[Eugene Volokh, 9:37 PM]
More Web stuff from and about the apparent Case Western killer: Reader Mike O'Ronain e-mailed this, and I thought I'd pass it along (with a few omissions of irrelevant material); I don't have the time to turn the URLs into links, but you know what to do. Please note that I haven't checked the links or their contents.

Biswanath Halder's Domain was created om June 19, 2001 from Cleveland, OH

http://www.networksolutions.com/cgi-bin/whois/whois?STRING=halder.ws&SearchType=do

".ws" stands for "Web Site" http://www.ws/

"Biswanath Halder's Homepage"
http://www.halder.ws/

IP Address: www.halder.ws [216.27.95.35]

"Guest Book" for this page points to: http://junior.apk.net/~halder/GuestBook.html

Alternate "Biswanath Halder's Homepage" http://junior.apk.net/~halder/

IP Address: junior.apk.net [207.54.158.21]

Resume(s) of Biswanath Halder

http://junior.apk.net/~halder/resume.html

http://www.halder.ws/resume.html http://www.halder.ws/chronology.html

http://www.usrecruitersonline.com/OnLine/BiswanathHalder.htm

http://www.wst.nu/resumes1/0000027a.htm



This web site is a BLOG in Cleveland, Ohio from the same apartment building
as Biswanath Halder!

http://www.iancharnas.com/contact.php

http://www.iancharnas.com/journal/archives/archive-082000.php
Tuesday, August 8, 2000 (comments)

I'm less sick, and livin' it up at DMS! PS...Biswanath Halder (that odd old
Indian guy you always see at Fribley and Leutner) lives on the third floor
of my apartment. . . .

http://www.iancharnas.com/journal/archives/archive-012001.php
Saturday, January 13, 2001 (comments)

Woke up to the sound of Biswanath Halder calling so I can take him to this
place where they'll fix his computer. He's this wierd Indian guy that lives
on the third floor, I could go on and on about it but he gives Indians a bad
name so I won't. . . .

Could Biswanath Halder Indian Muslim?

[click here]

The E-mail address is one of the ones he uses.

UPDATE: Reader Neil Farbman points out:

The link in the last part of your posting of Mike O'Ronain's email (the part asking asking "Could Biswanath Halder Indian Muslim?") seems to be a vote by Biswanath Halder against the creation of a discussion group for Indian Muslims, so I think it's hardly evidence that he is Muslim.

Sounds right to me. I should also have made clear in the original post that I haven't checked the links or the contents (I've added that to the first paragraph now), but was just passing along the e-mail that I received.

 
[Eugene Volokh, 7:01 PM]
Alleged Case Western's killer past libel lawsuit: Reader Gerry Canavan points to this site that contains various documents relating to this suit. I haven't looked closely at them, but they do seem to shed some light on Biswanath Halder's personality. Some details of the libel seem connected to how he was behaving during the killings.

 
[Eugene Volokh, 5:33 PM]
"Hospital seeks Klingon speaker": I found the key factual assertion -- that of the 60,000 mental patients in Multnomah County, enough insist on speaking only Klingon that this justifies hiring a special interpreter -- to be hard to believe; but I thought I'd pass this article from cnn.com along in any case:

Position Available: Interpreter, must be fluent in Klingon.

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

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

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

County officials said that obligates them to respond with a Klingon-English interpreter . . . .

 
[Eugene Volokh, 4:45 PM]
Soft America and Hard America: InstaPundit is right: This piece by Michael Barone is definitely worth reading.

 
[Eugene Volokh, 1:27 PM]
A rare opportunity: Little Green Footballs points us to a Web page that apparently belongs to the alleged Case Western killer, Biswanath Halder. LGF specifically points out to Halder's antiwar activism, but the rest of the Web site, including his resume is interesting, too. I doubt that it gives one that much insight into the killer's mind, but who knows -- perhaps it might; and anyone with an Internet connection can try to figure it out.

     One point that may be worth flagging: His older resume reports that he got his B.S. degree in India in 1963, which suggests that he's likely (though of course not certainly) about 60; news accounts say he's 52. Obviously, this might mean the site belongs to the wrong guy, but it does show him as a 1999 MBA from Case Western, which matches the Web site; and it seems unlikely that there'd be two Biswanath Halders that fit this description. In any event, perhaps that is an interesting item, albeit a fairly small one, that one can get from the site (assuming, of course, that the site is honest, and that this is the same Halder); might there be other such items?

UPDATE: The AP story has been revised to say that Halder is 62, which fits the resume better; and other details suggest that this is the same Biswanath Halder.

 
[Eugene Volokh, 12:12 AM]
Case Western shootings: Matt Rustler has some thoughts.

 
[Eugene Volokh, 5:04 PM]
Hypocrisy: Apropos this post from yesterday morning, Tom Round pointed me to a nice quote from an article by Jamie Boyle (a lawprof at Duke whom I know mostly through his work on intellectual property):

For some, integrity is attractive because we have given up on the notion of objectively correct moral positions and seek only consistency within a single person. (This idea can often be seen in the contemporary media where it is assumed that values are relative and actual assessments of good and evil impossible. In such a world the only way to sin, is to fall short of a standard that one has set oneself; thus hypocrisy and cover-up become the ultimate sins.)

 
[Eugene Volokh, 3:49 PM]
Judicial fashion errors: Patrick Belton's (Oxblog) complaints about proposed new attire for the English judiciary remind me of this unfortunate dress choice, from the highest state court of Maryland (the Maryland Court of Appeals):

And, no, it's not just this one judge's fault -- it's apparently their uniform, doubtless handed down from earlier days when people thought it actually looked good. Thanks to How Appealing, where I first saw these robes; incidentally, I vaguely recall some picture that also included a hideous-looking cap, just to complete the ensemble -- if that's not my imagination, and someone actually has a pointer to it, please e-mail it to me at volokh at law.ucla.edu.

UPDATE: It gets worse; reader Margaret Marks e-mailed me a pointer to this picture of the German Federal Constitutional Court, from Der Spiegel:

Ow.

FURTHER UPDATE: Reader Yasser Mawji writes "The pictures you've posted thus far are actually quite tame compared to the almost farcical Santa Claus outfits worn by the Justices of the Supreme Court of Canada," and points me to the following as evidence:

Yup, we have a new winner. (STILL FURTHER UPDATE: Reader Ken Landa points out that these are ceremonial dress robes, and not the normal ones; the court's usual robes are much more sedate.)

 
[Eugene Volokh, 3:39 PM]
Anne of Green Gables meets Sonny Bono: Well, not quite, but close enough. I understand that there's something of an Anne of Green Gables Cult, especially among the fairer sex, so I thought some readers might be interested in reading the following, from BNA's Internet Law News:

CANADA INTRODUCES L.M. MONTGOMERY COPYRIGHT TERM EXTENSION ACT

Canada has introduced a bill that would extend the copyright term for certain posthumously published works. Bill C-36, which may become known as the Lucy Maud Montgomery Copyright Term Extension Act, is of particular interest to the hiers of the Canadian author of Anne of Green Gables fame, whose unpublished work, including ten volumes of previously unpublished diaries, was scheduled to come into the public domain on January 1, 2004. If enacted, the bill would delay that until 2018. Bill at <http://shorl.com/dabyryvalebro> [Canadian Parliament] Backgrounder at <http://shorl.com/hijigrifrelito> [Industry Canada]

(Actually, this isn't quite as troubling as the Sonny Bono Copyright Term Extension Act, which extended the term of protection for a huge range of published works, though some people might object to both laws on similar grounds.)

 
[Eugene Volokh, 2:32 PM]
Gun industry: I was talking to a journalist recently about gun laws, and he suggested that many gun control proposals fail because of opposition from the "powerful gun industry."

     Whatever one might say about the merits of gun control, the journalist's claim is mistaken. The gun industry, as the New York Times has pointed out (Mar. 18, 2000, and June 15, 1999), is composed of "small, marginally profitable companies," with a combined revenue of $1.5 billion to $2 billion per year. "By contrast, Ford and General Motors have revenues of over $140 billion a year each," and despite that, car design and use is pretty heavily regulated; likewise, alcohol, gambling, and many other industries (many of which are quite heavily regulated) are much more powerful than the gun industry. According to opensecrets.org, in the 2000 federal election cycle (the last one for which they have full information), the total political contributions (counting only those of $200 or more) from industry members, PACs, and employees were under $4.4 million, which made the industry the 64th ranked contributor out of the over 80 that opensecrets.org counted.

     The political power of the gun-rights movement stems not from the wealth or power of the industry, but from the number and passion of pro-gun-rights voters. The main force in these campaigns isn't the industry but the NRA, and, in the words of Prof. Robert Spitzer, a strong proponent of gun control,

The key to the NRA's effectiveness lies in its highly motivated mass membership and the organization's ability to bring pressure from that membership to bear at key moments and places. Central to this effectiveness is the fact that gun control opponents are more likely to engage in political action -- letter writing, contributing money, attending meetings, and the like -- than gun control proponents. As Congressional Quarterly observed, the NRA's strength rests with "a body of gun lovers linked by a common activity that continues even when the legislative front is quiet." And the New York Times observed: "The real power of the rifle association stems from the fervor of its members, their apparent devotion to a single, overriding issue, and their determination to judge politicians on a 'for-us-or-against-us basis."

(Robert Spitzer, The Politics of Gun Control 108.)

     I'd also say that the gun movement benefits from the support of many people who aren't NRA members but who are strong gun rights enthusiasts. But it's the pro-gun voters and activists, and not the gun industry, that are the main political force in favor of gun rights; and even the NRA itself is powerful only because of those pro-gun voters and activists.

 
[Eugene Volokh, 2:14 PM]
Assault weapons ban: Jacob Sullum criticizes it, quite soundly, in my view.

 
[Eugene Volokh, 1:34 PM]
Arggh: Just got out of a nearly 4-hour-long faculty meeting. At UCLA Law School -- though not at all law schools -- decisions about whom to hire and to promote are ultimately made by either the entire tenured or tenure-track faculty, or sometimes by the entire tenured faculty. Specialized appointments committees do play a role, but the ultimate decision whether to hire or promote someone is ultimately the faculty's, not the dean's or (generally speaking) the committee's. Whether this is a good system is an old debate, which I won't rehearse here. Suffice it to say, though, that while this system might be better than the alternatives, it sure isn't terribly pleasant. I love my job, but faculty meetings are not among its high points.

 
[Eugene Volokh, 5:18 AM]
Victory Day: Today is "Dien' Pobiedy" (Victory Day) in Russia; I assume it's still celebrated there, as it was in the Soviet years, when it was a huge holiday, much more than V-E or V-J Day in the U.S -- on May 9, 1945, the Germans surrendered to the Russians.

     The Russians -- in this post, I include under that name all the other nations of the Russian Empire, such as the Ukrainians -- did tremendous evil in Eastern Europe (though probably less than they did to their own people, in part because the absolute worst of the Soviet regime was mostly over by 1945); and many of their devastating losses in World War II (the number that I'd heard was 20 million Russians killed) flowed from Stalin's crimes and folly, both before the war and during, as well as from Hitler's invasion. Nonetheless, had the Soviet Union surrendered, and spared themselves some of that blood, Hitler would likely have been able to retain Europe, and kill and enslave who knows how many more people.

     Western Europe thus probably owes its freedom to the Russians as much as to the Americans, though obviously the Russians quickly depleted after the war any goodwill to which they might have been entitled. Likewise, my parents, who as Russian Jews would have been butchered had the Nazis prevailed, owe their lives to Stalin's refusal to surrender, though they rightly loathed nearly all of the Soviet regime's other decisions. It is of such odd realities that history is made.

 
[Eugene Volokh, 4:24 PM]
Another Bushism of the Day. Here's today's Bushism of the Day:

"I think war is a dangerous place." -- Washington, D.C., May 7, 2003

Here's the full context, which, as I keep saying, would have pretty useful for Slate to at least link to:

Q: Well, President Bush, you have expressed your condolences because of the death of the two Spanish journalists in Iraq. My question would be, do you think this was a mistake, firing against the Palestine Hotel, under which fire Jose Couso died? And, if so, would you apologize, do you think it's necessary to apologize before the Spanish government and the family of these journalists?

BUSH: I think war is a dangerous place. And I think that nobody would kill a journalist intentionally.

     With the context, it seems to me, the "Bushism" feels quite a bit different. While I might be wrong, the amusement value of the Bushism doesn't come from the reference to war as a place -- a reference that's literally unsound (a war is an event or a state of an affairs, not a place), but that might actually be either a permissible figurative usage (various non-places, for instance, are sometimes said to be "a bad place to be"), or at least a minor slip (check out the syntax of the first question that Bush was answering; people often do make slips in their oral remarks).

     Rather, the amusement comes from the quoted statement's seeming vacuousness: "I think war is a dangerous place." Well, duh!, one might think; what a rocket scientist he must be, declaiming sagely that he thinks war is a dangerous place. "War is hell," only derivative, bland, and mealy-mouthed.

     When one sees the context, however, the statement means something very different: Bush is stressing that these accidents will inevitably happen (because battlefields are dangerous places), probably suggesting that war correspondents knowingly face danger, and implicitly saying that since all we're talking about is an accident ("nobody would kill a journalist intentionally"), the condolences were enough and no further apology is required.

     Now I realize that the Bushism of the Day column is mostly trying to make a joke; but I think that, like many political jokes, it's a bit more than a joke: The suggestion is that Bush's statements substantively deserve to be mocked. But this time, like in some past Bushisms, looking at the statement in context provides a very different perspective. It's too bad that Slate doesn't provide any of that context, not even via a link.

 
[Eugene Volokh, 3:06 PM]
Academic Legal Writing now available through the West Group site: See here. Thanks to Alice of a mad tea-party for letting me know; the publisher told me it would be up soon, but I didn't realize it would be that soon.

 
[Eugene Volokh, 2:57 PM]
High school: Just came back from giving a lunchtime talk on guns to a student political club at Crossroads, a local private high school. They only gave me 30 minutes, so there wasn't time for a debate; I just gave some of the key data, and explained why I'm skeptical of gun control -- they should have someone else next week to present the other side. There were about a dozen students there (plus a teacher), and they seemed really interested in the subject. I much enjoyed it, as I expected I would.

 
[Eugene Volokh, 2:04 PM]
"Nullius in verba." This is one of my favorite mottoes -- it's the motto of the Royal Society of London for the Improvement of Natural Knowledge, founded in 1663, and it means "nothing in words," a commitment to knowledge through experiment rather than scholastic theorizing.

     Of course, it does consign my own profession to irrelevance; but I like it anyway.

UPDATE: A little knowledge, or perhaps a little research, is a dangerous thing. Though I have certainly seen "nullius in verba" translated this way, Dr. Weevil (who knows his Latin) tells me, and Sasha echoes, that this is not the best translation (and possibly not even a plausible one, though that's less certain); the better translation is apparently "in the words of no one," and it might allude to a quote from Horace. That, the claim goes, would express a preference for experimentation as opposed to reliance on authority -- think of the Royal Society as an early version of the "Show-Me State."

     But, hey, I now like the motto of both translations, correct and otherwise. Double the fun!

 
[Eugene Volokh, 1:48 PM]
Political extremists vandalize professor's homes: The UCLA Daily Bruin reports the following, and a memo from the Vice Chancellor bears this out:

Animal rights protesters vandalized the home of two UCLA researchers last week, according to a police report filed by the victims.

On-campus demonstrations that coincided with World Week for Animals in Laboratories were followed by protests in some researchers' neighborhoods Monday.

John Schlag, a neurobiology professor, and Madeleine Schlag-Rey, a neurobiology researcher, two targets of animal rights activists, said their home was damaged by protesters.

At 10:15 p.m. Monday night, Schlag said they heard a lot of noise on the street, followed by loud banging and kicking on their door.

"The way it proceeded . . . we felt that the door was going to be kicked in," Schlag-Rey said.

The Schlags, whose research focuses on the mechanisms of human sight, filed a police report with the Los Angeles Police Department that listed a broken street lamp and a broken door window as a result of the vandalism. Neighbors told the police that the suspects were wearing masks and dark clothing.

It is not yet known whether anyone has been arrested in connection to the incident.

The following morning, the Schlags noticed that a screen in the front of their house had been broken by a large rock thrown from the street. . . .

Though the police report labels the suspects as "protesters," Erica Sutherland, a member of the loosely organized animal rights group that ran the past week's events on campus, said members of her organization "don't participate in any illegal activity."

Sutherland, a third-year sociology student, said that she and other Students for Animal Liberation members were involved in demonstrations outside researchers' homes where protesters "educated neighbors."

"I think it's incredibly important that neighbors know that they are living near animal abusers," Sutherland said. . . .

Sutherland explained that she sees home protests as "completely fair" because the animals that are utilized in research can't escape their cages, and so the researchers shouldn't be able to hide or escape either.

Schlag-Rey had a different view. She said she sees the home protests, along with fliers distributed in their neighborhood that label the Schlags as "fanatics," more as a means of intimidation. . . .

The Schlags' studies on visual systems and eye movement in monkeys and humans may help researchers better understand disorders like dyslexia and hyperactivity, they said.

Schlag-Rey added that knowing where visual centers are located in the brain is useful for neurosurgeons who remove brain tumors; this information would allow them to steer clear of damaging patients' visual capabilities.

The Schlags emphasize that the protesters actions will not deter them from their research.

"We as researchers are not intimidated -- we are not hiding," Schlag-Rey said.

Pretty similar story to some anti-abortion extremism; too bad that the Los Angeles Times didn't cover this -- though the crime is fairly minor, the attempt to intimidate researchers for political reasons seems newsworthy. Naturally, such vandalism ought to be punished, though that's hard to do when the protesters wear masks. Cities are also constitutionally allowed to bar even peaceful residential picketing (the Supreme Court so held in Frisby v. Schultz (1989), which involved anti-abortion protesters), but to my knowledge Los Angeles doesn't have such an ordinance.

 
[Eugene Volokh, 11:46 AM]
Bennett's losses: It now appears, according to an interview quoted in The Corner, that one of the authors of the stories about Bill Bennett is saying the total losses were somewhat over $1 million over ten years, not $8 million -- i.e., a $100,000/year hobby:

SCARBOROUGH: OK, did he lose $8 million, though? He reported $8 million in losses, but is it minus $8 million?

GREEN: No, no, let's be real clear about that. No, no, let's be clear about that. That is net loss more than $1 million. These gambling records that we've got, they show losses, they show wins. He hit plenty of jackpots, $10,000, $15,000, $40,000, up to $80,000 jackpots. The problem is, is, he'd turn around and he would play them right back.

Makes me especially glad that I updated my original post very shortly after I initially posted it to reflect the uncertainty about the facts:

Bill Bennett and gambling: People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years. (UPDATE: Several people suggested the $8 million might be gross losses, without any offset for winnings; I checked several press accounts, and they've generally said that he's lost over $8 million over the last decade, which in normal parlance means net losses. The Newsweek article, for instance, says "Some casino estimates put his total losses over the past decade at more than $8 million." Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this, so it's possible that the reported losses don't include winnings. See here for the New York Times account, which reflects this uncertainty.)

Losing over $1 million is still not "pretty close to even" in my book, though the term "pretty close" is a relative one; when the initial allegation is that you lost over $8 million, a response that, no, you came out "pretty close to even" means something different that if you were initially alleged to have lost just the $1 million. But more importantly, the change in accounts reminds us that we're not sure what the actual number was -- over $1 million, more, or less.

 
[Eugene Volokh, 10:30 AM]
Have a friend or family member in law school? If you do, it seems to me that my brand spanking new Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers -- personalized, if you'd like -- would be a thoughtful and useful gift. If the person is on a law journal, he may need to write a so-called "student note," which is essentially a student-written scholarly article; but in any event, if he takes any seminar classes, he may need to write a seminar paper. Unfortunately, while law schools require students to write these sorts of works, they never really teach them how to do it; the first-year writing class teaches legal writing generally, not academic legal writing in particular.

     If your friend or relative has just gotten onto a law journal, is just entering law school, or is starting the second or third year (most academic writing happens in those years) -- or is even out of law school, but interested in getting into teaching, or in writing law review articles for other purposes -- the book could be very useful. For some blurbs for the book from some top people (former Stanford dean Paul Brest, New Republic legal affairs editor and law professor Jeff Rosen, Bryan Garner [editor of Black's Law Dictionary and noted writer on legal writing], and others), plus the Foreword (by Judge Kozinski), the Table of Contents, the Introduction, and part of Part I, see here. The book is 189 pages long (not counting the endnotes and the index): meaty and thorough, but not daunting.

     If you'd like to buy a personalized copy of the book, just send me (volokh@mail.law.ucla.edu) a paypal draft for $23.95 ($18.95 cover price, plus $4 to cover postage and the envelope, and $1 to cover the paypal fee), or $25.60 if you're in California, to cover the sales tax (yes, I will pass it along to the state), together with (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check (for those amounts minus the paypal $1) and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

If you'd like an unpersonalized copy, I'd be happy to provide that, too, though you'll also be able to buy the book soon from amazon.com and barnesandnoble.com, and it's already available from the West Group site.

 
[Eugene Volokh, 9:00 AM]
Mark Kleiman on drugs: Mark Kleiman, who's one of the nation's top drug policy experts, reacts to a Slate piece on hallucinogens.

 
[Eugene Volokh, 8:53 AM]
From Stu's Views, which I recommended a week or so ago:

 
[Eugene Volokh, 7:23 AM]
Hypocrisy: Jonah Goldberg, in The Corner argues (as I have) that many of the "he's a hypocrite" arguments against Bennett actually rest on claims that his distinctions are wrong, and not really that he's hypocritical. He then goes on to say:

But for some reason this culture has a real problem saying people are wrong, but thinks it's easy to call people hypocrites. Worse, our culture thinks it's worse to be a hypocrite than to be wrong.

     I think this is an accurate and important point. Many people are reluctant to argue that people as wrong, because we realize that many moral disagreements come down to differences in fundamental moral axioms. We may believe that people who don't share our axioms are wrong, but we know we can't prove our axioms or disprove theirs, so arguing that they're wrong seems unsatisfying. "You're wrong, life doesn't begin at conception." "No, you're wrong, it does." People who like logic, and like to feel that they've won on logical grounds, don't much like these arguments -- some are embarrassed by them (perhaps because out of a sort of moral relativism as good manners, which suggests it's impolite to condemn others' moral axioms), some think they're practically unlikely to persuade, and some think that they're just logically unsatisfying.

     Arguments based on supposed inconsistency, though -- either hypocrisy, where a person's actions are allegedly inconsistent with his theories, or simple inconsitency, where two of his theories seem inconsistent each other -- seem more promising. The arguments don't require people to accept your moral axioms, or require you to condemn theirs; they operate based on logic alone. "X's arguments aren't just inconsistent with my views -- they're inconsistent with X's own. X, you should change your views. Others, you shouldn't accept X's positions." And sometimes such arguments can indeed be very effective: If you can show something to someone using arguments drawn from their own worldview, they're much more likely to accept it.

     But often these arguments about logical inconsistency are actually just arguments about moral axioms pretending to be purely logical arguments. "Those conservatives are such hypocrites -- they say they're pro-life, but they also vote for capital punishment." Well, that's because they draw a moral distinction between the lives of innocents and the lives of murderers. You may disagree with them on the merits, but this disagreement turns on differences in moral axioms, not the other side's lack of logic. (One can also object that "pro-life" is a bad term because it doesn't embody this distinction, and I'm therefore not wild about it; but, just like "pro-choice," which is surely not in favor of all choices, it's a term we're more or less stuck with for now, for want of a really good and politically acceptable alternative.) Likewise when people say "Those liberals are so inconsistent -- they support sexual freedom and freedom of expression, but not economic freedom." That's not inconsistency -- it may be error, but not inconsistency; liberals simply draw a moral distinction between noneconomic and economic life that others don't fully accept, and one can't dismiss this distinction as logically inconsistent, even though one can argue that it's morally or pragmatically unsound.

     Incidentally, this has a parallel in constitutional arguments: At times people argue that the courts shouldn't enforce liberty claims (such as ones based on substantive due process or a right to religious accommodation) outside certain specific enumerated guarantees, or at least grudgingly accept that the courts won't enforce such claims, because they concede that the legislature is generally entitled to enact its moral judgments (whether about sex or about economic life) into law; but they suggest that courts should apply equal protection rules to require that the judgments be implemented consistently. "OK, we reluctantly accept that the government may regulate sexual practices because it thinks they're immoral, but it should do so evenhandedly, without discriminating between homosexuals and heterosexuals." "Fine, we have no basis to set aside the legislature's judgment that businesses shouldn't charge above a certain rate, but there's no reason for it to impose them on some businesses but not on others." "We concede that the legislature may choose to ban marital status discrimination in housing without providing an exemption for landlords whose religion prohibits them from renting to unmarried couples, but the legislature may not then carve out an exemption for small apartment buildings where one unit is occupied by the landlord without also providing an equal exemption for the religious landlords."

     Sometimes, this equality argument might work, either because there's just no conceivable explanation for the different treatment, or because we have some reason to think that the grounds for distinction (e.g., race, religion, sex, etc.) are improper. But often the equality argument is just a way to bring up the very sorts of objections to the legislature's moral judgment that used to be made under the now-rejected liberty arguments. The distinctions within the legislative enactment are often as much part of the legislature's moral judgment as is the enactment itself: The legislature might just think that sexual practices done by certain people are morally different from sexual practices done by others, that the relationship between producer and consumer in some businesses is morally different from the relationship in others, or that landlords who have to live in a small complex have greater moral claims to choose their tenants than other landlords.

     Courts could, of course, challenge the propriety of these distinctions. But they'd have to acknowledge that they're second-guessing the legislature's moral judgment, rather than just applying impersonal, objective standards of logic.

     So I say again that it's quite proper to argue against people on moral grounds; and sometimes, it makes sense to claim that one's opponents are inconsistent. But often the other side's supposed logical inconsistencies in reality reflect substantive moral disagreement (or sometimes empirical disagreement), and not logical inconsistency at all. Better then to acknowledge that, and join the debate on the moral or empirical grounds, which are the real grounds of disagreement.

 
[Eugene Volokh, 5:21 AM]
Where are men from? Women, it is said, are from Venus, and men are from Mars. But many men (including me) just aren't very martial. Maybe we're from other planets: The mercurial are from Mercury; the jovial from Jupiter (that's where I'm from); the saturnine from Saturn. Sailors are from Neptune -- there's actually a very old and now obsolete term, "Neptunist," which referred to "[a] nautical person." The solitary (OK, the root is wrong here, but work with me here) are from the Sun. And the really far-out and eccentric are from Pluto.

     What's more -- and I am not making this up -- homosexuals are apparently from Uranus. From my New Shorter Oxford: "Uranian . . . . B n. A homosexual. Now arch. or literary." This is attested to the early 20th century, with "uranism" for "homosexuality" dating to the late 19th; I have seen it credited to Karl Heinrich Ulrichs, a German lawyer and early gay -- er, Uranian -- rights activist. The etymology apparently goes back to Plato, but philosophy makes my head hurt, so I'll leave it at that.

 
[Eugene Volokh, 5:18 AM]
Private detectives and privacy: I've been thinking about writing a very short law review article on this issue some time, but I'm not sure I've fully thought through all the counterarguments -- maybe you folks can help.

     I have long been skeptical about claims that the law should recognize a right of informational privacy -- a right to stop others from communicating certain information that they've learned about you, whether it's your sexual practices, your shopping habits, or what have you. I think that contracts in which one side promises confidentiality should be fully enforceable, and I think that sometimes such a promise should be inferred into a contract (unless one of the parties specifically disclaims any such promise) when social expectations lead people to assume that confidentiality is being promised. But a broader right, often defended as giving us the right to "control . . . information about ourselves", is not proper. I've even argued that such a right would often violate the First Amendment.

     So here's my question: If you believe that people really do have a right to control information about themselves -- and therefore that businesses shouldn't be able to gather and communicate such information (let's set aside the contract argument for a moment) -- then shouldn't private detectives be outlawed? After all, the job of private detectives is generally to find out information about other people, information that they would like to keep confidential. This might be whether they're committing adultery, or whether they're embezzling from their employer, or whether they're involved with someone's daughter -- but all of this involves gathering information about other people.

     And even if the information is something that we think people don't have a legitimate right to keep private (e.g., their embezzling), in the process of gathering this information, the private detective may often gather other information: How much money the subject seems to be spending, what his vices are, who his acquaintances are, what he's bought recently, and so on. They may gather it by following the person, by questioning people from whom they've bought things, and so on. Even when the private detective is investigating a runaway child, whom the parents are entitled to try to find, the detective may report to his employers private information about lots of people who are related to the investigation, but who aren't guilty of any crime. This is the very sort of information that people often say should be kept private, and that the law should prevent others from communicating.

     Now one possible distinction is that private detectives gather information only when it really needs to be gathered (e.g., when someone might be committing a crime or violating a trust), while businesses that gather information about what we buy do so for less worthy reasons. But is that really so? There's no requirement that detectives' investigations be for noble motives; they could be animated by a worthy desire to defend oneself against crime or breach of trust, an unworthy desire to snoop into one's children's lives, or simply economic self-interest, akin to that which animates much gathering by businesses of information about clients and potential clients.

     Another possible distinction is that the detective usually conveys the information only to one person, which isn't much of a breach of privacy. But this person remains generally free to communicate it to others -- and, what's more, the person who hires the detective is often the one in whose hands the personal information about the investigated person will be most dangerous. What's the greater invasion of privacy -- that your personal dealings have been revealed to your parents, your prospective business partner, or your spouse (and perhaps the detective actually doesn't find evidence of adultery, but rather finds that you've done things that are not improper but that you legitimately want to keep private), or that various businesses know the kind of goods you buy at the supermarket?

     Finally, of course, most of us don't have to worry about being investigated by private detectives. Detectives are expensive, and our dealings are rarely of enough interest to people who are rich enough and motivated enough to hire detectives. But that just means that the aggregate privacy harm caused by private detectives to the average person is relatively small; the harm caused to the people who are investigated may be quite large.

     Naturally, the law should prohibit detectives from doing certain things -- breaking into our homes, probably photographing into our bedrooms with telephoto lenses (this may already be tortious), bribing our psychotherapists or lawyers to reveal information that they have a legal duty to keep private. But if you really believe that all of us have the right to control information about ourselves, shouldn't private detective work be per se illegal in the great majority of cases? Conversely, if you think that we should have a right to learn information about people, and to hire others to help them get this information, then how can we at the same time have a right to "control information . . . about ourselves"? Let me know, please, what arguments I've missed -- I may well use your input in my article, though I may or may not respond to it on-blog.

     (Incidentally, for purposes of this question I set aside the situation where the subject has consented to the investigation, perhaps as a condition of being hired into some sensitive position. Let's focus on detectives investigating people without their consent.)

 
[Eugene Volokh, 12:44 AM]
The campaign reform case and retirements: From Roll Call:

The possibility that one or more Supreme Court justices could retire prior to the high court’s consideration of the new campaign finance law is sparking concern among legal experts that such a development could leave the high-profile case one judge short.

Amid speculation that Chief Justice William Rehnquist may hang up his robe when the court’s current term ends in July, and in light of the Democratic-led blockade of judicial nominees in the Senate, some campaign finance lawyers are wondering if the Bipartisan Campaign Reform Act might end up being decided by an eight-member court, or if such a court would be able to come to any decision at all. . . .

But if the fate of the McCain-Feingold law is squarely in Rehnquist’s hands, the fate of Rehnquist’s possible replacement could depend a great deal upon folks like Feingold, who is the ranking member on the Judiciary subcommittee on the Constitution, civil rights and property rights. If Rehnquist were to retire, “We can expect that if President Bush nominates someone who the [Democrats] view as not being centrist, there’s likely to be a confirmation fight,” [Loyola law professor Rick] Hasen concluded. Indeed, at a hearing this week on the breakdown in negotiations on judicial nominations, Feingold defended Democrats’ right to filibuster judicial nominees with “extreme views” that the “White House seems intent” on pushing through “in the shortest possible time.” . . .

If eight Supreme Court justices were to end up deadlocked 4-4 on campaign finance issues, last week’s controversial lower court decision, which struck some provisions in the soft-money ban and altered how issue ads are regulated, would become the rule of the land for the foreseeable future.

One D.C.-based GOP attorney who is also involved in the case said there is a “real likelihood” that any Bush nominee to the Supreme Court could face a long and sticky confirmation process given the current state of regard to judicial nominees.

“But I would be surprised if Justice Rehnquist or anyone else retires before September or October, when this is likely to be heard or decided by year-end,” the lawyer continued. “In other words, a retirement could come but not be effective until a later date -- and this case would be done by then, I presume.” . . .

 
[Eugene Volokh, 11:17 PM]
Writers' block unblocked (or was it just plain laziness?). I'm happy to report that the article that I've been procrastinating about for the last few weeks -- a short essay on free speech and intellectual property that I promised to a conference put together by the University of Houston School of Law (the conference will fortunately be in Santa Fe, which I'm told is rather more scenic than Houston) -- has now been going very nicely. I've generally found that once I get a rough draft, no matter how rough, about 3/4 done, both finishing the last quarter and polishing the rest are much less painful. That's not true for everyone; some people like writing the first draft, but hate polishing it. But this is the way I work.

     Actually, if I really felt that "it just wouldn't write," and thus had to regretfully withdraw from the conference (something that I don't do lightly, and have never done this late in the process), I had a way to start my withdrawal: "Houston, we have a problem." But I'm certain that I would have felt too mortified to use something that jocular. Fortunately, it won't have to happen; I'm pretty sure that this won't be one of my most significant pieces, I'm sorry to say -- I do have some novel things to say, but not that many, and not that important -- but it ought to be fairly good, and I think it may be useful in some ways. Plus, this is certainly a hot area, so I will be glad to have written some more in it. (One reason I accepted the invitation to the conference was precisely that I knew I wanted to say something about the topic, and I correctly thought that only a looming deadline would be able to make me do that.)

 
[Eugene Volokh, 6:01 PM]
Current release date for Neal Stephenson's Quicksilver appears to be, according to the publisher's site, September 23, 2003. But it's slipped before, and might again.

 
[Eugene Volokh, 4:40 PM]
Time magazine story: I sent the Time people an e-mail referring to Orin's post below, and requesting that they publish a correction. Let's see what they'll do.

 
[Eugene Volokh, 4:27 PM]
Bill Bennett:
.

Here's the column about this, with ordering instructions -- it's apparently a real product. I've been in some measure defending Bennett, but this seems pretty funny, and a fair dig. Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 1:56 PM]
More on slot machines: A reader, who says he works on slot machine software, reports that the matter varies from state to state:

Actually, there are some video poker machines that have 102% paytables. The casinos don't set many of them to that paytable (for obvious reasons), but they are out there. And if you consider that a 98% slot is just a little worse odds than craps, and better odds than roulette (or most other table games), you can come very close to even or better than even in the long run. . . .

New Jersey doesn't allow any slot to have a payback exceeding 100%.
Minnesota limits payback to less than 95%.
Most reel-based slot machines in Vegas have a top paytable of 98.5-99%, and most of the slots on the floor are set to that paytable. When you're paying 98 cents for dollar bills, volume makes all the difference.

(By the way, I should say that while I've heard of these better-than-even-with-perfect-play machines, I'm rather skeptical that it's practically possible for people to exploit them, especially over the long run -- among other things, I suspect that at some point the casino will kick the best players out. Still, it does seem like slots and video paker can be less of a losing game than some suggest.)

 
[Eugene Volokh, 12:08 PM]
Slot machine payouts: This is highly tangential to the Bennett matter, but the question came up, so I thought I'd pass along some of the information that I've seen. Press accounts report that at many casinos, the payouts for some machines are over 95% (N.Y. Times, July 14, 1996), and that at some casinos, they're over 98% (Riverside Press Enterprise, Feb. 22, 2002); some Web sites likewise say that some machines pay out over 98%, or even that with perfect play at video poker (highly unlikely, of course) that one can indeed win over the long run, and that the casinos make their profit on the many imperfect players. I'm not sure how trustworthy the Web site accounts are, or for that matter, how trustworthy the press accounts are. But I know that some people have assumed that slot machines usually have a take of 10% or more, and that doesn't seem to be true as to many slot machines.

     Of course, I am not advising that you play the slots; I don't like gambling myself, and I find slot machines to be among the most dispiriting and unpleasant forms of gambling. The limits of my gambling are an occasional game of poker, literally nickel ante, with low raise limits, where people usually leave at most $10 up or $10 down (and of course, with no take for the house). I can see why poker with friends might be pleasant, but solitary gambling in a commercial establishment gives me the creeps. But while gambling is a losing proposition, it appears to be not quite as much of an expected loss per pull as some have suggested.

 
[Eugene Volokh, 11:32 AM]
The book has arrived! Yup, my Academic Legal Writing is here, in print, glossy cover and everything. I'm so excited! Unfortunately, it's not yet available on amazon.com or barnesandnoble.com (the latter has a page set up for it, but lists it as not yet available) -- drat.

 
[Eugene Volokh, 9:51 AM]
i-Loo: A Microsoft press release:

MSN Launches World's First ‘Internet Loo’

New WWW.C Offers Convenience Surfing Relief to Festival-goers this Summer

London - UK - April 30th 2003 - The UK’s most popular website msn.co.uk is creating the world’s first ‘Internet Loo’. The iLoo will be mobile and is part of MSN’s mission to allow instant logging on ‘anytime and any place’.

In time for the summer festival season, MSN is in the process of converting a portable loo to create a unique experience for surfers looking for an alternative to the bog-standard festival loo experience. Users will be able to sit down, undock a wireless keyboard and conveniently access the first ever WWW.C.

A plasma screen will be located directly in front of them which can be adjusted to a desired height level. MSN is also in talks with toilet paper manufacturers to produce special web paper for those in need of URL inspiration.

Tracy Blacher, Marketing Manager at MSN said: “The internet’s so much a part of everyday life now that surfing on the loo was the next natural step. People used to reach for a book or mag when they were on the loo but now they’ll be logging on! It’s exciting to think that the smallest room can now be the gateway to the massive virtual world.’ . . .

MSN plan to install an external ‘Hotmail station’ on the outside of the MSN iLoo so people can do something useful while they queue. This will include a waterproof keyboard and plasma screen enabling users to surf the Internet whilst waiting.

The MSN iLoo has passed the planning stages and is in the early phase of construction. Details of its launch have not yet been announced but the MSN iLoo will be making an appearance at a majority of the summer season festivals. . . .

I wonder, though: (1) Given how unpleasant portable toilets are, wouldn't most people want to be done as quickly as possible, which means with a minimum amount of distraction? (2) If that's not so -- if people will indeed use this -- is it really good to have portable toilets that give people an incentive to occupy them longer, and keep others from using them for more urgent matters than Internet surfing? If I were either a festival organizer, I'd be hesitant to get something that gives users an incentive to linger, unless I get a really hefty cut from the access fees.

     On the other hand, maybe this is just a "performance art as corporate promotion" gimmick.

 
[Eugene Volokh, 9:40 AM]
Another word puzzle: This one is, I think, pretty hard. There's a word that, if you add a "u" to it (not necessarily at the beginning), becomes nearly its opposite. (Just add the "u"; don't rearrange any other letters.) The original word is somewhat vulgar slang, and the new word is rather fancy and somewhat uncommon, though not ridiculously so. The words aren't precise antonyms, but they're somewhat close to it. Certainly calling a person one of these words (there's a hint for you) is practically inconsistent with calling him the other. The answer is here.

 
[Eugene Volokh, 9:39 AM]
Gambling, taxes, and Bennett: My friend and colleague Victor Fleischer, of the Tax Policy blog, e-mails:

The casinos are likely to know how much Bennett won, as well as what he lost. Among other things, if he wins more than $10,000 the casino has to fill out a tax form. (Gambling winnings are, of course, taxable income, and losses may only be offset to the extent of winnings.) [From another e-mail: Nevada Gaming Regulation 6A requires that gaming patrons present identification and complete a currency transaction report, which is submitted to the Board within fifteen days when more than $10,000 worth of chips is purchased.] Casinos also track high rollers very closely, monitoring how much time they spend in the casino and what games they play as well as how much they win or lose.

Nonetheless, it seems possible from the context of the story that the casinos might be out to humiliate Bennett, in which case it's possible they distorted the reporting of his gambling experience by reporting gross losses rather than net. This would be highly unusual, given how gamblers and casinos discuss these things, but I suppose it's possible.

More likely, like most gamblers, Bennett is in denial about the extent of his losses. . . .

[Also, r]egarding the source of the information: Could happen one of two ways, I guess -- 1) Some casino owners don't like his politics and want to humiliate him, and so they break their usual custom of respecting privacy, or 2) a rogue casino employee leaks it to a reporter. But yes, . . . casinos usually do not talk to the public about their patrons -- although I think it is a custom and not a rule, and they do often compare notes with each other[,] say, to catch a suspected card-counter. . . .

Could be Bennett has a cause of action against the casinos, if he can figure out the leak. Not that he would want to pursue the case.

 
[Eugene Volokh, 8:50 AM]
Here's an anti-Bennett argument that makes more sense: William Saletan in Slate does point to what, if it's quoted in context, indeed seems to be an inconsistency on Bennett's part. The value of Saletan's argument, it seems to me, is that it does point to Bennett's specific language that applies equally to gambling and to other things, rather than just asserting that gambling is a vice like other vices:

As drug czar in 1989 and 1990, [Bennett] constantly emphasized that anyone who patronized that addictive industry was responsible for its victims. On Meet the Press, he advocated mandatory sentences for "recreational, yuppie" marijuana users, blaming them for "the murder and mayhem in Washington, the fact that we have babies now being born addicted to cocaine. . . . These people are accessories to all those things, and they need to start paying a price." He told the Wall Street Journal that the "casual user . . . is driving the whole enterprise." He told USA Today, "For your middle class or your yuppie user, let's do what they do in Phoenix: Weekend in jail, counseling program, and you pay the cost of it." He criticized celebrities who admitted to past drug use, warning that such disclosures gave kids the idea that "you can do drugs and still be rich and successful."

You can argue (contrary to the National Gambling Impact Study Commission) that gambling doesn't trap and destroy people the way drugs do. But again, Bennett can't. The Index of Leading Cultural Indicators 2001, to which Bennett wrote the introduction, says, "Approximately 2.5 million adult Americans are pathological gamblers; another 3 million have been classified as problem gamblers. . . . According to the American Psychiatric Association, 'pathological gambling is persistent and recurrent maladaptive gambling behavior . . . that disrupts personal, family, or vocational pursuits.'"

I don't think the argument is open-and-shut -- for starters, the harms of drugs that Bennett was pointing to (cocaine-addicted badies, murder, and mayhem) seem to be considerably greater than those of gambling ("disrupt[ing] personal, family, or vocational pursuits"). Of course, many people (myself included) believe that at least the murder and mayhem effects of drugs stem more from the criminalization of drugs than from the drugs themselves. That, though, is a pretty contested issue; and my understanding is that even illegal gambling doesn't lead to quite as much crime as illegal drug dealing does, so if you do think that drugs should be illegal for other reasons as well (e.g., you think, as many do, that the aggregate harmful effects of drugs -- both crime and other forms of death and injury -- exceed the harmful effects of criminalization), you might think that the criminalization of drugs is necessary, and the harmful effects of the criminalization are indeed morally the responsibility of the drug users and not the drug warriors. But in any event, I do think that this specific point is more powerful than the general "he's a moralizer, how come he's being immoral?" arguments.

     Incidentally, while the Saletan quote is something of an indictment of Bennett's position on gambling, it's even more an indictment of his position on marijuana. Are there really problems with marijuana-addicted babies? Is there that much marijuana-related murder and mayhem? (I'm sure there's some, but my sense is that it's much less than with harder drugs.) Are the aggregate harms of legalizing marijuana (the harm of greater marijuana use minus the harm of criminalization) really greater than the aggregate harms of many other things, including gambling?

 
[Eugene Volokh, 8:38 AM]
Total Information Awareness: Phil Carter reports on TIA being narrowed to information that's already in government databases. He supports the new narrower TIA, though he would also support a broader one, and thinks this may be the first step in that direction:

I think [excluding private-sector databases] is a mistake, because this data remains invaluable for the detection and prevention of terrorist activity.

But perhaps we're seeing the first baby step here towards TIA, and the Pentagon needs to "proof" the concept first before the American public will accept the use of this data. The purpose of all DARPA projects, initially, is to prove the concept. But now, the Pentagon also needs to make the TIA project as criticism-proof as possible, if it has any hope of survival. The DARPA folks are testing TIA for their own security-oriented purposes, and that of other interested agencies (like DHS). But they also need to demonstrate this system to the public, in order to build public trust in the system and answer the criticisms thus far that it will infringe on civil liberties. More to follow...

The "More to follow..." may be simply Phil's way of saying that he'll blog more on the subject, but it's also a suggestion that the slippery slope may well be in operation here -- I'd call it a mix of the simple attitude-altering slippery slope, either an erroneous evaluation slippery slope or an accurate evaluation slippery slope (depending on whether you think the public will correctly estimate the value of the project), and cost-lowering slippery slope (in the sense that providing the government with more experience about how to run TIA-type projects will lower the cost of broadening them in the future). But some slippery slopes are good, if you already think that what's at the bottom of the slope (e.g., the broader TIA) is good, or if you're not sure whether it's good but you think the first step might indeed provide useful information about the likely value of the next step, and you think that the political system will act soundly based on that information. And of course it's possible that the slippage won't occur, because the public will maintain the line between the government simply organizing the data that it already has, and the government also incorporating data from private sources. Interesting stuff.

 
[Eugene Volokh, 8:19 AM]
More on the Baghdad looting: From the New York Times (thanks to InstaPundit for the pointer):

A top British Museum official said yesterday that his Iraqi counterparts told him they had largely emptied display cases at the National Museum in Baghdad months before the start of the Iraq war, storing many of the museum's most precious artifacts in secure "repositories."

The official, John E. Curtis, curator of the Near East Collection at the British Museum, who recently visited Iraq, said Baghdad museum officials had taken the action on the orders of Iraqi government authorities. When looting started, most of the treasures apparently remaining in display halls were those too large or bulky to have been moved for protection, Mr. Curtis said. . . .

In Iraq yesterday, American and Iraqi officials appeared to support this assessment, saying they still did not know precisely what was missing from the National Museum, because they had not yet had access to sites where art objects may have been hidden, or to rooms inside the building that were among the looters' targets. . . .

Such measures would mirror actions taken in Iraq before the Persian Gulf war in 1991, primarily as a protection against bombing of Baghdad.

Mr. Curtis's remarks may help explain recent reports by both Iraqi officials and American authorities that losses at the National Museum are less extensive than previously feared. For instance, Col. Matthew F. Bogdanos, a Marine reservist who is investigating the looting, said recently that Baghdad museum officials had listed only 25 artifacts as definitely missing.

Mr. Curtis said it appeared that a vast majority of the looting at the National Museum had not taken place in its display halls but in its basement storage rooms, where more commonplace objects were kept.

Some 100,000 to 200,000 objects were stored in the basements, British Museum officials said. Many of them may never have been photographed or cataloged.

As a result, Mr. MacGregor said, they are precisely the types of objects that can easily slip into the black market for looted artifacts. . . .

 
[Eugene Volokh, 7:40 AM]
Sometimes, statistics isn't the answer: Brad DeLong complains about my supposed "lack of statistical literacy," pointing to my initial post about Bennett and gambling. He quotes my post as saying:

People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years.... Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this...

He then points out (as best I can paraphrase, but check the post out yourself and see) that if Bennett's expected loss was $8 million, then the chances of his actually having lost any less than $6 million were tiny. He therefore concludes that

The thing that people who paid attention in their statistics classes know--and that people who did not, don't--is how quickly and viciously the central limit theorem bites. Either (a) William Bennett is the luckiest man who ever lived, or (b) William Bennett's claim to be 'pretty close to even' is the biggest lie.

and then suggests that "that UCLA's senior law faculty (say) (along with many, many, many others) needs to be dragooned into an elementary statistics classroom, forced to learn the central limit theorem, and then have their tenure revoked if they cannot use it effectively."

     Well, let's take a close look at the argument. First, the argument simply assumes that Bennett's expected loss was $8 million. Where does that assumption come from? The alleged casino accounts are that Bennett's estimated loss was $8 million, but I highly doubt that the casinos are talking about his expected loss. They don't know how many times he pulled the lever; they're presumably operating based on their accounting of his purchases, debts, and cash-outs, not based on statistical estimates. Nothing in the story hints that the casino sources deduced this information using expected values. So if the loss estimated from various sources was $8 million, then the chances of his actually having lost any less than $6 million have nothing to do with statistics -- they have to do with how reliable the sources are. If the estimates are correct, then obviously he lost more than $6 million. If they're mistaken, then he may have lost a good deal less.

     Second, here's the full quote, without the ellipses, which may explain why I'm agnostic on the matter:

People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years. (UPDATE: Several people suggested the $8 million might be gross losses, without any offset for winnings; I checked several press accounts, and they've generally said that he's lost over $8 million over the last decade, which in normal parlance means net losses. The Newsweek article, for instance, says "Some casino estimates put his total losses over the past decade at more than $8 million." Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this, so it's possible that the reported losses don't include winnings. See here for the New York Times account, which reflects this uncertainty.)

Suddenly, the real issue becomes a bit clearer than it was when the intermediate sentences were removed. Some casinos are estimating the total losses at over $8 million, but Bennett explicitly says otherwise; instead, he's saying that he's come out pretty close to even (whatever exactly that means), and thus (returning to the previous paragraph) that the supposed casino estimates are mistaken or highly incomplete. This has little to do with statistics -- it's a question of fact. Bennett may be lying, but only if you think the casino estimates are sound, something that the article certainly doesn't prove. That's why I'm not sure who's right.

     So I'm rather perplexed by Prof. DeLong's post. Statistics are often tremendously important, as I've often pointed out to people myself. But this question, like many other important questions, has little to do with statistics, and more to do with whether you trust Bennett, anonymous sources, or neither.

     (Many thanks to Steve Verdon for similarly coming to my defense on this.)

 
[Eugene Volokh, 6:03 AM]
Taxes, sex, and the constitution: My friend and new colleague Victor Fleischer asks "Are the proposed Earned Income Tax Credit reforms unconstitutional?" -- and it turns out the answer is "probably yes," for interesting reasons. (Yes, interesting even to people who aren't tax policy mavens.)

 
[Eugene Volokh, 3:20 PM]
If the individual right to bear arms is recognized, what test should be applied to gun controls? In my post on the Supreme Court and Silveira, I suggested that even those Justices who support an individual rights view of the Second Amendment might be willing to uphold laws that don't substantially burden the right. Reader Brett Cashman writes:

Isn't the gold standard for civil liberties questions the "strict scrutiny" test, whereby legislative enactments trenching on constitutional rights need to achieve a compelling state interest by the least intrusive means possible?

I guess you can argue the assault weapons ban as a glass-half-full proposition (i.e., it's not very burdensome, instead of it's pointless and stupid), but doesn't that argument fail on "compelling state interest" grounds? What's the state's compelling interest in a legislative enactment that doesn't accomplish much of anything?

I'm not a lawyer, but I'd like to be one someday, and so this is something that interests me.

This is an excellent question, and a good occasion for me to quote a post from nearly a year ago. This will not give you a clear answer about what the right test is -- I've been trying for years to write an article on this issue, and it still isn't done -- but it might explain why this is not an easy question:

HOW THE RIGHT TO BEAR ARMS SHOULD BE IMPLEMENTED: (Danger: Legalese ahead.)

     As I’ve mentioned earlier, I believe the Second Amendment secures an individual right to bear arms; and 44 of the 50 state Bills of Rights protect a right to bear arms, almost all in clearly individual terms.

     But what exactly does this right mean to existing gun control laws? Should laws banning felons from owning guns be struck down? Background checks? Waiting periods? Assault weapons bans? Handgun bans? Prohibitions on concealed carry of guns?

     These are very interesting questions, and I’ve been thinking about them for several years. I even started writing a law review article on the subject, but then set my very early scribblings aside, partly because other projects arose, and partly because I knew I didn’t have much of an answer.

     But I do want to respond to one argument I’ve heard from pro-gun advocates, which is that “Any restrictions on gun rights must be subject to ‘strict scrutiny’ -- must be proven to be ‘narrowly tailored to a compelling government interest’ -- because that’s the test applicable to all constitutionally protected rights, such as free speech.” (I warned you that there’d be legalese; and there’s more coming.) The flip side of the argument is that “If courts refuse to apply strict scrutiny to gun rights, then they’re protecting these constitutional rights less than they protect other rights, which is wrong.”

     The difficulty with this argument is that strict scrutiny is not the test applicable to all constitutionally protected rights. It’s not even the test applicable to most such rights. Here’s a qucik and necessarily oversimplified list:

1. Free speech: Some categories of speech (e.g., false statements of fact, obscenity, threats, etc.) are entirely unprotected, or protected at a fairly low level. Most speech is protected, but content-neutral restrictions that leave open ample alternative channels for speech are subject to a relatively weak intermediate scrutiny. Strict scrutiny applies only to (1a) content-based restrictions or (1b) content-neutral restrictions that fail to leave open ample alternative channels, and then only if (2) the restrictions apply to speech that's outside the First Amendment exceptions.



2. Religious freedom: When it was interpreted as a substantive right, laws that placed substantial burdens on the right were subject to a weak form of strict scrutiny -- one much weaker than the more familiar "strict in theory, fatal in fact" scrutiny applied to content-based restrictions on core protected speech, or on race classifications. Religious freedom is now interpreted as an equality right, and subject to strong strict scrutiny, but only when a law discriminates against religious practice.



3. Establishment Clause: Has its own test that doesn't mirror strict scrutiny.



4. Fourth Amendment: Has its own test that turns partly on "reasonableness" and partly on historical requirements, and that doesn't mirror strict scrutiny.



5. Criminal procedure provisions of the Fifth, Sixth, Seventh, and Eighth Amendments: Have their own tests that turn mainly on historical rules, with lots of historically influenced exceptions from constitutional protection. Generally do not mirror strict scrutiny.



6. Takings Clause: As to physical takings, requires compensation without regard to strict scrutiny; as to regulatory takings, subject to a weak and ill-defined set of tests.



7. Contracts Clause: Subject to a very weak form of intermediate scrutiny (though I think this is a big mistake).



8. Abortion rights: After Planned Parenthood v. Casey, substantial burdens on pre-viability abortions (or post-viability abortions needed to protect the woman's life or health) are impermissible. Burdens that are not considered substantial are permissible.



9. Right to marry: Substantial burdens on the right to marry are subject to a test that has been described as somewhere in between intermediate and strict scrutiny; but there haven't been enough cases to fully clarify this. There are apparently categorical limits to the right, for instance as to incest, polygamy, and same-sex marriage.



10. Equal protection -- classifications based on legitimacy of birth: Intermediate scrutiny.



11. Equal protection -- classifications based on citizenship: Strict scrutiny for classifications imposed by states, though with a categorical exception for certain activities that go to the core of sovereignty (e.g., voting, being a police officer). Rational basis scrutiny for classifications imposed by the federal government.



12. Equal protection -- classifications based on sex: Ostensibly intermediate scrutiny, though in recent years phrased as something close to strict scrutiny, except in certain areas where there are significant biological differences between the genders, and possibly in other areas (such as military service) as well.



13. Equal protection -- classifications based on race: Strict scrutiny.

     Some people criticize the courts for using so many different standards of review, and think that this seeming inconsistency only reflects judges’ personal preferences for some rights over others. Others -- myself generally included, though I certainly think there’s lots that’s wrong with many of the tests I mention above -- argue that different rights have different purposes, run up against different sets of government interests (and private interests), and can't all be governed by the same verbal formulation.

     But more importantly, it's simply not the case that all constitutional rights are governed by the strict scrutiny test, or that if the courts fail to apply the test to the right to bear arms (under the Second Amendment or under state constitutional provisions), they're therefore necessarily protecting the right less than it should be protected. The list above should show that this direct comparison simply doesn't work.

 
[Eugene Volokh, 2:59 PM]
Iain Murray (Edge of England's Sword) goes to the Competitive Enterprise Institute: Iain Murray -- a first-rate blogger, who has actually guest-blogged for us before -- will be joining CEI, an equally first-rate organization. (Sasha worked there for a year, and really liked it.) Iain's past employer had some serious objections to Iain's blogging, which I think was quite unfortunate; I'm happy to hear that Iain will be able to continue blogging, though might have to cut back on the volume in some measure. (Work does that to you!) Special bonus: He gets to work with the lovely Hanah Metchis, of Quare.

 
[Eugene Volokh, 2:53 PM]
Will the Supreme Court agree to hear the Silveira case? A lot of people are asking this question, which I think is very hard to answer. A few general thoughts:

1. Except in rare cases (for instance, when a federal statute is struck down, and the federal government is petitioning for review), the odds are against the Court granting cert, even when there's a disagreement among the circuits -- a so-called "circuit split" -- on the legal question (as there is here, with the Fifth Circuit finding that the Second Amendment secures an individual right, and the other circuits, including the Ninth, rejecting that view).



2. Here, the split does cut somewhat in favor of the Court agreeing to hear the case; and this is a sexy, juicy topic, which sometimes also cuts in favor. Sometimes, conventional wisdom says, the Court tries to duck the really controversial issues, but I'm not sure how true this is generally, and especially here.



3. But the Court generally prefers to hear cases when its decision about the underlying legal issue, on which there's a conflict -- here, whether the Second Amendment secures an individual right -- is likely to make a difference to the bottom-line outcome. This isn't a hard-and-fast rule, but my sense is that this is the Justices' tendency; when something really rides on the legal question, the issue becomes less abstract.
   
        The trouble is that, even if there are five votes for finding that the Second Amendment secures an individual right, I highly doubt that there'll be that many votes for finding that assault weapons bans violate this right. This is because assault weapons are actually not materially different from other semiautomatic weapons; they are neither materially more harmful, nor are they materially more beneficial. If you can't own an assault weapon, you can still buy another weapon that's just as dangerous, and also just as effective. So I think this makes assault weapons bans pointless -- but it also makes them not very burdensome.
   
        My guess is that at least some of the Justices who might be inclined to take an individual rights view of the Second Amendment would also be willing to give the government a lot of room to regulate gun ownership, so long as the government doesn't ban guns. Their view would be "Whether or not we find an individual right, the assault weapons ban is a permissible regulation, because it's not very burdensome." (Think of this as the "substantial burden" test from the right to abortion, the right to marry, the pre-Employment Division v. Smith Free Exercise Clause cases, and some other fields, as applied to the right to bear arms.) So on the one hand they might find it appealing to grant certiorari, hear the case, and decide in favor of the individual right while reaffirming that the individual right position still leaves the government considerable power. But on the other hand, they may be reluctant to decide the theoretical question (individual right vs. collective right) when nothing ends up really riding on the subject; they might, for instance, want to wait until they can consider one of the cases changing the District of Columbia gun ban, where the result probably would ride on the individual vs. collective right question.



4. One can also try to think this through by doing a head-count of the Justices, and guessing how they're likely to vote. But this is complicated by several factors:
   • Any petition for certiorari will likely be considered in early October, before the start of the next Term. If there are retirements, then the new Justices -- whose views we can't easily predict -- will have to decide the matter.
   
   
   
   • Since few of the Justices are on the record as to the Second Amendment -- Justice Scalia and Thomas have expressed some sympathy for the individual rights view, but even they aren't definite, and the other Justices have never expressed anything more than highly tangentially connected opinions on the subject -- it's hard to guess how they'd vote; and this is complicated by the fact that gun control is only partly a conservative vs. liberal issue. Many conservatives (perhaps including, for instance, Chief Justice Rehnquist) may be disposed towards leaving the government maximum flexibility in "crime control measures" such as gun bans. Some liberals (consider Judge Pregerson and Judge Gould in the Ninth Circuit) may be open towards recognizing an individual right. It's really hard to call this one.
   
   
   
   • If you're a Justice and aren't sure which way your colleagues will go, you might hesitate to vote for certiorari, for fear that they'll vote the wrong way. (When Justices are voting on the merits of a case, they generally feel obligated to vote the way they think is right on the merits; but as I understand it, votes on certiorari decisions are seen as different, and strategic voting is seen as permissible there.) So if you suspect there are three votes for the individual rights view, three for the collective rights view, and three who are uncertain, you might be reluctant to grant certiorari (and it takes four votes to grant certiorari). Much depends, of course, on whether you're more worried about the risk of reaching the wrong result or about the status quo -- and whether you think that things will be better for your position or worse for it the next time the issue comes before the Court.

So that's a long way of saying "I don't know" -- but I hope that now at least you know why I don't know.

 
[Eugene Volokh, 2:13 PM]
Great "Day by Day" cartoon today:
And I highly recommend the strip more generally.

 
[Eugene Volokh, 2:06 PM]
Interesting question about race in public schools, based on what seems to be a real practice in North Carolina:

Each month my daughters' elementary school sends home a newsletter with updates about goings-on at the school and in the school district. This month I noticed a listing of "strategies" that the school is implementing in order to meet the goals of its School Improvement Plan for 2003-2006. One of the strategies is this: "Minority students will be clustered when assigned to classrooms to reduce sense of isolation."

Query: may a public school district not under any sort of desegregation order or decree take race into account in assigning students to classrooms in order to achieve the objective of "reducing a sense of isolation?"

This is from fellow con law prof Eric Muller, and his blog links to the newsletter. I'm pretty sure the answer is "no," but the question is more interesting than my answer.

 
[Eugene Volokh, 2:01 PM]
A bit more on Bennett: Reader Ethan Preston writes:

Four quick points about Bill Bennett's situation.

1) You are right to maintain a distinction between "hypocrite" and "logically inconsistent"/"mistaken." Presuming others' good faith is a charitable habit that promotes good civic discourse. In general, arguments should be won on their merits.

2) I think the perception is this: Bennett and his ilk do not presume others' good faith and much of his powerbase are not swayed by the merits of argument in any event. (Your counterhypothetical of the anti-abortionist is not, in my experience, atypical from the reality -- the slogan "abortion is murder" is not hyperbole for many.) Thus, Bennett's influence is largely immune to civic discourse.

3) Bennett is a powerful man, and his attackers perceive his influence as negative, even ruinous. Because his followers are not susceptible to the merits of counterarguments, he is only vulnerable to foul play and character assassination. (The fact that Bennett plans to curtail his gambling indicates that he is sensitive to unreasonable objections.) In order to curtail his ruinous influence, Bennett's critics are willing to stoop to character assassination (because civic discourse doesn't work, even though it should and even though they might prefer to use civic discourse).

4) The real problem and danger for Bill is that he got caught on a Slow News Day. Bottom line? Slow News Days are bad news for good civic discourse.

I particularly like item 4.

 
[Eugene Volokh, 1:59 PM]
Zeusexuality: An anonymous reader, responding to the "zoosexuality" post from this morning, also suggests a similar term -- Zeusexuality, an orientation for having sex with Zeus, which apparently happened a good deal in ancient Greece (though the tales generally suggest that much such sex was not entirely voluntary, and thus perhaps shouldn't count as an orientation). What's more, I now realize that much Zeusexuality also constitutes zoosexuality, since Zeus would sometimes appear as a swan, a bull, and the like. Learn something new every day.

 
[Eugene Volokh, 1:51 PM]
From Judge Kleinfeld's dissent in Silveira:

The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”

Pretty harsh, but actually literally quite accurate (though note that "people's right to bear arms" seems to be a characterization, albeit an accurate one, not a direct quote -- the direct quote, I suspect, is "the Second Amendment right to “bear arms” guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons"). The original panel opinion, by the way, is here.

 
[Eugene Volokh, 1:38 PM]
Hooray! Just got the signatures -- i.e., the printed but not yet bound pages -- for my Academic Legal Writing book. Haven't found any errors so far, but I'm not really looking, since it's too late to fix them in any case; my publisher says it's being bound even as we speak. Should be available at barnesandnoble.com and amazon.com Real Soon Now, presumably in a matter of days. Naturally, I will keep all of you posted.

 
[Eugene Volokh, 11:15 AM]
I did not know that! An article in the academic journal Sexuality & Culture taught me a new term -- "zoosexuality," which is the sexual orientation corresponding to the practice of bestiality. I suppose this also means that people who engage in bestiality are therefore "zoosexuals" (doubtless pronounced "zoh-oh-sexuals," as in "zoology," rather than "zoosexuals," as in "zoo"). A quick google search reflects that I'm way behind the curve, and that lots of people are indeed apparently familiar with these terms (though "bestiality" still out-googles "zoosexuality" by a factor of ostensibly 1000:1). Learn something new every day . . . .

 
[Eugene Volokh, 11:11 AM]
Dissents in Ninth Circuit Second Amendment case: As How Appealing reports, the Ninth Circuit has denied rehearing en banc in Silveira v. Lockyer, which held that the Second Amendment doesn't secure an individual right to bear arms. Six judges, however, dissented (Republican appointees Kozinski, O'Scannlain, Kleinfeld, and T.G. Nelson, and Democratic appointees Pregerson and Gould); people have been having trouble getting the opinion from the Ninth Circuit Web site, so I've uploaded it here. More later.

UPDATE: Yup, Judge Pregerson, one of the most liberal judges on the Ninth Circuit -- and perhaps in the whole country -- dissents, saying that the Second Amendment secures an individual right. Oh, and two of the dissents cite Glenn Reynolds (that's InstaPundit to you and me), and one even cites me . . . .

 
[Eugene Volokh, 8:50 AM]
The reality of sincere disagreement: I guess that one thing that's troubling me about the Bennett matter is the assumption -- which I've particularly seen in some e-mails -- that Bennett is a hypocrite because he thinks that gambling and social drinking (behavior that he himself engages in) is fine, but that drug use is immoral.

     As I mentioned in an earlier post, he might be wrong on this distinction, but it's a distinction that's pretty firmly embedded in our law -- all 50 states allow drinking, many allow some form of gambling, none allow drug use (except medical marijuana, and the use of some drugs by prescription). Now this judgment may well be mistaken. Bennett may well be mistaken for following it. But given the reality that otherwise reasonable, decent people disagree on these subjects, it seems quite plausible that Bennett is one of those people. The term "hypocrite" ought not become a synonym for "logically inconsistent" or "mistaken" (or even "logically inconsistent or mistaken in a manner that favors his personal preferences").

     Ah, but what about the fact that Bennett's moral distinctions track his personal preferences? Isn't that evidence of hypocrisy? Well, I'm not sure that hypocrisy would be the right term for that -- but beyond that, there's an alternative explanation for this coincidence: Maybe it's Bennett's personal prefrences that track his moral distinctions. Maybe he started gambling, social drinking, and heavy eating precisely because he thought they were morally acceptable, but never got into drugs precisely because he thought they were morally wrong.

     It's like pro-life people saying "Heh, funny that you think abortion is permissible -- mighty convenient for you, given that you might want to well get an abortion [if you're a woman] or urge your girlfriend to get an abortion [if you're a man]; and yet you oppose murder (or even much more minor assaults), since you yourself might be murdered or assaulted." I suppose there are some pro-choice people who do indeed think abortion isn't immoral just because this belief is convenient for them. But there are also some pro-choice people who would be willing to get (or counsel) an abortion precisely because they think abortion isn't really immoral. Even those who believe that abortion and murder is morally indistinguishable should, I think, concede that at least some of their pro-choice opponents may be wrong, but aren't hypocrites.

     At this point, it seems to me that Bennett should be given the same benefit of the doubt. He may well sincerely believe, together with probably the majority of the country, that gambling is substantially morally different from drug use; and he may act the way he acts because of his beliefs, and not vice versa (though it's also possible, as with many human motivations, that his beliefs and actions on this are intertwined in a more complicated way). Now this might not be so. Perhaps there's some extra evidence to the contrary. But so far, most of the arguments that I've seen are at their core based on simple substantive disagreement with Bennett's moral distinctions -- and not grounds enough, I think, for some of the pejoratives that Bennett has received.

 
[Eugene Volokh, 6:09 AM]
Ask me a query, and I'll reply: In our search engine referrer logs, we see this query that brought someone to this site -- unhelpfully, as it turns out:

cottleston pie + analysis

Nope, sorry, Cottleston Pie is definitely one of those poems that we think should not be analyzed.

 
[Eugene Volokh, 5:31 AM]
Conspirator being kicked upstairs: Our coconspirator Todd Zywicki, has been named Director of the Office of Policy Planning at the Federal Trade Commission, and thus will be off the blog while he's serving. When he's done, we'll be delighted to welcome him back. Congratulations, Todd!

 
[Eugene Volokh, 12:56 AM]
Gambling and drugs: Philippe writes below:

As I understand [Bennett's] claim [which Philippe quotes], it's not a utilitarian argument that "bad" drug use creates more costs than "good" or harmless drug use creates benefits and therefore should be banned (though Bennett does makes some other utilitarian claims, too). This language, as I read it, illustrates his view that smoking marijuana, for example, is just plain "wrong". For many of us with a libertarian bent, that claim has long seemed conclusory and vacuous. But the annoyance it provokes is now greatly compounded by the revelation of Bennett's love of high-stakes gambling because it is hard to see why drug use is morally wrong if gambling is not. The utilitarian case against the two practices may be different, but I repeat that Bennett hasn't confined himself to that sort of case. The moral lines he has drawn thus appear not only disagreeable but arbitrary.

I sympathize with Philippe's substantive argument; I too don't see marijuana use as "wrong." I don't think that the lines between gambling and marijuana use are arbitrary; I think many people, for instance, believe that drug use is immoral because it involves a voluntary loss of one's rational faculties, something that gambling doesn't involve.

     But the main criticism that I've heard of Bennett isn't that he's mistaken on the moral issues (a criticism that could be made, and has been made, long before the gambling story broke, and is in any event more apt as to alcohol vs. drugs than as to gambling vs. drugs) -- rather, it's that he's a hypocrite, which is to say someone who doesn't act in accordance with his stated ideals. The question, then, isn't whether he's right about gambling being morally acceptable and drug use being morally unacceptable; it's whether he sincerely believes in this distinction.

     I can't read Bennett's mind, but at least at this point I've seen no evidence that he's hypocritical here. And I do have one piece of evidence that suggests that he might be quite sincere in his beliefs: While Philippe and I may agree that marijuana use isn't immoral, the federal government and every state in the union ban it, at the same time that many states allow many forms of gambling. Now many people who support this distinction might support it on utilitarian grounds, but I suspect that many others -- tens of millions, I'd wager -- support it on moral grounds. Rightly or wrongly, they do think that there are important lines between gambling and marijuana use. At this point, I'm quite willing to believe that Bennett shares those views.

 
[Eugene Volokh, 7:52 PM]
Donna Shalala comes through: I blogged last week that the University of Miami student government refused to recognize a proposed conservative student group because their charter supposedly overlapped too much with the Republican student group; fortunately, it looks like the university's president, Donna Shalala, has done the right thing here:

May 2, 2003

Statement from Donna E. Shalala
Recognition of Student Organizations on Campus

“Several articles have appeared in the media today regarding the University of Miami’s Committee on Student Organizations (COSO) and its decision to deny a student group recognition as an official student club. Such recognition is important because it allows student organizations access to funding, space, and other benefits through student activity fees.

“The Committee on Student Organizations is enforcing a rule that was developed years ago by others. I think it is perfectly acceptable for the Committee on Student Organizations to develop recommendations or standards for the formation of student organizations on campus. But the purpose and content of those organizations absolutely should not be subject to review.

“On the surface, the Committee on Student Organizations’ policy may sound logical and defensible, given limited resources and space, but the end result is that the policy protects existing organizations and makes it challenging for new organizations to be formed.

“I have asked the Committee on Student Organizations to implement a new policy that is consistent with the principles of free speech, academic freedom, and competition.”

“In addition, I have asked them to convene a meeting immediately to review the application for the Advocates for Conservative Thought.”

 
[Eugene Volokh, 4:47 PM]
The real scandal -- casinos or casino employees compromising their clients' privacy: Timothy Noah, in Slate's Chatterbox asks why the casinos told the press about Bennett's losses, information that is generally kept private. The speculation appears to be that the casinos either thought that Bennett and his colleagues at Empower America were after them, or more broadly just didn't like his moralizing.

     But whatever their reason, isn't their leaking to the media pretty slimy behavior? Precisely because gambling is frowned on by many people, people expect that casinos won't go to the media about their clients' habits, just as people expect that pornography sellers won't tell Newsweek who's buying their porn. Either casino management or casino employees violated this expectation; and if it was just the employees, then the employees also violated their employers' trust, since I'm told that casinos do indeed generally have fairly strong confidentiality policies.

     What's more, this behavior, unlike gambling, does pretty directly hurt people -- it breaches an implicit promise to protect their privacy. It may not be illegal (the promise may not have been definite enough to be binding), but it certainly seems unethical -- much more unethical than Bennett losing his own money (unless it turns out that Bennett had lied about the losses, either to the public or to his own family).

 
[Eugene Volokh, 3:02 PM]
France: I'm not big on France-bashing -- I disapprove of how the French government has handled matters recently, but I don't see that as a reason to boycott, rename foods, and the like. This having been said, I liked the latest joke (or is it?) coming around; author unknown:

American to Frenchman: "Do you speak German?" 

Frenchman: "No." 

American: "You're welcome."

UPDATE: Readers e-mailed me to say that Tom DeLay was quoted as using it, and may have been its author (though he isn't specifically quoted as taking authorship credit).

 
[Eugene Volokh, 1:49 PM]
Apropos Vince Foster: The OIC v. Favish certiorari grant (see below) reminded me of a bumper sticker I saw when the Foster matter first hit the news:

If Vince Foster had a gun, he'd be alive today

 
[Eugene Volokh, 1:13 PM]
More on precautions: Dan's post below about the precautionary principle reminded me of this post of mine from last August, which further illustrates the problem with the precautionary principle; I thought I'd take the liberty of reposting it -- please skip it if you've already read it.

WHAT IF THIS BRAZILIAN PEASANT WOULD HAVE PRODUCED THE MIRACLE DRUG? Some argue that it's vitally important to protect biodiversity -- and particularly various plant species -- because it's possible that the imperiled species may be important to medicine. "What if this dying species would have produced the miracle drug?" I am not an expert on biodiversity questions (though Juan is), but I've certainly heard the argument often enough, and it's certainly plausible. I've always seen it put as a matter of speculation; I haven't seen any statistics that purport to quantify this possibility. Surely, though, such speculation is not unreasonable.

     But the trouble is that, as Juan points out, protecting biodiversity isn't costless; it requires real economic sacrifices by real people. These sacrifices will leave some people poorer, and therefore on average less healthy and less educated (poverty tends to do that).

     So what if the child of a Brazilian peasant, who would have been better-educated (or would have survived a childhood disease) had his father been able to make money from clear-cutting a chunk of Brazilian forest, would have become a pharmacologist and would have invented a miracle drug, or a new cancer therapy, or some breakthrough in biological science? And what if our trying to protect biodiversity by saving plants left the child dead, sick, or uneducated, so that this great breakthrough would have been denied us?

     This is of course sheer speculation -- just like speculation that some hitherto unidentified endangered species would have produced a miracle drug. But it's plausible speculation -- certainly the genius of humans has proven helpful in producing new drugs or therapies or theories at least as often as the inherent attributes of plants has been helpful. And we know that poverty does generally inhibit education and thus people's ability to contribute to medical advances, just like killing species does inhibit the species' ability to contribute to medical advances. True, if this Brazilian peasant didn't invent the cure for cancer, someone else might have. But maybe they wouldn't have done so for years, and it isn't just one Brazilian peasant, but lots of people like him. And of course if this plant didn't yield the miracle drug, some other plant -- or some artificial process -- might have.

     Of course, one might well argue that this argument proves too much. Wouldn't it then be an argument against contraception (at least by those wealthy enough to raise educated children), since any unconceived child might have grown up to be an Einstein? On the other hand, maybe the child would have grown up to be a Hitler. That way lies madness, one can say -- one can't block otherwise valuable policies (such as protecting biodiversity) based on sheer speculation that maybe they would deny us some completely unknowable future advance.

     But if that's so, then where does that leave the pro-biodiversity argument, which urges us to block otherwise valuable policies (such as economic development by the harvesting of natural resources and turning forest into arable land, something that Europeans and Americans did plenty of, and that was certainly valuable to our advancement) based on sheer speculation that maybe they would deny us some completely unknowable future advance.

     So the bottom line, it seems to me, is that this particular argument for protecting biodiversity ("What if this dying species would have produced this miracle drug?") has some pretty distinct limits, especially when it demands real sacrifices that translate not just into poorer lives for people, but into less education and thus less advancement for the world as a whole. Precautionary principles sound like a good way of avoiding unknown risks, but the difficulty arises when there are unknown risks in both directions.

 
[Eugene Volokh, 11:59 AM]
If you want me to read a blogpost or Web page you or someone else wrote, please include its text within the message. Yes, it doesn't take that long to just click on a link; but it does take some time, when aggregate over the dozens of such messages I get a day, and it takes especially long if I'm working from home. Including the text dramatically increases the chance that I'll actually look at the text.

 
[Eugene Volokh, 11:33 AM]
Where are they now? According to the AP,

The plaintiff in a landmark 1964 U.S. Supreme Court ruling on a suspect's right to a lawyer has been convicted in a 20-year-old murder case.

A Cook County jury on Wednesday deliberated for about an hour before finding Daniel Escobedo guilty of killing shopkeeper Ki Hwan Kim with an ice pick in 1983. The 65-year-old Escobedo now faces a possible sentence of natural life in prison. . . .

Escobedo was the plaintiff in the landmark Supreme Court ruling in Escobedo v. Illinois, in which the high court threw out Escobedo's conviction in the slaying of his brother-in-law, finding that Chicago police had violated his constitutional rights by denying his repeated requests for a lawyer.

The ruling was later expanded in the case Miranda vs. Arizona . . . .

In the years following the ruling, Escobedo was arrested roughly 25 times for offenses ranging from attempted murder and indecent liberties with a minor to felony possession of firearms. He was released from prison in 1978 after serving 22 years on a drug conviction.

Thanks to Goldstein & Howe's SCOTUSBlog for the pointer.

 
[Eugene Volokh, 11:01 AM]
The Vince Foster controversy (remember that?) is reaching the Supreme Court, though in a highly attenuated context: Whether the Freedom of Information Act requires the Office of Independent Counsel to turn over certain photos of Foster's dead body, or whether that's exempted under FOIA's privacy exemption. This in turn raises, among other issues, the question whether (to quote the Ninth Circuit opinion) "the personal privacy in the statutory exemption extends to the memory of the deceased held by those tied closely to the deceased by blood or love and therefore that the expectable invasion of their privacy caused by the release of records made for law enforcement must be balanced against the public purpose to be served
by disclosure." The case is Office of Independent Counsel v. Favish.

 
[Eugene Volokh, 10:30 AM]
Bill Bennett and gambling: People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years. (UPDATE: Several people suggested the $8 million might be gross losses, without any offset for winnings; I checked several press accounts, and they've generally said that he's lost over $8 million over the last decade, which in normal parlance means net losses. The Newsweek article, for instance, says "Some casino estimates put his total losses over the past decade at more than $8 million." Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this, so it's possible that the reported losses don't include winnings. See here for the New York Times account, which reflects this uncertainty.)

     I find myself being of two minds about this, though ultimately I think I side with Bennett's defenders. I've never liked gambling, and I'm particularly appalled at the dangerous loss of self-control that problem gambling (though not all gambling) involves. And losing $8 million over ten years, or even risking that much and losing an appreciable fraction, does sound pathological -- the sort of thing that ruins people's lives, and for virtually no benefit.

     On the other hand, lots of rich people spend huge amounts of money on hobbies, both hobbies that offer virtually no prospect of financial payback (e.g., high-level yacht racing) and hobbies where the payback is extremely unlikely, and where the person is clearly doing it for the fun and not as a calculated investment (e.g., many owners of horses or baseball teams). I don't know how much money Bennett has, but if he has enough, losing $800,000/year (or perhaps less, depending on how one reads the accounts) stops looking like a problem and starts looking like a hobby. He may even get $800,000/year worth of pleasure out of the activity; I actually find the idea of getting so much pleasure out of that to be a bit icky, but that may be just me: I'm not a risk-seeker, and I know many people are. And while it's certainly possible that this really reflects a lack of willpower on his part (he really wants to quit, but he can't bring himself to do it, much like I really want to write that damned article of mine, but I'm procrastinating by reading science fiction books and writing blog posts), it's hard to tell; the value of the $800,000/year to him may not be that great. Much depends on his wealth and yearly income -- have there been any published accounts of that, other than that he's fairly wealthy?

     So the "he's ruining his life" and "he's showing a lack of character" arguments seem to be not very strong, at least absent more evidence. How about the "many people ruin their lives gambling, and he's setting a bad example" argument? I'm pretty skeptical about that. As I think Bennett mentioned, he doesn't object to people doing things in moderation -- the example he gives, I think, is drinking -- even though others do them to excess. Given that moderation in gambling should be (as I argue above) judged relative to one's means and not by an absolute standard, he may well be just gambling moderately here. He would thus be behaving properly by his lights, and by the standards that he aims to teach. I don't think he has a responsibility to do more than that, by refraining from behavior that is indeed proper for him, especially since as an empirical matter I think it's highly unlikely that people will say "Sure, I'll gamble away my inheritance; after all, my moral hero Bill Bennett gambles away a lot of money, too."

     Ah, some have said, but Empower America -- Bennett's organization -- has spoken out against legalized gambling. Here, too, I think the argument doesn't quite work, unless Empower America has based this on the assertion that gambling is per se wrong. Policy arguments often turn on different considerations than purely moral ones. If the drinking age in a state is 18, a 20-year-old can sensibly support lifting the age to 21, even if he drinks, and drinks responsibly; though his drinking may not be wrong, he may conclude that enough other 20-year-olds abuse alcohol that raising the drinking age would be socially beneficial. Likewise, a social drinker may sensibly say "I don't do bad things when I drink, but enough other people do that I think drinking should be banned. When the ban takes place, I will abide by it, because I respect the law, but until then, I won't voluntarily cease drinking, because it's not my drinking that's causing the harms." That may be both consistent with the speaker's moral theory (drinking isn't inherently immoral, if done in moderation) and with his public policy theory (drinking by some people is harmful, so drinking should generally be banned.)

     So while the fact that some people drink/gamble/use drugs to excess isn't a moral argument that you shouldn't do this, it may be a policy argument that the conduct should be banned. (I set aside the libertarian question of whether it violates people's rights to ban it, and the pragmatic question of whether banning it does more harm than good, since those are not the nature of the criticism of Bennett, as I understand it.) Certainly if Bennett argued that gambling should be illegal, and did it when it was illegal, he could be properly faulted for it. But I've heard no argument that this is in fact what he's done.

     What about Bennett's taking some steps (though, as I understand it, not heroic steps) trying to hide his gambling? Isn't that wrong? Well, if he covered his tracks by lies or crimes, it would be. But if he simply tried to keep this confidential, I don't think that's particularly troubling. Even writers on moral issues are entitled to try to keep their behavior private, if they do so without using improper means (e.g., lies or crimes), and especially if the behavior is itself not immoral. (Of course, if it turns out that he has lost a net of $8 million over a decade, his statement that “Over 10 years, I’d say I’ve come out pretty close to even” would be false, and could be faulted on those grounds.)

     Finally, there's the old "bad judgment" argument: Even if what Bennett did wasn't wrong, it shows bad judgment, precisely because he must have known that it would come out, and that it would weaken his moral standing (whether for good reasons or bad). I've always been rather troubled by these arguments. Sure, if I were advising Bennett on what to do, I'd tell him to keep away from the slots. But even people who want to write about moral themes have their own interests and desires. They can't be expected to live their lives solely with an eye towards minimizing controversy that might undermine their moral message. Sometimes -- again, if their behavior isn't otherwise immoral -- they're entitled to say "Look, I enjoy doing this, and if this means that some people will turn against me and my ideas when they come out, that's a price I'm willing to pay." So while the criticisms of Bennett are predictable, it doesn't mean that they're proper.

     But of course these are all generalities. If Bennett had in the past written that gambling is evil -- not just dangerous, but immoral -- then it would be proper to ask "So, do you really think it's immoral or don't you?" So far, though, the arguments that I've heard have generally not focused on such specific writings of his, but more on the generality that "people who try to teach morality" (or perhaps just who try to teach a certain sort of morality) "shouldn't gamble like this." At this point, while I share the distaste that many people have for this sort of high-stakes gambling, I don't think this anti-Bennett argument is persuasive enough.

 
[Eugene Volokh, 10:01 AM]
Word puzzle: The prefix "in-" often means "not" -- e.g., "inflexible." Find two words that retain the same meaning (or very nearly the same meaning) when you add the prefix "in-" to them; and, if you want a harder problem, find three. Don't e-mail in the answers; they are given here.

 
[Eugene Volokh, 9:35 AM]
"Free speech for me, but not for thee": The Boston Phoenix reports on a brief filed in the Nike v. Kasky that argues that corporations shouldn't have free speech rights. For a detailed explanation of why I don't buy this argument, see this blog post from last year. For now, let me note one problem: Under the logic of the brief, which argues that the First Amendment doesn't apply to "business corporations," newspapers, magazines, movie studios, and the like (the overwhelming majority of which are organized as corporations, and probably have to be so organized in order to effectively raise money from investors) wouldn't have First Amendment rights, either.

     The government would be able to punish a newspaper for publishing allegedly "misleading" material -- or for that matter, nonmisleading material, since the brief argues that corporations should generally lack free speech rights. Careful when you strip away others' rights, folks; you may lose more than you bargained for.

     (The only conceivable protection for newspapers -- and here I'm inferring from what the brief says, since it studiously avoids the media corporation question -- would come from the theory that "Corporations are entitled only to those constitutional protections that are necessary to effectuate their purpose for existence," and that broad free speech rights are necessary to newspapers but not other businesses. But it's far from clear that this statement would indeed protect newspapers: Broad free speech rights are not strictly necessary for newspapers to function; newspapers could function with much less protection, including perhaps just that protection that the legislature chooses to give them. Newspapers certainly exist in England, where they get only the protection that Parliament chooses to provide; they may be less willing to make certain statements than in the U.S., but their existence disproves the assertion that broad constitutional protection, enforceable by judges, is "necessary to effectuate their purpose for existence." And if one reads "necessary" to simply mean "helpful," then surely a corporation's ability to defend its practices against public criticism would be "necessary" for it as well.)

 
[Eugene Volokh, 8:16 AM]
I blame Sean McMullen for the further delay on the article draft that I'm supposed to be writing. McMullen's Voyage of the Shadowmoon, which I just finished reading, is top-notch. The last couple of chapters are a bit weak, but the rest is very good indeed. I highly recommend it. (McMullen is also the author of Souls in the Great Machine, which I recommended a couple of weeks back, and which prompted me to buy Voyage of the Shadowmoon; the two are set in very different worlds, but they share the same style and verve.)

 
[Eugene Volokh, 7:03 AM]
More on speaking up for fundamentalists: [I wanted to add quite a bit of new material to this post from Friday afternoon, so I thought I'd report the original post, together with the new material, which starts with "FURTHER UPDATE." All the material before "FURTHER UPDATE" is a copy of the Friday post.]

     Bo Cowgill points to my Jews-and-sex post and writes:

Eugene Volokh finds a study suggesting that Jews have more sex. Yet another reason for fundamentalists of all breeds to hate them, I suppose . . . .

     I'm surely no fundamentalist myself, but I don't think this criticism of fundamentalism is quite right. To my knowledge, groups that are generally identified as fundamentalist Christians are generally not particularly likely to be anti-Semitic; in fact, as I understand it, many of them are fairly staunch supporters of Israel. (Yes, one can oppose Israel and not hate Jews, but it's not terribly likely -- though I agree that it's theoretically possible -- that one would support Israel and hate Jews.) True, many fundamentalists believe that Jews cannot be saved if they don't accept Jesus, but that's because they believe that no-one can be saved unless they accept Jesus; and they don't hate Jews because of it.

     Fundamentalists get a lot of grief; some of it may be deserved, but quite a bit, in my experience, has been undeserved. It seems to me that people ought not make erroneous generalizations either about Jews or about fundamentalists.

UPDATE: Reader John Thacker points to this Anti-Defamation League article that supports my factual assertion -- Evangelical Protestants (which generally refers to what many people would call fundamentalist Christians) are not particularly anti-Semitic.

FURTHER UPDATE: Bo Cowgill faults the ADL article for not citing the details of the polls on which it relies; but I quoted it not because of the polls, but because of the source. When Abraham Foxman of the ADL -- an organization that specializes in investigating and fighting anti-Semitism -- says that a group isn't particularly anti-Semitic, that's pretty significant (though of course not dispositive) evidence in favor of my factual assertion. (Yes, Foxman is also defending a group with which the ADL has been making common cause; but the very fact that the ADL has allied itself with the group suggests that the group probably isn't particularly anti-Semitic.)

     To his credit, Cowgill does at least in some measure withdraw his claim -- while he's not sure about the factual issue, he "concede[s] that the Christian right may not be the [cabal of anti-Semitism] that other fundamentalist groups are." This is a pretty big concession, since presumably Jewish fundamentalist groups aren't anti-Semitic; I've heard no evidence that, say, Hindu or Buddhist fundamentalist groups (whatever that might mean) are anti-Semitic; I know of no evidence that Christian non-right fundamentalists are anti-Semitic; so ultimately, with the concession, the entire assertion (both his original one, about how "fundamentalists of all breeds" hate Jews, and the new one, about "other fundamentalist groups") must presumably refer just to Moslem fundamentalist groups.

     But in any event, I think that it would be better if people were a bit more careful about making broad and not really well-supported pejorative generalizations about religious groups (whether Christian fundamentalists or fundamentalists generally). I take it that if someone found a (purely hypothetical) study showing that fundamentalists have (say) more stable marriages, and then commented that this is "Yet another reason for Jews to hate them, I suppose," we wouldn't think highly of that assertion. Likewise, I think, when the labels are reversed.

FURTHEST UPDATE: Bo Cowgill graciously retracts his earlier assertions; and I apologize if I got a bit too testy about this subject. Bo's original statement was an offhanded gag, and I might have taken it too seriously, though it did echo some quite serious statements that I'd heard in the past, and that I thought deserved a response.

 
[Eugene Volokh, 6:54 AM]
Roomba: So I scattered about 4 pounds of baking soda on my study carpet one day last week, and ran the Roomba. Result: Probably about 80%-90% of the soda got cleaned up. Possible unfairness to the Roomba: 4 pounds is a lot, probably more than the Roomba would normally be called on to suck up, and the dust container was nearly full.

     Then I reran the Roomba the next day. Result: Probably about 80-90% of the remaining soda got cleaned up, leaving some in the corners, and a few spots where the Roomba apparently just hadn't gone. Also, one more problem: The Roomba sometimes get jammed on wires and such, so sometimes I would start it in the morning and then come back to find that it hadn't gotten much of the way through the room.

     So the tentative bottom line: It appears that one pass with a Roomba is probably considerably less efficient than one pass with a manual vacuum cleaner (and of course there's the likelihood that the manual vacuum will provide deeper cleaning, as well as cover the whole area; haven't tested that), though the Roomba covers the ground more effectively than I thought it would, and it may actually be more efficient than sufficiently sloppy human vacuumers like me. But of course the theory behind the Roomba is that you wouldn't use it the same number of times that you use a vacuum cleaner; rather, you'd use it more often, since you can just plug it in and then leave. So if you Roomba a room 2 or 3 times a week, you'll probably get a better result than vacuuming once a week, or even more rarely. (Of course, it's probably better still if you both Roomba and manually vacuum, but it would also be better if you ate better and got more exercise, too, and you're not doing that, are you?)

     What am I going to do? I think I'll keep my Roomba, and run it every couple of days in various rooms, especially our bedroom. Just seeing all that gunk that the Roomba sucked up into the gunk container made me feel that I ought to vacuum more often. That might well be an error; maybe that gunk isn't hurting me, and maybe the Roomba is just making me Define Cleanliness Up, but I figure that cleanliness is as close to godliness as I get, so I might as well get a bit cleaner. What's more, my wife and I will be visiting in Boston for four months this Fall, and we probably won't have a weekly housekeeper visit there, so the Roomba will come in really handy then. For $200 minus the 20% Bed, Bath & Beyond discount coupon we got, plus the sales tax, I think it's worth it.

 
[Eugene Volokh, 5:53 AM]
Another reason phone-in polls are unreliable -- the British royal family may be trying to throw off the vote. No, that's not a Lyndon LaRouche theory; it's from The Sunday Mirror:

According to royal biographer Ingrid Seward . . ., [Prince William] shows all the signs of being tired with his royal role already. She says one of his most vivid childhood memories is of Diana voting 250 times in a TV phone-in poll for the abolition of the monarchy. And when the show asked whether William should take the throne instead of Charles, it was William's turn to pick up the phone -- he dialled the "No" number again and again.