[Eugene Volokh, 9:38 PM]
APOLOGY TO LAOPHILES: We're sorry that the person who recently accessed this blog via a yahoo search for "Laos is my favorite country" has likely not gotten what he wanted. But this blog has indeed mentioned Laos at least once, which is probably more than most blogs have. Mystery reader, hope you enjoyed what you stumbled across.

 
[Eugene Volokh, 5:35 PM]
ARE WOMEN MORE LIKELY THAN MEN TO SLEEP WITH INTERNS? I have absolutely no idea, and this poll provides us with no useful information on the subject, though I'm sure that it will be reported as if it did.

     The poll does tell us that, among women (or people who claim to be women) who hear about Playboy online polls, and who choose to respond to them -- hardly a representative sample of women, I suspect -- 20% claim to have slept with an intern, while among similarly-described men, 12% claim to have slept with an intern. Repeat after me: "I will give no credence to self-selected surveys, online or otherwise. I will give no credence to self-selected surveys, online or otherwise. . . ."

 
[Eugene Volokh, 5:31 PM]
TOP 10 ON BLOGSTREET: The Volokh Conspiracy is #10 on Blogstreet's list, apparently based on the number of links. Nice to see.

 
[Eugene Volokh, 2:37 PM]
RHETORICAL EXCESSES RIGHT AND LEFT: Geitner Simmons has an interesting post on this (it's the Friday, November 29 post; sorry, the permalink isn't working). Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 1:55 PM]
GETTING BLOG POSTS BY E-MAIL: As an experiment, I've set things up so that Blogger can deliver blog posts by e-mail. If you'd like to use this option -- and I can see reasons why some people would like it, and others wouldn't -- send a message containing just the text

SUBSCRIBE VOLOKH-L X Y

to the e-mail address LISTSERV at LISTSERV.UCLA.EDU . If you need to unsubscribe or your e-mail address is about to change just send a message containing just the text

UNSUBSCRIBE VOLOKH-L

to the same address. And if you'd like to get all of a day's posts in one message, I think you should be able to configure that by sending a message containing just the text

SET VOLOKH-L DIGEST

to the same address; and to undo that, the message SET VOLOKH-L MAIL should do the trick.

     Unfortunately, I'm swamped enough that I probably won't be able to provide any manual help with the list, but I hope that the automatic subscription and unsubscription results will do the job. Also, just a warning: This is only an experiment; if this ends up causing trouble, I might have to discontinue this, and return to a Web-only format.

 
[Eugene Volokh, 1:38 PM]
"WHAT CAN YOU DO IF YOUR TIVO MISTAKENLY THINKS YOU'RE GAY? OR A NEO-NAZI?," asks Paul Hsieh at GeekPress (newly added to our blogroll -- looks like a great site), and points us to a (seemingly free) Wall Street Journal Online article that discusses the problem, and suggests some answers. My favorite excerpt:

Mike Binder, creator and star of [HBO's "The Mind of a Married Man"], had set his home TiVo to record his 1999 movie, "The Sex Monster," about a man whose wife becomes bisexual. After that, Mr. Binder's TiVo assumed he would enjoy a steady stream of gay programming. Unnerved, he counteracted the onslaught by recording the Playboy Channel and MTV's spring break bikini coverage. It worked, he says. "My TiVo doesn't look at me funny anymore."

His wife, however, was taken aback when she saw all the half-naked women he was ordering through TiVo. He told her those women meant nothing to him: "I'm just counterprogramming because TiVo thinks I'm gay." She was unamused. The incident inspired an episode of his show.

 
[Eugene Volokh, 1:21 PM]
MORE ON SADDAM HUSSEIN: I took Philippe's advice and read the interview with Mark Bowden, the author of a detailed and seemingly quite balanced story about Saddam Hussein. Here's the closing question and answer:

Knowing what you know, how would you advise the decision-makers in Washington to deal with Saddam?

After working on this story, I really do think that Saddam poses a serious threat to the United States and the rest of the world -- not that he will attack Israel or the United States directly, but if he possesses or develops nuclear weapons of mass destruction, I have no doubt that he will find a way to get those weapons into the hands of groups like al Qaeda and others who will use them. Saddam has been making a very serious effort for some years now to develop the kinds of weapons that really can only be developed by a state. So I think that in the interest of self-defense it's really important that we do something to end his regime. But as for how to go about it? I'm afraid that's, as they say in the military, "over my pay grade."

Such predictions are of course guesswork; who can know for sure what someone is likely to do in the future? But this one strikes me as quite on the money.

 
[Eugene Volokh, 1:08 PM]
SEXISM AND RACISM: InstaPundit writes:

IS IT SEXIST TO WISH FOR A WORLD WITH FEWER MEN? My earlier post on feminist scholar Mary Daly's expressed desire for a world where only one person in ten was male (which one reader called Strangelovian) has inspired Eugene Volokh to wonder whether such sentiments are sexist or not. I don't know: Would wishing for a world with fewer black people be racist?

     This sort of quick analogy between attitudes about the sexes and attitudes about the races is quite common (just to give one other example, defenders of gay marriage analogize the requirement that spouses be of opposite sexes to past requirements that spouses be of the same race), and sometimes helpful -- but often, I think, mistaken. Here are a few reasons to be skeptical about this sort of argument.

     1. Do you think that the Boy Scouts being limited to boys is morally equivalent to a White Scouts that's limited to whites? (I think both should be legally permissible, but my question is whether they're morally equivalent?) What about someone telling his girlfriend "Sorry, honey, you probably shouldn't join us for drinks tonight; we're thinking of making it a boys' night out" and someone telling a black friend "Sorry, buddy, you probably shouldn't join us for drinks tonight; we're thinking of making it a whites' night out" -- morally equivalent? Now perhaps the common perception that these scenarios are not morally equivalent is mistaken. But if it's right, then it helps show that there are real differences (at least often) between sex-based attitudes and race-based attitudes.

     2. If one is drawing analogies, while draw the analogy between sex and race, and not, say, sex and religion? We might think it's wrong for people to refuse to hire non-Christians because of their religion; but if someone expresses a desire for a future world in which fewer people are non-Christian, I don't think we'd see that as immoral or even bigoted (though we might disagree with the desire for other reasons).

     Likewise, how about an analogy between sex and certain physical handicaps? For instance, we might think it's unkind, unfair, or even bigoted to refuse to admit people to college because they have various handicaps or genetic diseases, or to refuse to hire them for most jobs (setting aside those where we think the absence of the disease is strongly related to the person's ability to do the job). But I think the desire for a future world in which fewer people have those problems is downright laudable.

     3. And these specific examples help illustrate, I think, a more general theoretical point: We condemn certain attitudes and practices as racist because we think race has little inherent connection to human behavior. (I'm not an expert on the subject, and I know there are hot controversies in this area, but to the best of my knowledge the evidence indeed strongly supports this belief.) But sex obviously does have a huge biological connection to human behavior. We know this is so in some areas of life, both biological reproduction and apparently some social practices related to reproduction and mating. And there's apparently strong evidence that there are also biologically driven sex differences in other areas, such as tendency towards violence and possibly certain cognitive skills and social behavior patterns as well.

     If this evidence is correct, what do we do with this? As I said in my earlier post, I still think that it would be right to treat living individuals the same without regard to their sex, since we know that men's and women's temperaments, behavior patterns, and abilities overlap considerably. But it might be -- depending on the facts -- quite proper to hope for a world in which there were fewer or no men (or for that matter fewer or no women, again depending on what the facts suggest).

     It may well be that, despite the real differences between men and women, a 50-50 gender balance is still good. One reason may be that it fits better with people's sexual practices, which seem quiet unlikely to change any time soon. Another reason may be that humanity is better off with a mix of the biological predispositions of men and those of women -- as my earlier post suggested, perhaps a move towards a more pacifistic species would have substantial costs as well as benefits.

     But I don't think that the question of the optimal gender balance can be resolved simply by a moral equivalence to racism -- there are too many important differences between sex and race for that analogy to work.

UPDATE: Incidentally, just to make it clear: As I mentioned in my earlier post, "some anti-male arguments, like some anti-female arguments, come largely from irrational prejudice rather than rational judgment"; these may be as nonsensical as some racist arguments are. (My original post pointed out specific ways in which some people may be blind to the advantages of male traits as well as their disadvantages.) So I'm not defending any "fewer males, please" commentator in particular -- only the legitimacy of the inquiry in general.

 
[Eugene Volokh, 12:42 PM]
GUN CONTROL FOR SEVENTH GRADERS: I got a very nice note this morning, and felt I had to respond to it:

Dear Professor Volokh,

We are doing a project for our 7th grade class on gun control. We would greatly appreciate it if you would share some of your opinions on this issue. How do you think gun control will help our nation? Is owning a gun more likely to be harmful rather than helpful? Please consider replying to this letter. Your viewpoints will help our research immensely. Thank you for your time.

Now I know very little about talking to seventh graders, and I know even less about how much detail they want. But the letter seems articulate and thoughtful, so I thought I'd try to give them an adult (though brief) explanation. Just in case others might be interested, I thought I'd pass it along to the list. My apologies in advance if you think my response is likely to be useless or incomprehensible to a 12-year-old, or on the other hand if you think it's way too general and not detailed enough; as I said, I know very little about 12-year-olds.

My pleasure; here are a few thoughts:

     1. Guns are used by criminals hundreds of thousands of times a year to commit crimes. But they're also used hundreds of thousands of times a year by law-abiding people to protect themselves and their families. And guns are very effective for self-defense, because they can scare off criminals (even if the gun isn't fired) as well as stopping them.

     2. What effect will gun bans have? They will disarm the good guys, since law-abiding people are likely to obey gun control laws. But they won't do much to the criminals: Someone who is willing to break the laws against murder, robbery, and rape will likely ignore gun control laws, too. There are 200-250 million guns in the country (80 million handguns, and the rest rifles and shotguns, which are even deadlier than handguns); they aren't just going away. Criminals will be able to get their hands on guns no matter what law we enact.

     So if guns are banned, there'll still be plenty of gun crime -- but good people will be less able to defend themselves against it.

     3. What about milder gun controls, such as waiting periods, registration requirements, bans on certain kinds of guns, and so on? Each one has to be considered on its own terms, since they are quite different. I think background checks for gun buyers will probably do a little good and not much harm, so they're probably worth implementing. Likewise for laws that ban felons (people who have been convicted of serious crimes in the past) from owning guns. Most other gun control proposals, though, probably do more harm than good.

     4. What's the solution? The solution, I think, is to fight *crime*, not to fight guns. Criminals should be caught and locked up; and if there's something we can do to prevent the conditions that create crime, that would be great, too. (Better education will probably help a lot, though of course that's easier said than done.) And if you can find some gun control laws that will really affect only criminals, and not law-abiding people, that would be great. But disarming law-abiding people won't help prevent crime. If anything, it will yield more crime.

     Let me know if you have more specific questions on this. If you'd like to see some more statistics on this subject, try http://guntruths.com/Resource/facts_you_can_use.htm -- I haven't checked all the facts mentioned here, but they seem pretty reliable (though note that they're presented from an anti-gun-control perspective). Also, please get in touch with some people who support gun bans and other gun controls, so that you can hear both sides of the debate.

Eugene Volokh

 
[Eugene Volokh, 11:19 PM]
HUSSEIN'S ATTEMPT TO EVADE INSPECTORS: I have no idea whether this is accurate, but here's the FoxNews report:

Iraqi leader Saddam Hussein has ordered hundreds of his officials to conceal weapons of mass destruction components in their homes to evade the prying eyes of the United Nations inspectors.

According to a stream of intelligence now emerging from inside Iraq, the full extent of the Iraqi leader’s deception operation is now becoming apparent. As the U.N. inspectors knock on the doors of the major military sites in Iraq, suspected of housing chemical and biological weapons and banned missiles, the bulk of the evidence is being secreted away in people’s homes. . . .

Iraqi farmers have also been ordered to play their part, according to intelligence sources. One source said that farmers were being told to hide drums of chemicals among stocks of pesticides.

In each case, the scientists, officials and farmers are being warned that they and their families will face severe penalties if they fail to hide these stocks of chemicals and biological materials from prying U.N. inspectors. Computers and laptops containing vital information about the weapons of mass destruction program are also being hidden in people’s homes.

The intelligence sources said that U.N. inspectors were aware of what American and other Western agencies were uncovering. However, it made their job almost impossible because they would have no idea where to start if they had to search individual homes. . . .

Apart from the evidence of deception, the latest intelligence has also uncovered a totally different mood in Iraq from the lead-up to the 1991 Gulf War. Then, there was little or no evidence that the people of Iraq were opposed to Saddam. Now, however, there are signs of a growing disaffection. . . .

First, Saddam has been sufficiently worried about potential internal opposition to his regime to take the extraordinary step of canvassing opinion in all the key cities. Intelligence sources say that Kurds have been used to carry out the survey.

The answers coming back from the quasi-opinion poll have given strong indications that people were looking towards a post-Saddam era and wondering whether it would improve their standard of living. To counter this, Saddam’s regime has begun circulating rumors in Iraq that even if he were to fall from power, there would be no lifting of sanctions. . . .

The first sign of possible internal dissent came during the referendum in Iraq last month when Saddam was supposedly given a 100 percent "yes" vote for continuing in office. Baghdad claimed it was also a 100 percent turnout. However, intelligence emerging since then has revealed that only one in three people actually voted. . . .

Second, as a sign of Saddam’s unease over the loyalty of his officials in Baghdad, he has begun handing out cars to everyone to keep them happy. The intelligence sources said senior officials were being given Toyota Avalon luxury sedans and junior officials South Korean-made Kia cars. . . .

Saddam[,] who is not known to be a very religious person, has ordered his officials to spread rumors that the Americans want to invade Iraq in order to convert everyone to Christianity. He has also written a prayer. . . .

There's more; worth a read, though of course one can't know for sure how accurate such accounts are.

 
[Eugene Volokh, 4:49 PM]
HAPPY THANKSGIVING! Enjoy the holiday, and the long weekend. Hope you have lots to be thankful for; I know I certainly do.

 
[Eugene Volokh, 3:38 PM]
THE VOLOKH CONSPIRACY PROMISES: 1. If we take someone off our very short permanent links list, we promise not to make a public production out of this. (See InstaPundit for some reports of the recent delinking fracases.)

     Among other things, we highly doubt that blogs get that much traffic through our permanent links; I suspect they get a bit more out of links in our posts, but not out of the permanent links. What's the use of publicly announcing "We're so incensed that we will try to deny you five readers a day, maybe ten!"? Even if it's just for the sake of symbolism, there's little symbolism in such a relatively futile gesture. We're entitled to link or not link to whomever we please -- but we plan to exercise such discretion discreetly.

2. If someone refuses to link to us, refuses to link to people who link to us, or refuses to link to people who link to people who link to us, we promise not to make a public production out of this, or call it "censorship." We're flattered when people link to us, but we realize that this is a favor, not an obligation.

 
[Eugene Volokh, 2:20 PM]
THE COMMERCE CLAUSE AND TORT REFORM: Glenn Reynolds and Brannon Denning argue that Democrats should applaud, not oppose, the Supreme Court's renewed willingness to limit Congressional power. I think they make some very good arguments, but I tentatively disagree with one of their claims:

Plans to reform state tort systems by capping damage awards, limiting punitive damages, and curbing certain theories of liability also look vulnerable before a conservative Court. While tort suits undoubtedly have an effect on the economy, there is scarcely any human activity that doesn’t. But the Court has made clear that the Commerce Clause is not a blank check.

For example, in Lopez, the government argued that guns and violence in schools have an effect on learning, which has an effect on students, which has an effect on the economy, since violent schools are unlikely to produce an educated workforce. Violence against women, it was argued, resulted in lost wages, lost productivity, foregone career opportunities, etc. While the Court conceded that these things may be true, the Court said that finding these conditions to be issues of interstate commerce would mean the Commerce Clause would have no limits -- and it was designed to have limits.

Moreover, there is the threshold question whether a tort suit is really a commercial activity at all. Many would argue that tort actions are designed to compensate a victim for a loss and punish the perpetrator -- either of which is really "commercial" activity.

There are good policy arguments for and against Congressional tort reform proposals. One quite legitimate argument against the proposal is that tort law is best left to the states; a countervailing argument is that many tort claims, especially product liability claims, let one state effectively impose its own rules on products sold throughout the country, and that Congress should step in and prevent this.

     But as a constitutional matter, I think that Congress properly has the power to limit state tort law claims if those claims arise out of economic activity (and especially interstate economic activity). A tort law rule that imposes liability as a consequence of an economic transaction -- "if you sell goods in Alabama that Alabama law concludes are defective, you will have to pay damages" -- is essentially a state regulating (and indirectly taxing) commerce, including commerce among the states; the regulation comes through judicial decision and not through a statute, but it is regulation nonetheless. And one of the proper exercises of Congressional power to regulate interstate commerce is for Congress to lower barriers to such commerce by preempting contrary state regulations.

     What if the tort claim originates from a purely intrastate economic transaction, for instance a lawsuit against a local manufacturer, or a medical malpractice claim against a local doctor? Well, even as the Court has been reasserting the limits on federal power to regulate noncommercial activity, the Court has generally taken the view that Congress may regulate even intrastate commercial activity, so long as that activity is part of a national market. I doubt that the Court will change its view on this, and I'm not sure that it should, given the integration of our national economy.

     So on balance, I think that Congress does have the constitutional power to regulate commercial transactions by controlling the tort liability rules that can flow from those transactions. I don't think that it can preempt state tort law as to torts that arise out of purely noncommercial conduct, such as battery, or perhaps even auto accidents. But it can preempt (and otherwise control) product liability claims and medical malpractice claims, which arise out of commercial transactions (the sale of goods and services).

     The article continues:

Requiring state judges to limit jury awards in line with federal limits imposed by tort reform legislation might also violate the Court’s "anticommandeering" principle. The Court has made much of the fact that federal mandates to state legislatures and executive officials reduce transparency and accountability -- state officials have to take flak for unpopular mandates that originate with the federal government, while Congress can take credit for doing good deeds while insulating itself from criticism by those who feel the effects of implementation.

The argument would seem to work here: defendants in civil law suits would find jury verdicts reduced by state judges (many of which are elected) who were merely doing Congress’s bidding. Though the Court has not addressed the question whether state judicial officials are different from other state officials, it seems inconsistent to carve out an exception for state judges.

This, too, strikes me as unsound. The Court has long held that the anticommandeering principle applies only to federal attempts to commandeer state legislatures or executive officials, and not state courts -- Congress can, for instance, order state courts to hear federal claims, because that's part of the nature of courts: Courts must apply the law, and article VI of the Constitution makes federal law binding in state courts. As the Court held in Printz (1997), where it enunciated the anticommandeering principle as to executive officials, "state courts cannot refuse to apply federal law -- a conclusion mandated by the terms of the Supremacy Clause ("the Judges in every State shall be bound [by federal law]." If a judge is bound by a federal cap on damages that can be awarded based on a commercial transaction, then his article VI responsibility bars him from allowing a damages award that exceeds such a cap.

     I think that the thrust of the piece is quite sound, and the piece is generally much worth reading. But I don't think its position on tort liability is generally correct, at least as to tort claims that arise out of commercial behavior.

 
[Eugene Volokh, 1:17 PM]
FIVE BLIND ELEPHANTS (AUTHOR UNKNOWN): Five blind elephants want to find out what men are like. Each touches a man with its foot, and all agree: Men are wet, sticky, and flat.

 
[Eugene Volokh, 12:23 PM]
AMUSING PIECE BY MICHAEL KINSLEY, about Google News, textile workers, and other things.

 
[Eugene Volokh, 9:46 AM]
A BIT MORE ON INVECTIVE: Steve Postrel's message, and those from some other readers (in particular, Matt Bower) point out, I think quite powerfully, that calling the other side names may sometimes be effective at energizing one's base. That may be so, though I'm not sure whether on balance the benefits of such rhetoric, even aimed just at true believers, exceed the costs.

     But I don't think undermines my original point, which is that invective (at least on Web logs) is likely to lead to "ideological cocooning" -- likely to "increase people's predisposition to talk to and listen to only those views that they generally agree with, and to simply ignore other views." My main assertion was that most people have a particularly strong tendency to ignore views that they disagree with and that are presented rudely. That means they might well go to an insult-filled blog that insults people they think deserve insult; and thus an insult-filled blog may be effective at communicating to those who already mostly agree with it (again, I'm not sure that it will be, but it's possible). But it won't be effective at persuading people who are in the middle or on the other side.

     So if one wants to fight people's tendency to listen only to those views that they already agree with -- nothing says that this must be a Weblogger's goal, but some people have this goal -- a calm and polite (though engaging) tone is more effective for that purpose than a rude one.

 
[Eugene Volokh, 8:57 AM]
A WORLD WHERE THERE ARE FEWER MEN: So is it sexist to wish for a world with fewer men? (See InstaPundit's post that prompted this thought, though it doesn't specifically make the sexism allegation.) Or, to be precise, since it's hard to deny that it's sexist in one sense of the word -- it reflects "the assumption that one sex . . . is inferior to the other," and suggests "discrimination," at least in the prenatal phase, "on the grounds of sex" -- is this sort of sexism necessarily wrong?

     The fact is that men and women have very different behavior patterns, and there's good reason to think that many of them are biologically influenced -- perhaps not completely biologically determined, but certainly influenced by biology and not just by society. There is considerable evidence for this: In many (perhaps most?) species, males and females behave differently, and it's hard to blame "culture" for that (or if one does, by defining culture broadly enough to include the behavior of many nonhuman animals, then one has to recognize that culture is itself biologically influenced). There are certain common patterns of behavior -- for instance, higher violent criminality among males than among females, or government by males more than females -- that have to my knowledge present in virtually all societies, which suggests a biological influence. Hormones, which operate in different ways in men and women, do influence behavior. And so far I've just mentioned what I believe are the most broadly accepted examples; as I understand it, there's considerable evidence for other claims, such as the observation that the intelligence bell curve is broader for males than for females, so there are more geniuses and more idiots among males than females.

     Now I think there's a very powerful argument that this observation should not lead us to discriminate based on sex in most situations against real humans. There are wide variations in individual behavior, intelligence, temperament, and most other facts among both males and females. Refusing to hire a woman as a mathematician because women generally are less likely than men to be mathematical geniuses, or refusing to hire a man because men generally are more likely than women to be violent criminals, thus generally places too much weight on a not very probative factor, especially when other much more probative evidence is generally available. And I think that a society which treats men and women generally equally, especially in education, hiring, and so on is on balance much more likely to be successful than one that doesn't.

     But it's far from clear that this sort of mixed moral-pragmatic claim carries over to judgments about future generations. I don't think there's anything necessarily evil about parents concluding that having very few male children, or perhaps even no male children (assuming that reproductive technology can propagate the species without males, which is not a ridiculous assumption for the future), will yield a better society. There are no living humans who are hurt by that. Some of the few future males might be indirectly hurt by the message that the practice sends -- if society thinks there should be very few males because males are bad, how will that make the few males feel? But if the message is simply a reflection of the fact that having many males is indeed bad for society, then that truth will come out (and should come out) in any event.

     The issue, I think, can't be inherently framed in terms of sexism (though of course some anti-male arguments, like some anti-female arguments, come largely from irrational prejudice rather than rational judgment). At the same time, it can't be framed in terms of bad science, either -- and focusing just on the harms caused by men's greater propensity to violence, both criminal and military, or men's other supposedly damaging emotional traits is bad science. First, there is good reason to think that men are more likely to be, say, mathematical geniuses, and mathematical genius (and its related scientific cousins) is a pretty important thing for the species. If you look to the past, you can't fault males as a sex for all male-produced crime and war without also praising them for all male-produced scientific and political advancement; if you look to the future, you can't focus just on genetic propensities to bad behavior without considering genetic propensities to good behavior. Second, we of course have to consider the realities of human sexual desire and human mating practices, something that might be hard to change genetically, or that people might not want to change genetically in their children.

     Third, while a violent temperament among members of society has lots of costs in everyday life, there are periods in human history where it is necessary for a society's -- or a species' -- survival. Even if all humans decide to eliminate males, and exist in a more peaceful female-only society, will this society survive if some rogue group decides to genetically engineer a more violent rival society? And beyond that, while we're in the realm of science fiction, it's certainly quite possible that we'll encounter alien intelligent life forms, especially as we expand through the galaxy (which I'm sure we will in the centuries to come). And given our experience of life, including intelligent life, on earth, there's good reason to think that they may be violent. If we make our society too pacifistic, we may be unable to survive that sort of contact.

     These are all tough questions, and I have absolutely no idea what the right answers to them are. I think the right process for answering them, though, has to recognize that males and females are quite different biologically. They are less different than some in the past have thought they were; the remarkable changes in society in just the last generation or two show the errors in the formerly commonplace assertions about how women somehow lack the temperament to be, say, effective lawyers. But they are more different than many in the present think they are.

     It is not inherently sexist to say this, or, if it is, then it's "sexist" only if "sexist" becomes a value-neutral word. And if one consequence is that we (or, more likely, our great-grandchildren) conclude that a mostly-female or an all-female (or a mostly-male or an all-male) society is the right solution for the future, and we find that this can be done without improper coercion of parents, then we should consider this option -- even if we're committed to evenhanded treatment of actual males and females who are alive today.

 
[Eugene Volokh, 8:44 AM]
TOO TOUGH IN THEORY LEADS TO NOT TOUGH ENOUGH IN PRACTICE: AmSoAPundit has an interesting story about the unexpected consequences of a tough anti-cheating policy:

UVA's system is entirely student run and expulsion from the school is the only penalty. The "you-cheat-you're-gone" system impresses outsiders as a tough, no nonsense approach.

In fact, it creates a climate in which there is a great deal of cheating. First, professors may suspect students of cheating, but are wary of taking the matter to the honor committee because the penalty is so severe. . . . And they are especially reluctant to call a student on the carpet when the cheating isn't flagrant. . . .

Because the stakes are so high -- expulsion -- professors know that accused students will use all resources available to fight the charges. (For instance, they will sue the University or the professor in court.) Such cases are likely to consume a great deal of professors' valuable research time, which adds to their reluctance to bring charges in the first place. . . .

I am not an expert enough on this subject to know what anti-cheating system works best; a lot depends on contested and uncertain predictions about how various people will respond to various incentives. But AmSoAPundit's point is valuable precisely because it shows that there are these thorny practical questions, and that some "get tough" policies may sometimes be counterproductive.

     More broadly, this provides another example of what I call the "anticooperative effect" of laws and rules -- the tendency of some rules, even well-intentioned and theoretically sound ones, to deter people from participating in a legal system, and providing it the cooperation that it needs to function.

 
[Eugene Volokh, 8:20 AM]
SLATE ON BLIX: OK, I have no idea whether this Assessment is sound (I know very little about weapons inspections), but Chris Suellentrop is hardly a knee-jerk hawk (as the rest of his piece illustrates), and the opening line is just too good to pass up:

When the United Nations named Hans Blix its chief weapons inspector, it chose a henhouse to guard the fox.

Worth reading.

 
[Eugene Volokh, 8:13 AM]
WHAT GORE IS REALLY SAYING ABOUT THE MEDIA: The New York Observer interview with Al Gore has quite a telling quote:

"The media is kind of weird these days on politics, and there are some major institutional voices that are, truthfully speaking, part and parcel of the Republican Party," said Mr. Gore in an interview with The Observer. "Fox News Network, The Washington Times, Rush Limbaugh—there’s a bunch of them, and some of them are financed by wealthy ultra-conservative billionaires who make political deals with Republican administrations and the rest of the media …. Most of the media [has] been slow to recognize the pervasive impact of this fifth column in their ranks—that is, day after day, injecting the daily Republican talking points into the definition of what’s objective as stated by the news media as a whole."

Interesting -- the conservative media are a fifth column in the media's ranks. Now a "fifth column" is technically defined as "an organized body sympathizing with and working for the enemy within a country at war" (I'm quoting my New Shorter Oxford), but of course it's also defined more broadly as just "an organized body sympathizing with and working for an adversary in a political or moral contest." It doesn't just refer to a group of partisans within a pool of nonpartisans; rather, it is generally used to refer to a group of partisans within a pool of partisans for the other side -- the adversarial relationship is an inherent and, in my experience, necessary part of the phrase.

     So didn't Gore just admit that the media as a whole is liberal, and apparently in his view should be liberal? That's what would make conservative voices in the media a fifth column, no?

 
[Eugene Volokh, 8:03 AM]
FIGURATIVE USAGES: Reader David Bufkin points out an important reason why figurative usages are necessary -- when one needs to coin a snappy term, such as "black hole," "Big Bang," "greenhouse effect," and "Oedipus complex." If you have only two words to work with, you often can't be literally precise; you need something that will convey much of the idea, even with some imprecision. This is one reason that figurative usages might be necessary and appropriate (and I stress again that my original post did not condemn all figurative usages).

     Even as to these usages, though, the users of the term should be careful about relying too much on the figurative phrase. Lots of people use metaphors such as "balancing," "slippery slopes," "chilling effects," and such as if the metaphor explained what was actually going on. Legal writing would be much better if people focused much more on the actual mechanisms -- the real-world events that the phrases refer to -- and not on the metaphor (as if, for instance, "balancing" a right and a government interest were as simple an act as "balancing" two weights on a scale). Likewise, I suspect that good scholarly astronomical writing relies very little on the terms "Big Bang" and "black hole" as such, and instead refers to the actual physical forces that cause these phenomena.

     As Justice Holmes famously put it, "Think things, not words." Figurative usages unfortunately lead people to focus too much on the words, or on the wrong things (the things referred to by the metaphor, such as physical balancing, chills, or slopes) instead of the right ones. That's why scholarly writing should use them cautiously and fairly rarely -- though, as I've continually stressed, it shouldn't abandon them altogether.

 
[Eugene Volokh, 4:58 PM]
INTERESTING SECOND AMENDMENT DISCUSSION: It's in a case from the U.S. Court of Appeals for the Fifth Circuit, the one circuit that has held (in my view, correctly) that the Second Amendment secures an individual right to keep and bear arms. Haven't read it fully yet, but thought I'd mention it.

 
[Eugene Volokh, 4:51 PM]
OPERA AND THE SECOND AMENDMENT.

 
[Eugene Volokh, 4:49 PM]
THAT EVIL McDONALD'S: TechCentralStation has a great piece about the "McDonald's seduces children into a life of obesity" campaign -- it looks like the campaign is wrong on the facts, as well as on its moral and legal assumptions. (Disclaimer: I'm not an expert on nutrition, so I may be wrong in this recommendation, but it struck me as much worth reading.)

 
[Eugene Volokh, 2:39 PM]
A DISSENTING VOICE ABOUT CIVILITY: Steven Postrel, who is a very nice guy himself, writes the following:

Your campaign for civility and persuasion in blogging is interesting, but I think relies on selective sampling of the data in regards to the effectiveness of persuasion. One problem is that there are many people who don't read blogs but are influenced by those who do. To the extent that a blogger can convince his readers that the opponents of his view are cretins, his readers' social influence will act on the waverers far more effectively. Many, if not most, people form their political views by figuring out what is socially acceptable in the circles to whose membership they aspire. Getting those circles to take a dismissive attitude toward one's opponents then can sway large numbers of people who never read the blog. . . .

[Moreover,] increasing the fervor of one's supporters is important in politics, and the genuinely undecided are likely to see the confidence with which one's views are expressed, and the fun one seems to be having in expressing them, as positive indicators of the merits of your case.

My guess is that the rationally undecided types just looking for the best arguments are a distinct minority on the Internet and in society. They may be high-quality converts . . . and so worth targeting, but my guess is that in the controversy game you collect more flies with vinegar than with honey . . . .

Steve's points are quite fair ones, but I think that on balance politeness (though forceful, fun-to-read politeness, with trenchant though calm criticism) works better than invective. My sense is that on balance expressing one's views with "confidence" is persuasive, but expressing them with bile or pejoratives is not. Likewise, my sense is that it's easier to persuade people "to take a dismissive attitude toward one's opponents," at least via a Web log (I can't speak for other media, such as billboards, bumper stickers, or TV ads) by powerfully and memorably showing the substantive weaknesses in the opponents' arguments, rather than by calling the opponents names. Even if the opponents deserve pejoratives, let the reader's mind fill in the pejoratives, rather than expressing them oneself -- seems more effective to me, if one can swing it.

     But of course this might well be all wishful thinking on my part. It's always tempting to assume that what one likes, ethically and esthetically, is actually more effective -- but such assumptions are often wrong. Who knows? For now, I'll stick to my tentative judgment, but I realize that I might be mistaken.

 
[Eugene Volokh, 1:02 PM]
A READER WRITES:

That explains it: "I gave Bill Clinton all kinds of ideas" -- Gary Hart, on his continued involvement in national politics (Los Angeles Times, 11/25/02).

The reader also writes, in response to my query about whether I should include his name when I blog this,

There is a midrash which tells us that the highest mitzvah is one performed anonymously. I would add that it is also the safest.

 
[Eugene Volokh, 12:49 PM]
GORE: "Just 19 percent [of respondents in a New York Times poll] said they held a favorable view of the former vice president, compared with 43 percent who had an unfavorable view." I mention this simply because I've heard people say that he's still considered the front-runner for the 2004 Democratic nomination. (Thanks to Kausfiles for the pointer.)

UPDATE: Reader Matthew Bass, a self-described New Democrat, writes:

If we didn't go to the concert the first time, what makes them think we'll shell out for the reunion tour?

 
[Eugene Volokh, 12:38 PM]
A BIT MORE ON BLOGS AND TONE: Reader and fellow lawprof Chad Oldfather writes:

I fall into the class of people who do like to seek out viewpoints different from my own (and, perhaps more importantly, to expose myself to the full range of viewpoints before settling on one for myself). . . . There's little doubt that I generally leave [a Web log that is calm and polite] feeling much more inclined to have been persuaded by what I've read than I would if I'd encountered the same arguments elsewhere sprinkled with variants of idiot, moron, references to The Left and The Right, and the like.

I certainly understand the impulse toward snideness when addressing others' arguments, and early in my career as an appellate advocate I'm sad to say I succumbed on more than one occasion. But experience brought me pretty quickly around to your position, and I'm pleased to see you addressing it.

Another reader, my colleague Kristen Holmquist (who describes herself as having "lefty leanings"), echoes this, saying that she likes

to become informed about positions other than my own . . . in a respectful, noninvective-hurling forum. I am one of those who despises the nastiness no matter where it comes from. An occasional jab is fine, but the incessant rudeness that passes for debate in too many places does no one any good.

Hardly a random sample of the population, I know -- and yet I think (and I certainly hope) that this is a pretty common view among thoughtful, intelligent readers (the very ones that bloggers should be seeking).

 
[Eugene Volokh, 10:30 AM]
IDEOLOGICAL COCOONING: There's been much speculation recently about whether the Internet increase people's predisposition to talk to and listen to only those views that they generally agree with, and to simply ignore other views. Some say yes. Some say no. Some say that at least Weblogs diminish this tendency, because they often link to views they disagree with, if only to rebut them.

     Let me suggest a slightly different hypothesis: Most people have a particularly strong tendency to ignore views that they disagree with and are presented rudely.

     I suspect that most people do prefer to read things that reinforce what they already believe. But those people who are interested in ideas (who are probably disproportionately represented among readers) realize that they need to consider others' viewpoints, and are often willing to do so.

     These readers, though, are extremely easy for a writer to lose. It's already a bit hard emotionally for people to consider other viewpoints (sad, but that's the reality of human psychology); invective and insults make it still harder. What's more, since rudeness is often a proxy for substantive weaknesses in an argument, especially for the failure to take opposing views seriously, readers think to themselves: "This stuff is annoying to read, it's probably not that good substantively, why should I waste my time on it?"

     This effect does indeed relate to ideology. Though quite a few people have low tolerance for rudeness generally (for instance, because they feel that rudeness by some of their allies reflects badly on the whole movement), most people do have more tolerance for rudeness by their ideological allies than by their ideological adversaries. Among other reasons, hearing the other side insulted is less annoying than hearing our side insulted. So as political invective increases, people's natural tendency to prefer listening to their friends is exacerbated.

     Naturally, bland and boring material is also a turn-off, both for friends and for adversaries. But somewhere between Caspar Milquetoast and -- well, I won't name names -- there is, I think, a zone which is interesting and challenging for both sides, and can actually persuade people (even if by degrees) and not just reinforce their existing views.

 
[Eugene Volokh, 10:07 AM]
NIGERIAN GOVERNMENT OFFICIAL CALLS FOR KILLING OF JOURNALIST: Clayton Cramer points to an AP news story that says:

The deputy governor of a largely Islamic state in northern Nigeria has called on Muslims to kill the Nigerian writer of a newspaper article about the Miss World beauty pageant that sparked deadly religious riots.

"Just like the blasphemous Indian writer Salman Rushdie, the blood of Isioma Daniel can be shed," Zamfara Deputy Governor Mahamoud Shinkafi told a gathering of Muslim groups in the state capital, Gusau, on Monday. . . .

While state officials cannot issue fatwas, the deputy governor, "like all Muslims," considers the death sentence against Daniel as "a reality based on the teachings of the Quran," Zamfara state Information Commissioner Tukur Umar Dangaladima said Tuesday.

Islam's holy book "states that whoever accuses or insults any prophet of Allah . . . should be killed," Dangaladima told The Associated Press. "If she (Daniel) is Muslim, she has no option except to die. But if she is a non-Muslim, the only way out for her is to convert to Islam."

Clayton comments:

Notice how Ms. Daniel's cheeky, even obnoxious writing "sparked deadly religious riots"? It couldn't be that an narrow-minded, intolerant bunch started burning churches and murdering Christians because they found Ms. Daniel's remarks irritating.

Indeed.

 
[Eugene Volokh, 9:27 AM]
FROM MY COLLEAGUE JONATHAN ZASLOFF: I'm not sure exactly where I stand on this, but Jonathan makes a forceful argument, which I'd like to pass along:

While much of the discussion has focused on MLDEF's unconscionable attempts to silence Dershowitz, we should also examine the substantive aspect. And on substance, Dershowitz has a very good point, as unappetizing as that point is.

Why do Hamas, Islamic Jihad, and the Palestinian Authority support suicide bombings? Most commentators dismiss the tactic as "senseless violence", but that is exactly wrong. The violence has a specific and clear purpose: to reduce the number of Jews in Israel and thereby win the demographic struggle. Demography, not religion, is really at the heart of the suicide bombers' strategy.

Obviously, the bombings themselves will not do the trick. The point is twofold: first, to foster emigration from Israel by frightened Israelis. Arafat himself admitted as much in a 1996 speech to Arab foreign ministers, in which he declared that the purpose of the attacks was to make "1 million rich Jews" to leave. (By that, he meant the educated Ashkenazi elite).

Second, the bombings are meant to destroy the Israeli tourism industry, thereby severely wounding the economy. (This last attempt seems to have had a great deal of success, facilitating by Israel's own gross economic mismanagement and the use of scarce resources to support right-wing settlers.). This will cause even more emigration.

What's the point of this? Currently, Israel within the Green Line has