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Saturday, May 17, 2003


Dating a blogger, reading all about it: From the New York Times.


Not-quite-cutting-edge Big Brother: James Bamford has an article in the Sunday New York Times about satellite photographs and G.P.S. receivers entitled "Big Brother Is Tracking You. Without a Warrant." The article contains this curious passage on law enforcement use of G.P.S. receivers:
. . . Consider the constellation of global-positioning satellites that provide precise tracking information to hand-held receivers. Many people use them to pinpoint their locations while driving, boating or hiking. The president of Colombia, Álvaro Uribe, keeps one on him at all times in case he is kidnapped or is the target of an assassination attempt.
  But the sheriff of Spokane County, Washington, found another use for a G.P.S. receiver. Hoping to discover where a suspected murderer hid his victim, one of his deputies planted a satellite tracking device on the suspect's car. The suspect unwittingly led the sheriff directly to the victim's grave.
  Allowing the police to plant such devices on suspects without a warrant troubles many. "Do we really want the ability to track everybody all the time, without any suspicion, or without probable cause?" asked a lawyer, Doug Klunder, in The Seattle Post-Intelligencer last week. "How close are we to Big Brother?" On Tuesday, the Washington Supreme Court will hear arguments on whether a warrant should be required to secretly track a person's movements using a G.P.S. device.
  Legal testing of this kind will almost certainly continue. As surely and steadily as satellite technology has migrated from the military to the marketplace, so too will its uses be challenged in court.
     Sounds like a novel, cutting-edge legal issue, doesn't it? After all, the Washington Supreme Court is about to decide the question, so this must be newsworthy. Well, it turns out that the is ue isn't exactly new. In fact, the U.S. Supreme Court resolved the legality of such devices under the federal constitution two decades ago, in the cases of United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo , 468 U.S. 705 (1984). In these cases, the U.S. Supreme Court concluded that the government must obtain a warrant to use such tracking devices if the information it will collect is information that otherwise could not be collected from visual observation in public places. Those cases did not involve satellite technology, but the analysis is the same, meaning that the issue is quite well settled under the Fourth Amendment. (Of course, the Washington Supreme Court is free to interpret its state constitution more restrictively, but then it would only impact criminal investigations by Washington state investigators.)


Time to stop bringing Kelley on the family vacation: Today's Washington Post has a story about a 20-year old woman named Kelley Ferguson who faked a terrorist threat on a cruise ship because she wasn't enjoying a family vacation away from her boyfriend. Her thinking (to the extent you can call it "thinking") was that a terrorist threat would cut the trip short; instead, it led to a great deal of panic and her arrest. The best part of the story is the reaction of the woman's parents. An excerpt:
. . . . Her parents, apparently tired of her antics, said after her arrest that they would not post bail even if a judge granted it.
  "She promises not to do it again -- but yeah, right," her mother, Debra Ferguson, a nurse, told the Los Angeles Times earlier this month. She said the family felt terrible that so many vacationers on board the cruise ship had been frightened and delayed. She also called her daughter a "brat."

Friday, May 16, 2003


Call me doctor: I just finished my last law school exam (indeed, probably my last school-based exam ever). It's about time, since I'm almost 30. (Note -- this doesn't mean I'm done with school, as I still have at least a year left writing an economics dissertation, at which point I become a real doctor (O.K., not really a real doctor).) Provided I find convenient Internet cafes and have the time, I expect to be blogging for the next week from Venice and in the following week from Barcelona; then I'm back to Boston to graduate on June 4, and finally I move down to Washington, D.C. for the summer.


Krugman v. Cavuto: OK, so have a look at these two pieces, and ask yourself -- based on these articles (rather than based on your preexisting views about Krugman and Cavuto), who comes across as the more trustworthy? The more worth reading? The more thoughtful? The more mature? Who is the more likely to persuade undecided readers? The more likely to make readers on his side feel good about being on his side? The more likely to make readers on the other side doubt, even a bit, their positions? And if the answer to all or nearly all of these questions is Krugman (column one) as opposed to Cavuto (column two, responding to Krugman), then what was the point of Cavuto's column?

UPDATE: Reader Chris Lawrence writes:
One thing to bear in mind is that Cavuto's "column" is a transcript of (or just the script for) his commentary at the end of his daily T.V. show, while Krugman's column was a genuine newspaper column.

If Krugman had appeared on television, I suspect his commentary would have been more comparable to Cavuto's.
I did not realize this, and I do acknowledge that there's a difference between what works orally and what works in writing. But even taking that difference into account, I think my basic point stands.

A funny thing happened during the Iraq war: many Americans turned to the BBC for their TV news. They were looking for an alternative point of view -- something they couldn't find on domestic networks, which, in the words of the BBC's director general, "wrapped themselves in the American flag and substituted patriotism for impartiality."

Leave aside the rights and wrongs of the war itself, and consider the paradox. The BBC is owned by the British government, and one might have expected it to support that government's policies. In fact, however, it tried hard -- too hard, its critics say -- to stay impartial. America's TV networks are privately owned, yet they behaved like state-run media.

What explains this paradox? It may have something to do with the China syndrome. No, not the one involving nuclear reactors -- the one exhibited by Rupert Murdoch's News Corporation when dealing with the government of the People's Republic.

In the United States, Mr. Murdoch's media empire -- which includes Fox News and The New York Post -- is known for its flag-waving patriotism. But all that patriotism didn't stop him from, as a Fortune article put it, "pandering to China's repressive regime to get his programming into that vast market." The pandering included dropping the BBC's World Service -- which reports news China's government doesn't want disseminated -- from his satellite programming, and having his publishing company cancel the publication of a book critical of the Chinese regime.

Can something like that happen in this country? Of course it can. Through its policy decisions -- especially, though not only, decisions involving media regulation -- the U.S. government can reward media companies that please it, punish those that don't. This gives private networks an incentive to curry favor with those in power. Yet because the networks aren't government-owned, they aren't subject to the kind of scrutiny faced by the BBC, which must take care not to seem like a tool of the ruling party. So we shouldn't be surprised if America's "independent" television is far more deferential to those in power than the state-run systems in Britain or -- for another example -- Israel.

A recent report by Stephen Labaton of The Times contained a nice illustration of the U.S. government's ability to reward media companies that do what it wants. The issue was a proposal by Michael Powell, chairman of the Federal Communications Commission, to relax regulations on media ownership. The proposal, formally presented yesterday, may be summarized as a plan to let the bigger fish eat more of the smaller fish. Big media companies will be allowed to have a larger share of the national market and own more TV stations in any given local market, and many restrictions on "cross-ownership" -- owning radio stations, TV stations and newspapers in the same local market -- will be lifted.

The plan's defects aside -- it will further reduce the diversity of news available to most people -- what struck me was the horse-trading involved. One media group wrote to Mr. Powell, dropping its opposition to part of his plan "in return for favorable commission action" on another matter. That was indiscreet, but you'd have to be very naïve not to imagine that there are a lot of implicit quid pro quos out there.

And the implicit trading surely extends to news content. Imagine a TV news executive considering whether to run a major story that might damage the Bush administration -- say, a follow-up on Senator Bob Graham's charge that a Congressional report on Sept. 11 has been kept classified because it would raise embarrassing questions about the administration's performance. Surely it would occur to that executive that the administration could punish any network running that story.

Meanwhile, both the formal rules and the codes of ethics that formerly prevented blatant partisanship are gone or ignored. Neil Cavuto of Fox News is an anchor, not a commentator. Yet after Baghdad's fall he told "those who opposed the liberation of Iraq" -- a large minority -- that "you were sickening then; you are sickening now." Fair and balanced.

We don't have censorship in this country; it's still possible to find different points of view. But we do have a system in which the major media companies have strong incentives to present the news in a way that pleases the party in power, and no incentive not to.
Since no good deed goes unpunished, leave it to The New York Times to take a shot at me. Not The Times itself, but columnist Paul Krugman, who blasts me for my apparent blatant partisanship.

He writes:

"Neil Cavuto of Fox News is an anchor, not a commentator. Yet after Baghdad's fall he told ‘those who opposed the liberation of Iraq’ -- a large minority -- that ‘you were sickening then; you are sickening now.’"

First off, Mr. Krugman, let me correct you: I'm a host and a commentator, just like you no doubt call yourself a journalist and a columnist. So my sharing my opinions is a bad thing, but you spouting off yours is not?

Exactly who's the hypocrite, Mr. Krugman? Me, for expressing my views in a designated segment at the end of the show? Or you, for not so cleverly masking your own biases against the war in a cheaply written column?

You're as phony as you are unprofessional. And you have the nerve to criticize me, or Fox News, and by extension, News Corporation?

Look, I'd much rather put my cards on the table and let people know where I stand in a clear editorial, than insidiously imply it in what's supposed to be a straight news story. And by the way, you sanctimonious twit, no one -- no one -- tells me what to say. I say it. And I write it. And no one lectures me on it. Save you, you pretentious charlatan.

Let me see if I have this right, Mr. Krugman. Journalists who opposed this war are OK. Those who support it are not. Says who? You?

I'm less of a journalist because I was in favor of this war, but you're more of a journalist because you were not? You imply that by being in favor of this war, I'm pandering, and by extension, my company is pandering to the White House.

Nowhere does it ever occur to you, one can legitimately not agree with you. That doesn't make me less of a journalist. But, Mr. Krugman, it does make you more of an ass. Here's the difference: You insinuated it, I just said it.

Now may I suggest you take your column and shove it?

As you might gather, I'm probably more in Cavuto's political camp than in Krugman's; and I don't agree with Krugman on the the issue about which he writes. But I hope that my side can argue more like Krugman and less like Cavuto.


My favorite jam: I usually like my sweets sweeter than many other people do, but one exception is jam: I find that many American jams have so much sugar that it drowns the flavor of the fruit.

     But I recently found some really fantastic jams from the Mountain Fruit Co. in Chico, California; a local specialty wine store (The Wine House) carries them, and I buy the jars literally by the dozen. (For a while, Trader Joe's used to stock some, too, but they don't seem to any more.) I love the flavor variety -- my favorite are probably the plum and the apricot, two flavors that I generally much like, but even the strawberry and raspberry are delicious, because they taste like actual strawberries and raspberries, and not like sugar. I don't recommend the pear or the fig, but the other stuff is very good. And they're quite modestly priced, for specialty jam: $2.99 for a standard-sized jar (12 oz. or so, I think, but I forget).

     If you ever run across this brand, check them out. They apparently don't have their own Web site, but this page provides a phone number; I called it, and they said that they could ship them for $36 per case of 12, including shipping -- not very convenient for people who just want to sample some, though I might use the number myself in the future. And, no, I don't get a kickback for this, though I should.


Senator Schumer and the Second Amendment: Here's what a Schumer spokesman apparently said a few days ago (thanks to InstaPundit for the pointer):
The Senate's leading gun control advocate, Sen. Charles Schumer -- who's currently pressuring the White House to extend the 1994 assault weapons ban -- travels with an armed bodyguard, has learned. . . .

Sensing a public relations problem in the making, the senator's spokesman explained that his boss "believes in the Second Amendment and the right to bear arms."

"So I don't think there's anything inconsistent about it," he insisted. . . .
And indeed Schumer has expressed this view before, for instance at the Ashcroft confirmation hearings (Jan. 17, 2001):
SCHUMER: Let me ask you a series now, similarly, on gun control. I was very glad to hear that you would support the continuation of the assault weapons ban which Senator Feinstein carried in the Senate and I carried in the House, so it's obviously important to me.

I would just like to ask, in terms of the Second Amendment -- and while some might not believe it, I believe in the Second Amendment. I do not agree with those who think the Second Amendment should be interpreted almost in a non-existent way, just for militias, and then we should broadly interpret all the others. But, just like you can't scream "fire" in a crowded theater, that's a limitation on our First Amendment rights, there are limitations on the Second Amendment as well. And some of my friends believe there should be no limitations, and that's where I disagree with them. . . .
     But what then are we to make of this July 21, 2001 Boston Globe op-ed, cowritten by Senators Kennedy and Schumer, following Attorney General Ashcroft's letter that said the Second Amendment secured an individual right?
On May 17, [Ashcroft] sent a letter to the National Rifle Association contending that the Second Amendment confers an individual right to own guns, not just a collective right to a well-regulated militia.

As support for this contention, he cited four Supreme Court decisions from the 1890s but failed to mention the court's leading decision in 1939 that is clearly contrary to his position.

Moreover, Ashcroft's interpretation of the Second Amendment is diametrically opposed to that currently being advanced by the Justice Department in the pending case of United States v. Emerson, where the department has advanced the position that gun ownership is a collective, not individual, right.

In his letter to the NRA, Ashcroft also articulated a new standard for evaluating gun laws, proposing to require that any restriction on gun ownership be supported by a compelling state interest -- a test that very few laws can survive. Even law professors who otherwise agree with the individual-rights theory acknowledge that the Constitution permits the reasonable regulation of guns. Ashcroft's new Second Amendment theory, however, will strengthen the hand of the NRA and other foes of gun control.

Immediately after we became aware of Ashcroft's letter to the NRA, we wrote to him, asking him to reconsider the changes in gun control policy he was advocating. He has not responded.

Shortly afterwards, two public policy groups, the Brady Campaign and Common Cause, filed an ethics complaint against the attorney general, charging that his letter to the NRA constitutes an ethical breach because it conflicts with the official position of the United States in the Emerson case. According to Samuel Dash, an expert in legal ethics, the attorney general's letter to the NRA constitutes an act of disloyalty to his client, the United States, and an impermissible conflict of interest.

We have also learned that the Justice Department's Office of Legal Counsel is drafting an opinion to make the attorney general's views on the Second Amendment official policy of the government. This would be a radical departure from its longstanding position.
(Here's a copy of Ashcroft's letter.)

     Now I can understand why people might disagree with Ashcroft's constitutional position, and criticize either his acceptance of the individual rights view or his seeming endorsement of the strict scrutiny test (though since then, it's become clear that Ashcroft believes that all federal gun control laws pass the strict scrutiny test). But Schumer apparently doesn't disagree with Ashcroft's view that the Second Amendment secures an individual right, or so Schumer said before and since. He himself rejects the "collective right to a well-regulated militia" view that he faulted Ashcroft for endorsing; and the analogy he gave when explaining what might be proper regulations (the analogy to shouting fire in a crowded theater) is precisely the analogy that Ashcroft uses in his May 17, 2001 letter when explaining what Ashcroft thinks might be proper regulations.

     So Schumer has said he believes in an individual right to bear arms -- but he has also condemned Attorney General Ashcroft for taking exactly the same individual right view, without mentioning that he (Schumer) takes that view, too. A bit odd, no?

     I realize that some might argue that Schumer believes the Constitution secures an individual right to bear arms, but also believes that Ashcroft -- as the lawyer for the U.S. government -- has an ethical obligation to always take the most pro-government, anti-individual-rights view that's plausible under the precedents, in order to maximize the government's chance of winning. But such a theory, which most readers would probably find rather counterintuitive, is certainly not explicitly stated in the Kennedy & Schumer op-ed. And in any event, it would also be contrary to the traditional understanding of the Attorney General's role: An Attorney General is certainly not ethically obligated to always make the most pro-government arguments possible. I also highly doubt that Schumer would express the theory where other constitutional rights were at stake ("I think that the First and Fourth Amendments protect defendant X, but it's outrageous that Attorney General Ashcroft would take the same view that I do; he has an ethical obligation to propose the most pro-government understanding of the First and Fourth Amendments").

     So what exactly is Schumer's position? That "the Second Amendment confers an individual right to own guns"? That it secures "just a collective right to a well-regulated militia"? Or that the Second Amendment confers an individual right to own guns, but that it's wrong for Attorney General Ashcroft to agree with that?

UPDATE: Matt Rustler has another quote from Sen. Schumer, which makes it even harder to figure out exactly what Sen. Schumer's views are.


Details, we want details: The French government has apparently accused the U.S. government of "denigration and lies" about France (thanks to InstaPundit for the pointer):
Bush administration officials denied running an organized campaign to attack France, rejecting a complaint by the French ambassador that the United States is retaliating for their disagreements over the Iraq war. . . .

[T]he French ambassador in Washington, Jean-David Levitte, sent a letter to administration officials and lawmakers complaining about a series of news articles criticizing France, attributed to anonymous administration officials.

The letter is part of an attempt by France to counter ''the untruthful accusations which have appeared in the American press and which have profoundly shocked the French,'' the Foreign Ministry said in Paris.

Levitte cited eight examples of recent news articles alleging French actions to undermine the U.S. war in Iraq, including arms sales and passport distributions. He asked U.S. officials to ''help put an end to these useless polemics.''

''The methods used by those propagating this disinformation have no place in the relationship between friends and allies, who may disagree on important issues but should not engage in denigration and lies,'' Levitte said. . . .
An interesting story, but it leaves open the obvious questions: What exactly are the eight examples? and Are the allegations in those news articles indeed inaccurate? If anyone can point me to a list of the eight examples, or, better yet, a list of the eight examples with some investigation about who's right and who's wrong, I'd love to blog the link. Vague assertions and broad paraphrases of two of the eight items just don't cut it in the cyberspace / The Smoking Gun age.

UPDATE: A reader points to the French letter that has an attachment with the eight examples. Wouldn't it have been nice if the AP story had included the URL? But of course you can't include URLs in wire stories -- it's just not done, and, after all, why would readers want to see actual data when they can read general paraphrases?


Number of Sexual Partners, or Don't Believe Everything You Read in College: Masters, Johnson & Kolodny, Human Sexuality 404 (4th ed. 1992), has a table labeled "Sexual Partnerships Among Homosexuals." Among other pieces of information, this reports that the median number of sexual partners for male homosexuals was over 250 (the numbers were somewhat lower for black males, but the aggregate result seemed to be over 250). Quite a striking result, since for straight males the median number is generally seen as being under 20 (subject to the usual caveats about the difficulty of getting honest answers on these sorts of things). Others have naturally picked up on this, and have even made it part of their explanations of their views of homosexual behavior -- it's a college textbook, after all, and Masters & Johnson at that. If you can't trust them, whom can you trust?

     Well, it turns out that you can't trust them. The source Masters, Johnson & Kolodny cite is "Adapted from Alan P. Bell and Martin S. Weinberg, Homosexualities. Copyright 1978." Already we see one possible flaw -- the data is from 1978 (as careful users of the data point out, to their credit), and it's at least possible that gay behavior changed in some measure because of the AIDS epidemic. (I've heard that it had, though I know of no clear studies on this.) But the real problem is much more serious.

     The Bell & Weinberg book appears to be a detailed and likely useful work; I'm not trying to knock it. But it's based on a study limited to the San Francisco Bay Area in 1970. What's more, the study was done by research assistants trying to recruit subjects through various means -- "such as public advertising, bars, personal contacts, gay baths, organizations, mailing lists, and public places" -- that don't seem likely to produce a random sample even of the gays in the San Francisco Bay Area in 1970. On top of that, this was a self-selected study, which measured only those who volunteered -- doubtless a small, and likely unrepresentative, fraction of those who heard about the study. To its credit, the book stressed (p. 22), that
It should be pointed out that reaching any consensus about the exact number of homosexual men or women exhibiting this or that characteristic is not an aim of the present study. The nonrepresentative nature of other investigators' samples as well as of our own precludes any generalization about the incidence of a particular phenomenon even to persons living in the locale where the interviews were conducted, much less homosexuals in general.
But of course this generalization is precisely what Masters, Johnson & Kolodny engaged in, by presenting their table simply as "Sexual Partnerships Among Homosexuals." And naturally people who read Masters, Johnson & Kolodny infer that the reported data refers to homosexuals generally (or perhaps homosexuals generally in the 1970s) -- as opposed to a self-selected group of homosexuals in the San Francisco Bay area in 1970, a group that might not even tell us anything about "the incidence of a particular phenomenon even [among the] persons living in the locale where the interviews were conducted . . . ."

     The only halfway reliable data on these sorts of issues would come from random samples of the population at large, and of course it's hard to get data about homosexuals from those samples, since they're such a small fraction of the population -- it would take a huge study to get any sort of statistically significant information. The best data that I've seen so far (and I can't claim to have done a thorough survey, but I did do a bit of digging) comes from Laumann, Gagnon, Michael & Michaels, The Social Organization of Sexuality: Sexual Practices in the United States 315 (1994) (early 1990s data, surveying Americans between 18 and 59). According to this study (note that I've rounded some margins of error, and used homosexuality as defined by "Any same-gender partners in past 5 years," an arbitrary choice), here are the averages:
Partners in Last YearPartners in Last 5 YearsPartners since Age 18
Straight men1.7 +/- 0.34.8 +/- 0.616.9 +/- 3
Gay and bisexual men2.9 +/- 0.816.7 +/- 726.6 +/- 11.5
Straight women1.3 +/- 0.12.2 +/- 0.25.2 +/- 0.6
Lesbian and bisexual women5.7 +/- 710.1 +/- 919.9 +/- 10.5

Naturally, this data may be subject to the usual problems caused by respondents misreporting information (people often titter about the vast mismatches between the number of female sexual partners claimed on average by men, and the number of male sexual partners claimed on average by women -- some of this may be explained by the presence of relatively unsurveyed outliers, such as female prostitutes, but I'm told that much of it can only be explained as, er, misstatements by men, women, or both). Moreover, because there are relatively few homosexuals in any random sample, the margins of error (at the 95% confidence interval) are huge. Still, we do see (1) a pattern of gay men apparently having on average quite a few more partners than straight men (the differences in two of the cells are statistically significant), and lesbians having quite a few more partners than straight women, though about as many as straight men (the differences in one of the cells are statistically significant), and (2) gay men having far fewer sexual partners than reported by Masters, Johnson & Kolodny. Also (and this is an UPDATE from the original post), these are averages, not medians; the medians will very likely be considerably lower.

     Very little of this, of course, is definitely accurate. It's possible that the Laumann et al. study was flawed, and that the numbers are closer to those reported by Masters, Johnson & Kolodny. But one statement is definitely accurate: There is no reason whatsoever to trust the numbers that Masters, Johnson & Kolodny report, which are based on a geographically limited, self-selected sample, reported in a study that specifically warned against the generalization that Masters, Johnson & Kolodny engaged in.


When Did a Presumed-Dead Person Die? A fun little opinion released this morning by the U.S. Court of Appeals for the D.C. Circuit answers the following question: If a person who disappears without a trace is presumed dead after seven years, is there a presumption that the person was alive during that time? Answer: Not in the District of Columbia. Why does this matter? In the case at hand, the estate of a person who disappeared sought payment of surviving spouse benefits during the period between the her disappearance and the legal declaration of her presumed death. The district court said no dice, and the D.C. Circuit agreed in an incredibly short (4 pages, including heading material) opinion.


"First thing is I'm an American": My fellow libertarian constitutional law professor David Bernstein writes:
Arturo Moreno has bought the California Angels. Not especially interesting in and of itself, but here's a notable outtake from the New York Times story on the sale:
Both [baseball commissioner] Selig and Moreno played down the fact that Moreno is the first Hispanic, or even member of a minority group, to buy controlling interest in a Major League Baseball team. There's even some question whether Moreno can be considered a minority-group member. He is of Mexican descent, but as he said: "I'm fourth-generation American. First thing is I'm an American'' He was born and raised in Tucson and has homes in Phoenix and Southern California. "I'm proud of being a Mexican-American, but as far as being a first minority," he added, he didn't place any significance on that. "I think we're all Americans. Most of us are immigrants from someplace, and I think we always try to do our best being an American."
. . .


Technorati: I'm sure many of you -- especially those who have your own blogs -- are familiar with this, but in case you aren't, I thought I'd pass this along. Technorati is a nifty way to find out who's linking to you, and how they're responding to your posts; just go to the page, enter your URL and then click on "Get Link Cosmos." (You can then bookmark the resulting search page to rerun the query in the future, though I sometimes find that I need to wipe out my local Web page cache in order to have that work -- I don't know why.)


Citing them citing me: Yesterday a panel of the Ninth Circuit filed an amended opinion in a habeas case, Ford v. Hubbard. The original opinion had been filed back in September 2002. Since then, another Ninth Circuit panel had decided a case called Kelly v. Small that apparently relied in part on the original panel opinion in Hubbard. In the amended opinion, Judge Reinhardt (joined by Judge Pregerson) among other things added citations to Kelly v. Small for additional support. I have no view about the merits of the majority opinion, but Judge Silverman's response in dissent to the added citations seems noteworthy:
The majority's reliance on Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), is simply bizarre. The amended Kelly opinion was filed after the original opinion in this case (Ford) and relies on the original Ford opinion for support. Id. at 1070-71. Now, in its amended opinion, the majority in this case (Ford) relies on Kelly, which in turn relies on Ford. The wacky circularity of all of this does not change the fact that it was the Ford majority in this case that originally cooked up the rule on which the Kelly court relied, and with which I respectfully disagree for the reasons I've given.

Thursday, May 15, 2003


More on pronouns and possessives: Prof. Geoffrey Nunberg (Stanford University Department of Linguistics) writes:
Someone pointed me to your postings on this business. I can't tell exactly where this rule originated, but its most influential modern locus is Wilson Follett's 1966 Modern American Usage. In the article on "antecedents," Follett says (I've used quotation marks for his italics):
A noun in the possessive case, being functionally an adjective, is seldom a competent antecedent of a pronoun: "On F's arrival from Virginia at La Guardia Airport last night, he denied to reporters that..." "F." would legitimately lead to "he"; "F's" cannot. Reconstruct, then: "F, on his arrival, denied..." (Of course a possessive noun can be the antecedent of a possessive -- i.e., an adjectival--pronoun: "F's denial was made on his arrival.")
The rule is repeated in Jacques Barzun's 1985 Simple and Direct and John Simon's 1980 Paradigms Lost.

Follett's occasional good sense abandoned him here. The rule is a perfectly absurd concoction, which grows out of a basic confusion about parts of speech (no, possessives are not adjectives, which is why you can't say "It looks John's," for example). It's probably based on a false analogy to sentences like "In the old days no shark fishing took place, and they were caught only occasionally," which Follett condemns with perhaps more justification. As you point out, a sedulous conformity to the rule would require one to avoid the most elementary sentences of English -- for example "Hamlet's mother loved him."

Webster's Dict. of English Usage cites other examples, among them:
"It was Mr Squeers's custom to call the boys together and make a sort of report...regarding the relations and friends he had seen" (Dickens, Nicholas Nickleby)

"...shaking Snooks's hand cordially, we rush on to the pier, waving him a farewell." (Thackeray, The Book of Snobs)

"Stafford's enemies were in deadly earnest, because while he lived they and all they strove for were in jeopardy." (G. M. Trevelyan, A Shortened History of England)
Anyway, the whole story testifies to the degree to which the rules of "correctness" have been detached from their connection to reason and have become the aracana of an infantile game of "gotcha." But maybe it's the PSAT's fault for going there in the first place . . . .


Answers to the Fourth Amendment trivia contest: I received lots of great answers to this morning's Fourth Amendment trivia contest. Here are my winners, along with some explanations. (Oh, and in case you're wondering, yes, I do realize that these are my subjective answers based on my subjective standard. Actual mileage may vary. Void where prohibited.)

     Drum roll please....

     1) The award for the Supreme Court opinion that had the greatest impact in terms of expanding the scope of privacy protections goes to: Mapp v. Ohio, 367 US 643 (1961). Mapp totally revolutionized the scope of the Fourth Amendment by concluding that the Fourth Amendment's suppression remedy to the states. Criminal law is predominantly state law, and before Mapp the Fourth Amendment didn't have much to say about the overwhelming majority of criminal investigations in the U.S. performed by state and local investigators, not the feds. Mapp changed everything: suddenly the panoply of Fourth Amendment protections applied to every investigation, not just the rare case that happened to be a federal investigation.

     Several people responded that the answer should be Katz v. United States, 389 U.S. 347 (1967), but I disagree. The majority opinion in Katz is a result in search of a rationale. The opinion doesn't actually explain why Katz had Fourth Amendment protection in the phone booth, other than to point out that pay phones are really rather important, so Katz "surely" was entitled to Fourth Amendment protection in a pay phone booth. Granted, the Supreme Court later picked up Justice Harlan's concurrence in Katz as the governing Fourth Amendment test. However, that test isn't from the majority opinion. Plus, in practice the Supreme Court has interpreted the Fourth Amendment post-Katz in a strikingly similar way to how it interpreted the Fourth Amendment pre-Katz. Katz is more of a revolution on paper than in practice, whereas Mapp v. Ohio is a true revolution. And indeed, Volokh Conspiracy readers were all over that: the majority who wrote me correctly concluded that Mapp is the winner to question (1).

     2) The award for the Supreme Court's Fourth Amendment majority opinion that most expanded the scope of law enforcement power goes to: Warden v. Hayden, 387 U.S. 294 (1967). Hayden buried the "mere evidence" rule that had limited the scope of search warrants. Under the "mere evidence" rule, the government could only get search warrants to obtain contraband, instrumentalities of crime, or the fruits of crime-- basically all stuff that a defendant had no legitimate property right to claim in the first place. Justice Brennan's opinion in Hayden concluded that the government could also get search warrants to seize evidence of crime, dramatically expanding the scope of law enforcement power. After Hayden, if the police have probable cause to believe that there is evidence of a crime somewhere, they can get a search warrant and grab it, no matter how minor the crime or how personal the item to be seized or the place to be searched. No safe havens allowed under the Fourth Amendment.

     Several readers argued that United States v. Leon, 486 U.S. 897 (1984) should be the winner here. Leon held that suppression is not an available remedy if the government relies in good faith on a defective warrant. Leon has had an enormous impact on the litigation of Fo rth Amendment cases; it has made challenging a search warrant an uphill climb, to put it mildly. However, it didn't so much grant power to the government as it took the heat off the scrutiny that warrants had traditionally received. An important case, but to my mind not on the scale of Warden v. Hayden.


Judicial Watch sues Senate over filibuster: Here's the complaint.


The Internet: Judge Kozinski e-mailed to me a cute line, which I tracked down to a 1998 Chicago Tribune piece by Eric Zorn:
The Internet is a bathroom wall.
Here's Zorn's further explanation:
Consider: Anyone can write anything on a bathroom wall. There's little accountability on a bathroom wall. It's hard to tell who wrote what on a bathroom wall. Truth looks just like rumor on a bathroom wall. Great stuff is interspersed with awful, stupid stuff on a bathroom wall.

Most people know instinctively not to offer as verification or a point of information the phrase "Well, you know, I read on the bathroom wall that. . ." Yet far too many seem willing to lace their discourse and communications with "facts" gleaned from bulletin boards, e-mail and Web sites.
The sad fact, which I've noted in many posts over the past year (and even setting aside egregious examples like the Jayson Blair affair), is that most media turn out to be a bathroom wall, too. An exaggeration, but less of an exaggeration that I'd like it to be.


Assisted suicide, and more: Sub Judice (May 14, 7:36 pm post) discusses Russell's post, and also explains how I just barely avoid very serious legal trouble.


How law professors really feel this time of year: Jeff Cooper captures it nicely.


Burning Glass: First John Miller reads Fahrenheit 451, and then he calls for book burning.


Worst. Tax cut. Ever. There are excellent arguments for abolishing the double taxation of dividends, though it really ought to be done at the corporate level, not at the individual level. There are Keynesian arguments for countercyclical tax cuts-- implemented to speed growth up and then rescinded during the other half of the business cycle. These might take the form of tax cuts implemented for, say, three years and then repealed.

But I can't make out any argument for the Senate's proposal: a three-year repeal of the individual income tax on dividends. Yes, I understand the combination of political events that brought the Senate to this pass. I understand that in some sense this is a bill meant to be torn up in conference committee. But we still have Senators talking as though this were a coherent proposal on its own terms.
Mr. Nickels said criticism of the four-year provision as a gimmick was "hogwash." He said the period would be a good test for the president's plan.

"If I'm wrong, and the stock market doesn't have any positive effect, if this is not a positive thing for the economy, we'll know it after three years," he said. "For me, it makes sense to try it."
This is, as far as I can tell, nonsense. The arguments in favor of repealing the dividend tax have to do with removing distortions from the capital markets and from the incentives faced by corporations, and with improving tranparency in corporate accounting. Removing distortions from the capital markets is a good thing for long-term growth. This tax cut is not a short-term stimulus, still less a short-term stimulus to the stock market. The desirable effects that it is supposed to have would all be defeated by a three-year sunset clause; corporations aren't going to restructure their debt practices, their dividends vs. stock buyback practices, for such a short-term provision. If one wants to go the Keynesian route, then the taxes to cut aren't those that have to do with capital allocation and corporate governance. I think it would be better to have a coherent supply-side tax cut (say, a small permanent reduction in the capital gains tax) or a coherent Keynesian cut (a three-year increase in personal exemptions) or a combination of the two or... well, anything that at least might be intelligible. Instead, Senators are voting for something that no one's theory or argument predicts will do anything useful.


Actual grammar authority: Reader Alice Marie Beard (a George Mason law student) points to The Columbia Guide to Standard English, which actually deals with this very issue:
Milton's blindness forced him to dictate to an amanuensis. Some have argued that a personal pronoun such as him in the example cannot have a noun in the genitive case (Milton's) as its antecedent; they insist that only a genitive pronoun with noun will work: Milton's blindness forced his dictation to an amanuensis. But there is nothing wrong with the example using him: we know that it refers to Milton, and although the logic may be imperfect the common sense of the grammar prevails. Occasionally, especially when the pronoun is who or whom instead of whose (A prodigious piece of work was Johnson's dictionary, who now gets credit for a one-man effort), the resulting sentence will be awkward regardless of whether the pronoun is genitive or something else. But otherwise you may comfortably use a noun in the genitive case as antecedent for a pronoun in any case.
So at least this attests to the existence of a controversy, which might be reason enough for the PSAT to throw out the question. But I wonder how credible the "some" who "have argued" this are; and in any event, this is further evidence that, contrary to the Standard, it's not accurate to say that "the sentence has been proven to contain an error of grammar."

     If you smell an agenda in my argument here, you're right. I do wish that before people claim (even in an aside) that some phrase is Grammatically Wrong, they check the sources, and consider the possibility that the phrase is merely inelegant, or is condemned as wrong by some authorities while defended by others -- or maybe is even perfectly fine.


Fourth Amendment trivia: Okay, Fourth Amendment fans out there, here are two questions: 1) Among Supreme Court decisions interpreting the Fourth Amendment, what is the majority opinion that had the single greatest impact in terms of expanding the scope of Fourth Amendment privacy protections? 2) What Supreme Court Fourth Amendment majority opinion has had the greatest impact in terms of granting more power to the government and effectively lessening the scope of privacy protections? E-mail your answers to me (with a short explanation if you think it would be helpful) at okerr at I'll post the best answers later today.


Grammar: Reader David Rorhbacher writes, apropos the Toni Morrison sentence grammar brouhaha:
I find it impossible to believe that any grammarian or grammar book has ever promulgated such a ridiculously untrue rule. English follows the rule found in Latin for the relative pronoun: "The pronoun agrees in number and gender with the antecedent; its case is determined by its function in the relative clause."

A couple examples:

"A jest's prosperity lies in the ear
Of him that hears it" (Love's Labour's Lost V.ii)

"Every subject's duty is the king's; but every
subject's soul is his own" (Henry V, IV.i)
So, as I mentioned, it does seem a bit odd to say (about "Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured") that "the sentence has been proven to contain an error of grammar."


American government's Arabic-language Radio Sawa project seems to be working: It's impossible to tell just how much of an effect it's having, but at least it appears to be bringing in the listeners. From Melissa Seckora in The Hill:
Mid-East TV was envisioned as a TV version of Radio Sawa, the star of the U.S. public diplomacy effort. The approach is to reach the largest audience as quickly as possible and keep it tuned in.

Launched in the months after the Sept. 11 attacks, Sawa took only three months to become the most-listened-to station in eight Arab countries, reaching 10 times the number of people Voice of America (VOA) had reached in 50 years.

The station broadcasts top-10 American and Arabic pop tunes, local cultural and sports headlines, Bush’s weekly radio address, and other important speeches by high administration officials including Defense Secretary Donald Rumsfeld.

Sawa has, however, received a fair amount of criticism -- much of it from within the VOA establishment. There have been complaints that Sawa plays too much music and not enough news, is insufficiently pro-Palestinian, and criticizes the Arab world too much.
As to the claims in the last sentence, perhaps "that's not a bug, that's a feature."


Blawg search: seems to be a search engine focused only on law-related blogs. Thanks to reader James Foster for the pointer.


Farther and further: A reader writes, apropos my post below:
Eugene, you write:
Is it really a grammatical error to say, for instance, "John's legs couldn't carry him any further"?
I'd say yes -- because it should be "farther" (physical distance) rather than "further" (greater in metaphysical extent or degree). . . .
     Another false arrest by the Language Police, it seems to me, and on their own prescriptivist terms. The very first definition of "further" listed in my New Shorter Oxford is "To or at a more advanced point in space or time; = farther." (The second definition also fits the way I used the word: "Beyond the point reached, to a greater extent, more.") Merriam-Webster Online says, as the first definition, "FARTHER 1 ." (Thomas Hardy is on my side, so far no-one on the side of the Language Police.) My Webster's Dictionary of English Usage notes the controversy, but says that "both farther and further are in flourishing use whenever spatial, temporal, or metaphorical distance is involved," citing, among others Mordechai Richler and Graham Greene.

     The American Heritage online writes:
Since the Middle English period many writers have used farther and further interchangeably. According to a relatively recent rule, however, farther should be reserved for physical distance and further for nonphysical, metaphorical advancement. Thus 74 percent of the Usage Panel prefers farther in the sentence If you are planning to drive any farther than Ukiah, you'd better carry chains, and 64 percent prefers further in the sentence We won't be able to answer these questions until we are further along in our research. In many cases, however, the distinction is not easy to draw. If we speak of a statement that is far from the truth, for example, we should also allow the use of farther in a sentence such as Nothing could be farther from the truth. But Nothing could be further from the truth is so well established as to seem a fixed expression.
Likewise, Garner's A Dictionary of Modern American Usage says that "In the best usage, farther refers to physical distances, further to figurative distances." So there are two authorities, of the five that I've checked, that points to what is basically a usage preference. (Note, incidentally, that the American Heritage Usage Panel was given starker examples than the one I used -- "couldn't carry him any further" focuses not just on distance traveled, but also on progress within a process, something that's logically between their two examples.)

     So, no, I don't think that "John's legs couldn't carry him any further" is an error, grammatical, lexical, or, I would say, even as a matter of usage.


The Toni Morrison sentence: Some of the Weekly Standard's criticisms of the PSAT's "Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured" sentence may be apt. I can't speak to the quality of Morrison's work, but I agree that the sentence is imprecise -- presumably the authors meant to say that her genius enables her to create what they see as "great novels that arise from . . ."; it doesn't take genius just to create "novels that arise from . . . ." Much depends, then, on whether you see the PSAT's use of a sentence as endorsing the views in the sentence, which in turn probably depends on, among other things, what the other sentences were. But that's not what I'm concerned about.

     Rather, what I love is a good debate about language, and specifically the alleged grammatical error in the sentence:
The word "her," [Kevin Keegan, a Montgomery County high school journalism teacher] posited, was improperly referring to "Toni Morrison's," so the answer should have been "A," signifying a mistake in "her to create." Many grammar manuals insist that a pronoun such as "her" should refer only to a noun, not, as in the case of the possessive "Toni Morrison's," an adjective.
The Weekly Standard says that therefore "the sentence has been proven to contain an error of grammar."

     Is this really so? The word "her" is clearly referring to "Toni Morrison," not to "Toni Morrison's." The asserted rule must be that a pronoun cannot refer to the noun portion of a possessive -- but I've never heard of any such rule. Is it really a grammatical error to say, for instance, "John's legs couldn't carry him any further"?

     I'm not making a descriptivist argument here -- even applying a prescriptivist approach, I'm unaware of any prescription that forbids this. Can any grammar experts out there e-mail me a quote from a grammar book that expresses this sort of rule? (No need for tales of what one was once taught, or logical arguments -- I'm looking for explicit quotes from the acknowledged Authorities.)

     Incidentally, I agree with Keegan's statement that "if you have a rule that in two grammar books contradicts itself, you either don't test it or you accept both answers." I've just never heard of such a rule, and would like to learn more about it.

     Finally, note that if the grammar books do contradict themselves -- also the view of the Post, which simply speaks of what "[m]any grammar manuals" say -- then I'm not sure that it's right to say that the sentence has been "proven to contain an error of grammar." The existence of a controversy doesn't prove that there's an error in the sentence, though it might show that there's an error in the decision to use this particular sentence on the test.

UPDATE: Sambal shares my view, with more details.


The birds and the bees: Aren't you glad that your parents didn't explain sex to you by really telling you about the birds and the bees? "Now, daughter, think of yourself as a bee. There's a 99.99% chance that you'll never get any, and instead of developing an extensive reproductive system, you'll get to have a stinger and a venom pouch. But there's a tiny chance that you'll be a queen bee, which means you'll be really huge, and all these male bees will mate with you."

     "Son, you have to find the queen, the one all the other boys want to mate with. Then you'll have sex with her, and your penis will fall off and stay in her body. Then you'll die. Oh, before you have sex with her, make sure you take the other guy's penis out of her first." "No wait, daughter, actually, think of yourself as a bird. That means you've got a single cloaca, through which your urine, feces, and eggs go out, and the male's semen comes in. Just remember that, and you'll be OK."

     Good thing I learned about sex through the "S" volume of the encyclopedia instead.


Grading the PSAT: What is wrong with the following statement?
"Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured."
David Skinner explains.


Judicial Nominations -- The Issue Behind the Debate: Juan is right about what the increasingly bitter judicial nomination wars are about. The important question, though, is whether it is appropriate for senators to block a president's nominations just because (1) they have the votes to avoid cloture, and (2) they don't like the nominee. I used to think that these maneuvers were very bad behavior, inconsistent with a civil political dialogue and proper respect for the opinions of others (especially others able to win election as president). But I've changed my mind. The Senate's "advise and consent" power plus the filibuster and cloture procedures allow the minority party to block nominees that they don't like, and they ought to exercise that power. The Democrats are now accused of "playing politics" with Estrada, and of course they are. The Republicans were accused of the same when they stalled Clinton nominees, and of course they were. But presidents play politics as well when they make appointments. The bilateral monopoly situation (neither side can get a judge appointed without the other) should ensure that either (a) presidents appoint only judges that everyone can live with, or (b) presidents must make concessions on some nominations in order to get their favorite candidates confirmed. Either way, the country gets a more balanced judiciary than it would if the Senate played doormat, and one that is institutionally situated to protect the country against whiplash caused by the violent and constantly changing winds of majoritarian politics. Winning 51% of the electoral votes should not entitle a president to fill 100% of judicial openings with extremists of his liking, and the Senate should act with this in mind. It would be a better world, however, if both parties (i.e., the Republicans during the Clinton administration and the Democrats now) would own up to what they're doing rather than to pretend they are above politics.

     Some observations on the negotiation dynamics of this situation: looking only at a particular showdown between the opposition party in the Senate and a president, the opposition should actually have the upper hand in the bargaining, because it can wait out a president's term if he refuses to compromise. In other words, the opposition can be more patient and hold out for a favorable deal, because the president's term is limited but the opposition isn't going anywhere (note: this logic does not necessarily apply if the opposition could realistically fall below 40 seats in the Senate). But because the tables can (and eventually will) turn in the future, the opposition needs to be careful in how vigorously it exercises this leverage; otherwise, payback is inevitable, and a never-ending series of reprisals and counter-reprisals can be touched off. Sound familiar? (No, I'm not referring to the Israeli-Palestinian conflict or ethnic warfare in the Balkans, although I might as well be.) Bush is getting what the Republicans had coming...or did Clinton reap what the Democrats sowed in the Bork hearings? After a while, it doesn't matter who started it. It is a fight neither party can win decisively, and in the meantime everyone is made worse off when seats are left open indefinitely, courts are overworked, and justice is delayed or denied. Someone -- or, more likely, someone on each side of the aisle -- needs to step up and end the blood feud and substitute a cooperative equilibrium. Any candidates?

Wednesday, May 14, 2003


Judicial Nominations -- The Real Debate: The more I read efforts to justify the filibuster of President Bush's judicial nominees -- that is, efforts that seek to provide a genuine defense, rather than pretend the filibusters are about whether Miguel Estrada answered enough questions -- the more I realize that the arguments all boil down to "We dislike your nominees more than you disliked ours." At bottom, there's nothing else to it.


Too Many Boats, Too Few Fish: There are many over-hyped and over-exaggerated environmental scares, but this is not one of them. Over-fishing is a severe environmental problem the world over, and it is only getting worse. Government regulations have utterly failed to prevent the "tragedy of the commons" in marine fisheries. In country after country, governments would rather subsidize the destruction of marine fisheries than adopt the fishery management systems that have been shown to work.


Legal Arguments over Physician-Assisted Suicide: I know this may not be the nicest way to welcome our newest contributor, but I must take partial exception to Russells maiden post. As a matter of constitutional principle or public policy, I agree wholeheartedly that the federal government has no business interfering with Oregons decision to legalize doctor-assisted suicide. Allowing a diverse array of policy choices across the fifty states is part of what federalism is all about. I also concur that in seeking to squelch Oregons policy choice, Attorney General John Ashcroft has shown himself to be a fair-weather federalist (much like Congressional supporters of a federal partial-birth abortion ban and EPA Administrator Christie Whitman, among others). But where I must part company with my new co-blogger is in his characterization of the Justice Departments legal case as "more outrageous" than the political inconsistency of its position.

Contrary to Russell's suggestion, the Justice Department has a reasonably strong legal case. As Russell notes, under the Controlled Substances Act (CSA) the federal government may revoke a doctor’s license to prescribe drugs if that doctor dispense prescriptions for something other than "legitimate medical purposes." While it is the general understanding that this provision is aimed at drug trafficking, that is not what the statute says. Nor is it self-evident that the set of non-legitimate medical uses is confined to illegal sale and distribution. Whereas Russell may feel that prescribing drugs to assist a suicide is "legimate" -- and whereas I may feel that each state should have substantial leeway in defining "legitimate" medical purposes for its citizens -- this is also not what the statute says. This puts Oregon in a bit of a legal bind.

Insofar as “legitimate medical purposes” is vague, this gives the federal government the upper hand in litigation. Where statutory language is not clear on its face, federal courts are required to defer to the reasonable interpretation of the phrase by the implementing federal agency – in this case the DEA (which is part of the Department of Justice). So long as the agency’s interpretation is reasonable – that is, not clearly contrary to the statutory text – whether Oregon has a better interpretation of the relevant language is immaterial. Thus, while Russell and I might not like the DEA's interpretation – and may believe it is contrary to federalism principles, historical practice, and Congressional intent – the Justice Department is on strong legal ground when it asserts federal authority over the CSA's interpretation. (I am assuming for this argument that the CSA is itself constitutional -- a reasonable assumption under current precedent, if not from first principles.)

Let me be clear that I think Oregon has strong legal arguments – Nelson Lund made a powerful case in the February 2002 Commentary (not available on-line) - but they are anything but a slam dunk. Indeed, if I had to make a prediction, I am sorry to say I expect Oregon will lose (if not before the Ninth Circuit, than before the Supreme Court). In any event, the Justice Department’s legal arguments are fairly strong, and certainly not "outrageous."


Maureen Dowd quotes Bush badly out of context: Andrew Sullivan points this out. Dowd wrote:
Busy chasing off Saddam, the president and vice president had told us that Al Qaeda was spent. "Al Qaeda is on the run," President Bush said last week. "That group of terrorists who attacked our country is slowly but surely being decimated. . . . They're not a problem anymore."
Bush actually said:
Al Qaeda is on the run. That group of terrorists who attacked our country is slowly, but surely being decimated. Right now, about half of all the top al Qaeda operatives are either jailed or dead. In either case, they're not a problem anymore. And we'll stay on the hunt. To make sure America is a secure country, the al Qaeda terrorists have got to understand it doesn't matter how long it's going to take, they will be brought to justice.
Bush is certainly not saying that "They" ("That group of terrorists who attacked our country") "[a]re not a problem anymore." Rather, he's saying that "they" -- the "about half of all the top al Qaeda operatives [who] are either jailed or dead" -- aren't a problem. The "either case" seems to refer to the "jailed" and the "dead," especially since Bush goes on to acknowledge that there are others who are potentially a problem: "[W]e'll stay on the hunt. To make sure America is a secure country," the remaining ones have to be caught (an acknowledgment that if we don't catch them, we won't be secure).

     Not exactly candid journalism from Ms. Dowd.


Minuteman stays: The AP reports:
The University of Massachusetts, amid widespread opposition to its proposed adoption of a new mascot, has decided to keep its Minuteman logo, school officials announced Wednesday.

Athletic Director Ian McCaw had said that sales of souvenirs bearing the Minutemen have dropped over the past decade. A design firm hired by the school suggested sales might be revived by the creation of a new symbol for the school.

McCaw also said there were "gender, firearms and ethnicity issues" with the Minuteman. Women's sports teams at UMass are known as the Minutewomen. . . .

The student government association condemned the idea and called for a student referendum. Alumni reaction to the proposed change was largely negative. . . .
The end of the story points out that souvenir sales apparently declined at the same time that the team stopped winning, so there might be more going on here than the public suddenly souring on Minutemen.

     Thanks to The Bitter Ms. Canine for the pointer.


Sauce for the goose: Reader Bruce Bartlett, writes, apropos my post about lawsuits against newspapers below:
I certainly agree that a lawsuit against the New York Times over the Blair affair would have no merit. But I disagree with your view that such suits should not be filed. Let the Times feel what most other businesses in the US have to put up with for a while and maybe it will influence their editorial opinion on tort reform. I say, sue the crap out of them.
Well, now that you put it that way . . . .


The Easterbrook opinion really is very good: And, after of the discussion of the defendant's, er, zaniness, comes this gentle and quite proper admonition to the trial judge:
Counsel for James contends that the district judge violated the first amendment by excluding from the courtroom any spectators whose religious beliefs require them to cover their heads. Because James himself did not seek to wear any form of head covering, he lacks standing to raise this contention. None of the spectators was held in contempt, and none has sued seeking a declaratory judgment. But although this appeal does not present an Article III case or controversy on this issue, the judicial branch has an interest in the prudent handling of public relations, and no formal controversy is needed to say a few words on the topic.

The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, see Employment Division v. Smith, 494 U.S. 872 (1990), and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). See Goldman v. Weinberger, 475 U.S. 503 (1986). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement. Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority’s. The best way for the judiciary to receive the public’s respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating. It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.
(I take it that the "entitled" doesn't necessarily mean constitutional entitlement, but rather entitlement as a matter of sound judicial administration, something about which federal appellate courts can certainly admonish federal trial courts.)


Fraud / negligent misrepresentation / breach of warranty lawsuits against the New York Times: Various people have suggested (with varying degrees of seriousness, I suspect) that New York Times readers should be able to sue the Times for fraud, negligent misrepresentation, or breach of warranty based on Jayson Blair's misconduct.

     I think that would be an awful idea, and I hope and expect that courts would block it. Really, no matter what one might think about this particular scandal, do we really want the product liability juggernaut to get into this area? Imagine that every time a newspaper, magazine, or television program published something that some people claimed was false, someone would sue -- and would sue in the jurisdiction that's most hostile to the speaker's claims (should be possible, since such publications are distributed in all states) -- alleging that readers were defrauded?

     This would be far more dangerous to speakers than libel law is. Libel lawsuits involve a particular plaintiff; here, any reader can sue -- and if one loses, then another can sue, and then another, until one finds a friendly jury. (Yup, that's generally possible, since each plaintiff would not be bound by a completely different plaintiff's defeats.) Many libel plaintiffs have an incentive not to sue, since such lawsuits would just spread the personally defamatory claims about which they're complaining; but an ideologically minded allegedly defrauded reader might not have the same personal incentive to stay out of litigation. Libel lawsuits can be avoided by not publishing things that accuse particular people of misconduct. But if you're talking about readers being defrauded, then it doesn't matter whether the speech is about a particular person, or about matters in general -- e.g., the advantages or disadvantages of social security privatization, Bjorn Lomborg's views on the environment, and so on. And, as we know, the costs and risks of litigation can powerfully deter and distract speakers even if their statements are true, and even if they ultimately end up winning each case.

     Nor can one distinguish the New York Times situation by alleging that here the management was negligent. First, such accusations can be made in nearly every case. Second, if the article was written by an employee, the employer would be strictly liable for the employee's actions under respondeat superior. (That's the rule in libel cases, incidentally.) The only question is what the employee knew or was negligent about, not what his managers knew. So all you'd have to argue is that the reporter knew the statement was false (fraud), was negligent about its falsehood (negligent misrepresentation), or perhaps even that he made an innocent mistake (breach of warranty of accuracy).

     The best remedy for the Times's misconduct, I think, is public exposure and public criticism. It's not by any means a perfect remedy. But it's much better than the alternative of making it possible to sue over every allegedly incorrect factual assertion in the media.


I'm with Howard: This Easterbrook opinion is a must-read.


First Amendment after 9/11: By the way, I've often argued against claims that the First Amendment has been under assault since 9/11; there've been a few First Amendment violations since then, but only very few. Unfortunately, the flag display laws that I mention below need to be added to that list.


Physician-Assisted Suicide in Oregon: Last week, the 9th Circuit Court of Appeals heard oral arguments in Atty. Gen. Ashcroft's attempt to effectively end the practice of physician-assisted suicide (PAS) in Oregon, which has been approved by voters of that state on two occasions: once in 1994, and again in 1997. Although the regulation of medical professionals is traditionally a power of states rather than the federal government, under the authority of the Controlled Substances Act (CSA) the feds control the licensing of doctors to write prescriptions for controlled substances. Last year, Ashcroft threatened to use his authority under the CSA to strip Oregon doctors who prescribe controlled substances for physician-assisted suicide of their ability to prescribe any controlled substances -- in other words, to put such doctors out of business. To state the obvious, this threat was likely to have a severe chilling effect on any doctor thinking about prescribing a controlled substance for PAS. And because controlled substances are the only realistic pharmaceutical options for this purpose, the threat was likely to eliminate the supply of doctors willing to help a patient seeking PAS. For this reason Ashcroft's threat was challenged, and a federal district court judge ruled last spring that the threat was improper under the CSA.

     As a matter of politics, Ashcroft's continued crusade against PAS demonstrates the hypocrisy of a group of far-right ideologues who vigorously claim to support states rights, but apparently only when state voters or legislators agree with their world view. Oregon voters first approved PAS by a only slim margin, but when earlier legal challenges threatened to shut down PAS before it even went into effect, Oregonians supported PAS in a second referendum 60% to 40%. Rep. Henry Hyde was the first of the far-right ideologues to try to undermine the Oregon voters. Hyde sponsored the "Pain Relief Promotion Act", which would have amended the CSA to override the Oregon PAS vote. The Act was approved by the House, but died in the Senate -- primarily as a result of the blocking effort of Oregon Sen. Ron Wyden, attempting to defend his state's initiative process from federal interference. When that attempt failed, Ashcroft decided to try to do by fiat what Hyde failed to do through legislation. The attempt by conservatives to bully a state in an area of traditional state-regulatory primacy seems particularly strange in this case, as PAS in Oregon has not lived up to the hype of its supporters or the dire, Chicken-Little predictions of its detractors: since PAS became legal there, fewer than 30 patients per year have availed themselves of the practice, and no other state has followed Oregon in legalizing PAS.

     As a legal matter, Ashcroft's crusade is even more outrageous. The CSA provides that doctors can prescribe controlled substances only for "legitimate medical purposes." Prescribe for illegitimate purposes, and the Drug Enforcement Agency (DEA) can pull your prescription pad. This provision was established, and has heretofore been understood by everyone, to give the DEA a tool to fight drug trafficking by doctors, not to put the federal government in charge of determining what is and what is not good medical practice. Ashcroft claims that because he believes PAS is not a "legitimate medical practice," he has the power to take action against doctors who prescribe controlled substances for that purpose, a claim that seems to me to clearly exceed the authority provided by the CSA, even taking into account any discretion in interpretation that administrative law principles might suggest are due to an agency charged with enforcing a statute. Hopefully, the 9th Circuit's decision in the next few months will end the crusade against PAS in Oregon, and the 30-or-so Oregonians who wish to employ the aid of a willing physician each year will be allowed to live, and die, in peace.


Statutes requiring employers to let employees display flags: I've only recently learned about a couple of post-9/11 statutes that require private employers to let their employees display flags. N.Y. Labor Law sec. 215-c says: "No employer . . . shall discharge or discriminate against any employee in compensation or in terms, conditions or privileges of employment for displaying an American flag on the employee's person or work station, provided such display physically does not substantially or materially interfere with the employee's job duties." The law provides for civil penalties of $200-$2000. N.J. Stat. sec. 10:15-12.6 says much the same, but provides for "damages caused by the discharge or discrimination, including punitive damages, and for reasonable attorney's fees as part of the costs of any action for damages." Other states may have similar laws; these are just the two I've noticed. While I understand the motivation behind these laws, I think they're unconstitutional, improper, and unnecessary.

     1. Let me begin with the constitutional objection: The Supreme Court has generally held that property owners have a First Amendment right not to be compelled to display ideological messages. Wooley v. Maynard (1977) held that drivers can't be required to display "Live Free or Die" on their license plates: "New Hampshire's statute," the Court held, "in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message," which was unconstitutional. And PG&E v. PUC (1986) made clear that the same principle applies to businesses as well; PG&E struck down a state requirement that utilities distribute in their billing envelopes messages from the utilities' political critics. Here, a business is required to display a highly ideological symbol -- a U.S. flag -- on its own walls (the "on the employee's person" proviso is less troublesome, though not free from difficulty) whenever an employee so insists; the business is "require[d to] . . . use [its] private property as a a '. . . billboard' for the State's ideological message." (It's true that the message is posted by a private employee, not the state, but it's the state that selects the favored message, which is the U.S. flag, and that compels the employer to allow the message.)

     The Court has allowed some laws that require private property owners to allow third parties to speak their property; PruneYard Shopping Center v. Robbins (1980) upheld a California state requirement that owners of large malls allow members of the public to speak on the mall's property, and Turner Broadcasting Sys. v. FCC (1994) did the same to a federal requirement that cable operators carry local broadcasters on their cable systems. But these cases specifically distinguished Wooley and PG&E on the grounds that, in PruneYard, "no specific mesage is dictated by the State to be displayed on appellants' property[, t]here consequently is no danger of governmental discrimination for or against a particular message," and, in Turner, the rules "confer benefits upon all full-power, local broadcasters, whatever the content of their programming." Similarly, PG&E stressed that the law in PruneYard was valid partly because "the access right [was not] content based," whereas in PG&E the requirement "does not simply award access to the public at large; rather, it discriminates on the basis of the viewpoints of the selected speakers."

     The New York and New Jersey laws aren't generalized mandates that property owners allow speech evenhandedly by a wide range of speakers; nor are they even requirements (which have never been tested in the Supreme Court) that businesses display certain factual information, such as information about labor laws or warnings about the presence of certain chemicals. Rather, they require employers to let their property be used -- at any employee's command -- for the display of one particular ideological symbol, the American flag. They're thus much like the laws held unconstitutional in Wooley and PG&E, and unlike the laws upheld in PruneYard and Turner.

     2. Now, to be frank, I'm not sure that Wooley and PG&E were correct; I'm quite certain about my analysis given the Court's caselaw, but I can see why people might oppose that caselaw -- it's not clear that requiring people to allow certain speech on their property is indeed properly characterized as "compelled speech." It may be an interference with property rights, but it doesn't require anyone to actually say or write anything.

     But the laws are still wrong, precisely because they unjustifiably interfere with private property rights. People's offices are the company's property, not the employees'. If employees want to fly flags, that's just great; I fully support them in doing so, if they do it on their own property (or on government property that's treated as a public forum). But I don't think anyone should be entitled to display his message on someone else's property.

     Now I'm well aware that property rights are already pretty heavily burdened by many other laws, and employers' property rights are especially burdened. Some of these burdens may be proper, but many may be improper. Still, this is hardly a reason to add yet another improper burden (which would then in turn become an argument for adding still more such burdens).

     3. Finally, the law strikes me as quite unnecessary. Yes, I've heard the stories about employers forbidding employees from displaying American flags; and I've been quite annoyed by the employers' behavior. But I've also noticed that many such employers changed their policy when it drew public attention.

     Public attention, not legislation and litigation, seems to me to be the proper response to this. If you think that a company shouldn't keep its patriotic employees from posting American flags, make that public, and try to pressure the company into changing its policy. (I don't want to return to the Dixie Chicks issue here, but I do think that pressuring the company through public condemnation would be quite proper here.) Much of the time, this will work. And if it doesn't, well, there ought not be a law: It should indeed be up to the company to decide whether it wants flags flown on its property.

* * *

     I don't know the politics behind the enactment of these laws -- but I somehow suspect that there wasn't much opposition to them. The Left doesn't mind extra burdens on employers; the Right likes the American flag; everyone likes to be patriotic; and unfortunately few legislators pay much attention to what strike me as some pretty important principles, both of free speech law and of property rights. Unsurprising, but unfortunate.


DOJ responds to Time Magazine story on civil liberties: Read the Time article here. Read DOJ's response here. Do you still call it a fisking if it appears as a government press release?


Proposed UCLA speech code: The Daily Bruin (the UCLA student newspaper) just ran an article about this. My original post on the subject, which also points to the speech code text, is here; my memo that argues that the speech code is unconstitutional and unnecessary is here. The administration's chief argument for the speech code is that it's actually legally required; I respond to that in Part D of my memo.


Conpiracies other than the Volokh Conspiracy: Over at TNR, check out Dan Drezner on conpiracy theorizing, Straussianism, and neoconservatism.


Do Internet undercover stings capture or create child sex offenders? Two empirical views: [A warning for readers: this post is about a topic that some will not want to hear about: the connection between Internet stings and child molestation. If you'll find the topic disturbing, don't read it.] One of the topics I cover in my computer crime class is the law of child pornography and Internet undercover operations designed to catch pedophiles. It's a difficult and sad topic to cover in class, but I don't have much choice: such cases are by far the most commonly-prosecuted type of computer crime case. One of the interesting topics in this area is whether law enforcement efforts to catch pedophiles and child molesters through online undercover operations are catching people who are really dangerous, and if so, how dangerous. So I was intrigued when I saw this abstract on SSRN:
Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Issues

Association for Computing Machinery

Sexuality and Culture, Vol. 6, No. 4, pp. 73-100, 2002

We consider a tangle of related questions, the first two empirical, the final question theoretical and jurisprudential: (1) Do Internet sting operations catch people who are now engaging in or have previously engaged in illicit sexual activity with minors - or suspected of such? (2) Are persons caught in illicit sexual activity with minors likely to be caught by Internet stings - do they appear to be susceptible to being caught that way? (3) Are the offenses of those caught in Internet stings directed at illicit sexual activity with minors (i.e., where no minor is involved) genuine or manufactured? Along the way we make several ethnographic and demographic observations profiling the sort of people caught by such Internet stings, put together some numbers, and express some views.
     When I read the article, I found that the author rather strongly believes that Internet stings tend to catch innocent people, not actual pedophiles. The author's methodology for answering the empirical question of whether Internet sting operations "capture" or "create" offenders struck me as most unusual, however. The author did a LEXIS-NEXIS search for major newspaper stories in 2001 on the topic of Internet stings that mentioned the word "pedophile." This produced about 150 stories, of which about 75 related to recent arrests. Of those, the reports discussed 20 defendants who were caught in Internet sting operations that did not particularly target the defendant beforehand. The author then read the stories about those 20 defendants, and found that the news reports mentioned either prior or concurrent episodes of child abuse for only two defendants. That is, in 18 of the 20 cases, the news reports did not report that the person either was a known pedophile before the defendant was caught in the sting, or else that the sting had discovered child molestation ongoing. The author states that this "tells us . . . that the overwhelming majority of those caught in sting perations undertaken out-of-the-blue have no prior or concurrent charges of wrongdoing attached to them." The conclusion: "we believe we have definitively answered the empirical question we sought to surround: Internet stings do not capture pedophiles . . . ." (emphasis in original)

     The problem, of course, is that whether news reports on arrests in Internet stings happen to mention past or concurrent criminal charges of child molestation is an extraordinarily poor proxy for whether those arrested in Internet stings have in fact engaged in child molestation. A defendant may have molested children but may have never been caught; the defendant may have been caught, but may have never been convicted; the defendant may have been convicted, but the reporter filing the story may not know this because criminal records are not public documents; finally, the reporter may know of the target's past convictions, but may not have the space or inclination to include it in the news report. (In fact, if the absence of something in a news report is proof that it doesn't exist, then you can prove the nonexistence of just about anything.)

    Notably, the Fulda study does not mention the chilling November 2000 report by Dr. Andres Hernandez, the Director of the Sex Offender Treatment Program of the federal prison in Butner, North Carolina, which as far as I know is the only preexisting empirical study on this topic. The conclusions in the Hernandez study are grim, and are quite different than Fulda's. In a study of about 60 inmates in federal prison for possessing child pornography or getting caught in Internet stings who participated in the voluntary treatment program, about 75% admitted to a prior sexual contact with a minor; on average, they admitted to about 25 victims each. About 60% of the inmates who at sentencing were believed to have had no sexual contact with a minor later admitted to such contacts: in that group of 29 inmates, 11 denied an contact crimes, and 18 later admitted such crimes. The methodology of this study has its flaws, so it's hardly definitive. But it certainly suggests a different picture, and a disturbing one.


Amusing author's notes: The first footnote in any law review article is generally the "author's note," which says whom the author is affiliated with, and thanks people who helped the author. Often the thank-you's are followed by something like "All errors, of course, are my own responsibility," which on the one hand is gracious, but on the other hand so obvious that it seems a bit pointless. In any case, here are my favorite twists on this, the first three of which are seemingly part of a series:
  1. "Any errors in this article are the fault of society, and cannot be blamed on an individual." (David Kopel 1999.)

  2. "Errors are entirely the responsibility of sinister unknown forces, not the authors." (David Kopel & Glenn Harlan Reynolds 2000.)

  3. "Any flaws in the Article are entirely the fault of the Author. Nevertheless, readers are encouraged to sue the manufacturer of the computer on which this article was word-processed." (David Kopel 2001.) (This was in an article that had to do with products liability.)

  4. "All errors in this essay are due to the flawed Pentium chip in my computer." (Jack Balkin 1995.)

  5. "All errors that remain are intended as a test of the reader's knowledge." (Paul McGreal 2002.)

  6. "I am grateful to my colleagues [named] for their careful reading of earlier drafts of this paper and their helpful comments, criticisms and suggestions. If there are any glaring errors in this piece I will not be able to resist the feeling that they are at least partially responsible." (Alan Scott Rau 1995.)


Update on Lileks: Reader Shannon Maders writes, in response to my favorable citation to Lileks The Handmaid's Tale post:
Professor Volokh,

I just wanted to drop you a quick note re Lileks' post re The Handmaid's Tale. While I love Lileks and despise the novel, I feel obliged to report that there is in fact a dystopian sci-novel written by a very famous and highly regarded writer that depicts a future society run by homosexuals in which homosexuality is officially encouraged -- it's Anthony Burgess' The Wanting Seed. Of course, I don't expect The Wanting Seed to be made into an opera anytime soon, but it's worth pointing out that such a novel does exist. . . .

I read it back in college (i.e., over a decade ago), so my memory of it isn't particularly keen. I don't recall any genetic manipulation or programming, but otherwise Lileks' description is remarkably similar to Burgess' novel -- in Burgess' novel, the world is wracked by severe overpopulation so stringent limits are placed on reproduction, and homosexuality (as well as, if I remember correctly, other forms of nonreproductive sexuality) are officially encouraged. Indeed, much of the novel's 'satire' centers, I believe, on the various pro-homosexual ad campaigns that the ruling regime is conducting.
I have no personal knowledge of this, and in any event this doesn't disprove Lileks' point -- Burgess' book was written in 1962. Still, I thought I'd pass this along in case some readers found it relevant.

UPDATE: Several people e-mailed me to point out that Joe Haldeman's The Forever War hypothesizes a future in which homosexuality is seen as the norm, and heterosexuality is frowned on, I believe for population control reasons (if I recall correctly). But I don't think this fits within Lileks' hypothetical analogy to The Handmaid's Tale, because the homosexual culture in The Forever War, unlike the dominant culture in The Handmaid's Tale., isn't portrayed as particularly oppressive (or at least not oppressive on account of its homosexuality).


Red light cameras: Several people e-mailed me to point to Matt Labash's Weekly Standard series that purported to show that traffic cameras actually cause more accidents than they prevent, as they are often implemented today. (It also says that part of the reason why they're often implemented badly is that they are installed simply to raise money.) I'm not sure that this is so; I found some factual problems in parts of the account, and blogged about them in the early days of this blog (see the evidence here), but some months later blogger ate that post. (If you know how I can recover it, and the other posts that end up being replaced by the text "[Bigbody]", please let me know; and, no, I can't find it in any google caches.) The Standard was quite diligent about fixing the errors, but this just reminded me that these factual questions are pretty complex, and that one series of magazine articles won't resolve much.

     That's why I prefer to limit my analysis here to the constitutional and privacy issues, which is also what Michael Klein limited his analysis to. Given the uncertainty about the empirical questions, my view is that this is a potentially practically promising technology, that can be implemented either well or badly. My point is simply that civil liberties objections should not keep us from experimenting with this. And, if you're concerned about traffic enforcement being used not to make streets safer, but just to raise money while the streets are made more dangerous (or at least no safer), then evenhanded automatic enforcement is more likely to yield a political solution -- the ticket-getting voters pressuring their legislators to revise the system -- than would manual discretionary enforcement.


ASTRONOMICAL HAPPENINGS: Two up-coming events of note: a total lunar eclipse this Thursday evening (early Friday morning in Europe and Africa, late at night in Eastern N. America and S. America, early in the evening in western North America). Stories here, here, and here. But of greater note, at least to me: this summer Mars will be closer to earth than it has been for over 60,000 years. You'll notice it, even if you live, as virtually all of us do these days, in some horribly light-polluted place where about the only thing you see in the sky is the moon and a half-dozen of the brightest stars. But Mars will be really bright (and bright red) all summer long.

     It's pretty wild, if you think about it -- no member of our particular subspecies Homo sapiens sapiens (which, by last account, emerged maybe 40,000 years ago or so) has ever seen Mars this bright before. So you really should make sure to pay it at least some attention.


Flying monkeys: Jonah Goldberg posts an e-mail from an anonymous reader who purports to be writing an MA thesis in my department. The e-mail contains what purports to be an approved thesis proposal. I can't really tell whether Goldberg believes this. But you shouldn't.

I don't know what every student in the department is doing. I do know that this year's MA theses are done and that next year's proposals aren't yet approved, so the claim that the correspondent "is writing" a thesis based on that "approved" proposal is suspect. I spent some time going through our files looking at approved proposals, as I remembered that there has been at least one Simpsons MA paper in the past five years or so; no sign of Goldberg's correspondent. More to the point: the thought that two of my colleagues would sign off on such a thing is absurd. I know the idea is that the approving readers only looked at the first few sentences. But that's not how things work 'round here.

If someone e-mails me proof that this is an approved thesis proposal in my department, I'll apologize in this space. The student can e-mail me him or herself; I won't post the name, just my apology. I'm entirely confident that this isn't going to be necessary; and if it's not, Goldberg ought to put a "joke" disclaimer on his post.

UPDATE: Jane Galt thinks the post was too obviously a joke to be worth worrying about, and one of her commentators thinks I need to "rent a sense of humor. Just so he can see what it's like." I'll say here what I said in Jane's comments section: I know it's a joke. It seems likely to me that Goldberg thinks it's a joke-- though I'm really not sure. But the web is what it is. Some undergrad trying to decide where to go to grad school is going to do a web search for "University of Chicago political science" and up will pop this very deadpan and specific-sounding post. And, of course, academia is what it is. It does not seem implausible to me that someone somewhere in the academy could get away with this; it's very hard to satirize or parody some of the lit-crit stuff because it's more absurd than the satirist's imagination. So, no, I don't think it's so obviously a joke that every relevant reader will see through it.


Lawful: Matt Yglesias tries to dissolve the formalist-realist divide in theories of the judicial function. The key steps:

1) "This is to say that no one (or at least no one with a functioning brain) would think that judges ought to "decide cases entirely on the basis of political ideology" as some kind of generic position. Let's say, hypothetically, that I decide I'm a realist. Does this mean I think it would be fine if we put a Nazi on the bench and then he proceeded to decide his cases entirely on the basis of political ideology? Of course not. If I'm a realist, that means I think judges ought to decide cases on the basis of my political ideology. Naturally enough, I'm going to think that my political ideology is the correct political ideology because if I thought some other political ideology was correct I would change my ideology in response to this realization."

2) "Now we need to note that a "political ideology" ...includes things like my view of what a good judicial system would look like."

3) "my political ideology also maintains that the rule of law is a valuable thing."

Umm... A pretty good shorthand understanding of legal realism (which, as Matt notes, is confucingly named for someone who thinks of "realism" as "moral realism") is that it denies the meaning, coherence, and availability of "the rule of law." Some realist judges in practice sometimes seem to recognize the weight and importance of rule-of-law like considerations, but in principle self-proclaimed "rule skeptics" deny that there is any such thing. Some of them maintain that the idea is a simple phantom; some that it is a mask for capitalist or racialized power relations; some that it's an occasionally-useful approximation for some real value such as predictability. But once you've signed up to the thought that the rule of law is a meaningful, coherent, and available state of affairs, or even a meaningful and coherent aspiration (Fuller never said we would have a fully rule-of-law-governed system, after all), you're pretty much no longer a realist.

(Qualification: One could be, as Cardozo arguably was, an interstitial realist: realism holds sway where the law "runs out." In Matt's case of the constitutional challenge to the Senate, the law clearly hasn't run out; but in a constitutional challenge to analogous state bodies, perhaps the law really had run out, leaving judges free to choose on the basis of personal political preferences between the Constitutional principles of countervailing bicameralism and of formal equality among persons, i.e. voters. I don't happen to think that the law had run out in this case. But in any event Cardozo's not thought of as a realist, and for good reason; he was as critical of full-blown realism as he was of formalism. He was a realist only by comparison with Langdell. That mere personal preferences were admissible as judicial reasons was a view he never accepted.)

It's of how much our public culture seems to have failed to notice that the realism wars have been over for decades. The realist position as it was once really fully developed is by now a very fringe view. Mind you, most people have taken on board the realists' empirical claim-- that judges' personal preferences matter. (Indeed, the judicial-behavioralist branch of political science continues to treat this as the only interesting thing that can be said about judicial activity. I'm pulling for Eugene to squash them like grapes in his prediction contest with them.) But radical rule-skepticism is now confined to the various crit approaches, and, in a very attenuated way, to some branches of L&E. Among, say, the approaches of Dworkin, Tribe, Scalia, and Thomas, realism's not to be found. (Classical formalism's hardly to be found, either.) But Chuck Schumer et. al. continue to argue as if there's no such thing as fidelity to the rule of law or to the judicial function, that it's ideology all the way down. And some on the right-- including Scalia!-- continue to argue as if opposition to originalism necessarily throws a judge into relativist, realist, personal-preferences land.

A final note: Matt's been calling for a long time for Senate Democrats to vote down Bush's nominees on grounds of ideology. That's a much less worrying thing if, all along, he's meant by "ideology" something that includes the candidate's theory of the judicial function and commitment to the rule of law. But he's sometimes sounded more like a full-on realist than his newest post would suggest.


Oriental Latin America: Though Latin America is generally thought of as being populated by Hispanics, there are naturally lots of people of other racial and ethnic groups there: Many, especially in Argentina, are second- or third-generation whites. Many others, especially in Brazil, are black. And of course there are quite a few East Asians; consider, for instance, the former President Alberto Fujimori of Peru. (In the words of one article, "Peruvians have nicknamed Mr Fujimori El Chino, the Chinaman, because he is of Japanese descent.")

     But few people know that there's an entire country in Latin America that's actually Oriental. What is that country? The answer is here, though don't drag the cursor over the link until you're ready to see the answer, since the URL gives it away. The explanation is here (though again don't drag the cursor over the link until you're ready to see the answer).

     By the way, a quick google search that I did while finding the right links for the previous paragraph revealed (not unexpectedly) that others had seized on the same question; see here.


Monkeys and Shakespeare: Jesse Walker reports on the limitations of the latest experiments.

Tuesday, May 13, 2003


Independent Journalist: Eric Muller suggests:
Given the predictable equivocation and defensiveness of the New York Times's coverage of the Jayson Blair story, I'd like to see the New York Times create the newspaper equivalent of an independent counsel -- let's call him/her an "Independent Journalist." Hire a top investigative reporter from another leading paper -- Bob Woodward, maybe -- give him or her free access to absolutely everything and everyone at the Times, and promise him or her a certain number of pages to file a report or story in a special section of the Times -- edited by the reporter's own home newspaper, but never touched, or even read, by anyone at the New York Times.

I know the Times claims it has done something like this internally. But that's just the problem: it's an internal solution, and it's therefore suspect.

Even an ombudsman -- which the Times apparently doesn't have -- would not be sufficiently removed from the paper to do a truly trustworthy job.

We know the Times believes that executive branch officials can't be trusted to investigate themselves. (And they're right about that.) Why should it be any different for the Times itself?
I don't know enough about this subject to have an informed opinion. The Independent Counsel that Eric is using as a template hasn't done that well, but perhaps the Independent Journalist proposal would be different. (There certainly are significant distinctions.)


Role models: Reader Kathy Phillips writes, apropos my role models post from this morning:
I am currently an at-home mother of two, but I taught English literature for several years at private schools in Los Angeles. I spent years instilling, or attempting to instill, in my students a love of Shakespeare, Donne, Austen, Dickens, Keats, Coleridge, Yeats, Auden, etc. There was always a fair-sized contingent of faculty and parents who decried the curriculum's lack of "relevance" to students' lives and deplored the absence of any authors/characters with whom students could "identify." Much of this criticism was based on the idea that students who belonged to ethnic/racial minorities needed literary role models in order to partake fully of the richness of English literature. I always thought such an approach was wrong-headed and potentially harmful, because it suggested to "minority" students that Shakespeare and Austen (and their characters) were NOT legitimate role models -- that, because most of the authors we studied were the much dreaded and maligned dead white men, students could not ultimately appreciate their artistry nor fully immerse themselves in the fictional worlds those authors created. In my opinion, the students who imbibed this philosophy most completely were done a great disservice, because they learned to identify only with what was, say, "black" or "female" in literature rather than with what was simply human.

When I was growing up, I took my role models from the wide array of history and literature. Although I am a white woman, my role models were often male, and several were nonwhite. I am glad that my experience and ambitions were not narrowed by well-meaning but ultimately harmful ideas about "legitimate" role models. It would have been quite disheartening to have been taught -- and to have believed -- that there were some people with whom I could, and some with whom I could NOT, identify. Shakespeare, Hawthorne, Melville, James, Ellison, Naipaul, Bach, Mozart -- all of them would have been, in some important way, lost to me.


Westlaw Rewards: writes, apropos my Westlaw Rewards post:
Thanks for posting about Westlaw Rewards! I logged in for the first time and found I had 1150 points. Now I have 202 points and a copy of Academic Legal Writing headed my way. As a rising 2L at UVA Law, I'll be putting it to good use. Many thanks!


Parking ticket: I got a parking ticket here at UCLA a few months ago. When I parked my car in one of the metered spots right near my office (I have a parking permit, but my usual lot is several minutes away, and I was in a hurry), I went to feed the meter, and saw that it was labeled “out of order”; I tried to insert coins, but couldn’t, because the meter was jammed. Then, when I went back to my car 45 minutes later (I came to my office at around 4:15 pm on Feb. 13, and picked up the ticket at around 5), I saw a parking ticket. The meter had by then been fixed -- perhaps the parking meter enforcement person had taken care of it -- but I hadn’t had an opportunity to feed it, since it was out of order when I originally arrived. Also, when I checked the UCLA parking regulations, I found, contrary to my assumption, that UCLA prohibits parking at out-of-order meters.

     Fortunately, I looked up the statutory section labeled on my ticket, and found the following provision in Cal. Veh. Code § 21113(b):
Every governing board, legislative body, or officer shall erect or place appropriate signs giving notice of any special conditions or regulations that are imposed under this section.
Hmm, I thought -- sounds like with parking regulations, ignorance of the law is at least a partial excuse: Apparently UCLA can enforce only those special conditions that it specifically posts (e.g., maximum parking for 1 hour) and not others (such as the no parking at out-of-order meters requirement).

     So I decided to fight it. Naturally, I didn't expect much: To win, I had to persuade the UCLA parking department both that I was right on the facts (the meter was out of order when I parked) and on the law (if it was out of order, then they couldn't ticket me because they didn't post signs saying "no parking at out-of-order meters"). I had no evidence other than my own word on the facts, and while I think I was right on the law, who knows what they'd think? But the cost of fighting was low, too: I could just send in a letter explaining my side of the story.

     A couple of days ago, I got my response: Ticket dismissed. They acknowledged my factual assertion ("We have verified that the parking meter was not functioning properly at the time your vehicle was cited"), and they apparently found my legal argument to be credible enough. And this is actually the second time they dismissed one of my parking tickets: The first time, they ticketed me for parking in a spot that was temporarily labeled "No parking," with signs that were visible but not prominent enough for people to notice when they're parking in the same spot where they've parked for years; I complained on those grounds, and they bought my argument. All in all, I'm pretty happy with the UCLA Parking Office's willingness to listen to reason. (Were they more open to my arguments because I was a faculty member rather than a staff member or a mere student? Maybe, though maybe not; I have no evidence one way or the other.)

     So the morals of the story: (1) You can fight city hall, or at least the UCLA Parking Office. (2) The squeaky wheel gets the grease.


"Semble": I saw this used several times in a 2000 California Supreme Court opinion, and I realized I didn't really know the definition. Webster's Revised Unabridged Dictionary says it means:
It seems; -- chiefly used impersonally in reports and judgments to express an opinion in reference to the law on some point not necessary to be decided, and not intended to be definitely settled in the cause.
The examples that I saw used it as a one-word parenthetical following a case citation, e.g.,
See Jacoby v. State Bar (1977) 19 Cal.3d 359, 363, fn. 2, & 368 (semble); . . . Fritz, More Than "Shreds and Patches": California's First Bill of Rights, supra, 17 Hastings Const. L.Q. at p. 31 (semble).
Well, I'm glad I know the word now, but I'm definitely going to avoid using it (even though it doesn't seem to have a perfect one-word synonym) -- my guess is that, just as I didn't know it for many years as a law professor, so many of my readers won't, either. Judges can afford to make their readers run for the dictionary to understand their opinions; writers who lack a captive audience cannot afford it.


Gender and role models: Balasubramania'smania responds to my earlier post about U Mass and the Minuteman by saying:
To say that women need to look to men for inspiration (etc.) really fails to grasp the emotional and visceral connection of a role model. A role model functions to remind you that if someone else like you could do it, so could you -- to the extent that one fails to identify with a role model, as maybe women scientists with male scientists, the role model becomes ineffectual. I would also take exception to Professor Volokh's contention that there aren't enough role models of a certain gender or race, such that minorities and underrepresented folks "need to draw inspiration" from outside their groups. We are indeed realizing that women authors, artists, and scientists have existed for some time (e.g., Virginia Woolf, Edna St.Vincent Millay, Frida Kahlo), they have just been obscured by history -- a history obviously written by men. If anything, society's failure to highlight role models from all classes, genders and races, and society's slow plodding progress towards equality brings a focus on the particular characteristics of the role model or mascot. If we were surrounded by successful women scientists, bankers and CEOs, no one would really care about U Mass's "minuteman" one way or the other.
     Well, if this argument is right, then women are in trouble, because the fact remains that there are very few first-class women scientists, soldiers, and specialists in various other fields (note that my original post intentionally did not include writers, and that the post above gives three examples of writers and artists, but none of the fields I mentioned, namely scientists and soldiers). Sure, you can find a few wo -class women scientists -- Marie Curie, for instance. But the greats of the past are all men: Copernicus, Galileo, Newton, Darwin, Einstein, and more. (Focusing on the greats of the past is important because greatness is often not easy to tell except many decades in retrospect.) And I highly doubt that there are lots of Newton-class women scientists whose achievements have been simply ignored by history. I'm quite willing to believe that there were lots of brilliant women who could have been Newtons if it weren't for the sexism of the time. But it seems to me highly unlikely that there were many women who actually were Newtons, but were then ignored. Likewise for, say, black scientists or Hispanic scientists.

     Fortunately, while I'm not an expert on the psychological research surrounding this subject, my sense is that it's not inherently that hard for people to find role models who differ from them in race or sex. People are capable of being inspired by people who lived centuries before them, who spoke a completely different language, had a completely different ethnicity, and lived a completely different sort of life. Ask an American classical musician, for instance, which figures in history he has admired -- is he likelier to mention American or English composers, or German or Russian ones? People are capable of abstracting those factors (which in any event shouldn't be the basis for admiration), and focusing on more important matters, such as the person's great achievements or great character (which should be the basis for admiration). I suspect that people are likewise able to abstract race and sex as well.

     But while I think people are inherently able to choose role models from either gender and any race, ethnicity, religion, and era, social attitudes can change that. The more we talk about how girls need female role models, blacks need black role models, and so on, the more we send the message that children should seek only role models of their own race and sex. And, as I've argued above, that message is actually harmful to those children who belong to a race or sex that -- often through no fault of its own -- simply does not contain role models (in the particular fields in which the children are interested) who are as great as those that have been produced by another race or sex. An excessive and highly publicized focus on race- and sex-specific role modeling is thus, I suspect, harmful to the very groups (women and nonwhites) that it's trying to help.


Traffic cameras: My friend Michael Klein had an article in Saturday's L.A. Times criticizing traffic cameras mounted at intersections that catch red-light runners. I thought I'd pass it along, together with a link to a Wall Street Journal article of mine taking the opposite view.

     Let me also mention one other item, which I touch on in the Wall Street Journal piece. A few days ago, I was pulled over for not fully stopping at a Stop sign; fortunately, though, the police officer let me off with a warning and a small and cheap ticket for a correctable violation (I had a parking tag hanging from my mirror, which is apparently illegal). The reason the officer gave: I was "cooperative."

     Now I appreciate the officer's kindness, especially since I think that a rolling stop at that particular location isn't very helpful. But it seems likely that if I wasn't cooperative -- for instance, if I argued with the officer -- I wouldn't have been let off. Maybe if I hadn't looked like a respectable local resident I wouldn't have been let off, either.

     Who can tell? The decision was entirely at the officer's discretion. If you generally trust the discretion of officers, and you think they'll use it chiefly to distinguish dangerous conduct from merely technically illegal conduct, then that's good. If you generally don't trust the discretion of officers, and you think they'll often use it (deliberately or subconsciously) to distinguish "cooperative" drivers who don't talk back and who look respectable from other drivers, then the discretion isn't so good. One advantage of cameras is that they don't care what you say or what you look like.


RIAA apologizes for copyright nastygram: Declan McCullagh reports:
The Recording Industry Association of America apologized Monday to Penn State University for sending an incorrect legal notice of alleged Internet copyright violations.

The notice and subsequent apology appears to mark the first time that a faulty notification has been made public. The incident also shows just how easily automated programs that search for copyrighted material can be fooled, as well as how disruptive such notices can be on college campuses.

Last Thursday, the RIAA sent a stiff copyright warning to Penn State's department of astronomy and astrophysics. Department officials at first were puzzled, because the notification invoked the Digital Millennium Copyright Act and alleged that one of its FTP sites was unlawfully distributing songs by the musician Usher. The letter demanded that the department "remove the site" and delete the infringing sound files.

But no such files existed on the server, which is used by faculty and graduate students to publish research and grant proposals. Matt Soccio, the department's system administrator, said that he searched the FTP server "for files ending in mp3, wma, ogg, wav, mov, mpg, etc., and found nothing that would precipitate this complaint."

Except, that is, when Soccio realized two things. The department has on its faculty a professor emeritus named Peter Usher whose work on radio-selected quasars the FTP site hosted. The site also had a copy of an a capella song performed by astronomers about the Swift gamma ray satellite, which Penn State helped to design.

The combination of the word "Usher" and the suffix ".mp3" had triggered the RIAA's automated copyright crawlers.

In an e-mail sent after a query from CNET, the RIAA said a temporary employee had caused the notice to be sent. "We have withdrawn, and apologize for, the DMCA notice that had been sent to Penn State University in error. In order to safeguard against errors like this one, we have individuals look at each and every notice we send out. In this particular instance, a temp employee made a mistake and did not follow RIAA's established protocol, and we regret any inconvenience this may have caused. We are currently reviewing any other notices this temp may have sent."

The RIAA confirmed that its policy does not require its Internet copyright enforcers to listen to the complete song that is allegedly infringing. . . .


Russell Korobkin: I'd like to extend a hearty welcome to our newest coblogger, my friend and colleague Russell Korobkin. Russell specializes in, among other things, negotiation, health care law, and law and behavioral science. The latter field, which I think is his main scholarly interest, is more or less law, economics, and psychology -- as the title of a leading article that he cowrote puts it, "Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics." You can find his bibliography, which is remarkably long for the number of years that he's been in teaching, here.

     Russell is, as best I can tell, a political moderate, which puts him on the far left of the Volokh Conspiracy (yes, I know, the single-axis picture of politics has its limitations, but it has its value, too) and on the far right of most American law faculties. In any event, I think our readers will find his comments to be smart, knowledgeable, thoughtful, and thought-provoking.


Rehnquist denies stay request: Election law expert Rick Hasen reports that Chief Justice Rehnquist "has just denied the NRA's request for a stay without prejudice, telling the NRA it can return with the motion if the district court has not ruled by May 20."

UPDATE: Here's an AP story to the same effect.


Monica Lewinsky on the lack of a parent-child privilege: Reader Zachary Mears passes along a pointer to this article; some excerpts:
Few people are aware that, in our country, parents can be forced to testify against their children and vice versa; there is no parent-child privilege under the aegis of the federal government. We have a husband-wife privilege, a doctor-patient privilege, an attorney-client privilege and even a privilege between priest and penitent. But no comparable confidential boundary is recognized for parent and child.

All of these existing privileges place value on certain relationships in order to foster and then protect them. Their inviolability is deemed more important than the truth-finding function of the courts.

Isn't the parent-child relationship every bit as important, if not more so?

It is paradoxical that in a country where we often say that our children are our future, and every parent has said, at least once, "you can always come to me," that our system actually undermines the very values it extols.

Just because a parent wants to protect her child's confidence doesn't mean that objectionable behavior is being condoned. But such protection does help ensure a haven as children negotiate the labyrinth of life.

It is completely unreasonable that discussions between parents and children are not protected -- be it a teenager who has been caught at school with drugs or a parent who has been wrongly accused and needs to explain herself to her son. . . .
This is actually quite a plausible argument, though I think there are pretty plausible counterarguments, too. One technical note: Arguments about privileges are at times unclear about just what the privilege protects. Most privileges protect only information learned during confidential communications. A lawyer can be called to the stand to testify about what he saw his client do, though not about what his client told him during a confidential communication. It's rare that lawyers are ordered to testify this way, because lawyers mostly see their clients for purposes of confidential communications, and not otherwise, but it's possible.

     The husband-wife privilege is different. There are actually two privileges (at least in many jurisdictions): One protects confidential communications -- if I tell my wife something confidentially, then I can insist that she not testify about it (unless the communication fits within a limited set of exceptions). The other is a privilege not to testify -- my wife can choose not to testify against me, whether the testimony has to do with a confidential communication, something she saw me do, or anything else. (Naturally, this is gender-neutral; I use my wife as the witness just as an example.)

     The confidential communications privilege is analogous to the attorney-client, psychotherapist-patient, and priest-penitent privileges. The privilege not to testify against a spouse is different, and more unusual. When proposals are made for a parent-child privilege, it's important to ask whether they're proposing a confidential communications privilege, a privilege not to testify, or both.


Lileks on The Handmaid's Tale: Very well put, as usual. I wanted to include an excerpt, but none will do it justice, and I wouldn't feel right quoting the entire longish passage. Check it out yourself; it's the second item, labeled "9:25".

     I'm actually not that sympathetic to some complaints that Book/Movie/TV Show X shows Group Y in an unsympathetic light, whether Group Y is men, women, Italians, Germans, Jews, gays, straights, Christians, atheists, or whoever else. Authors have a particular story to tell about particular characters, or a particular mythical or hypothetical environment; it need not be a generalization about the average member of some group, or about the likely future. If someone writes a novel about the Italian Mafia (whether in Italy or in America), the novel may end up portraying Italians in a bad light, but that's because it's about the Italian Mafia; it doesn't purport to be about all Italians, and it doesn't have to be about all criminals. There's no ethical imperative for the bad guys to be cast as some generic ethnicity-less (or mixed-ethnicity) people, or for the author to choose some group that is less likely to complain.

     On the other hand, if a book is portrayed as more than just a particular story about particular characters -- if it's either intended to be a generalization about some group or about the likely future, or if commentators cast it that way -- then it seems quite proper to look closely at this portrayal, and see whether it indeed makes sense.


Did the First Circuit's recent Internet wiretapping case get it wrong?: Wiretapping guru Mark Eckenwiler writes that the recent First Circuit wiretapping case In re Pharmatrak Privacy Litigation that I blogged about on Saturday is not just wrong, but "about as wrong as you can be." Mark argues that the judges just didn't understand the technology of web browsers, and the misunderstanding led them to think that some kind of wiretapping must have occurred when actually the browsers were just working as they had been configured to work. He explains:
When you click on a link to site B from a site A page in your browser, your browser passes a header variable (called HTTP_REFERER) to site B. That variable tells site B the URL of the site A page on which you clicked the link.

This is not occult deviltry, but rather behavior contemplated by the
standard for HTTP 1.1. (See RFC2068, section 14.37.) Indeed, the RFC notes that a browser client should allow HTTP_REFERER to be suppressed, as it can reveal sensitive/personal information. (Few do, however.)

As I read the decisions in Pharmatrak, the sites which linked to Pharmatrak's server had chosen to embed certain personal info in the URLs of those sites' dynamically generated pages. (This is the so-called GET method, which is often disfavored in contrast to using POST when user data -- e.g., search terms -- are to be passed back up to a web server.)

In short, then, the info collected by Pharmatrak was sent *by the users' own browsers directly to Pharmatrak*, and only because the linking sites had (prudently or not) had configured their systems so as to expose the data. If this is a wiretap by Pharmatrak, then I have a confession to make:

I have been wiretapping some of you.

What do I mean? Well, [somone] recently posted a link on the [cyberprof] list to an anti-telemarketer page I recently wrote. Some of you clicked on that link from your web-enabled mail readers, producing entries in my weblogs like this:

156 WWW 28872 2003:05:05:13:53:21
/htdocs/panixhome/userdirs/eck/telemarket.html ***.83.82.183 200

This entry shows that on 5/5 around 1:53pm EDT, one of you (whose username, institution, and IP address I have redacted) clicked on a link in an email entitled "suing spammers in small claims." Because MS Exchange and various other mail systems are so stupidly configured as to leak this info, my weblog is full of this sort of thing. Nota bene that I haven't done anything unusual to make this happen; indeed, when the user in my example clicks on links in his/her email, s/he reveals his/her username (and thus real-world identity) to *every single website* s/he visits.

If you'd like to see how your system behaves, click on this link. If you see your username & institution domain name in the REFERER
displayed, then your info is being leaked.

Note that this is hardly limited to email-reading activity. Something
similar -- albeit without the username -- is passed every time you click on a Google search result item. Here's somebody (whose identity I can make a very good guess at; I certainly know which law firm) clicking on a link to one of my pages listed in a recent Google search on my name:
156 WWW 9201 2003:05:05:16:31:25 /htdocs/panixhome/userdirs/eck/junkmail.html 200 www1

Whatever else one may say about this state of affairs, it is patently absurd to say that (or Panix, or Mark Eckenwiler) is
"wiretapping" anyone. That, alas, appears to be precisely the conclusion reached in Pharmatrak.


Libertarians vs. the NRA: NRO's Ramesh Ponnuru reports that a group of libertarian attorenys who filed suit against the D.C. handgun ban is getting resistance from, of all places, the NRA. The libertarians, led by Robert Levy of the Cato Institute, filed a straight Second Amendment challenge to the D.C. law. Apparently the NRA initially sought to discourage the suit, but has now filed a suit of its own -- raising multiple additional claims -- and wants to consolidate the two cases. Levy charges this is a ruse to give the court grounds to strike the D.C. gun ban without definitively addressing the Second Amendment claim.

I am familiar with the NRA lawyer on this case, Stephen Halbrook. He has won some important cases against restricitive gun laws, including Printz v. United States, the Supreme Court case that invalidated the mandatory background check provisions of the Brady bill, and is the author of several books on gun rights, including That Every Man Be Armed: The Evolution of a Constitutional Right. But he has also avoided bringing facial challenges to gun laws under the Second Amendment (as has the NRA), preferring to litigate on "safer" ground -- a strategy that has often proved successful in court. While I don't know whether Levy's charges are accurate, they are consistent with the past practice of Halbrook and the NRA.

Monday, May 12, 2003


The trouble with Star Trek: Happy Fun Pundit gives us the Top 10 Things I Hate About Star Trek. I'm convinced, but I'm not a huge Star Trek buff to begin with. Item 2 is particularly insightful.

     Thanks to InstaPundit for the pointer; please address hate mail to Happy Fun Pundit rather than to me.


iLoo apparently a belated April Fools' Day gag by Microsoft: Or was it? Here's the BusinessWeek story; thanks to Gil Milbauer for the pointer:
Microsoft claims that the iLoo, an outhouse with a built-in terminal for Web browsing, was an April Fools' Day gag -- even though it was announced May 2.

The Redmond, Wash.-based software giant said on Monday that news that MSN UK was creating the iLoo, a portable lavatory that was supposedly going to be tested at music festivals in Great Britain this summer, was an elaborate ruse. "I can confirm it was an April Fools' joke," said Nouri Bernard Hasan, a Microsoft spokesman in the United States, told CNET on Monday. . . .

Other than the invention itself, the apparent launch of the iLoo didn't bear any indications of being a joke. For example, public relations representatives for Microsoft commented on the product. A press release, which included comments from MSN executives, was posted May 2 to the Microsoft UK Web site, where it remained available for a week.

Searches on the MSN UK sites Monday indicate that the iLoo press release has been removed since then, although cached versions of the release could still be obtained through a Google search. No company disclaimer to the joke has been published.

"I've never known Microsoft to do that (to put out a fake press release)," said Matthew Rosoff, an analyst at Directions on Microsoft. MSN UK did not immediately respond to requests for comment.

In addition, U.K. natives now living in the United States could not recall any British tradition of pulling April Fools' stunts a month or so late. . . .


Westlaw Rewards and Academic Legal Writing: Waddling Thunder reports that my book is available to law students via Westlaw Rewards:
Prof. Eugene Volokh's much heralded new book on academic writing is now available on Westlaw through the use of Reward points, for a mere 948 or so. Quite a steal, I say.
I hadn't heard of the Rewards program before, but our local Westlaw representative filled me in:
Yes -- your book would be available at the 2 cent per point conversion rate via WestlawRewards as all (most) West and Foundation Press law school titles are available. . . .

More than 90% of all law students are members of the WestlawRewards program (membership is voluntary but very popular, as you can imagine). The relevant URL would be The only caveat I would point out is that the program is only open to US law students holding a valid, current law school Westlaw password.
Oh, and I'm happy to say that I've gotten eight orders for personalized copies of the book (six for the buyers themselves, and two as gifts), which I've promptly filled. Thanks to everyone who has bought it, either through me or through more conventional distribution channels!


Federal district judge concludes there is evidence of link between Iraq and al Qaeda as to Sept. 11 attacks: The court's opinion is here. Federal judges are hardly experts on international terrorism, so this conclusion is far from dispositive; what's more, the defendants (including Iraq and Saddam Hussein) did not appear. Still, it's an interesting case, and I thought I'd pass along the pointer. Here are the key conclusions; the summary of the evidence is available in the opinion:
I conclude that plaintiffs have shown, albeit barely, “by evidence satisfactory to the court” that Iraq provided material support to bin Laden and al Qaeda. As noted above, a very substantial portion of plaintiffs evidence is classically hearsay (and often multiple hearsay), and without meeting any exceptions is inadmissible for substantive purposes. Thus, the hearsay rule prevents the Court from considering as substantive evidence: the Ambassador of the Czech Republic’s letter which repeats Minister Gross’s statement about a meeting between Atta and al Ani in Prague, the contacts described in CIA Director Tenet’s letter to Sen. Graham, the evidence that Secretary Powell recited in his remarks before the U.N., and the defectors’ descriptions about the use of Salman Pak as a camp to train Islamic fundamentalists in terrorist. However, the opinion testimony of the plaintiffs’ experts is sufficient to meet plaintiffs’ burden that Iraq collaborated in or supported bin Laden/al Qaeda’s terrorist acts of September 11. Although these experts provided few actual facts of any material support that Iraq actually provided, their opinions, coupled with their qualifications as experts on this issue, provide a sufficient basis for a reasonable jury to draw inferences which could lead to the conclusion that Iraq provided material support to al Qaeda and that it did so with knowledge and intent to further al Qaeda’s cri inal acts. In particular, Dr. Mylroie testified about Iraq’s covert involvement in the World Trade Center bombing in 1993 and about the proximity of the dates of bin Laden’s attack on the U.S. embassies and Hussein’s ouster of U.N. weapons inspectors. Juries are invited to draw inferences from facts presented and this constitutes circumstantial evidence and this is what the Court has done here. My decision reflects no more than that the facts and the available inferences meet the plaintiffs’ burden of proof.


Dukes of Hazzard and the Texas Legislature: Democrats have apparently walked out of the Texas House of Representatives, as a procedural maneuver, and seemingly went into hiding:
Outnumbered by House Republicans determined to pass a congressional redistricting bill, 52 Democrats went into hiding today to keep the House from meeting.

At about 10:10 a.m., Speaker Tom Craddick ordered the House chamber locked so no one could leave. At 10:30, he ordered the House sergeant at arms to use whatever means he had available to arrest the missing members and bring them back to the House. . . .

The House walkout not only blocked the redistricting bill, but any action on all other bills on the calendar. The House cannot convene without at least two-thirds of the membership, or 100 members, present on the House floor under legislative rules. . . .

The crisis erupted this morning when, less than 30 minutes before the Texas House was due to convene, the letters of 52 Democrats were delivered to the Republican leadership informing them they would not be present. . . .

The Democrats' letters were uniform, all saying, "Please lock my voting machine until I physically return to the House floor and advise you personally that I wish my voting machine to be unlocked."

One of the organizers told the San Antonio Express-News in today's editions that the action was planned as retaliation against the Legislature's Republican leadership.

The lawmakers were preparing for the trip Sunday night and were packing clothes to allow them to stay away for four days, a legislative source told The Associated Press on condition of anonymity. . . .The latest group of quorum-busters planned to leave the state to avoid having state police detain them and forcibly return them to the House floor, if necessary.

"DPS or the Rangers can't exactly come get us if we are outside of Texas," said one legislator.

Several sources said some of the members were to board a plane leaving from a Central Texas airport to rural Oklahoma. A separate group would fly to New Mexico, while a third group left by bus for New Mexico, according to the sources. . . .
Reader Ryan Bates makes the following comment:
[This] gives me visions of the Dukes of Hazzard, with an overloaded bus of Dems running flat-out for the border, chased by the mean old Republican sheriff of Deaf Smith County. Naturally, the bus will be able to jump the rain-filled ditch, while the nasty sheriff’s car won’t. . . .


Traffic: I'm delighted to report that we've been getting an average of 7500-8000 unique visits per weekday over the past several weeks, up from 5000-6000 just a couple of months ago.


New law professor blog: David Bernstein, a George Mason University law professor, has just started a new blog. David is one of the leading libertarian law professors in the country, and a top constitutional scholar; definitely worth reading.


Caesarian section: Julius Caesar apparently wasn't born that way, even though the term may (or may not) be based on the theory that he was, and even though the OED (at least the original edition) says that this "was done in the case of Julius Caesar." A bunch of sources seem to confirm this; here's an excerpt from one:
The OED erroneously states that Julius Caesar was born by Caesarean section. Merriam-Webster Editorial Department (on its AOL message board, in response to a query from me) writes:

"The name 'Caesar' is a cognomen, a nickname given to one member of a Roman clan and borne by his descendants as a kind of surname. No one knows who the original Caesar was, but his descendants within his clan, the Julii, continued to use his cognomen and formed a major branch of the clan.

"According to a legend related by the Roman naturalist Pliny, the first Caesar was so called because he was cut from the womb of his mother (a caeso matris utero), Caesar supposedly being a derivative of the verb caedere 'to cut'. This etymology is dubious, but the name 'Caesar' has continued to be associated with surgery to remove a child that cannot be delivered naturally.

"The OED gives evidence for the belief that Julius Caesar, the most famous bearer of the cognomen, was delivered this way that dates from 1540. There is no authority for this notion in ancient sources. Moreover, Julius Caesar's mother lived long after his birth -- unlikely if she had undergone such an operation, which few women would have survived in those days. In any case, the earliest record we have for the term 'cesarean section' used in English dates from 1615. You can easily see from these dates why we say that the term came from the belief, and not, to throw in a little more Latin, vice versa."

The Facts on File Encyclopedia of Word and Phrase Origins suggests that Caesar's name may have become associated with the operation because of an edict of the Caesars of Imperial Rome (Lex Caesarea) that any pregnant woman dying at or near term was to be delivered by C-section; but Merriam-Webster Editorial Department
says "We can find no evidence for" such an edict.


The moral of the Case Western killings: Here's an excerpt from a story in The Register (UK):
Halder's anger centered on university employee Shawn Miller, a school computer-lab assistant Halder believed had hacked his site, thereby destroying his life. He pursued Miller, whom he described as an evil man, through the civil courts and in numerous complaints to the university president, the campus police, the Mayor of Cleveland, the FBI and even the US House and Senate Judiciary Committees, but his pleas for justice were ignored at each turn.

"The end result of all of these outright evil actions will be that society will end up paying a severe price," Halder had warned in one such communique. . . .

Halder . . . believed he possessed the secrets to peace and prosperity for all mankind and graciously shared these nuggets of wisdom via his Web site -- until someone deleted its entire contents from his computer.

"I try to solve mankind's problems through the Internet," Halder explained in a court deposition against Miller. "In a few seconds, the evil man wiped out everything that it took my lifetime to create," he later whinged in an e-mail to school officials. . . .
So the moral, I think, is clear: Always back up your files!


Discriminatory discipline: William Safire writes, in the New York Times writes this in a column about the Jayson Blair scandal:
Now about the supposed cost of diversity: A newspaper is free to come down on the side of giving black journalists a break if its owners and editors so choose. What's more, this media world would also benefit from more Hispanics and Asians coming up faster.
     Actually, the New York Times is not legally free to come down on the side of giving employees of one race a break. Race discrimination -- treating employees differently based on their race -- in either firing or other forms of discipline violates antidiscrimination law. If Blair wasn't fired (or demoted or otherwise seriously punished) for certain things, but white reporters were fired/demoted/punished for similar things, then the white reporters have been treated illegally. (Antidiscrimination law has been interpreted as allowing some narrowly crafted affirmative action plans that do treat employees of some races better than others in some contexts; but this is a limited exception to the equal treatment requirement, and I know of no evidence that the Times indeed had an affirmative-action discipline plan that would fit into this exception.)

     This is of course a point about the law, not about the facts in this case: I don't know whether Blair was treated better than white employees because of his race, and in particular whether other employees were promptly fired for conduct on which Blair was "giv[en] . . . a break." But Safire's categorical assertion about what newspapers are "free" to do does not seem legally correct.


"Might not be considered so collegiate anymore": This quote from the spokesman for a design consulting firm in the Minuteman controversy) bugged me enough that I wanted to give it a separate post:
"A guy with a gun might not be considered so collegiate anymore."
If that's true -- if the guys with guns who helped win American liberty and independence are not "considered so collegiate anymore" -- then Massachusetts is in pretty bad shape.


A bit more on the U Mass Minuteman controversy: The article I cited below also contains the following quote:
"Is (a change) absolutely necessary? Probably not," said UMass lacrosse player Cyndi Doyle, who says her team generally avoids using any nickname at all. "But it's better to be (socially) ahead than behind, and I think we're behind."
It's better to be ahead of people, but only if they and you are going in the right direction. The better quote, I think, is this one, from a Washington Post story:
"Some alumni are up in arms about the proposed change.

"It stinks," protested Ed Struzziero of Wilbraham, a 1950 graduate whose class raised $100,000 and presented the school with a statue of a Minuteman last fall.

More than 900 of the 1,100 men and women in Struzziero's class were World War II veterans, and he said many felt the Minuteman was an appropriate symbol for the state university in the place where the American Revolution began. "Times change, but some things shouldn't be touched," he said.
Oh, and one more item, from the Washington Times, apropos a perennial Volokh Conspiracy topic:
"Meanwhile, alumni who have coughed up $100,000 for a Minuteman statue are not pleased. Letter-writing and phone-calling campaigns have been organized; several online polls reveal that more than 90 percent of the respondents want the Minuteman to stay at his post."
Online polls -- what are they good for? Absolutely nothing! Or at least nothing valid; they may be useful for persuading people who don't know the problems with online polls, but I wouldn't call that "good."


Blogs and google: The Register (U.K.) has a piece on the possibility that google will have a separate search tab for blogs, as it does for Usenet -- and will at the same time exclude blogs from the general search feature.

     There are indeed plausible reasons for google to do this sort of thing, and the Register piece outlines them. But then it weakens its own credibility (1) by completely ignoring any possible counterarguments, and (2) throwing in snide digs at bloggers, of the very sort that people used to make about noninstitutional Web speakers generally (who are now the supposed good content providers that, according to the article, google ought to search, as opposed to the bad content providers in blogging). I think there's great value in search engines trying to distinguish different types of content, and identifying the more valuable types, if they can do that more or less accurately. But discussions about this sort of thing work best when people really explain the pluses and minuses of each content class, rather than just assuming the answer.

     (Incidentally, as some have pointed out, any attempt to segregate blogs -- either for the purposes of counting links, or for providing the actual data -- requires google identifying what is and what isn't a blog, a distinction that's hard to implement as code. But I take it that they can come up with a heuristic that's close enough for their purposes.)


U Mass considering dumping "Minuteman" mascot as too sexist and violent: The Foxnews TongueTied feature points to this story:
By September, the UMass Gray Wolves men's and women's teams may be charging onto the field, while the gun-toting, single-gender Minuteman -- a UMass symbol since 1972 -- is sent to the showers for good. . . .

"Gray Wolves would be unique in Division I college sports, and it's indigenous to the area," [UMass Athletic Director Ian J. McCaw] said. "The design company expressed some concern with the single-gender ethnicity of the Minuteman, and the fact he's carrying a firearm (in the logo) is also a concern."

McCaw said social and practical reasons exist for change. For one thing, the women's teams are called the Minutewomen, even though no colonial Minutewomen ever actually existed.

"In 1972, UMass had 15 men's teams and two women's teams," McCaw said. "Now we have 10 men's and 12 women's teams."

McCaw said the design experts are looking into using two different Gray Wolves logos. One would reflect an aggressive, ferocious animal, suitable for the competitive sports.

The other could be a more child-friendly and marketable animal mascot, which are very popular in sports.

According to Springfield Republican outdoors writer Frank Sousa, however, the portrayal of a cuddly wolf is ridiculous.

"Wolves attack only the sick, injured and helpless," said Sousa, one of the region's foremost outdoors spokesmen.

"Besides, the last gray wolf sighting around here was in the late 1890s, in a barrel outside Thompson's Clothing Store in Amherst after being shot in Northampton," Sousa said. "And those were skinned." . . .
This isn't a First Amendment issue -- a university is entitled to decide to change its team name, even in response to public reactions. Moreover, universities should in some measure care about public reactions, both as a matter of civility and good business. I'm not therefore inherently bothered by people calling for changes to mascots and team names.

     What bothers me is the nature of this objection. First, "the fact he's carrying a firearm (in the logo) is also a concern" -- why, exactly? The Minutemen were soldiers, soldiers fighting in defense of liberty and independence. One needs guns for that sort of thing. We should celebrate those who fought on America's behalf, and we shouldn't hide the fact that to do that, they required deadly weapons.

     The problem here, it seems to me, is a moral blindness, a failure to draw significant moral distinctions. Some gun use is evil; some violence is evil; some gun use is good; some violence is good; there's nothing inherently worthy of concern in a person being depicted as carrying a firearm, or a person being depicted for his morally praiseworthy use of violence. I've actually objected to the casual glamorization, including in team names, of Pirates and Buccaneers, evil users of violence. But it's the evil that's the problem, not the Minutemen or their firearms.

     Second, I suspect that all but the most literal-minded of UMass women students have no problem with being called Minutemen. In fact, I think that all Americans of both sexes and all ethnicities and ages hope should feel a connection to the Minutemen, and think them to be worth emulating. Yes, the women aren't literally "men," at least under one definition of "man." But they aren't gray wolves either, are they?

     More broadly, for women to succeed in many walks of life, they should draw their role models from men. To become great soldiers, women have to emulate other great soldiers -- who were men. To become great scientists, women need to draw inspiration from Newton, Darwin, Einstein, and others -- overwhelmingly men. (The same is in large measure true for many racial and ethnic minorities in many fields.) The lack of women role models may often be due to past sexism; but this lack is indeed a reality. And if girls and women really do conclude that the men of the past can't serve as inspiration for them, then they (girls and women) will be the ones who suffer as a result. The solution is for people to be taught to value, respect, and emulate worthy people, such as the Minutemen, whether or not one's gender matches theirs -- not for people to be taught that one's symbols, models, and team names must be sex- and ethnicity-appropriate.


Rushdie The Rushdie story Sasha mentions below is available in his (I think quite underrated) collection of short stories,
East, West.


-and-a-half-old Patriot Act titled "No Patriot Act Excess, But Critics Unpersuaded." It begins:
  The specter of heavy-handed government agents empowered by the Patriot Act descending upon small towns and libraries to abuse law-abiding citizens has so far not happened.
  But civil libertarians of both the left and the right have not relaxed. They say violations could take years to surface.
  "These don't percolate right away; we don't often hear about [cases of abuse] until it ripens," says Joshua Dratel, co-chairman of the amicus committee of the National Association of Criminal Defense Lawyers.
  "Right now, it's still below the radar," Mr. Dratel says.
     So here's the interesting question: what are the chances that there have been major civil liberties violations under the Patriot Act that we don't know about? Should we assume that the fact that there have been no established cases of abuse resulting from the Patriot Act after eighteen months means that the abuses just haven't "percolated" and "ripened," as Dratel suggests, or is it possible that abuses haven't happened?

     We can't know for sure, of course. And I suppose it depends on the nature of the violation; some violations are more likely to become public than others. At the same time, I would guess that the government generally would have a tough time keeping major abuses secret. Leaks are almost inevitable, as the leak of the the so-called "Patriot II" draft legislation a few months ago shows. The recent "Patriot Raid" episode indicates that some media outlets are are so hungry to report Patriot Act abuses that they will provide a forum for claims of abuses under the Patriot Act even if the e isodes apparently don't relate to the Patriot Act. So in general, I would expect that abuses related to the Patriot Act are more likely than other government practices to become public. Of course, the flip side is that in earlier eras many abuses did in fact take years to become public. So as I said, we can't know for sure.


Bushisms Before the Bench After reading the transcript from a recent oral argument before the Supreme Court, Stuart Buck thinks those who harp on "Bushisms" should cut the President some slack. Even with the likes of Ted Olson and Laurence Tribe arging before the Court, Buck rarely found more than two sentences in a row without grammatical or other mistakes.


Are Black Immigrants Sufficiently Black? African and Caribbean immigrants do not think of themselves as “black” – or at least not enough to satisfy some American black leaders, according to this report on the "Spirit of Democracy Symposium on Diversity" last week in Washington, D.C. African and Caribbean immigrants often live in separate neighborhoods and are not actively involved in black American organizations.
"When we talk of housing disparities, education problems ... many [immigrants] don't think that affects them," said William Spriggs, executive director of the National Urban League Institute for Opportunity and Equality. "Black politicians ... haven't been able to get [black immigrants] to buy into what white America is all about, about what white privilege is. Immigrants don't come here with that understanding. We have to change our language to let them know that these are their problems."
Apparently African and Caribbean immigrants remain insufficiently aware of the "color line" that prevents them from succeeding in America.

Of course there is another explanation: African and Caribbean immigrants experience greater rates of educational, professional, and economic success than native-born blacks. African-born blacks are among the most successful immigrant groups in the United States in terms of education and per-capita income. With more success, perhaps these immigrant groups have less to blame on "white America" – or in another panelist’s phrase, "white supremacy." Alternatively, perhaps the refusal of immigrant groups to embrace victim status explains part of their success.


What has been reading? I'm waiting for my Academic Legal Writing book to appear on amazon, so I periodically search for "Eugene Volokh" under books there. So far, it's still just coming up with my First Amendment textbook and the Supplement, but then, on the left-hand side of the screen it recommends (as "You may also like") a book called The Multiculturalism of Fear by . . . Jacob T. Levy, our coblogger here! I assume that some people who bought my book also bought Levy's, perhaps because they're readers of this blog (though I suspect that relatively few people buy my textbook via amazon, since the main market is law students for whom the book is assigned reading, which means their law school bookstore likely carries it at pretty much the same price). Or maybe amazon knows more than I think it knows . . . .

Sunday, May 11, 2003


Tom Friedman's latest from the New York Times.


Awww, and I even speak a little Klingon: But here's something that's not bunk, which I discovered while thumbing through an old New Yorker (August 22 & 29, 1994) I uncovered in my closet: a short story called Chekov and Zulu by Salman Rushdie, which is both funny and touching, about India, Star Trek, The Lord of the Rings, and counterterrorism. It's hard to quote anything from there, but this captures some of Rushdie's flair:

Three months later Zulu telephoned his wife.
"Oh my God hai hai where have you vanished are you dead?"
"Listen, please, my bivi. Listen carefully, my wife, my only love."
"Yes. O.K. I am calm. Line is bad, but."
"Call Chekov and say, 'Condition red.'"
"Arre! What is wrong with your condition?"
"Please. Condition red."
"Yes. O.K. Red."
"Say the Klingons may be smelling things."
"Clingers-on may be smelly things. Means what?"
"My darling, I beg you."
"I have it all right here only. With this pencil I have written it, both."

Read it, if you can, with an Indian accent of some sort, at least the dialogue parts. This web site (on the SikhNet -- we like Sikhs because they, too, have KH in their name) glosses some of the Hindi terms (which the version in the New Yorker didn't do), but that's not even necessary.

P.S.: Am I the only one who noticed, in the movie The English Patient, how after the Sikh explosives guy (Kip, played by Naveen Andrews) first gets together with the French [UPDATE: French Canadian] woman (Hanah, played by Juliette Binoche), as they're driving off on his motorcycle, the soundtrack is playing "Dancing Cheek to Cheek," as though to say, "And I seem to find the happiness I Sikh . . . ."


Looking for help with Web page line length problem: The long URLs that I quote in one of the posts below cause problems for Netscape -- it sets the right margin for the whole blog based on those few long lines, so that the lines in each post no longer wrap around, and people have to scroll right and then scroll back left in order to read them. Everything looks fine in Explorer, however.

     Any HTML codes I can include to keep that from happening? I thought of inserting spaces or line breaks in the middle of the long URLs, but then people won't be able to copy and paste the URL in order to access it, which was my goal. I was hoping there might be one global code I could insert into the template or into the post that would solve the problem. If you have any ideas, please e-mail me at volokh at Thanks!

UPDATE: Thanks very much for all the responses! All of the recommendations involved some changes to each post, so I did the easiest thing and changed all the long URLs into direct links, with the displaying text being just "[click here]." It seems to work well now.

     Still, this sure seems to indicate some highly suboptimal browser design. Most of the time, when people include long lines on their Web pages (even long lines with no spaces in them), they do not want the margins for the page to be set very wide; no readers like having to scroll left and scroll right in order to read each paragraph. Rather, they'd prefer to see the browser include some line breaks, even if the breaks have to be in the middle of a long item, rather than at a space. True, sometimes the wide margins is good, for instance when the long item is a table. But usually, it's bad. I'd have expected that the browsers would at least have some HTML code that they quickly recognize as a global "do not set margins wide on this page, even if that means having to force line breaks in the middle of long stretches of space-less text." If the browsers don't have such a feature (and maybe they do and I just don't know about it), then that seems to be a flaw.


Klingon interpreter story seems to be bunk: Yesterday, I posted the following, citing an AP story:
"Hospital seeks Klingon speaker": I found the key factual assertion -- that of the 60,000 mental patients in Multnomah County, enough insist on speaking only Klingon that this justifies hiring a special interpreter -- to be hard to believe; but I thought I'd pass this article from along in any case:
Position Available: Interpreter, must be fluent in Klingon.

The language created for the "Star Trek" TV series and movies is one of about 55 needed by the office that treats mental health patients in metropolitan Multnomah County.

"We have to provide information in all the languages our clients speak," said Jerry Jelusich, a procurement specialist for the county Department of Human Services, which serves about 60,000 mental health clients. . . .

"There are some cases where we've had mental health patients where this was all they would speak," said the county's purchasing administrator, Franna Hathaway.

County officials said that obligates them to respond with a Klingon-English interpreter . . . .
I'm now very pleased to have expressed skepticism about the underlying factual assertion, because it now appears to be false. This kuro5hin post sets out the whole story about how the AP (the source of the CNN) story botched this. The original source was apparently this Portland Oregonian story, which specifically said that "in reality, no patient has yet tried to communicate in Klingon"; it also made clear that no such interpreter was in fact about to be hired, and that the inclusion of Klingon on the list of languages for which interprets would be authorized was something of a lark:
Officials have decided to include it with about 55 languages, some of which, such as Russian and Vietnamese, are widely spoken, and some, such as Dari and Tongan, are seldom spoken. . . .

The county would pay a Klingon interpreter only in the unlikely case he or she was actually called into service.

"We said, 'What the heck, let's throw it in,' " [Jerry Jelusich, a procurement specialist for the county Department of Human Services] says. "It doesn't cost us any money."
Unfortunately, the Oregonian story also included the following, right before the "in reality" quote:
The county's purchasing administrator, Franna Hathaway, greeted the request with initial skepticism. "I questioned it myself when it first came in."

But, she adds, "There are some cases where we've had mental health patients where this was all they would speak."

Jelusich says that in reality, no patient has yet tried to communicate in Klingon. But the possibility that a patient could believe himself or herself to be a Klingon doesn't seem so far-fetched.

"I've got people who think they're Napoleon," he says.
Hathaway probably either didn't have the facts right, or was quoted out of context (perhaps the "this" referred to something else) -- but of course it was the erroneous but striking material (some patients will only speak Klingon, and therefore a Klington interpreter must be hired) and not the accurate but not that exciting material (no patient has actually tried to speak Klingon, and Klingon is being included on the authorization list mostly as a lark, with no interpreter actually being provided now) that made its way into the AP story.

     Many thanks to Seth Finkelstein on kuro5hin for getting to the bottom of this, and reader Jerry Brito for pointing me to this.


Alleged Case Western gun murderer, on guns: He's apparently against them -- see the link labeled Take Action Against Substance Abuse and Gun Violence on this page. Means nothing logically; the guy seems pretty twisted mentally, so there's nothing particularly telling about his reasoning. But it is an interesting irony.


Still more from the apparent Case Western killer: Mike O'Ronain passes along more, which I again pass along to you in case some of you are interested in seeing what light this might shed on Halder's thinking; I'm not sure how much it does, but there might well be some interesting nuggets buried here. Again, please note that I haven't had the time to check the links or the contents.
Note that Biswanath Halder appears to have created a lot of links to his home page which is why is gets such a high ranking in in GOOGLE. There appear to be a LOT of hidden pages on his home web site which are only linked via external postings. I had to do a Google text search, with duplicates, to find them.

This google search is a goldmine for "" with over 110 hits:

[click here]

Only 17 hits for ""

[click here]

In addition to his affiliations with ANSWER, Biswanath Halder has a number of other interesting contacts. I tried not to duplicate what has already be BLOG'ed. I did find another BLOG about him. You may or may not have some of this:

Campaign Against Sanctions on Iraq (The usual group of Communists)

The Iraq Crisis

Signature List for Petition 'Condemn Attacks on Swami Narayan Akshardham

Independent Florida Alligator - LETTERS TO THE EDITOR (this is BLOG'ed I think)

Another BLOG about Biswanath Halder from Cleveland OH, at first nice but then two days later, after the shooting, there is a change. Steve Ganze Appreciation Post

Iraq Under Siege

Information about his deleted computer files:

[IMC-DC] Incompetent Police + Idiot Mayor + Felon Clerk of Council (Could you please publish?)

I had to use Google cache for this page as it woiuld not load:
[click here]

[IMC-DC] Let Us Make The World A Better Place To Live (Could you please publish?)
Google cache:
[click here]

Student Committee of the Iraq Action Coalition

Index to Linux-related Literature
Biswanath Halder on Cybercrime

A large collection of links and quotes relevant to cybercrime can be found at a webpage authored by Biswanath Halder, one of CLUG's own:

This one is very strange! But he did not like Pakistan.

Deal with Pakistan now

Student Committee of the Iraq Action Coalition

[NV Greens] FW: [IPPN] Updated "An Urgent Call for Leadership"

From the Marxism mailing list:

(fwd from Biswanath Halder) Iraq Under Siege

He was always looking for a car ride:

[clug-talk] Ride to the InstallFest

There were quite a few posts about "Iraq Under Siege" but they were all the same.
And some more, also from Mike O'Ronain; the material on the Halder libel lawsuit was, I think, already linked to by the one page that I blogged about yesterday:
These are all on the pages I could find on his two web sites.

Biswanath Halder's Homepage

Biswanath Halder vs. Shawn Miller, et al (This is the smoking gun!)

19-Feb-2002: Letter from Biswanath Halder to Judge John Sutula

04-Mar-2002: Letter from Biswanath Halder to Judge John Sutula

11-Jul-2002: Letter from Biswanath Halder to Judge John Sutula

13-Feb-2003: Letter from Biswanath Halder to Judge John Sutula

Cuyahoga County Court of Common Pleas Docket No. Civil 441308

Other documents are at "".

Polls and Petitions on Important Issues

The Iraq Crisis

Crisis in the Balkans

Crisis in East Timor

Depleted Uranium -- A Threat To Humankind

V Ramakrishnan -- An Evil Man

Economies of Two Countries -- India and Japan (Redirect to JI.html)

Tales of Corruption (the root cause of India's problems)

A Guide to Search Engines

100 Search Engines

The Cost of Cyber-Crime

Information on India and Indians

UNITED STATES GOVERNMENT (federal and state)

Resume Biswanath Halder

Information on Business and Finance

Cyclone in Orissa

Information on Computer Science

Media Directory

Baby Names

Information on Science and Scientists

Information on Engineering and Engineers

Information about Law and Lawyers

Worldwide Indian Network

Guest Book

Guest Book Comments

Information on the United States


Biswanath Halder's Homepage

Resume Biswanath Halder

Education Biswanath Halder (Professional Student)

Chronology Biswanath Halder

Worldwide Indian Network


WIN Committee on Pressler Amendment (Pakistan: Nuclear Infrastructure)

WIN Committee on Family Reunification Bills

WIN's Entrepreneurial Initiative

Welcome to WIN Business Council

Welcome to WIN Business Council

WIN's Entrepreneurial Initiative -- An Invitation ("BusC00")

Membership Responsibilities ("BusC05")

Responsibilities of Members of the Executive Board ("BusC30")

Responsibilities of Members of the Editorial Board ("BusC40")

WIN Business Council

WIN Committee on Kashmir

Extremists Attract Students (by Arslan Malik)

Pakistan's Islamic Bomb (by Yossef Bodansky)

Islamabad's Road Warriors (by Yossef Bodansky)

Pakistan's Kashmir Strategy (by Yossef Bodansky)

The Enigma That Is Pakistan (by Prem Shankar Jha)

Human Rights in Kashmir -- A Historical Perspective

The Taliban: Exporting Extremism (by Ahmed Rashid)

Pakistan's Nuclear Brinkmanship (by Yossef Bodansky)

President Clinton's Speech at the UN (on 27 Sep 1993)

Talibanization's of Pakistan's Transitional Democracy (by Maya Chadda)

The Kargil Crisis (by Stephen Cohen, Ahmer Bilal Soofi, VR Raghavan, Francois Gautier)

The New Islamist International (by the Task Force on Terrorism & Unconventional Warfare)

Instrument of Accession (Signed by the Maharaja of Kashmir and the Governor General of India)

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