[Eugene Volokh, 6:14 PM]
KASHRUT, LAW, AND THE FREE MARKET: Jacob Sullum has a good piece on kosher enforcement laws in Reason. Thanks to reader James Foster for the pointer.

 
[Eugene Volokh, 5:07 PM]
ABOUT SASHA: His classmate Nate Oman reports on a few of Sasha's hobbies. My brother is a remarkable fellow.

 
[Eugene Volokh, 5:00 PM]
WE'RE #37! Yet another blog ranking, by links.

 
[Eugene Volokh, 4:55 PM]
2000-WORD PIECE BASED ON MY SLIPPERY SLOPES ARTICLE: Legal Affairs just published a 2000-word piece that one of their editors and I cowrote based on my Slippery Slopes article (March/April 2003, pp. 21-23). A nearly final version (the chief change is in the subtitle, which is now "Despite the metaphor's poor reputation, a good decision now can lead to a bad one later") is now up here. As before, here's the full version, and the the medium-length version.

 
[Eugene Volokh, 3:20 PM]
FOR SOME REASON, LOTS OF TREASON TALK TODAY: Reader and old UCLA undergrad classmate Bob English suggests:

I think a better line could be drawn if the speech itself is ignored. The point, after all, is not what Axis Sally says, it's that she is acting in concert with an enemy against the US government. Does it really matter whether she does so by undermining the morale of US troops or by taking tours of enemy troop locations boosting their morale by singing love songs?

This is an interesting theory, and might work well as to treason, for the reasons I mentioned in my post earlier today. But I want to caution people against applying this approach more broadly, because sometimes the First Amendment protects speech even when it violates a generally applicable law, owing to its communicative content.

     The classic example is antiwar speech during wartime. The World War I-era cases, which have now been generally rejected, involved prosecution for violating a generally applicable law -- the Espionage Act, which barred a wide range of conduct that obstructed the recruiting and enlistment service of the U.S. Today, it's clear that a speech against the war is constitutionally protected even when it has the effect of persuading people not to enlist. Nonspeech conduct that has the effect of obstructing recruiting (for instance, bombing a draft office) is punishable. Even speech that has this effect for reasons other than its message (for instance, people shouting outside the draft office using loudspeakers) is punishable. But the law may not be used to punish speech precisely because its message interferes with the government's aims.

     The same is true in other contexts. The generally applicable tort of intentional infliction of emotional distress may not be applied to speech (at least speech about a public figure, on matters of public concern) because of the message of the speech -- that's the Hustler v. Falwell case -- even though it may be applied to nonspeech conduct that has the same effect and intent. The generally applicable tort of interference with business relations may not be applied to speech that urges political boycotts (see NAACP v. Claiborne Hardware). The generally applicable ban on disorderly conduct may not apply to behavior that's "disorderly" solely because of its communicative conduct, such as wearing a jacket with the words "Fuck the Draft" (see Cohen v. California). Generally applicable antitrust law may not apply to attempts to create a monopoly by lobbying the legislature (see Noerr and Pennington). If we ignore the fact that these laws are being applied to speech, and focus just on the intentions and effects of the action, then we'd say that the behavior is punishable. But once we realize that the law applies to the speech precisely because of its communicative impact -- precisely because of what the speech says -- we see that the First Amendment prevents the law from being applied.

     Now my correspondent's suggestion may, as I mentioned, be correct for various reasons, as applied to the Axis Sally scenario. But I do want to stress that sometimes speech is constitutionally protected even though it's covered by a generally applicable law that nowhere mentions speech, and that would apply equally to other conduct that has the same effect and that is done with the same intent.

 
[Eugene Volokh, 3:08 PM]
MORE ON HUMAN SHIELDS: Reader Bob Christensen writes:

The president of Fingerprint Imaging, Inc. was interviewed on Seattle radio station KVI during the Kirby Wilbur show this morning after offering to donate 100 of their OmniDNA kits to the first 100 human shield volunteers who requested the kits. The OmniDNA kits, which are described at OmniDNA.com, are generally used for high risk personnel who are concerned about potential difficulties identifying their remains after an extremely traumatic event, or for parents of very small children, as an alternative to foot- or fingerprinting.

The president of the company described her intent as a humanitarian gesture, while urging volunteers to think ahead to the potential consequences of their actions and, in the event that the worst occurs, to consider the practical difficulties identification and return of the remains might represent. As she described it, parents and other loved one will appreciate some certainty as to events. Those tasked with cleaning up afterwards will appreciate the thoughtfulness of those who made a distasteful job marginally easier.

Finally, she allowed how, as a mother of young adults and teenagers, she hoped her gesture would cause a certain sobriety on the part of those young people considering whether or not to volunteer to stand directly in harm’s way.

All in all, a winning proposition. The company got some good publicity and compassionate conservatism got a little exercise.

 
[Eugene Volokh, 3:04 PM]
FILIBUSTERS AND THE CONSTITUTION: Reader Chad King asks:

Do you know whether the filibuster process has ever been challenged on Constitutional grounds? In the Estrada filibuster, it seems like the advise and consent role is in danger of turning into a 60 vote supermajority.

I've heard this argument before, but the standard response is that under art. I, sec. 5, cl. 2 of the Constitution, "Each House may determine the Rules of its Proceedings," and this applies as much to its advise and consent process (both as to appointments and as to treaties) as it does to its normal lawmaking functions. I'm not an expert on the subject, though, so there might be more to it than this.

UPDATE: Kevin Drum (CalPundit) e-mails me to point out that he asked this question last Fall, and that lawprof Jeff Cooper (Cooped Up) responded in somewhat more detail than what I gave above.

FURTHER UPDATE: Lawprof Rick Hasen thinks there's no merit to the constitutional objections to the filibuster.

 
[Eugene Volokh, 2:52 PM]
HUMAN SHIELDS AND TREASON: Philippe asks whether it's so clear that human shields would be committing treason, if they continue to voluntarily act this way after war breaks out. I'm not a specialist on the law of treason, but I'm pretty sure that they would be guilty.

     Philippe points out that the shields would work only because their presence might in some measure deter American attacks on certain sites, and he asks "whether serving as a psychological shield in this way amounts to aiding or comforting the enemy as a formal matter." I think the answer is yes -- they would be helping the enemy, and though they'd be doing this by their psychological effect on the U.S., that's what Axis Sally did, too, and she was convicted (as were various other citizens who participated in Axis propaganda broadcasts).

     Philippe asks: "Suppose the human shields simply move to Baghdad and hang out there, thus raising the possibility that a war will kill Americans (but without ostentatiously fastening themselves to any targets). Or suppose they stay in the United States and announce that they will kill themselves as soon as they hear of the first Iraqi casualty. Are these instances of treason? Why are they different from someone who goes and stands in front of a palace in Baghdad to raise the emotional cost to us of bombing it?"

     These are tough questions, and I don't know the answers to them. My casual research reveals no specific answers, but that might just be because there have been very few treason prosecutions. The statute, 18 U.S.C. sec. 2381, is written in the words of article III, sec. 3 of the Constitution, and says

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason . . .

These vague terms are generally clarified by caselaw, but here there hasn't been much caselaw. My tentative preference is to treat "adhere[]" as requiring some degree of working together with the enemy, so that, for instance, vandalizing a draft office -- with no coordination with Iraq -- would be criminally punishable vandalism, but not treason, even though it might intentionally help our enemies. But whatever the rule might be, I'm quite confident in saying that an American's using his body to shield an Iraqi installation, in Iraq, doubtless with the cooperation of Iraqi authorities, is and should be a crime.

 
[Eugene Volokh, 2:36 PM]
SENATOR ESTRADA? The City Journal suggests:

If this talented Republican doesn’t win confirmation, let him run against his tormentor for the Senate.

If the Democratic effort to kill the appointment of Miguel Estrada to the U.S. Court of Appeals succeeds, Estrada should return the favor by moving back to New York State and challenging his chief tormentor, Senator Charles Schumer, in the 2004 elections. . . .

Schumer must run for reelection next year, when an Estrada candidacy in New York would be especially powerful. President Bush will be running for reelection, and the Republican national Convention will take place in Gotham. Having Bush, who speaks Spanish, campaigning with Estrada in the state’s Hispanic enclaves would be a Democrat’s nightmare, and not only because it would threaten Schumer. Bush has a chance of winning New York State in 2004 -- a victory that would assure his reelection -- and a Bush/Estrada ticket in New York would doubtless boost the President’s chances. . . .

I don't know Miguel that well, but he always struck me as much more a judge type than a politician; the legal system, I think, is where his heart is; and obviously the City Journal's suggestion is not completely serious, since they hope that he will indeed be confirmed. But if he isn't, and he runs for Senator, I'll back him.

 
[Eugene Volokh, 1:02 PM]
JONATHAN RAUCH ARTICLE: The article that I highly recommended this morning -- and still do highly recommend -- is most easily accessible here; the earlier link was to a members-only page, though I don't understand why I could read it myself, since I'm not a member.

 
[Eugene Volokh, 11:04 AM]
NINTH CIRCUIT DENIES REHEARING EN BANC IN PLEDGE OF ALLEGIANCE CASE: Here's the order, with opinions attached. I predict that the Supreme Court will grant certiorari, and reverse.

UPDATE: Since I've erred a bit in my predictions in the past, I thought I'd mention that this time at least I got it right. And I do feel quite confident in my prediction that the Court will grant certiorari, and reverse.

 
[Eugene Volokh, 9:37 AM]
BISSEXTILE: By the way, as per my earlier post, now is a good time to remind readers that I'm bissextile.

UPDATE: Told my class this morning that I'm bissextile. They seemed quite amused (once I explained, though perhaps even before I did).

 
[Eugene Volokh, 9:34 AM]
"DEMOCRATS FOR NATIONAL SECURITY": Jonathan Rauch, who's always worth reading, has an article on this group, and on why Democrats need to embrace its message -- both because it's right, and because it's politically necessary for them.

 
[Eugene Volokh, 9:20 AM]
SPEECH AND TREASON: As I've written before, I strongly believe that antiwar speech is generally constitutionally protected, even if it does indeed help the enemy (as antiwar speech often does). Nonetheless, I think it's worth keeping in mind that even this fundamental principle has some uncertainty around the edges.

     The best example is the Axis Sally scenario: An American citizen makes propaganda broadcasts for the enemy during time of war, aimed at demoralizing the troops. The very fact that the speaker is known to be an American citizen (and these things can sometimes be proven or disproven, so a fake may not be as good) could give the person extra credibility, especially if her pitch is that she's really looking out for the best interests of America and American soldiers, that the war isn't going well for them, and that it's in America's interest to withdraw.

     I think the speaker here really should be punishable for treason, and the First Amendment ought not be a defense. But why, exactly? My tentative thinking is that the active coordination with the enemy removes this from the zone of legitimate, constitutionally protected dissent. Mere intent to help the enemy shouldn't be enough; among other things, if it were enough, then lots of legitimate domestic dissenters who do not possess this intent could still be convicted -- and therefore would likely be deterred from dissenting -- by juries who infer the worst about their motivations. But active coordination should be sufficient. Going to a country with which we are at war to broadcast messages aimed at weakening American morale would be punishable. I suspect that doing the same inside the U.S., within an organization that one knows is working together with the enemy government, would be punishable as well (though I can certainly see the potential for abuse in such a doctrine).

     Now perhaps I'm mistaken, and even the speech in the Axis Sally scenario should be constitutionally protected, either for its own sake or for fear that allowing such speech to be punished would lead to the punishment of still more speech, including speech by legitimate domestic dissenters. But that would be quite a surprising result, and my tentative sense is that it cannot be correct.

     Incidentally, here's what a federal court of appeals said about the First Amendment question in Chandler v. United States (1949), an Axis-Sally-like case. I don't fully agree with this, and at least part of the discussion may no longer be accepted by courts today; Schenck v. United States, for instance, is generally thought to no longer be good law. Still, it's a pretty detailed and thoughtful analysis, and worth reading:

[Chandler argues that] mere words, the expression of opinions and ideas for the purpose of influencing people, cannot constitute an overt act of treason; that appellant had a right to broadcast, or otherwise disseminate to the American people, the ideas which coincided with the Nazi propaganda line; and that therefore his preliminary steps to that end -- his attendance at conferences of commentators, his preparation of commentaries, his speaking into a microphone to make recordings -- cannot be treasonable acts.
constitutional limitation upon treason prose utions for the making of critical speeches. 'We do not lose our right to condemn either measures or men because the country is at war.' Chandler owed allegiance to the political entity the United States, not to the person of the President nor to the party in power for the time being. The framers of the Constitution, in drafting the restrictive language of the treason clause, apparently had in mind to eliminate the historic misuse of treason prosecutions as an oppressive instrument of domestic political faction, as indicated in the study on 'Treason in the United States' by Willard Hurst . . . (1945):

'What is suggested is that the historic policy restrictive of the scope of 'treason' under the Constitution was most consciously based on the fear of extension of the offense to penalize types of conduct familiar in the normal processes of the struggle for domestic political or economic power. The sale of provisions to an enemy in wartime, or the conveying of intelligence to him, or the proffer of counsel and assistance to his agents, are types of conduct quite distinct from activities of a sort to which political opponents or economic groups would normally resort in their efforts to influence public policy. There is less danger that charges of this type could, in view of that sharply defined character of the conduct in question, be used to suppress free competition for the power to direct the policies of the republic.'

Thus, a citizen in the exercise of his ordinary political rights may -- intemperately as he pleases -- criticize the President for getting the country into war, hold up to ridicule the bungling and incompetence with which our civilian and military leaders are conducting the war, express the view that we cannot possibly win the war, and that the thing to do is to vote in a new administration which will negotiate a peace on the best terms obtainable and save the country from a greater disaster. The speech may tend to weaken our country in its war effort by inducing divided counse s and a spirit of defeatism, and in that sense may be of aid and comfort to the enemy. Such, indeed, might be the speaker's purpose. But if it be assumed that the utterance in the case supposed would not be treason, whatever the speaker's purpose, the immunity would be afforded, not to encourage treasonable efforts to aid in the enemy's triumph, but in order that, in the course of the normal activities of political opposition, the expression of honest criticism and sincere conviction as to what is best for the country may not be fettered by fear of a jury's finding of traitorous purpose in the passion and tumult of a subsequent prosecution for treason. Assuming that the utterances in the case supposed would not be treason, they might still be punished as sedition, subject to the requirement of the First Amendment that the utterances must be in such circumstances and of such a nature 'as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.' Schenck v. United States, 1919 . . . .

In the present case, however, it cannot be said that what Chandler did was merely exercising his right of free speech in the normal processes of domestic political opposition. He trafficked with the enemy and as their paid agent collaborated in the execution of a program of psychological warfare designed by the enemy to weaken the power of the United States to wage war successfully. We have found no indication of a reluctance on the part of the framers of the Constitution to punish as treason any breach of allegiance involving actual dealings with the enemy, provided the case is established by the required two-witnesses proof.

It is preposterous to talk about freedom of speech in this connection; the case cannot be blown up into a great issue of civil liberties.

What we already have said is perhaps sufficient to indicate the answer to a related argument by appellant, that 'If words can be acts of treason, they must at least meet the test of 'clear and present danger' established in the sedition cases' as a deduction from the First Amendment. Trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment. Congress may make criminal any type of dealing with the enemy which in its judgment may have the potentiality of harm to our national interests, including acting as a commentator on the enemy's short wave station. Conviction could be had under such a criminal statute whether or not the prohibited acts, in the particular case, actually created any clear and present danger of substantial harm to the United States.

 
[Eugene Volokh, 8:47 AM]
IT WOULD BE MY BIRTHDAY SOON, if I had a birthday this year.

 
[Eugene Volokh, 8:44 AM]
HUMAN SHIELDS MAY BE GUILTY OF TREASON, if they're still shielding when the war starts: Lawprof Eric Muller points this out, and I think he's quite right. One possible twist: Duress is a defense to a charge of treason, so if Saddam forcibly keeps them there once the war starts, they might be able to avoid a treason conviction; but if they continue to voluntarily act as human shields, that's pretty clearly treason. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 5:51 PM]
ONE MORE PERSPECTIVE ON THE SEVENTEENTH AMENDMENT, and then I plan to move on to other subjects, unless something really important or interesting comes up. Reader Seth Tillman writes:

[T]he State legislatures hated electing Senators -- that is why they wanted to be rid of it. Electing Senators trumped all other business and often froze the legislature from normal, i.e., local or truly state, matters rather than matters of national concern. The Lincoln/Douglas debates were a good example -- the debaters toured Illinois to get state reps and senators elected who would choose the open Illinois U.S. Senate slot. Separate elections freed the states and allowed local elections to be determined by local issues.

 
[Eugene Volokh, 5:48 PM]
REPEAL OF THE SEVENTEENTH AMENDMENT: Readers Curt Wilson and Mike Breeland raise an interesting point: Say that the Seventeenth Amendment is repealed, and each state legislature is instead allowed to decide whether Senators would be elected by popular vote or by the state legislators. I assume the legislators would prefer to make the choice themselves -- more power for them, and more goodies that they can extract from Senators as a condition of their vote. But the legislators also wouldn't want to alienate the voters, and I assume many voters would like Senators to be elected directly: Even before the Seventeenth Amendment was enacted, many states provided for popular elections (which were technically advisory voters, but were in practice politically binding). How many states do you think would really go with legislative selection, and how many will go, due to public pressure, with popular vote? And what would be the consequences of some Senators being popularly elected and others being elected by state legislatures, with the rule varying from state to state? Would, for instance, one class of Senators have more power than the other?

     One alternative, of course, is simply to repeal the Amendment and leave the states with no option: As before 1913, Senators would have to be chosen by legislators. But if the public really wants popular election, it could pressure legislators into conducting advisory votes, and being bound by the results of those votes on pain of strong public displeasure -- again, that's what was done in some states before 1913.

 
[Eugene Volokh, 2:38 PM]
WE ARE NOW A "VOLOKH BLOG EMPIRE", according to Larry Solum's Legal Theory blog. A nice post by Larry Solum, by the way, canvassing conservative and libertarian reactions to whether anti-sodomy laws are constitutional.

 
[Eugene Volokh, 2:35 PM]
ANOTHER AMUSING ANIMATION, courtesy of lawprof Myron Moskowitz.

 
[Eugene Volokh, 1:57 PM]
SOMEHOW ODDLY PATHETIC -- OR SHOULD WE THINK CONSUMER-FRIENDLY? In the L.A. Weekly -- a very Left alternative newspaper here in L.A. -- I saw an ad for The Jet Strip, a local strip club, that contained the following box:

EARLY BIRD SPECIAL
Sunday and Monday 6 pm to 9 pm
$20 TOPLESS
Executive Lap Dance

Jeez, early bird specials for lap dances? What has the sex trade come to?

 
[Eugene Volokh, 11:43 AM]
AMENDMENTMAN -- REPEALING THE SEVENTEENTH AMENDMENT? The Seventeenth Amendment was not popular with several of my correspondents. The Amendment, as you may know, was enacted in 1913, and required that Senators be elected by direct popular vote; until then, they were elected by the Legislature. Some readers suggested that the Amendment should just be repealed outright, which would at least formally require vote by state Legislatures -- though even before 1913, many state Legislatures ended up being practically bound by advisory popular votes, if state law provided for such votes. Others suggested that states should be free to set up either popular vote, legislative election, or some other such system. The broad theory, as reader Josh Trevino suggests, is this:

This would allow states -- as states -- their proper role in the Federal government. It would also force greater civic participation inasmuch as races for the state legislature (currently rather ignored -- I can't even name my statehouse rep) would become quite contested. Finally, it would reduce ticket-splitting between state and national levels; you'd be much less likely to see a emocratic Senate ramming unwelcome legislation down the throats of Republican state governments, and vice-versa.

Oh, and one reader (whom I know personally, and whom I find quite reliable) said that Justice Scalia once publicly suggested that repealing the Seventeenth Amendment would be a good idea (not that he suggested that it was likely to happen). The Conspiracy's own Todd Zywicki has likewise expressed his support for this; so has Clayton Cramer.

     I'm not sure what's the right answer here, and I'm not an expert on this field -- in which, as the following points will suggest, judgments should be formed based on an understanding of political structures, and not constitutional rules in the abstract -- but let me suggest a couple of broader points:

1. Even those who like the idea of more state power vis-a-vis the federal government should distinguish three visions of the world: (A) what state-federal relations were like before the Seventeenth Amendment; (B) what state-federal relations would have been like today if the Seventeenth Amendment had not been enacted; and (C) what state-federal relations would be like today (or in the near to medium-range future) if the Seventeenth Amendment were now repealed. Once upon a time state governments had considerably more control over what goes on in their own states, and over what the federal government does, than they do now. Perhaps they might have kept this control if it weren't for the Seventeenth Amendment, though I'm not sure about that. But now, (i) the more integrated nature of our economy, (ii) the more integrated nature of our national identity, and (iii) the far greater tax revenues received by the federal government make me doubt that we'll see that much return to state authority, no matter how Senators are elected. Repealing the Amendment might make some difference, and it might even do some good (though I'm not sure whether it would; much depends on what you think of state legislators). But I doubt that it'll make much of a difference.



2. If one really wants to know what would happen if the Amendment were repealed, one should probably start by focusing not on state and federal governments as such, but on political parties -- their actual power structures, and the way those power structures will be changed by the new system. Presumably this would substantially increase the power of state legislators in the national party, at the expense (in some measure) of federal officeholders, especially Senators, and of state governors. It would also reorient the national party's fundraising priorities, since control of the federal government would directly turn on the outcomes of state elections.



3. It would also be interesting to see how this would affect the campaign finance system. Senatorial campaigns are now tremendously expensive; presumably they'd become vastly less so (though some organizations might still spend money trying to create a popular climate in which legislators would feel pressured to vote in a particular way). On the other hand, there'll be a lot more at stake in each Vermont state legislative race. Good or bad result? Hard to tell for sure, but it may be one of the earliest visible results of any such proposal.

In any case, just my very tentative thoughts on a field that isn't really my own.

 
[Eugene Volokh, 6:54 PM]
AMENDMENTMAN IS BACK! Over nine months ago, I posed the following challenge:

CONSTITUTIONAL AMENDMENT: Here's a completely unrealistic but possibly amusing thought experiment -- imagine that you had the superpower to add one amendment to the U.S. Constitution. (Let's call you Amendmentman or Non-Article-V-Woman.) What would it be?

     Sky's the limit, no? But remember: All you're doing is adding the amendment; then you're walking away. The amendment will be interpreted and enforced (or ignored) through the normal political process. An amendment saying, for instance, that "All politicians shall be honest and focused on the best interests of the nation" will therefore mean nothing, because it will be entirely unenforceable.

     The amendment will also be repealable through the normal process -- if the repeal gets ratified by 3/4 of the states, and is proposed by a 2/3 vote of each house of Congress or a constitutional convention called by 2/3 of the states, then the amendment will vanish. So don't choose something that's too out of step with public opinion, since it will just get promptly repealed. Decriminalization of cocaine and heroin, for instance, would probably be stymied by this, whatever its merits might be in your own opinion. (Technical note: To prevent self-entrenching amendments, assume that the amendment will be repealable under currently-existing constitutional procedures and voting rules, even if it purports to change those procedures and rules.)

     Finally, remember that this is your one magic bullet -- don't blow it. For instance, enacting the Equal Rights Amendment, which would bar the government from discriminating based on gender, would probably do little good, since that's already pretty close to the current law under the Supreme Court's jurisprudence since the 1970s. Likewise, an amendment barring laws that criminalize consensual noncommercial private sex between adults would probably not help much; though some states still outlaw some such sexual acts, those laws are pretty rarely enforced. So choose something that you think will not only do good, but will do more good than anything else you can think of. (Note also that I will try to enforce a "single subject" rule, which will keep you from using the amendment to implement a grab bag of unrelated goodies.)

After doing this, I -- to my continuing shame -- almost completely failed to respond to the amendments that streamed in. The chief reason is 159, which is the number of submissions that I got. An embarrassment of riches, indeed; and as I put things off, more and more came in. They piled up in my folder, and while I responded to a few of the submissions -- note the posts about sunset provisions (not to be confused with blue sky laws) and the "and-we-mean-it" proposals -- most have been gathering e-dust. You cunctator!, people berated me. (OK, they didn't use quite that word, but that's what they meant.)

     No more delay, no more denial. I will now, slowly (at the rate of a couple of topics a week), begin going through the backlog; I hope you'll find them to be thoughtprovoking. However, a few rules:

1. No more submissions! Sorry, that's got to be the rule, or else I'll just give up again in despair.



2. No corrections or revisions of past proposals. You had your chance; too much work to allow editing now.



3. No guarantees that I'll focus adequately on each person's specific suggestion. Many of the proposals are similar yet subtly different; for the sake of my time and yours, I'll group them together, though I realize that this might omit some important nuances.

Please adhere to these rules, and don't try to persuade me otherwise -- the remaining 140+ submissions are daunting enough to get through at they are. Hope you enjoy what follows; I hope to have the first one up tomorrow or Friday.

 
[Eugene Volokh, 5:22 PM]
SAN ANTONIO RADIO PROGRAM, KTSA-AM, 550: Turns out they're having me on for the whole hour from 7 to 8 pm Central, and they want me to talk about broad questions of government power, law enforcement, and privacy, and not just bookseller records. Fine by me. If anyone in San Antonio wants to call them up, feel free -- and mention the blog!

 
[Eugene Volokh, 4:59 PM]
"STRONG ARGUMENTS BOTH FOR AND AGAINST THE WAR": Cathy Young, an always thoughtful non-isolationist libertarian, has a good column on this subject.

 
[Eugene Volokh, 2:52 PM]
"BOOKSELLER PURGES FILES TO AVOID SEARCHES": I'll be on KTSA-AM (550) in San Antonio at about 7:10 pm Central today talking about this:

Some booksellers are troubled by a post-Sept. 11 federal law that gives the government broad powers to seize the records of bookstores and libraries to find out what people have been reading.

Bear Pond Books in Montpelier will purge purchase records for customers if they ask, and it has already dumped the names of books bought by its readers' club.

"When the CIA comes and asks what you've read because they're suspicious of you, we can't tell them because we don't have it," store co-owner Michael Katzenberg said. "That's just a basic right, to be able to read what you want without fear that somebody is looking over your shoulder to see what you're reading."

The Patriot Act approved after the 2001 terrorist attacks allows government agents to seek court orders to seize records "for an investigation to protect against international terrorism or clandestine intelligence activities."

Such court orders cannot be challenged like a traditional subpoena. In fact, bookstores and libraries are barred from telling anyone if they get one. . . .

I'm not sure whether bookstores are right to act this way, but they're generally entitled to do so, unless they have specific reason to believe that the evidence they're destroying is relevant to a criminal investigation. Businesses aren't required to keep their records indefinitely, and they may destroy them partly to maintain their own privacy and their customers' privacy -- until, that is, they learn that the records may be evidence, and at that point (more or less) destroying the records may become obstruction of justice. That's the general rule, though there are naturally some gray areas.

 
[Eugene Volokh, 1:34 PM]
A BIT MORE ON KOZINSKI, THE CALIFORNIA A.G., AND THE MURDERER: California Attorney General Bill Lockyer has a Letter to the Editor in today's L.A. Times which says:

What is glossed over in your story, and what gives my office concern, is that Judge Kozinski was reported to have discussed, during a visit with one prisoner, other death row inmates who have cases pending before him. Such conduct is improper and does a disservice to our legal system, irrespective of whether Judge Kozinski has a tendency to uphold death sentences or to reverse them.

I think this isn't quite so. Kozinski did briefly ask Hunter about the personalities of a few other inmates whose cases Kozinski had heard in the past, and whom Hunter knew. But those decisions had been handed down by the time of the meeting.

     The Attorney General's letter to the Chief Judge of the Ninth Circuit (Mary Schroeder) does point out (p. 3, n.1) that some of those cases had been remanded to lower courts, and that these cases "will eventually return to [the same] panel," though it's more accurate to say that they might return to the panel; whether they do or don't depends on a bunch of things. The cases are not pending before Kozinski; the concern, rather, is that they may come back before him later.

     This is much like the Justices' position relative to cases such as Adarand Constructors v. Pena, Scheidler v. NOW (the second coming of which was decided this morning, 9 years after the case first came to the Supreme Court), and many others: They decide a case, remand it to a lower court, and may then end up considering the case again several years later. In the meantime, I suspect the judges occasionally do converse briefly with people about these cases, even though there's a possibility that they'll have to consider a certiorari petition or even a merits argument about the case later. They wouldn't do it if the case were actually pending before them at the time, but the practice, to my knowledge, is somewhat different if the decision is rendered but the case may come back later.

     But in any event, if the AG's office is concerned that the Judge has gotten some improper outside information on the cases -- which is far from clear on these facts -- there's a perfectly normal procedure for dealing with this: If the case does come before him, you move to recuse him on those grounds. You certainly don't demand that he be temporarily barred from all "capital cases coming out of the California district courts" (as the letter explicitly does) or perhaps be even permanently barred on the theory that he can't "remain neutral in any . . . California capital case" (as the letter strongly suggests). That sort of remedy, as my NRO piece argued, is to my knowledge unheard of, and completely unjustified.

 
[Eugene Volokh, 12:18 PM]
PREDICTION IN RYAN V. TELEMARKETING ASSOCIATES: I have to send in my Supreme Court Forecasting Project for this case. Here's a brief excerpt from the case, summarizing the facts:

[T]he [Illinois] Attorney General, representing the people of this state, alleged that [defendant fundraisers] committed fraud and breached their fiduciary duty. The charged offenses were premised on the fact that defendants retained 85% of charitable funds collected on behalf of a charity, VietNow National Headquarters . . ., and, when soliciting, failed to inform donors that only 15% of their contribution would be distributed to the charity.

The Illinois Supreme Court held that such a fraud claim was inconsistent with the First Amendment; I predict that the Supreme Court will agree with the Illinois Supreme Court. Confidence: High. Don't ask me why -- it's a long story that relates to the U.S. Supreme Court's past charitable fundraising caselaw, and the Illinois Supreme Court's opinion does a good job of explaining this.

     I also predict that Chief Justice Rehnquist and Justice O'Connor will dissent -- I infer this from their past votes in similar cases. Confidence as to their dissenting: Low. Confidence that no others will dissent: Moderate.

     I should stress again that I was completely wrong in my prediction about Eldred v. Ashcroft. But I feel more confident about this case, and about the other case in which I've made a Supreme Court Forecasting Project prediction, Virginia v. Black (the cross-burning case).

 
[Eugene Volokh, 11:17 AM]
BLOGGER BLAHS: So our e-mail distribution list is acting up -- subscribers are still getting messages, but we're getting a ridiculous number of errors every time something gets posted -- and now the Blogger RSS feed isn't updating. Yeah, yeah, yeah, switch somewhere else, people will say, but that's work, and it's less work to kvetch. In the meantime, David Janes's RSS feed (also available via the second RSS button on the upper left of this page) seems to be going very well. Three cheers for Janes, by the way.

 
[Eugene Volokh, 10:54 AM]
10TH ANNIVERSARY OF THE FIRST WORLD TRADE CENTER BOMBING: Duncan Frissell (The Technoptimist) points this out, and has some notes. As he wrote in his e-mail to me, "Too bad we weren't paying attention."

 
[Eugene Volokh, 10:46 AM]
THE FUNDAMENTAL INTERCONNECTEDNESS OF ALL THINGS: Robert Alt on No Left Turns points out an interesting factoid: Today's Scheidler v. NOW came before the Court once before, in 1994; that time, the Justice Department's brief, which sided with NOW, was written by . . . Miguel Estrada. Doesn't tell us much about Estrada's views, since Estrada is a lawyer and lawyers generally file briefs to represent their clients' views, not their own. But it does remind us that the contrary position -- say, Estrada or Jeffrey Sutton filing a brief in support of state sovereign immunity or some other conservative cause -- generally doesn't bear much on their views, either.

 
[Eugene Volokh, 10:16 AM]
ELECTRONIC SUBMISSIONS TO LAW REVIEWS? A couple of weeks ago, I posted this question to law review editors:

Does your journal accept electronic submissions -- and, if it does, are there any glitches or serious delays in the process that would lead you to recommend that people not submit electronically? . . . I'm trying to figure out whether to recommend, in my forthcoming Academic Legal Writing book, that students send their manuscripts by postal mail (my current suggestion), or whether I should encourage students to save time, money, and effort by submit the manuscripts by e-mail.

I collect below some of the reactions that I got; they're obviously not representative, but I think they illustrate various reactions that some journals are likely to have. (Click here, by the way, for a list of journals that say they accept electronic submissions.)

     More broadly, I think these reactions show how institutions react to the costs and benefits of technological advances. I do not want to suggest that any of the reactions are right ot wrong, and I think it would be too facile to assume that, for instance, failing to adopt electronic submissions is irrational or pointlessly hidebound. I suspect that electronic submission is the way of the future (whether in a couple of years or more like 10 or 15) -- but in the course of getting to the future, we need to overcome certain real and understandable current obstacles, such as the ones these messages illustrate.

     1. Here's the first message I got, which describes the practice at a Top 50 primary journal:

[Our journal] does not accept electronic submissions for two reasons.

1.) The fear of mass emailing of articles to the journal. The current process of forcing people to actually mail out the article, and thus spend the money that is required to do that, supposedly tends to weed out articles.

2.) The current Executive Articles Editor said that he is scared of getting what would otherwise be publishable articles lost in an email box.

To tell the truth, it seems like it is just easier on the editors to keep requiring authors to submit hard copies of their articles because it involves less work in making sure they are accepted, acknowledged, printed, distributed to the correct editors, and read in time to determine whether we want to extend an offer of publication.

     2. One from a Top 20 primary journal:

We do not currently accept electronic submissions. However, even with that policy, I can tell you that many authors do submit articles to us by email, and although we look at them very skeptically if submitted only
through email, it is not a bad idea for an author to send both a hard copy and an email copy. It gives you two shots at getting our attention, and if the email is quickly deleted, you still have the hard copy (and the email should state, "I also sent a copy of the article to your postal address").

From a student's perspective -- since I'm about to send out my own seminar paper for publication, and I know the process from my journal's end -- I would strongly suggest sending hard copies to journals that don't explicitly encourage electronic submissions. As a student, you can't afford to be viewed "skeptically," as I said above.

     3. A secondary journal at a Top 50 school:

My journal . . . accepts submissions via e-mail. The feedback at editorial board meetings (primarily from the Articles Editor) has been enthusiastically positive. I haven't heard of any technical glitches, but I'm not up on all the details; it's not my area.

     4. Another top 50 primary journal:

Our web site does not mention e-submissions & I think they number less than 10 per year. . . .
s, but I agree with your current recommendation to submit via postal mail for a couple of reasons. First, our article selection process begins by coding submissions with a tracking number and entering relevant contact information into a database. There’s no reason why hard copies are inherently better than electronic submissions for these purposes, but it’s just not how our process functions at present. Second, and more importantly, it would be quite a pain to have to print out copies of all electronic submissions. At our journal, we rely on hard copies for the first few stages of the selection process. It is only after these initial stages that an electronic submission becomes necessary, and by that point it’s usually no problem to contact the author and ask him or her to email an electronic copy.

     6. And finally, one more Top 20 primary journal:

[Our journal] had an experimental project of accepting electronic submissions last summer. We even distributed and discussed all the articles via electronic mailing list, which allowed us to o fer very quick turnaround in the slow months despite the editors being scattered around the country and the world. The program resulted in a number of published articles, saved several small forest and was certainly a success.

However, insufficiently so as to be made permanent. The hide-bound forces of reaction in legal publishing are an astonishing thing to behold. Eventually, this will clearly be the way to go. But for now I'd recommend continuing paper submissions, possibly accompanied by e-mail submission. The cost to any legal scholar with a support staff and an administrative budget to handle mass paper submission is just too small compared to the significantly reduced coverage of electronic submission.

There it is -- it'll be interesting to see what a similar query would yield in, say, 3 years.