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Saturday, April 22, 2006

American Law Deans Association Criticizes ABA Accreditation Standards:

Not with regard to racial preferences, but because the ABA has heavy-handedly sought to require librarians, writing instructors, and clinical faculty be granted tenure or tenure-like protections. I can certainly see the case for law schools choosing to give these faculty members tenure (assuming tenure is a good idea to begin with, which I'm not sure is true), but I don't see any reason why the ABA should be requiring every law school in the country to do so. Indeed, the real reason is likely (a) heavy lobbying from groups representing librarians, writing instructors, and clinical faculty; and (b) the ABA's general indifference to the costs it imposes on legal education. Actually, from the ABA's perspective, the more legal education costs, the better, because that way the cost of law school serves as a greater barrier to entry. There's no reason the Department of Education, which is deciding whether to continue using the ABA as the accrediting body for law schools for federal purposes, should endorse the ABA's rules. For that matter, there is no reason the ABA should be mandating how many classes are taught by full-time faculty as opposed to adjuncts, nor restricting the number of hours faculty may be required to teach.

Thanks to John Rosenberg for the pointer.

UPDATE: Check out related posts at the Truth on the Market blog by Geoff Manne and Josh Wright. And here is the memorandum by the American Law Deans Association that kicked off the controversy.

21 Comments
Censoring "Portraits of Terror" at Penn State:

Penn State Digital Collegian:

For Penn State student Josh Stulman, years of hard work ended in disappointment yesterday when the university cancelled his upcoming art exhibit for violation of Penn State's policies on nondiscrimination, harassment and hate.

Three days before his 10-piece exhibit — Portraits of Terror — was scheduled to open at the Patterson Building, Stulman (senior-painting and anthropology) received an e-mail message from the School of Visual Arts that said his exhibit on images of terrorism "did not promote cultural diversity" or "opportunities for democratic dialogue" and the display would be cancelled.

The exhibit, Stulman said, which is based mainly on the conflict in Palestinian territories, raises questions concerning the destruction of Jewish religious shrines, anti-Semitic propaganda and cartoons in Palestinian newspapers, the disregard for rules of engagement and treatment of prisoners, and the indoctrination of youth into terrorist acts.

"I'm being censored and the reason for censoring me doesn't make sense," Stulman said.

Charles Garoian, professor and director of the School of Visual Arts, said Stulman's controversial images did not mesh with the university's educational mission.

The decision to cancel the exhibit came after reviewing Penn State's Policy AD42 [the policy, which, in my educated opinion, is clearly unconstutionally overbroad even if it actually applies to Stulman's exhibit, can be found here]: Statement on Nondiscrimination and Harassment and Penn State's Zero Tolerance Policy for Hate, he wrote.

....

[Stulman] said he was shocked at the university's decision to cancel the exhibit and that he has tried to meet with Garoian on numerous occasions to discuss his artwork.

"It's not about hate. I don't hate Muslims. This is not about Islam," Stulman said. "This is about terrorism impacting the Palestinian way of life and Israel way of life.

Thanks to Scholars for Peace in the Middle East for the heads-up.

UPDATE: Here is a photo of one of the pieces from the censored exhibit. It depicts is titled “Our Greatest Hero” and depicts Palestinian Nazi (I mean that literally) Haj Amin Al-Husseini, whom Yasser Arafat called "Our Greatest Hero."

Correction, from Mr. Stulman: The name of the painting in the picture is "Ramallah" and discusses the brutal treatment of Israeli soldiers in that specific area on at least several occasions including in 2002.

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"Abstinence" becomes "biblical sex only":

Walter Olson, who runs a terrific website about litigation abuse, sends me some info and commentary about the latest salvo in the culture war from the Bush administration:

According to online reports, the Bush administration in January issued regulations redefining "abstinence" in federal educational programs to mean avoidance of sex at any age whatsoever except within the framework of conventional heterosexual marriage. Loads of tax dollars will now be spent in American classrooms to enforce the message that gays and unmarried heterosexuals, no matter how ripe in age, should never have sex at all, no matter how monogamous. To quote the regs:

Abstinence curricula must have a clear definition of sexual abstinence which must be consistent with the following: "Abstinence means voluntarily choosing not to engage in sexual activity until marriage. Sexual activity refers to any type of genital contact or sexual stimulation between two persons including, but not limited to, sexual intercourse."

[And later:] Throughout the entire curriculum, the term 'marriage' must be defined as "only a legal union between one man and one woman as a husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (Consistent with Federal law)

Olson adds this additional commentary:

It seems to me that a classic bait-and-switch has gone on here. The federal government has devoted more than a billion dollars to "abstinence-only" education programs in schools. These programs have commanded fairly broad public support or at least tolerance, I think, because people who disagree on many other things will often agree that youngsters are better off postponing sexual experience until they are old enough to handle the consequences. Now it turns out that the message wasn't "teens are better off if they wait" but "let's reverse the sexual revolution".

Note also the confusion about "consistent with Federal law". The regulation-writers do not seem to realize that the Federal Marriage Amendment hasn't actually passed, and that nothing in federal law forbids Massachusetts from marrying same-sex couples. Such language inadvertently makes clear, however, that the abstinence program has cut loose from whatever original public-health rationale it may have had, and is now about enforcing social conformity, not reducing risks of disease or out-of-wedlock pregnancy or empowering novices to make more considered decisions.

An additional source of information on the new guidelines, complete with more links to the problematic nature of this policy, can be found here.

341 Comments

Friday, April 21, 2006

Right result under a bad precedent:

The Ninth Circuit got it wrong in Harper v. Poway Unified School Dist.. Eugene, as usual, is right about that. The Supreme Court’s decision in Tinker allows public grade schools to suppress student speech (1) when it involves “invasion of the rights of others” or (2) when it reasonably threatens “substantial disruption of or material interference with school activities.” If I were a federal appellate judge, bound by the fairest reading of Tinker, I would have dissented. The problem, as Eugene, David Bernstein, and dissenting Judge Kozinski have noted, is that Tinker itself may be wrong. If the Supreme Court gets this case, it should overrule Tinker or artfully “limit” it. (By the way, Eugene didn’t tell you that Kozinski’s dissent cites Eugene’s own excellent work on the interaction of free speech and harassment law.)

On the first prong of Tinker, I don’t know what the Supreme Court meant by saying that a school could suppress speech to protect the “rights of others.” It probably meant that schools could prohibit things like face-to-face verbal harassment, libel, and threats, which are already examples of largely unprotected speech. If so, I have no quarrel with it. I’m pretty sure, however, Tinker should not be read to allow schools to banish all methods of expressing a whole viewpoint (e.g., against homosexuality). Eugene is right to take the majority to task for this. In what may be a first, the court’s justification for a speech regulation appears to be more troubling than the government’s own justification for it. There’s actually more evidence of viewpoint discrimination in the majority opinion than there is in the actions of school officials.

On the second prong of Tinker, related to “substantial disruption,” if a school can’t bar a student from wearing an anti-war black armband in the midst of a heated national controversy over the Vietnam War, it’s hard to see how a school could bar a student from wearing an anti-gay T-shirt in the midst of a heated national culture war over homosexuality. While the school had some vague evidence that there had been past “altercations” over such messages, and that some students in one class started talking about the T-shirt instead of doing their class work, it’s hard to see how any of this rises to the level of reasonably threatening “substantial disruption of or material interference with school activities” required before such messages can be banned. Here, too, Kozinski is probably right about the best understanding of Tinker. (The majority didn’t even address the sufficiency of the evidence on this point because it decided the case under the first part, above, dealing with invasion of others’ rights.)

But this only illustrates the problem with Tinker. Kozinski argued that “it is not unusual” for high school students to be “off-task” in the classroom, which supports the view that the T-shirt did not disrupt the educational mission of the school more than it is already routinely disrupted. That’s true, and a court faithfully following Tinker should probably agree. But the deeper question is, why should federal judges, rather than on-the-spot school administrators and teachers, make judgments about whether class is too disrupted by off-topic banter and by having to stop everything to bring students back “on-task”?

If schools were free-speech zones, like the public square, we shouldn’t give state censors so much discretion to suppress speech to prevent “disruption” of some social goal. But schools cannot function as fully free-speech zones. Every class is an exercise in content-based speech regulation by teachers, who control discussion in ways that would be unthinkable in the public realm.

One might say that even “viewpoints” expressed in certain ways and at certain times can be banished from classroom discussion. A public school teacher can surely instruct students in classroom discussions to stop referring to blacks as “niggers,” to gays as “faggots,” or to Jews as . . . you get the idea. If teachers can instruct them not to say these things verbally, surely teachers can stop students from saying them on clothing worn all day. And the difference between saying that homosexuality is “shameful” and saying that gays are “faggots” is arguably one of degree, “shame” being a concept with particular closeting power in the lives of homosexuals. I suppose one could argue that using the word "shameful" here is itself the viewpoint being expressed (not just generalized opposition to homosexuality), but that would be akin to saying that using the word "nigger" is the relevant viewpoint (not just generalized opposition to race equality).

Whether to allow the viewpoint that homosexuality is wrong to be expressed in this particular way (“shameful”) and by this particular method (worn all day on a t-shirt, so that the message is never turned “off”) is a judgment best left to school administrators and teachers. They are in a better position than federal judges to determine, in the context of their own schools, whether such expressions distract from the school’s educational mission, either because they lead to general disruption or because they cause gay kids in particular to hide under a rock rather than learn anything.

This last point should not be passed over lightly, as if we’re simply talking about a bunch of whining minorities who want to be free from all criticism in life. This school, like every public school I’ve ever heard of, has a history of harassment of students thought to be gay. A gay student testified that other students “repeatedly called him names, shoved him in the hallways, threw food at him and spit on him,” and that he heard nasty comments about gays “on a nearly daily basis.” When he and another student sued the school for failing to stop all this, a jury agreed with them.

Of course, a single T-shirt bearing the words “Homosexuality is shameful” isn’t that sort of direct face-to-face harassment and doesn’t, by itself, create a pervasively hostile environment. No single derogatory statement, taken by itself, creates a pervasively hostile environment. The problem is that it's expressed in a context that is already a living hell for gay kids in many public schools, as it probably was in this one, making it difficult for them to concentrate on getting an education.

When you're a closeted gay kid sitting in math class behind that guy wearing that T-shirt staring you in the face the whole time, and you know you have nobody to talk to about how it demeans your most intimate feelings, your whole world starts to look pretty desolate. At the very least, it's hard to focus on hypotenuses. Judge Kozinski put the point well in his dissent, when he said he was sympathetic to the argument that "students in school are a captive audience and should not be forced to endure speech that they find offensive and demeaning." Such messages, he wrote, "may well interfere with the educational experience even if the two students never come to blows or even have words about it."

I would not want to allow schools to banish all ways of expressing certain viewpoints, including the viewpoints that homosexuality is wrong, that blacks are inferior, or that women should remain at home. It should be permissible even to say that homosexuality is "shameful" in the context of, say, a classroom discussion of sexual morality. There should be times and places for expressing political views in schools; but that time is not all day and that place is not in the middle of a classroom on another topic. Schools should be given considerable latitude – certainly more than Tinker seems to give them – to ensure that students focus on the curriculum.

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Disinhibition Nation: This column by Dan Henninger in today's Wall Street Journal has much within it with which I disagree. Not the least is that it purports to be about blogs and blogging, but is actually about the Internet writ large, including chat rooms and IM. Even with respect to blogging, it seems to rely more on the tone of anonymous commenters than on bloggers themselves, especially those who blog in their own name, which nowadays describes the best-read blogs. Nevertheless, it raises some interesting issues that we internet partisans should consider. Two in particular strike me as worthy of discussion. The first is the coarsening of public discourse:
Intense language like this used to be confined to construction sites and corner bars. Now it is normal discourse on Web sites, the most popular forums for political discussion. Much of this is new. Politics is a social endeavor. The Web is nothing if not "social." But the blogosphere is also the product not of people meeting, but venting alone at a keyboard with all the uninhibited, bat-out-of-hell hyperbole of thinking, suggestion and expression that this new technology seems to release.
One of the things I find off-putting about comments is their snarkiness and vitriol. And, lest I be misunderstood, I think this tone exists in all ideological corners, which brings up the issue of the coarsening of discourse generally. And, lest I be further misunderstood, ever since I was a criminal prosecutor, my own language is far from pristine. Indeed, I consider my year as a research fellow at the University of Chicago after practice to be a sort of cold-turkey therapy for cleaning up my language in preparation to being an academic. But I never returned to the status quo ante.

However, I am not really concerned with whether expletives are becoming more common today, but with Henninger's main point about tone and vitriol that he suggests comes from a lack of inhibition that is peculiar to the internet, and that I believe has worsened over the past (pick your own time span). To what degree is the internet in general, or blogging in particular, responsible for this coarsening and is there anything to be done about it?

Henninger's second and more interesting observation is an alleged cause of the first:
Not surprisingly, a new vocabulary has emerged from clinical psychology to describe generalized patterns of behavior on the virtual continent. As described by psychologist John Suler, there's dissociative anonymity (You don't know me); solipsistic introjection (It's all in my head); and dissociative imagination (It's just a game). This is all known as digital identity, and it sounds perfectly plausible to me.

A libertarian would say, quite correctly, that most of this is their problem, so who cares? But there is one more personality trait common to the blogosphere that, like crabgrass, may be spreading to touch and cover everything. It's called disinhibition. Briefly, disinhibition is what the world would look like if everyone behaved like Jerry Lewis or Paris Hilton or we all lived in South Park.

Example: The Web site currently famous for enabling and aggregating millions of personal blogs is called MySpace.com. If you opened its "blogs" page this week, the first thing you saw was a blogger's video of a guy swilling beer and sticking his middle finger through a car window. Right below that were two blogs by women in their underwear.

In our time, it has generally been thought bad and unhealthy to "repress" inhibitions. Spend a few days inside the new world of personal blogs, however, and one might want to revisit the repression issue.

The human species has spent several hundred thousand years sorting through which emotions and marginal neuroses to keep under control and which to release. Now, with a keyboard, people overnight are "free" to unburden and unhinge themselves continuously and exponentially. One researcher quotes the entry-page of a teenage girl's blog: "You are now entering my world. My pain. My mind. My thoughts. My emotions. Enter with caution and an open mind."

The power of the Web is obvious and undeniable. We diminish it at our peril. But what if the most potent social effect to spread outward from the Internet turns out to be disinhibition, the breaking down of personal restraints and the endless elevation of oneself? It may be already.
Readers of blogs like this one are likely to be personally familiar with "dissociative anonymity" (You don't know me). "solipsistic introjection" (It's all in my head); "dissociative imagination" (It's just a game), and "disinhibition," if such mindsets are truly prevalent. If you are honest with yourself, would you say (anonymously of course) that you notice these traits in yourself? If so, what do you do, or think can be done, to counteract them? I would find an candid and nonsnarky discussion of these ideas more useful than a deconstruction of Henninger's column that lives down to his expectations of blogging.
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F.D.A. Dismisses Medical Benefit From Marijuana: This balanced story from The New York Times contains within it several appropriate critical responses to this announcement by the FDA. Here is the lede:
WASHINGTON, April 20 — The Food and Drug Administration said Thursday that "no sound scientific studies" supported the medical use of marijuana, contradicting a 1999 review by a panel of highly regarded scientists.

The announcement inserts the health agency into yet another fierce political fight.

Susan Bro, an agency spokeswoman, said Thursday's statement resulted from a past combined review by federal drug enforcement, regulatory and research agencies that concluded "smoked marijuana has no currently accepted or proven medical use in the United States and is not an approved medical treatment."

Ms. Bro said the agency issued the statement in response to numerous inquiries from Capitol Hill but would probably do nothing to enforce it.

"Any enforcement based on this finding would need to be by D.E.A. since this falls outside of F.D.A.'s regulatory authority," she said.

Eleven states have legalized medicinal use of marijuana, but the Drug Enforcement Administration and the director of national drug control policy, John P. Walters, have opposed those laws.
You may want to read the whole thing before commenting.

Related Posts (on one page):

  1. F.D.A. Dismisses Medical Benefit From Marijuana:
  2. Waiting to Inhale:
55 Comments
Israel and the Iraq War:

Tony Judt in the New York Times: "Prominent Israeli leaders ... pressed very hard for the invasion of Iraq." Is there any evidence that this is true? Certainly, Israelis of just about every ideological stripe were happy to have Saddam taken out, given that, among other things, he financed suicide murderers, and had launched missles at Israel in 1990. But that's very different from suggesting that Israeli leaders lobbied the Bush Administration to invade Iraq. Israeli leaders can't even persuade Secretary of State Rice that it needs to keep the crossing between Israel and Gaza closed for security reasons; why would they bother trying to lobby the Bush Administration on an Iraq invasion (especially when any leak of such pressure would make it much more difficult for the Administration to invade Iraq?) I've certainly seen many, many, indications that before and after the Iraq war, Israel has pressed the U.S. to do something about Iran [with the implicit threat that Israel might be forced to do something drastic otherwise], but other than consistent repitition on the Left, is there any actual, documented evidence, that Israeli officials lobbied the administration to invade Iraq, as opposed to just cheering from afar? This is not a rhetorical question; I'm open to correction on this, and I hope the Times is, too, if Judt's claim is not supportable.

Judt has a lot more to say about the Walt-Mearsheimer paper, much of it foolish, but I'm getting tired of the topic; how much more "ink" must we waste on a screed so poorly done that even Noam Chomsky disavows it? But here's a critique from a Ha'aretz columnist, who notes that quoting the most left-wing sources in a left-wing Israeli newspaper does not exactly constitute a fair sampling of Israeli opinion.

UPDATE: In the Comments, Frank Cross points to this well-documented critique of the thesis that Israel pushed for war with Iraq, by Martin Kramer.

Meanwhile, so far (3:40 p.m.) no one has provided contrary evidence.

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Thursday, April 20, 2006

Profiles in Courage--Nova Southeastern Edition:

Nova Southeastern has invited a controversial and undoubtedly extremely interesting speaker for its commencement--Salman Rushdie. Some Muslim students object to the choice, apparently because of his "blasphemous" writings. More or less par for the course. But here's the kicker:

Besides concerns based on Rushdie's writing, students also expressed worries over safety. "Who is to say there is not someone willing to try and kill him while inflicting harm to [sic] everyone else at the ceremony?" said NSU student Randy Rodriguez-Torres in an editorial published in this week's Nova student newspaper.

Rushdie's lived with a fatwa on his head for almost twenty years. Do you think Nova students might be willing to spend two hours in the same auditorium with him? (Hat tip: LGF)

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Sorry, Your Viewpoint Is Excluded from First Amendment Protection:

That's what the Ninth Circuit holds today, as to student speech in K-12 schools, in a remarkable -- and in my view deeply unsound -- decision (Harper v. Poway Unified School Dist.).

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.

Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

This isn't limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a "severe or pervasive" requirement such as that requirement to make speech into "hostile environment harassment" (a theory that poses its own constitutional problems, but at least doesn't restrict individual statements).

Rather, any T-shirt that condemns homosexuality is apparently unprotected. So are "display[s of the] Confederate Flag," and T-shirts that say "All Muslims Are Evil Doers."

So presumably would be T-shirts that depict some of the Mohammed Cartoons, as the dissent quite plausibly suggests -- note that the majority's confederate flag example makes clear that even ambiguous statements are stripped of protection if they can be seen as insulting based on race, religion, or sexual orientation. So perhaps might be T-shirts that condemn illegal aliens, since those too are directed at "minority status such as race, religion, and sexual orientation" (the "such as" makes clear that race, religion, and sexual orientation needn't be the only "minority status[es]" that would get special protection from offensive viewpoints).

The majority "reaffirm[s] the importance of preserving student speech about controversial issues generally." But, according to the constitution, this First Amendment principle somehow omits speech about controversial issues having to do with race, religion, or sexual orientation.

The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate "about controversial issues" wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it's not important to preserve student speech that expresses that view.

"[T]here is an equality of status in the field of ideas," the Supreme Court has said. "Under the First Amendment there is no such thing as a false idea." "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." And yet according to Judge Reinhardt, the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations.

The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it's likely to substantially disrupt the educational process. And sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption.

But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas."

Yet the majority specifically refrains from relying on this principle (and Judge Kozinski's dissent points out that on the facts of this case, there wasn't enough of a showing that the speech would likely cause disruption). Instead, Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment's not protecting student speech that "intrudes upon . . . the rights of other students," and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).

This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.

Maybe the government needs more flexibility in controlling student speech than Tinker provides. As the close of Judge Kozinski's opinion, he suggests that, "Perhaps school authorities should have greater latitude to control student speech than allowed them by Justice Fortas’s Vietnam-era opinion in Tinker. Perhaps Justice Black’s concerns, expressed in his Tinker dissent, should have been given more weight. . . . Perhaps the narrow exceptions of Tinker should be broadened and multiplied. Perhaps Tinker should be overruled." But even if this is so, whatever rule is adopted should be a rule that the First Amendment applies -- or doesn't apply -- to all viewpoints equally, not that views that the court system finds "derogatory and injurious" are specially stripped of constitutional protection.

258 Comments
Bloggers-Meet-Readers on Thursday, April 27, 9 pm, in Cambridge, Massachusetts:

A bunch of bloggers, including some of us Conspirators, will be in Cambridge for a Harvard Law School Berkman Center conference on blogging and legal scholarship next Thursday and Friday (April 27 and 28), and we plan to hang out either at the Harvard Faculty Club (if a room there can be reserved for the right time) or at a local bar on Thursday, April 27, at 9 pm.

If you're around that evening and would like to join us, please mark your calendars; we'll post more when the exact place is worked out. So far, it looks like these bloggers are on for that evening:

Douglas Berman, Sentencing Law and Policy
Gail Heriot, The Right Coast
Jim Lindgren, The Volokh Conspiracy
Christine Hurt, Conglomerate
Paul Butler, BlackProf
Michael Froomkin, Discourse.Net
Gordon Smith, Conglomerate
Betsy Malloy, Health Law Prof Blog
Randy Barnett, The Volokh Conspiracy
Orin Kerr, The Volokh Conspiracy and OrinKerr.com
Howard Bashman, How Appealing
Dan Solove, Concurring Opinions
Ann Althouse, Althouse
Eric Goldman, Technology & Marketing Law Blog
Larry Ribstein, Ideoblog
Peter Lattman, Wall Street Journal’s Law Blog
Paul Caron, Taxprof
Larry Solum, Legal Theory Blog
Ellen Podgor, White Collar Crime Prof Blog

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The Benefits and Costs of Blogging: Here (via Glenn) is a nice account of why blogging is great:
I stopped worrying about deadlines, audience, editors, letters to the editor, all the stuff that had smothered me before. I was writing so fast that I didn't have time to double-think my sentence structure or my opinions. What came out was sloppier but also funnier and more honest. I started getting e-mails from people I'd never met, and they were actually encouraging. (At the paper, it seemed like most e-mails from strangers begin with a variant of "Hey, dumbass.") I continued blogging for years, through cities and jobs and relationships, and though the blog entries never amounted to much, they always gave me a fleeting joy, like conquering some small feat—opening a very difficult, tightly sealed jar—even when no one is around to see it.
And why it is not so great:
And yet every once in a while those agents would check in, to ask how that book was coming. And the book wasn't coming, and wasn't coming, and I became one of those people who talk about a book but never write it. At times, I started to feel that jokes and scenarios and turns of phrase were my capital, and that my capital was limited, and each blog entry was scattering more of it to the wind, pissing away precious dollars and cents in the form of punch lines I could never use again, not without feeling like a hack. You know: "How sad. She stole that line from her own blog."

Blogging had been the ideal run-up to a novel, but it had also become a major distraction. I would sit down to start on my novel only to come up with five different blog entries. I thought of them as a little something-something to whet the palate—because it was easier, more immediately satisfying, because I could write it, and post it, and people would say nice things about it, and I could go to bed feeling satisfied. But then I would wake feeling less than accomplished because a blog wasn't a whole story told from beginning to end. I had shelves lined with other people's prose while my best efforts were buried on a Web site somewhere, underneath a lot of blah-blah about American Idol and my kitty cat.
This points out one of the wonderful benefits of group blogs. You can slide for considerable periods of time to meet the demands of your day job, while your readership is preserved by your co-bloggers. The challenge for group blogging, of course, is finding a group of bloggers with a similar enough voice to attract and retain an audience. Part of this is solved for us at the VC by the fact that Eugene is the sole judge of who gets invited to blog here. In my case, I have also found myself adjusting my voice to that of the blog. I suspect other members of the Conspiracy have done the same. Mainly, I have done so because I like this voice, but also because it seems to contribute best to a jointly-produced product.
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Waiting to Inhale: This is from a press release by the Marijuana Policy Project:
The Marijuana Policy Project invites you to attend a screening of Waiting to Inhale, a feature-length documentary that provides a compelling and detailed look at medical marijuana.

Waiting to Inhale will be screened in Boston on Saturday, April 22, at 12:00 p.m. at the Brattle Theatre, and on Sunday, April 23, at 3:30 p.m. at the Somerville Theatre.

A panel discussion with film director Jed Riffe, noted scholar and author Dr. Lester Grinspoon, and Whitney Taylor, executive director of the Drug Policy Forum of Massachusetts, will follow both screenings.

Funded in part by a grant from MPP, Waiting to Inhale features experts on both sides of the medical marijuana issue and intimate stories from critically ill patients seeking relief from their pain.

Waiting to Inhale has already played to critical acclaim, having won the 2005 CINE Golden Eagle Award, the Gold Special Jury "Remi" Award at the 38th Annual WorldFest-Houston, and the 2005 Best Documentary Film/Video at the New Jersey International Film Festival. Please visit www.WaitingToInhale.org for more information.

Please visit www.iffboston.org for more details about the screenings. Tickets can be purchased for $8.
I have not seen this film myself, so I may try to make it. This is also a nice chance to hear Lester Grinspoon, one of the pioneers of scholarship on intoxicants and the effects of drug prohibition.
26 Comments
Cato University 2006 Cornerstone of Liberty: Property Rights in 21st-Century America


Cato has announced the location and topic of this year's summer seminar. Although I am not lecturing at this one, I have often done so in the past and can report it is a wonderful event, in part because the "students" are of all ages, professions, and walks of life. In addition, there is always a contingent of college students on scholarships mixed in. In past years, I have taken both my parents and my children. The folks at Cato have said it is OK to advertise the discount for pre-registration.
Cato University  July 26 - 30, 2006, Don CeSar Beach Resort  St. Pete Beach, Florida

Cato University has become one of the Cato Institute's premier annual events. Invitations will be going out soon, but we want to be sure you receive early notice of the dates and have a chance to join us at a special preregistration rate of $1550/single and $2945/couple ($1700/single and $3230/couple after June 23).
This year's program promises to be one of the most compelling eye- and mind-opening programs we've created. How interesting? Consider this: Is your home in danger? Could other people just take your property from you if they think they have a better use for it? Yes, they absolutely can. And in many communities around the country it has occurred. How? What can be done to prevent it? Join us in Florida this July and learn what has happened, where things are heading, and how you can vigorously guard property rights against property theft.

You'll enhance your mind, spend your time with fascinating people from around the country, and have plenty of opportunity to relax and enjoy yourself at the world-class Don CeSar Beach Resort. What a way to learn! So, join us; we look forward to having you as part of this important Cato University.

For details and registration click here.
I am opening comments in case there are any VC readers who have attended a previous Summer University and who want to report their experiences. (Extraneous comments may be deleted.)
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Cal. Supreme Court: Offensive Speech Does Not Equal Sexual Harassment:

The California Supreme Court has issued a very important decision in the Lyle v. Warner Brothers case, more commonly known as the Friends sexual harassment case (I wrote about it here). In a unanimous opinion, the court held that the plaintiff failed to make a prima facie case that the Friends' writers sexual banter created a hostile work environment on the basis of sex. The court's reasoning is summed up in the following sentence: "While [California law] prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely offends."

Having ruled against the plaintiff on statutory grounds, the court did not reach the First Amendment issues this case presented, but Justice Chin wrote a concurring opinion stating that the plaintiff's claim is barred by the First Amendment. Chin's opinion cites Eugene's work very favorably.

The main opinion is significant for two reasons. First, the California Supreme Court has for decades been on the forefront of promoting incredibly expansive interpretations of antidiscrimination laws, creating broad conflict with First Amendment rights and other civil liberties. For example, the California Supreme Court held that a local Boys' Club was a "business establishment" within the meaning of California law and therefore had to admit girls to membership. More recently, the court in the Aguilar case, in a 4-3 vote (two of the dissenters, Stanley Mosk and Janice Brown, have since left the court), upheld a very broad prior restraint on discriminatory speech in the workplace. That this court, in particular, was willing to narrowly interpret hostile environment law, and unanimously (!) is a huge victory.

Second, scholars such as Eugene and me who worry about the civil liberties implications of overly broad antidiscrimination law have tried, in our writings, to emphasize that there is not and should not be a right to be free from offense. The recent Mohammed cartoons controversy has illustrated this point as starkly as one could hope. The California opinion is directly based on the distinction between merely offensive sexual banter that some individuals may find distressing, and truly harassing conduct directed at an individual.

So, while it would have been great to have had the court's majority endorse Justice Chin's (and, by extension, Eugene's) reasoning, it's still a wonderful victory for freedom of expression.

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Former Estonian Prime Minister Mart Laar Wins Friedman Prize for Liberty From Cato.org:
The Cato Institute today announced that the recipient of the 2006 Milton Friedman Prize for Advancing Liberty is Mart Laar, the former prime minister of Estonia and main architect of his country's remarkable economic transformation into one of the world's freest and most dynamic economies.

The prize and its accompanying $500,000 cash award will be presented to Laar on May 18 at the Drake Hotel in Chicago. Named after Nobel laureate Milton Friedman, the prize is awarded every other year to an individual who has made a significant contribution to advancing human freedom. The Friedman Prize went to the late British economist Peter Bauer in 2002 and to the Peruvian economist Hernando de Soto in 2004.

Upon hearing that he had been chosen as the third recipient of the prize, Laar said: "I am very happy and proud to receive such an important prize. The Milton Friedman Prize is especially important to me as I am such an admirer of Milton Freidman's works and I am proud that we succeeded to prove in Estonia that Milton Friedman's ideas really work. This is not a prize for me but to all my fellow Estonians, who have made the Estonian miracle possible."

Throughout his public life, Laar has embodied the values of liberty and free choice recognized by the prize, and his dedication to these ideals helped him to lead his country to economic prosperity through a radical free market program.

Today, Estonia is hailed as a model for emerging democracies and is cited as an example that ailing Western European economies should follow too. Consistently near the top of the Economic Freedom of the World Index, Estonia is now a member of NATO, the EU and the WTO, with well over 90 percent of its formerly state-run economy privatized.

When Laar took the reins of power of the newly independent country in 1992, he was only 32 years old, and Estonia was struggling to heal from the wounds of Soviet occupation. Laar believed that the way to ensure success for Estonia was to cultivate freedom and self-determination. In only two years in office, he negotiated the withdrawal of Russian troops from Estonian soil and introduced the kroon, one of Eastern Europe's most stable currencies. He also instituted a flat tax rate, a move, which has been widely copied . even in Russia. Under Laar, Estonia removed price controls, discounted useless regulations, and saw the largest real per capita income of any of the former Communist states.

But as Laar, who served two terms as prime minister, has pointed out, he is not an economist: "I had read only one book on economics . Milton Friedman's Free to Choose. I was so ignorant at the time that I thought that what Friedman wrote about the benefits of privatization, the flat tax and the abolition of all customs rights, was the result of economic reforms that had been put into practice in the West. It seemed common sense to me and, as I thought it had already been done everywhere, I simply introduced it in Estonia, despite warnings from Estonian economists that it could not be done. They said it was as impossible as walking on water. We did it: we just walked on the water because we did not know that it was impossible."

"Mart Laar, who was inspired by Milton Friedman, is the perfect Friedman Prize winner," said Ed Crane, president and CEO of the Cato Institute. "His courageous program as Estonia's prime minister created the 'Baltic Tiger,' a free and prosperous nation that is a model for the world to emulate. Laar's selection again underscores the international nature of the Milton Friedman Prize for Advancing Liberty."

In 2001, Friedman agreed to lend his name to the award. He said in a statement about the award: "Those of us who were fortunate enough to live and be raised in a reasonably free society tend to underestimate the importance of freedom. We tend to take it for granted. It has made us in the West more complacent, so having a prize emphasizing liberty is extremely important."
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Wednesday, April 19, 2006

Lysander Spooner Book Award Winner Named: From Laissez-Faire Books:
Katherine Albrecht and Liz McIntyre's Spychips Named Best 2005 Book on Liberty

Laissez Faire Books is pleased to award the third annual Lysander Spooner Award for Advancing the Literature of Liberty to Katherine Albrecht and Liz McIntyre for the best book on liberty for 2005. The award is for their book, Spychips: How Major Corporations and Government Plan To Track Your Every Move with RFID. The authors earn a $1,500 prize with the honor.
You can read the rest of the award announcement and the first chapter of the book here.
Isn't This What People Were Worrying About Following PGA v. Martin?

[UPDATE: Commenters suggest that, according to other press accounts, the wheelchair-bound student is simply allowed to run at the same time as the others, but not in competition with them; I'm off to teach now, but I hope to look into this further — that would raise less serious problems than requiring that she be allowed to compete.]

[FURTHER UPDATE: Press accounts and the accounts in the comments, including references to the injunction, are ambiguous. I'm reminded again of something I noted in the post, but should have acted on rather than just noting — be careful relying on a press account of a court order, and wait instead, if possible, until you can see the court order. I still can't find it online, but I'm trying to track it down; in the meantime, if anyone has the text of the order, please e-mail it to me at volokh at law.ucla.edu. Thanks!] [STILL FURTHER UPDATE: Got the order and some supporting documents, hope to get to the bottom of this soon.]

The AP reports:

A federal judge has issued a preliminary injunction against a school district that will allow a wheelchair athlete to run at track events at the same time as her able-bodied teammates. [EV: Other press accounts make clear that "run" here means "ride a wheelchair."]

Tatyana McFadden, 16, won two medals at the 2004 Paralympics in Athens and is a student at Atholton High School in Columbia. The Howard County school system had allowed her to practice with the track team, but ruled she must compete in separate wheelchair events.

That meant she mostly competes by herself ....

But on Monday, U.S. District Judge Andre M. Davis granted McFadden's request for a preliminary injunction against the school system ....

McFadden's claims were based on the Rehabilitation Act, which prohibits exclusion of persons with disabilities from programs and activities that receive federal funds, the law center said....

I'm not an expert on the Rehabilitation Act (or the Americans With Disabilities Act, which was involved in the Casey Martin case); and I couldn't find the opinion on LEXIS and WESTLAW yet, so I should issue the usual caution about the possible errors in press accounts.

Nonetheless, how can it make sense to have wheelchair racers racing against foot racers? Even if Martin was rightly decided, and the requirement that one walk rather than riding from hole to hole while playing golf isn't really essential to golf, surely the requirement that one run rather than riding is essential to racing, no? You wouldn't have foot racers racing against bicyclists, unicyclists, or swimmers; these are just different sports. And if the response is that it's logically impossible to tell whether they're different sports or not, then that cuts in favor of the dissent in Martin, and against any disability law interference with the rules established by sporting event organizers.

Thanks to Tom Elia (The New Editor) for the pointer.

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Make Your Friedman Prize Predictions: The Cato Institute announces here that tomorrow, Thursday, April 20, it will announce the recipient of the 2006 Milton Friedman Prize for Advancing Liberty. Here is a description of the prize:
Milton Friedman Prize for Advancing Liberty

The Milton Friedman Prize for Advancing Liberty carries a cash award of $500,000 and is presented every other year to an individual who has made a significant contribution to the advancement of human freedom. Previous winners of the prize include Hernando de Soto and Peter Bauer. Friedman, perhaps the greatest champion of liberty in the 20th century, graciously agreed to lend his name to the award and in a statement said:
Those of us who were fortunate enough to live and be raised in a reasonably free society tend to underestimate the importance of freedom. We tend to take it for granted. It has made us in the West more complacent, so having a prize emphasizing liberty is extremely important.

There are quite a large number of people around the world who have acted in ways that have promoted the cause of liberty, and have promoted the cause of liberty under circumstances which were personally very difficult, involving very serious costs to themselves. There are many more worthy candidates than there are prizes."
The 2006 award will be presented to the winner at a dinner on May 18, 2006, at the Drake Hotel in Chicago.

So who do YOU think WILL get the prize? Post your guesses here. (It won't be me as I assume the winner has already secretly been notified.) Even better if you post the reasons why the person deserves the prize AND why you think he or she will actually win. I suppose you can also guess who you think OUGHT to win and why they won't, but I wonder if anyone without inside information can actually name the eventual winner.
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Ten Year Old Boy Arrested for "Hate Speech" in Britain:

A ten-year-old in Manchester, England, has been arrested and charged with a racially aggravated public order offence.

District Judge Jonathan Finestein said the decision to prosecute the youngster - accused of calling a fellow pupil a "Paki" and a "nigger" - was "political correctness gone mad".

He attacked the police for not "bothering" to prosecute more serious crime such as car theft but readily picking on a "silly" incident.

He added that he used to be called fat at school and said that in the old days the headmaster would have given the children "a good clouting" and sent them on their way.

Judge Finestein spoke out when the boy, from Irlam, Greater Manchester, appeared at Salford youth court accused of racially abusing a fellow pupil.

He called an 11-year-old boy "Paki", allegedly referred to him as "bin Laden" and chanted: "He's on the run, pull the trigger and shoot the nigger". He is said to have made the comments in the school playground between July 1 last year and Jan 30 this year.

The 10-year-old denied the racially aggravated public order offence and said he was now friends with the boy.

He admitted calling him a "Paki" but said he did not use any other racist terms and claimed the complainant had called him "white trash".

I don't know about the "good clouting" part, but surely a ten-year-old calling calling an eleven-year-old names shouldn't be a criminal offense, and, if it is, the prosecutor should be exercising some discretion.

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Is There a Name for This?

I'm writing about observations in some discipline -- in my case, law, but it could be anything else -- that are novel, nonobvious, and useful, and thus likely to be helpful to others, but that are pretty small and unambitious, to the point that many serious scholars wouldn't trouble themselves to write a scholarly article about them. The trouble is that because the observations don't get memorialized in media that future researchers will likely search (they might get blogged, but they won't be findable through LEXIS and WESTLAW), others will have to reinvent them. And, worst of all, the original inventor won't get that all-important extra citation to add to his citation count.

My tentative name for them is "micro-discoveries," in part because the piece in which I'm discussing this labels various facets of a scholar's life as "discovering," "disseminating," and "doing." But I'm not wild about the name, and if there's already an existing name -- perhaps from other disciplines -- I'd love to hear it. If you know such a name, please post it in the comments. Thanks!

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Another Puzzling Bushism:

Slate's editor includes this in his Bushism of the Day column today:

"I'm the decider, and I decide what is best. And what's best is for Don Rumsfeld to remain as the secretary of defense." — Washington, D.C., April 18, 2006

First, I wonder whether a little context — which Slate unfortunately doesn't provide, and doesn't even link to — might be helpful. Here's the broader exchange (April 18, 2006):

QUESTION: Mr. President, you created a practice of not commenting on potential personnel moves, calling it speculation...

BUSH: Of course, I do. You can understand why: because we've got people's reputations at stake.

And on Friday, I stood up and said I don't appreciate the speculation about Don Rumsfeld. He's doing a fine job. I strongly support him.

QUESTION: Well, what do you say to critics who believe that you're ignoring the advice of retired generals, military commanders, who say that there needs to be a change?

BUSH: I say I listen to all voices. But mine's the final decision.

And Don Rumsfeld is doing a fine job. He's not only transforming the military, he's fighting a war on terror — he's helping us fight a war on terror.

I have strong confidence in Don Rumsfeld.

I hear the voices. And I read the front page. And I know the speculation. But I'm the decider and I decide what is best. And what's best is for Don Rumsfeld to remain as the secretary of defense.

The insistence that "I'm the decider" might sound slightly odd out of context. But in context, it's simply a reflection of the question — the questioner is stressing that some retired generals think Rumsfeld should go; so are various other commentators; Bush is stressing that it's not up to the generals or the newspapers to make the decision, but up to him.

But beyond this, what does this have to do with "The president's accidental wit and wisdom," the Bushisms column's subtitle? Am I missing some funny grammatical error? Some other instance of accidental wit? And if the criticism is a substantive criticism of Bush's message, wouldn't that require, well, some actual argument, rather than just a "Here are some silly words that speak for themselves"?

UPDATE: Commenter Confused suggests that the problem might be the use of "decider" instead of "decisionmaker." I hadn't even thought of this, but on reflection I agree that "decider" is considerably more often used to describe a deciding event -- especially a deciding event in sports, according my quick LEXIS search -- rather than a person who decides.

Yet the Oxford English Dictionary lists "One who or that which decides (a controversy, question, etc.)" as one of the definitions (the other indeed being "spec. in Racing. A final race or heat which decides the contest; esp. an extra one run for that purpose, e.g. after a dead heat."); the examples fit the "one who decides a question" definition. And the word "decider" used to mean "one who decides" fits so easily with normal rules of English word formation that it didn't even strike me as odd. (Yes, I know that normal rules of English word formation sometimes produce results that ordinary English speakers would actually never use, but the OED suggests that this isn't one such instance.) So at most, it seems to me, one would say that the usage is mildly unidiomatic, not wrong, silly, or even inadvertently funny.

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A (Limited) Victory for Freedom of Expression in Canada:

In You Can't Say That!, I recounted the following troubling incident:

the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix newspaper and Hugh Owens to each pay $1,500 (appoximately $1,000 U.S.) to each of three gay activists as damages for publication of an advertisement placed by Owens conveying the message that the Bible condemns homosexual acts. The ad conveyed this message by citing passages from the Bible, with an equal sign placed between the verse references and a drawing of two males holding hands [actually, I've learned, stick figures] overlaid with the universal nullification symbol--a red circle with a diagonal bar.

Courtesy of my friend (and Canadian law prof) Moin Yahya, I learn that the Saskatchewan Court of Appeal has overturned the ruling against Owens in this decision. Unfortunately, this is only a limited victory for freedom of expression in Canada, because the opinion does not find the the ad was constitutionally protected by the Canadian Charter of Rights and Freedoms. Rather the court found that it would interpret the relevant statute narrowly in light of the Charter, and concluded that the ad did not expose gays to hatred, or ridicule or belittle them, or otherwise affront their dignity, in violation of the Saskatchewan Human Rights Code.

This is certainly a welcome result, but a ruling that the the Human Rights Code unconstitutionally infringes on freedom of expression would have been even better. As it now stands, I doubt any newspaper would publish a future advertisement resembling Owens' for fear that a future court would find that such an ad did violate the code.

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[Puzzleblogger Kevan Choset, April 19, 2006 at 1:15pm] Trackbacks
Name Rearranging:

Take the last name of someone who has been in the news recently. If you drop the first and last letters of that name and rearrange the remaining letters, you will get that person's first name. Who is the person?

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Stories Conflict on Whether Two Baghdad Teachers Beheaded in Front of Their Students--

There have been conflicting reports on whether two teachers were beheaded in front of their students:

BAGHDAD (Reuters) - Iraq's Ministry of State for National Security said on Wednesday two groups of gunmen entered two primary schools in Baghdad and beheaded two teachers in front of their students.

But the U.S. military and a police official said the attacks never took place.

"Two terrorist groups beheaded two teachers in front of their students in the Amna and Shaheed Hamdi primary schools in Shaab district in Baghdad," a ministry statement said.

An official in the ministry's press office also confirmed the report.

But the U.S. military said it was false.

"There is no substance to this report. It did not occur. But we are still checking with Iraqi police and other sources," said U.S. military spokesman Lieutenant-Colonel Barry Johnson.

Police Major Kassim Ahmed told a Reuters reporter who went to the scene: "This is not true. It is made up."

The Sydney Morning Herald (tip to Tim Blair) reported the stories as true. Note the last paragraph explaining the motive for the supposed beheadings:

Separate groups of gunmen entered two primary schools in Baghdad and beheaded two teachers in front of their students, the Ministry of State for National Security said.

"Two terrorist groups beheaded two teachers in front of their students in the Amna and Shaheed Hamdi primary schools in Shaab district in Baghdad," a ministry statement said.

A ministry official said he believed the attacks were aimed at: "intimidating pupils and disrupting learning".

© 2006 Reuters, Click for Restrictions

The odd thing is that the source for both stories is Reuters. Presumably, the SMH story was put out first and the Reuters-UK story at the top of this post was the later version.

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A Congressional Candidate Pre-Emptively Threatens Libel Lawsuits;

will henceforth be referred to as "Congressional candidate Ms. Cafaro, who testified in a criminal case under a grant of immunity, and who has preemptively threatened to sue anyone who says that she did anything illegal." Sometimes threatening a defamation lawsuit -- and thus further focusing people's attention on the charges that you're so forcefully denying -- is worse than doing nothing at all. Perhaps a sad fact about the world, but one that political candidates would be wise to remember.

Thanks to John Fund (OpinionJournal's Political Diary) for the pointer.

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Offensive Bumper Stickers -- and Seemingly More Legal Error on the Part of Law Enforcement:

Police in Covington, Tennessee seem to be trying to crack down on offensive bumper stickers. The only trouble — as best I can tell from press accounts and some WESTLAW searches (and please correct me if I'm wrong), the law they seem to be using doesn't actually cover the great majority of offensive bumper stickers, such as the ones discussed in this TV news account; rather, it only applies to essentially hard-core pornographic ones, a phenomenon that I've never actually seen. As best I can tell, law enforcement thinks that "obscenities" in the sense of vulgarities are covered, but in fact according to the law only "obscenity" and near-obscenity, in the legal sense of "hard-core pornography" (or at least sexually explicit descriptions or depictions) is covered.

The law that seems to be involved is Tennessee Code Annotated, § 55-8-187:

To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene and patently offensive movies, bumper stickers, window signs or other markings on or in a motor vehicle which are visible to other drivers is prohibited and display of such materials shall subject the owner of the vehicle on which they are displayed, upon conviction, to a fine of not less than two dollars ($2.00) nor more than fifty dollars ($50.00). "Obscene" or "patently offensive" has the meaning specified in § 39-17-901.
Here are the definitions from § 39-17-901:
(10) "Obscene" means:

(A) The average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(B) The average person applying contemporary community standards would find that the work depicts or describes, in a patently offensive way, sexual conduct; and
(C) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value;

(11) "Patently offensive" means that which goes substantially beyond customary limits of candor in describing or representing such matters.

"Obscene" is thus hard-core pornography, of the sort that could be banned even for private distribution. "Patently offensive" also refers to sex — "such matters" must refer back to "sexual conduct" in (10)(B) — that is depicted with excessive "candor." So "shit," "damn," and the like are clearly not covered. "Fuck" used as an expression of hostility, without an actual sexual meaning, isn't covered, either. Whatever you might say of "Fuck Bush" / "Fuck Mohammed" / "Fuck You," it's pretty clear that they are not describing or representing sexual conduct "substantially beyond customary lits of candor."

So what's covered? Presumably if you had a hard-core pornographic (obscene) or at least sexually explicit (patently offensive) bumper sticker, the law would apply; and if the bumper sticker wasn't obscene but merely patently offensive, then you might have a First Amendment defense (since the First Amendment protects nonobscene patently offensive speech, but the government might conceivably be able to prevail on the argument that such speech could be restricted in places where children or unwilling adults are likely to be present).

But for the garden-variety vulgar bumper sticker — the sort of bumper sticker that is vastly more common than the sexually explicit ones, and that the police seem to be focusing on — you don't even need to get to the First Amendment analysis. The law just doesn't cover it.

I'm no fan of vulgar bumper stickers. But I think that as between "law enforcement should follow the law" and "people shouldn't be vulgar," I care a lot more about the former.

Thanks to reader Stephen Tapp for the pointer.

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My Dinner With Jack:

This is a few weeks old, but I found this article about Jack Abramoff so funny when I read it that I wanted to pass it along. The opening paragraphs:

JACK ABRAMOFF NEEDS MY HELP. Facing a March 29 sentencing deadline for fraud, tax evasion, and conspiring to bribe public officials, the disgraced lobbyist sent out a blast email, which says, "My attorneys have advised me to seek help from friends in the form of letters to the judge on my behalf." Abramoff says this will help counteract the "harsh media caricature" of him--he claims 2,100 negative articles have been written about him--and will encourage lenience from the judge presiding over his trial.

Jack probably doesn't remember me, but I met him three years ago. I'll try my best to help salvage his reputation, but even he must realize that's not an easy thing to do. Take this classic remark from Ed Rogers. The GOP lobbyist appeared on Hardball in January to defend his profession and downplay Abramoff's misdeeds, almost forgetting that one of Jack's business partners is connected to a mob hit down in the Sunshine State:

Look, this is going to come out. Nobody is going to keep it a secret. Jack Abramoff is so radioactive--I've got Jack Abramoff fatigue already. I mean, good grief, he didn't kill anybody. Maybe that one guy in Florida. [emphasis added]

Oops. Of course, thus far Abramoff doesn't appear to be directly linked to the murder, even if he's certainly guilty of being so drunk with greed that he wasn't at all discriminating about who he did business with. Unfortunately, the one image the public holds of Abramoff is the infamous photo of him leaving the federal courthouse--a shifty-eyed crook clad in trench coat and black hat, bridging the sartorial divide between Al Capone and Boss Tweed. But calling a smooth political operator such as Abramoff a gangster is just too easy.

Unlike the hordes of politicians rushing to disavow their relationship with him, I have no problem saying I knew Abramoff. For three glorious hours, I was his captive private audience at his now-defunct restaurant, Signatures. And I can tell you, he is handsome, hugely entertaining, and even self-deprecating at times. I'd wager Abramoff's success was largely the result of his charm (though as Saul Bellow warned, charm is always a bit of a racket). He's likable and inspires those around him, and given that, most everyone in Washington who denies their association with him was probably a willing accomplice.

I know because I was almost one of them.

Be sure to read the end.

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"Even a loser can win when he’s up against a defeatist" Like many other nonexperts, I have been wrestling with what to think about U.S. policy towards Iran. Mark Steyn has a lengthy, but very interesting piece in the City Journal entitled, Facing Down Iran: Our lives depend on it. What makes it particularly interesting is its attempt at a "big picture" analysis of the past 25 years or so. It is too long to summarize here, or even to select a representative quote. It's a lot more substantive than this conclusion:
Once again, we face a choice between bad and worse options. There can be no “surgical” strike in any meaningful sense: Iran’s clients on the ground will retaliate in Iraq, Lebanon, Israel, and Europe. Nor should we put much stock in the country’s allegedly “pro-American” youth. This shouldn’t be a touchy-feely nation-building exercise: rehabilitation may be a bonus, but the primary objective should be punishment—and incarceration. It’s up to the Iranian people how nutty a government they want to live with, but extraterritorial nuttiness has to be shown not to pay. That means swift, massive, devastating force that decapitates the regime—but no occupation.

The cost of de-nuking Iran will be high now but significantly higher with every year it’s postponed. The lesson of the Danish cartoons is the clearest reminder that what is at stake here is the credibility of our civilization. Whether or not we end the nuclearization of the Islamic Republic will be an act that defines our time.
It paints a very credible scary picture, and I am opening comments for those who can find fault with his analysis. ("Bush = Ahmadinejad" is not a credible response.) I am really only interested in hearing civil comments by people who have read the whole thing, not just the above excerpt from his conclusion. And I am not particularly interested in casting blame for the situation, or assertions that Iraq has made things worse. I am concerned with what is to be done now and where, if anywhere, his narrative goes wrong.
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The Italian Situation:

A terrific, insightful piece by Roger Cohen today in the Int'l Herald Tribune on the political mess in Italy and why, in a sense, it matters.

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Blegging About "Blegging":

Can anyone point me to evidence on who invented the term blegging?

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Is a Cow a Motor Vehicle?

Believe it or not, but there's an Ohio Court of Appeals decision on this issue -- and, as Bill Poser (Language Log) points out, the court seems to have erred in its analysis, though it got the bottom-line answer right.

Thanks to Michael Greenspan for the pointer.

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Tuesday, April 18, 2006

Northern Kentucky University Backs Free Speech, Against a Professor's Attempt to Suppress It:

InstaPundit reports, and reproduces the University president's e-mail:

I am writing to comment on the recent destruction of an approved campus display created by the Northern Kentucky Right to Life student organization.

One of the important roles that a university must play is to be a forum for debate and analysis concerning the important issues of the day. Often these issues are surrounded by strident rhetoric and strong emotions which makes it even more incumbent on the university to create and nurture an intellectual environment in which reason and evidence prevail and where all points of view can be heard.

Northern Kentucky University has a distinguished record of addressing important public issues in a balanced way. We are proud that, as a campus, we are not the captive of one ideology or point of view. At their best, universities are not places of comfortable conformity. They are places where ideas collide as students and faculty search for deeper understandings and perspectives.

While the University supports the right to free speech and vigorous debate on public issues, we cannot condone infringement of the rights of others to express themselves in an orderly manner. By leading her students in the destruction of an approved student organization display, Professor Sally Jacobsen's actions were inconsistent with Northern Kentucky University's commitment to free and open debate and the opportunity for all sides to be heard without threat of censorship or reprisal.

It has been heartening that student and faculty groups that do not necessarily support the position of Northern Kentucky Right to Life have come out strongly in support of the organization's right to be heard through their display. This reflects a commitment to the importance of free speech and inquiry as a hallmark of our University.

Professor Jacobsen has been removed from her remaining classes and placed on leave from the University. She will retire from the University at the end of this semester. The Faculty Senate, representing more than 1,000 NKU faculty members, has taken strong action today that affirms the importance of free expression as a defining quality of the University. Our campus has spoken with a strong and unified voice. Further action may occur once a full investigation has been completed.

The action taken by the University should be considered in the context of Professor Jacobsen's entire 27 year career at NKU. Nevertheless, her recent lapse of judgment was severe and, for a period of time, has caused some in our community and beyond to question whether Northern Kentucky University upholds freedom of expression. My answer to this question is an unequivocal yes. NKU lives its commitment to free expression and responds when that commitment has been compromised.

America is, today, debating a variety of polarizing issues around which people feel great passion. It is not surprising that these strong sentiments find their way onto college campuses. However, our role is to add light to these debates, not more heat. If we don't serve this role, who will?

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Will Help Draft Legislation for Food

-- or even without food. One of the things that I find most rewarding is helping draft legislation, especially in areas I know a good deal about. Naturally, I'd love it if I can persuade the people I'm talking to (generally legislative staff) about some broad policy points. But often I realize that this is impossible; their bosses, or the legislative majority, is wedded to a particular result.

No problem; I've often found that I can offer pretty good technocratic advice that people can agree on regardless of their bottom line: How to make the text clearer (I realize that sometimes the text is deliberately left vague, but often the vagueness is accidental), how to avoid unintended consequences, how to make the proposal comply with the relevant constitutional rules, and so on. Some legislative staff are specialists, but many are generalists, and don't have much experience with, say, First Amendment law (the area in which I can probably contribute the most). A specialist academic's eye can often help, regardless of where you are politically.

I've done this quite a bit in past years, and I'd love to do more. My question, for those who are familiar with the way legislative drafting works: How could I -- and my blogging colleagues -- get more calls like this?

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We Hit the Big Time!

Just noticed a link to us from SouthParkStudios.com:

Episode 1004 Censored Scene Many of you have been asking been asking about the "censored" scene at the end of last week's episode, "Cartoon Wars, Part II." It was required by Comedy Central, but the edit was done by the studio.

For more information, click here [EV: links to a WashingtonPost.com article] or click here [EV: links to Jim Lindgren's post].

Woohoo! (No wait, that would be the Simpsons.)

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Dark Skies Issue Paper:

Dark Skies legislation aims to protect the view of the night sky, by restricting some uses of night-time lighting. In a new Issue Paper from the Independence Institute, Michael Loatman and I argue in favor of Dark Skies ordinances, offer suggestions for particular ways to implement such ordinances, and caution against excessively stringent ordinances. We acknowledge that, although the night sky is beautiful and inspiring, research shows street lighting significantly reduces crime. We also urge that Dark Sky ordinances be prospective in application. Many thanks to all the VC readers who provided helpful comments after I posted a draft of the Issue Paper last fall.

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Pete Seeger:

David Boaz, writing in The Guardian's "Comment is free":

The New Yorker has another of its affectionate profiles of old Stalinists, this time the folk singer Pete Seeger. A regular old American, they say, a guy who would stand by the side of the road at 85 holding up a sign reading simply "Peace." A "conservative" really, who "believes ardently in the Constitution and the Bill of Rights"....

Oh, sure, they mention in parentheses that he "knew students at Harvard who were Communists and, with the idea in mind of a more equitable world, he eventually became one himself". Outside parentheses, writer Alec Wilkinson reassures us that Seeger did eventually quit the Party.

Somehow, though, they didn't quite find room to detail Seeger's long habit of following the Stalinist line. Take the best example, his twists and turns during the FDR administration. Seeger tells Wilkinson that when he was at Harvard during the late 1930s he was trying to "stop Hitler" and he became disgusted with a professor who counselled appeasement. Maybe so. But after the Hitler-Stalin pact, he and his group the Almanac Singers put out an album titled Songs of John Doe that called Franklin D Roosevelt a warmongering lackey of JP Morgan.

Franklin D, listen to me,
You ain't a-gonna send me 'cross the sea.
You may say it's for defense
That kinda talk ain't got no sense.

Then within months Hitler invaded the Soviet Union. The album was pulled from the market and reportedly destroyed. The Almanac Singers quickly produced a new album, Dear Mr President, that took a different view of FDR and the war:

Now, Mr President
You're commander-in-chief of our armed forces
The ships and the planes and the tanks and the horses
I guess you know best just where I can fight ...
So what I want is you to give me a gun
So we can hurry up and get the job done!
...

Imagine a morally neutral, affectionate profile of a nostalgic 80-year-old Nazi. It doesn't happen, it wouldn't happen. We're still making movies about the crimes of Nazism, a totalitarian regime that lasted 12 years, while you can count on the fingers of one hand the Hollywood movies about the bloody 70-year rule of the Communist Party....

I haven't read the New Yorker piece, but if Boaz is reporting it correctly, then it seems to me his criticisms are quite apt. Seeger may have had his virtues — whether artistic or personal — and may be worth praising for those virtues. But serious profiles of people in serious publications should discuss their subjects' vices as well as virtues.

Being a lockstep supporter of the Soviet Union, after the Ukrainian famine, after the Purges, after the Molotov-Ribbentrop Pact (whether because of moral failing or gullibility about the facts) strikes me as a vice that's much worth noting. I've seen it said that Seeger turned against Stalin eventually, and before 1956; this would be a plus for him, but not one that should lead us to sugarcoat the minuses.

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Followup on Peck and the Israel Lobby:

Edward Peck has submitted a response to criticism by me and James Taranto of OpinionJournal.com. OpinionJournal has published the piece on its website, and I encourage VC readers to take a look. You can read Taranto's response here.

Most extraordinary is that Peck continues to assert that critics of Mearsheimer and Walt's "Israel Lobby" paper deny (indeed, "shrilly" deny) that an Israel lobby exists. In an email David Theroux of the Independent Institute, which has been publicizing Peck's original piece, sent me, Peck identifies David Gergen and Eliot Cohen as having denied that such a lobby exists. What Cohen actually wrote was

Mearsheimer and Walt conceive of The Lobby as a conspiracy between the Washington Times and the New York Times, the Democratic-leaning Brookings Institution and Republican-leaning American Enterprise Institute, architects of the Oslo accords and their most vigorous opponents. In this world Douglas Feith manipulates Don Rumsfeld, and Dick Cheney takes orders from Richard Perle.

This is not a denial that there is a lobby for Israel, nor that it is an effective lobby. This is a denial that the "Israel Lobby" as conceived by M & W is anything more than a figment of a conspiratorial imagination; their idea that every American who supports Israel is part of a "lobby," and that this lobby controls U.S. foreign policy vis a vis, e.g., Iraq, is absurd (Cohen thinks it anti-Semitic; I'm willing to give M & W the benefit of the doubt on that point).

And, as I pointed out previously, Gergen explicitly states that there is an Israel lobby, if not the "Israel Lobby" of M & W's imagination.

The idea that anyonoe would deny that there is a pro-Israel lobby in the U.S. is absurd on its face, given that AIPAC's website trumpets the organization as "America's pro-Israel lobby."

And I'll reiterate that Peck's original piece is dishonest, beyond the allegation that people are denying there is an Israel lobby. For example, Peck writes: "The expected tsunami of rabid responses condemned the [M & W] report, vilified its authors, and denied there is such a lobby—validating both the lobby's existence and aggressive, pervasive presence and obliging Harvard to remove its name." So "The Lobby" was allegedly powerful enough to force Harvard to take its name off a study by one of its professors. But in fact, while the authors did voluntarily add a disclaimer that the views in the paper don't reflect those of their institutions, Harvard's name is still there, right on the cover page, identifying Professor Walt as a Harvard-Kennedy School professor. And the paper's abstract can still be found on the Kennedy School's website, identifying the paper as a Harvard University/Kennedy School of Government working paper.

As for the Independent Institute, I take it that the Institute's interest in Peck's work primarily results from a desire to encourage a more non-interventionist U.S. foreign policy, in line with a strain of libertarian thinking that advocates non-interventionism. However, Peck is affiliated with the Council for the National Interest, which advocates not non-interventionism, but a more "balanced" U.S. foreign poicy in the Middle East. From CNI's website:

Our Mission

CNI seeks to encourage and promote a U.S. foreign policy in the Middle East that is consistent with American values, protects our national interests, and contributes to a just solution of the Arab-Israeli conflict, as well as to restore a political environment in America in which voters and their elected officials are free from the undue influence and pressure of a foreign country, namely Israel.

Our Goals

*Total withdrawal of Israel from all occupied territory (the West Bank, Gaza Strip, and Golan Heights). * A shared Jerusalem, the capital of two states, Israel and Palestine. * An end to all acts of aggression, provocation, and retaliation by Israel and the end of all violence and attempts to solve the problem by military means. This includes terrorism committed against Israelis as well as the state terrorism committed by Israel against Palestinians. * American recognition of a totally independent state of Palestine. * The elimination of all unaudited U.S. aid to Israel. * Normalized relations with Israel, her neighbors, and regional organizations such as the Arab League.

Peck himself recently went on a CNI Mission to the Mideast, during which he interviewed Hamas leader Mahmoud al-Zahar. Given the opportunity to question one of the great terrorist leaders of our time, whose organization has consistently attempted to scuttle any rapproachment between Israel and the Palestinians, he asked such hardball questions as "How would you be able to – or what would you do to control those elements in Hamas and elsewhere that tend toward violence?" and "So a coalition would be something you would work towards?"

Frankly, when libertarians start promoting the Middle East policy views of individuals who don't even pretend to be libertarians, and who are friendly with the likes of Hamas, I begin to wonder whether it is really libertarian foreign policy perspective, rather than simply anti-Israel animus, that is motivating them.

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On the ABA's "Well-Respected Tradition of Accrediting Law Schools":

In defense of the ABA's role in accrediting law schools, under fire for the ABA's pending insistence that all law schools use racial preferences even if they are illegal under federal or state law, Wade Henderson, executive director of the Leadership Council on Civil Rights, says: "The ABA has a long, well-respected tradition of accrediting law schools." That's one way of putting it. Another way of putting it is that the ABA has a long history of trying to cartelize the profession through accreditation standards, and that historically part of the purpose of these standards was to exclude Jews and other non-WASPs. From an article by James Moliterno in the Wake Forest Law Review:

One way the elite tried to exclude outsiders was through its attempt to set higher educational standards and higher bar admission standards. The elite lawyers were troubled by the influx of immigrants and Jews into the legal profession--many of whom went to law school by night or via correspondence courses. Night schools, observed the Dean of the Wisconsin law school, enrolled "a very large portion of foreign names." An ABA committee recommended that the character of the bar could be improved by raising educational standards in order to "purify the stream at the source."

And need I mention the irony of Mr. Henderson's comment in light of the fact that the ABA excluded African Americans from membership until 1954?(!)

Related Posts (on one page):

  1. On the ABA's "Well-Respected Tradition of Accrediting Law Schools":
  2. ABA Accreditation Standards Supersede Contrary State Laws
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Monday, April 17, 2006

Scott Savage Cleared:

Many thanks to commenter OSU Grad Student for pointing me to this Inside Higher Ed item from today:

Ohio State University officials on Friday cleared Scott Savage, a librarian at the Mansfield campus, of harassment charges filed against him based on his recommendation of an anti-gay book for a freshman reading assignment. A conservative group had threatened to sue the university if the charges were not dropped. They were dropped the same day that the group went public with its complaints about the way the librarian was being treated.

Delighted to hear it, and especially pleased that the university acted so quickly.

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A Child's Encyclopedia of Artillery:



OK, I'm sure there's some American equivalent of this somewhere, too, but it's funny that I initially came across it in Russian, at kniga.com ("book.com," to translate it), under the category "children's developmental and educational literature."

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Some Differing Views on Iran.--

In 2004 I thought that Iran's nuclear facilities might be bombed by the US or Israel in the few months after the 2004 election. What I didn't know then was the difficulty of succeeding at this task, even if such a decision were to be made. And then there's the blowback in Iraq and Europe.

So what does the future hold on Iran? Amir Taheri may be right: Because Iran needs several years (1) to build nuclear bombs and (2) to get rid of Bush, Iran might take a strategic step backward. It might take a modest public retreat to soften up (the already soft) European resistance to its nuclear program. Amir Taheri in the Telegraph explains:

Last Monday, just before he announced that Iran had gatecrashed "the nuclear club", President Mahmoud Ahmadinejad disappeared for several hours. He was having a khalvat (tête-à-tête) with the Hidden Imam, the 12th and last of the imams of Shiism who went into "grand occultation" in 941. . . .

Last year, it was after another khalvat that Ahmadinejad announced his intention to stand for president. Now, he boasts that the Imam gave him the presidency for a single task: provoking a "clash of civilisations" in which the Muslim world, led by Iran, takes on the "infidel" West, led by the United States, and defeats it in a slow but prolonged contest that, in military jargon, sounds like a low intensity, asymmetrical war.

In Ahmadinejad's analysis, the rising Islamic "superpower" has decisive advantages over the infidel. Islam has four times as many young men of fighting age as the West, with its ageing populations. Hundreds of millions of Muslim "ghazis" (holy raiders) are keen to become martyrs while the infidel youths, loving life and fearing death, hate to fight. Islam also has four-fifths of the world's oil reserves, and so controls the lifeblood of the infidel. More importantly, the US, the only infidel power still capable of fighting, is hated by most other nations.

According to this analysis, spelled out in commentaries by Ahmadinejad's strategic guru, Hassan Abassi, known as the "Dr Kissinger of Islam", President George W Bush is an aberration, an exception to a rule under which all American presidents since Truman, when faced with serious setbacks abroad, have "run away". Iran's current strategy, therefore, is to wait Bush out. And that, by "divine coincidence", corresponds to the time Iran needs to develop its nuclear arsenal, thus matching the only advantage that the infidel enjoys.

Moments after Ahmadinejad announced "the atomic miracle", the head of the Iranian nuclear project, Ghulamreza Aghazadeh, unveiled plans for manufacturing 54,000 centrifuges, to enrich enough uranium for hundreds of nuclear warheads. "We are going into mass production," he boasted.

The Iranian plan is simple: playing the diplomatic game for another two years until Bush becomes a "lame-duck", unable to take military action against the mullahs, while continuing to develop nuclear weapons.

Thus do not be surprised if, by the end of the 12 days still left of the United Nations' Security Council "deadline", Ahmadinejad announces a "temporary suspension" of uranium enrichment as a "confidence building measure". Also, don't be surprised if some time in June he agrees to ask the Majlis (the Islamic parliament) to consider signing the additional protocols of the Nuclear Non-proliferation Treaty (NPT).

Such manoeuvres would allow the International Atomic Energy Agency (IAEA) director, Muhammad El-Baradei, and Britain's Foreign Secretary, Jack Straw, to congratulate Iran for its "positive gestures" and denounce talk of sanctions, let alone military action. The confidence building measures would never amount to anything, but their announcement would be enough to prevent the G8 summit, hosted by Russia in July, from moving against Iran.

While waiting Bush out, the Islamic Republic is intent on doing all it can to consolidate its gains in the region. Regime changes in Kabul and Baghdad have altered the status quo in the Middle East. While Bush is determined to create a Middle East that is democratic and pro-Western, Ahmadinejad is equally determined that the region should remain Islamic but pro-Iranian. Iran is now the strongest presence in Afghanistan and Iraq, after the US. It has turned Syria and Lebanon into its outer defences, which means that, for the first time since the 7th century, Iran is militarily present on the coast of the Mediterranean. In a massive political jamboree in Teheran last week, Ahmadinejad also assumed control of the "Jerusalem Cause", which includes annihilating Israel "in one storm", while launching a take-over bid for the cash-starved Hamas government in the West Bank and Gaza. . . .

On Monday, he was as candid as ever: "To those who are angry with us, we have one thing to say: be angry until you die of anger!"

His adviser, Hassan Abassi, is rather more eloquent. "The Americans are impatient," he says, "at the first sight of a setback, they run away. We, however, know how to be patient. We have been weaving carpets for thousands of years."

For other views (from Professor Bainbridge, Debka, and Mark Steyn), click to read the rest of this post.

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Interesting Tidbit About the Ohio State (Mansfield) Controversy:

It turns out that Scott Savage, the librarian who is charged with sexual orientation harassment because he had recommended that the school assign to freshmen an apparently anti-gay book, is a conservative Quaker who has given up many modern things, including conventional schooling — his wife home-schools (or at least home-schooled) their five children — and cars; he takes a horse and buggy to work.

This has little to do with the specific legal and academic freedom issues raised by the complaint against him, but I just thought the juxtaposition of Scott Savage's e-mail-born controversy and his horse and buggy was interesting. And perhaps there is also a broader connection to the persistent talk about "diversity" on campus. I suspect that Scott Savage's presence and participation adds more to the cultural diversity of the campus than does the presence and participation of most other faculty, students, and staff. But of course one aspect of cultural diversity is that people who belong to some cultures might not share the dominant university culture's view on some aspects, such as sexual behavior, and might even say things that some see as offensive. What a surprise.

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Sunday, April 16, 2006

American Monarchies:

There've been plenty of dictatorships in the Americas, and plenty of places ruled by European monarchs. What, however, was the last North or South American state (and not merely a tribe or collection of tribes) that was ruled by a locally resident monarch?

I have a guess as to the answer in the comments, but I'm not positive that I'm right.

UPDATE: Whoops, at first omitted the italicized "locally resident." I am not looking for the "plenty of places ruled by European monarchs" (in the sense of those who live in Europe) but rather for an American country ruled by a monarch who sits within that country (regardless of where he was born).

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