[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). Imagine that the writer had been sharing a cab with two other people, who were saying the same things to each other in person, or overheard two people conversing in the gym or the grocery store. Would he have said that it was rude for them to talk to each other? Well, maybe, if they really were quite graphic in dicussing their sex lives. But I had never, until the advent of the cell phone, heard of people complaining "I was on a bus -- or at a grocery store or in the gym -- and two people were complaining about their creepy bosses and their financial woes; how rude!"

     Talking to a friend in public is generally seen as perfectly well-mannered behavior, if one isn't too loud, one isn't socially obligated (or, in the case of driving, obligated by the needs of safety) to pay attention to others, and one stays away from a small set of extremely private topics. In fact, it's often thought of as good -- instead of shopping or riding in solitude, one gets to socialize with a friend. As a matter of manners, I don't see any reason why the rule should be different when one is talking on a phone to a friend who's physically absent.

 
[Eugene Volokh, 8:42 AM]
MARSCHAK COLLOQUIUM: Those of you who are in Los Angeles, and who are interested in slippery slopes, might be interested in the following talk I'll be giving on December 6 at UCLA. Attendance is free, though parking is not.

EUGENE VOLOKH, Professor of Law, UCLA School of Law (Field/Subfield: Law/Law and Public Policy) will be making a presentation to the 2002-2003 Marschak Colloquium at UCLA on Friday, December 6, 2002 from 1 to 3 P.M. in the Anderson School room C-301 on the topic:

MECHANISMS OF THE SLIPPERY SLOPE

This presentation is cosponsored by the Cosponsored by the UCLA Center for Governance and the UCLA School of Law. All are welcome to attend. Volokh's abstract and biography are below, followed by a summary of the 2002 -2003 Marschak Colloquium, that will continue through next June, meeting alternative Fridays in Anderson C-301.

****************************************************

MECHANISMS OF THE SLIPPERY SLOPE - ABSTRACT

"Mechanisms of the Slippery Slope", forthcoming in the February 2003, Harvard Law Review, and available at:
http://www1.law.ucla.edu/~volokh/slippery.pdf

We've all made plenty of slippery slope arguments in our day, and we've all pooh-poohed plenty. Do these arguments make sense, and, if so, when?

This article tries to go behind the metaphor of the slippery slope, and to explore the actual mechanisms by which slippery slopes can take place -- mechanisms by which one step today may make the next step more likely tomorrow. There are several such mechanisms, which I suggest need to be discussed separately. And these mechanisms, it turns out, relate to rational ignorance, heuristics, path-dependence, the expressive effect of law, and multi-peaked preferences -- important subjects that have received extensive attention recently, but that have not so far been linked to the slippery slope question.

I suggest that slippery slopes may indeed sometimes happen (though they aren't logically inevitable). The flip response that "if we can draw a line today, we'll be able to draw the line tomorrow" is correct only if decision makers have firm and single-peaked preferences, and unbounded rationality. In the real world, where these conditions don't always hold, one decision can indeed help grease the slope to another, in various ways.

And this can happen not just with judicial decisions -- where slippery slopes relate in complex ways to the system of precedent -- but also with legislative ones, where precedent is not supposed to play a formal role. Understanding the full range of slippery slope mechanisms can help us evaluate the risk of slippage, craft better arguments related to this risk, and perhaps minimize this risk.

****************************************************

EUGENE VOLOKH - BIOGRAPHY

Eugene Volokh specializes in constitutional law, copyright law, cyberspace law, and firearms regulation policy at the law school. Before going into teaching, he clerked for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit, and for Justice Sandra Day O'Connor. Both his B.S. (Math-Computer Science, 1983) and J.D. (1992) are from UCLA.

 
[Eugene Volokh, 8:33 AM]
AVOID THE FIGURATIVE, BUT NOT LIKE THE PLAGUE: I've just finished editing the "Figurative Usage" section of my book on Academic Writing for Law Students, and thought I'd pass it along, in case some readers might find these views interesting, and might have some helpful feedback. My bottom-line recommendation -- avoid the figurative -- may seem radical to some, but I think that it's the best way to foster clear writing and clear thinking in academic prose. I'm not as sure with regard to op-eds and other popular writing, but even there I think writers should be cautious about figurative usages, which are particularly likely to lead to errors. In any case, here it is (warning -- long):

     Most clichés and all metaphors are figurative usages: They use words and phrases that mean something other than their literal meaning (for instance, "abandon ship" or "like a bull in a china shop").

     Figurative phrasing is sometimes helpful, but it's often dangerous precisely because it uses terms in their nonliteral sense. You should use figurative terms sparingly, and you should always be aware of the literal meaning as well as the figurative when you do use them.

     a. The first danger of the figurative was mentioned in the discussion of metaphors: Writers sometimes assume that the figurative usage will do the work of persuading people or explaining the proposal. But "allowing courts to decide this would be like putting a bull in a china shop," is not a complete argument; "courts should balance the freedom of speech and the need for individual privacy" is not a complete proposal. They become complete only when the writer answers the underlying questions: Exactly why are courts incompetent at deciding this? Exactly how should courts deal with speech that reveals private information about others?

     If you had used literal language, e.g., "courts aren't going to do a good job of deciding questions like this," you'd have seen the need to flesh out the argument. But figurative language, by hiding the literal meaning, can also hide this need.

     b. The second danger is forgetting that the figurative phrase has two different meanings, and using the figurative meaning without realizing that the literal meaning will distract or confuse the reader.

     i. Mixed metaphors, such as "the political equation was thus saturated with kerosene," are one example of this. Standing alone, "the political equation" and "saturated with kerosene" would just convey their figurative meanings, and their literal meanings would be largely ignored. But when you put them together, their literal meanings surface again, and distract (and unintentionally amuse) the reader. My favorite example: "This field of research is so virginal that no human eye has ever set foot in it."

     ii. Even a single figurative usage can have its literal meaning be unintentionally reawakened: "The problems with admiralty law shouldn't cause us to abandon ship" is either a weak intentional joke or a weak unintentional one. "Abandon ship" on its own just conveys its figurative meaning of "quit," but once admiralty is mentioned, readers will think of the literal meaning as well, and be needlessly distracted.

     iii. Figurative usages that allude to some literary work or historical practice may clash with their original meaning. To "decimate," for instance, originally meant to kill every tenth person as a collective punishment (hence the old joke about how "You can tell the ancient Romans were tough -- in their language, 'to kill every tenth person as a collective punishment' was one word"). The figurative meaning, which is "to dramatically reduce," is now well established, but some people are still reminded of the old usage, which can either distract or annoy them.

     Likewise, "East is East and West is West, and never the twain shall meet" is sometimes used to suggest that two cultures are fundamentally irreconcilable. But Kipling's poem continues with "but there is neither East nor West, nor border, breed, nor birth, When two strong men stand face to face, tho' they come from the ends of the earth" -- and people who are familiar with the whole poem will thus be reminded of a point that is the exact opposite of what the person who is quoting the "East is East" phrase was trying to assert.

     You might think that such objections are pedantic; after all, you're clearly using the modern meaning, not the original one. But when a writer chooses to express the modern meaning using a literary or historical allusion, he brings the literary or historical origin to the reader's mind. And if that original meaning distracts the reader from the actual meaning that the writer wanted to evoke, that's the writer's fault.

     d. Figurative usages are often misused, because people don't think about (or don't understand) the literal meaning. "Back to ground zero," for instance, is often used instead of "back to square one." "Ground zero" is the location where a very destructive bomb is detonated, not the first step of a long task. But the similarity of "ground zero" and "square one," coupled with writers' lack of attention to the terms' literal meanings, makes it easy to confuse the two.

     Likewise, "free rein," "key tenet," "toe the line," and "tough row to hoe" are often miswritten as "free reign," "key tenant," "tow the line," and "tough road to hoe." Even writers who'd rarely misspell a literally used word may fall into these traps for figurative usages, because their literal origins -- which provide an important clue about their spelling -- are often forgotten.

     e. Finally, writers are often tempted into using figurative phrases even when the phrase isn't quite right for the occasion. Thus, "raises the question" often becomes "begs the question" -- "begs the question" actually refers to the fallacy of assuming the very point that you're trying to prove, but because the phrase seems so colorful, many people use it in a broader, and incorrect, sense. Likewise, a person's changing his behavior, even incrementally, becomes "the leopard changing its spots," even though the latter phrase generally refers not to all changes but just to radical ones.

     So my advice: Try to avoid the figurative. If you think some figurative phrase can make a point more vivid, use it, but only after considering both (1) whether the phrase really adds something, and (2) whether the literal meaning of the phrase might weaken your writing more than the figurative strengthens it. And always second-guess yourself whenever you use a figurative term unintentionally; many such uses prove to be unhelpful.

     Finally, never, ever use the word "literally" when you mean "figuratively," as in "[T]he number of lawyers in the United States has literally exploded over the last 53 years." Literally exploded?

 
[Eugene Volokh, 8:16 AM]
THINK DIFFERENT: A phrase I just used in an e-mail ("sleep easy") reminded me of Apple's "Think Different" campaign, and the Language Police's claim that it was wrong. "Different," they said, is an adjective; the proper term is "differently," an adverb that can modify the verb "think."

     Not at all. "Think different," like "think big," "eat healthy," and similar locutions, is shorthand for "Think [thoughts that are] different." The words in bracket are omitted, but that's correct; this sort of omission of understood terms is a common phenomenon in English, and perfectly grammatical.

 
[Eugene Volokh, 6:41 PM]
COOL TABLE OF MARRIAGE LAWS THROUGHOUT THE COUNTRY: I don't know how correct or accurate it is, but it seems to be a Legal Information Institute site, and they're pretty reputable people. Amusing factoid -- quite a few states allow 13-year-olds to marry with parental consent (though some seem to also require a judge's permission), and a few let 12-year-old girls do so. Minnesota, Ohio, and Wisconsin, thoughtful and level-headed states, require a 5-day waiting period (are you sure you want to go through with this, son?).

 
[Eugene Volokh, 6:06 PM]
LITTLE-KNOWN FACT: "Senate" and "senile" have the same root. Of course, it shouldn't be that shocking -- "senile" simply comes from the root for "old," as does "Senate," which meant a council of elders (though as I understand it in the late Republic most Senators were enrolled into the Senate at 30, but that's information learned from historical novels rather than, well, actual history books). Still, it's a mildly amusing factoid, in the "candidate" / "yeast infection" mold.

 
[Eugene Volokh, 4:29 PM]
CRITICISMS OF MODERN LAW SCHOOLS: A Wall Street Journal article today criticizes Harvard Law School on various grounds; I think it makes some good points, but on balance I think it's missing some important dimensions. (Warning: I didn't go to Harvard, and my knowledge of Harvard is limited to what I hear from my large but ideologically unrepresentative sample of friends who went to Harvard. I will therefore be relying mostly on the article's actual statements for their factual accounts.)

     The article begins by criticizing Harvard's "Difficult Conversations" freshman program:

At Harvard Law today, skill in hard combative argument is no longer prized, nor even considered quite respectable. Indeed, first year law students can hardly fail to notice the pall of official disapproval now settled over everything smacking of conflict and argument. That perception can only have been strengthened by a new program for freshmen, called "Managing Difficult Conversations."

In the lesson books provided, students learn the importance of empathy. "Emotions need to be acknowledged and understood before people can problem solve," another lesson teaches. In a book by the program's chief creators we learn that "A Difficult Conversation Is Anything You Find It Hard To Talk About." Not the sort of wisdom that would have taxed the minds of the students. Still, the purpose of the three-hour sessions did elude one otherwise accepting attendee, who reports that the discussion leaders seemed to circle around specific issues, and that he had the feeling there was a real subject here not yet clear or acknowledged. . . .

[The student] would not have learned, at such a session, that all the negotiating strategies, all the emphases on emotion and personal history and subtext being advanced at these workshops, was exactly opposite of what legal training was supposed to teach. He would not learn here that the law deals in objective truth that it is concerned with fact. That what is said is determinative, not what is left unsaid, not subtexts, not emotions, expressed or other, not personal history.

I don't think this is quite right. To begin with, as I understand it, much of the Harvard Law School experience does prize "skill in hard combative argument"; consider, for instance, the Moot Court program, among many others. But more importantly, legal training, if properly done, is not supposed to be limited to teaching "that the law deals in objective truth." Lawyers are not only, or perhaps even mostly, seekers of objective truth. They are in large part rhetoricians -- people who are supposed to achieve results by making arguments to other people. If you want to achieve results by making an argument to other people, you must understand more than just "objective truth," or legal rules. You must understand (whether or not you empathize with) others' emotions. You must appreciate the way your words might be perceived by people. You must know how to handle emotionally difficult conversations without alienating the judge, the jury, the witnesses, and the adversaries with whom you're negotiating.

     If you walk into a courtroom, or a negotiation meeting, focused solely on the "objective truth," and ignore "emotions," "personal history," "subtext," and "what is left unsaid," you'll do a lousy job for your client. Of course if you focus solely on the latter and ignore objective truth or legal rules, you'll also do a lousy job; but unless Harvard is wildly different from other law schools, and the way that I've heard my friends describe it, a Harvard education provides you plenty of opportunity (and incentive) to discuss objective truth and legal rules.

     The article then continues by pointing to what it sees are two particular incidents of overreaction to perceived racial slights, which it says led to the "Difficult Conversations" program:

In March, a freshman summarizing a court decision on racial covenants had put his class notes on the Web, which included two references to "Nigs" -- abbreviations that caused an uproar. The offender, a Filipino from Hawaii, apologized profusely. Another first year law student weighed in next, this one from Poland. In an anonymous, extremely unpleasant e-mail, he claimed the right to use the N-word, in the interests of free speech. He, too, apologized.

The Harvard Black Law Students Association responded with declarations charging the Law School administrators with willful inaction in the face of "racial outrages." High on their list of perpetrators was senior law professor Charles Nesson, who had offered, as a kind of pedagogic exercise, a mock trial of the anonymous e-mailer, with himself as defense counsel. Arguing that this was an outrage even at a mock trial, the BLSA demanded that Mr. Nesson be barred from teaching mandatory first-year classes.

Prof. David Rosenberg was similarly named as a perpetrator of racial outrages. "Marxists, feminists and the blacks had contributed nothing to torts," he is alleged to have told his class. From the context of the class discussion it was clear that the reference to "the blacks" was to the school of legal scholars, known as the Crits -- critics whose viewpoints were based on radical black and feminist perspectives, who had, in Mr. Rosenberg's view, contributed nothing to tort law. . . .

[The law school's reaction] was a model of responsiveness. The Nesson course would be taught by an assistant dean -- Mr. Nesson having volunteered, publicly, to remove himself. As for Mr. Rosenberg, his classes would be tape-recorded, so that students who felt he might insult them need not suffer the discomfort of sitting in his class. . . .

Why the school's administration yielded to the pressure to punish two senior professors charged with racism, one because of a misunderstanding of his meaning, another because of an attempt to turn an ugly episode into an educational one -- instead of standing by them -- remains unexplained. Nor has anyone in that administration explained why, instead of a rational assessment of these hysterically inflated incidents, the school's dean was moved to give instant implicit assent to the strange notion that racism was running riot at Harvard Law. Both of these subjects would, of course, make for difficult conversations.

Now I've heard quite a bit about both of these incidents, and to my knowledge the matter is somewhat more complex than the article describes it. For instance, it's not clear to me that Nesson was in fact "punished" for his conduct; it may well be that he genuinely volunteered (this may seem implausible as to some people, but not necessarily as to Nesson). Having a professor's classes be tape recorded doesn't strike me as much of a "punishment." And while Rosenberg's meaning might have been misunderstood, I do think he made (if accounts are correct) quite a serious pedagogical mistake. (Among other things, the views of the "crits" are not based solely on black or feminist perspectives -- those are the "critical race theory" people; many of the leading crits are white men. And whether he meant "crits" or "critical race theorists," "the blacks" is a pretty odd way of calling them.)

     But beyond this, I think the Nesson incident is (if the accounts that I have heard are correct) an example of ineffective legal teaching, a cousin of ineffective lawyering. Teaching based on a hotly contested event in the law school, an event in which the perpetrator and the challengers were students, and quite possibly friends of the people in the class, strikes me as a mistake: It's likely to distract students more than it educates them. A professor, like lawyers, must indeed pay attention to the way that "emotions," "personal history," "subtext," and "what is left unsaid" affect his audience. This doesn't mean that one should shun controversial topics (I certainly cover many such topics, including racially charged ones); but it does mean that one should be attentive to how the students are perceiving these topics, and that one should try to present those topics in a way that gives the maximum enlightenment and minimum distraction and alienation.

     Perhaps under academic freedom principles, a professor may be entitled to ignore these factors, with no fear of punishment, at least in some situations. But if he does ignore these factors, then he's being an ineffective teacher. Good teachers are supposed to be masters of managing "difficult conversations." Maybe Nesson (who, as I understand it, has many fans at Harvard as well as some critics) volunteered to sit out the rest of the semester precisely because he recognized that he had erred.

     These incidents, then, seem to indeed support the need to teach students how to successfully conduct difficult conversations. They help show that it's indeed important for legal professionals -- lawyers, teachers, judges, and others -- must understand how their listeners will respond emotionally as well as logically.

     Of course, if the "Difficult Conversations" program does not actually teach students how to deal with such conversations, but only tries to push some political agenda, then it can be faulted on those terms. But the Journal article gives no specific examples of such problems. And it seems to me, at least at this point, that the program's stated principles are quite sound, and quite consistent with the skills that most of us really would want our lawyers to have.

 
[Eugene Volokh, 2:52 PM]
UNIVERSITY OF OREGON FACULTY SENATE CONSIDERING RESOLUTION AGAINST WAR ON IRAQ: Of course, professors have every right to express their views; whether the Faculty Senate has the power to do this as a collective body depends on its own bylaws, but I'll happily stipulate that it does have this legal and moral power.

     But what puzzles is why any reader would give any special credence to a statement about the war just because physicists, English literature experts, law professors, and musicologists voted in favor of the statement. If this were a statement by professors who research international relations, or military strategy and tactics, that would be worth reading. But if the University of Oregon faculty puts its reputation (mostly earned by accomplishment in fields having nothing to do with the war on Iraq) behind a resolution on a subject on which most faculty members have no specialized knowledge, this won't increase the public's concern about the war. Rather, it will only undermine the public's respect for the University.

 
[Eugene Volokh, 1:44 PM]
TOP X% PLANS FOR COLLEGE ADMISSIONS: John Rosenberg has a very interesting and thoughtful discussion of these plans. The theory of these plans is that the universities admit, say, the top 10% of each high school's graduating class, so that de facto housing segregation at the high school level will yield a university student body with more blacks and Hispanics than would be admitted if the university accepted the top 10% of all students statewide. The plans are generally in large part precisely to get this sort of racial mix, but they are on their face race-neutral; and it's not clear whether the plans are constitutional (and of course there are also debates about whether they're good policy).

     This is a complex question, to which I don't have a firm answer; but John's posts, which also quote some equally thoughtful people who disagree with him, are much worth reading.

 
[Eugene Volokh, 12:21 PM]
FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW has just reversed the Foreign Intelligence Surveillance Court decision that made so much news this summer. Haven't read this yet, but thought I'd pass along the link.

UPDATE: For a wry aside, check out footnote 19.

 
[Eugene Volokh, 12:12 PM]
MORE ON THE CUNY TENURE CONTROVERSY: My colleague Jonathan Zasloff, who's a history Ph.D. as well as a law professor, writes:

I know [KC Johnson] from my days at graduate school. He's very smart and quite an accomplished historian: his book on the "Peace Progressives" of the 1920's is a very important one -- very well-written and incredibly researched. He's often kind of quiet, but at least as a grad student I found him to be quite collegial, and given the norm of eccentricity that prevails in most faculty departments, to use a norm like that would disqualify at least a substantial percentage of currently tenured faculty members.

The irony of all of this is that KC's work focuses on, and often celebrates, left-leaning dissenters against US foreign policy. The Peace Progressives book strongly argued for a positive interpretation of the policies of figures like Hendrik Shipstead, John Blaine, Gerald Nye, William Burton, George Norris, and William Borah -- hardly household names but nevertheless crucial figures in interwar US foreign policy who had been previously dismissed as crude isolationists. (For what it's worth, I STILL think that quite often they were crude isolationists -- but KC has convinced me that in many respects they were also often far-sighted anti-imperialists, whose philosophies could have saved the US a lot of trouble in the developing world during the postwar period). His second book is a biography of Ernest Gruening, who as a US Senator from Alaska cast one of only two votes against the Gulf of Tonkin resolution.

KC should be lauded, not dismissed. I don't know the details of CUNY's actions, but they are missing a huge opportunity to keep a major, rising young scholar.

One other note in this: the CUNY controversy also points to the decline of the history of American foreign policy as a subject of academic study -- not because it isn't still critically important, but rather because it is simplistically dismissed as studying dead white men. The "new social history" that focuses on studying the working class, unemployed people, minorities, women and gays is critically important as well -- but the academy, in its quest for novelty, has really thrown the baby out with the bathwater here.

 
[Eugene Volokh, 11:00 AM]
DISPATCHES FROM MEDIA BOOT CAMP promises to be a great series this week in Slate. To briefly answer why the media are being sent to boot camp (yes, a boot camp run by the military):

The idea behind the boot camps is simple: The more reporters experience military life, the less chance there is they will slow down, screw up, or report inaccurately about the military unit they are embedded with. It's also a way to make the military brass comfortable with once again letting reporters bum rides on the way to war—a policy that, for the most part, was abandoned after Vietnam.

Looks very interesting.

 
[Eugene Volokh, 10:04 AM]
WE'RE THE #1 CONSPIRACY, ACCORDING TO YAHOO: A Yahoo search for "conspiracy" lists us in first place, as opposed to google, in which we're just #2. Query what this says about the relative qualities of the search engines . . . .

 
[Eugene Volokh, 9:58 AM]
A BIT MORE ON THE UNIVERSITY OF TENNESSEE BLACKFACE INCIDENT: This is what a student newspaper article says (thanks to InstaPundit for the pointer):

While stating that the university condemns the actions of the students involved, [UT President John] Shumaker stressed that the administration would have no authority to punish the offenders. He cited previous federal court rulings that found punishment for such actions to be in violation of the First Amendment.

I am glad to hear that this is so, and I hope that this also means the Administration will not follow through on its earlier intimations that it might not reinstate the fraternity chapter because of its members' speech ("Even if the national Kappa Sigma organization reinstates the UT Lambda chapter, UT might not choose to recognize the group, according to Crabtree."). The First Amendment prevents discrimination against groups that engage in supposedly offensive speech, as well as against individuals.

     Here, though, is another item that caught my eye (though it was a remark just by a student, not the university):

The most intense moment of the evening came with a question from senior English major, Pat Tucker. Tucker suggested that UT lower its academic requirements for admission and scholarship eligibility for black students in order to increase minority recruitment.

Shumaker said he did not think that was necessary at all and questioned Tucker's basis for making such a suggestion.

The statement drew a wide range of reactions from those in attendance. Many felt that the exchange underscored the need for cultural sensitivity education, as well as the need for an African/African-American Studies department.

Hmm -- what exactly is "cultural sensitivity education" supposed to consist of, and how exactly is it connected to the exchange between Tucker and Shumaker? I suspect I know the answer that "many" would give to this, and I don't think I like it.

 
[Eugene Volokh, 9:51 AM]
TENURE CONTROVERSY AT THE CITY UNIVERSITY OF NEW YORK (CUNY): Here's an excerpt from the New York Sun article (thanks to InstaPundit for the pointer):

The furor heated up yesterday over Brooklyn College’s decision to deny tenure to a historian that colleagues describe as an accomplished scholar and popular professor.

Two City University of New York trustees spoke out about the case, students announced plans for a rally in the professor’s defense, and more details emerged about the hiring process in the college’s history department. In one e-mail about a search for a professor, the history department’s chairman, Philip Gallagher, suggested “finding some women that we can live with, who are not whiners from the word go or who need therapy as much as they need a job.”

Twenty-three of the nation’s most prominent historians — including Donald Kagan of Yale and Ernest May and Akira Iriye of Harvard — have written a letter to the CUNY chancellor describing the decision to deny tenure to Robert David “KC” Johnson as “disastrous” and “unjust,” The New York Sun reported yesterday. The historians’ letter calls Mr. Johnson “one of the most accomplished young historians in the country,” and says the college’s decision was based not on scholarship or teaching but on a newly invented category of “collegiality,” which the professors said “poses a grave threat to academic freedom.” . . .

Mr. Johnson and his defenders say his two offenses against collegiality were 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 — in need of “therapy” or not — instead be conducted on the merits. . . .

I should stress that (1) this is only one side of the story, (2) 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, and (3) the internal university appeals system has not yet run its course, and might lead to the result being changed. Still, if the facts are as they are described, especially as to the definition of "collegiality" (something about which there might be a paper trail), that would be extremely troubling.

     (Incidentally, to respond in advance to anyone who asks me to distinguish this from the Lynne Stewart matter: Here, we have a tenure decision, which is supposed to be nonideological [to the extent possible] and conducted using standards that are as objective as possible; and the university has promised a fair and nonideological evaluation process to its faculty members when they were hired. This is indeed a question of academic freedom. There, we have a decision whether to give someone an honor, and questions about whom to honor necessarily turn in part on the person's character, which may include the person's ideology; they are not done based on objective standards, and they're not academic freedom issues. If a university refuses to invite me to be a mentor because they think that I'm insufficiently committed to sex preferences in hiring, or to a particular view of 9/11, they're not violating any academic freedom principles.)

 
[Eugene Volokh, 7:58 AM]
A DIFFERENT PLEDGE OF ALLEGIANCE STORY: CNN reports that "Students in private and public schools would be required to recite the Pledge of Allegiance or sing the national anthem each morning under a bill unanimously passed this week by the state Senate. . . . The measure would allow students to decline reciting the pledge and saluting the flag on the basis of religious conviction or personal belief, but school officials would have to notify their parents."

     Excuse me, but private schools? The whole point of having independent private schools is that they can provide a variety of educational systems. Government-run schools are free to have a daily Pledge or anthem; I'm not sure how well this inculcates patriotism, but at least in principle I have no objection to this. But some private schools may prefer to teach rejection of national allegiances (whether for ideological or religious reasons). Others may prefer to teach skepticism towards patriotism. And still others may prefer to inculcate patriotism in other ways. Under the First Amendment, each school has the right to decide for itself how to convey its educational message. We might disapprove of some schools' approaches, but that's not justification enough to force them to teach a particular ideology, even one that most of us may love.

 
[Eugene Volokh, 7:48 AM]
WORDS TO REMEMBER: I was reminded of them by Justice Scalia's speech at the Federalist Society conference Thursday (from the Federalist, No. 49):

[T]he strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated.

Perhaps this ought not be so -- but in fact, it is.

 
[Eugene Volokh, 7:44 AM]
IT'S OFFICIAL: The Volokh Conspiracy is now the #2 conspiracy in the whole world (or at least its google-reachable portions), easily beating out the vast right-wing conspiracy, the international Jewish conspiracy, and who knows how many others. That's right -- if you do a google search for Conspiracy, we're there, in #2, right after "Conspiracy Net."

     Coincidence? You be the judge.