Saturday, March 12, 2005

A Cri de Coeur of a Law Review Editor: On Letters of Marque, Heidi Bond makes an excellent point:
I've basically come to the conclusion, after three weeks, that it's bad for everyone that every single major Law Review gets something like two thousand submissions a year. It's bad for us, because we can't get our heads around all the papers, and feel swamped in guilt. It's bad for law professors, because you have to aim your articles to be selected by an audience that will give your paper a cursory look-see. It's bad for people who want to be law professors because we get so many papers that we must sort using proxies, which might discriminate. It's bad for legal scholarship, because when you're picking 15-20 articles out of a thousand, minus the ones that Yale takes first (grrr!), you look for reasons to reject papers, many of which might ignore vast fields of scholarship.

I make an effort to put extra time into papers where I know my understanding of the subject matter is lacking to counteract this effect. But, quite frankly, law professors, you cannot give a handful of 2Ls 2000 50 page articles (which, despite the article length policy, is the lower end of what we're receiving) to evaluate and then complain that you don't like their selection criteria.
She then offers this suggestion worth considering:
The easiest, simplest thing the legal profession can do to improve selection criteria on law reviews is to stop paying for law professors to submit their articles to every journal under the sun. It's a prisoner's dilemma -- every individual is better off submitting to as many journals as possible, but editor's time is a scarce resource. If we had fewer articles, we could read them all carefully; we would be able to have a dialog with the author, instead of a blackbox form-letter rejection; we could take time to discuss pieces with faculty on a regular basis, instead of a quick check just before the piece went to a full read. Okay, maybe not all of those things, but some of them.
On a different note, one of my pet peeves is that student-edited law reviews are justified by law professors on the grounds that working with faculty authors educates law review editors, and then, as authors, professors turn around and complain when they need to educate law review editors during the editorial process. In other words, it is OK for faculty members at other schools to educate OUR students, but highly annoying when we must educate THEIR students. (I think I could have used an student editor for the last two sentences.)
Kristof's Nighmare:

Nicholas Kristof believes the environmental movement is in "deep trouble." In today's NYT he explains:

environmental groups are too often alarmists. They have an awful track record, so they've lost credibility with the public. Some do great work, but others can be the left's equivalents of the neocons: brimming with moral clarity and ideological zeal, but empty of nuance.

What's more:

The loss of credibility is tragic because reasonable environmentalists - without alarmism or exaggerations - are urgently needed.

Given the uncertainties and trade-offs, priority should go to avoiding environmental damage that is irreversible, like extinctions, climate change and loss of wilderness. And irreversible changes are precisely what are at stake with the Bush administration's plans to drill in the Arctic wildlife refuge, to allow roads in virgin wilderness and to do essentially nothing on global warming. That's an agenda that will disgrace us before our grandchildren.

So it's critical to have a credible, nuanced, highly respected environmental movement. And right now, I'm afraid we don't have one.

Kristof's column was prompted by an essay on "The Death of Environmentalism." For environmentalist reactions to the essay, see here.

The Latest from the Right Coast: Tom Smith writes about Peter Singer in Princeton Professor not eligible for babysitting job:
I am thinking I would not let Peter Singer babysit my kids. In this charming discussion, he allows as how killing a newborn baby is not killing a person. What I want to know is, is killing a Princeton philosophy professor who thinks it's OK to kill a new born baby, killing a person? And even if it is killing a person, technically, might it still be justified on utilitarian grounds? By killing Peter Singer we probably reduce on the margin the possibility that someday we will live in a world where you can kill new born babies but not eat fried chicken. That's a lot of utility right there. I would be willing to kill him in a humane way, or at least a not terribly tortuous way. I was thinking maybe dropping 100 tons of bullshit on him. There would be a certain poetic justice in that.
In an entirely different vein, Mike Rappaport summarizes his latest op-ed with John McGinnis in Amending the Filibuster Rule: The Constitutional Option:
The Senate majority's power to modify the filibuster is strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view – advocated most recently by Senate majority leader Bill Frist, R-Tenn. – is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.

The second view – advocated by many Democrats – is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution.

The Constitution provides only a single method – the constitutional amendment process – to entrench a rule against repeal by a majority. If Democrats were correct that rules can be insulated from majority amendment, a bare majority in each House could have passed the Bill of Rights and made it our fundamental law by declaring that only unanimous votes by both Houses could pass legislation violating its principles. The Democratic view also conflicts with a principle known since before the framing of the Constitution that one legislature cannot bind subsequent legislatures.

The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option – the route contemplated by our founding document.

Update: In his post, misunderstanding singer, Aaron Kithcart thinks Tom Smith has fundamentally misunderstood Peter Singer:

Singer maintains in his book that life, regardless of the species, should be treated with the same level of respect. When we apply this principle to our society, then by permitting the destruction of animals, we allow ourselves the right to end human life that has the same intellectual capacity of those animals we've slaughtered, i.e. babies that are born brain-dead, mentally retarded adults, etc.
I do not know enough about Singer to know who is right, which perhaps is a reason why I should not have linked to Tom's post. But I often link to posts I find interesting or provocative regardless of whether I agree. But another reader wrote
I was disappointed that you posted the quotation from Tom Smith ridiculing Peter Singer, as I do not think it in keeping with the usual tone of the Volokh Conspiracy. Though I am politically on the left (and, incidentally, a vegetarian since the 1970s, when I read Peter Singer's Animal Liberation), and often disagree with what I read on the Volokh Conspiracy, I read it because its contributors generally post reasoned arguments, not ridicule of positions with which they disagree.
Though offered as a criticism, I take this as a compliment. I think all of us on the VC do strive to adopt a measured and reasoned tone, in part, because of the wide diversity of our audience. I am glad this reader appreciates this even if he thinks I let him down on this, hopefully rare, occasion. But I do think there was more of substance to Tom's entire post--not just the acidic teaser I excerpted--assuming, of course, that he interpreted Singer's position correctly.

Further Update: Neo-Libertarian thinks Toms Smith accurately characterizes Singer's position.

For the record, the excerpt from RightCoast is correct on quoting Singer (my fingers keep typing 'Sanger' in a Freudian slip), because all the excerpt blames Singer for doing is saying that killing a newborn is not killing a person. That’s really Singer's position, so the excerpt is correct. Unlike the correcting e-mail, Singer includes normal-birth babies as well (see the second question in part III of the FAQ).
Read the rest here.

CU's Academic Culture Ignored:

That's the title of my latest mediacolumn for the Rocky Mountain News. Although the media have investigated Ward Churchill extensively, they have failed to examine the dysfunctional culture of the University of Colorado's humanities departments--which protected and promoted Churchill despite numerous warning signs, and which safeguards true academic freedom only for the far left. I also look at the case of Phil Mitchell, a conservative CU instructor and an outstanding who is being forced out because of his political views, with nary a word of protest from the media and faculty.

My Dartmouth Trustee Email:

Dartmouth readers--as one of the few College-approved contacts with alumni during the Trustee election, we are permitted to send 2 emails during the balloting period. This past Thursday (the 10th), you should have received an email from two candidates, one from me and one from another candidate (Ric Lewis). They should have arrived roughly at the same time in your inbox sometime between 5:00-6:00 p.m. on Thursday. I have received several isolated reports from friends who (1) received Mr. Lewis's email but (2) not mine, and I am trying to determine whether there is a problem here, and if so, the scope of the problem. Others have received both of ours. I have not yet heard from anyone who received mine but not Mr. Lewis's.

I have enabled Comments. If anyone is reading this, could you please let me know via Comments or by email whether on Thursday you received both emails, Lewis's email but not mine, or mine but not his. You can respond to if you don't want to leave a comment here. I am interested in hearing from those who received both emails, one or the other, or neither.

Thanks for your help.


Friday, March 11, 2005

Tim Lambert on John Lott's 2002 study.--

Tim Lambert has a new post on John Lott's 2002 study of Defensive Gun Uses. It is worth reading, as are some of Lambert's older posts on closely related issues.

Getting a Law Teaching Job IV: Eric Goldman of Marquette has some very insightful things to say on the topic of getting a teaching job in a series of blog posts that you can access here. He and I agree about a whole lot, but there is one cliche he invokes that I resist: "Law professors," he writes, "say that we have the best job in the world and that we can't believe we get paid to do what we do." If you like to teach and publish then indeed we have do a wonderful job. I would rather be a law professor than anything else, including a judge. But being a law professor is lots of work (or it is if you do the whole job) and I fully expect to get paid for it. Especially as I am hopefully making it possible for lots of students to get paid lots of money over the course of their careers, while bringing credit to the law school with which I am affiliated which, in turn, increases the value of the degree we are imparting on students. Moreover, since you can always do more reading and writing and speaking--and the more successful you are the more opportunities you have to write and speak--in a sense a law professor-scholar is never really off the clock. So lets leave the "I would do it for nothing" rhetoric to the movie actors (who demand millions in salary).

Second, and more seriously, a junior professor from a school ranked by US News in its Tier 4 (the lowest) writes:
Thanks for making the point about affiliation and faculty quality. . . . I’d also like to second your observation about scholarship. One of the worries I had about coming here concerned whether I’d be able to place articles in journals where they’d be likely to get noticed. . . . But I’ve submitted two articles since I’ve been here, and they’ve both ended up in “top 20” journals. In fact, with this most recent article I had the experience of my dreams: three offers from very good journals within the first week of sending it out (and, I subsequently learned, I was likely to have received offers from at least a couple others if I hadn’t shut the process down). So yes – it is very possible to place things well and, I’m hoping, to get noticed as a scholar.
I am pleased to hear this confirmation, but not surprised. This was not always the case, but thanks to the enlightened policies of many top law reviews, and the fact that smart intellectually-inclined law professors-scholars now teach at all tiers of legal education, it is certainly true today. Those who have the hardest time publishing well these days are scholars writing in specialized fields, or using technical methods, that law review student editors find hard to appreciate or evaluate. But that is another story.
Reflections On Guatemala:

Some reflections:

1. Guatemalans are very concerned about the future of freedom in Central America. While we tend to think that things are basically going fine, many of the countries in Central America are starting to turn back to Socialism. Great concerns in Guatemala.

2. The most recently issued license plates on cars in Guatemala are made of paper. I am told that President Portillo awarded the license-plate manufacturing contract in return for a bribe, and he and the contractor split the loot. Now they have no license plates and no money to make them. So they have paper license plates covered in plastic (it is really bizarre).

3. Guatemala's airport is nicer then Miami's. Which really an observation on what a pit Miami's airport is.

4. Francisco Marroquin has the most beautiful university campus I have ever seen, carved out of a nature preserve in the middle of Guatemala City. Absolutely gorgeous.

Just Back From Guatemala:

I just returned from a week in Guatemala at the remarkable Universidad de Francisco Marroquin in Guatemala City. A truly remarkable institution, filled with brilliant and friendly professors and extraordinarily bright and engaged students. Each student is required to take 3 semesters of study of market economics and 2 semesters of Social Philosophy, basically reading Hayek one semester and Mises the next.

I was a guest of CADEP, the public choice center at Francisco Marroquin, headed up by my old Dartmouth friend Carroll Rios, who is a professer at Marroquin. CADEP organized a city-wide program for university students on law, economics, and public choice, that had probably 150 students in attendance. The program is only in its third year, and she already has the various universities around the city pleading to host various days of the program.

Unfortunately, I had a whirlwind in-and-out trip, so didn't get to see much of the country. Did pop over to Antigua for dinner one night, which was beautiful. And brought home some great Guatemalan coffee!

Two Can Play This Game: A number of federal judges have signalled their willingness to expand the scope of constitutional rights recognized for those held at Guantanamo Bay beyond that suggested by pre-9/11 law. The Bush Administration is now responding to this trend -- by moving detainees out of Guantanamo Bay.
The Problem With Partners These Days: They just don't understand law firm loyalty. (Or rather, they do.)

Related Posts (on one page):

  1. The Problem With Partners These Days:
  2. Are Young Associates Slackers, or Just Rational Actors?:
Court Decision in the Apple Subpoena Case:

The court has just approved the subpoena against the service provider in the Apple v. Does case, which involves trade secrets that were leaked to and then posted on some blogs.

The judge did not deal with any possible subpoenas against the bloggers. He thus didn't decide whether bloggers are entitled to be treated the same as other journalists, but concluded that in any event the subpoena against the service provider -- which the service provider isn't contesting -- is constitutionally permissible.

The judge did, however, signal that he isn't fond of third parties posting illegally leaked trade secret, analogizing them to "fences" of stolen information. I have argued that the First Amendment bars imposing trade secret liability on third parties, such as newspapers or Web sites, see pp. 739-48 of this article, but it sounds like the judge disagrees.

Getting a Law Teaching Job III: I received the following thoughtful email from a lawyer reader:
I have been reading with interest your and others' blogging on getting a position as a law professor. One point that I have not yet seen made, and that I think is important, is that no one should be going that route unless he has a passionate interest in his field. Choosing to go into teaching is different from choosing between litigation and corporate, or between private practice and government. Because law professors must publish, the professor with nothing to say is forced to make himself heard through unneeded articles that "shed pseudo-light on non-problems" (if I recall correctly from Lucky Jim).
I tend to agree with this sentiment. You will be much happier as a law professor if you are a successful scholar, and much more successful as a scholar if you have something to say. You must love the subject you choose to specialize in and it is much better if you teach in the same subject you write about.

However, the most common result of being a professor with nothing to say is that you stop writing after tenure. I would not be surprised to learn that less then 5% of tenured law professors still write regularly. Many (but far from all) who do not write resent the attention paid to those who do. Sometimes they will claim that they care more about teaching than those who write, as if these two activities are mutually exclusive. Indeed, I think most would agree that if you are a skillful classroom teacher, you would be even better if you are also a scholar in the field in which you teach. I know I do a better job in the classroom teaching subjects I write about than those I do not, and my teaching performance skills are the same in both courses.

Another sad fact generally unnoticed by law students is that the vast majority of professors who teach the first year subjects (Contracts, Property, Tort, Criminal Law and Civil Procedure) are not scholars in these fields. This is as true, if not truer, at the more elite schools as the dominant attitude there is that "anyone" smart can teach those subjects. Little effort is made to hire laterally established scholars in those fields, or entry level candidates with genuine interests in specializing in scholarship about first year subjects. Consequently, very few students at any law school are taught in the first year by professors who are also scholars in the field. For that, students must wait until their upper class courses. (This disconnect between teaching and scholarship in the first year also explains why first-year courses have shrunk to one semester in length as those who teach them would rather teach them less, and certainly have no incentive to resist proposals for one-semester courses that are easier to staff.)
And because law professors must have students to earn a living, marginal professors help to support marginal law schools that accept students who will realize too late that they are unlikely to find jobs worth what they've paid in tuition and are even unlikely to pass a bar exam. There is a predatory aspect to the lowest stratum of law schools, just as there's a predatory aspect to the lowest stratum of lawyers.
Here I disagree. Of course, there may be some unaccredited law schools that fit this description, but all law schools, even lower status ones, turn out many graduates who are excellent lawyers and professionally successful, and all law schools turn out graduates who are bad lawyers or who fail in their legal careers. Lower status law schools give students with weaker credentials the opportunity to practice law. It is an open question whether one should be forced by law to attend law school to be admitted to the bar, but assuming this is a good idea, it is a good thing that if you want to go law school badly enough there is a law school somewhere for you to attend. What you do with that opportunity after admission is up to you.

And because the baby boomers are growing old in their jobs at the more elite schools where mandatory retirement policies are now illegal, very smart law professor-scholars are teaching at law schools with all levels of status. Indeed, it is no longer the case that you can safely judge the quality of a law professor--as either a teacher or a scholar--by his or her affiliation as once you could, especially if the professor is on the younger end of the spectrum.

This is yet another reason why one should not be snobbish about where one gets a job teaching law. While there are certainly advantages to teaching at an upper-tier school, one advantage that has greatly diminished is the ability to become known and respected as a scholar while teaching at a lower-status law school. It is not only possible these days, it is quite common. And as more of the elite law journals move towards blind review--and even policies of favoring submissions by young undiscovered authors--it is becoming more feasible than ever before to be a successful scholar no matter where you teach.
Patronage Systems:

I'm not a fan of political patronage systems myself, but a few years ago my brother Sasha pointed me to this great quote from George Washington Plunkitt, a Tammany Hall political boss of the late 1800s and early 1900s; I added it as an epigraph to the patronage cases section of my First Amendment textbook:

The civil service humbug is underminin’ our institutions and if a halt ain’t called soon this great republic will tumble down like a Park-avenue house when they were buildin’ the subway, and on its ruins will rise another Russian government.

This is an awful serious proposition... Let me argue it out for you. I ain’t up on sillygisms, but I can give you some arguments that nobody can answer.

First this great and glorious country was built up by political parties; second, parties can’t hold together if their workers don’t get the offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there’ll be h--- to pay...

Let me tell you that patriotism has been dying out fast for the last twenty years. Before then when a party won, its workers got everything in sight. That was somethin’ to make a man patriotic. Now, when a party wins and its men come forward and ask for their reward, their reply is, ‘Nothin’ doin’, unless you can answer a list of questions about Egyptian mummies and how many years it will take for a bird to wear out a mass of iron as big as the earth by steppin’ on it once in a century?’”

Authoritarian Cultures Clash:

Coercive egalitarianism versus traditional Islam:

Swedish home furnishings giant IKEA is guilty of sex discrimination by showing only men putting together furniture in its instruction manuals, Norway's prime minister says.

IKEA, which has more than 200 stores in 32 nations, fears it might offend Muslims by depicting women assembling everything from cupboards to beds. Its manuals show only men or cartoon figures whose sex is unclear.

Jewish "Self-Loathing":

A reader pointed me to a Web post titled "Jews and Self-Loathing," which condemns some Jewish writers' work that "promote[s] their own stereotypes," and expresses doubt that "certain forms of Jewish humor is really good for the Jews."

I'm always skeptical of these claims of "self-loathing," whether in politics or in literature or entertainment. They generally strike me as hyperbole that works to insult but not really to enlighten.

I suppose some Jews who portray Jewish characters with negative traits may actually loathe themselves, or loathe Jews (see Eric Muller's thoughts, and my response to them). I suspect that most don't.

Rather, they may want to criticize some aspects of Jewish life (whether Orthodox or secular). They may want to point out some aspects of common Jewish behavior that are funny.

Or they may just want to tell a story in which some character is Jewish, interesting, and credible. They may want to create rich characters that have good points as well as bad ones. They may want to describe characters as they or others see them: Saying that someone has a Jewish nose may indirectly bear on those very points. Or they may want to be vividly descriptive; a Jewish nose is not the same as a strong or prominent nose, for instance.

What's more, the ability to make fun of one's own group is often healthy: It helps people critically examine certain traits, and it also makes for good comedy. Conversely, judging either literature or comedy based on whether it's "good for the Jews" (or good for anyone else) tends to make for not very good literature or comedy.

There are, I'm sure, some costs in perpetuating stereotypes -- even often accurate, though naturally incomplete, stereotypes -- of Jews or of others, even in fiction. But I think there are greater costs in demanding that humor or storytelling be socially responsible. Sometimes there's a story that reflects badly on people in some group (consider movies about the Italian mafia). It's important for observers to realize (and if necessary to stress to others) that the story isn't supposed to characterize all or even most members of the group, but I don't think that authors should refrain from telling the story for fear that it will fuel wrongheaded views.

Now of course one can get only so far by talking about this in the abstract. The post points to an article that discusses Meet the Fokkers; I haven't seen the movie, so I can't speak to it. But I doubt that it truly represents self-loathing. And I suspect that asking Jewish writers to focus on whether their stories are bad for the Jews will just lead to bad Jewish writing.

Judge Issues a Probably Unconstitutional Prior Restraint

in the USA Next gay wedding photo case, at least if this blog account is accurate.

The judge issued a temporary restraining order against further airing of the ad, apparently on the theory that the ad infringes the same-sex spouses' right to control the use of their likenesses (the right of publicity or the right to block misappropriation of likeness). I argue below that the right of publicity doesn't cover the use of people's likenesses in political ads, and I remain quite confident of that. But even if the plaintiffs potentially have a good damages claim, an injunction of such political ads before a trial on the merits — based not on a final judgment that the speech is unprotected but on a mere finding of likelihood of success — is an unconstitutional prior restraint.

Mark Lemley and I give more details in this article. I should say that some lower courts have authorized such preliminary injunctions in the past, but I think they were quite mistaken as a matter of First Amendment law. I hope USA Next promptly appeals; they have a very strong claim here, both under the First Amendment and under substantive right of publicity law, which is on their side.

Thanks to David Kravitz and Jason Walta for pointers to the story about the injunction.

Related Posts (on one page):

  1. Judge Issues a Probably Unconstitutional Prior Restraint
  2. Same-Sex Couple Sues Over the Unauthorized Political Use of their Wedding Photo:
Fisking Eric Alterman:

Alterman has a new column in the Nation, attacking Cathy Young for criticizing his insipid defense of the British Muslim Affairs Council boycott of Holocaust memorial ceremonies. A Fisking follows (and here's Young's most recent take):

[UPDATE: Alterman is running a campaign to get the Boston Globe to fire Young as a columnist. She's a great columnist, and a frequent source of ideas for VC posts. You can write in her defense to her editor, Nick King, at]

Young's attack on me shared some of these bizarre qualities. She seized on a brief blog item I wrote on, in which I noted the insensitivity of demanding that Arabs attend Holocaust remembrance ceremonies that (of course) made no mention of what many Arabs believe to be the Holocaust's connection to what they consider their own "catastrophe"--namely, the founding of the State of Israel.

It was the British Muslim Affairs Council that boycotted the Holocaust ceremony, not "Arabs." I don't have exact figures, but it seems pretty obvious that most British Muslims are from the Indian subcontinent [UPDATE: as noted here], not Arabs. And if the Arabs (and/or Muslims) think that the founding of the State of Israel is the moral equivalent of the Holocaust, that's grounds for condemnation, not understanding. Indeed, the reason given for the boycott was Israel's "genocide" against the Palestinians was not also commemorated, which is a horrible and inaccurate calumny against Israel (which, if it actually wanted to commmit genocide against the Palestinians certainly has the capacity to do so, and instead kept even the water and electricity flowing to the West Bank and Gaza and the height of the suicide murders). Is it insensitive to point out a blood libel? Is it insensitive to ask that the victims of the Holocaust not be used to score political points against Israel? Is it insensitive to ask British Muslims to see Holocaust victims as human beings, and not representatives of the "Zionist enemy"?

Young distorted my argument to accuse me of anti-Semitism and self-hatred, using an ellipsis to make it appear as if I were describing the founding of the Jewish state as a "catastrophe" rather than attributing that view to Palestinians and their Arab supporters.

Alterman wrote in his original piece: "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." "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."

Once again, Alterman confuses Arabs with Muslims. And the idea that "Israel and its supporters" are causing "much" of Arabs' suffering in a despotic, corrupt, and poor region where Saddam Hussein's dictatorship was more or less par for the course, is absolutely absurd. Not to mention--and I'm sorry to have to consistently repeat this--that the suffering of the Palestinians is largely self-inflicted, in the sense that they first refused to recognize Israel's right to exist for forty years, starting with the U.N. patition plan of 1948, and when they purported to change their collective minds, Arafat was ultimately unable to exchange the rifle for the olive branch (not to mention that the Arab states decided to use Palestinian refugees as a political tool, rather than resettling them). In any event, plenty of Jews, including me, recognize that the Palestinians have indeed suffered, self-inflicted or not. So why can't a Muslim group, as a representative of a great religious tradition, recognize one of the great horrors of world history, which, after all, happened to people? And how exactly is commemarating Holocaust victims "implicitly endors[ing]" any "view" other than that the Holocaust happened and it was a terrible tragedy? Unless Alterman wants to defend the rampant Holocaust denial in the Arab/Muslim World.

She went even further, insisting that by acknowledging that Palestinians and their supporters perhaps had reason to be less than thrilled with the creation of Israel, I was actually--I kid you not--blaming "long-dead Holocaust victims" and arguing that "every Muslim is justified in viewing every Jew as the enemy." (In fact, the item in question spoke of Arabs, not "Muslims." Neither Young nor her editor, Nick King, appears to understand the difference.)

We've already established that its Alterman, not Young, who doesn't know the difference between Arabs and Muslims. And yes, Alterman did imply that every Muslim is justified as viewing every Jew as the enemy. [to continue, click below]

Same-Sex Couple Sues Over the Unauthorized Political Use of their Wedding Photo:

Here's an excerpt from the press release:

A $25 million lawsuit was filed today against right-wing front group USA Next and political consulting firm Mark Montini International for stealing an Oregon couple’s wedding photo and using it without permission in a high-profile gay-bashing ad designed to drum up support for social security privatization. . . .

The suit alleges that the use of the couple’s image without permission constituted an invasion of privacy, was libelous, violated their right of publicity and constituted an intentional infliction of emotional distress.

In one version of the USA Next ad disseminated widely on the Internet in February, and aired repeatedly by television news programs and newspapers nationwide, the couple’s image, superimposed with a green checkmark, is side-by-side a picture of a US soldier with a red “X” across it. Below the photos is the phrase “The REAL AARP Agenda.”

This seems to be the ad:

I've read the Complaint and the case seems like a pretty clear loser:

  1. The plaintiffs claim that the ad libeled them and placed them in a false light by "stating directly or by implication that the plaintiffs are unpatriotic American citizens who do not support the United States military while our nation is at war." But I don't think reasonable viewers would understand the ad that way.

    They would understand the ad as claiming (whether accurately or not) that the AARP doesn't support the military enough. They would understand the ad as implicitly claiming that gay marriage is bad (an opinion that can't form the basis for a libel claim). But nothing in the ad suggests to reasonable viewers that the men don't support the military. So there's no false statement about the plaintiffs, and thus no libel or false light claim.

  2. The plaintiffs claim that the ad appropriated their likenesses in a way that benefited USA Next and Montini commercially. But political ads, even ones that help raise money for a group (or that earn the political consultant money), are treated as fully protected speech under the First Amendment, and not as the less protected "commercial speech." Such political ads are also generally not covered by the misappropriation of likeness tort, just as other fully constitutionally protected but commercial uses — news reporting, biography, fiction, and so on — are not covered. The misappropriation tort generally covers, with very few exceptions, only commercial advertising (rather than political advertising) and merchandising, such as T-shirts, action figures, and the like.

    The closest case I've found to this is Battaglieri v. Mackinac Center for Public Policy, a Michigan Court of Appeals case from 2004 that involved the unauthorized use of a person's name (whether it's name or likeness doesn't matter) in a political fundraising ad. And the court held that the ad was constitutionally protected against a misappropriation tort claim, even though "it was also a clear request for charitable contributions to support [defendant's] work."

    Also, though the lawsuit was filed in the District of Columbia, the general rule in misappropriation cases is that courts should apply the law of where the plaintiff lives. Here, that's Oregon, and the leading Oregon case on this — Anderson v. Fisher Broadcasting Companies, Inc., 712 P.2d 803 (Ore. 1986) — reads the misappropriation tort quite narrowly, basically applying only when the defendant "exploits a distinctive economic value of an individual's identity or image beyond that of other similar persons for purposes of associating it with a commercial product or service." I don't think that USA Next would be covered by this definition, since it's selling political ideas, not a commercial product or service.

  3. The plaintiffs' invasion of privacy claims are just their false light claims and their appropriation claims; for historical reasons, both of these torts have often be labeled "invasion of privacy." They have no separate claim of invasion of privacy by wrongful disclosure of private facts. I think Oregon courts probably don't recognize such a claim, see Anderson; publishing a photo of people kissing in public isn't treated as such an invasion of privacy, Gill v. Hearst Pub. Co., 253 P.2d 441 (Cal. 1953); and in any case the plaintiffs aren't making such a claim.
  4. The plaintiff's intentional infliction of emotional distress claim is also a pretty clear loser. Courts generally limit the tort to outrageous conduct, and set the outrageousness bar quite high; I doubt this would qualify as outrageous enough. Moreover, when the claim involves speech on matters of public concern, courts generally reject the claim on First Amendment grounds. (The Supreme Court has only held that statements about public figures on matters of public concern are generally immune from emotional distress liability under the First Amendment, and that decision didn't speak about statements about private figures on matters of public concern. But its logic would apply equally to such private-figure public-concern statements, and lower courts have indeed rejected emotional distress liability in such cases.)
  5. Curiously, the strongest claim against USA Next would be a copyright claim brought by the copyright owner, which seems to be the Portland Tribune newspaper (or perhaps the photographer, if he was a freelancer and kept the copyright). But the copyright owner isn't suing (though it suggested that it might); the maximum damages in the copyright case would be $150,000, not $25 million; and USA Next would have a decent fair use defense (though it's hard to evaluate the likely strength of the defense, given how vague the fair use doctrine is).

So my sense is that the gay couple should lose, and will lose if the case comes to court, and USA Next will and should win. I sympathize with the plaintiffs' upset here, and I think it was rude for USA Next to drag the plaintiffs' picture into a political cause that they don't support. But, at least setting aside the copyright question, USA Next was behaving within its legal and constitutional rights.

Related Posts (on one page):

  1. Judge Issues a Probably Unconstitutional Prior Restraint
  2. Same-Sex Couple Sues Over the Unauthorized Political Use of their Wedding Photo:
Seismic Map of the World,

based on a seemingly very thorough database (we're talking many entries per day). Cool and scary. Thanks to Neil Reinhardt for the pointer.

Is the Israeli Military Anti-Dungeons-&-Dragons?

This story says yes:

Ynet has learned that 18-year-olds who tell recruiters they play the popular fantasy game are automatically given low security clearance.

“They're detached from reality and suscep[ti]ble to influence,” the army says.

I'm not sure how accurate the story is; for instance, a few paragraphs down it says:

"One of the tests we do, either by asking soldiers directly or through information provided us, is to ask whether they take part in the game," he says. "If a soldier answers in the affirmative, he is sent to a professional for an evaluation, usually a psychologist."

More than half of the soldiers sent for evaluation receive low security clearances, thus preventing them from serving in sensitive IDF positions, he says.

"Automatically given low security clearances" isn't the same as "more than half . . . receive low security clearances" (though it's not clear whether the denominator in the latter statistic is all people referred for evaluation, or just D&D players); and this is the sort of inconsistency that makes me uncertain about the rest of the story's claims.

Still, if the story is accurate, it seems odd. Maybe D&D circles have changed a lot, or maybe the ones I was in were unrepresentative — or maybe I'm a lousy judge of who's detached from reality and susceptible to influence. But my sense is that most D&D players are perfectly fine people. Geeks, mind you, but geek is good.

On the other hand, the Israeli military is supposed to be pretty sharp; doubtless it has the normal share of bureaucratic folly, but I'd assume that most of their judgments about soldierly quality are better than my judgments. So, who knows, maybe they're right.

Thanks to Dylan Alexander and Michael Koh for the pointer.

Getting a Law Teaching Job II: In response to my Getting a Law Teaching Job in which I suggest that candidates aim to have published two articles before going on the market, Larry Solum posts on Legal Theory Blog:
Right on the money--except that the magic number for publications is THREE not two. "Why three?" you ask. Because the AALS form that you will need to fill out leaves room for exactly three articles & you want to have a post-graduation article for each of the three spaces. The hardest part of the process is getting past the initial screen--when members of faculty appointments committees read hundreds and hundreds of AALS forms. Increasingly, their eyes seek out the part of the form with the three publications--so you want to make your best impression right at that moment!
Good advice. Another piece of advice is READ LEGAL THEORY BLOG regularly. It is a uniquely valuable way to get up to speed on current legal scholarship. It is widely read by law students with teaching aspirations.

I also neglected to mention the value of PhD's. If your academic record after law school is not sufficient on its own to land a teaching job, a PhD in economics, philosophy or history, especially from a well-respeced program will GREATLY enhance your chances no matter where you graduated from law school. Brian Leiter has long provided guidance to philosophy programs with his Philosophical Gourmet. (I cannot get the link to Philosophical Gourmet to open, but you can find a summary here.) He offers guidance to academic job seekers here.

Update: I just saw this post by the Federalist Society:

The John M. Olin Fellows in Law program will offer top young legal thinkers the opportunity to spend a year writing and developing their scholarship with the goal of entering the legal academy. Up to three fellowships will be offered for the 2005-2006 academic year.

A distinguished group of academics will select the Fellows. Criteria include:

* Dedication to teaching and scholarship
* A J.D. and extremely strong academic qualifications (such as significant clerkship or law review experience)
* Commitment to the rule of law and intellectual diversity in legal academia
* The promise of a distinguished career as a legal scholar and teacher


Stipends will include $50,000 plus benefits. While details will be worked out with the specific host school for the Fellow, in general the Fellow will be provided with an office and will be included in the life of the school.
For application information click here. The deadline for applications is March 15!

The Pope and the President on Freedom:

That's the title of George Weigel's excellent essay detailing the similarites between Pope John Paul II's statement on Human Rights in 1995, and President Bush's second inaugeral. The Pope and the President both declared that:

1. There is a universal human nature. However different human beings are, there is, at bottom, a common humanity composed of common characteristics, longings, aspirations, and temptations.

2. There is a universal moral law inscribed in this common human nature, a moral law we can know by reflecting on those common human experiences.

3. This universal moral law teaches us the dignity of the human person, from which we can deduce certain political truths: basic human rights are inalienable; government exists to protect and advance those rights; rights imply responsibilities.

4. That moral law and those political truths set a horizon of achievement in history. The defense of freedom is a moral obligation, not simply an exercise in self-interest.

Thus, Wiegel suggests that although the Bush administration and the Vatican differed on the prudence of the Iraq War, and may well disagree again, there is basis for cooperation on many issues, "because the world’s leading political power and the world’s leading moral authority are both committed to the defense and advance of freedom in the world, over against those so-called 'realists' who insist that 'stability' is the goal in world politics."

Thursday, March 10, 2005

Steven Pinker in the New Republic on the Summers Hypothesis.--

In the New Republic, Steven Pinker (a Harvard psychologist) has a fascinating exploration of the Larry Summers affair, including a brief discussion of what Pinker sees as the possible merits of Summers's statements about women in science (tip to Tony D'Amato). (Disclosure: my wife is a Ph.D. geneticist who is a medical school professor; she has always had a greater aptitude for science than I do.)

Pinker argues:

Summers's critics have repeatedly mangled his suggestion that innate differences might be one cause of gender disparities (a suggestion that he drew partly from a literature review in my book, The Blank Slate) into the claim that they must be the only cause. And they have converted his suggestion that the statistical distributions of men's and women's abilities are not identical to the claim that all men are talented and all women are not--as if someone heard that women typically live longer than men and concluded that every woman lives longer than every man. . . .

Many of Summers's critics believe that talk of innate gender differences is a relic of Victorian pseudoscience, such as the old theory that cogitation harms women by diverting blood from their ovaries to their brains. In fact, much of the scientific literature has reported numerous statistical differences between men and women. As I noted in The Blank Slate, for instance, men are, on average, better at mental rotation and mathematical word problems; women are better at remembering locations and at mathematical calculation. Women match shapes more quickly, are better at reading faces, are better spellers, retrieve words more fluently, and have a better memory for verbal material. Men take greater risks and place a higher premium on status; women are more solicitous to their children.

Of course, just because men and women are different does not mean that the differences are triggered by genes. People develop their talents and personalities in response to their social milieu, which can change rapidly. So some of today's sex differences in cognition could be as culturally determined as sex differences in hair and clothing. But the belief, still popular among some academics (particularly outside the biological sciences), that children are born unisex and are molded into male and female roles by their parents and society is becoming less credible. Many sex differences are universal across cultures (the twentieth-century belief in sex-reversed tribes is as specious as the nineteenth-century belief in blood-deprived ovaries), and some are found in other primates. Men's and women's brains vary in numerous ways, including the receptors for sex hormones. Variations in these hormones, especially before birth, can exaggerate or minimize the typical male and female patterns in cognition and personality. Boys with defective genitals who are surgically feminized and raised as girls have been known to report feeling like they are trapped in the wrong body and to show characteristically male attitudes and interests. And a meta-analysis of 172 studies by psychologists Hugh Lytton and David Romney in 1991 found virtually no consistent difference in the way contemporary Americans socialize their sons and daughters. Regardless of whether it explains the gender disparity in science, the idea that some sex differences have biological roots cannot be dismissed as Neanderthal ignorance.

Since most sex differences are small and many favor women, they don't necessarily give an advantage to men in school or on the job. But Summers invoked yet another difference that may be more consequential. In many traits, men show greater variance than women, and are disproportionately found at both the low and high ends of the distribution. Boys are more likely to be learning disabled or retarded but also more likely to reach the top percentiles in assessments of mathematical ability, even though boys and girls are similar in the bulk of the bell curve. . . .

What are we to make of the breakdown of standards of intellectual discourse in this affair--the statistical innumeracy, the confusion of fairness with sameness, the refusal to glance at the scientific literature? It is not a disease of tenured radicals; comparable lapses can be found among the political right (just look at its treatment of evolution). Instead, we may be seeing the operation of a fascinating bit of human psychology.

The psychologist Philip Tetlock has argued that the mentality of taboo--the belief that certain ideas are so dangerous that it is sinful even to think them--is not a quirk of Polynesian culture or religious superstition but is ingrained into our moral sense. In 2000, he reported asking university students their opinions of unpopular but defensible proposals, such as allowing people to buy and sell organs or auctioning adoption licenses to the highest-bidding parents. He found that most of his respondents did not even try to refute the proposals but expressed shock and outrage at having been asked to entertain them. They refused to consider positive arguments for the proposals and sought to cleanse themselves by volunteering for campaigns to oppose them. Sound familiar?

The psychology of taboo is not completely irrational. In maintaining our most precious relationships, it is not enough to say and do the right thing. We have to show that our heart is in the right place and that we don't weigh the costs and benefits of selling out those who trust us. If someone offers to buy your child or your spouse or your vote, the appropriate response is not to think it over or to ask how much. The appropriate response is to refuse even to consider the possibility. Anything less emphatic would betray the awful truth that you don't understand what it means to be a genuine parent or spouse or citizen. (The logic of taboo underlies the horrific fascination of plots whose protagonists are agonized by unthinkable thoughts, such as Indecent Proposal and Sophie's Choice.) Sacred and tabooed beliefs also work as membership badges in coalitions. To believe something with a perfect faith, to be incapable of apostasy, is a sign of fidelity to the group and loyalty to the cause. Unfortunately, the psychology of taboo is incompatible with the ideal of scholarship, which is that any idea is worth thinking about, if only to determine whether it is wrong.

At some point in the history of the modern women's movement, the belief that men and women are psychologically indistinguishable became sacred. The reasons are understandable: Women really had been held back by bogus claims of essential differences. Now anyone who so much as raises the question of innate sex differences is seen as "not getting it" when it comes to equality between the sexes. The tragedy is that this mentality of taboo needlessly puts a laudable cause on a collision course with the findings of science and the spirit of free inquiry.

More from Xoxohth:

(Say, wasn't that a character I used to run when I was a Dungeons & Dragons player in high school?)

Prof. Volokh,

We were just informed about your blog post today about anti-semitism and racism on the site (your blog entry is being discussed at

We think your assessment was accurate: those threads are a very small fraction of the site, and even in those threads the overwhelming majority of posters are responding to the racists harshly. However, there are some additional points we'd like to make:

1) The site is clearly divided into on-topic and off-topic filters. We are very strong believers in the freedom of expression and the marketplace of ideas. This is why we allow off-topic discussion and almost never censor content, no matter how abhorrent it may be. However, we understand that not everyone wants to be exposed to such discussions. Some might simply want to browse the site for threads directly relating to law school, employment, etc. Go figure. Hence the on-topic/off-topic filters – the default option is on-topic mode, and in order to see the offensive material in question, one has to pro-actively enter off-topic ("expert") mode. If an individual does not want to be exposed to discussion of politics, sports, or racism, all that individual has to do to avoid 99+% of that content is stay in school-related mode.

2) That said, some posts do slip through the cracks. We trust our users to classify threads as school-related or off-topic, and although the overwhelming majority classifies their threads appropriately, on a daily basis you can expect at least one or two threads to slip through the cracks. This is usually not a big deal, but over a period of months it can add up, as you can see by the number of threads that appear in school-related mode when you search for racist terms. However, keep in mind that typical users are not going to see a flood of those threads when they go to the site. The only time you'll see twenty or so racist threads on the site is if you proactively search for them, which is what your colleague took upon himself to do when he used the search box to search the entire site specifically for those various racist terms he came up with.

3) The very reason our student-run community has been so much more phenomenally successful than all of its competitors, in its single year of existence, is that it respects the merits of the free, uninhibited exchange of ideas. In fact, one finds overall a much deeper and much more mature level of insight in a community where the ugliest depths of human opinion are confronted, rather than ignored. And the majority of the school-related content on the site speaks to that fact. That is our community; take it or leave it.

4) This community, which for the above reasons has been the object of ongoing controversy, has given birth to some truly noteworthy academic studies. Just today, one of the administrators, Anthony Ciolli, released a working paper on the determinants of law school national employment placement at elite firms (available at Another respected member of the community, Aaron Chalfin, this past November published a study on how law schools are ranked by current and prospective law students, which received much attention across the law school admissions community (available at There is no other admissions discussion board on the Internet whose members possess such a collective body of knowledge and wisdom, and we attribute that to the hands-off moderating philosophy we have discussed in this letter.

Anthony Ciolli, Jarret Cohen Administrators

Naturally, I can't speak to the merits of the site (though Xoxohth was quite a guy, 18/00 dexterity, 16 intelligence, . . . — or am I confusing him with Fafhrd), but I thought I'd post the operators' response.

UPDATE: Two correspondents have admonished me that only strength could be 18/00, not dexterity. That's not how I remember playing it (and recall that the rules of D&D were always flexible), but a quick google search reveals many more strength 18/00s than anything else 18/00. Naturally, this is very important for understanding the proper social response to racism and anti-Semitism on law student discussion sites.

Guess Who's Against Swearing Now:

From a Reuters story:

Former [Sex] Pistols bassist Glen Matlock has called for swearing on British television to be curbed . . . .

As a teenager, Matlock co-wrote some of the Pistols' most enduring anthems like God Save The Queen and Anarchy In The UK. He left the group early in 1977 and was replaced by Sid Vicious.

Sid Vicious could not be reached for comment.

(OK, I made that last sentence up, but it's true!) Thanks to reader Michael Greenspan for the pointer. Note: No need for e-mails that start with "Never mind the Volokhs . . ." -- Greenspan has preempted you.

Departmental Breakdown of Politcal Correctness at CU:

Last week, I blogged on the infamous petition of 199 University of Colorado professors who demanded the termination of the Regents' investigation of Ward Churchill--notwithstanding extensive evidence of academic fraud by Churchill, and of Churchill's active promotion of domestic terrorism, in violation of his legally-required oath to uphold the Constitutions of the United States and of Colorado. The fine Denver weblog "View from a Height" has posted the full text of the petition, and a list of the signers.

Our Independence Institute interns looked up the affiliations of most of the signers. Below is a Department-level breakout of the signers. These figures should be considered an approximate first draft, in part because some professors have cross-departmental appointments. As Derrida would have pointed out, some of these categories are subject to contestation. Even so, the figures give a rough guide to the areas of the school where Churchill's support is strongest. Of course some departments are much larger than other departments, and these are raw figures, not "rates" for departments. In some cases, related departments or units are grouped together.

Language Arts. English/Writing: 30 signers. Communication: 2. French & Italian: 9. German: 2. Linguistics: 1. East Asian languages: 5. Spanish/Portuguese: 1.

Hard Sciences and Math. Biology/Physiology/Ecology: 16. Math: 8. Chemistry: 4. Geology: 2. Psychology: 3. Speech/hearing: 3.

Humanities and Social Sciences. Theatre: 5. Film: 4. History: 9. Art/Art History: 6. Classics: 2. Geography: 5. Anthropology: 3. Philosophy: 5. Religious Studies: 1. Political Science: 2. Economics: 1. Sociology: 4.

Professional Training. Education: 15. Journalism: 9. Business: 1. Law: zero!

Don't read too much into these figures; the English Department is certainly dominated by post-modernists, but the fact that no Law professors signed the petition doesn't mean than the Law faculty does not, on the whole, tilt very strongly left. Rather, the explanation may be that Law professors had a better understanding than did, say, the French professors, how foolish it was for the petition to claim that the investigation itself was a violation of Churchill's First Amendment rights.

Lost in Transcription:

A reader writes, apropos my comment about tell LEXIS and WESTLAW erors:

Look at 42 C.F.R. 441.303(f)(1), on LEXIS:

The annual average per capita expenditure estimate of the cost of home and community-based and other Medicaid services under the waiver must not exceed the estimated annual average per capita expenditures of the cost of services in the absence of a waiver. The estimates are to be based on the following equation:

D+D minutes > G+G minutes .

The symbol ">" means that the result of the left side of the equation must be less than or equal to the result of the right side of the equation.

D = the estimated annual average per capita Medicaid cost for home and community-based services for individuals in the waiver program.

D minutes = the estimated annual average per capita Medicaid cost for all other services provided to individuals in the waiver program.

G = the estimated annual average per capita Medicaid cost for hospital, NF, or ICF/MR care that would be incurred for individuals served in the waiver, were the waiver not granted.

G minutes = the estimated annual average per capita Medicaid costs for all services other than those included in factor G for individuals served in the waiver, were the waiver not granted.

First, notice that this inequality is called an equation, but let's let that pass. [EV: The word "equation" is in the CFR, not in the LEXIS version.]

Second, see how the greater than symbol is defined, for those readers who don't know math, to mean less than or equal to.

Third, why are two of the quantities called "D minutes" and "G minutes"? The definitions are similar to D and G, respectively, so that "D + D minutes" and "G + G minutes" are both total costs of something. So I figured out that they must be primes, which the translation to LEXIS must have converted into "minutes."

You can check the text of the regulation [here] and you'll see that, indeed, it is a less than or equal sign, and primes. [EV: I had trouble pulling up the PDF, but I trust my correspondent, and the text version

Finally, check the regulation on Westlaw (where I've often found there are fewer mistakes), and you'll see that they have it exactly right.

I'm pleased to say that my correspondent assures me that he is indeed reporting this to LEXIS. But let this be a warning to us all . . . . (And, yes, I do rely on LEXIS and WESTLAW versions of many documents myself, and count on cite-checkers to check them against the print versions, unless something strikes me as really wrong or the matter is extremely important. I try to be careful, but there are limits.)

Related Posts (on one page):

  1. Lost in Transcription:
  2. Cheap Altruism for Law Review Editors:
Errors We Make in Our Ignorance:

Max Boot's column about Iwo Jima made me think of the Marine Corps, and reminded me of an incident a few years ago. I was having dinner with a think-tanker in D.C., and I noticed a pin he was wearing. He noticed me noticing, and asked me if I knew what it was.

The pin, which was small and had no legible writing, most obviously contained a two-dimensionable representation of the globe, with an eagle above it. But then I noticed that behind the globe was an anchor. "Is it related to the Navy?," I asked, entirely innocently. (Like many in my circle, I've had very little exposure to the military.)

Being an honest fellow, he had to admit that it was, in a sense -- but the way he bristled made it clear that he thought the relationship was something that was very minor, and that obscured much more than it revealed. Then I realized my error.

"Rethinking the Iwo Jima Myth":

Max Boot, who has written on military history, has an op-ed on this subject, which struck me as interesting, both for its historical substance and its conclusion:

No [criticism of the decision to take Iwo Jima] was heard at the time, in part because of the rah-rah tone of World War II press coverage but also because Americans back then had a greater appreciation for the ugly, unpredictable nature of combat. They even coined a word for it: snafu (in polite language: "situation normal, all fouled up"). It's a shame that so many sentimental tributes to the veterans of the Good War elide this unpleasant reality, leaving us a bit less intellectually and emotionally prepared for the trauma of modern war.

Passive Voice:

"Avoid the passive voice!," writers are often told. That's good advice — but it shouldn't, I think, be taken to extremes.

Passive voice is bad for three reasons: (1) It tends to be less engaging, (2) it usually adds a few more words and some extra grammatical complexity, and (3) it tends to obscure who's actually doing something. "The dog was bitten by the man" is an example of passive voice bringing less verve, and requiring more words, than the active. "Mistakes were made" is the cliche example of passive voice as obfuscation or barrier to analysis.

But sometimes passive voice is just fine, especially when you want to focus on the object of the action rather than on the actor. Here's an example I ran across a while back: A draft said:

Neither we nor the government need sit idle when evil ideas are spread.

Someone suggested that it be changed (more or less) to:

Neither we nor the government need sit idle when people or groups spread evil ideas.

The original was in the active voice, but the "when" clause was in the passive. The replacement is entirely in the active.

But is the new version really better? It's actually a bit longer and more complex, because it adds a reference to the actor. The addition isn't just a single word, but the phrase "people or groups." The new phrase is relatively bloodless, and I suspect somewhat less vivid than "evil ideas."

More importantly, the new phrase needlessly shifts the reader's focus from the substantively important noun phrase — the "evil ideas," which are the reason that we must act rather than sitting idle — to the less significant "people or groups" that spread the ideas.

Now maybe there's some other value to the edit that I'm missing. But I do think that the partly passive original is more effective than the wholly active replacement.

UPDATE: An interesting item on passive voice in technical documentation.

More About Online Racism and Anti-Semitism:

I had an exchange with another lawprof that I thought might be worth airing, since it deals with the genuinely difficult question of the proper private, nongovernmental response to evil speech (which as it happens is the broadest version of the subject of my forthcoming law review article on "Deterring Speech: When Is It "McCarthyism"? When Is It Proper?). The lawprof wrote to me:

I read with some horror, and admiration for Eugene's forthrightness, the exchange with the NeoNazis who began "counting Jews" on the UCLA law faculty. These fringe nuts are a bit scary, but I must confess I find the following even scarier, since it involves the kids who are or may be our students:

Click on a few of the threads that are called up, and you'll see what I mean. This purports to be a prelaw discussion site, and it appears a large number of applicants and current law students post there. If the appalling anti-semitism isn't enough, then try the racism:

or more here:

Perhaps if you called attention to this, the site's managers might "clean up" the content a bit? And perhaps students might be encouraged to move to the more mature and civil prelaw sites, such as

Here's a slightly cleaned up portion of my response, which I sent to the lawprof by e-mail:

Thanks very much for the kind words, and for the pointer — these are pretty appalling posts. But my sense from just a casual look was that (1) these threads are actually a small fraction of what is posted on the site (or so it seems from a quick look at to see the most recent posts), and (2) in the few threads that I've seen, others are responding to the neo-Nazis, quite aptly and harshly. This is probably to the good, since (A) maybe a few of the idiots will be shaken out of their idiocy — not very likely, but it happens sometimes, and it's ultimately the only way of effectively fighting the problem, it seems to me — (B) and since decent readers will realize that these opinions are out there, and that it's important to respond to them. So it doesn't seem to me to be particularly wrong for the site managers people to maintain this as an unmoderated discussion board (I assume that it is).

I should stress again that I find these questions of what is the proper private response to be quite difficult, and my views on the subject are generally much more tentative than my views on many First Amendment questions. Nongovernmental entities may and often should do things that the government may not; and their ethical rights and obligations are often more complex and context-sensitive than what we'd expect from the law.

Also, if the discussion board decided to filter out rude statements in order to make the discussions more valuable, or even to filter out evil ideas because they don't want their property used to promulgate such ideas, I wouldn't object: I think they're ethically entitled to do this, and there's no reason to condemn them for it.

But I don't think they're ethically obligated to engage in such filtering, for the reasons in the start of my quote: Providing a forum for these posts, in a context where they can be quickly responded to, may actually be something of a public service.

UPDATE: My former student Raffi Melkonian writes:

I'm a long time user of the xoxo board. Your response to the lawprof . . . .is quite right. Sure, there are a wide range of stupid, racist, and otherwise unpleasant posts on the board. But it also provides a valuable service for law school applicants, facilitated by the higher traffic such openness (even to evil speech) provides. . . .
I suspect most racists would have little love for Mr. Melkonian (as you can tell from his name, he's of Armenian extraction), and he for them.

University of Colorado will make Ward Churchill a rich man:

According to KHOW-AM talk radio host Peter Boyles, a very reliable media source has informed him that Ward Churchill's attorney, David Lane, has stated that CU will offer Ward Churchill a buy-out so generous that Churchill will never have to work another day in his life. Numerous other media sources in Colorado, including the daily newspapers, have confirmed that CU is negotiating a buy-out with Churchill. If these reports are accurate, CU President Betsy Hoffman's decision earlier this week to resign was well-timed, because the Churchill buy-out, which may be announced on Monday, would have ignited a firestorm of demands for her resignation.

The Churchill buy-out may be remembered at the single most self-destructive decision ever made by CU administrators. It will be a disaster for the University's fund-raising, and will significantly weaken the University's support in the state legislature. The state legislature is currently working to create a November 2005 ballot referendum to raise Colorado taxes by billions of dollars, primarily to support to higher education. It will be very difficult to convince voters that an institution which has enough money to give Ward Churchill millions of dollars desparately needs to take more money out of the pockets of families trying to balance their own budgets every month.

The tragedy of the buy-out is that, if CU administrators had the nerve, there is an overwhelmingly strong case for firing Churchill based on academic fraud, as I detailed in a previous post.

Churchill's responses to the academic fraud evidence have been entirely unconvincing. On of his tactics is to cite various far-left professors, such as Noam Chomsky, who praise his work. That Churchill is admired, in general, by some extremist professors is hardly a refutation of the specific evidence of Churchill's fraud which has been brought forward by Professors LaVelle and Brown.

Second, Churchill attempts to obfuscate the topic by pointing to irrelevant historical data. For example, as LaVelle has detailed, Churchill lied over and over by claiming that the 19th-century federal General Allotment Act gave property rights only to Indians who could prove a certain quantum of Indian blood. Churchill does not directly attempt to defend this false statement, because it would be impossible; anyone can read the Act, and see that the Act said nothing about blood quantum, but rather left the decision about who would receive Reservation land to the Indian tribes in charge of the various Reservations. So instead, Churchill points to various 20th-century federal Indian laws which did involve a blood quantum.

It seems extremely doubtful that any jury or judge would buy Churchill's implausible defense. If you falsely write "Queen Victoria flew to the moon in a spaceship in 1887", you can't defend the falsehood by pointing out that somebody else did fly to the moon in the subsequent century.

The ultimate responsibility for CU's problems is borne by the elected Board of Regents. Preliminary indications suggest that the Regents, in their search for a new CU President, will not hire a reformer--such as former U.S. Senator Hank Brown, who did an excellent job promoting reform when he served as President of the University of Northern Colorado. Instead, the Regents will look for another apparatchik who will attempt to defend the miserable, ultra-p.c., anti-intellectual-diversity status quo in CU's humanities departments.

What Really Happened With the B-School "Hack"?: I have been getting lots of mail from techie friends and VC readers about the recent hacking incidents by applicants to a number of top business schools. I first posted about the incident here. Harvard and MIT took the matter sufficiently seriously that they decided to deny the applications of those involved. The odd thing is, it increasingly seems like the applicants may have done nothing wrong. The alleged "hack" may be no hack at all.

  I have looked for a good technical explanation of how the alleged intrusion occurred, and the best I have come up with is a post at Philip Greenspun's blog. According to Philip, this is what happened:
  The ApplyYourself code had a bug such that editing the URL in the "Address" or "Location" field of a Web browser window would result in an applicant being able to find out his admissions status several weeks before the official notification date. This would be equivalent to a 7-year-old being offered a URL of the form and editing it down to to see what else of interest might be on the server.
  Someone figured this out and posted the URL editing idea on the BusinessWeek discussion forum, where all B-school hopefuls hang out and a bunch of curious applicants tried it out.
  If this explanation is accurate — and several correspondents have suggested to me that it probably is — it means that the applicants didn't actually do anything that could reasonably be described as "hacking in" to a computer. As I understand it, the ApplyYourself computer had effectively posted everyone's admission decision on the web, just without broadcasting the URL. The applicants then followed the advice posted on the BusinessWeek discussion forum on how to find the public webpage that listed (or would eventually list) their admission decision. No one hacked into anything. The applicants just visited a public website.

  This raises two questions: First, was visiting the website in this way a crime? And second, were the business schools justified in rejecting people who had done it? On the legal question, I think the answer is "no." The basic crime here is unauthorized access to a computer; the federal government and all 50 states have such laws. It just so happens that I recently wrote a 70-odd page law review article on how to interpret these statutes. To make a long story short, the cases interpreting these statutes are all over the map, but I am fairly confident that no court would hold defendants criminally liable under them for visiting a public site in the way they did.

  As for whether the business schools were right, their response certainly seems like an overreaction to me. My guess is that the admissions people read the press reports and believed that the conduct was quite different from what it now seems to have been. If my technical understanding is right — still just an assumption at this point — automatically rejecting a candidate for admission seems too harsh. It seems rather odd to deny someone a spot at Harvard Business School for visiting a public web page.

  UPDATE: Reader Michael Kwun sends on a link to a more detailed technical explanation. Meanwhile, Michigan law student Heidi Bond is so eager to see next year's academic schedule that she "hacked in" to the law school's computer to find it.
"U.S. Withdraws From ICJ Jurisdiction Over Consular Relations Claims":

I confess that I haven't been following this closely, so I have no independent opinion on this; but Julian Ku (Opinion Juris), who specializes in international law, is on top of it. A brief summary:

I noted rumors/reports of this below, and now the New York Times confirms that the U.S. has withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations. The Optional Protocol is the provision granting the International Court of Justice compulsory jurisdiction over disputes under the consular relations treaty and the basis for Mexico's (and Germany's) applications to the ICJ. If the U.S. has indeed legally withdrawn from the Optional Protocol, then the ICJ can no longer hear future cases brought by other countries with foreign nationals similarly situated to Mexico's nationals.

For Julian's observations, go here.

Wednesday, March 9, 2005

"Rendition" Realities:

David Ignatius has a thoughtful and provocative column in today's Washington Post about "rendition."

Rendition is the CIA's antiseptic term for its practice of sending captured terrorist suspects to other countries for interrogation. Because some of those countries torture prisoners -- and because some of the suspected terrorists "rendered" by the CIA say they were in fact tortured -- the debate has tended to lump rendition and torture together. The implication is that the CIA is sending people to Egypt, Jordan or other Middle Eastern countries because they can be tortured there and coerced into providing information they wouldn't give up otherwise.

Ignatius notes that espionage and interrogation experts tend to doubt that torture works. As a friend with experience in that area put it to me: Torture makes people tell you what they think you want to hear, when what you want is the truth. Nonetheless, rendition may result in the torture of terrorist suspects when they are sent to countries where such methods are legal. Does this mean rendition should be prohibited? Ignatius is not so sure.

Before you make an easy judgment about rendition, you have to answer the disturbing question put to me by a former CIA official: Suppose the FBI had captured Mohamed Atta before Sept. 11, 2001. Under U.S. legal rules at the time, the man who plotted the airplane suicide attacks probably could not have been held or interrogated in the United States. Would it have made sense to "render" Atta to a place where he could have been interrogated in a way that might have prevented Sept. 11? That's not a simple question for me to answer, even as I share the conviction that torture is always and everywhere wrong.

Related Posts (on one page):

  1. Reconsidering Rendition:
  2. "Rendition" Realities:
Law Review Lara's Advice to Editors:

Law Review Lara loves contractions. She thinks they make articles seem more colloquial and thus accessible. She also loves other locutions that she hopes add verve and punch to her articles, for instance starting sentences with "But"'s, and a bunch of other little things. (Talking about herself in the third person is an affectation that she loves only for this column, not for her other work.) She may, of course, be entirely wrong — maybe instead of getting clarity, she's sacrificing credibility. But she's written quite a few law review articles, and if she hasn't changed her mind by now, she's not terribly likely to.

So ask yourself: If you decontract 100% of her contractions, what will Lara do? She'll probably stet or otherwise reject all those changes. It's her article, and she likes it her way. Other authors who are committed to their styles will do the same.

But if you decontract 50% of her contractions, she'll probably accept most, perhaps nearly all, of the changes. She'll assume that you've actually invested real thought into the matter, rather than just applying a flat rule with which she disagrees. She'll think you've found those contractions that seem excessive, distracting, or otherwise inapt, even from the viewpoint of someone who is following her style. And since she realizes that outside editors often have a better sense of future readers' reaction than the author does, she'll often defer to your editorial judgment.

In fact, Lara wants you to suggest changes. (She doesn't like commands, unless her work is genuinely mistaken, but she likes suggestions.) It's just that she wants you to suggest changes that will be useful. "Here's how we'd rewrite your article in our writing style" is not useful. "Here are the particular places where we think your writing style, which we know you generally want to stick to, doesn't work and should be revised" is very useful.

So if you see that an author is deliberately and repeatedly using some locution, feel free to ask her up front whether she'd be willing to have you systematically remove it. If she says yes, great. But if she says no — or, more likely, if you don't ask her — then decontracting every single contraction is wasted work for you (and needless work for her). Use your judgment to decide where you think this usage works and where it doesn't, rather than just applying a flat rule that you suspect the author has no interest in following.

UPDATE: Reader Greg Schwinghammer writes:

As a former editor-in-chief of the University of Miami Law Review, I loved your advice to editors on keeping with the author's writing style. Dead on.

When I took over at Miami, there was an ingrained culture — certainly not exclusive to Miami — in which the student editors treated the authors as adversaries. I heard a lot of complaining about the articles, and suggestions the authors were stupid. At the time, we were about 18 months behind in our production schedule. I think the complaining was partly to justify our inability to move articles through the process.

I was elected not because of intellect (by a long shot!), but because I had been an Army officer and managed people. The first step to demand respect for the authors as customers. We were blessed with three students who had each spent ten years as journalists, so were gifted writers and appreciated careful editing.

For the articles in the worst shape, we just powered through and got them done. We caught up (publishing the April 1996 edition in April 1996). Part of the reason for success was working with the authors, rather than resisting them and avoiding open communications with them.

It always amazed me that students considered themselves so superior to the authors just because the students made law review. Especially at U/Miami. Don't get me wrong — I am proud of my degree and would put the top students at Miami against students from anywhere, but the students with the attitude seemed never to notice that the authors were not exactly 1Ls. Most were accomplished and successful.

I hope law review editors take your advice.

FURTHER UPDATE: Just to make it clear, Lara doesn't think that her correspondent's story reflects standard operating procedure at all law reviews (or is intended to reflect it). Most law reviews are quite respectful of authors. Lara's regret is that even those law reviews that respect authors still sometimes categorically apply inapt stylistic rules that change an author's voice, and thus make the cooperative author-editor endeavor less effective than it might be.

Getting a Law Teaching Job: Lots has been posted lately about getting a law teaching job and I won’t try to link to it all. (For a starter set of links click here (Orin) and here (Chris Geidner)and here (Brian Leiter) and here (Christine Hurt) and here (Larry Solum).) I thought I would add my 2 cents. First as to credentials. These consist of law school, law review, grades and honors, clerkships, and practice experience. As someone who may be interested in teaching, you should think of these as “pluses” rather than absolute requirements. The more of these pluses you have, the better your chances. Why? Each is a different form of vetting. Put yourself in the position of an appointments committee member charged with filling 20 interview slots from the 700-900 one page resumes you leaf through. How do you choose? Each of these qualifications is an indication that other people have vetted the candidate already. After the law school admissions process vets you, there comes grades by each professor, law review competition (grades and, in some schools, writing), vetting by judges hiring clerks, vetting by law firms. The more competitive is each vetting and the more vettings a candidate passes, the more attractive he or she looks to a committee member with very limited information about each applicant. And at each stage of vetting, you develop references who can vouch for your character and your talents.

What is being vetted? Good question. Largely smarts and willingness to apply one’s smarts to demanding tasks. The ambition and ability to pursue a scholarly agenda is largely gleaned from publications. (see below)

Can someone be an excellent professor without some or all of these credentials? Of course. I lacked most of the items on this list myself, which partially explains why I went through the AALS job market twice before getting any job offers (from Chicago-Kent and the University of Florida – I chose Kent). In my case, the vetting process almost led to my exclusion from academia. Nevertheless, I think, while highly imperfect, it is rational given very limited information. For example, how many other legal scholars have emerged from the Cook County State’s Attorney’s office? None that I know of.

To some extent you can compensate for the absence of some of these pluses by publishing. I had an article published in Ethics–a premier peer-reviewed philosophy journal that I wrote while in law school. (To read it click here.) This undoubtedly contributed to my being hired but it was not enough to get me many interviews the first time around. The only difference between my first time through the AALS and my second was my move from the Cook County State’s Attorney’s Office to the University of Chicago as a research fellow. And I had yet to do any research.

The downside of publishing is that it may reveal vulnerabilities in your candidacy. In my case, my article revealed my libertarian inclinations which could have hurt me with some appointments committee members. I will never know. Others may simply not think well of your article. The pitfall for appointments committees is to judge pre-appointment writings by tenure standards. On the other hand, since tenure is so easily obtained at most schools, it may make sense to screen for tenure quality work before hiring an entry level candidate.

I hesitated to post anything on this subject because there is so much to say. Far more than I have said here. But I wanted to make the point that, while no one credential is essential, the more you have the better are your chances (though there are still no guarantees). The best ways to increase your odds is (a) do very well in your first year and then try to graduate with honors (b) consider transferring to a higher status law school, (c) compete for law review and if you don’t make it join an alternative journal, (d) write a publishable piece while on the journal (the failure to do so is taken as a negative sign), (e) apply for a federal clerkship, (f) take a more prestigious job after graduation, (g) specialize in a field that is always in demand and is considered less political–like corporations or tax (h) WRITE A PUBLISHED SCHOLARLY ARTICLE in your field [CORRECTION: MAKE IT TWO ARTICLES], (i) consider getting an SJD or LLM from a higher status school than your JD, (j) consider applying for Visiting Assistant Professor programs that give you the opportunity to teach and write.

Oh yes, you should TALK IN CLASS and see your professors outside of class so they get to know you and can be knowledgeable references for you. Strongly consider identifying the more successful scholars on your law school’s faculty and apply to be their research assistant for the summer between your first and second year. This will enable them to advise you and go to bat for you when the time comes. And you will get to observe first hand how a productive scholar works, which will give you something to emulate. If you really want a teaching job, then you should be willing to extend yourself to get it.

Last words of advice. I really enjoy teaching. Given that teaching occupies so much of our energies as professors, you should love teaching and try hard to be good at it. But if you do not also have a passion for writing and publishing, then you are dooming yourself to a frustrating teaching career. For better or worse, most of the external rewards of academia go to those who are successful scholars. The job has two parts, teaching and scholarship (plus committee work), so if you do not love and excel at both, you should strongly consider becoming a clinical professor, a highly valuable and rewarding career for those who enjoy teaching without the pressure to publish. And the credentials to get this type of position are often less demanding given that scholarship is not ordinarily expected of clinical professors–though you can always write and publish if you want to. Finally, if you are interested in legal education but do not want either to write OR teach, you should consider a career in legal administration. Being a dean of students or admissions or placement can be a terrific job–and it is a career path that is largely overlooked by law students.
Cheap Altruism for Law Review Editors:

When law review editors check quotes against the original sources, they often find that the WESTLAW or LEXIS versions have glitches. I've sometimes been told this by law review editors.

If you find that, why not report it to WESTLAW and LEXIS as well as to the author? That will cut down on future errors by others. WESTLAW and LEXIS say they take such information seriously, and make the corrections. For LEXIS, click on the Feedback link in the upper right hand corner and fill in the form. WESTLAW says they prefer reports by phone -- call 1-800-REF-ATTY. And please pass this message on to others.

Related Posts (on one page):

  1. Lost in Transcription:
  2. Cheap Altruism for Law Review Editors:
Bush Administration Orders (?) State Courts to Comply with U.S. Treaty Obligations:

Interesting, though technical, discussion at Opinio Juris, here and here.

Census Report on Arabs in the United States: The Associated Press is running an interesting story today about a recent census report on the status of Arabs in the United States. The story, picked up by Al Jazeera, reports:
  The 1.2 million people of Arab descent living in the United States tend to be better educated and wealthier than other Americans, the U.S. Census Bureau reported Tuesday.
  The population of U.S. residents whose ancestry is solely or partly Arab is less than a half-percent of all Americans. The details in Tuesday's report covered the people who identified themselves in the 2000 census as having only Arab ancestry.
  Arabs are nearly twice as likely as the typical U.S. resident to have graduated from college — 41 percent to 24 percent. The median income for an Arab family was $52,300, about $2,300 more than the median income for all U.S. families.
I looked for the report on the Census Bureau website, but all I could find was this December 2003 report (.pdf).

  UPDATE: The new report is available here.
The Right Coast: If you enjoy the Volokh Conspiracy, you may also like The Right Coast--a group blog by law professors at the University of San Diego. It is one of the few blogs I have on the favorites list of my Treo so I can read it while traveling. Everyone who posts there is interesting and insightful, but I confess to having a soft spot for the curmudgeonly posts of Tom Smith. He does not write like a law prof and I mean that as a compliment. It is not even spring break at USD and they are posting up a storm. Check it out.
Incorrect Etymologies:

Charles Lembke writes: "I suggest the more interesting word origin stories be called 'entomologies' until they've been thoroughly debugged."

Related Posts (on one page):

  1. Incorrect Etymologies:
  2. Careful With That Etymology:

Tuesday, March 8, 2005

At Least No One is Chained to A Desk . . . Yet: According to an article in the National Law Journal, some law firms are making sure their websites don't broadcast the credentials or contact information of their associates to try to keep headhunters away.
Amid an improved economy and an apparent upturn in lateral hiring, some law firms are trying to shield their associates from the wiles of recruiters offering richer rewards.

Some firms are limiting the contact information about associates provided on their Web sites. Others have deleted biographical and practice area details as well. Still others are said to be scaling back information in law firm directories.

In sharp contrast to the technology bust when law firms wanted to trim their ranks, many of today's firms are running interference in attempts to keep their associates from straying.
I have enabled comments.
Was the ACLU Right About Doe v. Ashcroft?: Back on September 30, 2004, I blogged about press miscoverage of a New York court decision, Doe v. Ashcroft, that invalidated the national security letter provision of the 1986 Electronic Communications Privacy Act codified at 18 U.S.C. 2709. The MSM reported that the decision had found a key part of the Patriot Act unconstitutional, a description apparently resulting from a misleading ACLU press release announcing that the decision had "struck down an entire Patriot Act provision." This wasn't quite right: Section 2709 was a 1986 law expanded by the Patriot Act, but the Doe decision invalidated 2709 for reasons apparently unrelated to the Patriot Act's amendments. The key mechanism found unconstitutional was from 1986, not 2001. Recognition that the press had relied on the ACLU's misleading press release led to much media attention and corrections at most major newspapers.

  Today Slate offers a defense of the ACLU's position in an essay by Robert Poe. According to Poe, those attempting to delink the Doe decision from the Patriot Act are engaging in a "spin campaign," while the ACLU's characterization is essentially right. According to Poe, the ACLU's decription
. . . was a reasonable description because the NSL law was one of a number of measures the Patriot Act souped up to drive the most powerful vehicle ever assembled for gathering private information about American citizens. Conservatives such as Sen. John Cornyn of Texas, on the other hand, argued that the ruling had nothing to do with the Patriot Act. They noted that the Electronic Communication Privacy Act first authorized NSLs in 1986, and they've been in use, complete with gag provision, ever since. They claim the Marrero decision did nothing but overturn a nearly two-decades-old law, meaning the basic principles that inspired the Patriot Act remained above reproach, or at least undamaged.
Why was the ACLU's decription "reasonable" in Poe's view while "the conservatives" were engaging in a "spin campaign"? Poe's key argument seems to be this:
Marrero ruled that NSLs [permitted by 18 U.S.C. 2709], at the time of the lawsuit, presented a serious enough threat to citizens' constitutional rights that the lack of access to judicial review was a fatal flaw. That means those who want to claim that the ruling had nothing to do with the Patriot Act have their work cut out for them. To make their case, they have to penetrate the mind of the judge and discern that he would have made the same decision about pre-Patriot Act NSLs that he did about post-Patriot Act ones. And that would be a hard sell, given that the earlier NSLs carefully targeted only spies and terrorists.
  As I understand it, Poe's point is that no one really knows whether Judge Marrero's decision has anything to do with the Patriot Act. We can't tell whether Judge Marrero would have struck down Section 2709 before the Patriot Act, he concludes, so those trying to say that the decision had nothing to do with the Patriot Act are in effect guilty of expressing false certainty. This seems a bit inconsistent with his characterization of the ACLU's position as "reasonable" and Cornyn's as "spin," in that it would seem to apply equally to the ACLU's claims. But that seems to be Poe's argument.

  I don't think Poe's argument ultimately works, though. To be sure, Doe v. Ashcroft is a meandering and often incoherent 122-page opinion; the reasoning in the case is very difficult to follow, and "penetrat[ing] the mind" of Judge Marrero could be helpful. But as I read the opinion, the key to the unconstitutionality of Section 2709 according to Marrero is a lack of statutory clarity as to whether NSLs can be challenged by recipients, combined with the breadth of its gag order provision. The key language in both cases comes from the 1986 statute. Marrero reads the 1986 language of Section 2709 as not allowing recipients to challenge NSLs and the gag order as very broad. He then concludes that (a) the inability to challenge the order violates the Fourth Amendment, (b) it may also violate the First Amendent in some cases, threatening speech, and (c) the 1986 gag order is too broad to survive First Amendment challenge.

  As I understand Poe's argument, his point is that Marrero might have reached a different result on argument (b) under the more limited, pre-Patriot Act version of NSLs. That's possible: Marrero's argument in this section is unclear, and as Poe recognizes we just don't know the answer here. But (b) is only an alternative holding, and Poe's point does not seem applicable to the Fourth Amendment argument in (a) or the gag order section in (c). Poe has recognized uncertainty about (b), but I don't think that's quite enough to make the ACLU's characterization seem correct.

  Ultimately, I think it's fair to say that Doe v. Ashcroft struck down a 1986 law expanded by the Patriot Act; that most of the reasoning of the decision is focused on the 1986 law; but that there is uncertainty as to whether the outcome of one of the arguments would have changed had the Patriot Act never been enacted. Does that mean that the ACLU was right, and that others have been merely spinning? Others can disagree, but it doesn't look that way to me.

  (Thanks to my friend Dan Markel for the link. Oh, and my apologies to VC readers who might think it weird to devote such a long post to this question. It's of interest to me, and it's quite difficult to address the issues well without being rather detailed.)
Optional Speech Protections:

The First Amendment protects speech, and the Supreme Court has made clear that it protects Internet speech as well as offline speech. Under the logic of the Court's First Amendment cases, bloggers should be as protected as larger media speakers (whether they're offline larger media, or online, such as Slate or Salon).

But First Amendment protections have their limits. For instance, it's not clear whether the First Amendment lets journalists refuse to testify about their confidential sources; some courts of appeals say yes and some say no. What's more, it is clear that this journalist's privilege, if it exists, has its limits: If the sources' identities are really necessary for a criminal case or perhaps even a civil trial, journalists can be ordered to turn them over.

Likewise, the Supreme Court has held that corporations may be barred from spending money to support or oppose political candidates; I think that decision was wrong, but the Court did decide this. And the decision's logic suggests that even media corporations could be barred from engaging in such speech.

That's where optional speech protections come in: It turns out that many states have statutes (or state constitutional provisions) that do protect a journalist's privilege. The California statute, which is at issue in the recent Apple trade secret litigation, provides very broad protection: It categorically prohibits courts from holding any "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication" in contempt for refusing to name his sources, no matter how important the information may be. Likewise, federal campaign law, which generally bans certain commentary on candidates by corporations, has a "media exemption" that lets "any broadcasting station, newspaper, magazine, or other periodical publication" comment about candidates even if it is owned by a corporation.

I'm going to be writing an article in the next few months on optional speech protections, and especially how they apply to the new media. But the short point I want to mention here — both as to the California journalist privilege and the election law media exemption — is that many of the laws already cover blogs and other online media sources. Even a purely literal reading of the laws gives us that: The law isn't limited to newspapers or magazines, but covers all "periodical publications." (This would also be the proper reading of the proposed Free Flow of Information Act, discussed by Michelle Malkin.)

The law doesn't apply to one-shot publications, such as books. (Maybe it should, but it doesn't.) It doesn't apply to sporadic publications, such as occasional newsletters or posts, with some unpredictable number of months elapsing between each. It doesn't apply to communications to a few acquaintances, which probably don't qualify as publications. But if someone posts items every day, or even several times a week, and reaches a significant number of members of the public, then he's producing a periodical publication. That's just the literal, and sensible, meaning of those provisions.

I realize that the drafters of these laws probably didn't envision the Internet, which wasn't a major communications medium at the time. But they used particular language that is not inherently limited to words on paper. The literal meaning of the language does include all periodical publications; unless it's changed, that's how it should be read.

Nor is there, I think, any sound policy reason to read the words more narrowly, no reason to distinguish The New Republic from, or a newspaper columnist from Instapundit. But I'm not resting the argument on policy alone: Here both the text and the policy cut in favor of equal protection for speech by offline publications, online professional publications, online amateur publications, and things in between.

Now I'm not positive that courts will in fact take such a view -- I'm arguing here that it's the right interpretation, but I realize courts may disagree with me. It makes sense to urge drafters of news to be more explicit, and to make clear that online media as well as offline media, and amateur media (and semipro media) as well as professional media, are covered. But if one can't get that, for instance because the statute has already been enacted and simply covers "newspapers, magazines, and other periodical publication," then one should argue that the statute does by its terms cover blogs, and one would be correct to so argue.

Finally, let me dispose of two technical objections, which I mentioned in an earlier post: (1) Some dictionaries define "periodical" as meaning less often than daily, but that's not the majority definition, and it's not apt in this context, since "other periodical publication" shortly following "newspaper" suggests that newspapers, many of which are daily, are periodicals, and therefore that "periodical" includes daily publications. (2) One can argue that "periodical" requires a fixed period between items, such as roughly 24 hours or 7 days, and that therefore blogs that sometimes have posts 5 minutes apart and sometimes 15 hours apart don't qualify. But I don't think that periodical requires such fixed intervals — publishing at least once a day should be as periodical as publishing exactly once a day at a fixed time — nor would such a definition make much sense.

Anti-Semite Forum Posting Pictures of Allegedly Jewish UCLA Faculty Members:

So far here, here, here, and here. I must admit that I was the proximate cause of this: I was quoted (though somewhat incompletely) in an article about white supremacist groups and free speech in the wake of the murders of Judge Lefkow's husband and mother; a white supremacist e-mailed me, and let's just say that I wasn't overly friendly to him. I regret that this has gotten my colleagues involved in all this, but this is America and I'm not going to be nice to Nazis to try to get them to go away.

So, yeah, we're Jews. Yeah, we're overrepresented on university faculties, in law and medicine, in the Senate, on the Supreme Court. Speaking of Nazis, we were overrepresented on the Manhattan Project, too.

The most powerful country in the world, America, is one of the ones that has been most open to Jews. Look at the most anti-Semitic countries in recent history: Nazi Germany, the Soviet Union, the Arab world. Right up there at the forefront of civilization and power, aren't they? Is it all the workings of The Conspiracy? Or is it just that the sorts of idiots who hate Jews do other idiotic things, too?

Cloudy Outlook for Clear Skies:

Last week, President Bush reaffirmed that his "Clear Skies" proposal is his top environmental priority for the year when he nominated Stephen Johnson to be Administrator of the Environmental Protection Agency. Yet Clear Skies may have trouble in Congress. The Senate Environment Committee has repeatedly delayed consideration of the bill because it may lack the votes necessary to approve the bill. According to this report, another markup session is scheduled for tomorrow.

The basic idea behind "Clear Skies" is to replace existing command-and-control regulation of utility emissions of sulfur dioxide and nitrogen oxide with a "cap and trade" program covering these two pollutants and mercury emissions. Basically, the legislation would set "caps" on the total amount of emissions that power plants could emit, and portions of the caps would be divvied out as tradable permits to power plants. The idea is that this would encourage more cost-effective emission reductions and facilitate greater overall emission reductions than can be achieved under existing law through the administrative process.

Environmental activist groups oppose "Clear Skies," claiming it will "roll back" environmental protections under the Clean Air Act. Yet as this article by David Whitman from the liberal Washington Monthly points out, most of the green critiques of "Clear Skies" are off base. As Whitman describes, environmentalist leaders let their loathing for the Bush Administration, and general distrust of Republican politicians, get ahead of their concern for improving environmental protection.

As might be expected, green advocates criticized the Bush bill . . . for failing to go far enough or fast enough in reducing pollution. But in a novel twist, environmentalists have also asserted that Clear Skies is actually weaker than the existing Clean Air Act—and would thus allow millions of tons of added pollution and inflict tens of thousands of needless deaths during the next decade. . . . In fact, this oft-repeated green bromide turns out to be false. But the dispute over the bill's impact is only part of the story of how the perfect has become the enemy of the good in the clean air wars.

The claims that Clear Skies would allow for greater emissions than current law are based upon highly questionable assumptions about the effectiveness of ordering additional rounds of emission reductions under current law through the regulatory process. Compared against any set of realistic assumptions, however, Clear Skies would clearly result in greater emissions reductions. Still, some environmental activists would claim these reductions are not enough, and oppose any legislation that does not include caps on carbon dioxide -- which is not currently regulated under the Clean Air Act at all.

Whitman continues:

The response of environmental advocates to Clear Skies is not altogether surprising, given the movement's loathing for Bush and his appointees, many of whom were drawn from the ranks of industry lobbyists. Yet for many years, green advocates have often shown a self-destructive intolerance for compromise. . . . Ultimately, the environmental movement's intense pressure to hold ranks—call it the thin green line—precluded honest debate about Clear Skies.

The Adirondack Council and Democratic Senator Tom Carper were labeled "Clean Air Villains" for daring to suggest Clear Skies had some merit. For more on Clear Skies and the Whitman article, see this post by Bishop Grewell on The Commons Blog, and these remarks at Gristmill.

To be sure, the Bush Administration has earned some measure of distrust on environmental issues. But this does not excuse the consistent misrepresentation of the Clear Skies proposal and its likely effect on air quality. Now the damage is done, and it is unclear whether Clear Skies, or any other needed environmental reform proposal, will make it through this Congress.

Getting to Maybe: A commenter in a prior post asks if I would consider posting online an essay I wrote for first-year law students on how to take law school exams. I'm not entirely comfortable with doing so, in part because I suspect much of the advice is particular to my class and how I grade exams. But I do have a book to recommend: Getting to Maybe, by Richard Michael Fischl and Jeremy Paul. It's not a cure-all, of course, but I think it does explain the basic picture of what law school exams try to test and what students should be trying to achieve in their answers.
Epigraphs on First Amendment Law and Related Topics:

I'm looking for interesting or amusing epigraphs for various sections of my First Amendment textbook — quotes from books or poems that touch on the topic but from a nonlegal perspective. Here are some examples:

  1. From the section on advocacy of violent conduct:
    They never told the [raging] crowd to [flay] a woman’s hide,
    They never marked a man for death—what fault of theirs he died? --
    They only said ‘intimidate,’ and talked and went away --
    By God, the boys that did the work were braver men than they!
    Their sin it was that fed the fire — small blame to them that heard --
    The boys get drunk on rhetoric, and madden at a word — ...
    If words are words, or death is death, or powder sends the ball,
    [They] spoke the words that sped the shot — the curse be on [them] all.
    -- Rudyard Kipling, “Cleared”
  2. From the section on Communist advocacy:
    Sam Goldwyn said, ‘How’m I gonna do decent pictures when all my good writers are in jail?’ Then he added, the infallible Goldwyn, ‘Don’t misunderstand me, they all ought to be hung.’ Mr. Goldwyn didn’t know about ‘hanged.’ That’s all there is to say.
    -- Dorothy Parker, Interview, in Writers at Work
  3. From the section on fighting words:
    Trampas (Walter Huston): “Now who’s talkin’ to you?”
    Virginian (Gary Cooper): “I’m talking to you, Trampas.”
    Trampas: “When I want to know anything from you I’ll tell you, you long-legged son-of-a-—.”
    Virginian pulls out gun.
    Virginian: “If you want to call me that, smile.”
    Trampas: “With a gun against my belly I — I always smile.”
    -- Owen Wister, The Virginian
I don't insist that I agree with the sentiment behind the epigraph (if there is such a sentiment), so long as I think it's interesting or amusing.

Can any of you suggest such epigraphs that are related to various free speech issues, religious freedom issues, church-state issues, and the like? If so, please post them in the comments. Thanks!

UPDATE: Let me a bit more specific: I'm not looking for stirring defenses of free speech, or other aphorisms about how religiosity or speech or skepticism or whatever else is important. I'd prefer things that are funny or wry, or that otherwise illustrate some aspect of the topic without simply announcing an ideological position. The Kipling quote shows that I don't mind things that do express a view, though even that was meant as a commentary on one particular form of incitement, not about free speech theory generally.

Law Review Lara's Recommendations for Doing a Write-On Competition:

If you're a first-year student who's planning to participate in a law review write-on competition (the sort that gives you an assignment to do over a week or two), start preparing several weeks beforehand. If your competition is in a couple of weeks, over Spring vacation, start now. If it's right after exams, in mid-May, start in early April. (Lara realizes she should have told the Spring vacation competitors about this a few weeks ago.)

Yes, it’s extra work, at a time when you’re already swamped with work. But just as an athlete needs to prepare well before the competition, so do you. The write-on competition will require specialized cite-checking and writing knowledge that you probably haven’t fully learned. Use the time before you compete to acquire that knowledge.

Here are the basic tips (borrowed from Academic Legal Writing (second edition), written by Lara's close personal friend):

  1. Many law reviews grade you in part on your knowledge of proper citation style. (Some have a separate citation formatting, proofreading, cite-checking, and editing test; many check the accuracy of your footnotes in your write-on paper.) Ask your law review which citation style manual it uses, and whether it has any supplemental instructions explaining how its style deviates from the standard manual. Read the citation style manual several times. Make it your bathroom, bus, or exercise bike reading.

    Mark (with post-its, for example) those items in the citation manual you found most surprising, and that you think you’ll most need to be reminded of during the competition. By reading and marking the manual, you'll (a) get a good sense of the rules; (b) understand the general logic behind the rules (not all the rules are explicable using a general logical principle, but some are); and (c) see enough citation examples that you might more easily notice when something departs from the citation rules. Pay particularly close attention to the rules related to (1) cases, (2) statutes and constitutions, (3) articles, (4) books, (5) short forms, and (6) citation signals.

  2. Ask your law review what style manual it uses, and read that, too, marking the surprising items.

  3. Read a good general writing manual, such as Strunk & White’s The Elements of Style, at least once.

  4. See whether past competitions are available. Read them, just to get a feel for what’s going on. If some model answers are available, pay particularly close attention to them.

  5. If the past competitions include practice editing and proofreading tests, do as many of the practice tests as you can; compare your results against the answer keys, if those are given. If there are no answer keys, compare your answers against those of some friends of yours who are also doing the practice competitions. (You can’t work together with people on the actual competition, but there’s no problem with cooperating on practice projects.)

  6. Go over any comments that you’ve gotten on your past written work, such as the papers in your first year legal writing course. Most writers make the same mistakes repeatedly. Figure out what your weaknesses are, so you can avoid them while doing the write-on.

    Your writing instructor will likely be happy to help you with this. Writing teachers like it when you come to them out of a sincere desire to improve your writing; and they often have specific advice that they’ll be glad to pass along.

  7. Plan ahead to make sure you have no other obligations during your write-on competition. If it’s during Spring vacation, try not to do your class outlines that week—do them before, or save them for later. If you’re working part-time, see if you can take the week off, and make up the lost time before or after. If you have children, do what you can to get the other parent or someone else to spend more time with them during the competition.

    Try to avoid leaving town to see friends or family, even if it is Spring vacation. You might intend to do lots of work when you’re on the trip, but it’s hard to work when you’re around people you haven’t seen in months, and who understandably want your company. Going out to dinner with friends is fine; everyone needs a study break. But try to avoid more demanding commitments.

    The writing competition requires you to do something that’s new to you, under considerable psychological pressure, in a limited time. You’ll want to finish your draft as early as possible, so you can edit it as many times as you can. You really might need most of your waking hours to do this. Even if you’ve found that the first year of law school hasn’t been as time-consuming as you were initially told, this week will be quite a burden.

    If, however, you can’t get out of your other obligations for the week, don’t use that as an excuse to just sit out the competition. It’s possible for you to do well even if you also have to travel, work, study, or mind the kids that week -- it’s just easier if you can focus solely on the competition.

Zagovor Volokha:

Those who want to read an article about us in Russian can do so here. (It's in Russkaya Reklama, a Russian-language newspaper in the U.S.)

Programming Language Inventor or Serial Killer?

See how well you do on this quiz, which I think is unusually well done visually.

Libertarian Panics: Lawprof Adrian Vermuele has a very interesting 13-page symposium essay up on SSRN entitled "Libertarian Panics." You can download it here. From the abstract:
In a standard analysis, the history of civil liberties is characterized by a series of security panics. A range of mechanisms - cognitive heuristics and biases, various forms of cascading and herding, conformity and preference falsification, and so on - cause periodic panics in which aroused publics demand repressive measures to curtail the civil liberties of perceived enemies of the nation, particularly noncitizens or other outsiders. Government officials may themselves panic, or will at least supply the panicky measures that constituents demand. The standard remedy is to urge changes to legal doctrine or institutions, in order to curtail government's power to repress civil liberties in response to security panics.

. . . Even if that model is right as far as it goes, it is fatally incomplete. My central claim is that the mechanisms underlying security panics have no necessary or inherent pro-security valence. The very same mechanisms are equally capable of producing libertarian panics: episodes in which aroused publics become irrationally convinced that justified security measures represent unjustified attempts to curtail civil liberties. I will suggest that libertarian panics have been a regular occurrence in American history, and that we may be living through one now, in the form of a widespread and thoroughly irrational, even hysterical, reaction to small legal changes adopted after 9/11. Indeed, the tendency to diagnose the existence of a security panic can itself be symptomatic of a libertarian panic.
Thanks to Larry Solum for the link.
Kopel's Predictions Come True:

In November 2004, I forecast the coming years, and wrote, "By April 2005, international creditors were increasingly unwilling to make long-term loans to the Assad or Khameni regimes." I also predicted that in the first part of 2005, France would lead UN efforts to democratize Lebanon and Syria. These and other predictions can be found in my essay "How Hillary Clinton Won the Presidential Elections of 2008 and 2012."

Waiting for Godot?:

Actually, I'm waiting for the National Council of Churches and other left-wing church groups to display a fraction of the concern over Syria's occupation of Lebanon that they have displayed over Israel's presence in the West Bank and Gaza.

In Defense of Law School Exams:

Traditional law school exams certainly don't encompass all the skills of being a good lawyer--nor could they. It would be very difficult to design an exam to test the maturity, common sense, and wisdom of a good divorce lawyer, who helps the client get through a major life change without unnecessary additional trauma.

But law school exams are very good at testing most of the subset of lawyering skills which law schools teach well--including the ability to think quickly. Yes, three hours is a short time to analyze three or four major problems, and spot the key issues,and the important secondary issues, in every single problem. However, much real-life lawyering is done under intense time pressure. You have to think quickly when you're a rookie defense attorney speaking for your client before the court. Or when you're a young corporate associate having to draft an emergency brief in 12 hours. Or when you're a citizen-activist/advocate (as so many lawyers are) speaking for your cause on talk radio or in a local TV news interview.

There are many lawyerly skills (such as writing law review articles, or appellate briefs when not under time pressure) for which quick analysis is not necessary. Students can get recognized for such skills in research classes. For almost any young lawyer, and therefore for almost any employer of young lawyers, the quick-thinking abilities which law school exams accurately (usually) rank are very important skills.

Monday, March 7, 2005

Law Professor Takes on Law School Exams: Northwestern Law Prof Steve Lubet, who I believe runs the clinical programs at Northwestern, has an article in the American Lawyer arguing that traditional law school essay exams are in need of major reform:
There is almost nothing about the typical law school examination that is really designed to test the skills involved in law practice. And many aspects of exams are positively perverse. Take time pressure, for example. By their nature, exams are time-limited, usually to about three or four hours, during which it is necessary to assess the problems, decide on the answers, marshal the material (whether strictly from memory or from an "open book"), and then write, hopefully, coherent answers. There is no opportunity for reflection, research, reconsideration or redrafting. You simply dash off your answer and hope you got it right.
He continues:
The dirty secret (if it is a secret) is that law schools rely on exams primarily because they are easy to grade. The intense time pressure guarantees that the answers will be relatively short and, even more important, that quality will differ significantly. Exams do a great job of dividing test takers into measurable categories, even if those categories measure nothing more than an ability to take tests in an artificial, nonlawyerly setting.
  I have worried a lot about about this same dynamic, although I don't think the situation is quite as bad as Lubet suggests. I suspect the reason for the traditional dominance of in-class three-hour law school exams is less the need to generate short and varied answers than it is to limit opportunities for cheating. Take-home exams are the most common alternative to the traditional approach; they offer the benefit of giving students the opportunity to reflect at length on their answers in a way that is a bit more like most types of legal practice. But take-home exams also create a window for unethical students to bend (or break) the rules.

  With that said, I don't know why law schools couldn't increase the amount of time allowed for in-class exams and then impose word limits on answers. Most law students take their in-class exams on laptops these days, which would make the shift to word limits easy to administer. This approach would be fairer for students who perform less well in the highly pressured atmosphere of a three-hour exam, and wouldn't impose a substantial burden on professors.

  Any thoughts? Should law schools that follow the traditional approach consider switching from traditional three-hour in-class exams to five-hour or six-hour in-class exams with word limits on answers? I am assuming the exams are open book (which I think is the most common approach, and obviously the approach that most closely resembles legal practice).

  I have enabled comments. Thanks to CrimProf Blog for the link.

Business School Hack: If you were on the admissions committee at Harvard Business School, would you consider it a plus or a minus if a candidate hacked in to a computer that stored admissions decisions to find out whether they had been admitted? How about if 100 students did it?

  A misdemeanor violation of 18 U.S.C. 1030(a)(2)(c) isn't a great way to start off a business school career — unless you're as famous as Martha Stewart, I suppose.

  UPDATE: I'm not positive, but I think the headline of the article I linked to -- "Harvard, Stanford, Duke computers hacked" -- is inaccurate. As best I can tell, the university computers weren't hacked. Rather, I think the problem was with a third-party service, ApplyYourself, that the universities all used. So I think the candidates hacked into ApplyYourself's computer, not the computers at Harvard, Stanford, and Duke. It doesn't make a difference legally, or at least won't in most cases, but seems worth pointing out.
Careful With That Etymology:

I just got a political e-mail that began with:

Where did the word "picnic" comes from?

It was typical to have a picnic on a Friday evening in Oklahoma. The word was short for "pick a nigger" to lynch. They would lynch a Black male and cut off body parts as souvenirs. This went on every weekend in this country, and it was all across the county. . . .

This set my myth-detection antennae a-quiverin', and sure enough this is yet another usage myth, much like the claims that "nitty-gritty" originally referred to debris (including dead bodies) in the holds of slave ships, or that "handicapped" stems from handicapped people supposedly begging with their caps in their hands. In fact, Snopes says it's a myth, and the dictionaries I've checked note a perfectly innocent etymology for the word.

This reminds me of two tips I thought I'd pass along:

(1) Lots of the most interesting etymological claims that are bandied about on the Net and in the popular press are bunk. (The old chestnut about "fuck" being an acronym from "for unlawful carnal knowledge" is another example.) I don't know why this is especially common for etymological assertions, but that's what I've found. But don't trust any etymological claims -- especially the interesting ones -- unless you verify them in a reputable dictionary (and maybe not even then).

(2) More broadly, if you're tempted to forward such a claim -- etymological or not -- check it out. Check it on Snopes. Check it in a reference work; there are plenty available for free online. And this is especially so if you're making a broader political point, as my correspondent was. Why ruin your credibility at the outset, by passing along long-debunked errors?

Related Posts (on one page):

  1. Incorrect Etymologies:
  2. Careful With That Etymology:
Ponnuru v. Goldstein

After an unusually long hiatus I find myself drawn back into posting by having seen this recent post. (And no, I did not write it, for those of you with memories that go back that far.) Regarding the substance of the dispute between Ponnurru and Goldstein, I generally could not care less, which I guess puts me mostly in line with both Goldstein and Juan Non-Volokh in finding this to be much ado about very little.

I am drawn to comment, however, by the unusually nasty tone of Ponnurru's replies, particularly given that he does not seem to be getting the better of the argument. The only point that I write to make is that Ponnuru loses all credibility — and I would think the respect of most reasonable people — when he calls Goldstein dishonest and stupid. (I'm willing to accept slippery, though that certainly cuts against stupid).

I am happy to disclose that I am quite good friends with Goldstein and have known him for a very long time. I can also vouch for the fact that he is neither dishonest nor stupid and it is my humble opinion that his arguments in his exchanges with Ponnuru are likewise neither dishonest nor stupid (though I do not necessarily agree with every one of them). Whether reasonable persons might differ as to his substantive points is an entirely separate matter that I will leave to such reasonable persons. My suggestion to Mr. Ponnuru, however, is to lay off the name calling. If you have arguments, make them, and let the readers decide. Resorting to name-calling suggests that you lack more substantive responses and are perhaps out of your weight class. If you want to duke it out with the big boys then start acting like one.

Perhaps this post will define me in Ponnuru's eyes as both biased and stupid, though I imagine that will only reinforce my earlier points. I am no partisan either for or against Professor Tribe, my right-wing bona fides are fairly decent, and I will let others decide for themselves whether I am stupid. I am, however, a friend of Tom Goldstein, and friends do not allow mean-spirited and erroneous slanders to sit unanswered, especially when they are coming from "my side" of the fence.

Blogging and Students:

Reader Ben Wickert asks:

As a law professor, have the beliefs you express on your blog been challenged by students, whether in class or out? How do you express yourself without causing too much controversy? Or, perhaps, is that not even a concern of yours?

The answer to the first question is "no." It's too bad, since I think students should talk more to their professors, and argue with them (politely) when they disagree. This is s best done outside class, unless for some reason the blog post is squarely on-topic to the current class discussion. But if a student came up to me and said he disagreed with something I've blogged, and wanted to discuss it, I'd be delighted. As to expressing myself, I'm happy to cause controversy, if I think I'm right. I am especially careful with particular posts that I think will be controversial, to make sure that I'm indeed correct -- I don't want those sorts of controversies in which I end up looking like a fool. But creating the kinds of controversies in which I say something accurate yet controversial is, I think, part of my mission as an academic. And it's fun.

By the way, if any teacher-bloggers (whether in higher education or in K-12 education) have any interesting stories about students reading your blog posts and reacting to them, please post them in the comments.

Blogging Experts and Federal Rule of Civil Procedure 26:

More on the law of blogging -- a reader asks whether under Rule 26 of the Federal Rules of Civil Procedure (emphasis added), experts have to disclose all the blog posts they've posted in their area of experties:

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

My quick guess is that blog posts need not be disclosed, unless they are detailed enough to form part of the witness's "qualifications" (which is highly unlikely, though a post that's as detailed as a scholarly article might qualify). The requirement, after all, is not simply to disclose all publications, but to disclose "the qualifications of the witness, including a list of all publications."

Yet I'm no civil procedure expert, so I can't be positive. If you have actual knowledge about this legal question (and not just speculation about the text, or opinions on what the law should be), please do post about it in the comments. Again, though, please limit this to specific legal knowledge that you have on the subject. I don't mean to be a martinet about this, but that's the way comments on such posts can be really useful.

I Blame Justice Douglas:

A friend of mine just reminded me that the generally accepted spelling is "haled before a court," not "hailed before a court." I usually use "haled," I think, but in a recent post (which I've since corrected) I used "hailed" instead. I blame Justice Douglas, since my sentence tracked his dissent in Beauharnais v. Illinois, which used "hailed." Impressionable law students: Don't get sucked into that usage yourself.

Note that I'm generally a descriptivist on usage, so I resist many claims that a common usage is "wrong." But "hailed into court" is still used very rarely by courts, compared to "haled into court," so I'm not sure it's really common usage yet.

Moreover, it's especially important for lawyers not just to be right, but to look right. Even if you have a good descriptivist argument to defend your using "hailed," the safer bet is to write "haled."

FEC and Blogging:

I wanted to echo Orin's recommendation of Rick Hasen's item on the FEC and blogs. Rick is a leading election law scholar, and a very thoughtful fellow, as well as the leading election law blogger. He tends to be more pro-regulation than I am, but I find his work to be much worth reading.

One small disagreement I have with Rick's piece: He writes that "As a matter of policy, bona fide on-line journals and political bloggers such as Hugh Hewitt, Andrew Sullivan, or Joshua Marshall, should be treated the same as the New York Times and David Brooks" (I agree so far) but then says that "Online corporate-owned journals like, however, do not appear to fall within the literal ambit of [the] 'media exemption' [to restrictions on corporate speech about candidates] nor do any blogs that are owned by corporations, because the exemption on its face applies only to broadcasts, newspapers, and periodicals."

I think that, literally, blogs are periodicals. They are published fairly regularly, rather than intermittently, and they reach more than a few people; that makes them "periodical publication[s]." (The relevant exemption comes in 2 U.S.C. sec. 431(9)(B), "The term 'expenditure' does not include--(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication . . . .")

It would be good to clarify FECA to make clear that Weblogs and online magazines are exempted. But I think that, properly -- even literally -- interpreted, "other periodical publication" already includes blogs (except perhaps ones that publish intermittently and very rarely).

(Note that some dictionaries define "periodical" as meaning less often than daily, but that's not the majority definition, and it's not apt in this context, since "other periodical publication" shortly following "newspaper" suggests that newspapers, many of which are daily, are periodicals, and therefore that "periodical" includes daily publications. Also, one can argue that "periodical" requires a fixed period between items, such as roughly 24 hours or 7 days, and that therefore blogs that sometimes have posts 5 minutes apart and sometimes 15 hours apart don't qualify. But I don't think that periodical requires such fixed intervals -- publishing at least once a day should be as periodical as publishing exactly once a day at a fixed time -- nor would it make much sense.)

Rachel Corrie Award:

I have only a layman's knowledge of Rachel Corrie's life and death, but my tentative sense of the matter is close to that expressed in this Dennis Prager column. I would not have, for instance, named an award after her — but others obviously disagree, as the mass e-mail that I reproduce below shows. (Note that this e-mail was forwarded to me by a reader; I have no reason to doubt its authenticity, and I have confirmed that the purported sender is indeed involved with the Award.)

Subject: [RFP] Matthew Abraham is 2005 Rachel Corrie Award Winner

I am extremely pleased to announce that Matthew Abraham, assistant professor of English at the University of Tennessee at Knoxville, is the recipient of the 2005 Rachel Corrie Award for Courage in the Teaching of Writing. The award, now in its second year, is sponsored by the Progressive SIGS and Caucuses Coalition (PSCC) of CCCC, and will be presented at the PSCC annual Wednesday evening event at CCCC. This year the event will take place March 16 from 5:00 to 7:00 pm. (See the CCCC program for exact location.)

It happens that March 16 is also the second anniversary of Rachel Corrie's death. As Matthew Abraham's work has much in common, in its focus and its spirit, with Rachel's, presenting him with the award that night will be a both a wonderful way to once again commemorate the life and deeds of the young woman/student who took what she learned extremely seriously, as well as to recognize the young man/scholar/teacher who is bringing Palestine onto the radar screen of a new generation of students--and that of his rhetorician colleagues.

As the numerous supporting letters for Matthew that flooded my mailbox attest, he has earned this distinction through his work in all three areas in which most of us are evaluated for tenure: teaching, scholarship, and service.

From bringing Ann Coulter's writing, as well as progressive voices, into his undergraduate rhetoric and writing class (so that "students will learn about those aspects of argumentation that currently fuel cultural and political debate within the U.S.") to creating a graduate course called "Rhetoric in the Public Sphere: Intellectuals, Writing, and Social Change" (in which he asks students questions they most likely haven't encountered in their other courses, such as "What does it mean to 'speak truth to power'?" and "Why is the word 'advocacy' a dirty word in academe?"), Matthew Abraham has taken the field of rhetoric and writing to a place where it vitally matters. As a former colleague of his at Edinboro University of Pennsylvania wrote to me about his teaching: "[I]f Rachel placed her body between the Caterpillar monster and the little house she was trying to protect, Dr. Abraham's work places his professional future between the profession's crushing institutional silence over Palestinian suffering and the forces that would enforce this silence at the peril of the profession's conscience.... Not only did Matthew open students' minds to the complexities of the situation in the Middle East through assigned readings, supplemental lectures, and planned participation in debate (he was a charismatic teacher; I observed in his classes the awe and admiration with which he was regarded by his students; he appealed to youth's idealism, and he won!)--not only that, but also he led us, the faculty, out of our entrenched timidity and moral isolation toward the path of commitment and activism...."

Matthew was taking risks in his scholarship at least as far back as the time he wrote his dissertation (actually, not very long ago)--which was, in his own words, "an analsyis of the controversial academic scholarship of Lani Guinier, Edward Said, Paul de Man, and Norman G. Finkelstein." His publications include "The Rhetoric of Academic Controversy after 9/11: Edward Said in the American Imagination" in JAC and "Supreme Rhetoric: The Supreme Court, Veiled Majoritarianism, and the Enforcement of the Racial Contract" (forthcoming in an anthology from the U. of Illinois Press). As a colleague in his department wrote to me, "Dr. Abraham has presented a critical perspective of the ways in which the academic elite fashion a treasonous discourse that places scholarship in the service of U.S. sovereignty and power, a discourse that all too often masquerades as professional practice in academe." Even his current department head wrote about him with admiration: "When [Matthew] came here for his job talk, he presented himself and his scholarly agenda without soft-pedaling it....There's always pressure on new hires to be quiet and to fit in.....[Matthew] doesn't keep quiet and he hasn't changed his political commitments to please me or anyone else. He's kept on with his work even though it means that he has to put up with the extra pressures that come with ideological tests."

Many who read this announcement will recall that Matthew was the instigator of petitions on behalf of several intellectuals whose academic freedom has come under fire, including Ward Churchill and Tariq Ramadan. According to all accounts, Matthew has also been brilliantly innovative as an organizer of intellectual events--even when under threats of cancellation and boycott. Timothy Brennan, Professor of Cultural Studies, Comparative Literature, and English at the University of Minnesota, wrote to me of the 2003 panel Matthew organized for the MLA called "The Rhetoric of Resistance: The Intifada and the Literary Imagination": "It was very well-attended and widely debated--a local triumph..... The word 'intifada' had never before appeared on the program of the MLA." Victor Vitanza and others wrote glowingly of Matthew's work as a guest moderator for an online Pre/Text symposium with Noam Chomsky and Norman Finkelstein that dealt with the responsibility of intellectuals. Vitanza wrote of Matthew's handling of sometimes difficult--sometimes outright rude--questioners and commentators that he "disarmed the...people by being knowledgeable about what was being counter-questioned and by displaying a grace under fire that few have the ability to demonstrate publicly....His interperseonal skills are the best I have witnessed."

The star participants were no less laudatory about Matthew's role. Finkelstein wrote to me, "Although Corrie set the bar of courage at a nearly impossible peak for others to scale, I'm confident that, to the extent that anyone can, giving the award to Matthew would appropriately honor her memory." Chomsky wrote, "Abraham not only organized the symposium, but was also its guiding participant. The leading themes were topics that particularly concerned Edward Said--and Rachel Corrie. That takes a good deal of courage in the public domain in the US, including an academic setting. It includes extremes of abuse and vilification, and for younger people, threats to possible appointment; and in fact more direct threats, including death threats, many taken seriously by police on campuses and in communities....Abraham handled all of this with skill, care, sympathetic understanding, and admirable courage. The same has been true of other initiatives of his in defense of freedom of speech and academic freedom, and of suffering people. It is an admirable record, one of which, I am confident, Rachel Corrie would have very much approved, as I do, very much....In brief, I cannot think of a more worthy candidate."

I think I'll let Chomsky have the last word. Please join us in honoring Rachel and Matthew as we present this award--as well as for two hours of discussion with other CCCC progressives--at the Wednesday night CCCC convention session "Affirming Action: A Roundtable by the Progressive SIG/Caucus Coalition (PSCC) and the CCCC Diversity Committee" on March 16, 5-7pm, in San Francisco.

Harriet Malinowitz

Chair, Rachel Corrie Award for Courage in the Teaching of Writing Committee

Should the FEC Regulate Political Blogging?: Rick Hasen offers some thoughts. I am no expert in this stuff, but the recent comments of FEC Commissioner Bradley Smith that the FEC might start to regulate blogging sound to me more like parts of a media strategy than a prediction. Smith is strongly opposed to campaign finance regulation, and suggesting that the FEC might start regulating lots of bloggers is a surefire way to get the blogosphere in the mood to oppose campaign finance regulation.

Related Posts (on one page):

  1. Optional Speech Protections:
  2. FEC and Blogging:
  3. Should the FEC Regulate Political Blogging?:
University of Colorado President Resigns:

University of Colorado President Betsy Hoffman has just announced her resignation, effective June 30, 2005, or whenever a successor is named. In her time as President, Hoffman proved to be an excellent fund-raiser, and--until recently--a popular spokesperson for CU. She had no interest, however, in attempting even the mildest reforms of the far left's strangehold on the humanities at CU, and its suppression of intellectual diversity.

New Decisions on Prisoner Lawsuits and Criminal Law: Fresh from its decision invalidating the juvenile death penalty, the Supreme Court today expanded the scope of prisoner civil rights claims in one decision and made it harder for prosecutors to prove a defendant's prior criminal record to trigger higher punishments in another decision. Finally, in a concurring opinion, Justice Thomas strongly suggested that the Court is ready to expand Sixth Amendment protections again by overruling a 1998 precedent that exempted prior past convictions from the Court's new pro-defendant Sixth Amendment jurisprudence.
American Spectator on Asbestos Litigation:

Good piece in the March American Spectator on the asbestos mess. It doesn't seem to be online. I am quoted as follows:

"Money attracts lawyers like bees to honey," said David Bernstein, a George Mason University law professor who has written extensively on asbestos litigation. "In the absence of courts enforcing medical standards, the only risk to tort lawyers is what they pay for the photocopies. They just open up the file in their word processor and type in new names."

"Just to respond to a case costs a company hundreds of dollars," Bernstein continued. "If at all plausible, most companies would save money just paying even baseless claims off at $500 or even $2,000 apiece. And this breeds more of the same. For a single person filing a nuisance suit isn't worth it. It's too expensive. But you file 800 at once? 8,000? As long as the courts require so little actual evidence, the problem of asbestos litigation will continue to get worse."

"One of the main problems with asbestos litigation is that in the early 80s, when there were a lot of plaintiffs who were quite obviously injured, many states adopted special rules for asbestos litigation that were much more liberal with regard to analysis and causation," Bernstein said. "Now most asbestos claims are much less valid, but the liberal rules still apply. That's why you see companies with a tenuous connection to asbestos being sued and plaintiffs not deserving of checks receiving a lot of money."

George Mason University law professor David Bernstein said a real amelioration of the problem might not come until the visibility of the issue has been raised substantially. "When the publicity gets intense enough, courts might examine these claims more rigorously and be more willing to throw out the frivolous claims of unimpaired plaintiffs," Bernstein said. "Asbestos litigation might be less a question of judicial process than public opinion."

Institutions, Incentives, and Consumer Bankruptcy Reform:

I have just launched my latest article on the seas of the law review submission process as well. It is "Institutions, Incentives, and Consumer Bankruptcy Reform." It is in the process of being posted as a working paper and I will let you know when it is available.

This article builds on prior work of mine on the consumer bankruptcy crisis in the Northwestern Law Review and the Michigan Law Review. This article builds on my forthcoming article in the Northwestern Law Review, “An Economic Analysis of the Consumer Bankruptcy Crisis” which concludes that the upward trend in consumer bankruptcy filings over the past twenty-five years cannot be explained by the traditional model of consumer bankruptcy filings (working paper here). This article also builds on my prior article in the Michigan Law Review, entitled “The Past, Present, and Future of Bankruptcy Law in America” which explores the intellectual foundations and political economy of the making of bankruptcy legislation in America (working paper here).

This article caps this trilogy by proposing a new model of consumer bankruptcy that examines changes in the institutions and incentives for consumer bankruptcy filings over the past 25 years. Thus, where "Economic Analysis of the Consumer Bankruptcy Crisis" was largely a critique of the existing model, this is my effort to provide alternative model that I believe better explains the trends of the past 25 years and can guide future policy-making. In addition, as I describe in "Past, Present, and Future" the traditional model provided the intellectual foundation for the 1978 Bankruptcy Code. The model that I describe in my current article provides an intellectual foundation for much of the current bankruptcy reform agenda, and thus provides the first intellectual foundation for the bankruptcy reform legislation. The reform legislation, I believe, marks a fundamental sea change in the direction of American bankruptcy law, and I think it is important to understand the intellectual foundation for that change of direction. As many of you know, I have been an advisor to the Senate and House Judiciary Committees for several years on the bankruptcy reform legislation, so I think I have gained some insight into the intellectual foundation of the reform legislation.

Here's the Abstract:

ABSTRACT Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary and punitive, and that private market adjustments such as higher interest rates and more restrictive credit rationing are suitable policy responses.

Scholars have previously identified two models of the consumer bankruptcy process, the traditional “distress” model and the economic “incentives” model. Neither, however, can explain the observed bankruptcy filing patterns of recent decades. This article offers a new model of consumer bankruptcy rooted in New Institutional Economics that explains the rise in consumer bankruptcy filings as reflecting changes in the institutions, incentives, and constraints surrounding the consumer bankruptcy filing decision. It is argued that this new model of consumer bankruptcy that is both theoretically and empirically superior to the traditional model.

This article identifies three institutional factors that can explain the observed rise in bankruptcy filings over the past several decades: (1) A change in the relative economic costs and benefits associated with filing bankruptcy; (2) A change in social norms regarding bankruptcy; and (3) Changes in the nature of consumer credit, toward more national and impersonal forms of consumer credit. It is argued that all of these factors tend to increase the incentives for filing bankruptcy or reduce the constraints imposed on filing bankruptcy. The result has been to increase the equilibrium level of bankruptcy filings in America.

Finally, the article briefly discusses some policy implications of the model presented here, focusing most specifically on the proposals contained in the Bankruptcy Reform Act that Congress is again considering, but also addressing more far-reaching proposals, such efforts to reverse changes in social norms or proposals to allow contracting-around the mandatory discharge provision of current law.

The Long Road to Being a Law Professor: An interesting discussion has been bouncing around the blogosphere recently about what law schools students should attend if they want to become law professors. To get up to speed on the discussion, check out these posts by Chris Geidner, Brian Leiter, Christine Hurt, and Larry Solum (and Larry again here). This is a very good discussion, and I agree with much of what has been posted. I have a few additional thoughts that I hope will be useful.

  Much of the discussion has focused on how much easier or harder it is to be a law professor based on what school you attend for your J.D. I think it's worth adding that, no matter what law school you go to, the road to becoming a law professor tends to be long and difficult. Rare exceptions exist, but most successful candidates get a law teaching job only after putting in a tremendous amount of work over a period of several years to prepare themselves for the teaching market. It probably starts with applying to schools; then turns to getting high grades; getting to know professors; applying for clerkships; and then — and this probably is the hardest part — writing, placing, and publishing multiple scholarly articles. The law school you attend is part of the picture, but only part of the picture.

  Second, almost all candidates encounter lots of uncertainty along the way. Persistence in the face of that uncertainty is key regardless of whether you went to law school at Yale, Tennessee, or Capital University. You might not get into the school you want, or may not get the clerkship you want; you may not place your article in a journal you want, or make law review. A few lucky souls encounter fantastic success at each and every one of these stages. But most don't; most people succeed at some of these stages and flop at others. The uncertainty continues to the very end: I know a number of very well-qualified candidates who didn't get a teaching position the first time they applied, and had to go on the market a second time to get a job.

  Finally, my relatively limited experience suggests that there is a wide gap between the success rates of candidates who are committed to getting a teaching job and those who are less committed to it. Some people express a wish to teach tempered by a number of caveats: they'll do it only if they can get a job at a top school, or only if they can be in a particular city or region. Most people who impose these sorts of restrictions give up along the way. At the same time, those who are willing to work really hard, write up a storm, and are flexible about what jobs they'll take usually end up with something eventually. Of course, it's hard to generalize on a point like this. I don't want to make it seem like anyone can be a law professor if they try hard enough; that's not true. But in my admittedly limited experience, my sense is that those who keep knocking on the door have a pretty good chance of having someone let them in.

Sunday, March 6, 2005

Are Young Associates Slackers, or Just Rational Actors?: Last week, posted this National Law Journal article on the work ethic of law firm associates who are part of the the so-called "Generation Y" — those born in 1978 or later. The verdict? From the perspective of today's law firm partners, associates from Generation Y are "slackers" with "a flabby work ethic" who don't "take charge of their career," lack "loyalty," aren't eager to do mindless work, and "don't volunteer for committee or other firm work." The article suggests everything from 9/11 to the bust as an explanation for this alleged generational shift in attitudes.

  Most of my knowledge of law firm life is second-hand, so my own take on this is sheer speculation. But I wonder if the article is missing a better explanation for the shift: law school graduates today understand that law firms — particularly large firms — are businesses. Law firms hire associates to make money, not for the esprit de corps. Big firm partners want to maximize their profits, and hiring lots of associates and having them bill lots of hours with little hope of making partner is a way to do that. Partners who have created this sort of environment are in an odd position to complain that today's young associates lack loyalty and don't volunteer for committee work. If I'm not mistaken, associates are taking their clues from partners and are viewing law firms as means to an end. Most big-firm partners are looking to make lots of money; most big-firm associates are looking to pay off some loans, get some experience, and add a line to the resume before figuring out what they really want to do with their lives. Associates in this position may seem lazy and insufficiently loyal to some partners, but that's mostly because the associates are not planning on sticking around for the long haul.

  But enough of my speculation. VC readers at law firms know a lot more about these dynamics than I do. I have opened up comments so we can get the real scoop from our readers.

Related Posts (on one page):

  1. The Problem With Partners These Days:
  2. Are Young Associates Slackers, or Just Rational Actors?:
Attorney's Girlfriend on the Jury:

This is almost unbelievable: in a case in which a jury awarded $28 million to a plaintiff in a rollover case, "The trial was interrupted last week when Ford lawyers discovered one of the jurors, Diana Palacios, was the girlfriend of plaintiffs' lawyer Jesse Gamez. In a hearing over a defense request for a mistrial, evidence was presented that Palacios, the Crystal City city manager, had also solicited two of the plaintiffs for Gamez to represent."

Now here's the even crazier part: the judge refused to grant a mistrial. And wouldn't there be some professional, or just plain moral, obligation on the part of the attorney to let the judge know that his girlfriend was on the jury before the trial started?

UPDATE: A reader writes:

You'd think so. But maybe not, at least with respect to a professional obligation. See Armstrong v. State, 897 S.W.2d 361 (Tex. Cr. App. 1995), where a juror was the longtime girlfriend [correction: another reader points out, correctly, that the juror was actually a longtime female friend] of one of the prosecutors, and the defendant was convicted of murder and given a life sentence. The Texas Court of Criminal Appeals, en banc, upheld the conviction. (No doubt this influenced the judge's decision in the Ford case you reported on.) Further, the Court expressed "no opinion" about whether the prosecutor violated Tex. Disciplinary Rule of Professional Conduct 3.09, which is a special rule for prosecutors. No one even seems to have *suggested* that there was a more general duty for attorneys other than prosecutors to disclose such matters. The Court's attitude seems to have been that defense counsel should've done a better job questioning the jurors during voire dire.

On the other hand, another reader notes that it's a pretty clear violation of rules of professional conduct to have a third party solicit clients.