something that's often driven these days by political decisions, such as what we saw in the Soviet Union) will get worse. But countries that sacrifice agriculture in favor of other pursuits, and even pay a modest environment cost in so doing, may end up becoming on balance wealthier and healthier. And international preventive assistance and control programs (which Diamond ultimately advocates) that are focused on agriculture and the environment may distract both the international community and the country itself from more important developments in other economic sectors, and in the political sector (which Diamond alludes to in passing by mentioning that "Iraq's leaders" denied their people the benefits of their oil income). Agricultural and environmental problems may of course trigger political problems -- but, as I mentioned, the causation is often the other way around.

     I'm not an expert on these subjects; this is just my casual layman's analysis. But it seems to me that while Diamond's broad works are right to focus on the importance of agriculture in the past, a primary focus on that may be somewhat misplaced today. Feeding people is naturally very important; but these days, the best way of feeding people is often to have them do things other than grow food themselves.


Incentives and disincentives: My colleague Jonathan Zasloff passes along the following:
We don't know at this point, but this week could eventually be seen as the beginning of the long, protracted and direct conflict between Israel and Hamas. Hamas rejected the road map and a cease-fire with Israel; for its part, Jerusalem has begun a new round of targeted killings of Hamas military and political leaders. The conventional wisdom says that Israel's action is a mistake. But in fact Israel's new campaign against Hamas might be just what the road map needs.

Aside from commentators who can be expected to blame Jerusalem for everything in the Middle East, even thoughtful and fair-minded analysts such as Shibley Telhami have expressed deep concern about Israel's actions. Their reasoning is straightforward. It is in Israel's interest to support the fledgling government of Palestinian Prime Minister Mahmoud Abbas (also known as Abu Mazen). That means that Abu Mazen must shore up his own position in Palestinian public opinion. And in order to do that, he must "deliver" concrete benefits of his approach to Palestinians, such as an end to closures, humanitarian assistance, IDF pullbacks, etc. So, the conventional wisdom goes, for Israel to attack Hamas militants (with the inevitable collateral damage that that causes) undermines Abu Mazen because it prevents him from demonstrating to Palestinians that he has delivered anything: all he delivers is more violence. And since he can't deliver, then he won't have the political strength eventually to take on Hamas himself.

That makes some sense as far as it goes, but it ignores a counter-story that might make more sense. The bottom line: Israel's attacks on Hamas might strengthen Abbas' government, not weaken it.

Why? It's obvious that Hamas wants to overthrow the Palestinian Authority and establish themselves as the leading Palestinian political force (they will then proceed to attempt to liquidate Israel, of course). That's why they rejected the road map and broke off negotiations with Abbas last week. But if that's the case, then it makes eminently good sense for Israel to attempt to destroy Hamas now. If Israel is successful in destroying Hamas' military and political leadership, and the United States assists by blocking Saudi aid to Hamas and cutting off their finances, then that assists Abu Mazen by injuring his political rivals for him. He can continue to condemn Israeli targeted assassinations, while at the same time enjoying the fruits of Israel's crushing his opponents. Then, when he is able reorganize his security forces, he won't have nearly as strong an opposition. Hamas maintains a series of military, political and social service institutions to build its power. If Israel is able to destroy them, then that makes it much, much easier for Abbas to take control.

We can frame this argument in the form of a question: why is it supposed to help Abbas by refraining from attacking his political enemies?

The conventional wisdom assumes that Israeli attacks on Hamas will make Abu Mazen look like an Israeli stooge. But that assumes an awful lot about how public opinion works, particularly public opinion in the middle of a war. Maybe Palestinians will think that Abbas is a stooge. But it's just as likely that if Hamas is crushed, and then the PA forces come in with credible offers of security (because they have the men, the money and the training), plus a whole bunch of humanitarian assistance, then Palestinians won't really care. All the most recent polls of Palestinian public opinion say that they really don't trust anybody -- not Abbas, not Arafat, not Hamas, not their Arab brothers, etc. They want quiet; they want an end to Israeli occupation; they want jobs; and most of all, they want to end the death spiral that their economy is in. They aren't ideological. If Hamas is crushed and Abbas can then offer them something, then there is a good chance that they will take it.

Put another way: Israel's war against Hamas can be seen as part of a coordinated political strategy. Destroy Hamas' infrastructure while simultaneously taking actions to allow Abbas to deliver to Palestinians. This appears to be precisely what is happening this weekend. Israel attacks Hamas power centers while pulling out of areas where the PA can exert security control.

Note also that Israel's ongoing actions send a very strong message to Palestinians: Hamas cannot protect you. As long as you support Hamas, we will continue to kill their leaders. If you continue to support Hamas, then we will never end the occupation of where you are living and you will always run the risk of being in the wrong place when we target their leaders. But if you stop supporting Hamas, and give authority to Abu Mazen, we will pull out of such areas, and increase humanitarian assistance.

I have no idea whether this is actually Sharon's thinking. He is not the sort of leader who engages in these kinds of multifaceted strategies. But it would make sense. It depends on actually being able to take effective action against Hamas. We don't know how much of the Hamas infrastructure Israel can get. But it is certainly just as sensible as insisting that Israel must "restrain" itself against Hamas in order to strengthen Abu Mazen.


More on Bernard Williams: From Josh Cherniss, Michael Green.


Freeman Dyson on global climate change, in the New York Review of Books: I do not know nearly enough about the subject to have an informed opinion; but the piece seems quite interesting. Here's part of the conclusion:
We do not know how to answer the most important question: Does our burning of fossil fuels make the onset of the next ice age more likely or less likely?

There are good arguments on both sides of this question. On the one side, we know that the level of carbon dioxide in the atmosphere was much lower during past ice ages than during warm periods, so it is reasonable to expect that an artificially high level of carbon dioxide might stop an ice age from beginning. On the other side, the oceanographer Wallace Broecker has argued that the present warm climate in Europe depends on a circulation of ocean water, with the Gulf Stream flowing north on the ocean surface and bringing warmth to Europe, while a countercurrent of cold water flows south in the deep ocean. So a new ice age could begin whenever the cold, deep countercurrent is interrupted. The countercurrent could be interrupted when the cold surface water in the Arctic becomes less salty and fails to sink, and the water could become less salty when the warming climate increases the Arctic rainfall. Thus Broecker argues that a warm climate in the Arctic may paradoxically cause an ice age to begin. Since we are confronted with two plausible arguments leading to opposite conclusions, the only rational response is to admit our ignorance. Until the causes of ice ages are understood in detail, we cannot know whether the increase of carbon dioxide in the atmosphere is increasing or decreasing the danger.

The biosphere is the most complicated of all the things we humans have to deal with. The science of planetary ecology is still young and undeveloped. It is not surprising that honest and well-informed experts can disagree about facts. But beyond the disagreements about facts, there is another deeper disagreement about values. The disagreement about values may be described in an oversimplified way as a disagreement between naturalists and humanists. Naturalists believe that nature knows best. For them the highest value is respect for the natural order of things. Any gross human disruption of the natural environment is evil. Excessive burning of fossil fuels, and the consequent increase of atmospheric carbon dioxide, are unqualified evils.

Humanists believe that humans are an essential part of nature. Through human minds the biosphere has acquired the capacity to steer its own evolution, and we are now in charge. Humans have the right to reorganize nature so that humans and biosphere can survive and prosper together. For humanists, the highest value is intelligent coexistence between humans and nature. The greatest evils are war and poverty, underdevelopment and unemployment, disease and hunger, the miseries that deprive people of opportunities and limit their freedoms. As Bertolt Brecht wrote in The Threepenny Opera, "Feeding comes first, morality second." If people do not have enough to eat, we cannot expect them to put much effort into protecting the biosphere. In the long run, preservation of the biosphere will only be possible if people everywhere have a decent standard of living. The humanist ethic does not regard an increase of carbon dioxide in the atmosphere as evil, if the increase is associated with worldwide economic prosperity, and if the poorer half of humanity gets its fair share of the benefits. . . .
(Thanks to the Institute for Humane Studies and Jim Glassman in TechCentralStation for the pointers.)

Sunday, June 15, 2003


British constitution: The other day Iain blogged about the possible constitutional-revolution-by-memorandum in Britain. The radical changes to the British constitution under Blair, enacted by prime ministerial diktat and simple parliamentary majority, have already fundamentally transformed the world's oldest continuously-operating free system of government, and in one major case-- House of Lords reform-- pretty much done so on the fly and with no clear sense of what comes next. (I support the content of some of the changes, especially devolution and the creation of Scottish and Welsh assemblies, but I'm talking process here.)

For those who are interested, a couple of items from today's papers. One is a report recommending the end of the connection between the British monarchy and the Church of England. I'd like to see this one happen, but, again, we're talking about a major change in the formal and symbolic character of the state, and I'd be disappointed to see the change enacted simply on Blair's say-so. On the other hand, the proposed abolition of the Lord Chancellor's position-- and the procedure that led to that decision-- seems to be stirring up some resistance.

More from Greg Ransom.


Shooting the messenger: I've never taught from Kadish & Schulhofer's well-regarded criminal law casebook, but surely it deserves better treatment than this. (Thanks to How Appealing for the link.)

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