[Eugene Volokh, 7:49 PM]
ANTI-DEFAMATION LEAGUE PASSES THE TEST: The Muslim Legal Defense & Education Fund's call for the bar to sanction Alan Dershowitz made me think -- when the Illinois State Bar rejected Matthew Hale, the leader of a racist and anti-Semitic religious movement, on "moral character" grounds, what did the Anti-Defamation League of B'nai Brith say? Did it speak up in favor of Hale's First Amendment rights (as Dershowitz himself did), or did they take the view that lawyers should indeed be legally barred from expressing certain ideas? Sad to say, at least some American Jews have urged that anti-Semitic views be legally repressed -- not realizing, I think, how quickly such a doctrine could be turned around to suppress the views of others, such as Dershowitz. (This is not to say that Dershowitz's views are remotely morally akin to Hale's -- but only that when the law starts punishing even genuinely evil speech, a lot of controversial speech, which some may see as evil, becomes jeopardized.)

     To the ADL's credit, here's what they said in their press release (I honestly did not know before doing the search which way they came out on this, and would have happily blogged whatever I found):

ADL Reacts to Illinois Bar Panel's Rejection of Extremist Matt Hale: "Well-Intentioned" Yet "Sets a Dangerous Precedent"

Chicago, IL, February 4, 1999... The Anti-Defamation League today released the following statement regarding the decision of the Illinois Board of Admissions to the Bar to deny certification to avowed racist and anti-Semite Matt Hale on the basis of its character and fitness requirements. Richard S. Hirschhaut, the Director of the League's Greater Chicago/Upper Midwest Region, and Harlan A. Loeb, Midwest Counsel, commented:

Matt Hale’s abhorrent bigotry is a matter of public record, and he does not deny it. To the contrary, he takes pride in it, and gives it voice in his leadership of a racist and anti-Semitic organization, the World Church of the Creator.

The Anti-Defamation League believes that Matt Hale’s moral compass is seriously defective. Exposing him and condemning his views are consistent with ADL’s mandate to combat prejudice and discrimination.

In this regard, we believe the decision of the Inquiry Panel of the Committee on Character and Fitness in Illinois was well-intentioned. The two judges who determined that Hale was unfit to practice law in Illinois obviously share our view of his moral judgment.

At the same time, the decision troubles us. The test for "fitness" for attorneys has never traditionally been a test of the applicant’s moral views. To the contrary, it has focused on the individual’s conduct, particularly when that conduct has raised questions about his or her ability to obey and uphold the law.

We believe that denying an individual a license to practice law because of his views – no matter how abhorrent those views may be – sets a dangerous precedent. At another time, in another place, we could envision a circumstance in which another Committee on Character and Fitness could follow this lead to reject a candidate because that candidate has expressed support for abortion, opposition to school prayer, or other moral views contrary to the majority of his or her community. This becomes a very slippery slope.

While we find this entire matter complex and difficult, on reflection we agree with the dissenter on the Illinois panel who wrote that the "advocacy of beliefs, no matter how repugnant to current law, cannot be the basis for denial of certification to an applicant who will subscribe to [his oath as an attorney] . . . Time will tell if Matthew Hale can in fact practice law in accordance with his oath while holding extremist views."

Score: ADL 1. Thoughtful, foresighted understanding of the danger of speech suppression 1. Muslim Legal Defense & Education Fund 0.

 
[Eugene Volokh, 7:22 PM]
MUSLIM LEGAL DEFENSE & EDUCATION FUND TRYING TO SUPPRESS ALAN DERSHOWITZ'S FREE SPEECH RIGHTS: Here's their press release:

MUSLIMS FILE DISCIPLINARY COMPLAINT AGAINST ALAN DERSHOWITZ

Harvard Professor Advocates War Crimes Says Muslim Legal Group

(WASHINGTON D.C., 11/21/02) - An American Muslim legal group today announced the filing of a complaint with the Massachusetts Board of Bar Overseers demanding disciplinary action against Harvard Law Professor Alan Dershowitz.

The Muslim Legal Defense and Education Fund (MLDEF) says Dershowitz violated rules of professional conduct when he advocated the commission of war crimes and the use of torture.

MLDEF will hold a conference call today at 11 a.m. (EST) to discuss its complaint. Media professionals may call 510-220-1414 to receive the phone number and password.

In an article published in the Jerusalem Post and the New York Daily News on March 11, 2002, Dershowitz advised the Israeli government to establish a "waiting list" of Palestinian villages scheduled for destruction as a means of deterring future suicide bombers. In so doing, he has violated Rule 8.4 (d) of the "Rules of Professional Conduct" which states: "It is professional misconduct for a lawyer [in Mass.] to engage in conduct that is prejudicial to the administration of justice."

As an officer of the legal system Prof. Dershowitz has sworn an oath to uphold the laws of the State of Massachusetts and of the United States. The latter includes international treaties and conventions to which the United States is a signatory.

The destruction of villages is a Nuremberg War Crime and is contrary to Article 33 of the Fourth Geneva Convention which states: "No protected person may be punished for an offense he or she has not personally committed," and "collective penalties and likewise all measures of intimidation or of terrorism are prohibited."

The Geneva Convention is a ratified treaty and is therefore a valid Federal law of the United States.

"Traditionally the international community has only had the capacity to deal with ethnic cleansing and genocide, through humanitarian assistance for the victims or through war crimes tribunals, after it has occurred,” said MLDEF Chair Al-Hajj Talib Karim Esq. "A much more effective approach would be to censure those who are in the midst of laying the pseudo-legal foundation for war crimes in the hope that the momentum towards such acts is slowed or stopped," said Karim.

He added, "Surely the Board of Bar Overseers would have reprimanded a Massachusetts lawyer who advocated in a Nazi-era newspaper for the destruction of the Warsaw Ghetto. Such behavior is prima fasciae unbecoming of a lawyer, and those who advocate such things ought to be disciplined."

     Wow, if Rush Limbaugh said a week ago "I can just imagine American Muslim activist groups trying to suppress Americans' First Amendment rights, and trying to coercively shut down one side of the debate about how the West ought to fight," people would have called him a religious bigot. "Oh, no, American Muslim groups would never do such a thing!" But here it is, in the Muslim Legal Defense and Education Fund's own words.

     Incidentally, while I'm not an expert in the rules relating to lawyers' conduct, I very much doubt that the MLDEF has a leg to stand on even setting aside the First Amendment; while the rules do bar "conduct that is prejudicial to the administration of justice," I don't believe that this has ever been interpreted as covering op-eds that urge government entities to engage in certain ways, even if those ways ultimately prove to be illegal or unconstitutional. But even if the Massachusetts Board of Bar Overseers decides to interpret the prohibition this broadly just based on its text, the First Amendment would most certainly trump any such interpretation.

 
[Eugene Volokh, 12:06 PM]
OW! According to Reuters,

[A] 50-year-old scientist . . . burned his penis . . . [when] writing a report at home for about an hour with the computer on his lap.

He noticed a redness and irritation the following day but it was not until he was examined by a doctor that he realised how much damage had been done [though he eventually healed fine] . . . .

[Dr. Claes-Gorn] Ostenson noted that the computer manual did warn against operating it directly on exposed skin but said the patient had lap burns even though he had been wearing trousers and underpants.

"This . . . story should be taken as a serious warning against use of a laptop in a literal sense," he added.

 
[Eugene Volokh, 7:11 PM]
LAW FIRM SEEKING TO STOP PEOPLE FROM USING ITS LANGUAGE IN THEIR PLEADINGS: From law.com:

Milberg Weiss Bershad Hynes & Lerach . . ., known for serving as lead plaintiffs' counsel for stockholders suing Enron, is attempting to clamp down on law firms that lift language from complaints it files in shareholder class actions.

As a result, Milberg Weiss' local Atlanta counsel on the matter, John C. Herman of Duane Morris, sent cease-and-desist letters to about 10 firms around the country this month, asking them to stop violating his client's copyright by plagiarizing Milberg Weiss' work product. None of the targeted firms is in Atlanta.

"It's been a longstanding practice of certain law firms simply to take our work product, actually our clients' work product, and then copy it and use it for their own benefits," said William S. Lerach, a partner in Milberg Weiss' San Diego office, and one of the best-known plaintiffs' securities class action lawyers in the country.

Lerach adds that a wise person -- whom he won't name -- took him aside and said, "You're being taken advantage of. You shouldn't tolerate it. You should copyright your complaints."

He started putting copyright notices on some of his complaints, and registering those notices with the U.S. Copyright Office last September. Now, Herman is attempting to enforce those copyright protections. None of the firms has responded to the cease and desist letters, and Milberg Weiss has not filed any suits.

"The other plaintiffs' firms, who don't have the same experience, support or expertise that Milberg does, are taking the complaints that have been written, investigated and drafted by the Milberg attorneys," said Herman. "They're copying those complaints and filing them in the same case." . . .

Sometimes, the complaints are virtually unchanged; other times, the copycat firms only lift about 50 percent of the complaint, he said. . . .

"There are cases where Milberg lost the lead plaintiff role to a firm that does not have the same expertise, experience and resources," Herman said. The result, sometimes, is a lower settlement than Milberg's expertise might have brokered, or a case getting dismissed when it shouldn't have been, he adds.

"I think that [Milberg Weiss lawyers] are saying that they would have done a better job," Herman says.

Because of other firms copying its complaints, Milberg Weiss got shut out of the plaintiffs' lead counsel role in shareholder suits against at least four corporations, he said, citing Baker Hughes Inc., which creates technology for oil and gas producers; BroadVision, which provides portal software for Fortune 500 companies; software company Critical Path; and Pilot Network Services Inc., which provided managed network access and security services before closing in 2001. . . .

Though there's no copyright protection for the cases and statutes the firm may have cited, if other firms are lifting Milberg Weiss' work verbatim, the arrangement, selection and coordination of information is copyrightable and the firm could protect its compilation. . . .

It's not an easy claim to win, because compilation gets weaker protections. "Copyright in compilation tends to be 'thin.' That's what the U.S. Supreme Court has said," [Emory law professor Margo] Bagley said.

Thomas G. Field Jr., an intellectual property law professor at Franklin Pierce Law Center in Concord, N.H., is even less sanguine about Milberg Weiss' chances.

Though he didn't say the Milberg Weiss copyright theory won't pass the laugh test, he burst into laughter again and again during a 20-minute conversation on the subject. . . .

 
[Eugene Volokh, 5:34 PM]
A PHRASE THAT I HIGHLY DOUBT HAS EVER PERSUADED ANYONE: "Why are you in denial about this?" (I quote this from an e-mail that I recently received.)

 
[Eugene Volokh, 3:53 PM]
TOTAL INFORMATION AWARENESS SLIDE-SHOW, apparently from Poindexter's office. It looks best if you can run it as a slide-show; in my browser, I just clicked on the "Slide Show" button in the lower right-hand corner.

 
[Eugene Volokh, 3:27 PM]
ON THE RADIO AT 4 PM IN ORANGE COUNTY (CALIFORNIA), on KUCI (88.9 FM), talking about privacy, government power, and terrorism.

 
[Eugene Volokh, 2:35 PM]
LIBRARY FILTERS OUT ITS OWN WEB SITE:

Library Director James Oda earlier this month attempted to access the library's new Web site — www.fleshpublic.lib.oh.us — to show it off for the library staff. After three months of work by the staff, Oda was justifiably proud of the site. Unfortunately, the library computer denied him access. . . .

Oda said he never gave much thought to the library's name — named 70 years ago for businessman Leo Flesh, who donated the money for the library's current location. But Net Nanny, a filter the library uses on all the children's department computers, did not care much for "flesh" linked to "public." . . .

Fortunately, a change in the address — www.piqua.lib.oh.us — has allowed the library to access its own site.

Thanks to opinionjournal.com and to my friend and reader Gil Milbauer for the pointer.

 
[Eugene Volokh, 12:43 PM]
REPUBLICANS AND LIBERTARIANS: Leading libertarian law professor Randy Barnett asks the right question (right given my politics, that is!) in the National Review Online:

What would it take to attract more libertarian votes to the Republicans without alienating other members of the Republican coalition or moderate swing voters?

And he offers some thoughtful and generally quite sensible answers. Much worth a read.

 
[Eugene Volokh, 12:36 PM]
UNIVERSITY OF HOUSTON AND FREE SPEECH: From the Houston Chronicle, Oct. 26, 2002:

The [Pro-Life Cougars] sued the university in February after it was denied permission in October 2001 to erect a graphic anti-abortion display in Butler Plaza near the main library. UH officials said the display, which included pictures of dead fetuses, would have to go up in one of four designated "free speech zones."

In June, U.S. District Judge Ewing Werlein Jr. ruled that the policy was unconstitutional because it gave UH Dean of Students William F. Munson "unfettered discretion" in deciding what was potentially disruptive speech and therefore would not be allowed on the plaza.

Four days later, UH President Arthur Smith signed a new policy that university officials said addressed the legal concerns by providing strict guidelines on what was considered potentially disruptive. . . .

Under the new policy, no student "expressive" activity is allowed on campus other than in the four free speech zones. The university broadly defines expressive activity as public speaking, poster and sign displays, any other type of graphic exhibitions, performances, petitioning, "or similar noncommercial activities held on university grounds." . . .

UH has interpreted this as banning people from walking on a university plaza with a sandwich board, and handing out leaflets. A lawyer for the students, "said that Werlein's finding that Butler Plaza has historically been used for student expression will make it legally difficult for UH to ban free speech on the plaza."

     Public universities are indeed entitled to impose certain reasonable content-neutral controls on speech on university property; and nondiscretionary, blanket prohibitions may be constitutional even when discretionary or content-based ones are not, though the blanket ones are broader. Still, universities' discretion here is unlimited, especially as to places, like sidewalks or quads, where student speech has been traditionally tolerated. If the newspaper story is accurate, it looks like the University has gone too far.

 
[Eugene Volokh, 12:01 PM]
THE FOUR COMMISSIONERS' CRITICISM OF THE CIVIL RIGHTS COMMISSION STAFF REPORT: It's now up on the Web; for my original post about this, see here. Note that there are eight commissioners, so half of the Commission (the half consisting of all four of the Republican members) is protesting the staff's actions.

 
[Eugene Volokh, 7:58 AM]
L.A. TIMES / BELLESILES WATCH: Nearly three weeks ago, I wrote that:

1. The L.A. Times published a glowing review of Arming America ("With thorough scholarship, lucid writing and impassioned argument, Bellesiles offers a brief against the myths that align freedom with the gun") on the front page of the Book Review section, on Sept. 17, 2000.



2. Throughout the growing furor about the book in 2001, the Times said nothing about the controversy, even as the New York Times, the Boston Globe, and the Wall Street Journal covered the story.



3. On Feb. 8, 2002, the main L.A. Times news section published, on page 41, an Associated Press wire story that begins "A disputed, prize-winning book about the role of guns in the U.S. will undergo a formal inquiry from Emory University, where author Michael Bellesiles is a professor of history." The story quotes people on both sides of the matter, and provides no analysis of its own.



4. As of Nov. 4, no section of the L.A. Times had run any story about Bellesiles' resignation, or about the historians' report that prompted it. As I wrote, "This is quite odd, since one would think that the resignation of a tenured professor at a major American university -- a resignation related to a finding of gross error and some degree of intentional misrepresentation in an award-winning book on a controversial subject, a book that was prominent enough to warrant an L.A. Times review -- would be important news." However, I went on, "[t]o be fair to the book review section, a revised review may for all I know be in the works; it takes time to produce this, especially since the book review section publishes only on Sundays. Let's watch for it . . . ."

Well, I've been watching -- but nothing has arrived. I have just e-mailed Steve Wasserman, the L.A. Times Book Review section editor to ask his thoughts on the matter; I will keep you posted on the result.

UPDATE: The Book Review people say that they "are considering re-reviewing the book in light of the doubts, since confirmed, regarding the author's veracity and scholarship." Much hope that they will indeed decide to do this; again, will keep you posted.

 
[Eugene Volokh, 9:26 PM]
STAR WARS MEETS GULF WAR; thanks to The Kitchen Cabinet. I don't buy the politics, but the gag is very funny.

 
[Eugene Volokh, 6:03 PM]
HERE'S WHAT AMAZON.COM SAYS ABOUT BELLESILES' ARMING AMERICA: This is its official review:

While gun supporters use the nation's gun-toting history in defense of their way of life, and revolutionary enthusiasts replay skirmishes on historic battlefields, it now turns out that America has not always had a gun culture, and wide-scale gun ownership is much newer than we think. After a 10-year search for "a world that isn't there," professor and scholar Michael Bellesiles discovered that Americans not only rarely owned guns prior to the Civil War, they wouldn't even take them for free from a government that wanted to arm its reluctant public. No sharpshooters, no gun in every home, no children learning to hunt beside their fathers. Bellesiles exhaustively searched legal, probate, military, and business records; fiction and personal letters; hunting magazines; and legislation in his quest for the legendary gun-wielding frontiersman, only to discover that he is a myth. There are other revelations: gun ownership and storage was strictly legislated in colonial days, and frivolous shooting of a musket was backed by the death penalty; men rarely died in duels because the guns were far too inaccurate (duels were about honor, not murder); pioneers didn't hunt (they trapped and farmed); frontier folk loved books, not guns; and the militia never won a war (it was too inept). In fact, prior to the Civil War, when mass production of higher quality guns became a reality, the republic's greatest problem was a dearth of guns, and a public that was too peaceable to care about civil defense. As Bellesiles writes, "Probably the major reason why the American Revolution lasted eight years, longer than any war in American history before Vietnam, was that when that brave patriot reached above the mantel, he pulled down a rusty, decaying, unusable musket (n t a rifle), or found no gun there at all." Strangely, the eagle-eye frontiersman was created by East Coast fiction writers, while the idea of a gun as a household necessity was an advertising ploy of gun maker Samuel Colt (both just prior to the Civil War). The former group fabricated a historic and heroic past while Colt preyed on overblown fears of Indians and blacks.

Bellesiles, who is highly knowledgeable about weapons and military history, never comes out against guns. He is more interested in discovering the truth than in taking sides. Nevertheless, his work shatters some time-honored myths and icons--including the usual reading of the Second Amendment--and will be hard to refute. This fascinating, eye-opening account is sure to both inform and inflame the already highly charged debate about guns in America. --Lesley Reed --This text refers to an out of print or unavailable edition of this title.

Yup, "He is more interested in discovering the truth than in taking sides." "His work . . . will be hard to refute." It "inform[s]" the debate. It "discover[s] that Americans . . . rarely owned guns prior to the Civil War." Too bad that Bellesiles was more or less pushed out of his faculty position because a panel of independent historians -- who were by no means gun buffs -- found that he was guilty of gross scholarly negligence, and seemingly even of some degree of outright dishonesty, and that even the book's past defenders (such as Garry Wills, who is quoted in a jacket blurb that amazon reproduces) are acknowledging that it's deeply flawed.

     This is amazon, an online site, not a print newspaper. The people at amazon have it in their power to at least update their review to warn potential buyers that they might be buying something that's highly inaccurate. Why isn't this being done?

     Reader Dave Ragsdale writes the following:

I wrote to Amazon.com a few weeks ago, asking if they were going to retract their review of "Arming America." I finally got the following response, which I thought I would share despite its non-commitment.

Thanks for writing to us at Amazon.com! We will pass your concerns on to our Editorial staff for attention. Although we cannot promise that any changes will be made, our editors will re-evaluate the review.

At least it's something.

Perhaps it might be helpful for more people to e-mail amazon and urge them to do something about it.

 
[Eugene Volokh, 3:20 PM]
ALL-FEMALE TEXAS SUPREME COURT IN 1925: How Appealing has the scoop on this fascinating historical incident; I had never heard of this before. I have verified that the story is quite accurate; the case is reported as Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098 (Texas Supreme Court 1925), and lists the three female Justices-for-a-day as the panel deciding the case.

 
[Eugene Volokh, 3:08 PM]
EXCESSIVE RHETORIC IN SCHOLARSHIP: I thought I'd pass along another subsection of the writing book that I'm editing now. These suggestions are for student scholarship, and the rules may be different for op-eds, blogs, and so on, but I thought that some readers might still find them interesting. And, as with the last excerpt I posted, I'd much appreciate some feedback (I already incorporated a couple of suggestions that people sent me).

Be understated in your criticisms, even if they're well founded. Don't call your opponents' arguments "fraudulent," "nonsense," "ridiculous," "silly," or even "egregiously wrong." Use "mistaken," "unsound," "erroneous," or other mild criticisms instead. People will get your message, and will be more disposed to accept it precisely because it's understated.

     Why?

     1. Readers know that harsh criticism is often overstated, or inadequately proven. Call an argument "fraudulent," and skeptical readers might say "Wait, is it really fraudulent, or could it just be an honest error?"; and this will distract them from your more important claim, which is that the argument is just wrong. Call it "irrational," and skeptical readers may try to find some reasonableness in it. You don't want to weaken your claims by making unproven and ultimately unnecessary allegations.

     2. No-one likes a bully. Excessive harshness may alienate readers, and make them sympathize with your adversaries.

     3. Invective often hides lack of substance. Readers realize this, and become suspicious when they hear invective. Let your substantive argument, not pejorative adjectives, do the job.

     4. Readers tend to tolerate harsh criticism by juniors—such as law students—even less than such criticism by respected scholars. By all means, pick fights with the Big Guns; your professor and other readers will like your pluck. But be scrupulously polite to the people you criticize: A polite upstart is more tolerated than a rude one.

     5. There's no need to make unnecessary enemies. When you're applying for a job, and Justice X's former law clerk is reading your article, you'll be glad that you called Justice X's arguments "mistaken" rather than "stupid." This shouldn't stop you from expressing disagreement; people respect honest disagreement. But they don't respect rudeness, or even borderline rudeness, especially to people they know and like.

 
[Eugene Volokh, 9:49 AM]
SPEECH CODES, WORKING OFF THE HARVARD CONTROVERSY. I have a piece on this today in National Review Online.

 
[Eugene Volokh, 9:26 AM]
EXCELLENT LILEKS PIECE ON THE OPPOSITION TO THE VICTORIA'S SECRET SPECIAL.

 
[Eugene Volokh, 9:23 AM]
A PHRASE TO WORK INTO YOUR EVERYDAY CONVERSATION: One of my favorites, nunc pro tunc (literally "now for then"), which refers to a court correcting an earlier error in such a way that the action has retroactive effect -- nunc pro tunc orders "hav[e] retroactive legal effect through a court's inherent power," says Black's Law Dictionary.

     "Darling, here's that belated anniversary present, which I'm giving you nunc pro tunc." "That report I was supposed to write a week ago? I just e-mailed it to you nunc pro tunc." Try it -- I'm positive it will work.

 
[Eugene Volokh, 9:20 AM]
CUNY ASSOCIATION OF SCHOLARS STATEMENT ON KC JOHNSON MATTER: The CUNY Association of Scholars, an affiliate of the National Association of Scholars -- a generally somewhat right-of-center academic group (to which I belong), though that description doesn't fully do it justice -- writes the following:

The CUNY Association of Scholars strongly . . . denounce[s] the denial of promotion and tenure to Brooklyn College Professor Robert David Johnson, and we urge Chancellor Matthew Goldstein to reverse this unjust and untenable decision with all possible speed.

Brooklyn College president Christoph M. Kimmich effectively fired Dr. Johnson by recently declining to recommend him for promotion with tenure. However, extensive documentary evidence shows that Johnson, a history professor, is eminently deserving of both tenure and promotion by virtue of his stellar scholarship and accomplishments as an educator. Twenty-four leading national scholars have attested to Professor Johnson’s scholarly credentials; his teaching evaluations from both students and colleagues are glowing; and the college itself has termed Professor Johnson’s performance as a scholar and teacher “extraordinarily productive.”

Professor Johnson’s difficulties at Brooklyn College started when he adopted public positions questioning the desirability of affirmative action quotas in hiring and the suitability of a college-sponsored “teach-in” containing no known supporters of U.S. or Israeli policy in the Middle East. When Professor Johnson championed the need for quality in academic and hiring standards within his own department, the department chairperson termed this position “preposterous, specious, and demeaning.” Extensive evidence documents that this chairperson then launched a campaign of retaliation designed to taint Professor Johnson’s reputation and ultimately, with the aid of numerous violations of due process ignored by the college, deny him tenure. . . .

Again, there's a factual issue here -- exactly why was Johnson denied tenure -- and we've seen plausible claims on both sides; I thought I'd pass this along as more evidence on the Bad Behavior By CUNY side of the argument.

 
[Eugene Volokh, 4:13 PM]
U.S. COMMISSION ON CIVIL RIGHTS DRAFT STAFF REPORT: On the front page of the U.S. Commission on Civil Rights Web site, you'll see a link to "Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education," labeled a "Draft Staff Report." The Report was just covered in the Chronicle of Higher Education, which describes the report as concluding that:

State plans that guarantee public-college admission to students who rank in the top percentages of their high-school classes are not themselves adequate to improve the representation of minority students at public colleges . . . .

     What the Chronicle, which says the report is "a report issued on Tuesday by the U.S. Commission on Civil Rights," doesn't explicitly say is that the report was apparently issued without any vote on the Commissioners' part; in fact, three of the Commissioners "had no idea that the staff was working on it," according to a memo from Commissioner Abigail Thernstrom. Thernstrom continues,

Indeed, we received copies on November 9 with a cover memo from the staff director stating: "this draft report is provided to you for discussion and comment at the November 15 Commission meeting. Staff is not asking for Commission approval at the meeting.” Evidently it was available on the Commission web site before that date, however. In other words, although our names are obviously associated with any work done in the name of the agency, it was released to the public before we had had a chance to read it. . . .

Because it is a "staff" report, it will never come up for a Commission vote and thus we cannot write a dissent. We can send some comments to the staff. However, according to several memoranda sent by the chairman, the Commissioners or their assistants are barred from talking directly to the staff. It is thus inevitable that those comments will be filed in a dead letter box. . . .

The chair has seemingly decided on a way to avoid dissents like the one Commissioner Redenbaugh and Commissioner Thernstrom wrote in response to the Florida 2001 report. In the future, there may be few official Commission reports. Staff reports will take their place. As a result, no votes, no dissents.

An odd system: The official Commissioners get no say, and the staff speaks on the Commission's behalf.

     And Thernstrom also writes, addressing the report's substance:

If selective colleges and universities are determined to increase the number of black and Hispanic students on their campuses, straight racial preferences are the most efficient and effective means of doing so. (The report refers to "minority" students, but Asians are, by the standard of proportionality, already over-represented at Berkeley, UCLA, and other elite institutions of higher education.)

Racial double-standards, however, pose moral and legal problems. But, in addition, preferentially-admitted students leave college at a much higher rate than those who come in with strong academic credentials. That is, they fail to graduate at the same rates as those who enter college with the skills and knowledge of their Asian or white classmates.

This is not a surprise. Black and Hispanic freshmen typically arrive inadequately prepared for college-level work. National Assessment for Educational Progress data for 8th -graders in Texas are available. In the year 2000, 60 percent of black students, 41 percent of Hispanic youngsters, and 17 percent of whites tested "Below Basic" in math. NAEP has no state-level assessments in 12th grade, but the numbers would not be much different, we know from other sources. Students who enter college ill-prepared do not generally catch up, and high numbers drop out. . . .

The entire staff report is focused on the wrong question. As indicated above, the solution to the underrepresentation of black and Hispanic students in selective institutions of higher education is better K-12 education, not gimmicky admissions criteria. The playing field will have been leveled when the racial gap in academic achievement has been closed. Better elementary and secondary schooling is a moral imperative; neither racial double-standards nor X-percent plans solve the tragic problem of non-Asian minority students graduating from high schools without the skills and knowledge to do well in competitive colleges.

 
[Eugene Volokh, 4:03 PM]
MORE ON FREE SPEECH IN EUROPE: From The Telegraph:

Robin Page, a columnist for The Telegraph, has been arrested on suspicion of stirring up racial hatred after making a speech at a pro-hunting rally. . . .

Yesterday, he vehemently denied having made any comment that could be construed as racist during the address, in which he encouraged his audience to attend the Liberty and Livelihood March in London later that month.

Mr Page also told his audience that Londoners had the right to run their own events, such as the Brixton carnival and gay pride marches, which celebrated black and gay culture. Why therefore, he asked, should country people not have the right to do what they liked in the countryside.

Mr Page said yesterday: "I urged people to go on the march and I urged that the rural minority be given the same legal protection as other minorities. All I said was that the rural minority should have the same rights as blacks, Muslims and gays.

"What is wrong with that in a multicultural society? I said nothing that could possibly be interpreted as racist." . . .

Mr Page, a well-known commentator on rural issues, had been invited to speak at the fair by its organisers, the Countryside Alliance and the British Association for Shooting and Conservation. He said his comments had received a warm reception, and no one, including police officers present, had expressed any concern.

Last week, he was telephoned by an officer from Gloucestershire police and asked to attend an interview on Monday at a police station near his farm in Cambridgeshire. The caller said his chief constable had received a number of complaints.

Mr Page duly attended the meeting with two officers, but when he refused to answer questions without his lawyer present he was arrested and taken to Cambridge police station, spending 40 minutes in a cell. . . .

Gloucestershire police confirmed that they had arrested Mr Page on suspicion of violating Section 18 (1) of the Public Order Act, referring to stirring up racial hatred.

The difficulty is that we do not have an account of exactly what the police believe Page said; it's certainly quite possible that his current account is inaccurate. Still, it seems to be an incident worth watching -- again, especially given the tendency of some American legal scholars to urge that American free speech law follow more closely the "nuanced," "reasonable," "balanced" European approach.

 
[Eugene Volokh, 2:20 PM]
THE CONSPIRACY WIDENS: We are delighted to welcome two new bloggers: Stuart Banner and the pseudonymous Philippe de Croy.

     Stuart (banner at law.ucla.edu), is a colleague of mine at UCLA, and also a fellow Judge Kozinski and Justice Sandra Day O'Connor clerk (though he clerked for them a few years before me). He's also worked doing appeals in a federal public defender, and -- get this -- as a real lawyer, though fortunately only for a short time. He's mainly a legal historian (not to pigeonhole him or anything), and his most recent book is The Death Penalty: An American History (Harvard University Press 2002) ("a richly detailed overview," "rich with fascinating sidelights," "free of polemic and cant, admirably disinterested, and at once rigorous yet thoroughly accessible" -- Amazon.com's own review).

     Philippe de Croy (pdecroy at yahoo.com) -- no, not that Philippe de Croy -- is a man or woman of mystery, whose identity is shrouded in the mists of cyberspace, and held as a closely guarded secret by your editor. Wild horses would drag it out of me, but fortunately not a lot of people are using wild horses for that purpose these days. Any subpoenas will be met with an assertion of the "blogger-coblogger privilege," or perhaps the "little birdy privilege." To avoid the obvious questions, no, he or she is not an alter ego of yours truly, or any of the other bloggers.

 
[Eugene Volokh, 1:59 PM]
MORE ON THE K.C. JOHNSON CUNY TENURE MATTER: Reader Jeff Hauser writes:

KC Johnson was my TA for a class I took with Akire Iriye, as well as the Lecturer in charge of a "Conference class" (read: seminar) on Congress. Not only was he a brilliant teacher, he was extremely friendly -- he always had an open door. For example, he helped me select my thesis topic and then talked me through initial methodological issues related to my thesis, a thesis not within his specialty. Of course, I'm also indebted to him as he was one of my law school recommenders, but I can speak for many Harvard grads when saying that KC was universally well-liked in addition to receiving universal respect.

The idea that he could be considered something other than "collegial" -- or that he would misevaluate women [indeed, based on several anecdotes I recall that he was a favorite of his colleagues, including female, w/in the small universe of Harvard's History grad students] -- is prima facie absurd. That people could dislike the low key, dry, and friendly Johnson (an archetypal "Mainer") strikes me as ludicrous.

Incidentally, having discussed politics with Johnson during the 1992 Dem primaries I know that he was a mainstream liberal who, like me (who is left of mainstream), switched from Bob Kerrey to Paul Tsongas in a parallel "Anyone But Clinton" approach to the primaries. Actually, he had me get him a Bob Kerrey button on one of my jaunts up to NH to campaign before Kerrey came out with anti-Japanese xenophobic ads. (the infamous "hockey net" ads)

I still believe that claims about academic PC are incredibly overstated, having attended two of its ostensible redoubts (Harvard and NYU Law), but there are certainly instances that do pop up, and they are no less wrong for receiving disproportionate coverage. (Re disproportionate: I'm rather certain that lefties aren't treated well at certain state institutions, as well as by certain religious univiersities. . . .)

By the way, here's Johnson's Web site.

 
[Eugene Volokh, 1:48 PM]
FRENCH PHILOSOPHY AS WAR CRIME? Peter Nee suggests, apropos the Jean Paul-Sartre Brigade item, a legal theory:

Surely the use of French philosophy is banned by the Geneva convention. Destructive munitions are bad enough, but the consequences of deconstructive munitions are just too horrible to contemplate.

 
[Eugene Volokh, 1:33 PM]
FOREIGN INTELLIGENCE SURVEILLANCE ACT: As you may have heard, FISA gives the government greater power to wiretap people when "there is probable cause to believe" that they are "agents of a foreign power" -- but who qualifies in that category? If, for instance, you're a lawyer or a lobbyist and one of your clients is a foreign government, are you subject to FISA?

     No, so long as you're a "United States person," which is defined as a U.S. citizen or a permanent resident alien. If you're a U.S. person, you are only an "agent of a foreign power" if you are a person who

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

That's one reason that many people aren't that troubled by FISA: Though it does give the government substantial surveillance powers, it only covers people as to whom there's probable cause to believe that they are involved in criminal activities, or in "clandestine intelligence gathering activities for or on behalf of a foreign power, which activities . . . may" be criminal.

 
[Eugene Volokh, 10:47 AM]
INTERESTING STATISTIC: The Christian Science Monitor, a respected national newspaper, has circulation of 71,924.

     This month, Instapundit -- one guy with a Web page -- has been averaging 60,000 unique visitors per day. (Note that the eXTReMe Tracking show lower counts, at about 35-40,000 unique visitors per day, but my past checks -- coupled with the oddly steady numbers that eXTReMe is now showing -- suggest that it's eXTReMe that's mistaken here.)

UPDATE: N.Z. Bear sounds a cautionary note as to unique visitor counting, pointing out that Site Meter measures unique visits, and

defines a "visit" as a series of page views by one person with no more than 30 minutes in between page views.

A very interesting point, which I had not known. I stand corrected, but the comparison still seems to me quite striking (and I think N.Z. Bear doesn't disagree): Even if Glenn's daily readership is half the SiteMeter counter, that's still huge, given that he's one guy and the Christian Science Monitor is a much bigger organization with a much bigger budget.

FURTHER UPDATE: I am told that Extreme Tracker may read low compared to SiteMeter because "the SiteMeter counter reads everything -- including archives and links in to individual posts (which is how most people come in from other blogs) -- while Extreme Tracker reads *only* visits to the main front page." On that standard, I think the SiteMeter would be a better measure.

 
[Eugene Volokh, 10:06 AM]
HARVEY SILVERGLATE ON THE HARVARD LAW SCHOOL SPEECH CODE DISCUSSION: Harvey Silverglate, one of the nation's leading critics of speech codes, and cofounder of the Foundation for Individual Rights in Education (FIRE) writes:

I was at the Harvard meeting, representing The Foundation for Individual Rights in Education. Prof. Randall Kennedy, a personal friend of mine and a magnificent human being with enormous integrity and courage (I've never once seen him pander) has been mis-quoted, quoted out of context, and misunderstood. All he was saying was that at a Town Meeting like was held, a student should not be pummelled merely for having less than a polished presentation. It's not a class. It's not a term paper or thesis.

However, Randall Kennedy was absolutely magnificent in his moral and intellectual message to the students. One representative line (I'm paraphrasing, but pretty close to quoting): "I have nothing in particular against Assistant Dean [Todd] Rakoff. But I wonder why students would want to entrust to him the power to control their conversations. There is a sense here of a return to parens patriae. But students should regulate their own speech. There is nothing 'progressive', and in fact it's regressive, for students to confer power on Dean Rakoff to regulate their speech." Randall Kennedy went even further: "I'm opposed to any speech code. I voted last time around against the Sexual Harassment Guidelines. I will vote against this. But it doesn't mean I won't listen to your arguments." Randall Kennedy is magnificent.

Alan Dershowitz, of course, showed his usual "take no nonsense, take no prisoners" style. He, too, was magnificent. Last time around he voted for the Sexual Harassment Guidelines, out of a sense (misguided, in my view, but doubtless sincere) that he would rather have a bad but clear speech code than endure decanal discretion in this area. I believe he now realizes that neither is acceptable, and I believe he will fight against adoption of a Racial Harassment Code. He is a formidable ally. He never, ever quits. In this, he shares a characteristic of FIRE's approach to these matters. . . .

 
[Eugene Volokh, 9:45 AM]
STANFORD LAW DEAN KATHLEEN SULLIVAN DEFENDS HER POSITION IN THE LYNNE STEWART CONTROVERSY:

The Daily’s editorial of Nov. 19 about Stanford Law School and Lynne Stewart was inaccurate and misleading (“Law School Dean should restore attorney’s mentorship”). Ms. Stewart did not have her speech limited nor were students denied access to her as you suggest. Rather she spoke to students both formally and informally as scheduled, without the title of “mentor.”

Stewart was invited to speak at Stanford Law School by students organizing a weekend conference called “Shaking the Foundations.” The Law School’s director of public interest programs, on his own initiative, invited her to extend her visit to campus in order to speak to students as a “Mills Public Interest Mentor,” an honor that is normally given to very few attorneys a year whom the school seeks to hold up as role models.

When I learned during the week before Stewart’s visit that she had expressed support for “directed violence directed at the institutions which perpetuate capitalism, racism and sexism,” and, in reference to the Sept. 11 attacks, “armed struggle” with civilian casualties, I made the decision to proceed fully with Stewart’s speaking engagements at the Law School but to rescind the title of “Mills Mentor” in connection with her visit.

This decision, consistent with academic freedom and with ordinary First Amendment distinctions between providing a forum for speech and placing an imprimatur of approval upon speech, enabled Stewart to speak her views and be heard by our students, while withholding the Law School’s endorsement.

Stewart completed all of her speaking engagements at the Law School and met with students as scheduled without incident. The Law School of course has also honored the original financial arrangements with Stewart; my letter of Nov. 8 to Stewart rescinded the title of “mentor” but nothing else about her visit.

I really can't add anything to what Sullivan says. She's a leading First Amendment scholar, and understands and explains the issue -- though here it's a matter of academic freedom as a policy, and not First Amendment law, since Stanford is a private school -- quite well. Good job. (Thanks to reader Craig Mallery for passing along the pointer.)

 
[Eugene Volokh, 9:25 AM]
STATES' RIGHTS: Every so often -- especially in debates about the Second Amendment -- I hear people say that the Constitution cannot be understood as securing a states' right or a collective right, because to the Framers all "rights" were individual; states had powers, individuals had rights. I was just reminded of this claim by a recent post on a discussion list that I run.

     Now as blog readers know, I believe the Second Amendment does secure an individual right. But that is because this particular right was understood and described as individual; the Framers were quite ready to use the term "right," in other contexts, to apply to states. See, e.g., Federalist No. 31 (speaking of "the rights of the state governments"); Federalist No. 46 (speaking of "the rights of the individual States"); Federalist No. 81 (speaking of "a pre-existing right of the State governments"); New York v. Connecticut, 4 U.S. 3,3 (1799) ("the right of the state of New York cannot be affected by a decision in the Circuit Court"); Fowler v. Lindsey, 3 U.S. 411, 412 (1799) ("A decision, as to the former object, between individual Citizens, can never affect the right of the State"); Calder v. Bull, 3 U.S. 199, 263 (1798) (Iredell, J.) (speaking of a state's "general right of confiscating debts of an enemy"; "if the state had a right to say to a debtor 'We confiscate the right of your creditor, and you must pay your debt to us, and not to him,' they had a right to say 'We do not chuse for the present, absolutely to confiscate this debt, although we have the power so to do, but if you will pay the money to us, you shall be as completely discharged as if we did'"); Letter of the President of the Convention, Transmitting the Constitution, Sept. 17, 1787 ("It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each."); South Carolina Ratification Message, May 23, 1788 ("Whereas it is essential to the preservation of the rights reserved to the several states, and the freedom of the people under the operations of a General government that the right of prescribing the manner time and places of holding the Elections to the Federal Legislature, should be for ever inseparably annexed to the sovereignty of the several states"); New York Ratification Me sage, July 26, 1778 ("That the Senators and Representatives and all Executive and Judicial Officers of the United States shall be bound by Oath or Affirmation not to infringe or violate the Constitutions or Rights of the respective States."); see also Articles of Confederation art. IX ("provided that the legislative right of any state within its own limits be not infringed or violated").

     In the Anglo-American legal tradition, many things and institutions have rights -- individuals have rights, corporations have rights, unincorporated associations have rights, and states have rights. Maybe this shouldn't be so; maybe our legal system would be sounder if we only saw individuals (or only individuals and other nongovernmental entities) as having rights. But the Framers did not view "right" in this limited a fashion.

 
[Eugene Volokh, 6:08 PM]
"U.S. WON'T SUPPORT NET 'HATE SPEECH' BAN." Absolutely right.

 
[Eugene Volokh, 4:54 PM]
"SADDAM'S PLOYS AND HOW TO BEAT THEM": Seems like good advice, from Slate's William Saletan.

 
[Eugene Volokh, 12:46 PM]
MORE ON CREDENTIALED PETS: Todd Seavey writes:

Nineteen years before a cat was credentialed as a psychotherapist (as noted by you and the ABA), an advisor to the American Council on Science and Health credentialed his dog Sassafras and his cat as nutritionists.

Here's the story.

 
[Eugene Volokh, 12:38 PM]
PRODUCE REVIEW: Pink Lady apples are the best I've had, and I've tried a lot of apples. They're a bit tart, a bit sweet, firm, and flavorful -- better even than decent apples like Galas, Fujis, Breaburns, Macintoshes, Pippins, and Granny Smiths, and far better than those Golden Delicious / Red Delicious abominations.

 
[Eugene Volokh, 10:30 AM]
A BIT MORE ON CELL PHONES: Reader Trevor Anderson passes along the following:

As a trivial aside, one comedian at a benefit concert I attended in LA on Sunday night spoke out against the unwitting loudness (actually, he thought it arrogant and obnoxious loudness) of many individuals engaged in mobile conversation, to which his suggested counter was to talk loudly into your own, inert, phone, to the order of "Hey - whaddaya mean you gotta problem? I told ya - dump the f***ing body... I don't care, dig a f***ing hole in the back yard or throw it in a dumpster!"

Let me be on the record as opposing both speaking too loudly in public (whether on the cell phone or to a real person), and dumping the f***ing bodies in dumpsters.

 
[Eugene Volokh, 10:18 AM]
JEAN-PAUL SARTRE BRIGADE:

Efforts to root out the remaining Taliban and Al Qaida forces in Afghanistan heated up yesterday when the Allies revealed plans to airdrop a platoon of crack French existentialist philosophers into the country to destroy the morale of Muslim zealots by proving the nonexistence of God.

Elements from the feared Jean-Paul Sartre Brigade, or 'Black Berets' will be parachuted into the combat zones to spread doubt, despondency and existential anomie among the enemy.

Hardened by numerous intellectual battles fought during their long occupation of Paris's Left Bank, their first action will be to establish a number of pavement Cafés at strategic points near the front lines. . . .

The rest is also very funny, but my copyright scruples prevent me from quoting more; just click to read further, and check the (seeming) author's main page, which is also quite amusing. ("There will be some sort of update in a week or two. You damnable nags. Can't a man have any peace? Your shallow craving for constant novelty is to be deplored. Content yourselves with re-examining my earlier works for hidden meanings that may have eluded you on your first heedless gallop through them.")

 
[Eugene Volokh, 10:15 AM]
"VIAGRA MAY HELP TO SAVE ENDANGERED SPECIES," says The Economist.

 
[Eugene Volokh, 10:05 AM]
STILL MORE ON THE CUNY TENURE CONTROVERSY: Jerome Sternstein, who retired from Brooklyn College four years ago (I don't know him personally, but I've gotten to e-talk to him as a result of his comments on the Bellesiles controversy), writes me with some updates on the KC Johnson matter. His take, as I summarize it:

1. Johnson (whom Sternstein doesn't know personally) is indeed "regarded as a highly accomplished scholar."



2. Sternstein's contacts at Brooklyn, however, suggest that the "collegiality" concerns are quite real, and many of them have nothing to do with politics. "[Johnson] has somehow alienated practically everybody, no matter what political orientation, whether left-wing, right-wing, or no wing." Sternstein "seriously doubt[s] that the opposition to Johnson is based on his politics, whatever they are."



3. Sternstein goes on: "As far as Johnson eventually getting tenure, I predict that he will. The process is far from over, and Brooklyn College made several procedural errors that are crucial whenever faculty members at CUNY appeal tenure and promotion denials. The most glaring apparent error in Johnson's case is that in his annual evaluation in 2001, he was told that he had 'performed in an exemplary manner,' and he thus can argue he didn't receive the necessary direction to improve his performance, if that performance indeed needed improving. I speak from experience in these matters, since I was once very active in the CUNY faculty union, the Professional Staff Congress (PSC), representing faculty members in grievance hearings over tenure and promotion issues. Invariably, such procedural errors resulted in negative tenure or promotion decisions being overturned on appeal."

Now needless to say, I cannot personally vouch for the accuracy of this, but it seems to me at least as probative as what one is likely to hear in the newspapers; and it reinforces my original point that "tenure disputes can be notoriously complex to sort through, with lots of factual issues that aren't going to be described in any newspaper article." If Johnson's negative evaluation was based even in part on his "objecting to a one-sided college-sponsored panel following the September 11 attacks and suggesting that a search that seemed predetermined to pick a woman . . . instead be conducted on the merits" (I'm quoting here the New York Sun's characterization of what Johnson's defenders are saying Johnson was dinged for), that's wrong, and the decision has to be reconsidered with those factors omitted. But it's certainly quite possible that Johnson is just apolitically uncollegial (rude, obnoxious, unpleasant to deal with) -- we can't know that based on the very limited facts that have leaked out.

     Which raises the question, mentioned in the New York Sun piece -- should tenure decisions be made partly on collegiality, or should "scholarship . . . be the overriding issue," perhaps coupled with teaching? I think this is a tough question, partly because "collegiality" concerns can so easily be used as a smoke-screen for political disagreement -- but then again, evaluation of scholarship can be used the same way, too. And, after all, most employers generally realize that the ability to deal well with colleagues, even if one doesn't have to work closely with them all the time, is an important aspect of a person's performance.

     Just by way of perspective, here's how we doing things at UCLA Law School, the one academic institution with whose practices I'm intimately familiar:

1. When we hire people, collegiality is definitely considered. No-one wants to work around rude people, partly because we don't want them to be rude to us, and partly because we don't want them to be rude to staff or students. It's not a high bar; we don't insist on Prof. Congeniality. But if someone seems to be rude, obnoxious, excessively arrogant (remember, this is a university, so we can't be too picky on this score!), or otherwise unpleasant to be around -- or if someone has a seemingly well-founded reputation for this -- we will certainly consider this a serious factor. And when the other candidates are also very good, as they generally are, this one factor alone can make the difference.



2. We've never had occasion to consider this sort of matter at the tenure decision, but I suspect that if we had, it would take a lot of uncollegiality to lead us to deny tenure to someone -- we hire people with the expectation of making tenure, and we virtually never deny anyone tenure. On the other hand, I don't know how we'd behave if we, like some other institutions (though few law schools), had less of a "strong presumption of tenure" culture.

So that's a bit of perspective on this controversy. I doubt this helps us as observers come to a firm conclusion about what should happen in the CUNY case; we just don't have enough facts. But I think it might further remind us that tenure decisions are complicated, and hard to evaluate from the outside.

 
[Eugene Volokh, 9:27 AM]
ODD REASON FOR DISLIKING CELL PHONES: I've heard various arguments that using a cell phone is bad manners, some of them indubitably correct -- it's bad manners to use them in a place where you're supposed to be quiet, such as a concert, or in a situation where you're expected to be paying attention to people who are in front of you, such as at dinner. But I don't quite understand the arguments given in this FoxNews piece (and I've heard them before, on other occasions):

The other night, a woman sharing a taxi with me also shared the most intimate details of her life as she chatted on her phone continuously for the duration of the cross-town ride. I learned about her health problems, her sex life, her financial woes, and her very creepy boss.

At the gym, people huff and puff into their phones while running on the treadmills and pumping their stair masters, unwilling to silence the ringing even during yoga class. People fight with their lovers while grocery shopping and conduct business deals during dinner parties. I find myself learning things about perfect strangers that I wouldn't want to know about my closest friends. There doesn't seem to be any personal information deemed too sensitive to be broadcast to a packed bus or train.

I don't mind when the woman sitting behind me on the train checks on her kids or the banker ahead of me at Starbucks lets his office know he's running late. But judging from the cacophony of conversation I am forced to overhear everyday, it seems Americans have fallen deeply in love with the sound of their own voices. Here's a flash to all you verbal exhibitionists out there: Your lives are not nearly as interesting as you think they are.

Let's start from the end: None of these people are "verbal exhibitionists"; they're not trying to talk to you -- your overhearing is almost always an unfortunate side effect. They want to be heard by their friends on the other end of the phone connection, who presumably do find the speakers' lives interesting.

     Now back to the first two paragraphs (and setting aside the conversations in the yoga class and the dinner party, which I agree are generally rude, setting aside extenuating circumstances). Imag