Saturday, February 12, 2005

Good Free Speech News from Sweden:

According to the Washington Post,

A Swedish appeals court on Friday overturned the conviction of a Pentecostal pastor found guilty of violating the country's strict hate-speech law with a sermon that labeled homosexuality "a deep cancerous tumor in the entire society" and equated it with pedophilia.

The appeals court ruled that Sweden's law, which was enacted after World War II to protect Jews and other minorities from neo-Nazi propaganda and was only recently extended to gays, was never intended to stifle open discussion of homosexuality or restrict a pastor's right to preach. . . .

Thanks to How Apealing for the pointer.

UPDATE: Just to make clear, this is good news but not great news; great news would be if these sorts of "hate speech" laws were repealed altogether. A summary of the decision by the Swedish-speaking blogger Stefan Geens suggests that the decision would provide a good deal of protection for discussion about homosexuality, including denunciation of homosexuality -- but not complete protection, and vaguely defined incomplete protection at that. Still, things look better for free speech in Sweden than they did before this decision. (Thanks to reader Dennis Josefsson for the pointer to Stefan Geens' site.)

Related Posts (on one page):

  1. Punishment for Anti-Gay Speech:
  2. Good Free Speech News from Sweden:
A Very Funny Bit of Work

by Gerard van der Leun (American Digest), based on one of my favorite poems, Kipling's Law of the Jungle:

NOW this is the Law of the Blogger - as old and as true as the sky; And the blogger that keeps it may prosper, but the blogger that breaks it must die.

As the visits that pump up the hit count, the Law runneth forward and back -- For the strength of the Blogs is the Blogger that never cuts anyone slack.

Blog daily from news-tip and hat-tip; blog long, but blog not too deep; And remember the Pundit's for linking, and forget not that he has to sleep.

The new blog may free flame the Jordan, but, Cub, when thy archives have grown, Remember the Big Blogs are hunters -- go forth and get scoops of thine own. . . .

For the rest, go here. Note that "URL" is indeed sometimes pronounced "earl," as it needs to be for two of the stanzas to work.

Colorado Media Coverage of Ward Churchill

My latest media column for the Rocky Mountain News examines Colorado media coverage of the Ward Churchill affair. Although local coverage has not been perfect, it is far ahead of the national press in reporting evidence of academic fraud by Churchill, and of Churchill's repeated urging of Americans to commit violent crimes against other Americans.

OT95 Law Clerk Sketch: Tony Mauro has found something amusing in the files of former Supreme Court Justice Harry Blackmun: the program from the Supreme Court's October Term 1995 law clerk show. As Mauro writes, "[e]very June, with the justices in the audience, the clerks put on skits and sing songs, some of which boldly poke fun at their bosses." The program Mauro found includes the lyrics to at least one song, sung to the tune of the Beatles' "Eleanor Rigby":
Ah, look at all the strange appointments.
Ah, look at all the strange appointments.

Ruth Bader Ginsburg,
Strolls into work every day 'bout a quarter past three.
Thinks we don't see.

Stephen G. Breyer,
Gave 50 speeches last year.
If they asked him, he came.
They were all the same.

Crazy nominations.
Where did they all come from?
Senate confirmations.
What were we thinking of?

David H. Souter.
Cutting and pasting all night.
When there's nobody there.
He doesn't care.
Look at him working.
Writing those endless dissents that nobody will heed.
And no one can read.

Sandra O'Connor.
Votes with the left, then the right.
So that nobody knows
How the wind blows.

Nino Scalia
No one will join his invective and hyperbole.
Except for CT [Clarence Thomas].
To borrow Glenn's line: Heh.

Barney Frank & Eason Jordan: I think Kaus has it right:
It should also be noted that the controversy was kept alive not just by blogs, but by the refusal of a relatively liberal Democrat, Barney Frank, to sweep it under the rug in gentlemanly fashion.
Even more, Frank's calling Jordan on the spot while on the same panel was a crucial part of the story. Very honorable behavior all around.

Related Posts (on one page):

  1. Barney Frank & Eason Jordan:
  2. Eason Jordan Quits,

Friday, February 11, 2005

Summers Speech; Nancy Hopkins:

Some interesting background reading on Nancy Hopkins, the MIT scientist who helped create a brouhaha by walking out of Larry Summers' controversial speech on women in science ["When he started talking about innate differences in aptitude between men and women, I just couldn't breathe because this kind of bias makes me physically ill."] It's actually funny, in a tragic-comic kind of way, that a "scientific" institution like MIT would appoint a complainant to investigate the validity of her own complaint, and not demand any actual data to back up the results of the investigation.

UPDATE: Cathy Young sends along a link to her excellent Salon piece on the MIT controversy, and the debate over women in science more generally.

What is it with elite universities and internal investigations with preconceived results? (Via Instapundit)

Eason Jordan Quits,

The Corner (National Review Online) reports, pointing to an AP story that says:

CNN chief news executive Eason Jordan quit Friday amidst a furor over remarks he made in Switzerland last month about journalists killed by the U.S. military in Iraq.

Jordan said he was quitting to avoid CNN being "unfairly tarnished" by the controversy. . . .

If you haven't been following the story, go to InstaPundit, search for Eason, and look at each of the post — Glenn Reynolds has been one of the people who has helped keep the story alive.

This looks like a classic example of the power of blogging: Though many of Jordan's critics have been politicians and journalists, as best I can tell the mainstream media initially paid little attention to the story. In an earlier era, it might have died from lack of attention, if it weren't for the bloggers' talking about the story, and making it hard for people to ignore.

Related Posts (on one page):

  1. Barney Frank & Eason Jordan:
  2. Eason Jordan Quits,
Judicial Confirmation Program at AEI:

On Monday, I will be participating on a panel at the American Enterprise Institute to discuss John Lott's new paper, "The Judicial Confirmation Process: The Difficulty in Being Smart." You can download a copy of the paper here.

The program is at 9:00 a.m., and we have learned that C-Span intends to braodcast it if you can't make it in person (I'm not sure if they will broadcast it live or later on tape).

Anti-Same-Sex-Marriage Being Used to Challenge Non-Marriage Benefits:

Michigan's recently enacted anti-same-sex-marriage amendment reads:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

According to the Detroit News (Oct. 27, 2004), the amendment's chief supporters said it was just about marriage, not about domestic partner benefits and the like:

"Same-sex marriage is illegal (in Michigan) and will remain against the law after the election," said [Dana House, political direct for the anti-proposition forces]. "However, there are some folk who seem to want to distract the voters by talking about same-sex marriage so that they can take away domestic partner benefits and actually change the definition of marriage. Our job is to alert the voters to that risk. It will have the same affect on heterosexual couples." . . .

Citizens for the Protection of Marriage, the group that ram-rodded the petition drive to get the issue on the ballot, said it is not focused on benefits or discrimination. Members don't want same-sex marriages validated here like judges and politicians have done in Massachusetts and California.

"This is about defining marriage of one man and one woman," said Kristina Hemphill, of Southfield, a communications director for Citizens for the Protection of Marriage. As for people losing benefits, "nothing that's on the books is going to change. We continue to confuse this issue by bringing in speculation."

However, now the amendment is in fact being used to challenge domestic partner benefits:

As opponents of Proposal 2 predicted, the constitutional amendment approved by Michigan voters last November to define marriage is being used to challenge same-sex benefits provided to partners of gay public employees. . . .

The Ann Arbor-based Thomas More Law Center and 17 taxpayers are asking the Michigan Court of Appeals to stop the local school district from providing medical benefits to gay couples. In court papers, they cite the November constitutional amendment known as Proposal 2, which says the union between a man and a woman "shall be the only agreement recognized as a marriage or similar union for any purpose." The lawsuit was filed in 2003, before Proposal 2 passed, but the Thomas More Law Center wants the constitutional amendment considered in its appeal. . . .

Now it may well be that the More Center will lose, and the amendment will be interpreted the way Ms. Hemphill predicted. And it may well be that the agenda of the More Center is indeed broader than that of Citizens for the Protection of Marriage. Nonetheless, the language of Amendment 2 is potentially broad enough that it may well have the effect the More Center urges, and that Citizens for the Protection of Marriage pooh-poohed. So just a reminder that voters and other observers need to look at the text of the provision, and not be lulled by the disclaimers by the provision's backers.

For an example of a similar phenomenon, but from the opposite directions, see my "Phyllis Schlafly Said It Would Be Like This" post.

Thanks to my fellow lawprof Michael Froomkin for the pointer to this, and to Don Herzog (Left2Right) for the post to which Michael pointed me, and which this post in some measure echoes.

Eric Alterman Responds:

Reason's Hit & Run posts Eric Alterman's response to Cathy Young, regarding her criticisms of his "the suffering of . . . bigots" column, and Cathy Young's rejoinder. I find Cathy Young's statements much more persuasive. As she points out:

After all, the ceremony that the British Muslim Council boycotted was not meant to honor (say) the memory of fallen Israeli soldiers, or even of the Israeli victims of Palestinian terrorism; it was commemorating the victims of the Holocaust. It is those victims whom Alterman says Muslims have the moral right to view the way gays would view dead "gay-bashing bigots" (how else does one interpret his analogy?) -- simply because those victims were Jews, just like the Israelis and their supporters.

Related Posts (on one page):

  1. Eric Alterman Responds:
  2. Are Holocaust Victims Tantamount to Bigots?
Slate Corrections:

To its credit, Slate today published, in its Corrections e-column, the following:

A "Bushism of the Day" item posted on Feb, 10 reported that President Bush said on Sept. 23, 2004, "Listen, the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate." Though this is the version reported in several transcripts, an audiotape of the speech makes clear that Bush's more coherent actual words were, "Listen, the other day I was asked about the NIE, which is a National Intelligence Estimate."

It's to Slate's credit that it promptly published the correction. Yet I wonder: Given the way Slate is organized — and the same goes for some other online journals — wouldn't it be better to post a correction in the same e-column (which is to say under the rubric on the front screen) as the error appeared?

The front screen naturally doesn't indicate exactly what the corrections are. I suspect that many readers don't normally read the Corrections section. So as a result many readers who do habitually read the Bushisms column, and who read yesterday's column, will never learn that what they were told yesterday wasn't actually so.

Am I mistaken? I realize that newspaper tradition is to segregate corrections in a special corrections section. I'm not sure that's right even for print newspapers, but does it really make sense online? Or is it the case that lots of people do read the Corrections section, and that the best way to reach Bushism readers — again, to un-mislead them — is through an entry in Corrections, rather than a new entry in Bushisms?

Rubbing It In:

I live in what one might call Greater Hollywood — an area that overlaps only slightly with the actual neighborhood called Hollywood, but that in fact houses many Hollywoodchiks. Driving to school this morning, I saw this billboard on Sunset, right near the West Hollywood / Beverly Hills border:

Apparently the plan is also to have such a billboard outside the Academy Awards venue. I know nothing about the group that's putting these out, and I can't say that the billboards constitute High-Minded Productive Political Discourse. But I can't deny being amused . . . .

Related Posts (on one page):

  1. Actors and Politics:
  2. Rubbing It In:
Bankruptcy Reform Hearing:

Yesterday, the Senate Judicary Committee held a hearing on the Bankruptcy Reform Legislation that has been introduced yet again. The legislation has been kicking around for 7-8 years now, and this is the Fourth Congress that has considered it. Everytime it has been voted on it has passed both houses of Congress by overwhelming majorities, only to get hung on various procedural or peripheral issues. Copies of the written testimony are available here. I have lost track of how many times I have testified on this bill, but I think this was the fifth.

There is an old lawyers' joke that sums up yesterday's hearing, about the guy who murders his parents and then pleads for mercy from the court because he is an orphan. Much of the hearing focused on a similar idea--after blocking reform for 7 years, now opponents charge that the problem with the bill is that "time has passed it by" and the world has changed so much since the bill was first written. (See the opening lines of this testimony for instance).

The irony is obvious, but also seems largely irrelevant. The fraud and abuse that is endemic to the consumer bankruptcy system that the legislation was originally written address unquestionably is still there. The FBI estimates, for instance, that at 10% of consumer bankruptcy cases involve fraud:

Bankruptcy fraud schemes include the hiding of assets, false statements, multiple filings, forged petitions and petition mills that crank out phony information. Two-thirds of all bankruptcy fraud involves hidden assets.

Similarly, the best estimates remain that approximately 10% of bankruptcy filers are high-income filers who could repay a substantial portion of their unsecured debt in bankruptcy if they went into a chapter 13 repayment plan, but instead file chapter 7 and pay nothing at all.

In addition, other abuses that the legislation would prevent, have continued unabated during the past 7 years. For instance, it has been reported that O.J. Simpson bought a new house in Florida in order to take advantage of Florida's unlimited homestead exemption and to avoid payment of his civil judgment. Had the bankruptcy reform legislation been enacted years ago, however, he would not have been able to do that, because the legislation specifically imposes a waiting period to prevent exactly this sort of forum-shopping from occurring. Similarly, as child-support collection expert Philip Strauss testified yesterday, the bankruptcy code has continued to interfere with the efforts of divorced women and children to collect child support and alimony payments. It is the continued failure to enact the bankruptcy reform legislation, of course, that has allowed these problems to persist. And, of course, the continued failure to enact reform means that these problems will continue to multiply.

Now, none of these problems of fraud or abuse have solved themselves in the past 7 years that the legislation has been pending. Much was made at the hearing of possible additional new problems and abuses that have appeared on the scene during the past several years, especially arising from bankruptcy-related corporate scandals such as Enron and WorldCom. It may be that Congress wants to draft new legislation to deal with new forms of fraud and abuse.

But I can't see that the fact that new forms of fraud and abuse have appeared on the scene is any reason why we should continue to turn a blind eye to the old-fashioned forms of fraud and abuse that the legislation targets, such as repeat filings, concealing assets, and discharging debts that you could at least pay part of. Seriously, how many divorced women have to be sandbagged by the bankruptcy system in collecting the obligations owed them by their husbands, or how many O.J. situations do we have to sit through before we say "enough is enough"? Again, according to the FBI, "[In] 1995 alone, almost 250 fraudulent bankruptcies were filed every day." In 1995, there were 874,642 consumer bankruptcies filed annually. Last year there were 1,584,170, or a little less than double. If the FBI's figures are correct (and no one has offered any different estimate), that now means that there are about 434 fraudulent filings every day, and roughly the same number of filings by those who would be affected by the means-testing provisions in the bill and would be required to repay what they can of their debt in order to be eligible for a discharge.

The purpose of the bankruptcy laws should be to preserve a fresh start for honest, unfortunate debtors who need it; but not became a haven for fraud and abuse for those who are gaming the system. Turning a blind eye to bankruptcy fraud and abuse doesn't help anyone--either honest filers, creditors, small businesses, or those who are left paying the bills to make up for those who ditch their financial obligations by opportunistically filing bankruptcy. In fact, by decreasing the public confidence in the integrity and honest of the bankruptcy system and bankruptcy filers, in the long run ignoring rampant fraud and abuse will undermine public support for the bankruptcy system, hurting the honest, unfortunate debtors the system is set up to help. The vast majority of bankruptcy filers are honest, unfortunate people who have gotten in a bad situation and need a hand up. But we know that there is substantial undetected fraud and abuse and to simply ignore it is folly. Surely no one would argue that we shouldn't try to prevent fraud in the welfare, Medicare, or Social Security system--so why would we want to simply ignore the rampant fraud and abuse in the bankruptcy system?

There are a myriad of other issues in the bankruptcy reform legislation that I will plan to touch on in additional posts over the next few days, including the new argument from yesterday's hearing that some 50% of consumer bankruptcy filings are health-related (lots of problems with that figure). But I wanted to pass along initial reactions to yesterday's hearing. Right now though I need to catch up on everything else that I have had to set aside all week to get ready for the hearing yesterday.

More on Restatements Yesterday a reader sent me a copy of this satire on the Restatements that appeared in the 1994 volume of the Yale Law Journal (104 Yale L.J. 707) entitled, Restatement of Love by Gretchen Craft Rubin and Jamie G. Heller. Here is how it opens:

Custom has long been the authority in matters of love. Men and women have turned almost unthinkingly to tradition and prevailing social norms for guidance in the tender passion. Yet the Bar of late has come to acknowledge that the lack of codification in this realm has left a rent in the otherwise seamless web of the law. To address this gap, the Reporters have set forth the Restatement of Love.

No doubt some will question the departure from tradition that the Restatement of Love represents. Although the legal rules pertaining to marriage, divorce, and estates have been well established, the law's application to a relationship's early stages has hitherto been largely unexplored. Romantic relationships have been presumed unsusceptible to a structure of rules, perhaps because of the widespread belief that love is the most intimate and idiosyncratic of human emotions. The Restatement of Love, however, is premised on the view that love, like all other aspects of human interaction, can be subjected profitably to legal analysis.

Scope of this Restatement. Currently, matters of the heart are governed by a complicated network of unwritten norms that specify the parties' rights and obligations. These mores, though subject to extensive discussion in almost every field of human endeavor, ranging from art to literature to the social sciences, have yet to be put to the rigor of legal scrutiny. The Restatement undertakes this task. It codifies the underlying principles of love and, where appropriate, draws on established legal doctrines from other fields. The claim has been made that "[t]he heart has its reasons, of which reason knows nothing." By distilling a universal, reasoned framework for relations of love, the Restatement will refute this widespread, but mistaken, view.
I also received this amusing response to my earlier post on the Questionable Value of Restatements:

You gotta get out more. Spend some time in states where the judges are political hacks elected to six year terms and the supreme court justices are called the seven potted geraniums. Make common law? These guys don't even know when to pull over at a police stop! Link

I am thrilled we have the Restatements so we have books with sufficent heft to hit the judges over the head with.
[I found almost as interesting the signature in this reader's email:

This information was added
automatically by Mozilla.
It is not intended
to be a signature.
I am not your lawyer.
You are not my client.]
This reminds me of a catty remark I used to hear when at the University of Chicago: Would you really want commercial law made by Cook County Circuit Court judges? Now, I used to be a prosecutor in Cook County, so I know that this attitude is based on fact. Many circuit court judges are hacks or, when I was there during Operation Greylord, worse.

But this accusation assumes that state judges are worse today in this regard than they used to be, and I know of no reason to believe this is so. Moreover, legal rules are largely made by appellate courts not trial judges and I think that, whatever their weaknesses, state appellate court judges are not incompetent. More importantly, confronting myriad cases with a duty to dispose of them provides them with pertinant knowledge of the deficiencies of previous rules and the interest to do something about it. And not evey judge need be an innovator for innovation to emerge from a common law system. (Most are not innovators, and we should be grateful for that.) My concern remains that an authority like the Restatement inhibits this evolutionary process--though I could be wrong about this.

Update: To read the story of Operation Greylord you have to scroll well down into the web page. But it is a pretty good summary of what went down.

Thursday, February 10, 2005

The Great Jazz Organist Jimmy Smith has passed away, at the age of 79. Smith almost singlehandedly reinvented the jazz organ in the 1950s, and has left an indelible influence on every jazz organist since then. My own tastes in the jazz organ tend to run more in the direction of Larry Young, but there is an undeniable freshness and energy in Smith's early recordings like Groovin' at Smalls' Paradise that is pretty remarkable.
LSAT Logical Reasoning:

A friend of mine is planning to take the LSAT, and I'd like to get her a book that can help her prepare for the Logical Reasoning section. That's the only section I'm interested in right now. Can anyone recommend a book that's worth trying on this, or tell me to stay away from certain books?

Other readers, I'm sure, would also find this helpful, so I've enabled comments; please post your recommendations there. Thanks!

Question About Felon Disenfranchisement Laws:

Some posts on a lawprofs' discussion list led me get a copy of Behrens, Uggen & Manza, "Ballot Manipulation and the 'Menace of Negro Domination': Racial Threat and Felon Disenfranchisement in the United States, 1850-2002," which claims that many laws barring felons and ex-felons from voting were motivated by a desire to diminish the number of black voters.

It may well be the case that this was indeed the motivation behind some such laws; I'm told there's pretty solid evidence for that. Nonetheless, I was wondering about some particular items that the articles cited, and I wonder whether there are any experts on antebellum election laws in the South who might help me with this.

The article lists, for each state, the year in which the state's first felon disenfranchisement law was supposedly passed. Many such laws — for instance, in Delaware, Kentucky, Louisiana, Maryland, and Virginia (for the rest of this post I focus only on the slave states, chiefly because I lacked the time to check for all states) — were first enacted before the Civil War. Since at the time blacks could be and were often disenfranchised simply based on their race, presumably the disenfranchisement of felons didn't have to do with race.

According to the article, many the laws were indeed enacted in the South right after the Civil War, so that's consistent with the theory that they were motivated by a desire to disenfranchise blacks. But the article also has an intriguing footnote alongside many such laws, stating that "The first state constitution gave the state legislature the power to restrict suffrage for criminal activity."

According to the article, Alabama, Florida, Missouri, and Texas (of the slave states) fall into this category. The article seems to erroneously omit such a footnote as to Mississippi, which it turns out also fell into this category (see Miss. Const. 1817, art. VI, sec. 5). It also doesn't note that Tennessee had a similar provision in its 1834 Constitution, though not in its original constitution. It also doesn't note that the South Carolina Constitution of 1865, which explicitly disqualified blacks as voters, also gave the legislature the power to "impose disqualification to vote as a punishment for crime." This suggests that the drafters of that particular constitution saw disqualification of felons as valuable itself, independently of its effect on blacks voters. (I understand why the authors of the article may have omitted this, but it still seems worth noting.)

Now here is what puzzles me: The earlier Alabama, Florida, Mississippi, and Texas constitutions not only gave the legislature such power, but actually seemed to order the legislature to deny ex-felons the vote: "Laws shall be made by the general assembly to exclude from office, and from suffrage, those who shall have been, or may thereafter be, convicted of bribery, perjury, forgery, or other high crime or misdemeanor (Fla. Const. 1838, art. VI, sec. 13; see also Alabama Const. 1819, art. VI, sec. 5; Miss. Const. 1817, art. VI, sec. 5; Texas Const. 1845, art. VII, sec. 4.) Only the Missouri Constitution of 1820 (art. III, sec. 14) and the Tennessee Constitution of 1834 (art. IV, sec. 2) spoke of legislative discretion ("The general assembly shall have power to exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime," to quote the Missouri provision).

So my main question: Did the Alabama, Florida, Mississippi, and Texas legislatures indeed fail to comply with the constitutional command until after the Civil War, and did the Missouri and Tennessee legislatures fail to exercise their powers?

And a supplementary question: The 1835 amendments to the North Carolina Constitution, sec. 4, part Four, say that the legislature "shall not have power to pass any private law . . . to restore to the rights of citizenship, any person convicted of an infamous crime; but shall have power to pass general laws regulating the same." This suggests that felons might have lost the vote by having more generally lost the rights of citizenship, even before the Civil War (the Behrens et al. article lists the first felon disenfranchisement law as 1876, but I wonder whether this might therefore be mistaken). State v. Surles, 230 N.C. 272 (1949), notes that in 1854 the North Carolina legislature in fact passed a law providing for a procedure for restoring the rights of citizenship, but doesn't specifically discuss the right to vote. Might North Carolina have in fact disqualified felons from voting before the Civil War?

These turn out to be important questions to the debate about whether some, many, or most felon disenfranchisement laws were originally intended to disproportionately burden blacks, since such a motivation might render them unconstitutional. If you know about antebellum election laws, and thus know the answers to these questions, please e-mail me at volokh at (I'm not planning to blog on the entirely separate question of whether felon disenfranchisement is good policy; right now, I'm just curious about when the statutes were first enacted in the states I identify.)

UPDATE: The post originally said that the 1865 South Carolina was a proposed constitution; it appears, though, that it was indeed enacted, though without popular ratification.

Speaking on Slippery Slopes at UCLA Law School Monday:

I'm speaking on Slippery Slopes at UCLA Law School Monday, February 14, at 4:30 in room 1430; many thanks to the Federalist Society for organizing this, and to my colleague Mark Greenberg for agreeing to comment on the talk.

Everyone is welcome to attend, though note that parking at UCLA costs $7.

UPDATE: I originally wrongly said Monday the 15th; the talk is Monday the 14th, which is to say this coming Monday.

Bushism of the Day:

Slate's Bushism of the Day for today is:

"Listen, the other day I was asked about the National Intelligence Estimate, which is a National Intelligence Estimate." — Washington, D.C., Sep. 23, 2004

Ha ha ha. That President of ours, he's such a doofus. Why would he say "about the National Intelligence Estimate, which is a National Intelligence Estimate"? Hard to believe, but there it is. Or, wait a minute, maybe because it's hard to believe, we should double-check before believing it, no? That is, unless we're so wedded to the "Bush Talks Funny" meme that we've relaxed our normal skepticism and journalistic caution.

Fortunately, reader Jacob Kaufman's skepticism and caution hadn't relaxed, so he found the White House transcript (remember, Slate's Bushism of the Day column never includes pointers to the transcripts). That site happens to have the audio. And the audio, at a little after 30:54, shows that Bush said:

Listen, the other day I was asked about the NIE, which is a National Intelligence Estimate.

Yup, that's right. President Bush used the abbreviation, and then explained what the abbreviation meant. The official transcript erroneously spelled out the abbreviation, though it rendered it in all caps, which — together with the improbability of the President's just saying "the National Intelligence Estimate, which is the National Intelligence Estimate" — might have led a cautious journalist to check into it:

Listen, the other day I was asked about the NATIONAL INTELLIGENCE ESTIMATE, which is a National Intelligence Estimate.

A cautious journalist might also have checked what other sources say. A quick LEXIS search for "Listen, the other day I was asked about the" revealed 10 references, of which 8 contained the term "NIE," and 2 contained "NATIONAL INTELLIGENCE ESTIMATE" (again, in all caps). But apparently the author of the Bushisms column didn't do this check; if he had, then maybe he would have realized that he should try to find the audio, which would have settled the matter.

As I've said before, part of the problem with the Bushisms column is that they often fault the President for things that aren't much worth faulting. But the broader problem is that once a journalist gets into the mindset of "Let me catch Bush misspeaking," it's very easy to start seeing errors where no errors exist. Instead of the normal "Someone says Bush erred, so let's investigate this skeptically" view that journalists should have, the author falls into the habit of assuming that all claimed Bush misstatements are in fact misstatements. And the consequence is screw-ups like this. Shouldn't we expect better from the editor of a leading magazine?

UPDATE: The item is now gone from the Slate table of contents, and its text has been blanked out on the original page; it's to Slate's credit that they so promptly removed the error. I assume Slate will also post another item explicitly acknowledging the error, so that people who read and understandably believed the original item could learn that they'd been misinformed.

It seems to me that this should go both in Slate's Corrections column and as a separate Bushism of the Day item: I take it that many readers who read Bushisms don't regularly look at the Corrections, but will look at the next Bushisms entry. In any event, I take it that Slate will indeed publish an official correction.

Lynne Stewart Convicted: The Associated Press reports:
  A veteran civil rights lawyer was convicted Thursday of crossing the line by smuggling messages of violence from one of her jailed clients - a radical Egyptian sheik - to his terrorist disciples on the outside.
  The jury had deliberated 13 days over the past month before convicting Lynne Stewart, 65, a firebrand, left-wing activist known for representing radicals and revolutionaries in her 30 years on the New York legal scene.
  Stewart faces up to 20 years in prison on charges that include conspiracy, giving material support to terrorists and defrauding the U.S. government.
  Minutes before the verdict was read, Stewart said she felt "nervous. I'm scared, worried." When she heard the pronouncement, Stewart began shaking her head and wiping her eyes. The courtroom was filled with her supporters, who gasped.
(Hat tip: Howard)
The Future of Legal Scholarship?: News that some of the top law reviews are turning to shorter articles makes me wonder about the future of legal scholarship — and in particular, how the combination of blogs, SSRN, and shorter articles might work together.

  Here's one vision of the future. In a decade or two, articles published in law reviews will average about 30-40 pages in length. The "law review version" of the article will be the condensed core of the argument, with relatively few footnotes. The goal of the "law review version" of the article will be to present a relatively brief and highly readable version of the argument for a broad audience — sort of like articles in the Green Bag, but a bit longer. This is the version that will go into print and be found in the stacks at the library.

  Second, each article will also have an associated website that contains other resources relating to the article and its argument. The website could be the law review's, or SSRN, or perhaps a blog. Either way, the website would contain an extensive biblography, a helpful discussion of background materials, and any other materials that a researcher wishing to learn more might find helpful. A comment section on the website might be available as well, allowing individuals to leave comments about the article and carry on a discussion of its merits.

  It seems to me that this would be a major improvement over the existing approach of legal scholarship. The Internet allows authors to bifurcate their scholarship into condensed and more readable versions for publication and more extensive versions available online for those interested in knowing more. Law reviews could focus on publishing the condensed and readable versions, while websites containing additional materials could be handled separately.

  Your thoughts? I have enabled comments.

New Harvard Law Review Policy on Article Length: Acccording to an e-mail I just received in my inbox, the Harvard Law Review has adopted a new policy on the length of articles it will publish:
  The Harvard Law Review will give preference to articles under 25,000 words in length — the equivalent of 50 law review pages — including text and footnotes. The Review will not publish articles exceeding 35,000 words — the equivalent of 70-75 law review pages — except in extraordinary circumstances.
  Although academic publications from a range of other disciplines regularly use length limitations, we are aware that we are abruptly introducing a constraint to which the legal academy is unaccustomed. Not surprisingly, then, we anticipate growing pains and acknowledge that our approach runs certain risks. Still, we hope the policy we announce today will play a modest role in reversing a trend that has cost legal scholarship dearly. . . .
  We encourage contributors who have submitted articles that exceed the new length limitations to resubmit abbreviated versions of their articles. We are sorry for the inconvenience this mid-year change will cause and the additional work it will surely require. Please understand that these policies, however burdensome, are intended to enhance legal scholarship in the long run. Indeed, the Review conceives of this new policy as a modest first step in a longer process toward substantially shorter articles.
  Fascinating. I don't know how many authors will rewrite their articles just to suit the preferences of the Harvard Law Review — the HLR accepts only a small handful of pieces by non-HLS faculty every year, so serious consideration is a longshot for any individual author — but it will be interesting to see if other law reviews also supplement the recent statement of principles with more explicit length policies. Is this the beginning of something big?

  I have enabled comments.

  UPDATE: Micah Schwartzman notes that the Virginia Law Review is ahead of the game; it adopted the following policy last year:
We strongly prefer Articles under 20,000 words (including footnotes). We will publish manuscripts over 30,000 words only under exceptional circumstances.
More on the Virginia Law Review policy here.

ANOTHER UPDATE: As a commenter points out, the Columbia Law Review has adopted the following policy:
Effective February 28, 2005, the Columbia Law Review will no longer review nor publish articles or essays in excess of 37,000 words in length (including text and footnotes; measured by Microsoft Word's word count feature), barring exceptional circumstances. In addition, we will give preference to articles and essays submitted under 32,000 words in length.

Liberty Magazine: I just started reading the March issue of Liberty. Unlike Reason, which is a libertarian magazine aimed at nonlibertarian readers, Liberty is primarily aimed at libertarian readers. As a result, you can read articles on subjects in Liberty that you can find no where else. For example, only here can you read articles about the internal workings of the ill-fated Libertarian Party, and I can tell you that they are often highly critical. (My only interest in this subject is to confirm my opinion that the perpetuation of the Libertarian Party is a very bad idea.)

The March issue contains a very interesting article by Alan Ebenstein on the degree to which F.A. Hayek himself wrote his last book, The Fatal Conceit. The article is called "The Final Deceit" and it claims that newly available archive material strongly suggests that the published work was largely a product of its "editor" W.W. Bartley. While I have heard such speculations in the past, they are well supported here. Most intriguingly, Ebenstein says that Hayek's original manuscript was the product of years of his own effort, is quite massive, and could be published in its own right. That I would very much like to see.

The March issue also has an engaging article by Bruce Ramsey about how he went from a gun control supporter to someone who wants to protect gun rights.

I cannot link to articles from Liberty as they are not available on line. But if you have libertarian inclinations, you may want to try it out. Many libertarians will find much to disagree with. That is part of the point. Beyond a commitment to certain principles, libertarians do not agree about everything and Liberty explores these disagreements in a way that other venues (apart from blogs, of course) do not. Subscription information (and a very out of date archive) is available here.

Update: Thanks to Dennis Josefsson, an alert and speedy VC reader, I now know that portions of Liberty ARE available on line here. Though the Ramsey article is not available, I have updated the original post to include a link to the Ebenstein piece. I still recommend a subscription. I am off now to Duke.

New Yorker Article on Legal Status of Detainees: The New Yorker has a very interesting article online from its Feb 14th issue on "extraordinary renditions" and some of the pracical consequences of the uncertain legal status of suspected Al Qaeda detainees. The article is not without its own particular perspective, but it's still pretty interesting. (Hat Tip: Phil Carter)

Wednesday, February 9, 2005

Infantilizing 20-Year-Olds:

An Oklahoma legislator is proposing this bill (see here for a news story); the new provision is italicized:

Section 1111. A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator [the spousal rape ban is in another section -EV] . . . under any of the following circumstances:

1. Where the victim is under sixteen (16) years of age;

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;

4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;

5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;

6. Where the victim submits to sexual intercourse under the [fraudulently induced] belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief . . .

7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or

8. Where the victim is at least sixteen (16) years of age and is less than eighteen (18) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; and

9. Where the victim is an undergraduate student under twenty-one (21) years of age attending any college or university in this state or the victim is attending any public or private secondary school in this state, regardless of the person's age, and engages in sexual intercourse with a person who is an employee of the same college, university or school system unless the two persons were legally married prior to enrollment or employment in such college, university or school. . . . .

So it would be a crime, for instance, for (1) a university professor, (2) a staff member, (3) a student (undergraduate or graduate) who works as a research assistant or a teaching assistant, (4) a student who works in a university cafeteria to have sex with a 20-year-old undergraduate man or a woman. These are 20-year-olds, folks, in a state where it's usually perfectly legal to have sex with a 16-year-old.

Now perhaps this was just a drafting error, though a huge drafting error. Maybe they're just looking to go after those awful lecherous professors who prey on students. That is to say "prey" on adult, 20-year-old students, who are legally grownups, and who are constitutionally entitled to make their own decisions about whom to sleep with (see Lawrence v. Texas). These are not 14-year-olds. They aren't mental patients. They aren't drugged or unconscious. They are old enough to fight in a war. They are old enough to marry without anyone's permission. And the state of Oklahoma is seeking to "protect" themselves against their own decisions about whom to have sex with.

Now I should say that I think schools can quite properly prohibit professors from sleeping with their current students, on threat of administrative sanction or even dismissal. If I were an administrator, I wouldn't trust a professor's evaluations of his own lovers. Such restrictions are legitimate for employers to impose on their employees, though there are also costs when the restrictions are too broad. (I wouldn't, for instance, prohibit all sex that might possibly indirectly cause a conflict of interest — for instance on the theory that this student, while not in your class, may one day take a class from you — or that might in some situations involve coercion. That, I think, is too much of a burden on consenting adult employees' and students' behavior, even if it does help avoid some problems for the university and for some other students.)

But all this is in any event no reason to make sex between professors and students criminal. And it certainly is no reason to criminalize sex between professors and students who are in completely different classes and even completely different departments. Twenty-year-olds are not foolish children. If they're fools, they're fools like the rest of us can be fools, and are entitled to the costs and benefits of their own folly.

(No, I've never had an affair with a student, whether or not my own, while I was a professor, even before I was married.)

Thanks to reader Sydney Henderson for the pointer.

Doesn't Seem Quite Fair:

I have in the past criticized law schools' attempts to exclude military recruiters from campus. But I have to also criticize this reaction by a federal district judge (thanks to How Appealing for the pointer):

An Alabama federal judge has told Yale Law School he won't accept its graduates for clerkships because the school blocks military recruiters from campus. . . .

Is it really fair to take the school's actions out on innocent Yale law students? Yes, I realize that the school's actions might themselves be seen as hurting innocent Yale law students to send a message — but that doesn't make it right, nor does it make Yale students responsible for what the law school does.

As unfairnesses go, it's hardly the worst: The students will doubtless have other places to go, and no-one is entitled to a clerkship job. Nor is there anything illegal or unconstitutional about this; federal judges are entitled to discriminate based on the law school an applicant went to (and often do so) unless the discrimination is utterly irrational, and I suppose this probably passes the minimum rationality test. Still, it seems to me that federal judges should strive for a higher level of fairness to applicants than the minimum required by the rational basis test — and should try hard to distinguish the guilty parties from the innocent.

UPDATE: My colleague Stephen Bainbridge has a somewhat different take.

The Law of Atlas Shrugged:

In honor of the 100th anniversary of Ayn Rand's birth, I thought I'd reprise something I posted in the very early days of this blog (though I realize the audience for the following is limited) . . . .

Where Is John Galt? Our tour through the Law of Atlas Shrugged begins with this question, which was the heart of the noteworthy case Temple v. John Galt Co.[1] The Temples (note the antirational religious connection) sued the John Galt Co., but failed in their attempts to serve process by mail. Had they been better read, they would have realized the intrepid hero was harder to find than that. Suffice it to say that, in the ringing words of the Court of Appeals, "the trial court filed a judgment entry, granting John Galt's motion and vacating the default judgment."

But this just returns us to the more familiar Who Is John Galt? Is it indeed the John Galt Co.? Or is it John Galt Associates, of Pakwood Industries v. John Galt Associates?[2] Here, John Galt, a commercial landlord who refused to let tenant Pakwood assign a commercial lease, won again. Galt's refusal to assign, the court said, was "reasonable." (But of course.) Pakwood should consider it lucky that Galt agreed to go to court, rather than just dynamiting the whole property. Whoops, wrong book.

Who else might John Galt be? Surely not John Galt, Ltd. of Assistant United States Trustee v. John Galt, Ltd.[3] or John Galt Energy, Inc. of In re John Galt Energy, Inc.[4] If there's one thing we know, it's that John Galt would never flee his contractual obligations by declaring bankruptcy.

Could he be the plaintiff in Galt v. City of Sparks?[5] The decision is a one-line order which provides only the tantalizing clue that a co-defendant was Policeman Henderson (Badge # 9516 of the City of Sparks). That John, always getting into trouble. Or perhaps the answer lies in Rolfe v. Galt,[6] where John and his wife Lorraine Galt -- how come we never heard about her? -- triumphed over a baseless personal injury lawsuit.

Curiously, I could find no appearance by the rest of John's merry band in the published cases, except for one shadowy figure: none other than Ragnar Danneskjold. Danneskjold v. Brown[7] acknowledges that Ragnar was a veteran (naturally), though apparently one suffering from post-traumatic stress disorder, which seems much less like the Ragnar we know and love.

Ragnar next shows up in Danneskjold v. Hausrath,[8] the case that first revealed this fascinating subject to your humble author, who stumbled on it when doing research for an article he was writing. Here Danneskjold is found to be an inmate at Attica State Prison, suing to challenge, of all things, the Prison's failure to pay him minimum wage for certain work that he was doing. Such a suit may at first sound distinctly unobjectivist, but bear in mind that Danneskjold is demanding a minimum wage from the government, not a private business. (Danneskjold's crime of conviction is not indicated, but since he's being kept in state prison, it probably doesn't involve the high seas -- or could there be an inter-governmental conspiracy afoot?)

Finally, we return to the questions we started with: Where Is John Galt? Who Is John Galt? And a new one, What Ever Became of John Galt?

Here is where John's story draws to a close; for though he emerged a resounding winner from the book, everyone, even (perhaps especially) man qua man, loses in the end. But what a fitting end, as chronicled in State ex rel. Smith v. Greene.[9] "On September 14, 1970," the court explains, "Tri-State Motor Transit was struck by members of Teamsters Local 823." On September 30, "a truck, carrying explosives, owned by Tri-State Motor Transit Company and driven by Galt was struck by rifle fire and exploded. Galt was killed and his clothing, pocket book, money and personal effects, valued at $100.00 were destroyed." "[T]wo teamsters [were] subsequently convicted for the second degree murder of Galt."

Even in death Galt struck a blow for what he held most dear; for State ex rel. Smith is a case about private property. "[T]he substance of the claim here is not wrongful death," the Court said: "It is property damage." And that the "value of the property destroyed . . . was small" could make no difference: The "wrong is just as great as the wrong done to the owner of property of great value."

Property is property. Not only actual damages, but even punitive ones were available, see id. at 60, to punish those who tamper with this sacred principle. Ayn Rand couldn't have written it better herself.

[1] 1997 WL 177627 (Ohio. App.), appeal not allowed, 79 Ohio St. 3d 1491 (1997).

[2] 219 Ga. App. 527 (1995).

[3] 130 B.R. 464 (S.D. W. Va. 1989).

[4] 75 B.R. 658 (Bankr. E.D.N.Y. 1987).

[5] 848 F.2d 1242, 1988 WL 58008 (9th Cir.).

[6] 477 N.Y.S.2d 790 (App. Div. 1984).

[7] 1996 WL 695524 (Vet. App.).

[8] 82 F.3d 37 (2nd Cir. 1996).

[9] 494 S.W.2d 55 (Mo. 1973).

Don't Trust Everything You Read:

The Times (London) reported last Sunday -- thanks to Phil Carter for the pointer -- that

LAWYERS acting for J K Rowling are heading for a legal battle with the US army over a training manual that features characters similar to those in the Harry Potter books and films. . . .

The magazine, The Preventive Maintenance Monthly, includes a cartoon character called Topper, a boy wizard, who attends Mogmarts school of magic. Harry Potter, Rowling's boy wizard creation, attends the Hogwarts school of magic.

In the magazine, army officials are given a lesson from Professor Rumbledoore and his staff, a name strikingly similar to Rowling's Professor Dumbledore. Other characters in the magazine include professors McDonagal and Snappy, and a Miss Ranger. The Harry Potter books feature professors McGonagall and Snape and Hermione Granger.

I'm not sure that the similarity of names alone would constitute infringement, but it would be close, and if they also borrow the characters' character traits, then it probably would be infringement. The military has a decent fair use claim, but far from an open-and-shut one -- they seem to be using Rowling's characters to make their own point, rather than commenting on them, and this cuts substantially against their fair use argument.

Nonetheless, what struck me most about the article is this:

A spokesman for the American defence force said: "Each copy of our magazine is reviewed by our legal office.

"After reviewing this copy they judged that we were doing nothing wrong and that these characters were in parity use."

Pretty clearly it must have been "a parody use," not the nonsensical "in parity use." Maybe the spokesman jumbled this himself, but more likely the reporter mistranscribed it. Just further evidence that you can't always trust even supposedly direct quotes, especially when they talk about Judge Ito with the wet nose.

Happy 100th, Ayn Rand!

Cathy Young provides a balanced appraisal of Ms. Rand in Reason.

Tuesday, February 8, 2005

Court-Appointed Counsel: If you're interested in criminal law, don't miss Ken Lammers' latest post on his recent experience as court-appointed defense counsel.
University of California Dropping Objection to "The Dark Side of UCSB" Web Site

The Foundation for Individual Rights in Education reports the outcome of a controversy I noted a while back:

The University of California at Santa Barbara (UCSB) has abandoned an attempt to force the owner of a website called The Dark Side of UCSB from using the letters "UCSB" in his web address. UCSB threatened Mr. James Baron, the site's owner, with criminal sanctions if he did not change the site's address. The Foundation for Individual Rights in Education (FIRE) protested UCSB's unconstitutional threats, and on the very same day that UCSB received FIRE's letter, the university notified Mr. Baron that it would pursue the matter no further.

"We are relieved that UCSB has come to its senses and realized that it may not prohibit those who might criticize the university from using the university's name," remarked FIRE President David French. "UCSB twice told Mr. Baron, whose website is critical of the university, that it was a crime to use the UCSB name without the university's permission. It is simply absurd for a public university to claim that it cannot be criticized by name."

Mr. Baron created to draw public attention to what he and others see as a dangerous and lawless campus culture at UCSB. The website criticizes USCB administrators for not doing enough to change this culture. In November 2004, UCSB sent Mr. Baron two notices claiming that he had violated California law by including the letters "UCSB" in the web address, and that using the letters without permission could make him "guilty of a misdemeanor" under Section 92000 of the California Education Code. Asked about the university's actions in an article in UCSB's campus newspaper, administrator Margaret Clow claimed that the university was concerned that Internet users would believe The Dark Side of UCSB was an official UCSB website. . . .

Related Posts (on one page):

  1. University of California Dropping Objection to "The Dark Side of UCSB" Web Site
  2. University of California Trying to Restrict Speech:
Seeking a Small Favor from Someone in Glendale, California:

I was hoping that someone who lives around Glendale, California might take a photo of something in Glendale and send (or, better yet, e-mail) me the photo. If you might be willing to help me out with this, I'd be much obliged; just let me know, please, at volokh at, and I'll give you the details.

UPDATE: Reader David Reed has taken care of this; many thanks to him!

Websites That Can Read Your Mind:

Orin's post reminds me of this mind-reading card trick. Except this one really works -- it actually does read your mind. I'm a believer. It's magic, man, magic.

(This skeptical explanation is obviously a fraud, created by dry, boring rationalists who are trying to suck the mystery out of life.)

Related Posts (on one page):

  1. Websites That Can Read Your Mind:
  2. Websites That Can Read Your Mind?:
Websites That Can Read Your Mind?: Over at The Corner, Jonah Goldberg links to a site that offers a "psychic mind reader" purporting to know what 2-digit number you're thinking about.

(Click here for an explanation of how this trick works.)


Related Posts (on one page):

  1. Websites That Can Read Your Mind:
  2. Websites That Can Read Your Mind?:
More Good News for Discussion Group Moderators --

and for group blog editors (like me): The New Jersey Appellate Division has just held (Donato v. Moldow, decided on Jan. 31) that a federal statute — 47 U.S.C. sec. 230 — makes Web site operators immune from defamation liability based on items posted by users, even when the operator keeps some messages and deletes others, changes some messages, sets ground rules for the discussion, and so on. This would also mean that bloggers are immune from liability based on comments posted by others on their blogs. And I'm pretty sure that it means that group blog editors are immune from liability based on things posted by their cobloggers (not that I ever worried about my cobloggers' actions!). Of course, bloggers and others remain liable for statements that they themselves have made.

For an earlier case that foreshadowed this, and that was in fact cited by the New Jersey court, see here. There have been one or two court decisions that have taken a narrower view of 47 U.S.C. sec. 230, but the dominant approach is the one that the New Jersey court accepted.

Id. & Ibid.:

The Mommy Blawger asked me something that I'd wondered about, too: Why do legal works tend to use Id. to mean "same source as last time" rather than the Ibid. that's more common in other disciplines? I asked my brother Sasha, who is generally The Man Who Knew Too Much but in particular my Latin expert. Here's his answer:

"Id." is short for "idem," meaning "the same (man or thing)." "Ibid." is short for "ibidem," meaning "in the same (place)."

So you can find usages where "id." is for people and "ibid." is for books. For instance, see here. So I've seen things like "Jefferson, Book A" and then "id., Book B."

While that last source says "ibid." should stand in for the entire source (author + book), hereyou can see someone using "Id., ibid." to mean "The same author, in the same book." here you can see "Kant, ibid." where "id." would be inappropriate for Kant since the preceding source wasn't Kant. That's problematic (just like another old-style citation term, "op. cit.", since the reader might have to leaf through several pages to find the last time you cited Kant and see what book you were talking about),

Some (for instance, here) say that "ibid." means "EXACTLY in the same place," so you can say "ibid." for the same page of the same book, while if you're changing pages you should say "id. at 581" or similar (see here).

The bottom line, though, is that even though some disciplines use both "id." and "ibid.", and various style guides will explain the difference, there's really no reason to have both of them. Of course, the Bluebook has entirely dropped the distinction; and I read a president's introduction to an old volume of Law Reviews where he announced that they were finally dropping the "id."/"ibid." distinction which no one could really understand anymore.

Bloggers -- You May Already Have Blogging Libel Insurance,

but you might have lost it by having ads or a tipjar.

This surprised me, too, but it seems to be so. Here are the details. (Thanks to Kurt Opsahl of the Electronic Frontier Foundation for first suggesting this point, and to my wife for her advice on insurance law. Please note, though, that I'm not an insurance lawyer, though I've done a bit of research on this subject. Don't take this to the bank, and do let me know if you are an insurance lawyer and have some corrections. Consider this general speculation about the lay of the land, and not individualized legal advice.)

1. It turns out that homeowner's insurance policies, and possibly also some renter's insurance policies, generally cover libel lawsuits. That may sound odd, but the policies tend to cover both damage to your property (the main reason, I suspect, that most people buy these) and liability for unintentional harm that you inflict on others. One policy that I read, for instance, says that

If a claim is made or a suit is brought against any insured for damages because of bodily injury . . . caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent. . . .


"Bodily injury" means; . . . personal injury . . . arising out of . . . libel, slander or defamation of character; or . . . invasion of privacy.

If you have an umbrella liability policy, it may provide extra monetary coverage. Of course, you're only covered if your insurance contract does indeed specify this, explicitly or implicitly. You ought to read your policy (they are often quite readable), and pay close attention both to the body of the policy and any separate definitions section.

2. These policies generally don't cover punitive damages, but they do cover both compensatory damages and litigation defense costs. Fortunately, that's what you most want to have covered.

Libel cases are hard for plaintiffs to win, and punitive damages are especially hard to get. If you're writing on matters of public concern, and are sued for libel, you can't be liable for punitive damages unless a jury finds that you knew your statement was false or at least knew it was quite likely false but blithely published it without any investigation. So chances are you won't be on the hook for punitive damages, or even for compensatory damages.

But even if you win, you could spend huge amounts of money defending yourself. That's where the insurance can be especially handy.

3. However, these policies generally explicitly exclude liability related to "business pursuits." The exclusion and the definition of "business pursuits" may vary from policy to policy, so check yours (and again check both the homeowners' insurance and your umbrella policy, if you have it). Still, I'm told that most policies just say "business pursuits," and sometimes define them as referring to a "trade, occupation, or profession."

If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don't systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn't be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational "business pursuit"; I know of no precedents one way or the other about this.)

But if you make some money out of it, even a small amount, then in many states you probably won't be covered. In a few states (as best I can tell, Georgia, Indiana, Minnesota, Mississippi, North Carolina), even a blog that makes some money will be covered if blogging isn't your primary occupation. In Arkansas, Idaho, Louisiana, and Michigan, you might be able to get coverage on the theory that making money wasn't your primary motive in blogging, and that you were instead doing it as a hobby with money being only a side consideration. Still, the majority view, as I understand it, is that any moneymaking component (so long as it's regular, rather than just one-time or highly intermittent) makes your blogging into business activity and thus excludes it from coverage. This isn't entirely clear, but that's my sense from reading some cases and a couple of reference works.

4. This means that if you're worried about the risk of libel lawsuits, you might want to consider staying entirely noncommercial. Naturally, you wouldn't have to do it if you live in a state which reads the "business pursuits" exception narrowly. (Most homeowner's insurance policies, I'm told, don't have a separate provision indicating what state law would be used to interpret them, so courts would generally apply the law of where you live.) And if you figure that you'll make lots of money from the ads or the tip jar, you might be willing to run the risk, especially because libel lawsuits against bloggers are thankfully rare, and because you might think that your posts would be unlikely to trigger a lawsuit.

But if you think that having libel insurance will let you sleep better at night, you might conclude that it's better to forego, say, $500 worth of advertising income in a year in order to remain insured.

5. What should you do if you get a threatening letter?

  1. Read your insurance policy. As I said, it may not be a hard read. Pay close attention to all the sections, to see if there might be some unexpected exclusion that may apply. Also pay close to attention to the definitions section, since some terms may be defined in counterintuitive ways.

  2. Immediately notify your insurance company, in writing, that there might be a claim against you; send them a copy of the nastygram you received, and a dated cover letter. Tell the company that you need to consult a lawyer to deal with the threatening letter, and ask them to get you a lawyer right away, or to authorize you to consult one yourself on their dime. The insurance company may not have an obligation to pay your lawyer's bills until the lawsuit is filed, but it doesn't hurt to ask.

    I'm told that you can usually do the notification through your insurance broker, who knows how to deal with the company, and whom to talk to there. In any case, talk to your broker and see whether he'll do the notification for you or whether you ought to notify them yourself.

    Always communicate in writing, keep copies of all communications, and date all your communications. You can also call them (particularly important if you need to nag them), but confirm any substantive communications in writing.

  3. If the other side's gripe with you is sound — if you did indeed err — post a correction. It's the right thing to do, and it may avoid a lawsuit.

  4. If a Complaint is filed against you in court, notify the insurance company about that, too, by sending them a copy of the Complaint with a dated cover letter. Demand that they get back to you quickly about whether they're hiring a lawyer on your behalf.

    If they don't tell you quickly, hire a lawyer yourself, and show him a copy of the insurance policy. Then inform the company that you've hired the lawyer, and that you expect them to pay the bills. Bug them repeatedly, if necessary, including through your insurance broker. If your policy covers libel, and you aren't within the business pursuits exclusion, you likely have a very strong case for coverage; but they can still be slow, and you need to be the squeaky wheel.

  5. If you do hire a lawyer, show him the policy, and negotiate with him in light of the policy. See if he would agree to represent you for rates that he's pretty sure the insurance company would pay. See if he would agree not to charge you if the insurance company denies coverage. That, of course, depends on his sense of how likely coverage seems to be. But cyber-libel cases are potentially pretty interesting, even glamorous. Some lawyers may be willing to take a small risk of nonpayment to do a fun case like that.

* * *

In any case, these are just a few thoughts; use these numbers for comparison, your mileage may vary. But keep in mind that (1) you may already have libel insurance for your blogging, (2) you might lose it, depending on the state you're in, if you sell ads, have a tipjar, or otherwise make even small sums of money from your blog, (3) you may therefore want to plan your blog financing accordingly, if you're the worrying sort (or for that matter the libeling sort), and (4) if you are sued or threatened with a lawsuit, look carefully at your insurance policies, notify your insurance company immediately and in writing, and bug them repeatedly for an answer.

Hostile Environment Harassment Rules and Free Speech:

Another example of the conflict between the two (and not the first instance of veteran status harassment claims being brought as a means to restrict speech):

Political bumper stickers and articles posted on a professor's office door are raising questions about free speech and harassment at Keene State College.

Shane Calchera, a student and military veteran, accused associate history professor David Stowell of harassment, saying the anti-war, anti-Bush administration statements on his office door created a learning environment that is hostile to veterans.

The college cleared Stowell of the charge . . . but the professor said that the investigation itself was an attack on his free-speech rights.

"I was investigated because of my political views because someone objected to them, and that's frightening," Stowell said. "Everyone on campus should be concerned."

"Regime change begins at home," "Stop the war," and "How many Iraqi children did we kill today?" read some of the 15 items on his door. . . .

Calchera said he didn't realize he had filed a formal complaint. He said he simply wanted his concern addressed: that state property was being used to create what he felt was an environment hostile to military veterans.

The school's harassment policy defines "veterans status" as a protected group.

He said he wouldn't have a problem with the postings if they were on Stowell's own property, but he objects to them being in a place he is forced to go as a student — a professor's office door. . . .

Professor Stowell's speech of course shouldn't be censored — but neither should postings by professors or students that offend people based on race, religion, sex, and the like.

Incidentally, the Keene harassment policy prohibits (among other things) "jokes" and "remarks made in the person's presence" that "creat[e] a hostile or offensive working or academic environment" based on "race, color, religion, sex, age, national origin, sexual orientation, marital status, veteran's status or disability." Pretty clearly unconstitutional as applied to speech (except speech that falls within exceptions such as threats).

The college was probably right in concluding that these posters weren't enough to violate the policy, since they probably weren't severe or pervasive enough to create an offensive environment, and in any event they need not be especially offensive to veterans because they are veterans. But even if the speech had been more common and explicitly anti-veteran, the way to deal with wrongfully offensive environments is for the school to speak up in condemnation of the rude and in defense of the offended, not for it to forcibly suppress such speech. (The matter may be different as to direct speech by professors to particular students, especially in class -- a complex question -- but posted materials on people's offices should be protected even if they are offensive to some passersby.)

I Propose a Compromise in the Ward Churchill Case:

The University of Colorado doesn't fire him, and in exchange he promises to change his last name to anything but Churchill. (You decide which wartime political leader's name you might suggest to him instead.)

D.C. Circuit Ducks Second Amendment Issue

in the challenge to the D.C. gun ban, holding that citizens can't challenge the ban unless they're being prosecuted for violating it, or at least have shown some serious threat of imminent prosecution. Haven't closely read the whole decision yet, but that's the gist.

Neither the majority nor the dissent express a firm view on the Second Amendment issue. Both opinions acknowledge that the Second Amendment challenge raises an arguable constitutional question, but they don't explain their views on that question (which makes sense given that the debate is about the procedural issue).

Thanks to Matt Rustler for the news.

Restatements Revisited: On his blog Freespace, Tim Sandefur raises a fundamental challenge to my skepticism of Restatements (which I recommend reading in full):
What I mean is this: my college economics professor, Gary Wolfram, explained to us that the concept of spontaneous order teaches us that we should wait to see the order that arises from people's choices before we make policy, rather than trying to impose policy on people from the top down, on the basis of pure theory. He used to explain it by reference to sidewalks: suppose you want to lay out a college campus, and you want to put in sidewalks that the students will use to go from building to building. The best way, he said, is to wait a few years to see what pathways the students wear into the lawn, and put the sidewalks there, because those are the pathways the students use. Otherwise you'll have sidewalks, and then you'll have these pathways across the lawn where the students actually walk.

But you have to pour out the cement and make those sidewalks at some point. And at any time that you finally decide to pour the sidewalks, there's Randy Barnett saying "wait a second, this is a dynamic process, and if you pour cement here, you're freezing that dynamic process in place, and interfering with spontaneous order." You see my point. Barnett's complaint about the Restatement could be made, with equal validity, of any case that decides any issue in, say, contract law. The judge could say "I'm supposed to be `restating' the law on this issue and applying it to the facts before me, but once I do so, a case tends to freeze the common law evolution in amber."
There is much to be said about what remains fixed and what changes in a dynamic evolving common law system. The doctrine of precedent is an integral part of a common law process (unlike a process that interprets a written constitution), which is analogous to judges pouring the sidewalks. If the doctrine of precedent is considered too strong, however, then courts will not reverse their previous decisions--hence the traditional appeals by common law judges to their legislatures to modify the common law when experience has revealed their precedent to be defective. On this view, judges may pour the sidewalks, but only the legislature can tear them up.

But if precedents can be reversed then courts are able modify them when new circumstances reveal the limits of previous formulations of legal rules. The main point is that, while legal rules should be "fixed," judges should consider it their responsibility to repair broken sidewalks they themselves poured, remove unused sidewalks, and lay new ones. The Restatement movement seems to have gotten judges out of this mind set. "That's not my job, let the ALI decide" seems to be a judicial attitude inspired by the Restatements (though I may be wrong about the judicial psychology here). Responsibility for changing the judge-poured sidewalks has shifted from the legislatures to the ALI (which may be a good move) and away from judges themselves (which may be a bad move).

My original point was that the Restatements themselves were NOT based primarily on the wisdom of their drafters--though they do incorporate some "reforms" at the margin--but the wisdom of the common law process, a process that is subsequently curtailed by the existence of Restatements, making any new Restatement more a product of the knowledge of a handful of academics--often motivated by partisan pro- or anti-business concerns--than the diffused knowledge of numerous judges deciding countless cases. Or such is my concern. I remain open to being convinced otherwise, and I thank Tim for his thoughtful response.
Progress on the Length of Law Review Articles?: I have blogged before about the length of law review articles, and my belief that law journals should try to accept and publish shorter works. I am therefore delighted to find out that some of the top law reviews in the country have agreed to a statement of principles discouraging particularly lengthy submissions. The agreement appears to be a response to the Harvard Law Review online survey in December that I blogged about here. Specifically, the ACS Blog reports that the main law reviews at Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Texas, Penn, Virginia, and Yale have agreed to "rethink" the length of articles they agree to publish:
The vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages, and any impression that law reviews only publish or strongly prefer lengthier articles should be dispelled. Ultimately, individual law reviews will have to decide for themselves how best to resolve these concerns. Please know, however, that editors across the country are cognizant of the troubling trend toward longer articles and are actively exploring how to address it.
  It's terrific that several of the top law reviews are being responsive to this problem. I hope other journals are paying attention and join in. Of course, it means that law professors who have spent the winter padding their articles with needless asides and unrelated background points to bulk them up to 100 pages or so are now going to have to edit their pieces down to a more readable length. But in the end this will result in better, more concise scholarship that is much easier to read and easier to understand.

  (Hat tip: Paul Caron)
Maybe some typist has a sense of humor:

I'm going to be teaching Cohen v. California tomorrow (the case reversing a conviction for wearing a jacket that said "Fuck the Draft"), and I decided to see if Cohen was the earliest iteration of "fuck" in a Supreme Court opinion. (It was.) I then looked up "shit" to see if it appeared earlier in the Supreme Court, according to Westlaw. The answer is yes, but only because of a scrivenor's error. The Westlaw report of Galveston, H. & S.A. Ry. Co. v. Gonzales, 151 U.S. 496 (1894) contains this doozy of a typo:

"The jurisdiction common to all the circuit courts of the United States in respect to the subject-matter of the suit and the character of the parties who might sustain shits in those courts is described in the section ..."

I do not know, of course, whether the typist made this error intentionally. It was probably just an accident, but it's more amusing to imagine a typist with a sense of humor (or just boredom).

By the way, for those who care: the first case that intentionally included the word "shit" was Eaton v. City of Tulsa, 415 U.S. 697 (1974).

The Questionable Value of Restatements: Yesterday I noted (here) the passing of E. Allan Farnsworth who, among his other accomplishments, was the reporter for the Restatement (Second) of Contracts. While I have some strong disagreements with it, I think that the Second Restatement is a masterpiece of neoclassical contract law, blending the best of "classical" formal rules with "neoclassical" qualifications. I simply cannot imagine the present American Law Institute (who produces all the Restatements) improving on it in my professional lifetime.

Having said this, I wonder if the Restatement project has proven to be a good idea. On this issue I am influenced by the skepticism of--nay, downright hostility to--the Restatement project I have heard expressed by contracts professor Marcus Cole of Stanford. The problem is a contradiction built into the concept of a "Restatement." It is supposed to be "restating" (and systematizing) the law as it has evolved in the common law system--which presupposes that the evolutionary common law process is an important source of wisdom. Yet once promulgated, a Restatement tends to freeze that common law evolution in amber at the moment of its creation. True, Restatements as we all know are more than mere restatements. But whatever "reforms" it may include are themselves also frozen in time.

To the extent state court judges view the Restatement as a safe harbor that insulates them from reversal, they fail to take responsibility for improving the law of contracts as they are confronted with new cases that put stress on old doctrine. To take a concrete example, adding Promissory Estoppel to the first Restatement was an improvement over the Bargain Theory of consideration standing alone. The general formulation of Section 90 allowed judges to reach right results in a highly undertheorized context. By now, however, our decades long experience with the operation of the doctrine--combined with the excellent theorietical and empirical scholarship of recent years--puts courts in an excellent position to provide more rule-like guidance to potential litigants than now provided by the open-ended generalities of Section 90 that say little more to judges than "do the right thing."

Yet there is little incentive for state court judges, with much on their plates and a fear of reversal, to develop such doctrine when the authority of the Restatement is at hand. On balance, I think this is a great loss. The common law evolutionary system is a great source of knowledge that provided much of the substance of both Restatements. But now that flow of knowledge has been reduced to a trickle due, at least in part, to their existence. While some principles of justice are eternal, legal doctrine must evolve to fit these principles to new contexts and provide guidance to other judges, lawyers, and even parties. On balance, I think that the Restatements greatly inhibit this evolution. (I say much more about the need for an evolutionary discovery mechanism in law in Chapter 6 of The Structure of Liberty.)

If we are going to have a Restatement at all--and we are--I would keep the Restatement Second around for a long time. I have little faith that a committee of law professors today could improve upon it--as witness the debacle of revising Article 2 of the Uniform Commercial Code. But apart from its elegance and admirable substance, another reason for its retention is a dearth of additional evolved judicial wisdom to incorporate into a Restatement Third.

Update: A reader writes in defense of Restatements:

I think you underestimate the value and effect of Restatements. In a state like Utah, Restatements are extremely helpful, in part because there is relatively little case law to draw on within the state. Multi-state surveys are some help, but one is left with little in the
way of guidance about which states the court should or will look to for guidance. The Restatements give reasonably practical guidance on a host of issues. They have declined as a part of legal academics, but from the perspective of practice the restatements are still a positive. I have doubts that trial judges anywhere particularly concern themselves with appellate review. The numbers and process make it sort of unlikely.

Update: Another reader writes (in part):

And when difficult points come up, it is state-court cases deciding them that get cited. I do not think most judges would feel comfortable deciding a case on the authority of a broad statement like section 90 without looking for on-point authority; all the more so for their clerks. And in this process common law gets made, more or less just as it always has. (Which raises another point---did influential treatises predating the Restatements similarly ossify the common law in your view? E.g. Blackstone, Story, Wigmore, Williston. Have the Restatements just taken the role of what used to be single-professor efforts?)
Interesting point. My sense is that the Restatement has far more "authority" than an individual treatise writer, perhaps because of its collective provenance. And I also think that, at least on contracts, a good deal of the caselaw on which courts rely are cases that previously adopted Restatement propositions. This is one reason why portions of the first Restatement of Contracts remains in effect in some states, having previously been adopted by judges in previous decisions.

Update: For an extention of these concerns to the area of international law see The TransAtlantic Assembly blog.

Related Posts (on one page):

  1. More on Restatements
  2. Restatements Revisited:
  3. The Questionable Value of Restatements:
  4. E. Allan Farnsworth R.I.P.:
Mac Readers:

We've occasionally had glitches with the blog's appearance on Macs. If you've had such problems in the past (but are still reading the blog, for instance because the problems are intermittent or bearable, or because you can read it on a PC at the office), could you please check again on your Mac, and e-mail me at volokh at if you're still having problems? If everything is fine, then no need to e-mail. Thanks!

Monday, February 7, 2005

Faculty Diversity.--

Professor Bainbridge has an interesting discussion of faculty diversity at UCLA. He cites to a Yale Daily News article covering a talk I gave at Yale in 1996. I well remember the talk, since it was the first time I presented at Yale and the first time I talked publicly about my work on viewpoint diversity. Faculty and student turnout was high, and I later saw a lot of ripples emanating from my then-shocking attempt to quantify who really were the most underrepresented and overrepresented groups in law teaching.

The Yale Daily News story was inaccurate in several details. It is obvious that the reporter was not taping and was inexperienced at taking notes. I considered writing a letter to the editor at the time, but thought that being misquoted in a student newspaper probably didn't merit correction, especially since the misquotations were not that serious. I later learned in the Bellesiles affair that newspaspers and magazines often don't run corrections anyway.

One of the nice things about having a blog is that I can comment and correct them when they come up. [If there were such things then, I could have used it to good effect.]

The headline says "Alum Challenges Affirmative Action . . .," which I didn't. The article itself correctly characterizes the talk as "pro-affirmative action." I did challenge the narrowness of the search for diversity, since political and intellectual diversity is extremely important to viewpoint diversity. I strongly favor affirmative action, and ALWAYS have. At Yale in 1996, I explicitly said that I favored affirmative action for groups that were "still strongly underrepresented" and historically were "traditionally locked out" of the academy, such as Hispanics, women, and African Americans.

The Yale Daily News incorrectly quotes me as saying: "The basic argument for diversity in faculty hiring is incoherent unless there is more hiring of white Republicans and Christians because they are the two groups more underrepresented than women and most minorities." The reporter also incorrectly summarizes my argument with these words: "According to Lindgren, Protestants and Republicans are the most underrepresented among American law professors and Democrats and Jews are the most overrepresented compared to the U.S. population."

I am certain that I didn't quite say either of these things because they are not what my data at the time showed (or now show). Women were represented in law teaching at about the same as proportion of parity with their % in the general population as Christians, so women would have been MORE underrepresented than white Christians. Republicans, on the other hand, were about as underrepresented as Hispanics and more underrepresented than women and Christians, who were in turn more underrepresented than African Americans. So the statements attributed to me are more or less correct about Republicans (and white Republicans), but not about Christians, but even there I was talking about diversity of viewpoint, not other kinds of diversity. Perhaps the reporter was confused by my claims that subgroups such as white female Protestants and white female Republicans were incredibly underrepresented.

Further, I had passed out some of the data tables from my talk (the article incorrectly says that my study itself was passed out). With my tables in front of the audience, I was constantly pointing to data that I was discussing. I couldn't have said what the Yalie Daily attributed to me because I would have been challenged on it using my own data.

I talked about the representation of so many different groups and subgroups that I think that things just ran together in the reporter's mind.

The Yalie Daily quotes then-dean Tony Kronman with some reasonable reservations about my argument, which I don't doubt that he expressed. But Kronman, whom I had never previously met, was so enthusiastic after my talk that he offered to host a conference on ancient law at Yale if I would organize it (in the mid-1990s I had co-organized one at Berkeley). I never took Kronman up on his extremely generous offer (I got too busy with faculty appointments at Northwestern and my Ph.D. at Chicago).

If the Site Looks Weird Later Tonight,

just wait five minutes and then reload. At around 8 pm Pacific, we're rolling in a slight formatting change -- it should fix a few glitches, but for a few minutes it will make the text look odd. Thanks, and please bear with us.


photoblogs, by popular demand.

Is This a Record?

Have we set some sort of record for number of blog posts by VC bloggers in a single day? I count 18 posts by 6 of us so far (not including this one), with 11 by you alone. And it isn't even an exam-grading-avoidance period!
Academic Legal Writing Books:

Several people have e-mailed asking whether I still have copies of the book left to sign and send. (Yes, seriously, they have asked this; I'm not just making this up for another chance to plug the book.) I have sold most of the 60 books I got from the publisher, but I do have 12 left, and when I run out, I can get more. So if you're inclined to order a personalized copy, just follow the instructions here. And of course unpersonalized copies are available on

Law Blogs:

Here's a good, though necessarily incomplete list.

German Literature on Accomplice Liability:

A friend pointed me to this expression by Karl May (1842-1912), a German novelist: "Mitgegangen, mitgefangen, mitgehangen," which basically means "gone with, caught with, hanged with." Naturally, like "trust but verify" (dover'ay no prover'ay) and "forewarned is forearmed" (praemonitus, praemunitus), it works best in the original.

International Law and Darfur:

Lawprof Peggy McGuinness has an interesting post on this at Opinio Juris, "A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics." In general, if you're interested in international law, Opinio Juris is much worth reading.

Freedom from Academic Freedom Blogging:

I do hope to blog some more about the academic freedom questions raised by the Churchill case (plus some of the other matters we've recently discussed, such as the LeMoyne and the UNLV controversies), but I'm afraid I've gotten so much e-mail on the subject -- 25 messages that I haven't yet responded to, in addition to others that have already prompted follow-up posts -- that I'm sure I won't be able to get to all the issues. My apologies for not responding to those items, though as I said I hope to have some more general responses in the days to come.

Althouse on Separation of Church and State.--

Ann Althouse takes on the Nation, which is becoming a gross parody of its former greatness. She rightly criticizes the seemingly intentional misrepresentations of Brooke Allen about the framers' views of religion.

(Tip to Instapundit.)

In the course of effectively fisking Allen, Althouse several times says that James Madison in the 1780s favored Separation of Church and State. As University of Chicago legal historian, Philip Hamburger, has shown in his history of the Separation of Church and State, none of the major framers favored Separation until about the election of 1800, when the Jeffersonians urged Separation to silence Northern clergy. Indeed, in the 1780s some religious leaders who were accused of wanting Separation denied such a misreading of their position. In the 1780s and early 1790s, a few religious dissenters favored Separation, but none of the insiders--certainly not Madison.

What Madison wanted in the 1780s was disestablishment of religion and equal liberty for different religions, not a "wall of separation."

In second half of the 19th century, the liberal wing of the Republican Party made a failed attempt to add Separation of Church and State as a constitutional amendment to the US Constitution (since it was not there already).

In the early 20th century, Separation became part of the jurisprudence of the KKK and other nativist groups (as well as some mainstream groups), and Hugo Black (ca. 1920) made new members of the Klan pledge to the eternal separation of church and state. Then in 1947, a labor organization with ties to the Klan brought a suit, Everson v. Board of Education, where then-Justice Hugo Black of the US Supreme Court wrote Separation into the US Constitution.

The US Supreme Court has been quietly moving away from Separation as the metaphor in recent cases, with most majority opinions (whether upholding or striking down aid to churches) making no mention of Separation, except in the titles to articles cited in the footnotes.

This fascinating history is told in Hamburger's meticulous book on the subject.


Clayton Cramer writes about, among other things, holding Paul Revere's hunting gun and pocket pistol in his hands.

Dutch Schools Ban the Dutch Flag

A Dutch newspaper article explains that many Dutch schools are forbidding the display of the Dutch flag. The Independence Institute's Dutch expert has produced an English translation of the article:

Ban on National Flag is Widespread.

More schools prove to have banned the national flag.

At the Groene Hart Lycee [an elite high school] in the city of Alphen-on-the-Rhine, the three colors that are the Dutch flag have been looked upon as evil for the past year. No symbols that identify specific groups are considered acceptable and any student may be permanently expelled for coming to school with flags on their clothing, shoes or briefcases. Earlier this week readers reacted with fury to another school in IJsselstein, this school forbids any display of flags because this would provoke students of other nationalities.

An angry man reported yesterday that he gets all kinds of verbal abuse from foreigners and leftist intellectuals for driving a dark blue defense department vehicle with a red-white and blue sticker on the back. "I get to hear that I'm a Nationalist and a Fascist. Perhaps they could compose a list of what the Dutch are actually still allowed to do?" he asks sarcastically.

Green Heart High school itself says the regulations and bans are necessary because of the hardened climate in the schools. Not only flags are outlawed, but the wearing of Lonsdale clothes, or shoes with red or white laces, or leather bomber jackets, all of these could, according to the school board, result in discrimination and bad behavior among students. A spokesperson for the school explains: "Sometimes the fat's in the fire all at once and then we must react quickly--this way we show we can weather the problem as well as prevent it." According to the school the students make fewer complaints than the parents. The parents feel the kids are robbed of their own identity. "Everything happens at school after serious discussion only and ban is a big word," say the administrators at the school. The National Bureau of Race Discrimination understands what the schools are trying to do, but they think it makes little sense to ban anything preventively.

The flag of the Netherlands is composed of red, white, and blue stripes, and its roots stretch back to the Dutch war of independence against Spain in the 16th century. At the time, the Dutch Calvinists believed that freedom from Spain's awful dictatatorship and the Spanish Inquisition was worth the fight. The independent Netherlands soon became the first nation in Europe to allow genuine freedom of religion.

If the Dutch cannot even defend their right to display their own flag, it seems questionable whether Dutch liberty and independence will survive the 21st century.

Are Holocaust Victims Tantamount to Bigots?

Eric Alterman has a remarkable post defending Muslim groups' decision not to attend commemorations of the Holocaust. (Thanks to Cathy Young's column, which also criticizes Alterman on similar grounds, for the pointer.) The post is mostly a rant against Andrew Sullivan's condemnation of the groups, but here's the key part:

Look, unlike[ Andrew Sullivan], I'm a Jew, but I don't expect Arabs to pay tribute to my people's suffering while Jews, in the form of Israel and its supporters -— and in this I include myself — are causing much of theirs. Would Andrew want to go to a service in honor of the suffering of gay bashing bigots? . . . Anyway, I'm sure what I'm saying will be twisted beyond recognition, and so I suppose that makes it stupid to do, but I'm sorry. The Palestinians have also suffered because of the Holocaust. They lost their homeland as the world — in the form of the United Nations — reacted to European crimes by awarding half of Palestine to the Zionists. They call this the "Nakba" or the "Catastrophe." To ask Arabs to participate in a ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe is morally idiotic — which is why, I guess, I'm not surprised Andrew's doing it.

Now let's briefly analyze this: Alterman is not just saying that Muslim groups are not interested in commemorating the harm done to a group that they're now hostile to. (He is partly saying that, which acknowledges that many Muslims are hostile to Jews, and not just to Israel, but that's not all he's saying.) I should say that such a view would be understandable, though not laudable; it's human nature not to much feel the suffering of others, especially if you have some hostility to them.

Rather, he's analogizing the victims of the Holocaust (those who suffering is honored) to "[Muslim]-bashing bigots." It's not the Israelis who are being honored, it's the slaughtered and nearly slaughtered European Jews. Yet somehow they reverse-inherit the supposed guilt of Israelis and other Jews today. Men, women, children butchered in Auschwitz, even ones who had never had much interest in Palestine and who had no opinions at all to Muslims — quite analogous to "[Muslim]-bashing bigots," yes, indeed.

This strikes me as the classic morality of group guilt. Jews of the 1940s are morally tainted by their supposed sins today; we should hate ethnically Japanese because of Pearl Harbor; Jews killed Christ (assume for a moment that this is historically accurate — the hostility to Jews would remain wrong even then) so Jews today are culpable; many Arabs support suicide bombers, so I shouldn't care about wrongs being done to completely innocent Arab-Americans.

As to who suffered from the Holocaust, it seems to me that the U.N. partition of that part of the world — followed shortly by the 1948 war in which the Arabs tried to destroy Israel, and Israel won and obtained the customary spoils of war — is quite a bit different from the Holocaust. (Among other things, there were Jews living there, who had something of a claim to their own state, too.)

But if you really want to take the "who suffered" perspective, well, many innocent Germans surely suffered a great deal from World War II. Some of them may have various grounds for complaint against the Allies, from the Dresden bombings (I'm not an expert on them, but I know there are plausible claims that they went beyond what should be done even in a total war) to what I understand was a massive and largely unpunished wave of rapes of German women by many Soviet soldiers. So I take it that it would be "morally idiotic" to ask those innocent Germans "to participate in a [Holocaust commemoration] ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe" (i.e., that many Germans were guilty of heinous crimes)?

I would have thought that good people should generally mark with sadness the mass murder of innocents, and set aside for another day the debate about what other wrongs should be commemorated or righted. Now I realize that people (whether Jews, Arabs, Germans, Americans, Russians, or anyone else), even people who are otherwise good, sometimes don't rise to the occasion this way. Again, if Alterman had simply pointed out that this is human nature, and doesn't merit harsh condemnation, I wouldn't be criticizing him.

But instead, Alterman descends into ascribing ethnic guilt, the very moral fallacy that has helped cause so much mindless slaughter. And on top of that, he ascribes the guilt to the slaughtered innocents of the Holocaust. Shameless, and shameful. In the words of Cathy Young, "Alterman frets that his words will be 'twisted beyond recognition,' but it's hard to see how they can be twisted into something more indecent than they already are."

Related Posts (on one page):

  1. Eric Alterman Responds:
  2. Are Holocaust Victims Tantamount to Bigots?
E. Allan Farnsworth R.I.P.: The preeminant contracts scholar and Columbia law professor E. Allan Farnsworth died a week ago today. The Sunday New York Times has a nice obituary here. Another fine obituary here adds additional details. Allan Farnsworth was the reporter for the Restatement (Second) of Contracts and was the author of the most widely adopted contracts casebook, a highly respected treatise on contracts, a monograph on contracts called Changing Your Mind, and most recently, Alleviating Mistakes: Reversal and Forgiveness For Flawed Perceptions.

My first contact with Allan came in 1984 after I reviewed the first edition of his treatise in the Harvard Law Review. My review was entitled "Contract Scholarship and the Reemergence of Normative Legal Philosophy." My thesis was that developments in jurisprudence away from legal realism made the academic world safer for legal doctrinal scholarship of the sort exemplified by Allan's wonderful new book (After it appeared, I required my students buy it.)

Although my review was a rave, I admit that the bulk of it was about my main thesis. After it appeared, I received a short note from Allan (which so far I have not managed to locate). After graciously thanking me for the kind review, he added--in words far more wry and pithy than I can reconstruct--something like the following: "I know that the price of doing a book review is putting another's work ahead of one's own, but I see that you managed to deal with that problem."

After that, he was always very generous to me, then a junior contracts professor at Chicago-Kent, both in his writings and in person. I fondly recall us getting together years later for drinks in Florida on Longboat Key, where he maintained a condo. In addition to everything else, he was a rather dashing figure.

Fordham law professor Joe Perillo noted on a listserve for contracts professors that "every generation seems to produce a leader in our field of contract law." Yet somehow I doubt that we in contracts will see his like again.
What's Wrong With That Statement?

I just got a mass e-mail from the American Conservative Union that says:

Dear Friend of ACU:

QUESTION: Who made the following statement?

"(The U.S.) military and the insurgents (in Iraq) are fighting for the same thing, the hearts and minds of the people."

A) Terrorist Leader Abu Musab Al-zarqawi B) Osama Bin-Laden C) Saddam Hussein D) Ted Kennedy

The correct answer is D.

I'll be frank. Ted Kennedy he has simply gone too far.

Ted Kennedy should be held to account for his words and actions.

Use the hyperlink below to send your personalized Blast Fax message to Senator Ted Kennedy, Vice-President Dick Cheney and the remaining five Members of the Senate Leadership, all six Members of the Senate Ethics Committee and the remaining twenty-three Members of the Senate Armed Services Committee. Tell them that Senator Kennedy has given aid and comfort to the terrorists and that he is unfit to sit on the Armed Services Committee.

The trouble is that whatever bad things Kennedy might have said -- and I'm sure he's said plenty -- this isn't one. First, some context from Kennedy's remarks (made Friday, February 4):

Too many Iraqi people do not believe that America intends no long-term military presence in their country. Our reluctance to make that clear has fueled suspicions among Iraqis that our motives are not pure, that we want their oil, and that we will never leave. As long as our presence seems ongoing, America's commitment to their democracy sounds unconvincing.

Other indications of anti-American sentiment are clear. CDs with photographs of the insurgents are spread across the country. Songs glorify combatants. Poems written decades ago during the British occupation after World War I are popular again.

We have the finest military in the world. But we can't defeat the insurgents militarily if we don't effectively address the political context in which the insurgency flourishes. Our military and the insurgents are fighting for the same thing -- the hearts and minds of the people -- and it is a battle we are not winning.

The goal of our military presence should be to allow the creation of a legitimate, functioning Iraqi government, not to dictate it and not to micromanage it.

Kennedy is complaining that the Iraqi insurgents (a fairly neutral term, not as harsh as I might like, but nothing I can complain about) are trying to get the Iraqi population to sympathize with them and to hate us. That seems quite right. Of course, the Iraqi insurgents are also trying to influence the Iraqi people by terror, not just sweet reason; but they surely are trying to win people over as well as frightening them.

Kennedy is also claiming that we aren't winning the public relations battle in Iraq. I don't know if he's right or wrong, but it seems to me like a plausible position. The election suggests that the Iraqi insurgents haven't won over or intimidated all Iraqis. But my sense is that we aren't vastly loved there, either, and that in some areas a considerable chunk of the public (enough to cause serious problems for us and for the new Iraqi government) is indeed on the insurgents' side.

Now Kennedy may well have been wrong in some of the other things he said in that speech. He surely has been wrong in lots of other things. Fault him for that. But this statement is hard to see as "go[ing] too far" (unless one reads it as a claim of moral equivalence between us and the insurgents, which neither the context nor the text supports).

Even if you think Kennedy deserves whatever criticism he gets, the viewpoint expressed in that particular phrase is a plausible and quite possibly correct viewpoint. The viewpoint shouldn't be denounced simply because we might not like the person who conveys it.

Chicago Tribune Censors Political Cartoon Critical of Ted Kennedy.--

The Chicago Tribune (p. 5.9) today censored a "Prickly City" cartoon. The Tribune ran a "Bizarro" strip instead along with this explanation: "Today's Prickly City does not meet the Chicago Tribune's standards of fairness. Please enjoy this substitute."

This is today's strip, which the Tribune censored:
[Click on the strip itself to enlarge]

©Universal Press Syndicate.

In trying to figure out why the strip is unfair, I can only guess that the Tribune thought that the Mary Jo Kopechne death in 1969 was too old to be fair to use, though their news stories considered George W. Bush's activities from the late 1960s and early 1970s to be fair to use. Or perhaps they thought that bringing up Kennedy's causing Kopechne's death was unfair because it was unrelated to the Iraq War, but political criticism often is based on charges of inconsistency between two events related only by one or more facts--here that they both involve death and alleged lies, misleading statements, and indifference.

Disclosure: The Chicago Tribune (and many of its subsidiaries) are former clients of mine. [Also, this post was edited very shortly after posting.]

UPDATE: My daughter noticed this in the Tribune this morning and pointed it out to me. She uses part of her allowance and babysitting money to pay for a subscription. She is a Nader supporter.

Grokster Loses Appeal! Peer-to-Peer Technology Struck Down!

OK, it hasn't happened yet, I admit — the MGM v. Grokster case hasn't even been argued before the Supreme Court yet (that comes in March), and the Court won't issue its decision until later in the Spring. But I've just spent the weekend going through the briefs that have been submitted thus far, and I'm now making book: the Court reverses the Court of Appeals (which held that Grokster was not "secondarily liable" for the copyright infringements of its users), 7-2. (Amazingly enough, this represents both the odds I'm giving and the final vote count). I'm not saying that's the right result, or the best outcome; in fact, the reason I was reading all these briefs is that I've been asked to help out on some of the amicus briefs on Grokster's side. [The EFF, incidentally, has a wonderful collection of the submissions on both sides]

While this outcome could be a disaster for P2P file-sharing technologies (and the record companies will undoubtedly trumpet it as such, with many in the press likely following along), it probably won't be. The Court has an easy "out" here, and my experience has been that when they're presented with an easy out they usually grab it. The Ninth Circuit in this case affirmed the grant of summary judgment to Grokster, holding that on any reasonable version of the facts, Grokster could not be held liable for "contributory copyright infringement" because the software involved is "capable of substantial non-infringing uses" under the Sony v. Betamax case. The record company plaintiffs want the Court to "tighten up" the Sony standard, and to say, in effect, that the non-infringing uses that these P2P networks have are not "substantial" enough under Sony.

That would be a disaster for technology providers — but I don't think that's what the Court will say. Instead, I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can't be held liable for the copyright infringements of network users. But — and here's the critical part — on these facts, it doesn't stand alone; there's evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor. The Court will then instruct the Ninth Circuit to re-open the case and evaluate whether or not this evidence is enough to hold the defendants liable on an inducement, or "aiding and abetting," theory of liability.

The record companies will claim victory, but it will be a Pyrrhic one — it will just cause the next generation of P2P providers to be more careful about what they say in their promotional and advertising material, secure in the knowledge that if they just shut up about it, they'll be allowed to go about their business without fear of copyright liability.

Anyway, you heard it here first.

Justice Thomas:

In the past, we've sometimes posted about how various people don't seem to give Justice Thomas a fair shake (see, e.g., here and here). Here's another example, from a panel that I was on a while back. Another panelist, a noted constitutional law scholar and expert on — among other things — the First Amendment and the Supreme Court, said (this is a transcription from an audiotape I have of the panel; emphasis added):

Here again I want to make three quick comments. The first concerns the lineup of the Justices. And specifically, I want to talk about Justice Thomas' vote. After all Justice Thomas would be thought of as probably the most conservative or one of the two most conservative Justices on this Court; on any Supreme Court case in history. And yet I think there are two principles that explain Justice Thomas' votes. Not all of the votes, but some of them. First he'll consistently vote in favor of pornography under the First Amendment and second he'll always vote against plaintiffs in sexual harassment cases. As to the former, this case illustrates it, a case from a couple of years ago, Free Speech Coalition v. Ashcroft illustrates it. And to the latter with regard to sexual harassment there's a Supreme Court case this term, Pennsylvania State Police v. Suders, which was an 8-1 with only Justice Thomas voting against the sexual harassment victim. Now if one thinks back to Justice Thomas' confirmation hearing, one might predict an opposite set of votes, but I think this says something very revealing about Justice Thomas' personality, what he's trying to say, with regard to his reaction to his confirmation battle.

As it happens, Justice Thomas does indeed take a narrower view of hostile environment harassment law than do some other Justices; he's mostly with Justice Scalia and Chief Justice Rehnquist on this, though occasionally he does write alone. He has voted for sexual harassment plaintiffs in the unanimous Oncale v. Sundowner Offshore Services (writing a one-line concurrence that didn't disagree with the bottom line) and Harris v. Forklift Systems, so "always" is wrong. But let's set that aside for now.

The trouble is that it's simply false to say that Justice Thomas "consistently vote[s] in favor of pornography under the First Amendment." I give below a list of what I think are all the porn-related cases that Justice Thomas has considered while on the Court, and here they are. When Justice Thomas's vote would clearly protect porn or clearly authorize its restriction, I've just used one word "protect" or "restrict"; when it was based on a more pro-restriction approach than some of the other pro-restriction votes, I've said "restrict+"; when it was based on a less pro-protection approach than some of the pro-protection votes, I've said "protect-":

CaseIssueVotes for protection-votes for restrictionThomas's position
Ashcroft v. ACLU II (2004)Cyberporn5-4Protect
City of Littleton v. Z.J. Gifts D-4 (2004)Restrictions on porn storesUnanimousPart protect, part restrict
U.S. v. Am. Library Ass'n (2003)Porn filtering in libraries3-6Restrict+
Ashcroft v. ACLU (I) (2002)Cyberporn3-6Restrict+
City of Los Angeles v. Aladema Books (2002)Restrictions on porn stores4-5Restrict+
Ashcroft v. Free Speech Coalition (2002)Digital child porn6-3Protect-
City News & Novelty, Inc. v. City of Waukesha (2001)Restrictions on porn storesUnanimousDismiss on procedural grounds
U.S. v. Playboy Entm't Group (2000)Cable porn5-4Protect-
City of Erie v. Pap's A.M. (2000)Nude dancing restrictions2.5-6.5Restrict+
Reno v. ACLU (1997)Cyberporn9-0 / 7-2 Protect
Denver Area Educ. Telcoms. Consortium v. FCC (1996)Cable porn6-3 / 5-4 / 2-7Restrict
U.S. v. X-Citement Video (1994)Child porn7-2Restrict as to constitutional issue, though protect given the particular statutory construction issue involved here.

(More details here.)

Alexander v. U.S. (1993)Forfeiture of porn4-5Restrict

Surely this is not "consistently vot[ing] in favor of pornography" — it's voting for protecting pornography in some situations (though not as often as, say, Justices Kennedy or Ginsburg, or even Stevens or Souter) and against it in others. So I said as much in my exchange with the other professor, though with many fewer details than I give above; I cited X-Citement and Denver Area, pointed out that Justice Thomas's pro-protection votes in Free Speech Coalition and Playboy were quite narrow, and explained that in Playboy Justice Thomas basically took a formalist view that obscenity could be defined broadly and was unprotected, but material outside the obscenity definition was protected.

Here's what the other professor said in response:

As to the second point about Justice Thomas, he is not going to position me into rationalizing or defending Justice Thomas' opinions. I do find it curious that Justice Thomas does often, does not always vote in favor of, the pornography position and he consistently votes against plaintiffs in sexual harassment cases. I leave you to draw your own conclusions.

So this professor — who knows the First Amendment caselaw quite well — says that he won't be "position[ed] into rationalizing or defending Justice Thomas' opinions," not even to the extent of squarely acknowledging his error. He seemed happy to insinuate that Justice Thomas's supposed affection for pornography leads him to "consistently" vote to protect pornographers, even though that turns out to be false. But then when confronted with his error, the chief response is that he won't rationalize or defend Justice Thomas's opinions.

Now I suspect that the professor sincerely believed he was right when he made his initial statement. But in fact he was wrong, and as a constitutional scholar who often opines on the First Amendment, he should have known better.

Yet I also suspect that his contempt for Justice Thomas blinded him to this reality: Rather than looking squarely at the facts, the professor selectively ignored those that were inconsistent with his pejorative theory.

The professor's hostility was intense enough that it kept him from thinking straight, as intense hostility often does. And I think this is pretty emblematic of how some on the left react to Justice Thomas.

Say, Aren't Facts Supposed To Be Factual?

A google search for Eugene Volokh Climate Change Skeptics yields as the first item a page with the header "Factsheet: Eugene Volokh." The left sidebar begins with:


Documenting Exxon-Mobil's funding of climate change skeptics.

The body of the page points out the apparent reason for my being listed: I'm an Academic Advisory Board Member for the Reason Foundation, and I'm on some similar boards for the Heartland Institute and the Pacific Research Institute for Public Policy.

Except I've never been funded, to my knowledge, either by Exxon-Mobil, the Reason Foundation, the Heartland Institute, and the Pacific Research Institute for Public Policy. My board membership is entirely unpaid. I have been paid for two articles in Reason Magazine, and I spoke once at a Reason Foundation event, for which I must have been paid an honorarium; but in that respect I'm equally funded by the New York Times, Hofstra University Law School, and dozens of others. This is not, I suspect, what "Exxon-Mobil's funding" would normally mean to people.

What's more, I'm not even a climate change skeptic in any significant sense. I don't believe I've ever publicly spoken out about climate change, largely because I know next to nothing about the subject. If "climate change skeptic" means someone who has publicly taken a position skeptical of various climate change theory (which I suspect is the normal meaning of the phrase), I'm not it.

Now if they want to maintain a database of people who are affiliated with various groups that have gotten money from Exxon-Mobil, on the chance that these people may at some time speak out about climate change, that's fine. They should just make sure that the Web pages make that clear. But if the Web page lists my name alongside the phrase "Documenting Exxon-Mobil's funding of climate change skeptics," then facts aren't what the page is conveying.

Appalling, If True:

WTVH reports:

A graduate student at LeMoyne College has been expelled for writing a paper on his opinion that corporal punishment should be allowed in the classroom. Scott McConnell was working on his master's degree in the science education program at LeMoyne. He wrote his "Classroom Management Plan" paper in November. After receiving an A- on the paper from his professor, the college decided to expel McConnell. . . .

LeMoyne released the following statement on the matter: "If we believe a student is not suitable for classroom instruction based on his or her educational philosophy we have an obligation that is consistent with the College's mission and that upholds New York State law and education regulations." . . .

Now it's possible there's something omitted from the story, and LeMoyne's actions were based on something other than just McConnell's opinion about what should be allowed. But if the story is accurate and reasonably complete, this seems just appalling: A student expresses his views that some education policy is changed, and then he's expelled?

Here, in fact, is a powerful criticism of LeMoyne College's actions:

A college or university is a marketplace of ideas, and it cannot fulfill its purposes of transmitting, evaluating, and extending knowledge if it requires conformity with any orthodoxy of content and method. In the words of the United States Supreme Court, "Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."

These words come from The LeMoyne College Faculty Handbook — Regulations on Academic Freedom and Tenure.

Thanks to InstaPundit for the pointer.

UPDATE: This news story provides more data. First, it suggests that the student wasn't expelled as such, but rather that he had been "conditionally accepted last summer and fall and was expecting to be fully accepted this spring," had taken classes at the school (including the one for which he read this paper), but then had his conditional acceptance revoked. I don't think this changes the academic freedom issue, but I thought I'd note it in any case.

The story also quotes the acceptance withdrawal letter, written by the program's director, as saying that "I have grave concerns regarding the mismatch between your personal beliefs regarding teaching and learning and the Le Moyne College program goals." It goes on to say that the student "said he's also been trying to find out what Leogrande meant by 'mismatch.' College administrators have told him, he said, that it stems from the four-page 'Classroom Management Plan' he submitted Nov. 2 for his Planning, Assessing and Managing Inclusive Classrooms class.

"In the opening paragraph of his essay, McConnell wrote: 'I do not feel that multicultural education has a philosophical place or standing in an American classroom, especially one that I will teach. I also feel that corporal punishment has a place in the classroom and should be implemented when needed.' He got an A for the course."

The story goes on to give more details; please read it here. Nonetheless, this suggests to me that the initial press accounts were substantially true: The student expressed a view about the way education ought to be conducted that was contrary to the established orthodoxy; and as a result he was kicked out of the program to which he'd been conditionally admitted. Sounds like the university is "requir[ing] conformity with . . . orthodoxy of content and method."

If they want to insist on such conformity, they are legally free to do so (as a private university, they aren't bound by the First Amendment). But if that's so, then they should make it clear to students, donors, and others, rather than singing paeans to academic freedom and then kicking out students for the very "inquir[y]," "evaluat[ion]," and participation in "a marketplace of ideas" that the university supposedly praises.

Sunday, February 6, 2005

I'm no Randy Barnett, but VC readers in the Minneapolis/St. Paul region might be interested to know that I will be speaking at William Mitchell College of Law on the USA Patriot Act Monday (today) at 7pm. Details available here.
WAKE FOREST AND DUKE SWITCH TIMES: I very much enjoyed my visits last week to Northwestern and the Milwaukee Lawyers Chapter of the Federalist Society.

In an earlier post, I inadvertently switched the times of my Duke and Wake Forest speeches and then posted a correction. As it turns out, because of a conflict with another speaker, later in the week Wake Forest switched times with Duke for real. So the final schedule for this week is:

THURSDAY (2/10): Duke (@ 12:15) & Wake Forest (@ 4:00pm)
FRIDAY (2/11): The John Locke Foundation in Raleigh (2/11 noon) (Luncheon details and reservation info here).

At Duke and WF I will be talking about Ashcroft v. Raich. At the Locke Foundation, I will be talking about Restoring the Lost Constitution.

I have also added speeches at NYU and Columbia on Thursday, March 3. (NYU is at noon; final time for Columbia TBA)

in February: Quinnipiac (2/21), Cumberland (2/23) & University of Alabama (2/24)
in March: NYU & Columbia (3/03), University of Toledo (3/17) (Stranahan Lecture), Princeton (3/24) & Chapman (3/31)
in April: Reason Weekend (4/1)(Laguna Niguel), Texas Tech (4/7) & University of Arizona (4/14)

As I do not have any more open times, I don't think I will be add any more engagements this semester.
Updates on the Evidence in the Hoppe Case.--

My original post on the Hoppe case was already my longest ever, so I am updating it here.

VC reader Gabriel Rossman points me to this article by University of Rochester economist, Steven Landsburg, in Slate, which discusses an NPR story that pointed out that gays in California were 70% more likely to smoke:

I've just learned from NPR's All Things Considered that in California, gay men and lesbians are 70 percent more likely to smoke than the general population. In a sterling example of why I try not to listen to too much NPR, reporter Sarah Varney immediately segued into the perceived need for more anti-smoking ads targeted specifically at gays.

In other words, Varney implicitly assumes that gays are either too stupid to have gotten the message that smoking is bad for you or too irrational to have modified their behavior accordingly. A more inquisitive reporter might instead have raised the obvious question: What good reasons might gays have to smoke more than other people?

In four minutes of air time, the closest Varney came to addressing that question was to suggest that for gays, stepping outside for a cigarette can be a good way to meet people—as if the desire to meet people somehow differentiates gays from straights. At the same time, she managed to overlook the blindingly obvious: Gays are disproportionately childless, and childless people are more likely to smoke.

As a matter of fact, childless households (whether gay or straight) spend, on average, 56 percent more on cigarettes and alcohol than their childbearing neighbors. (Among households where the parents have some education, the discrepancy is even larger.) Nor is there anything mysterious about why. First, parents have extra reasons to live long and stay healthy, both so they can be there when their kids need them and so they can enjoy the company of their grandchildren. Second, parents have extra expenses—starting with diapers and continuing through college tuition—that leave less disposable income for cigarettes. Third, a lot of parents don't like the idea of smoking in front of their children.

As I stated in my original post, this is the way that economists talk. Some people may find it offensive, but it is completely unremarkable in the discipline.

A check of GSS data on smoking shows borderline significance (1-tailed p=.086) for those having same-sex experience in the last 5 years: 38% of gays and bisexuals smoke compared to 30% of others, so any differences nationally are probably less than in California. If I do a logistic regression, controlling for education and region, then the 1-tailed significance equals the .05 threshold, meaning that (with controls) gays do appear to smoke more in the GSS data. When being gay is measured by the gender of sexual partners since age 18, the effect is not significant.

As to driniking, gays and bisexuals (measured by activity since age 18) are more likely (45%) to report ever getting drunk than others (35%), though the effect is not significant for gays measured by activity in the last 5 years.

As to the evidence in this post, it provides some (but far from conclusive) support for Hoppe's claims that gays engage in higher risk behavior and that differences in child-rearing is a related cause. So now, four pieces of evidence provide some support Hoppe's claims: a greater reported number of sex partners (as I linked in my earlier post), a higher rate of smoking in some studies (but not others), a higher rate of getting drunk (by some measures but not others), and some plausible evidence that child-rearing is related to smoking and drinking rates. The direct evidence of less planning for the future is not shown in these studies, but is consistent with some of them. The evidence that I pointed to against Hoppe's thesis is mostly attitudinal, not behavioral, and economists (though not sociologists) tend to discount attitudes.

The caveats that I mentioned in the prior post apply to my analyses here as well, including the absence of adjusting the sample size for a design effect. I'm off to see a movie; I'll probably post more when I get back today--or post tomorrow.

UPDATE: For more, see David Beito, Ralph Luker, Kenneth Gregg, and Tom G. Palmer. Palmer, a Senior Fellow at the Cato Institute, considers Hoppe a bigot, not for the statements attributed to Hoppe in class (which he finds unobjectionable), but primarily for other comments made elsewhere about Palmer. Nonetheless, Palmer has written to UNLV in support of Hoppe's academic freedom.

I Am Charlotte Simmons:

A couple of interesting reviews of "I Am Charlotte Simmons" by my colleagues, Frank Buckley in Crisis (although I don't get the title of the review) and Peter Berkowitz in Policy Review. Neither of them comment much on the character I found most striking--the weasel professor who is more concerned about politics than the academic principles that he claims to support.

More on NY Same Sex Marriage Decision: Jack Balkin offers a thoughtful analysis of the opinion. An excerpt:
I have no idea whether this case will be affirmed by the New York Court of Appeals. But if it is affirmed, it will have to be for somewhat different reasons than the court gives here. The court has not given the New York Court of Appeals very much to work with. It will pretty much have to start from scratch.

Related Posts (on one page):

  1. More on NY Same Sex Marriage Decision:
  2. NY Trial Court Strikes Down Marriage Law:
That Age-Old Question: Is eating drywall really art?
Twenty-Something on the Future of Social Security:

Today's Washington Post has an interesting column by Laura Thomas from a Twenty-Something on the future of Social Security.

The opening paragraph:

People my age are as likely to believe in Social Security as they are in Santa Claus. And, if you ask me, it would be equally naive for a twenty-something to believe in either one.

Her views are consistent with comments that I hear from my own students, most of whom are in their mid-twenties, and none of whom are counting on a dime from Social Security when they retire.

"Lost Film" Festival:

Sometimes "lost films" are lost for a reason, as Joe Malchow reports about a campus film festival last night. Check out the second short film on the war on terror in particular, which you can also view directly here, in which the director poses the stimulating question of whether now that the United States has attacked Iraq, might it attack France or Great Britain next? (No, I'm not making this up). Malchow's question is more pragmatic, which is how much of his and his parent's tuition money is going to support this.

UNLV Economist in Trouble.--


I read about the problems of Professor Hoppe, an economist at the University of Nevada-Las Vegas (tip to Instapundit):

Hoppe, 55, a world-renowned economist, author and speaker, said he was giving a lecture to his money and banking class in March when the incident occurred.

The subject of the lecture was economic planning for the future. Hoppe said he gave several examples to the class of about 30 upper-level undergraduate students on groups who tend to plan for the future and groups who do not.

Very young and very old people, for example, tend not to plan for the future, he said. Couples with children tend to plan more than couples without.

As in all social sciences, he said, he was speaking in generalities.

Another example he gave the class was that homosexuals tend to plan less for the future than heterosexuals.

Reasons for the phenomenon include the fact that homosexuals tend not to have children, he said. They also tend to live riskier lifestyles than heterosexuals, Hoppe said. He said there is a belief among some economists that one of the 20th century's most influential economists, John Maynard Keynes, was influenced in his beliefs by his homosexuality. Keynes espoused a "spend it now" philosophy to keep an economy strong, much as President Bush did after the Sept. 11, 2001, terrorist attacks.

Hoppe said the portion of the lecture on homosexuals lasted perhaps 90 seconds, while the entire lecture took up his 75-minute class.

As with so many of these stories of supposed academic misconduct, one must be careful not to assume that the whole story has been told, since usually only one side is talking publicly. But if Hoppe indeed said what he says he said and no more, then I think that it is the administrators at UNLV who deserve reprimands. They should have explained to the student that such claims are clearly within academic freedom, whether true or false. I have no doubt that what Hoppe said would be offensive to some students—and indeed, he is probably wrong on the merits of most of his claims—but his claims are empirical ones. The proper response of someone who is angry with Hoppe is to gather evidence tending to show that he is wrong, and to challenge Hoppe to offer his own evidence to support his claims.

Both Eugene Volokh and I have previously contributed to debunking the apparent myth that gay males have a median of 250 sexual partners. But every representative study that I've seen does find substantial differences between straights and gays, so IF on average one can equate having more partners with taking higher risks, then in that very limited sense, one claim of Hoppe may be at least partly true. I have no reason to think that Hoppe is right more generally on risk-taking by gays. [But see evidence supporting Hoppe in an updated later post.]

As someone who has watched Richard Posner, Gary Becker, and others at the University of Chicago Law School Workshop, I have seen lots of generalizations about how groups act. A claim such as Hoppe made would be quite unremarkable in that classroom setting, however correct or incorrect it might be. Post-Gary Becker, it is common for economists to attribute motivations, beliefs, and behavior to people in different family or sexual situations. Some of the claims are based on assumptions of rationality, some are meant as empirical claims to be supported or rejected by evidence from the real world. I shudder to think what students at UNLV would think if Hoppe had read the claims about how gays think, act, and rationally calculate in Posner's 1992 Sex & Reason, which spawned a lot of vigorous criticisms from both straights and gays, but no calls for academic punishment (at least that I heard). The book still has its defenders and detractors.

For example, consider this paragraph from Martha Ertman's review of Posner's 1992 book in the 1993 Stanford Law Review:

Posner apparently believes that lesbianism is a matter of choice rather than genetic predisposition. He recognizes that there are two contrasting viewpoints on the genesis of lesbianism: (1) it "is biologically determined"; or (2) it is "either a second-best choice by 'mannish' women who are unattractive to men or a political choice by angry feminists." Although he states that given the discrimination visited on gay men and lesbians, "the idea that millions of young men and women have chosen it . . . seems preposterous," Posner seems to prefer the choice theory regarding lesbians. He reasons that any genetic basis for "lesbian preference would have tended to be selected out" in the "evolutionary era." Posner states that this era "apparently was characterized by a high degree of interpersonal violence, [and having] additional male protectors may well have done more for a child's chances of survival than to have additional female protectors." Posner also asserts that "[t]he rarity of lesbianism among animals" negates a genetic explanation of lesbianism, supporting his sociobiological theory. Therefore, assuming lesbians are made rather than born, Posner expects "opportunistic homosexuality to be more common among women than among men, at least relative to 'real' homosexuality."

I can't vouch for whether Ertman's account of Posner's arguments is a fully fair one, but I think you can get a feel for how easily Posner's economic journey into sex could generate the sort of offense that the UNLV student experienced with Hoppe.

As someone who works a lot on diversity issues, where people's backgrounds (including specifically their sexual orientation) are supposed to lead them to have different experiences and different viewpoints, I find it strange that people would rule out viewpoint differences without inquiring into the evidence. The line between a generalization and a stereotype is a fine one. The primary problem with stereotyping is in failing to treat someone who could be treated as an individual as an individual, just assuming when you have individual evidence that the person is guided by his race, gender, sexual orientation, or politics. But it should be permissible to describe average differences between groups, such as that African-Americans tend to vote for Democrats.

I have been working a bit on differences in gay views over the last year (I'm director of Northwestern's Demography of Diversity Project). There is very little published work in the field—and it often conflicts. A recent study found no differences in reported happiness between gays and straights, while perhaps the leading study (Laumann et al.) found that gays are somewhat less happy. Would Ed Laumann, former provost and former chair of Sociology at the University of Chicago, be reprimanded if he were to present his data at UNLV? I could imagine some people being offended to hear Laumann's claim that gays in his sample reported being less happy, though one might attribute such a feeling (if true) to discrimination. If Laumann is wrong (or if his findings are not generalizable to more recent years, as more recent data hints), collecting and analyzing additional data is the way to refute him.

Certainly, stereotypes about gays can be used against them. Peg Brinig and I have been kicking around the idea of examining the claim sometimes made in custody cases that gays are more selfish or less altruistic and thus less likely to make good parents. My preliminary exploration of the data suggests that this stereotype of gays and lesbians is probably false.


(To read about the results of my data analysis on questions relevant to Hoppe's general planning claim, click here)


There is good evidence on one GSS question about the future (GRNECON) that gays and bisexuals on average have different views from straights and celibates. Of course, one of the premises of the diversity rationale is that gays and bisexuals have different views on some issues, so this is hardly surprising. Yet the results on the GRNECON question show gays being relatively more concerned about future environmental issues (not less as the Hoppe hypothesis might suggest).

On a more relevant question about planning for the future, there are no significant results using usual scholarly standards. But if you mine the data fairly aggressively (and without a theoretical justification for doing so), there is one specification in which the data point to gays and bisexuals planning less. And the significance of that model disappears if you control for marital status, which would also fit Hoppe's claims.

On balance, the data that I looked at suggest that there are likely systematic differences between gays and straights on average in some aspects of planning, but the nature of that difference is probably not what was hypothesized by Hoppe. In other words, there is more evidence in the data I examined that Hoppe is wrong than that he is right, but there is some evidence on general planning that he is right, though that evidence does not reach significance using usual scholarly standards for choosing models to test.

From what I have seen, the general Hoppe hypothesis is probably false, though it may be true in some particulars. If it's true beyond the number of sexual partner differences (which are probably substantial, but not huge), the effect is almost certainly too small to explain much. But that should be decided in a scholarly setting, not one that challenges the right of an economist to put forward his economic theories in class.