Saturday, May 6, 2006

Forbes Says that Castro is Worth 900 Million Dollars.--

In Forbes's annual list of the net worth of "Kings, Queens & Dictators," Fidel Castro is listed as having $900 million (tip to Betsy). USAToday reports:

Cuban President Fidel Castro was furious when Forbes magazine estimated his fortune at $550 million last year. This year, the magazine upped its estimate of the communist leader's wealth to a cool $900 million. Castro, who says his net worth is nil, is likely the beneficiary of up to $900 million, based on his control of state-owned companies, the U.S. financial magazine said in its annual tally of "Kings, Queens & Dictators" fortunes Thursday.

Kings and sheikhs of the oil-rich Gulf Arab states still top the Forbes list, to be published in its May 22 edition.

Saudi King Abdullah is number one with an estimated $21 billion, followed by Sultan Hassanal Bolkiah of Brunei at $20 billion and United Arab Emirates' President Sheikh Khalifa bin Zayed al-Nahayan at $19 billion.

Among Europeans, Prince Hans-Adam II of Liechtenstein improved upon his family fortune of palaces, real estate and artwork with an investment in a U.S. producer of hybrid rice, for total estimated riches of $4 billion.

Perhaps the most industrious of the leaders listed is Sheikh Mohammed bin Rashid al-Maktoum, ruler of Dubai, with a net worth of $14 billion.

Forbes estimates the renowned racehorse breeder also helped raise Dubai's gross domestic product from about $8 billion to nearly $40 billion since 1994 by diversifying its industries outside of oil and making successful investments overseas.

"He would probably be the shrewdest of the bunch," said Luisa Kroll, associate editor at Forbes.

Forbes requires registration to read the story, which if you follow an internal link for 10 rich heads of state eventually leads to this entry on Castro:

Fidel Castro
$900 million
Age: 79

Comandante since 1959. We estimate his fortune based on his economic power over a web of state-owned companies including El Palacio de Convenciones, a convention center near Havana; Cimex, retail conglomerate; and Medicuba, which sells vaccines and other pharmaceuticals produced in Cuba. Former Cuban officials living in U.S. assert that he has long skimmed profits. Castro insists his net worth is zero.

Exams as a "Rewarding Experience":

Ann Althouse wonders whether "law students know (or believe) that we lawprofs mean for the exam to be a rewarding educational experience?" and provokes some interesting comments.

UPDATE: Rick Garnett has prompted more discussion on this topic at Prawfsblawg.

Courts Refusing to Apply Federal Rule of Evidence 702:

Federal Rule of Evidence 702 was amended in 2000 to provide that expert testimony is admissible only if:(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. This rule is both a codification, and to some extent an elaboration, on the so-called "Daubert trilogy" of Supreme Court cases. It's an elaboration because, for example, the Joiner decision stated that courts MAY exclude testimony if an expert witness has taken a potentially reliable principle or methodology, but not applied it reliably to the facts at hand; Rule 702 states that the court MUST do so.

Nevertheless, many federal district courts are simply ignoring or merely paying lip service to Rule 702, and relying on pre-2000 circuit court precedent. A particularly egregious example is Riley v. Target Corp., 2006 WL 1028773, slip op. (E.D. Ark. Apr. 13, 2006). No need to bore readers with the facts of the case. Target challenged the plaintiffs' physician's "differential diagnosis" (which was actually a differential etiology) under Rule 702.

The court found that the methodology of differential diagnosis is a generally reliable one, and then added that any weaknesses in the expert's opinions go to the weight of his testimony, not its admissibility. The court then cited a 1995 (!) circuit court case for the proposition that "[f]aults in an expert’s use of differential etiology as a methodology or lack of textual authority for his opinion go to the weight, not the admissibility, of his testimony".

Note that the court not only relied on a pre-2000 precedent that directly contradicts the text of Rule 702, but relied on a pre-Joiner (1997) case! [UPDATE: Even worse, I just noticed, the court quoted a 1995 case for the proposition thhat "[o]nly if an expert's opinion is 'so fundamentally unsupported that it can offer no assistance to the jury' must such testimony be excluded." This was clearly wrong as of 1995, much less now, and thus not surprisingly that case itself, as the court noted, was quoting a 1988, pre-Daubert case! This judge has apparently slept through the last thirteen years of expert evidence jurisprudence.] This case is one of many examples of a court relying on stray dicta from cases that are no longer good law, and paying mere lip service, at best, to the text of Rule 702.

So note to federal district court judges, and their clerks: you shouldn't be relying on any precedent on expert evidence from before 2000, because those precedents relied on a different version of Rule 702, not to mention that many of them were decided before Kumho Tire (1999) and Joiner (which are themselves less strict than amended Rule 702). If you feel the need to do so anyway, the holding needs to be checked against the text of amended Rule 702. If the precedent conflicts with the rule, the rule quite obviously trumps the precedent.

UPDATE: There's nothing inherently wrong with citing pre-2000 precedents, so long as they are consistent with amended Rule 702. But many courts seem unable and unwilling to distinguish precedents that are consistent with Rule 702 and ones that are not. Moreover, the starting point for analysis should be the text of Rule 702, not a circuit court's interpretation of old 702 from 1998. I should add that courts should be cautious about relying even on post-2000 precedents, because many of these themselves ignore the text of 702 and instead cite pre-2000 precedents.

Related Posts (on one page):

  1. Blogging Break:
  2. More on FRE 702:
  3. Courts Refusing to Apply Federal Rule of Evidence 702:

Friday, May 5, 2006

"Flipper" Mentality:

Washington Post real estate chat:

The Lovely Penn Quarter, D.C.: My friends and I came up with the idea last year that we could make a living by buying condos, living in them for two years, selling for a big profit and repeating. The appreciation would be more than we could make by working and the profits would be tax free. What could be better, right?

So I bought my first condo in Penn Quarter at the end of last summer. Now all my friends have decided to hold off. They say that they aren't sure real estate is "it" anymore. But I'm counting on my condo to appreciate significantly over the next two years to help me pay down some credit card debt I've been carrying for a while.

My condo hasn't really gone up in value since last summer, but I'm thinking the market is just taking a healthy breather before skyrocketing again. Should I be getting worried at this point or are my friends just being chicken littles during the market's pause in appreciation? I don't want to own my place if its not going to increase in value soon. Help!

I suppose I shouldn't be too harsh, given that I missed out on a lot of appreciation over the last several years by not owning. But really, the idea that there are people out there who thought they could make a living indefinitely by "flipping" condos just boggles the mind. It makes me feel like I could make a living selling money trees (or maybe Brooklyn Bridges) to naifs. As I pointed out last June, the launch of "" was "a sign of the housing apocalypse."

Brandeis and the Art Exhibit:

An official explanation from a Brandeis spokesman:

The decision to take down the Palestinian picture exhibit has been seriously misunderstood and mistakenly characterized as censorship. Brandeis encourages serious discussion of all issues, including many that are sensitive, controversial or even painful. For that very reason, the University pays careful attention to the time, place and manner in which exhibits, debates, talks, etc. occur. The concern is heightened when public space at the University is being used.

In this case, a grouping of Palestinian drawings was hung recently in the Goldfarb library. The drawings were part of a Brandeis student's class project. The student described the installation as a way to "bring into the Brandeis community a different narrative about the Palestinian-Israeli conflict."

The timing (in this case, immediately before final examinations) and physical location of an exhibit often require as much dialogue and discussion before being undertaken as the exhibit itself. In the absence of any larger educational context, various administrators received reports that some students found the exhibit confusing and upsetting.

Out of concern for the community, the University elected to take down the pictures at this time. In this case, as in any other, it would be our hope that interested faculty and students would come together to create an exhibit or event that would allow for thoughtful discussion around the points that the student had hoped to communicate.

The first three paragraphs quoted above actually make a certain amount of sense: whoever decided to allow an obviously extremely controversial art exhibit to be displayed in the library during finals time was guilty of poor judgment. During finals, especially at Brandeis, (which, at least when I went there, was reputed to have the third-hardest-working students in the country, after Cornell and Hopkins) students are focusing on their studies, and it's just dumb to choose that particular time and place to display a provocative, political, display of art.

However, the final paragraph more or less ruins this point, because it reiterates the position Brandeis previously took, which is that this was not simply a "time, place, and manner" restriction (to borrow phraseology from constitutional law), but also a content-based restriction, and that the display would have been fine if it had been "balanced" or on some other controversial topic perhaps less likely to raise hackles at Brandeis.

In short, it makes sense for the library director, or whoever is in charge, to have a policy, "the library is off-limits to controversial political displays around finals time," and for that individual to be overruled if he doesn't enforce such a policy. However, the Brandeis administration is waffling between that relatively cogent rationale, and one that focuses on "lack of balance" and the facts that some students were "upset," neither of which is a justifiable reason to take down a previously approved exhibit. Brandeis would have been on much more solid ground if it had simply announced that the exhibitor was welcome to display the art at any time and in any place on campus, except during finals to a captive audience in the library.

Old News: The New York Times has an interesting report on a live performance of the John Cage work, "As Slowly As Possible" at a church in Germany. The Times is late, though: the Wall Street Journal covered the exact same performance three years ago.
CIA Director Porter Goss Resigns: The New York Times has the news here. offers some commentary and background here.
Mary Jo White on Counter-Terrorism and Civil Liberties:

Mary Jo White was U.S. attorney for the Southern District of New York from 1993 to 2002. In that role, she oversaw several terrorism-related prosecutions, including those the 1993 World Trade Center and 1998 U.S. Embassy bombings. Earlier today, she spoke at The City Club of Cleveland on the War on Terrorism and civil liberties. It was an interesting and provocative talk, not least because she was more "hawkish," and less concerned about government overreach, than I would have expected. Following is a summary of her remarks based on the notes I took at the event.

At the outset White said that she believes most of the actions taken by the federal government to counter the terrorist threat — including the creation of military tribunals, the detention of enemy combatants, tightening of immigration rules, passage of the USA Patriot Act and other measures — have been necessary. She further stated clearly that such actions will necessarily impact civil liberties, and she never shrank from this view throughout the talk. While stressing that the executive branch should not get a "blank check," and expressing her support for judicial oversight of federal action (such as in the Hamdi decision), she said that the "gravity of the threat" requires a serious government response, even if that means civil liberties are curtailed on the margins. (She also said that violations of civil liberties are far less today than during prior conflicts.) She said Americans must be "solicitous of civil liberties, but we must survive first."

Although a former prosecutor, White said that conventional criminal prosecutions should play a "small and diminishing part" of the counter-terrorism effort. The pre-9/11 prosecutions of the terrorists involved in the 1993 WTC bombing and other plots were a "great success story," but she nonetheless believes that the criminal law is insufficient to respond to the threat. Further, she said she "strongly disagrees" with those who argue that most of the post-9/11 measures were unnecessary. The terrorists are "smart and getting smarter," and the criminal justice system can only respond in limited ways.

During Q&A, White was a little more critical of current policies, suggesting that the federal government has not made its policies sufficiently transparent. Among other things, she suggested that the executive needed to do a better job explaining the details of and reasons for given policies. Asked about the NSA surveillance program, she said she thought that the President did have the authority to conduct such surveillance, though she said the issue had not been "handled well." Asked whether the War on Terror was sufficiently different from prior wars because it was potentially a "war without end," she said that this magnifies the concern for civil liberties, but it does not make this any less of a "war" to be fought and won.

At the end she was asked about the Zacarias Moussaoui verdict, and whether the alleged "20th hijacker" should have received the death penalty. White said she wished the jury had returned a death sentence, but she also said that the sentencing verdict sent a positive message to the outside world about the fairness of the judicial system — a judicial system, White made clear throughout her talk, that she thought would serve to prevent excessive intrusions on civil liberties during the War on Terror.

UPDATE: Some commenters want to know whether White addressed torture. According to my notes, she did not directly address the subject during her prepared remarks. The subject did come up during Q&A, however. White said it was hard to support torture and other extreme interrogation methods, but she also suggested that wartime exigencies might require it. She said the need to obtain information about future terrorist activities from those who are likely to have such information, such as Khalid Sheikh Muhammed, could make extreme steps necessary. She also suggested that the use of such interrogation techniques, and the fact that any information obtained in such a fashion would be inadmissable in a U.S. court, made the domestic prosecution of such detainees less likely. (Khalid Sheikh Muhammed, for instance, was indicted in the Southern District of New York several years ago.) One thing that was interesting was that White did not attempt to diminish the gravity of her position through word play, such as by arguing that the U.S. only uses "coercive interrogation techniques" that do not constitute torture.

Smoking on Public Streets:

By the way, what would you folks think of banning smoking on public streets, by analogy to the bans on public urination? Both smoking and urine creates smells that many people find offensive. Assume that neither creates a material risk of danger to health. (As I mentioned before, urine is generally mostly sterile; my guess is that whatever harms second-hand smoke might cause, the modest amounts that one inhales from passersby on the street likely have negligible effects.)

I'll gladly concede that smoking on city streets is treated quite differently as a social norms matter from public urination; many people whom I much like and respect have smoked on the street, and some of them probably still do -- I doubt that many of them have urinated on city streets. My question is whether, despite this, smoking should be banned on public streets, and, if it is, whether such a ban would be morally proper.

I'd like to set aside the question of government-imposed bans on smoking in private places (such as restaurants and bars) that are open to the public; that's a separate issue that has been much discussed, both in libertarian circles and outside them. Here, I want to focus on laws that are limited to smoking on government property, and especially outdoor property -- sidewalks (both immediately outside building entrances and more generally), parks, and the like.

Libertarianism and the Regulation of Public Space:

David's recent post raises the interesting suggestion that government regulation of public space should, for the most part, mimic the rules that private owners would establish over a given type of space if it were privatized.

I agree with David's point that we would be better off if much of the land that is currently publicly owned were instead private. But I'm not sure he's right that government should have all or most of the same rights as a private owner would so long as the land remains in public hands. Here are my reservations:

1. Diversity.

David is absolutely right that most private owners would ban public (here, in the sense of visible, rather than in the sense of "on public property") sex and nudity on their own land. However, a minority would permit it, or at least would permit a greater degree of nudity and/or sexual behavior than would be acceptable to majority sentiment. If the government's rules for public land simply mirror those that a majority of private owners would enact, this diversity would be lost. This point applies far beyond the nudity issue. There are many behaviors that the majority dislikes, but that minorities differ about. Notice, as David himself points out, that his approach would permit (and perhaps encourage) government to regulate even many activities where the First Amendment is "implicated."

Unlike private space, public space is supposed to be, in effect, co-owned by everyone in the community. Therefore, it would be unjust, as well as often economically inefficient, for the state to exclude all uses of public space that the average or median private owner would forbid on his private property. At the very least, as I argued in my previous posts, the state should not be able to ban public behavior solely on the ground that the majority finds it "yucky," even though most private owners would ban such activities on their own land.

My rule might still not be as good as the private ownership alternative. But if the law does not ban "yucky" behaviors on public property, but does allow the majority to subject them to social pressure and opprobrium, social norms will end up limiting the incidence of "yuckiness" to something very roughly approximating the levels that would prevail if public spaces had a diverse set of private owners. Only those people with very strong preferences for aberrant behavior are likely to be willing to pay the cost of facing ridicule and social isolation. As some support for this conjecture, I note that I am familiar with communities (e.g. - Northampton, Massachusetts) where the authorities do little or nothing to enforce laws against public nudity and even against more discrete forms of public sex. Yet only relatively small numbers of people actually take advantage of this leniency. One of the commenters to my previous post noted a similar pattern in equally permissive Berkeley.

2. Monopoly Power.

Unlike most privately owned spaces, publicly owned space often involves monopoly power over an important amenity. For example, in most communities, the government is the owner of all or most roads. The local government is also often the owner of the only large public park. This monopoly power might not exist to the same degree if we adopt David's proposal of privatization, but it certainly exists in the status quo under government ownership. Basic economics suggests that monopoly providers of a service (here, access to key public spaces) should not have an absolute power to exclude people or behaviors they dislike. And this is in fact the approach that the law takes even with monopolistic private owners such as common carriers. At the very least, monopolistic government owners should not be given as much discretion in regulating land use as nonmonopolistic private ones.

Why Reasons Matter:

Some commenters in the public-sex-and-nudity threads expressed puzzlement that we'd even discuss what for them is such an obvious question. One obvious reason for discussing it is the possibility that the current legal rule gets it wrong; but these commenters dismiss this possibility. And perhaps they're right -- I do tend to think the current legal rule is right, though I'm not nearly as certain as some of the commenters seem to be.

Yet even if one is sure one knows what the right answer is, exploring the reasons for that answer proves to be quite important. Let me just briefly identify a few:

1. Understanding the reasons for a rule helps us understand the boundaries of the rule. Even if we agree with the core principle that sex or nudity in most public places should be outlawed, this core agreement may not extend to all the boundary cases. Should nude beaches and nudist colonies be entirely forbidden? Should female toplessness be generally allowed on many beaches, as it is in places that aren't that far from us culturally? Should near nudity (at least off beaches) be forbidden, as some have at times suggested even in the U.S.? Should nudity be forbidden on broadcast television? On cable television? The list could obviously go on.

2. Relatedly, understanding the reasons for a rule helps us evaluate analogies that people draw to the rule. Whether two situations (e.g., public nudity and smoking on public streets) are analogous requires us to understand the morally and practically salient features of each situation. If public nudity should be banned because it's immoral for a person to appear nude before strangers, this wouldn't itself carry over to smoking. If it should be banned because people are entitled to walk the street free of perceiving things they find offensive, then the question should just turn on what the majority finds offensive (even without regard to health questions). Likewise, is public nudity analogous to the display of "classical-looking" nude statues, so that we could prohibit the latter as we prohibit the former? Hard to tell without understanding why it is that we think public nudity may properly be banned.

3. Understanding the reasons for a rule may also help us understand how harshly violations of the rule should be punished, and how much effort we should invest in enforcing the rule.

4. Understanding the reasons for a rule can help us think about theories that would reach results contrary to the rule. For instance, if some libertarian theory tells us that public nudity and sex should be legal, but we're convinced that this result is wrong, then this tells us that the theory is mistaken. But how mistaken, and in what ways? Is the error of the theory a deep mistake that should lead us to jettison the whole theory? Should it lead us to recognize an exception to the theory, and if so, what sort of exception?

I understand the pragmatic impulse not to worry about problems that seem to have an obvious answer. But it seems to me that thinking hard about reasons, even for the seemingly obvious results, is potentially quite valuable, and shouldn't be lightly pooh-poohed.

Public and Private Spaces:

My own, perhaps idioyncratic libertarian view, is that because most public spaces (streets, sidewalks, etc.) should actually be private (owned, e.g., by homeowners' association), but are nevertheless public, the government can and should try to mimic the rules for public spaces that private owners would impose. There is no doubt that the vast majority of private owners would prohibit nudity, sex, and urination in public view. Those are easy issues, because the First Amendment is not implicated, but I think the same considerations apply even in situations where the First Amendment is implicated, and I'd argue against allowing picketing in front of someone's home, or protesting funerals, or public obscenity ("fuck the draft") [contrary to some commenters, I don't feel any obligation to defer to the Supreme Court regarding what I define as "obscene"]. I'd make some exceptions for the "public square" when core freedom of speech and association is at issue, but not many. Protecting people in "public" areas from things that would never be permitted on private property strikes me as going to the core of the states' police powers.

UPDATE: Many commenters seem astonished by the idea of private streets. My parents have a house in a private, gated community, where the streets are indeed privately owned. Access to the community is for owners and their guests. The community functions quite well, as far as I can tell, and, among other potential advantages, there is virtually no crime. This may not be everyone's cup of tea, but there is nothing either radical or impractical about streets being privately owned.

Yuck, Public Spaces, and Urine:

Apropos my suggestion that even libertarians might allow some regulation of offensive behavior in government-run spaces, simply because it's offensive, what do people think about laws banning public urination? As best I can tell, urine is usually mostly sterile. Sometimes it's not, but I suspect that on balance public urination is probably no more of a public health threat than, say, sneezing without covering your mouth. (Assume that in either case you're not urinating or sneezing directly on someone else.) It's banned, I think, largely because it smells yucky, and (less importantly) because it's perceived as yucky even setting aside its smell.

If I'm right on the public health point, does it follow that laws against public urination are improper?

Involuntary Sexual Arousal and Touching:

Say that someone intentionally taps you on the shoulder to get your attention, or intentionally pats you on the back to compliment you, or even touches your arm in conversation or hugs you when parting. You might be slightly put off, at least under some circumstances, but the law would (and, I think, should) consider this to be well within the boundaries of permissible behavior. Not all unwanted touchings are batteries.

Say, on the other hand, that someone intentionally touches your genitals, or intentionally caresses your breasts (if you're a woman). In many circumstances, this would be considered a crime. Why the difference? I think that here too there is a connection with sexual arousal — either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you. [UPDATE: For more on the latter point, which on reflection I think I probably underemphasized, see here. Also, to make clear what I thought would obviously be clear when we were talking about nonconsensual and illegal touching -- and what I expressly said in

All Related Posts (on one page) | Some Related Posts:

  1. Unwanted Touching, Indecent Exposure, and Sexual Arousal:
  2. Smoking on Public Streets:
  3. Libertarianism and the Regulation of Public Space:...
  4. Yuck, Public Spaces, and Urine:
  5. Involuntary Sexual Arousal and Touching:
  6. Should Public Sex and Nudity Be Legalized II - More Yakking about Yuck.
  7. Public Nudity and Public Sex, Beyond the Yuck:
  8. Should Public Sex and Nudity be Legalized?
Should Public Sex and Nudity Be Legalized II - More Yakking about Yuck.

In brief response to Eugene's thoughtful post below:

I. The Yuck Factor in Public Space.

Eugene argues that perceived yuckiness should be sufficient to justify regulation of behavior in public space because the space is government-owned and the state has a right to "maximize the aggregate enjoyment of those spaces." I am not convinced that this is sufficient justification. If it is right for the government to ban any behavior in public spaces that the majority considers "yucky" (in the absence of explicit constitutional protection), then - at least in some jurisdictions - that would justify bans on a wide range of activities, including, for example, public handholding between same-sex couples. Moreover, at least as a moral matter, I don't see how Eugene's argument would justify forbidding the state to ban offensive public speech or restricting the presence in public spaces of people belonging to unpopular racial or religious groups.

True, such laws are forbidden by the Constitution, but Eugene's analysis seems to imply that the Constitution is wrong to forbid them. After all, if the speech or the groups are hated by enough people, banning it (or them) might "maximize the aggregate enjoyment of [public] spaces." Furthermore, I'm not convinced that a categorical ban on public nudity and sex really does maximize aggregate enjoyment. Those who engage in such behavior (even when it is legal) are braving severe public opprobrium and social pressure. They are willing to pay a high cost to do what they do. That suggests that they derive a high degree of utility from their activities - possibly enough to outweigh the disutility to others caused by yuckiness.

Finally, real world governments are unlikely to limit themselves to banning only those yucky behaviors whose absence will maximize aggregate enjoyment. They are instead likely to respond to pressure from interest groups and ban many activities whose yucky aspects do not in fact outweigh their benefits. This is especially likely to be true if we keep in mind the fact that there is no good way to measure how "yucky" a given activity really is and how much disutility a given amount of yuckiness causes.

II. Unwanted Sexual Arousal.

Eugene also argues that public sex and nudity can be banned because they lead to unwanted sexual arousal in bystanders. It might be true that this sometimes happens, but I highly doubt that it is the real reason for most opposition to public sex and nudity. My guess is that the "yuck factor" explains about 90% of the opposition and fear of excessive arousal perhaps a fraction of the remaining 10%. Moreover, there are many other activities that arouse strong, but unwanted emotions in bystanders. Flag burning, for example, arouses very strong feelings of anger and hatred. In a diverse society, almost any activity will generate strong unwanted emotions among at least some people. As a general rule, the management of emotional reactions is unlikely to be a task that government will do a good job at. It is a classic example of a matter best left to the private sector.

OK, I think that's enough (some would say more than enough!) yakking about yuck.


Thursday, May 4, 2006

Public Nudity and Public Sex, Beyond the Yuck:

The libertarian justification for restricting public nudity and public sex is complex. There are, I think, two issues here (setting aside the First Amendment issue, which I think is generally not an obstacle for banning public nudity and public sex, whether or not the public nudity and public sex is engaged in for expressive reasons -- more on that later, maybe).

1. The Yuck Factor in Public Government-Run Spaces: When it comes to government-owned spaces, may the government forbid certain behavior because the majority finds it offensive? May a library, for instance, eject patrons who are too smelly?

On private property, libertarians would generally turn to the property owner's right to control. Some property owners might well set up nudist colonies; most, reflecting their own preferences and those of the majority of their patrons, would ban nudity. But when certain spaces are owned by the government -- even in a libertarian paradise most such spaces would be privatized, in the world in which most libertarians live, many spaces are government-owned -- the question is whether the government can set up rules that try to maximize the aggregate enjoyment of those spaces.

There might be some constitutional or broader moral constraints on that, for instance if the "yuck" stems from the content of the message that someone is expressing, or from a patron's race. But it's not clear to me that "yuck," whether it comes to nasty smells or to public sex, is a categorically illibertarian at least when it comes to behavior in government-run spaces (which I suspect are at issue in most public nudity / public sex prosecutions, though I realize that public nudity and public sex bans also extend to some private property).

2. Is It More Than Just "Yuck"? More importantly, might there be more than just "yuck" here? I'm not positive, but here's one answer that I've heard and that I think can't be easily dismissed:

Viewing nudity and especially sex does more than just make people say "yuck." Rather, it has the capacity to create, at least as to many viewers, a substantial amount of sexual arousal. Sometimes people will pay good money to get that sort of arousal. But in many places, people don't want such arousal, and find this involuntary arousal to be intrusive and troubling -- not because the behavior is yucky, but because it plays with their hormones in a way that's outside their conscious control.

Now we naturally tolerate a good deal of such arousal, and many of us probably welcome some modest amount of that arousal. Moreover, social and market norms tend to take care of most of the unwelcome sorts of arousal; people generally don't wear bikinis to work, and most people who go places where there are bikini-dressed people either seek to see a lot of skin, or at least expect to see it.

But public sex, and to some extent public nudity, have, I think, a much greater effect on most of us than just bared skin (or than statues of nudes, or even, in many instances, pictures of nudes). The question is whether the law can shield us from unwanted arousal by coercing others not to engage in such behavior; I tend to think the answer is yes, but in any event I don't think "it's just people saying 'yuck' is much of an answer."

Incidentally, if you do want to draw a First Amendment analogy here, it should probably be between public nudity/sex and publicly visible video screens that display nudity/sex -- since restrictions on both may involve the same interest in preventing involuntary sexual arousal -- rather than between public nudity/sex and flagburning, which involves a very different (and in my view much less legitimate) justification for restriction.

Further Followup on "You Must Say That!":

Following up on Dale and Eugene's posts, below, on the Arlington Human Rights Commission investigating a business owner who refused to duplicate gay rights videos, I wanted to point out a few other, similar cases I noted in You Can't Say That! Some time agok, the Vermont chapter of the ACLU sued Catholic publisher Regal Arts Press for refusing a project from the abortion rights group Catholics for Free Choice. William A. Donohue, The Politics of the American Civil Liberties Union 131 (Transaction 1985). With the help of the ACLU, a plaintiff forced the Christian Yellow Pages, a publication created by and for evangelicals, to accept ads from non-born again Christians. Pines v. W.R. Tomson, 206 Cal. Rptr. 866 (Cal. App. 1984).

Most directly on point, up North, after Toronto print shop owner Scott Brockie refused on religious grounds to print letterhead for a gay activist group, the local human rights commission ordered him to pay the group $5,000 print the requested material, and apologize to the group’s leaders. Brockie, who always accepted print jobs from individual gay customers, and even did pro bono work for a local AIDS group, is fighting the decision on religious freedom grounds. An appellate court has upheld the fine, though it did add that it would have ruled the other way had the material in question impinged more directly on Brockie's "core beliefs," such as a publication advocating homosexual behavior. Last I heard, another appeal was pending, with Brockie already having spent $100,000 Canadian in legal fees.

Should Public Sex and Nudity be Legalized?

Amber Taylor writes:

Other people are unwilling spectators to our offensive expression and conduct all the time. I can stand on the steps of the Supreme Court and wave gory, graphic photos of dismembered fetuses at passing schoolchildren. I can wear a jacket that says “Fuck the draft” in a courthouse. I can put cartoons of Mohammed on t-shirts and wear them on the street. Lots of people would find these things offensive, but we don’t allow their religious fervor, patriotic sentiment, or just plain weak stomachs to be grounds for censoring the public sphere. Why is sex special? To use legalistic language: unlike decibel limits, this is not a content-neutral restriction. (Or is it? Is a dimension of expression, not content of expression? Can I really express myself sexually if I am not permitted to act on my feelings? In the same way that no other words really convey the sentiment "Fuck the draft," does any other mode of expression really get across what a physical gesture like a kiss does?) . . .

It just seems odd to say that we can burn flags in public (something many people find so offensive that it provokes violence) but we can’t have sex in the bushes at the park because someone might get the vapors.

With a few reservations, I think that Amber is right: public sex and nudity should not be banned merely because people find it offensive, any more than flag burning should be forbidden for the same reason. The latter, in my view, is actually considerably more offensive than public nudity. I feel the same way about people who wear hammer and sickle T-shirts or publicly flaunt other "totalitarian chic." Others, of course, differ but none of us should have the right to use government power to suppress what we deem offensive.

Two reservations (which I'm not sure Amber would disagree with):

1. First Amendment issues.

Not all public sex and nudity is "expressive" in nature; indeed, in most cases it probably isn't. Only the kind that is clearly intended to express some political or other viewpoint should be protected by the First Amendment. Nonexpressive public sex and nudity should also be legalized, but local governments do not have a constitutional obligation to adopt that policy.

2. Dangers to the safety of third parties.

In some cases, public sex and nudity could pose a danger to the safety of third parties (i.e. - people other than those participating in the, ahem, activities in question). For example, nude people standing by the side of a highway could distract drivers and cause car crashes. Regulation in some such cases is surely justified. However, nudity and sex should not be targeted for regulation any more than other activities that pose similar risks. In the highway case, all distracting behavior by the side of the road should be banned, not merely that which the majority of the public finds offensive. And certainly such dangers cannot justify a categorical ban on public sex and nudity.

On the other hand, I don't think that bans on public sex or nudity can be justified by the need to protect children or by the need to prevent the spread of STDs, two commonly proffered rationales. Nazi demostrations, flag burning, and so on are at least as disturbing to sensitive children as public nudity is. Indeed, I'm far from certain that the latter harms children at all. Various degrees of public nudity are much more common in Europe than in the US, and as far as I know European children have not suffered as a result. Regarding the spread of STDs, it should be up to participants in the sex act to decide whether they want to take the risk. Moreover, the danger of STDs is mostly a function of the absence of protection, not the location of the sex act.

Update: Much of the negative reaction to this post (see, e.g., here), is driven by the "yuck" factor. People find public nudity and sex deeply distasteful and so want it banned. I share the view that much public sex and nudity is "yucky" but disagree that that justifies banning it. Yuckiness unsupported by proof of actual harm may be enough to justify a social norm against an activity, but is not enough to justify throwing people in jail. Moreover, to put it mildly, there is a long history of laws justified by "yuck factor" reasoning that we now recognize were unjustified, including laws against gay sex, laws against interracial marriage, and even laws against women wearing "male" clothing. We should be very skeptical of criminal prohibitions that can be defended only by appealing to yuckiness. Finally, as Amber Taylor noted in her post (cited above), what is considered "yucky" varies enormously by culture. We rightly condemn Saudi laws that forbid women to appear in public without veils, yet Saudi traditionalists presumably consider unveiled women just as "yucky" as we consider public nudity.

This leads to a broader point about why we should care about this issue. It is not because public sex and nudity are themselves tremendously important but because the laws banning them are a particularly blatant example of the desire to ban activities merely because we find them offensive and distasteful. The impulse is a powerful one. But if we can expose it and learn to control it, we will have a much freer society.

Update #2: I think many people have misunderstood this post as arguing that all or most public sex and nudity is protected First Amendment speech. I tried to make it clear in the original post that only nudity (and less likely) sex "that is clearly intended to express some political or other viewpoint should be protected by the First Amendment." I also said that most public sex and nudity is "nonexpressive" and therefore constitutionally unprotected. But let me make the point even clearer: I am making a moral argument, not a legal one. While only a narrow subset of public nudity and sex should be constitutionally protected by the courts, I contend that laws banning public nudity and sex should be abolished for moral and policy reasons. They should be retained only in those few cases where there are clear harms to third parties that go beyond offensiveness or "yuck factor" considerations.

Investigating a Video Duplication Service for Not Duplicating Gay-Themed Films:

I think Dale's criticisms of the Arlington County Human Rights Commission actions is quite sound. (It's not clear from the news story whether the Commission actually ordered the business to duplicate the movies or pay for their duplication, or merely investigated it and "suggested" such a remedy; but I'll assume that their actions were attempts to use the law to coerce the businessman to duplicate the movies.)

To get to the question that Dale specifically reserves, though, it turns out that, given the Supreme Court's recent decision in Rumsfeld v. FAIR, such a coercive order would not have violated the business's First Amendment rights. It wouldn't have involved an unconstitutional speech compulsion, given the Court's reasoning, because the business's "own message [would not be] affected by the speech it was forced to [duplicate]." And it wouldn't have involved unconstitutional interference with the business owner's expressive association rights, because it "does not force a [business] 'to accept members it does not desire.'" Even if the business says that copying the video "impairs [its] own expression by requiring [it] to associate with the [message of the video]," "just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, so too a speaker cannot 'erect a shield' against laws requiring [service] 'simply by asserting' that mere association 'would impair its message.'"

Note that though the FAIR case involved a requirement attached as a condition to a government subsidy, the Court's decision in Rumsfeld v. FAIR held that such a requirement "could be constitutionally imposed directly," even by the government acting as sovereign rather than by the government acting as subsidizer. The precedent thus applies to all similar restrictions, not just as ones that are attached to a subsidy.

The one possible difference between this case and FAIR is that the FAIR decision did stress that it involved a Congressional act aimed at raising armies, which requires some "judicial deference." But the rest of the decision didn't rely on this, and instead applied -- and set a precedent about -- standard First Amendment law that's applicable even outside the context of military recruiting.

So, again, I agree with Dale's criticisms; but it's important to recognize that they are state-law-based and policy-based criticisms, and don't lead to the conclusion that the Commission's actions (even if coercive) violated the First Amendment.

Related Posts (on one page):

  1. Further Followup on "You Must Say That!":
  2. Investigating a Video Duplication Service for Not Duplicating Gay-Themed Films:
  3. You must say that! in Arlington County:
You must say that! in Arlington County:

Hans Bader reports that in Arlington County, Virginia, we're seeing another clash of competing "civil rights":

The Arlington County Human Rights Commission recently held a public hearing and subsequently investigated a Christian businessman on behalf of a gay-rights activist who claimed he wrongly “discriminated” based on “sexual orientation.” Tim Bono of Bono Film and Video in Arlington County refused to duplicate two Gay Pride films for political activist Lillian Vincenz. (Vincenz once told an interviewer that “gay people .. are, in general, so much more courageous, innovative, and open to new ideas than the average straight person.” . . . .

In refusing to duplicate the videos, Bono cited his desire to honor what he perceived as Biblical prohibitions against the sin of homosexual behavior. Bono Film & Video informs every potential customer that it does not duplicate material that it may deem obscene, or that may embarrass employees, tarnish its reputation, or that runs counter to the company’s Christian and ethical values. . . .

Vincenz contacted Arlington County officials to get them to force Bono’s private business to duplicate her materials, despite the fact that Bono objected on the basis of his religious convictions. The Arlington Human Rights Commission then ruled against Bono, ordering him to either duplicate Vincenz’s films himself or pay someone else to do it for him.

See also a local newspaper account here.

I see three main problems with this ruling. First, while a county ordinance prohibits discrimination on the basis of sexual orientation in hiring and in the provision of "general public services," it is hardly obvious that the film shop has so discriminated. The shop refused to print a message it disagrees with; it did not refuse to do business with a person because of the person's sexual orientation. If a heterosexual had come to the shop requesting duplication of the same materials, I assume the shop owner would have denied the request.

Second, if the county ordinance is understood to require the business to duplicate the materials at issue, it is constitutionally vulnerable. (Note: I'm not arguing that the ordinance, interpreted in this way, would be held unconstitutional by a federal court. That's a different question than I will address here.) It seems to me that, even in the context of a commercial setting like a film shop, antidiscrimination laws that require a business owner to help others propound a message to which they object come very close to content-based, compelled speech; alternatively, it could be seen as requiring the owner to carry the speech of another, which the Supreme Court has found unconstitutional in some contexts. It's not the same as requiring Bono to recite aloud his support for the "gay agenda," as one might require a school-child to recite the Pledge, but it's just a few steps away from that. There are counter-arguments — and it has to be emphasized that this is a commercial setting, where courts have been more forgiving of speech regulation in the service of antidiscrimination law — but there's a plausible argument that the Arlington County ordinance would be unconstitutional as applied in this way.

Third, beyond these purely constitutional considerations, applying antidiscrimination law in this way is peculiarly bad policy because it harms free-speech values while doing little to advance core antidiscrimination values. In other cases where business owners want to discriminate (e.g., in employment), at least the connection to important and core antidiscrimination values is apparent. Here, the antidiscrimination law is actually operating to require the person to contribute to messages she dislikes. In contrast to the employment context, where I believe the antidiscrimination value is at its height and the "speech" interest is relatively lower, here the speech interest in refusing to facilitate objectionable messages is high, while the antidiscrimination value is relatively lower (if implicated at all). The antidiscrimination law, applied in this way, is really a speech regulation in a way that seems much more obvious and intuitive than in the employment context.

Imagine a principled application of a county ordinance that forbids discrimination in "services" on the basis of, say, "race, religion, and sexual orientation." Yes, the Christian film shop owner will have to copy the gay-rights documentaries. A victory for gay rights and equality, we might think. But the gay film shop owner will have to copy "God Hates Fags" posters for the fundamentalist minister protesting at the next funeral for a servicemember or a hate-crimes victim.

What makes the case even more compelling as an abuse of antidiscrimination law is that it's being applied to a mom-and-pop shop run by a small proprietor. We're not talking Kinko's here. So even if we worried that there might be some harm to speech values (e.g., the dissemination of unpopular ideas) if large printing companies refused to copy material on the basis of "moral" objections to its content, that concern is not present in this case.

Hard cases arise when business owners deny other kinds of services to people on the basis of some moral objection, as when the pharmacist working for a large national chain refuses to fill a prescription for contraceptives. I won't try to resolve those cases now. But the Arlington County case does not, to me, seem like a very hard one.

Live Blogging the CFP Panel:

Right now I am on a panel at the CFP conference on "Blogging and Privacy" at the 2006 CFP conference or, as session moderator Ian Kerr notes, what should be called the "Blogging under Pseudonyms" panel. Also on the panel are David Lat of Underneath Their Robes and Wonkette, and Kurt Opsahl of the Electronic Frontier Foundation.

I'm up first, and basically said what I've said before about why I adopted the Juan Non-Volokh pseudonym (see, e.g, here and here). I also noted that everything I ever said about "Juan" — where he grew up, went to school , and the like — was true about me. I also confessed that were I faced with the choice again, I am not sure I would have adopted the Juan personna to blog on the VC.

David Lat explains he started UTR because he always had a "strange fascination" with federal judges, and so started the blog as "People" or "US Weekly" focused on the federal judiciary — chronicling the piccadilloes of Justice O'Connor rather than Justice Timberlake. Like me, David was initially unaware how easy it was to expose oneself through careless e-mailing and other indiscretions. Unlike me, Judge Kozinski clued A3G in to the practice of "safe e-mailing" and so he managed to avoid too many indiscretions.

Article III Groupie, David's UTR personna, was created to be the opposite of him in most cosmetic respects (a female attorney in private practice on the West Coast, rather than a male attorney working for the government in New Jersey). Unlike Juan, A3G's views were hers, not David's — or so he wanted to maintain (though, he notes, most didn't buy it).

After a year-and-a-half or so, David was starting to feel resentful of A3G's fame — "she" got the credit for his work — and also saw that his cover might soon be blown. So, he made the decision to "go out in style," on his own terms — in a Jeffrey toobin story in the New Yorker. The story was great, though was not received as well in the U.S. Attorney's office where David worked as it was in the blogosphere. David did not lose his job, but he had to take down the UTR site to remain in government employ. Shortly thereafter, he received an offer to blog at Wonkette, and moved to D.C. No longer in government employ, David notes, he does feel somewhat freer to express himself, as he is no longer "in" the world about which he blogs.

Kurt Opsahl of the Electronic Frontier Foundation summarized the legal issues involved with anonymous and pseudonymous blogging — things I should have known before blogging as Juan. For instance, while there is a well-establshed First Amendment right to speak anonymously that may protect anonymous bloggers from subpoenas and the like, there are still real risks. The right to speak anonymously does not necessarily prevent the issuance of a subpoena to an ISP to expose an anonymous blogger or poster. Most ISPs will give you notice, however, which creates an opportunity to seek to quash the subpoena, but that may create further risks of exposure. Those considering anonymous or pseudonymous blogging should check out EFF's info page on the subject.

One audience member raises a really good question about how pseudonymous bloggers can maintain their credibility when their personal biases (and perhaps even financial interests) are not disclosed. I respond that this is a real issue, and one of the reasons I would often disclose personal information about myself so readers would know where I was coming from on certain issues. David notes, however, that there is a limit to how much a pseudonymous blogger can disclose about his or her biases without disclosing his or her identity.

Ian closes noting that most of the discussion focused on the relatively happy situation of people like David and myself who choose to blog pseudonymously, and have the luxury of designing an exit strategy. In some cases, however, people may adopt pseudonyms due to legal or other issues beyond their control, and in some cases the costs of exposure may be quite significant.

Daniel Solove also blogged the panel here.

George W, Richard Nixon, and Big Government Conservatism:

Conservative commentators David Frum, Bruce Bartlett, and Jonah Goldberg all condemn George W. Bush's embrace of big government conservatism and analogize his policies to those of Richard Nixon. Frum's piece is particularly interesting, given that he is a former Bush speechwriter and author of The Right Man, a laudatory book about W. By now, it is no secret that Bush has presided over a massive expansion of government, even if one sets aside the increase in defense spending since 9/11.

In addition to the parallels noted by Bartlett, Goldberg, and Frum, here are some additional similarities between Nixon's and Bush's records on big government:

1. Embrace of very broad theories of executive power. It was Nixon who famously said "when the president does it that means that it is not illegal." Bush has not gone quite that far, but he has come very close.

2. Rhetorical criticism of affirmative action coupled with tacit support of racial preferences at the level of actual policy.

3. Support for a massive expansion of the federal role in health care provision (Bush's medicare prescription drug bill; Nixon's proposal to institute national health insurance).

I do not think that W is personally venal and paranoid in the way that Nixon was, nor has his administration (at least so far) produced a scandal comparable to Watergate. But the similarities between their domestic policies are real and, to my mind, extremely disturbing.

In the posts cited above, Bartlett and Frum produce some strong arguments showing that Bush's big government policies might prove to be more lasting than Nixon's did (Goldberg is less pessimistic). They may well be right, but I note 3 countervailing factors:

1. The looming fiscal crisis of Medicare and Social Security, which Bush's policies have helped to exacerbate, might well force spending reductions, just as the fiscal crisis of the late 1980s and 90s forced reductions under Bill Clinton. The alternative of sudden massive tax increases is one that many politicians are likely to shy away from.

2. As the Bartlett, Frum, and Goldberg pieces themselves show, most conservatives have supported Bush's domestic policies (to the extent that they have done so at all), only because they were perceived as a political success. If, as seems likely, Bush's ratings continue to stay low and the Republicans suffer painful defeats in this fall's elections, this perception is likely to dissipate and small government conservatives may reassert themselves politically. Although we shouldn't overemphasize the significance of a single interview, Virginia Senator George Allen, a leading contender for the 2008 Republican nomination, has recently stated that he would bring a "libertarian sense" to the White House and distanced himself from Bush's domestic record.

3. With increasing affluence and technological advances, it has become more feasible to substitute private provision for a wide range of services previously provided by government. For example, this excellent recent book by Robert Nelson notes that some 18% of Americans (up from 1% in 1965) now live in private communities such as condominiums and homeowner associations that provide many or most of the services traditionally provided by local governments. Although the issues involved are complex, such privatization is likely to reduce support for the growth of government, at least at the margin.

Make no mistake - the growth of government is a very powerful trend, and Bush has done a great deal to exacerbate it. But we should not be too quick to assume that the trend is irreversible.

Update: Some commenters, and others, argue that conservatives have only begun to criticize Bush's domestic policies because he has become unpopular or only after the 2004 campaign. I think this is misleading. Many conservatives have been critical of Bush's spending spree all along, and this is certainly true of Bartlett and Goldberg (who has been skewering Bush's spending habits for a long time). See also this 2003 publication by the Heritage Foundation, probably the best-known conservative think tank. What is true is that Republican politicians (not the same group as conservative commentators, by any means) were mostly unwilling to criticize a president of their own party so long as his policies seemed to be a political success. Bush's recent political failures may lead them to change their tune, as George Allen's comments (quoted above) indicate.


Wednesday, May 3, 2006

Law Review Write-On Tips, Part 4 -- Why Be on a Law Review?

A commenter asked why anyone would want to be on a law review. Here's the answer I give in my book:

Being on a law review takes a lot of effort, often many hours a week that you’d rather spend studying for other classes or having fun. Why do it?

1. The credential: Law review is a valuable credential on your resume. It’s especially valuable if you want to get a judicial clerkship or a teaching job, but it’s also helpful for other jobs, too. Employers assume that if you’ve been on law review, you’ve had more practice editing, proofreading, and writing. Also, because many law reviews (especially general-purpose journals) have selective admissions procedures, having “made law review” is seen as evidence of good grades or of writing skill.

What’s more, unlike grades, law review is a credential that’s socially acceptable to talk about. It’s hard to politely work your grades into casual conversation with potential employers. The grades will be on your resume, but not everyone at your prospective new job will have seen the resume, and those who have seen it may well have forgotten it.

But law review is a project that you’ve been involved in, so you can safely discuss it (of course, so long as you aren’t too blatant about it). “What are you doing at school this year?” “Oh, law review is taking up a lot of my time.” “Oh, really? What do you on the law review?” “I’m the chief articles editor.” Polite but impressive.

2. Editing, proofreading, and source-checking training: The key to good legal writing is the ability to edit and proofread your own work, and care in using sources. The key to these things is practice, both with your work and with others’ work. Law review will give you plenty of such practice — and in the process will teach you to pay attention to detail, another important skill lawyers must have.

3. Incentive to write and opportunity to publish: Many law journals require you to write a student Note, as a condition of being promoted from a staffer to an editor. Some of these Notes (the number varies from journal to journal) end up being published.

As I mention in Part VII.A, you can indeed write a Note and get it published even if you’re not on law review. But writing is hard, and if you don’t have an obligation and a deadline, it’s easy to keep putting it off. Being on a law review commits you to making that effort, and makes it easier for you to get a publication out of your work.

4. Cooperative and valuable work: Most things you do in law school — read, study, take exams — you do by yourself. Even those things that are cooperative, such as study groups or moot court, tend to be exercises, pedagogically valuable but with little effect on the outside world.

Law review lets you work as part of a team that produces something that matters: The articles you edit may end up being cited by courts and by scholars, and might actually make some difference to the development of the law and legal thinking. This sort of team effort can be exciting and rewarding.

5. Exposure to ideas: Working on the law review will lead you to read quite a few law review articles — and if you’re in the articles department, it will lead you to read very many. Many of the articles aren’t going to be very interesting or helpful to you, but some will be. This exposure to ideas can be both exciting for its own sake, and valuable for your future work, either scholarly or practical. (Naturally, you could just decide to expose yourself to ideas by reading articles on your own; but few people have the discipline to do that unless law review forces them to.)

Law Review Write-on Tips, Part 3 -- Review Your Professors' Comments on Your Written Work:

In most write-on competitions, writing quality is a big part of your grade. What's more, the quality of your writing affects the perceived quality of your substance: Bad writing can keep readers from grasping your good arguments, and it can keep you from identifying your bad arguments.

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

If you can, meet with your writing instructors to see if they can elaborate on any comments they might have given you, or give you broader advice. Writing teachers like it when you come to them out of a sincere desire to improve your writing; and they often have specific suggestions that they’ll be glad to pass along.

Law Review Write-On Tips, Part 2 -- Set Up the Right Environment for the Write-On:

Many first-year law students will be participating in write-on competitions right after the end of the semester. (Some schools, like UCLA, conduct their competitions during Spring break, but the start of the Summer turns out to be the most common time.) I thought I'd blog a bit about this, mostly (but not entirely) based on the "Getting on Law Review" chapter of my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review book.

The write-on competition is going to be time-consuming and time-pressured; you'll usually be allotted only several days to do a pretty difficult task. So try to make sure you have no other obligations during the alloted time. If you’re working part-time, see if you can take the week off, and make up the lost time before or after. If you have children, do what you can to get the other parent or someone else to spend more time with them during the competition.

Try to avoid leaving town to see friends or family. You might intend to do lots of work when you’re on the trip, but it’s hard to work when you’re around people you haven’t seen in months, and who understandably want your company. Going out to dinner with friends is fine; everyone needs a study break. But try to avoid more demanding commitments. If, however, you can’t get out of your other obligations for the week, don’t use that as an excuse to just sit out the competition. It’s possible for you to do well even if you also have to travel, work, study, or mind the kids that week -- it’s just easier if you can focus solely on the competition.

Finally, one suggestion that isn't in the book, but that a student recommended to me: If you live with a roommate, see if you can borrow a solo friend's apartment for the duration of the competition. (Since it will be during vacation, you might have quite a few friends who are out of town for work or for play, and who haven't sublet their apartments for the whole summer.) Not everyone prefers solitude for such things, and some people value familiar surroundings more than they value solitude. But for many people, the extra solitude can be a big plus.

All this is hardly rocket science; you may have thought of it already. But my sense is that students sometimes miss the obvious, so it's worth repeating.

Brandeis Censors an Exhibit of Palestinian Art:

Boston Globe:

"University officials said the paintings depicted only one side of the Israeli-Palestinian conflict. Lior Halperin, the student who organized the exhibit, said the university censored an alternative view.... Brandeis officials said they wanted to make sure the Israeli-Palestinian conflict is presented in a balanced manner.

''It was completely from one side in the Israeli-Palestinian conflict, and we can only go based on the complaints we received," said Dennis Nealon, a Brandeis spokesman. ''People were saying: (a) what is this; (b) what is it trying to say; and (c) should there be some sort of balancing perspective here?" Nealon said that the university would consider displaying the artwork again in the fall, alongside pieces showing the Israeli point of view."

The article suggests that some students were upset, because the exhibit came without any explanatory information, and thus appeared to be officially endorsed by university staff. A simple disclaimer, explaining the origins of the art (a project organized by a Brandeis student) would have solved that problem.

Brandeis is a private university and, thus, unlike, e.g., Penn State, is not bound by the First Amendment, so there is no constitutional violation here, but the administration's reactions don't reflect well on Brandeis.

Indeed, putting this post together with one from yesterday, we have the Brandeis Administration adopting the following posture: (1) We will officially honor Tony Kushner, a virulently anti-Israel playwright who says that "[t]he biggest supporters of Israel are the most repulsive members of the Jewish community." and (2) We will censor (Israeli!) students who exhibit "one-sided" art that is deemed anti-Israel. In other words, we will do the wrong thing in each case, in a particularly ham-headedhanded [typo; insert kosher joke here] and illogical way. Not for the first time, my alma mater is embarassing me.

Thanks to reader David Orlinoff for the tip.

Related Posts (on one page):

  1. Brandeis and the Art Exhibit:
  2. Brandeis Censors an Exhibit of Palestinian Art:
  3. Tony Kushner to be Honored at Brandeis:
Bizarre Voting Rights Case for Anti-White Discrimination:

I'm no voting rights expert, but can it really be illegal to recruit a black candidate to run a against a white because he's white? [not clear that this is actually part of the DOJ complaint.] And can it really be illegal, as the Justice Department complaint reportedly says, to "participate[] in numerous racial appeals during primary and general campaigns and criticize[] black citizens for supporting white candidates and for forming biracial political coalitions with white candidates." And if the Voting Rights Act does make recruiting candidates and making racial appeals illegal, doesn't it violate the First Amendment?

Thanks to reader Ryan Walters for the tip.

Poltiical Symbolism of an Umbrella:

I mentioned in my earlier post on Greatness that although I have read a number of books about Reagan and Churchill, there was much in this little book that I had not previously seen. Hayward provides one interesting vignette that links the two together symbolically (leaving aside the substantive fairness or accuracy of the comparison), involving an umbrella (p. 145-46):

Continued Under Hidden Text


Jane Jacobs, RIP

Although belated due to the recent nature of my joining the Conspiracy, I do want to pay tribute to legendary urban theorist Jane Jacobs, who passed away last week. Jacobs wrote many important books, including The Death and Life of Great American Cities (1961), a classic critique of urban planning and "renewal" programs that caused tremendous harm in the post-WWII period, including the forcible displacement of hundreds of thousands of people (primarily poor and minorities). In that book and elsewhere, Jacobs also was one of the first critics of the use of eminent domain for "development" purposes. In the Kelo case (which angered her even more than it did me), I had the privilege of writing an amicus brief on her behalf, which is available here.

Update: The link to the amica curiae brief has been fixed and should now be working.


Tuesday, May 2, 2006

OK, I Still Don't Know Why This Happens:

Four copies of the first edition of Academic Legal Writing are available from the amazon-connected bookstores: One for $15.99, and the others for $34.61 ("used - very good"), $39.95 (new), and $59.85 (new). Yes, it's cheap at twice the price, but given that the second -- considerably improved -- edition is available for $24, why would anyone price the first edition (a 200-page paperback, yet) at $59.85?

Bernstein on "Anti-Semites" and Israel:

Last week, I pointed out: "Some pro-Israel activists try to undermine their opposition by calling them anti-Semites, even when it's not justified. Some who are unsympathetic to Israel try to undermine their opposition by claiming that perfectly legitimate criticism of their views is the work of pro-Israel hysterics" who claim all criticism of Israel is anti-Semitic."

When I post about anything vaguely Israel-related, and sometimes even when I don't, various commentators often write [and I often delete] or even email to me something to the effect of, "watch out, next thing you know Bernstein will call you an anti-Semite" for criticizing Israel. This made me wonder whether there was any empirical justification for the charge that I frequently call critics of Israel anti-Semites.

So, ladies and gentlemen, let's get the facts straight. I searched the Volokh Conspiracy archives for any instance in which I used the term anti-Semite. It's possible I missed something, but near as I can tell, I have called three individuals "anti-Semites": Mel Gibson's father, Justice James McReynolds, and Karl Marx. And having checked the vast majority of my uses of "anti-Semitic," I noticed that have referred to the Nation of Islam as an "anti-Semtitic organization," Al Sharpton as an "anti-Semitic demagogue," and I implied that Mikis Theodorakis is anti-Semitic. [I've also referred to some obviously anti-Semitic writings, such as an email calling Eugene and me "dumb Likudnik monkeys" for taking a position that had nothing to do with Israel or Jews, and speeches as anti-Semitic, without calling the authors anti-Semites.] All six of these references have two things in common: first, the individuals or organizations in questions are indisputably anti-Semitic; and two, none of the references have anything to do with Israel.

Now, I don't expect every reader to share my interest in Israel, or in anti-Semitism. But I do expect a little care and honesty in portraying how, why, and when I refer to individuals as anti-Semites.

Problem for My Criminal Law Review Session Thursday:

Bert and Ernie are walking down the street from the local bar, when they see their old nemesis the Count. Drunk and a little paranoid, they conclude that the Count is trying to kill them, so they decide to kill him to prevent that from happening; but they don't want to confront him directly.

Fortunately, they see Oscar sitting in his trashcan. "Help us out, Oscar," they say; "come up to the Count and ask him to count your trash bag collection." "No!," says Oscar, annoyed by the request. "You'd better do it, or else we'll beat you up." "Okay," says Oscar, and does what they ask of him.

While the Count is distracted, Bert pulls out his handgun and pulls the trigger; but it turns out that Bert had forgotten to load the handgun. Bert and Ernie then run away, but Oscar isn't as fast. The Count jumps on Oscar and tries to kill him by drinking his blood, but the police come before Oscar is entirely drained, and save Oscar's life.

What crimes have been committed, or may have been committed, here? Apply the Model Penal Code as well as the various common-law rules that we've studied.

The Law and Economics of the Bluebook Market Failure:

As promised in my last post, I will now explore the reasons why the Bluebook market failure persists despite its manifest flaws.

1. Most Bluebook costs are externalities.

The decision whether or not to use the Bluebook is made by law review boards, but most actual bluebooking is done by low-level journal members or by authors of articles. To be sure, the onerous nature of bluebooking probably deters some people from applying for law journal membership, but at most schools there will be more than enough applicants anyway, because of the credential benefits of being a law journal member. The demand for journal membership is relatively inelastic. Thus, board members have little incentive to take into account most of the costs of bluebooking. To be sure, board members (at least at some journals) also have to waste time on bluebooking, but they might have to spend even more time adopting and implementing a new citation system.

2. Short time horizons.

Law journal board members generally serve for only 1 year. If they choose to adopt a new citation system, they will have to bear all or most of the transition costs (choosing the system, training people to use it, informing authors and helping THEM to make the transition, etc.), but will reap only a small proportion of the benefits, most of which will accrue to their successors. Moreover, if the transition turns out to be a failure, the board members might suffer considerable reputational costs, whereas few people will blame them for continuing with longstanding status quo policies. The key point here is that law journal boards have insufficient incentive to innovate.

3. Bluebooking as hazing.

Having to learn the Bluebook increases the costs of entry to law journal membership and, at least at the margin, makes membership a more exclusive club. The harder it is to qualify for journal membership, the more rare this credential becomes and - potentially - the higher the market value of having it. People who have already paid the cost of entry to the exclusive club (i.e. - board members) have at least some incentive to keep it as exclusive as possible. The phenomenon of fraternity hazing may work in the same way. Hazing makes it more difficult to join the frat, and thus makes it a more exclusive club for the brothers. Obviously, there are limits to this process. If the hazing is truly horrendous, there will be too few applicants for the club. But bluebook hazing hasn't (yet!) reached that point.

Some people argue that the main obstacle to Bluebook abolition is the self-interest of the four journals who publish it and make a great deal of money as a result (Harvard, Yale, Columbia, and Penn). It is true that this interest exists, but it does not explain why editorial boards at other journals (who are consumers of the Bluebook rather than producers) do not junk it in favor of a simpler system.

The Death of the "New Economic Model":

As reported here at the VC, last March a realtor told the N.Y. Times that "South Florida is working off of a totally new economic model than any of us have ever experienced in the past." The realtor also predicted that "a limited supply of land coupled with demand from baby boomers and foreigners would prolong the boom indefinitely."

Today, St. Joe Co., a leading real estate developer in Florida, announced terrible first quarter earnings. The South Florida condo market, meanwhile, is moribund.

More generally, over the last few days, Hovnanian, Beazer, Centex, and other homebuilders have also announced poor earnings and, more important, prospects. Even the Washington Post, which has been extremely lax in reporting bubble deflation (for example, carrying on article a week ago wondering what would happen "if the huge price increases of the last five years suddenly come to a standstill," as if they hadn't already) has caught on.

Though prices continued to rise for a few more months, I officially nominate nominate March 25, 2005, when the Times saw fit to publish the comment noted above, as the peak of the bubble. (Others will no doubt be partial to June 12, 2005, when the Wall Street Journal carried a story about sellers' market power, including an anecdote about an owner of an expensive San Francisco home who required purchasers to contractually agree to feed her backyard squirrels:

Indeed, when Susan Butler was negotiating to buy Ms. Gao's San Francisco property, she was resigned to the feeding schedule. "At that point, I said, 'Yeah, what the hell, I'll feed the squirrels,'" she said. She signed a contract in April, paying $815,000 — or $116,000 over the asking price.")

Terminally Ill Patients' Right to Get Potentially Life-Saving Medication:

I just read the D.C. Circuit's opinion that recognized "the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor’s advice, even where that medication carries risks for the patient." I'm sure others will say plenty about the usual unenumerated rights debates; but I wanted to raise a question that I didn't see discussed in the D.C. Circuit decision — why isn't Roe v. Wade (as preserved in Casey v. Planned Parenthood) strong precedential support for that decision?

Roe concluded that the Constitution secures a right to an abortion, but it may be more accurate to say that it secured two different, though related, rights. First, it secured a right to an abortion during the first two trimesters (Casey has since cut this back to before viability); the government is entitled, especially after Casey, to regulate such abortions, but it can't prohibit them. This right vindicates the woman's right to choose not to bear a child.

Second, though, Roe held that even after viability — when the state is generally entitled to protect fetal life, and thus to ban most abortions — the woman still has a right to an abortion "when it is necessary to preserve the life or health of the mother." This right does not vindicate the woman's right to choose not to bear a child, since absent the threat to the woman's life, she can no longer get an abortion. Its purpose must be to vindicate the woman's right to protect her own life and health, even using a medical procedure that will kill the now-viable fetus.

Now of course those who strongly oppose Roe and Casey might not want to see them extended; one error, they'd reason, doesn't require others.

But if one accepts this second abortion right that I discussed above, or one is at least willing to accept it as binding precedent, why doesn't this precedent strongly point towards recognizing terminally ill patients' right to get potentially life-saving medication? (Note, by the way, that this is a right in the negative liberty sense of freedom from government prohibition, not a positive entitlement to government funding to the medication.) If pregnant women are entitled to protect their lives or even just their health using medical procedures, why don't others patients have an equal entitlement?

True, the government may have an important interest — which is generally absent as to abortions, which tend not to be dangerous as a rule — in protecting a patient's life and health against the potential dangers of experimental drugs. Yet surely this interest is extremely weak when the patient is already terminally ill, and the risks of doing nothing probably far outweigh the risks of trying something.

So can it be that a person has a constitutional right to get potentially life-saving treatment, but only when that potentially life-saving treatment involves the killing of a viable fetus that she is carrying?

I put the question (and much of this post) in an intentionally provocative way, to make it more fun to read; but I should stress that it is a real question, not just a rhetorical one, and there may well be important arguments that I'm missing. Please do let me know what those arguments might be.

Related Posts (on one page):

  1. Terminally Ill Patients' Right to Get Potentially Life-Saving Medication:
  2. A Constitutional Right to Drugs:
The Case for Abolishing the Blue Book:

In a recent post, Eugene gives aspiring law review editors advice on how to pass the Blue Book tests many of you are now suffering through. I would like to go one better and free you from Blue Book drudgery altogether.

The Blue Book, as every lawyer and law student is forced to learn, is the enormously complicated citation system used in most law reviews and (to a lesser extent) legal documents. It is a massive tome, over 200 [correction: 400] pages long, with rules for every conceivable situation and some that probably are not conceivable to anyone who has not had the painful experience of reading the Blue Book. When I was a law student and member of the Yale Law Journal, I proposed abolishing this monstrosity and replacing it with a simple citation system such as that used in virtually every other academic field. Here are the reasons why:

1. The Blue Book is an enormous waste of time and effort.

Every year, law review editors across the country spend thousands of man-hours editing articles to make sure that they conform to the Blue Book rules, taking Blue Book tests, and engaging in other Blue Book-related activities. Professors and/or their research assistants spend a great deal of time ensuring that their article submissions conform to the rules as well. This time could easily be spent in more productive ways, such as studying, research, clinical work, or even working on your tan at the beach.

2. There is no evidence that the Blue Book improves the quality of scholarship.

There is zero evidence that having a hyper-complex citation system improves the quality of legal scholarship. Similarly, there is no evidence that other academic fields with simple citation systems have lower-quality scholarship as a result. Indeed, the opposite is more likely to be true, since time devoted to Bluebooking could instead be devoted to improving research quality.

Nor can Bluebooking be justified by the supposedly "special" nature of legal research materials. Scholars in other fields who study law and legal institutions (e.g. - economics and political science) get along fine without bluebooking, even though they have to cite the same types of sources as legal scholars do.

3. The University of Chicago Law Review precedent.

The University of Chicago Law Review and other Chicago journals have been using a much simpler citation system, the Maroon Book since 1986. There is no evidence that the quality of scholarship in the U. of Chicago Law Review declined as a result.

4. Faculty edited journals.

Most faculty edited law journals use simplified citation systems. This is a sign that leading scholars (the type of people who found and edit faculty journals) do not consider the Blue Book an essential element of good scholarship (or at least that they do not believe the benefits of bluebooking to be worth the cost in a situation where they would have to bear that cost themselves).

If the Blue Book is so inefficient, why has it not been replaced already? I may address the cause of this market failure in a future post. In brief, I think it has to do with the lack of incentive of law review boards to properly value the time of both student editors and faculty authors, combined with the short time horizons of the former (Board members serve for only 1 year; the costs of any reform are likely to be borne in that year, while most of the benefits will be reaped in later years).

As the University of Chicago Law Review found, it is difficult for any one law journal to junk the Blue Book unless others follow suit. But if you are a board member at a prominent law journal, I urge you to explore the issue of Blue Book abolition with your peers at other schools. Such collective action would be particularly useful if initiated by one or more of the journals that publish the Blue Book: the Harvard Law Review, Yale Law Journal, Columbia Law Review, and Univ. of Pennsylvania Law Review. You will not even have to go through the trouble of creating your own citation system from scratch, since you can simply adopt the Maroon Book or one of the citation systems used by other scholarly fields (which all include rules for citing legal materials). If you succeed, you will earn the gratitude of generations of law students!

Update: As several University of Chicago commenters point out, the U. of Chicago journals are still using the Maroon Book. I am glad to hear it! I had been misled by some articles claiming that the Maroon Book had been abandoned. The text of the original post will be edited to reflect the truth.

Update #2: Some Bluebook defenders argue that its complex rules are necessary to enable readers to determine where they can find the source for the information cited. I had thought that the answer to this point is implicit in my original post. But let me spell it out just in case: other academic fields (including those where authors often write about law and use legal sources) that use simplified citation systems accomplish this goal WITHOUT the mindnumbing complexity of a 400-page rulebook and without wasting thousands of man-hours of time. The same is also true of those law journals that use the Maroon Book (which I think is also too complex, but far less so than the Bluebook).

A Constitutional Right to Drugs:

Today, in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, a divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the Due Process Clause protects "the right of a mentally competent, terminally ill adult patient to access potentially life-saving . . . drugs, upon a doctor's advice, even where that medication carries risks for the patient" and has not been approved for commercial sale by the Food & Drug Administration, but where the FDA has determined that the drug is safe enough for broad ("post Phase I") testing on human subjects.

According to the majority opinion, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, this right "can be inferred from the [Supreme] Court's conclusion in Cruzan v. Director, Missouri Department of Health that an individual has a due process right to refuse life-sustaining medical treatment." The right at issue here, according to Judge Rogers, implicates the same fundamental issue "the patient's right to make the decision about her life free from government interference." Judge Thomas Griffith dissented.

Orin Kerr has more thoughts here.

UPDATE: In reference to Eugene's post above, it is worth noting that the D.C. Circuit explicitly rejected relying on the "line of cases beginning with Griswold v. Connecticut, and continuing through Eisenstadt v. Baird, Roe v. Wade, and [Planned Parenthood of Southeastern Pa. v.] Casey," and instead relied on the "more restrictive" approach embodied by the right-to-die cases, particularly Washington v. Glucksberg. Under the latter approach, the Due Process Clause only protects as fundamental those rights that are "objectively, deeply rooted in this Nation's history and tradition," and are "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist" were they not protected as such. Because the majority found the right claimed met this test, it did not have to consider whether the abortion cases -- what the majority opinion termed the "personal dignity and autonomy" line of cases -- also support the claim.

I see at least two possible reasons for the Court's approach. First, by relying on the "more restrictive" Glucksberg approach -- an approach that some of the more conservative justices have endorsed -- the opinion is not staking out as bold a claim. Second, should the Roberts Court revisit, and perhaps even restrict or reverse, some of the abortion precedents, the D.C. Circuit's holding would remain secure. Avoiding any reliance on the abortion cases would also seem to insulate the opinion from at least some potential criticism for being "activist."

Fired for Blogging? -- California, Louisiana, and South Carolina:

Say that you blog your views about race relations, the Iraq war, or President Bush. Your boss doesn’t like it; he might think that this speech might alienate coworkers or customers, or he might just disapprove of the speech and therefore of you. May he discipline you, or require you to take down the blog?

Well, say that you are in California, Louisiana, or South Carolina, where the law provides:

Cal. Labor Code § 1101: No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities.

Cal. Labor Code § 1102: No employer shall ... attempt to coerce or influence his employees through or by means of threat of discharge ... to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

La. Rev. Stat. § 23:961: [N]o employer having regularly in his employ twenty or more employees shall make … or enforce any ... policy ... preventing any of his employees from ... participating in politics, or from becoming a candidate for public office … [nor] adopt or enforce any ... policy which will ... tend to control or direct the political activities or affiliations of his employees, nor ... attempt to coerce or influence any of his employees by means of threats of ... loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character....

S.C. Code Ann. § 16-17-560: Whoever shall … [discharge from employment] any citizen because of political opinions or the exercise of political rights and privileges guaranteed to every citizen of the United States by the Constitution … thereof ... shall be guilty of a misdemeanor [and subject to civil liability]….

1. The first question you (and your boss) need to ask is: What do “political activities” mean? Is the protection limited to electoral politics, in the sense of participation in political campaigns? If so, your speech probably wouldn’t qualify, unless it’s tied to an active campaign. Or does it cover political speech more broadly, which includes a wide range of commentary about public policy and legislation, as well as about campaigns? Well, it’s hard to tell for sure. Some jurisdictions -- Seattle, Madison, and Champaign -- ban discrimination based on political ideology, beliefs, or affiliation, and expressly define those terms broadly, for instance to include “conduct, reasonably related to … any idea or belief … relating to the purpose, conduct, organization, function or basis of government and related institutions and activities.” But the laws that I describe include no such definitions.

California courts, it turns out, have interpreted “political activities” to include any “espousal of a candidate or a cause,” including broad social movements such as the gay rights movement. Under this definition, the cause of ending the war, of criticizing the President, or of protecting whites against the alleged depredations of other races, would all qualify.

A federal trial court applying South Carolina law, on the other hand, took a different view, limiting “political rights and privileges” to “matters directly related to the executive, legislative, and administrative branches of Government, such as political party affiliation, political campaign contributions, and the right to vote”; displaying the Confederate flag, the federal court said, isn’t included. How will higher courts interpreting South Carolina law and Louisiana law decide this? Hard to tell for sure.

2. A second question: What if your speech undermines the employer’s business, either because it criticizes the employer, or because it’s controversial and makes coworkers and customers angry?

Read literally, the California, Louisiana, and South Carolina statutes have no exceptions for such situations. A Louisiana appellate court actually specifically held that the Louisiana law protects employee speech even when it alienates customers, thus makes the employee “a detriment to his employer.” (A federal district court interpreting California law, suggested that there is an implicit exception “when the employee’s political activities are patently in conflict with the employer’s interests,” citing a California appellate court case on the subject; but it turns out that the cited case doesn’t really support that proposition.) I can certainly see why a court would be tempted to infer an exception from the law, especially by analogy to the rule that government employee speech loses its First Amendment protection when it sufficiently interferes with the employer’s business. But I can also see a court reading the statute literally, as categorically protecting employee speech, just as the Louisiana court did.

3. Finally, you have to pay attention to the specific text of each statute -- but also to the precedents in your jurisdiction (and perhaps in other jurisdictions) that may often depart quite a bit from the text. For instance, the California law applies just to employees, but the California Supreme Court has interpreted the law as prohibiting discrimination against applicants for employment. Likewise, though some of the statutes might be read as applying only to discipline pursuant to an express “policy,” a Louisiana appellate court has concluded (sensibly, I think), that “the actual firing of one employee for political activity constitutes for the remaining employees both a policy [prohibiting the activity] and a threat of similar firings.”

So that’s one kind of statute; in the next few days, I’ll blog about some other kinds. Those who want more details, including more excerpts from the statutory text, and citations to various cases, can find them here.

Related Posts (on one page):

  1. Fired for Blogging? -- California, Louisiana, and South Carolina:
  2. Fired for Blogging? -- Extraconstitutional Speech Protections:

I just finished Steven Hayward's marvelous new book Greatness: Reagan, Churchill, and the Making of Extraordinary Leaders. It is a short, readable, fascinating little book that I highly recommend.

I've read a number of books about (and by) both Churchill and Reagan and still found much new and interesting in Steve's new book. The central purpose of his book, as I take it, uses Churchill and Reagan as case studies to focus on the question of the extent to which great leaders are born versus made. And, more importantly, to the extent that great leaders are made, what is it about their life experiences that "make" them who they are? One good thing about having a central focus on a particular theme is that it permits Hayward to ignore many other factors that turn out to be irrelevant to his central theme, allowing him to move forward through his argument directly. He notes among other things that Reagan quoted Churchill more than any other President.

The first half of the book focuses on their personal backgrounds, examining the factors that Hayward sees as the key elements that formed their characters and intellects. Hayward makes the provocative argument that one key factor for both of them was that they were both largly "self-educated" in economics, history, and politics. Hayward argues that neither of them had overbearing professors telling them what they shouldn't read--a graduate school reading list without the professors telling them why what they were reading was bunk, is the way Hayward puts it. (Hayward notes that Bastiat was a particular favorite of Reagan's). He notes several other similarities, including the fact that they were both party-switchers during their lives, noting that they both claimed that it was more important to change parties in order to remain true to one's principles than the alternative.

The second half of the book turns to an examination of the similarities of the two in outlook and policy. Hayward particularly focuses on the two as bookends of the Cold War--Churchill's "Iron Curtain" speech providing one bookend and Reagan's "Tear Down This Wall" speech providing the other. Very interesting discussion of the views held by both on the essential nature of Communism.

In the end, Hayward concludes that the indvidual capacity for "greatness" is fundamentally about character and that greatness in political leadership manifests itself in the exercise of prudence and judgement in governing. In this sense, I infer from Hayward's argument that there is a link between conservatism, in an Oakeshottian or Burkean sort of sense, and greatness. He seems to suggest that there is an inherent link between political greatness and prudence in leadership that matters at least as much as ideas. Somewhat controversially (in my mind at least), Hayward argues that FDR and the New Deal were actually conservative in nature, which is why Reagan could support it throughout his life without fear of contradiction of his principles (Hayward distinguishes what he sees as the essential conservatism of the New Deal versus the later Great Society of LBJ, and argues that Reagan opposed the latter but not the former). Hayward suggests that liberalism/socialism is grounded in abstract ideas and ideology, rather than prudence and gradualism, thus liberal leaders are less likely to be "great" than is a politician of a conservative stripe. I'm not sure whether that is true, but it is an interesting thesis (and explains why he wants to define FDR as inherently conservative, as he wants to acknowledge FDR as a "great" leader too). Conservatives motivated by abstract ideas would presumably be subject to the same criticism (Newt Gingrich perhaps as an example).

Lurking in the background throughout is Abraham Lincoln. Hayward received his PhD from Claremont Graduate School, and the intellectual influence of Harry Jaffa is fairly clear throughout the book. Hayward notes that many of the similarities shared by Churchill and Reagan were also present in Lincoln. This perspective also seems to motivate Hayward's central idea that the seeds of greatness are planted in individual character rather than political ideology.

Overall, an absolutely delightful and interesting book. For one who has read much about both figures, I still found much in here that I hadn't previously seen (including a number of great quotes) or thought about. But I think it is also a terrific introduction to both figures for those who haven't read much about the two men. In addition, it is short and very well written. I highly recommend it as an addition to your summer reading list.


Some of the Commenters have asked how Hayward defines greatness (p. 17):

What is greatness, especially political greatness? In three thousand years we have not surpassed the understanding of Aristotle, who summed up political greatness as the ability to translate wisdom into action on behalf of the public good. To be able to do this, Aristotle argued, requires a combination of moral viture, practical wisdom, and public-spiritedness. This is exceedingly problematic, as is evident from the difficulty Aristotle has explaining it. One must know not only what is good for oneself but also what is good for others. It is not enough merely to be wise or intelligent in the ordinary IQ-score sense; in fact, Aristotle goes to great lengths to show that practical wisdom "is at the opposite pole from intlligence." One must have moral viture, judgment, and public spirit in a fine balance, and these traits must be euqlly matched to the particular circumstances of time and place. It is easy to go wrong, even with the best intentions.

Some Comments suggest that in describing Hayward's thesis I am implicitly or automatically agreeing with him. I thought it was obvious that I was just describing Hayward's thesis, not necessarily endorsing it, but if so, I do so now.

Fired for Blogging? -- Extraconstitutional Speech Protections:

People have often asked: May a private (nongovernmental) employer fire an employee for blogging things that the employer dislikes?

The First Amendment answer, of course, is that the First Amendment doesn't apply to actions by private employers. Contrary to what some believe, that's true even when the private employer receives substantial government subsidies. Government pressure on a private employer to fire an employee based on the employee's speech may violate the First Amendment. But the private employer's independent decision to fire the employee does not violate the First Amendment, even if the employer is subsidized by the government.

But there's more to the law of speech restrictions than the First Amendment. There are also what I call extraconstitutional speech protections -- protections, secured by state or federal statutes, state constitutions, or state or federal judge-made common law rules -- that go beyond what the First Amendment requires.

Some extraconstitutional speech protections protect people against government-imposed speech restrictions, even restrictions that don't violate the First Amendment. State journalist's privilege statutes are an example. Another is libel retraction laws, which reduce a defendant's libel liability (even liability that is otherwise constitutionally valid). Another is 47 U.S.C. § 230, the statute that immunizes (among other things) Internet service providers from liability for what users say, and bloggers from liability for what commenters say. Other examples are anti-SLAPP statutes, and the media exemption from campaign finance laws.

But other protections, which are often more controversial but still quite important, protect people against private retaliation for speech. A California statute, for instance, often bars private universities and most private high schools from disciplining students for their speech. In some states, owners of private shopping malls are restricted from evicting members of the public who are leafleting, gathering initiative petitions, and the like.

And it turns out that several jurisdictions -- California, Colorado, Connecticut, D.C., Louisiana, New York, North Dakota, Puerto Rico, South Carolina, Washington, Seattle, Madison, Urbana, and possibly Illinois, Montana, Nevada, North Carolina, Pennsylvania, and Wisconsin -- limit private employers' ability to fire employees based on the employee's speech.

The limitations don't provide the same protection that people enjoy with respect to government action. Just because you can wear a "Fuck the Draft" jacket on the street without being prosecuted doesn't mean that you can wear it to work without being fired (even in the jurisdictions I mentioned). You might even be punishable under some circumstances for wearing it outside work. But the protections are substantial, and important, both for employees and for employers. These laws may be criticized, both on libertarian and pragmatic grounds; I hope to post later some thoughts on the policy arguments for and against these laws. Nonetheless, they are the law in their jurisdictions, and are worth discussing whether one agrees with them or not.

Over the next several days, I'm hoping to put up a bunch of posts about various such statutes, and various problems the statutes raise.

Related Posts (on one page):

  1. Fired for Blogging? -- California, Louisiana, and South Carolina:
  2. Fired for Blogging? -- Extraconstitutional Speech Protections:
Ilya Somin, Our New Conspirator:

I'm delighted to report that Ilya Somin, who guest-blogged here a few weeks ago, has agreed to join the Conspiracy outright. Ilya teaches at George Mason University School of Law, where his research focuses on federalism, the Takings Clause, and the implications of popular political participation on constitutional democracy. See here for his list of publications, if you'd like to learn more.

Before going into teaching, Ilya clerked for Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit. And, as I mentioned before, he's also a member of the Not-Vast-or-Even-Nearly-Infinite-But-Getting-Bigger Legal Academic Russkie Conspiracy. Welcome, Ilya!

The Sopranos:

I just came across this brilliant television blog by Tim Goodman, the tv critic for the San Francisco Chronicle. His posts on The Sopranos (this week's episode here) are superb. He pretty much sums up poor Vito's plight, "Though Vito finally makes a play for some personal freedom, you can't help but think it's going to end badly for him just when he finds what he's looking for." Goodman's take on last week's episode is especially good. All of his Sopranos posts are collected here.

HT: Washington Post World Cup Blog (of all places), which gratuitously (and successfully, at least in my case) plugged Goodman's blog the other day.

Tony Kushner to be Honored at Brandeis:

Playwright Tony Kushner is to be receive an honorary degree at Brandeis University, a Jewish-sponsored, nonsectarian university (and my alma mater). Various groups, led by the Zionist Organization of America, are criticizing Brandeis for honoring Kushner, because of his harsh anti-Israel views. The interesting thing, though, is Brandeis president Jehuda Reinharz's response to the controversy:

Brandeis bestows honorary degrees as a means of acknowledging the outstanding accomplishments or contributions of individual men and women in any of a number of fields of human endeavor. Just as Brandeis does not inquire into the political opinions and beliefs of faculty or staff before appointing them, or students before offering admission, so too the University does not select honorary degree recipients on the basis of their political beliefs or opinions.

Over the years, Brandeis has honored hundreds of men and women of distinction whose personal views, I am sure, span the full spectrum of political discourse, and the University applies no litmus test requiring honorary degree recipients to hold particular views on Israel or topics of current political debate.

Mr. Kushner is not being honored because he is a Jew, and he is not being honored for his political opinions. Brandeis is honoring him for his extraordinary achievements as one of this generation's foremost playwrights, whose work is recognized in the arts and also addresses Brandeis's commitment to social justice.

There is an obvious contradiction between Brandeis President Reinharz stating that "the University does not select honorary degree recipients on the basis of their political beliefs or opinions" and his stating that the school is honoring Kushner in part because his work "addresses Brandeis's commitment to social justice."

Moreover, given that Brandeis has officially (and not just in this context) stated that it has a "commitment to social justice," any decision Brandeis makes can be judged in that light. So it's entirely fair, based on Reinharz's own premises, to ask whether Kushner's views on Israel advance "social justice."

Two other points: I've been appalled for some time that Brandeis, allegedly which perceives itself one of the nation's top universities, now includes a "commitment to social justice" in its mission statement. When I was a student there, its much more appropriate motto was (and probably still officially is) "truth even unto its innermost parts." But a precommitment to some particular notion of "social justice" [update: itself an ideologically charged term; why not just "justice"?] can obviously interfere with the pursuit of truth, and a university's mission should be the pursuit of truth, not furtherance of ideology.

Second, while Reinharz claims that "the University does not select honorary degree recipients on the basis of their political beliefs or opinions," Brandeis almost never honors Republicans, and has never, to my knowledge (and I've had correspondence with President Reinharz about this, and he didn't give me any counter-examples), given an honorary degree to anyone more conservative than a moderate Republican.

In sum, it's entirely fair to conclude that Brandeis University does consider the political views of its honorees, but that being harshly anti-Israel (which is apparently consistent with a "commitment to social justice") isn't disqualifying, unlike, say, being a conservative Republican (which apparently is not).

UPDATE: Reader (and fellow Brandeis alum) Mike Feinberg points out that Brandeis offered Jeane Kirkpatrict an honorary degree in 1994, just before Reinharz became president of the university. Prof. Gordon Fellman, in an article in the Boston Jewish Advocate, recounts what happened next:

The movement in question began at a faculty meeting I missed. I was out of town Four Latin Americanists at Brandeis, familiar with Kirkpatrick's influence south of the border, spoke in favor of a motion by one of them, to ask the Trustee to rescind the offer of a degree.

Two days later, I joined colleagues in soliciting signatures to a letter one of them wrote to the Brandeis student newspaper explaining our reasons for protesting a degree for Kirkpatrick. Of about 50 professors canvassed over a weekend, 45 signed the letter, scores more would have had there been time to ask them.

As opposition built, Kirkpatrick, assumedly sensing a lack of support from the university, withdrew. I don't suppose we will see any similar outrage over Kushner, who wrote: "The biggest supporters of Israel are the most repulsive members of the Jewish community." Quite something for Brandeis, a university named after the most important American Zionist, and whose largest financial supporters, are, according to Kushner, "the most repulsive members of the Jewish community." Anyway, given that there is precedent for an honoree withdrawing under public pressure, I don't see how anyone can ask the Zionist Organization of America and its supporters to restrain themselves from putting the same kinds of pressure on Brandeis the anti-Kirkpatrick folks did.

Thomas Jefferson's Love of Dissent.--

Mark Steyn has been tracking down a quotation widely misattributed to Thomas Jefferson: "Dissent is the highest form of patriotism." (Tip to Betsy and Tim Blair)

From my research on Lexis and Westlaw, it appears that Ted Kennedy, John Kerry, and ACLU head Nadine Strossen are quoting views on dissent, not of Jefferson, but of Dorothy Hewitt Hutchinson, a dissenter and strict pacifist who opposed World War II as immoral, but who made a point of ignoring dissent when it was directed toward herself. To her critics and those who dissented from her views, Hutchinson's response was not to "budge one inch."

Here is Steyn in the Chicago Sun-Times on those who are misquoting Jefferson:

John Kerry announced this week's John Kerry Iraq Policy of the Week the other day:

"Iraqi politicians should be told that they have until May 15 to deal with these intransigent issues and at last put together an effective unity government or we will immediately withdraw our military."

With a sulky pout perhaps? With hands on hips and a full flip of the hair?

Did he get that from Churchill? "We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, at least until May 15, when I have a windsurfing engagement off Nantucket."

Actually, no. He got it from Thomas Jefferson. "This is not the first time in American history when patriotism has been distorted to deflect criticism and mislead the nation," warned Sen. Kerry, placing his courage in the broader historical context. "No wonder Thomas Jefferson himself said: 'Dissent is the greatest form of patriotism.' "

Close enough. According to the Jefferson Library:

"There are a number of quotes that we do not find in Thomas Jefferson's correspondence or other writings; in such cases, Jefferson should not be cited as the source. Among the most common of these spurious Jefferson quotes are: 'Dissent is the highest form of patriotism.' " . . .

It was the Aussie pundit Tim Blair who noted the Thomas Jeffefakery. American commentators were apparently too busy cooing that "Kerry may be reflecting a new boldness on the part of liberals to come out and say what they believe and to reclaim the moral high ground on patriotism" (CBS News) to complain that KERRY LIED!! SCHOLARLY ATTRIBUTION DIED!!! Instead, KERRY MISQUOTED!! MEDIA DOTED!!!

Indeed, America's hardboiled newsmen can't get enough of the Thomas Jefferbunk. The Berkshire Eagle used it as the headline for last year's Fourth of July editorial. Mitch Albom of the Detroit Free Press thundered:

"We need to stop slicing this country in half, and saying those who support this act or this politician are 'good' Americans, and the rest are not. Sometimes 'dissent is the highest form of patriotism.' I didn't make that up. Thomas Jefferson did."

Er, no. You made up that he made it up. But former Georgia state Rep. Mike Snow uses it, and Miranda Yaver of Berkeley wore it on a button to the big anti-war demo in Washington last year, and Ted Kennedy deployed it as the stirring finale to his anti-Bush speech:

"It is not unpatriotic to tell the truth to the American people about the war in Iraq. In this grave moment of our country, to use the words of Thomas Jefferson, 'Dissent is the highest form of patriotism.' . . . "

As far as I can tell, it was Nadine Strosser [sic], the ACLU's head honcho, who cooked up the Jefferson fake. At any rate, she seems to be the only one who ever deployed it pre-9/11.

I researched Lexis and Westlaw and found that Nadine Strossen used the fake Jefferson quote several times in the 1990s on Fox News and CNN. The earliest attribution to Jefferson that I found is a June 2, 1991 Boston Globe interview with Strossen:

Q. Shortly after your election as president you told The New York Times you wanted to emphasize the "American" in American Civil Liberties Union. Can you elaborate on that?

A. I think that the ACLU really got a bum rap, in particular from George Bush, during the last presidential campaign when he was able to associate the ACLU in people's mind, first with the "L" word - and I think that's an unfair label, because it is an organization that is not ideological, that is not partisan, that doesn't have a liberal or conservative agenda, but a neutral civil-liberties agenda. But even more, I think there was a suggestion that it's somehow unpatriotic not only to be an ACLU member; Bush went even further and suggested there's something inherently unpatriotic about free speech. That we're in favor of flag-burning, and therefore must be anti-American. And I do think that what Thomas Jefferson said is true, "Dissent is the highest form of patriotism." I don't even think what we do is dissent. We are defending the core rights on which our country was founded. I think that could equally well be described as a conservative foundation, and certainly as a very patirotic foundation for an organization. So that is the bottom-line message I would really like to have come across.

To read about who might have originated the words misattributed to Jefferson, click to

Related Posts (on one page):

  1. More on Kerry on Jefferson on Dissent.--
  2. Thomas Jefferson's Love of Dissent.--
"Nearly Infinite":

An otherwise very good item that I read a while back refers to a certain set of things as "nearly infinite." It then pointed out, as evidence, that there were over 100 elements in that set.

Now that's defining infinity down. Of course, even if there were thirty-seven googol elements, that would still be infinitely far from infinity.

There's no such thing as "nearly infinite." The problem isn't like the asserted (but in my view overstated) problem with "more perfect" (as in "more perfect Union") or "more round." You can get materially more perfect or round than you were before. But so long as something is finite, it's not nearly infinite, no matter how much it grows.

Yes, I know it's a figurative usage. Yes, I know that language isn't mathematics. The mathematician in me just feels entitled to an irrationally hyperliteralistic snit fit now and again.

UPDATE: Reader John Dickinson writes, in an excess of practical good sense, "I think 'nearly infinite' just means that it has nearly the same consequence from the relevant perspective as if the thing were infinite." OK, OK, I suppose that's so. Still: Grrrr.

Anna Nicole Smith Wins This Round of Her Case.--

On Monday, Anna Nicole Smith (AKA Vickie Lynn Marshall) won her US Supreme Court appeal of a 9th Circuit decision against her. (For background on the case, see my February post.)

The U.S. Supreme Court ruled unanimously in her favor. As I had blogged at the time the case was argued, the 9th Circuit's view of the probate exception to federal jurisdiction was so broad that it could not stand.

The majority opinion by Justice Ginsburg does not delineate the scope of any probate exception, but establishes that this case is clearly outside it.

Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.


As the Court of Appeals correctly observed, Vickie’s claim does not “involve the administration of an estate, the probate of a will, or any other purely probate matter.” 392 F. 3d, at 1133. . . .

Furthermore, no “sound policy considerations” militate in favor of extending the probate exception to cover the case at hand. Cf. Ankenbrandt, 504 U. S.,at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no “special proficiency … in handling [such] issues.” Cf. id., at 704. . . .

At issue here, however, is not the Texas Probate Court’s jurisdiction, but the federal courts’ jurisdiction to entertain Vickie’s tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie’s counterclaim against Pierce.


After determining that Vickie’s claim was not a “core proceeding,” the District Court reviewed the case de novo and entered its final judgment on March 7, 2002. 275 B. R., at 5–8. The Texas Probate Court’s judgment became final on February 11, 2002, nearly one month earlier. App. to Pet. for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie’s claim was “core”; nor did it address Pierce’s arguments concerning claim and issue preclusion. 392 F. 3d, at 1137. These issues remain open for consideration on remand.

*  *  *

For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

So Anna Nicole Smith's 88 million dollar US District Court judgment is back to the 9th Circuit Court of Appeals for hearing on appeal, where there are a range of issues yet to be determined.

In his Supreme Court opinion concurring in part and in the result, Justice Stevens argues that the probate exception should be abolished altogether. His opinion ends:

Rather than preserving whatever vitality that the “exception” has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker-Feldman doctrine. See Lance v. Dennis, 546 U. S. ___, ___ (2006) (Stevens, J., dissenting) (slip op., at 2–3).

UPDATE: I'm seeing and reading some odd commentary on this case. A Florida estate and probate blog says:

The Trust Dispute Lawyers are continuing to continue their fight with the Probate Litigation[.] Attorneys will return to Probate Court.

I just saw Dr. Phil opining on Jay Leno that now Anna Nicole will be able to press her case and that it will go to a jury.

I confess that, though estates and trusts is one of my fields, federal jurisdiction is not. But as I read the case, Anna Nicole already has a large judgment in her favor, and Pierce Marshall has an appeal to the 9th Circuit, an appeal that raises many issues that the 9th Circuit needs to decide. While the 9th Circuit could send the case back to the District Court for rehearing, it could also affirm (or overturn) the decision in Anna's favor, without any new trial.

Thus, contrary to the Florida probate blogger, I don't think that there is any "probate court" to "return" to. And, contrary to Dr. Phil's opinion, a jury trial may not be in Anna's future, since she has already had two trials on the merits, and the triers of fact in her case so far have been first a bankruptcy judge, and then (de novo) a federal district court judge.


Monday, May 1, 2006

More on the Penn State Censorship Scandal:

[Welcome Instapundit readers! If you have not been following this story and want some further background information, you can read my previous posts on the subject here. Ironically, Professor Garoian, responsible for censorship in this incident, previously wrote a series of articles condemning censorship of the arts, including at Penn State!]

A very strong statement by the director of the Penn State Hillel, Tuvia Abramson:

Following eight days of misinformation by the School of Visual Arts and the Penn State University spokesman, which resulted in misleading information, I have decided today to issue an official statement as the executive director of Penn State Hillel.

The university is an open market for ideas, creativity, and sometimes debates. Penn State Hillel is a place where Jewish students create, learn debate, grow, and above all feel comfortable to be a Jew. The role of the Hillel Foundation on campus is to educate the community about Judaism, to maintain a high profile so in a case like Joshua Stulman's they will know that there is an organization that supports the students.

The Hillel Foundation, as stated in its charter, must represent the diversity of opinion (religious, cultural, and political) which are found in any Jewish community around the world. Hillel has no political agenda, and as I write this letter today, I have not even seen all of the pictures for Joshua's exhibit.

In my 23 years in Hillel on three different campuses, I have not seen an act so blatant as the act of censorship, discrimination, and anti-Semitism like the one which applies to Joshua Stulman [editor's note: the charge of anti-Semitism seems a bit extreme here, but apparently the Hillel director has been subjected to a flurry of anti-Semitic calls and threats, so you can understand his senstivity to the blame that was put on Hillel].

This was not a single act. This was systematic abuse and intimidation which was applied by the School of Visual Arts to coerce the student and force him to cancel his art exhibition all because of its political content.

The message of Joshua's exhibit was this: When you preach hate, teach hate, and indoctrinate children with hate, you will have terror. When you use the airways and the political system to reinforce hate, you create a mechanism by which these children will learn how and when to destroy innocent life.

This message was blocked by the director of the School of Visual Arts and its faculty without discussion or review of most of the artwork with the student Joshua Stulman. The director issued a statement canceling the exhibit stating the cancellation was based on Penn State's Policy AD42 about Zero Tolerance for Hate and that Joshua's work did not promote a democratic dialogue or cultural diversity.

The second reason stated for canceling the exhibit was due to the sponsorship of Hillel for the reception on opening night.

Both of these statements were false, misleading, and were never discussed prior to receiving the letter of cancellation. They were fake excuses to find justification to shut up the exhibit because of its political content, which did not go along with the political opinion or agenda of Professor Charles Garoian and art lecturer and advisor Robert Yarber.

The mistake was done by the School of Visual Arts, who added insult to injury when Professor Garoian offered to Joshua on Friday night, the Jewish Sabbath, that he could put up his exhibit the next day if Joshua would drop the Hillel sponsorship. Joshua refused to accept the offer of removing Hillel because doing so would validate their denial of applying censorship to the artwork.

All the attempts to set the record straight and to have the School of Visual Arts issue an apology to Hillel for falsely implicating the Foundation. In February, Hillel sponsored an exhibit by the same artist in the same gallery with no issues.

An [RTF] attachment to this e-mail details six weeks worth of correspondence related to this incident.

The Hillel Foundation is thankful to [Penn State President] Graham Spanier who issued a statement against censorship. The Foundation also thanks Stephen MacCarthy for understanding the complexity and his tireless work to resolve this unacceptable situation.

On April 27 Johsua received an email from Professor Garoian, which was to represent an apology, but rather it was just a letter full of excuses.

Nowhere in his e-mail was an apology to Hillel for falsely using its name as an excuse to cancel the exhibit, nor was there a specific apology to Joshua in regard to using the Hate Code as a false excuse to cancel the exhibit.

As of today no public apology to anyone has been issued to the media. Additionally the statement from the university spokesman has not been modified. On the contrary, on April 29 Fox News broadcasted the university spokesman William Mahon as saying that it was only the responsibility of one professor.

The Hillel Foundation feels that the School of Visual Arts needs to come clean. It has given a black eye to the college of Arts and Architecture. It has given a black eye to the entire university, it mislead the media, faculty, staff, and above all it projected the university as an academic center where freedom of expression, academic freedom and freedom of speech is denied because of political correctness.

Is this the image that Penn State would like to promote? I doubt it. The mistake was done by the School of Visual Arts. The university needs to find a way to right the wrong. An investigation is necessary of the faculty of the School of Visual Arts, administration, and anyone else at this university who may have been involved in this act of cancellation and the climate of discrimination.

Attached with this email is a more detailed chronology of events, which I have reprinted "beneath the fold" for those who are interested.


Holy Land "Mitzvah":

In Jewish tradition, it's a "mitzvah" (commandment/good deed) that when someone you know goes to Eretz Yisrael (the Land of Israel), you give him money to dispense to charities there. The first time I went to Israel in 1985, various relatives gave me cash to give away while there. I'll be in Israel once again on in mid-May, and I thought it would be cool to give VC readers who are so inclined to participate in this mitzvah. So if you are so inclined, you can send a dollar to my PayPal account, deliotb [at sign] aol [dot]com, and I'll dispense it during my trip to a nonsectarian charity, most likely the Magen David Adom (Israeli version of the Red Cross).

"Political Dirty-Tricksters Are Using Wikipedia",

"covertly rewriting -- or defacing -- candidates' biographical entries to make the boss look good or the opponent look ridiculous." The story reports some interesting incidents, though it's always hard to tell how widespread such asserted trends are.

CFP Blogging & Privacy Panel

This Thursday I will be speaking on a panel discussing "Blogging and Privacy" at the 2006 Computers, Freedom & Privacy conference in Washington, D.C. As described in the program, the panel will discuss the following:

Blogs make it possible for individuals to reach a greater audience than perhaps any other medium. While a pseudonym offers a person the protection to publish thoughts he otherwise wouldn't, the consequences of blogging through an alter ego can be devastating when his true identity is revealed. Panel participants will discuss the impact pseudonymous blogging has on one's life, the benefits and drawbacks of using a second persona to communicate with the world, and whether it is truly possible to blog anonymously.

Others on the panel will include David Lat of UTR & Wonkette, and Kurt Opsahl of the Electronic Frontier Foundation. Although not listed on the website, I believe Jessica Cutler of Washingtonienne fame will be a panelist as well.

UPDATE: Alas, Jessica Cutler will not be on the panel after all.

One of My Favorite Jokes (?):

Einstein, it is said, was once asked by a layperson to explain how radio works.

"Well," he said, "first I need to explain the telegraph. The telegraph is like a giant cat. The cat's head might be in New York, and the cat's tail in London. You pull on the tail in London, and the cat meows in New York. That's the telegraph.

"The radio is just like that. Only there's no cat."

Alito's First Opinion: Over at my solo blog, I have two posts up about Justice Alito's first opinion, which was handed down this morning: Alito’s First Opinion Gives New Trial to Capital Murder Defendant on Due Process Grounds and Holmes v. South Carolina and Constitutional Theory.
May 1 Is the Annual Day of Remembrance

for Victims of Communism, at Catallarchy. On a related note, Jeff Jacoby writes about Totalitarian Chic:

In January 2005, Britain's Prince Harry attended a birthday party dressed as a Nazi. When the London Sun published a picture of the prince in his German desert uniform and swastika armband, it triggered widespread outrage and disgust. In scathing editorials, Harry was condemned as an ignorant and insensitive clod; months later, he was still apologizing for his tasteless costume. "It was a very stupid thing to do," he said in September. "I've learnt my lesson."

For a more recent example of totalitarian fashion, consider Tim Vincent, the New York correspondent for NBC's entertainment newsmagazine, "Access Hollywood." Twice in the last few weeks, Vincent has introduced stories about upcoming movies while sporting an open jacket over a bright red T-shirt -- on which, clearly outlined in gold, was a large red star and a hammer-and-sickle: the international emblems of totalitarian communism.

And what was the public reaction to seeing those icons of cruelty and death turned into the latest yuppie style? Furor? Moral outrage? Blistering editorials?

None of the above.

[Puzzleblogger Kevan Choset, May 1, 2006 at 12:20pm] Trackbacks
Presidents by the Numbers:

According to what rule have I assigned each President the number listed?

  • Everyone before Coolidge - N/A

  • Coolidge - 0

  • Hoover - 0

  • FDR - 3

  • Eisenhower - 2

  • Truman - 2

  • Kennedy - 1

  • Johnson - 2

  • Nixon - 2

  • Ford - 0

  • Carter - 1

  • Reagan - 2

  • GHW Bush - 1

  • Clinton - 2

  • GW Bush - 2

American Teen Severely Injured in Terrorist Bombing:

16 year-old Daniel Wultz, critically injured in the terrorist bombing in Tel Aviv two weeks ago, is fighting for his life at Sourasky Medical Center.

[Jonathan H. Adler, May 1, 2006 at 10:31am] Trackbacks
I Was Juan Non-Volokh:

As most readers have surmised by now, I was Juan Non-Volokh. I explained my decision to blog under the JNoV pseudonym at the beginning and at greater length in my last post as Juan. As I noted in the latter post, the concerns that prompted my use of a pseudonym were never exclusively (if even primarily) ideological. Nonetheless, I would agree with those who think I was overcautious. My colleagues at Case voted unanimously to grant me tenure this year. However things may have looked in 2002, I have no reason to believe the outcome would have been any different had I contributed to the VC under my own name. In any event, I hope VC readers have enjoyed my posts as Juan, and that you all find my future posts on this site worthwhile as well.

Related Posts (on one page):

  1. I Was Juan Non-Volokh:
  2. Who Is Juan Non-Volokh?
Is Elaine Pagels a Fraud?

Princeton University professor Elaine Pagels is widely quoted in the media as an expert on early Christianity; she is often a sympathetic advocate in favor of bogus documents about early Christianity, whether those bogus documents be ancient (such as the so-called Judas Gospel) or modern (such as The DaVinci Code). Jesuit Paul Mankowski, in his essay "The Pagels Imposture," suggests that Pagels' reputation for expertise is undeserved. Dissecting a Pagels passage about Ireneus (an early church father who wrote an essay against heresies), Mankowski shows that "Pagels has carpentered a non-existent quotation, putatively from an ancient source, by silent suppression of relevant context, silent omission of troublesome words, and a mid-sentence shift of 34 chapters backwards through the cited text, so as deliberately to pervert the meaning of the original." If the Mankowski essay is accurate, then there does appear to be reason for readers to be cautious about presuming the accuracy of the rest of Pagels' writings.


Sunday, April 30, 2006

John Kenneth Galbraith, Dead at 97: The New York Times obit is here.