[Eugene Volokh, 5:45 PM]
Apology in the Duvshani matter: A reader pointed me to this Little Green Footballs item:

When Israeli Amit Duvshani applied to Oxford for a doctoral position, he received the following reply from Andrew Wilkie, Nuffield Professor of Pathology at the Weatherall Institute of Molecular Medicine (Hat tip: Naomi Ragen):

--------------------

From: "Andrew Wilkie" . . .
To: "Amit Duvshani"
Sent: Monday, June 23, 2003 9:58 AM
Subject: Re: PhD application

Dear Amit Duvshani,

Thank you for contacting me, but I don't think this would work. I have a huge problem with the way that the Israelis take the moral high ground from their appalling treatment in the Holocaust, and then inflict gross human rights abuses on the Palestinians because they (the Palestinians) wish to live in their own country.

I am sure that you are perfectly nice at a personal level, but no way would I take on somebody who had served in the Israeli army. As you may be aware, I am not the only UK scientist with these views but I'm sure you will find another suitable lab if you look around.

Yours sincerely,
Andrew Wilkie
. . .

The heading was "Antisemitism at Oxford," and while I'm not sure that it was quite anti-semitism, but it certainly seemed like bigotry, hatred of people (Israelis even if not Jews) because of what their government does. Moreover, it seemed like an odd way for a university official to make decisions about what his department should do.

     I e-mailed Dr. Wilkie to confirm that his e-mail was indeed correct, and he promptly replied, saying "I am sorry and I apologise for these remarks," and enclosing the text of an Oxford statement:

27 June 2003

Comments by Professor Andrew Wilkie

A spokesperson for the University of Oxford said:

"Our staff may hold strongly felt personal opinions. Freedom of expression is a fundamental tenet of University life, but under no circumstances are we prepared to accept or condone conduct that appears to, or does, discriminate against anyone on grounds of ethnicity or nationality, whether directly or indirectly. This candidate is entitled to submit an application and to have it dealt with fairly according to our normal criteria.

"Professor Wilkie has issued a personal apology regarding remarks he made by e mail to an applicant for a research degree in Oxford. An immediate and thorough investigation of this matter is now being carried out in accordance with the University's procedures and a report will be presented to the Vice-Chancellor next week"

Note to editors:

The full text of Professor Wilkie's apology is:

"I recognise and apologise for any distress caused by my email of 23 June and the wholly inappropriate expression of my personal opinions in that document. I was not speaking on behalf of Oxford University or any of its constituent parts. I entirely accept the University of Oxford's Equal Opportunities and Race Equality policies"

In any case, make of this affair what you will -- just thought I'd pass along the information.

 
[Eugene Volokh, 5:10 PM]
"Politics . . . is Hollywood for ugly people" (told to me by my friend and former Hill staffer Victoria Ayer, original author unknown).

 
[Eugene Volokh, 4:44 PM]
Good copyright-skeptical piece on Slate, which argues that nonliteral copying of books should generally be permitted, at least internationally (that's an oversimplification, but I think I'm doing the theory justice). Not so good if you think authors have a moral right to control works that build on their own, but pretty plausible if you primarily think of copyright as a means of stimulating the creation of new works. I'm not sure that I fully endorse the theory in its maximum breadth -- for instance, if you apply it to domestic copying (and its logic does apply there), would it follow that authors could no longer own the movie rights in their books? That might indeed substantially diminish the incentive to create, in at least some situations. But the general proposal seems worth considering, though it will be politically very hard to implement.

 
[Eugene Volokh, 3:52 PM]
Justice Thomas: Here's an e-mail that I got from a reader, in response to my piece defending Justice Thomas:

Your article was a very informative one and one I mostly agree with however there still is this nagging question which I do not understand regarding Judge Thomas. Why doesn't he start making decisions on his own? Instead he follows Scalia's decisions around like a puppy dog. Thomas is really setting himself up for a fall here. His respect level is low I think because of that fact more than anything else. He's got this great platform to make decisions and affect people and what does he do? Well usually he does not write an opinion. Instead he just votes and lets Scalia do it. He deserves what he gets in my opinion. He's got to start stepping up to the plate like the other justices and start earning his money. Whether I agree with his decisions or not is irrelevent- he has got to start thinking on his own and do some work. Why doesn't somebody start making an issue about that instead of his race?

I mention this in part because I've heard this before.

     What I'm curious about is what possible evidence the reader has for his assertion that Justice Thomas isn't "Making decisions on his own," "thinking on his own," "do[ing] some work," or "earning his money," but "[i]nstead . . . follows Scalia's decisions around like a puppy dog."

     If the evidence is that Thomas "usually does not write an opinion," that's simply false. I just did a LEXIS query starting with the 1997 Term (just to give the man a full 5 terms in which to get used to the job), and found that Thomas wrote 99 separate concurrences and dissents (I searched for CONCURBY(THOMAS) OR DISSENTBY(THOMAS)), and Scalia wrote 117. By way of further comparison, Kennedy wrote 57, but maybe that's because he was in the majority more often. (I didn't count majority opinions because they are generally assigned by the most senior Justice in the majority [with the Chief Justice always having seniority], not voluntarily chosen.) Naturally my correspondent probably didn't have access to this research tool, and thus couldn't see his claim was wrong -- but he apparently heard something about this, enough to be willing to just assume that Thomas "usually does not write an opinion."

     Some people, I suppose, will say "Well, Justice Thomas doesn't ask any questions at oral argument." And the rule that all smart, hardworking Justices must ask questions at oral argument is written exactly where?

     So I continue to be puzzled: Exactly why do some critics of Justice Thomas simply assume that Justice Scalia is somehow leading him around by the nose? Might it not be the case that Justice Thomas writes what he writes and believes what he believes because, well, he's thought this through and come to his own conclusions (though of course after reading the briefs and his colleagues' opinions)? Or is there some obvious reason why that can't possibly be so?

 
[Eugene Volokh, 11:39 AM]
Supreme Court refuses to hear Nuremberg Files case: I predicted that if that happened, there would be a published dissent from this decision by Justices Scalia, Thomas, or Kennedy. These Justices have in the past complained that the courts were applying harsher rules to anti-abortion speech than to other speech; I didn't think this complaint was solidly proven in past cases, but I do think it could quite properly be made here. Still, I was mistaken yet again (it hasn't been a good year for me and Supreme Court predictions). I still stick by my earlier substantive analysis -- the case is hard to meaningfully distinguish from NAACP v. Claiborne Hardware (1982) -- but either the Justices disagreed with me, or they thought that for some other reason the case wasn't worth their time.

 
[Eugene Volokh, 11:26 AM]
"Today's Missing Palindromic Headline": "Strom Morts," suggests reader Jonathan Falk. ("OK, it's not quite English, but it's damn close.")

 
[Eugene Volokh, 11:25 AM]
Clarence Thomas and race preferences: I'm guest blogging at Glenn Reynolds's MSNBC blog (not instapundit) today and a couple of times next week. Here's the start of my first post, from this Morning:

Lots of people have criticized Justice Clarence Thomas’ anti-race-preferences opinion (from Monday’s Grutter v. Bollinger decision concerning the University of Michigan Law School’s admissions policy), on the grounds that there’s reason to think that he has benefited from some such preferences. Maureen Dowd in The New York Times has a particularly intemperate expression of this view: “It’s impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.”

The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking.

But beyond this, I wonder how far these critics would take their criticism. In the 1970s, the Supreme Court held that sex discrimination was unconstitutional. The justices who voted for this position had spent their lives in a nation in which women were largely excluded from the legal profession. Those men may well have benefited from this exclusion — when half the population is out of the competition, the competition is easier. Maybe if men hadn’t gotten preferences, some of those justices wouldn’t have made it onto the high court.

Should Justices Brennan, Marshall, and the others have said “Oh, we benefited from sex discrimination, so it would be ungrateful for us to now hold that sex discrimination is unconstitutional”? Or should they have resigned en masse, in shame at having gotten this benefit that they realized was improper? Should people have berated them for having gotten the advantage of preferences for males, and then denying future generations of men the same advantage (“pull[ing] up the ladder after [themselves]”)? . . .

It goes on, with more examples and some broader conclusions -- just go here to read the rest. By the way, I noticed after writing the post that Dowdslayer Josh Chafetz (OxBlog) had made a similar point yesterday morning, though using a different example.

 
[Eugene Volokh, 10:22 AM]
More on sets (see post below): UCLA Law School student Nick Morgan points out:

The last one to get ahold of the set of all sets that are not self-members was, I believe, Meinong (the metaphysician who thought non-existent things existed, like square circles). What happened? My theory: he belonged to the set of all wacky metaphysicians who think non-existent things can exist (which is not a self-member set), and by virtue of his membership in Russell's paradoxical set, ceased to exist. At least it was a less painful demise than other philosophers, like Socrates, must have suffered.

But hey, definitely let us know if you find a square circle on Amazon or something.

 
[Eugene Volokh, 7:54 AM]
Uninformative statistics: Bloomberg.com has the following headline:

Prosecutor Misconduct Is Found in 18% of Appeals, Study Says

Sounds pretty bad; fortunately, the opening paragraph makes a more modest claim:

State and local prosecutors are cited by judges for misconduct in 18 percent of criminal cases in which such charges are made by defendants, a study says.

Now that's much better -- presumably this represents much less than 18% of all appeals, which is what the headline might suggest. And it's really not that big a deal that the headline is a bit misleading; headlines are necessarily incomplete, since you can't really do justice to most things in 10 words.

     No, the problem here isn't with the headline: It's with the percentage itself, which measures something that's just not very interesting. After all, the fraction of prosecutorial misconduct allegations that result in a judicial finding of misconduct tells us little about the behavior of prosecutors, and much more about the behavior of defense lawyers: The key variable here is the willingness of defense lawyers to make these allegations. If defense lawyers become more selective in the allegations they make, the number will go up, and if they become less selective, the number will go down, all with no change in the amount of actual prosecutorial misconduct.

     The really interesting number would be the fraction of all prosecutions that involve some prosecutorial misconduct, but unfortunately the study's design (for understandable reasons) doesn't yield that. So we've got the 18% figure, which may sound high or may sound low, but which really doesn't much capture the problem. The more relevant number is probably the absolute count, which is 2000 convictions reversed since 1970, or a bit over 60 per year nationwide, though that doubtless substantially understates the problem since not all prosecutorial misconduct is appealed or even unearthed by the defendants, and not all decisions finding such misconduct would have been accessible to the researchers.

     By the way, the Bloomberg.com account also doesn't quite capture the study's findings: The 18% covers misconduct that actually led to reversed convictions, and doesn't count misconduct that was dismissed as harmless error (the study says, quite plausibly, that "In thousands more [cases], judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called 'harmless error'").

     Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 6:31 AM]
Sets: Thanks to all the readers who suggested chemistry sets, in response to my recent post. This leads me to ask: Can anyone suggest any cool optics sets? I'm just making up the term, and I'm not sure they exist as separate products, but I assume they must -- I'm thinking a prism, a laser pointer, stuff to show interference and diffraction and this and that, plus a cool guide book. Yes, I know, one can do it oneself, if one knows what one is doing; but I don't really know, so if there's a prepackaged optics set that's good for this, I'd love to hear it.

     Oh, and while we're on sets, I'd love to get my hands on the set of all sets that do not contain themselves. I hear that's really cool, and also has lots of really cool stuff inside it (though it's apparently not clear whether one particularly interesting item is included -- maybe you have to pay extra for it).

 
[Eugene Volokh, 3:32 PM]
Retirement: Kathryn Lopez at National Review Online passes along the following:

NRDC intern James Justin Wilson was hanging around the Court this morning. After the five decisions of the day were issued, Chief Justice Rehnquist paused and said (paraphrasing): I'd like to announce the retirement . . . [SILENCE FILLS THE CROWD] of the Court librarian.

Nice.

 
[Eugene Volokh, 2:44 PM]
Gays in the military: Phil Carter has a good brief analysis of what Lawrence may mean for the restriction on gays in the military.

 
[Eugene Volokh, 2:36 PM]
Interesting possible fallout of the Lawrence case: King Tower (his real name) writes:

As it happens, I have a current court case that may quickly test the applicability of the reasoning in Lawrence to both Virginia's adultery and lewd and lascivious cohabitation statutes.

First, some background: In the mid-1990's, the Virginia Supreme Court extended the tort of wrongful discharge in violation of Virginia's public policy to all of the employment discrimination bases set forth in the Virginia Human Rights Act (race, sex, age, etc.) The General Assembly reacted by statutorily abrogating common law claims based upon the VHRA's public policies. Subsequently, a creative plaintiff's attorney, whose client had allegedly been discharged after refusing to have sex with her boss, filed a wrongful discharge claim based, not upon the VHRA, but upon the public policies underlying Virginia's fornication and lewd and lascivious cohabitation statutes (i.e., the plaintiff was dicharged for refusing to engage in such criminal conduct). The Virginia Supreme Court allowed this -- the case is Mitchem v. Counts.

When I recently received a complaint alleging a Mitchem-style claim against my client, I filed a Demurrer (our name for a motion to dismiss) asserting that the two statutes cited by the plaintiff as the basis for her public policy claim -- adultery and lewd and lascivious cohabitation -- were unconstitutional. Believe it or not, the hearing was scheduled for tomorrow. The plaintiff''s attorney (who, of course, cited Bowers v. Hardwick as the law of the land in her brief) and I have now agreed to postpone the hearing to brief the effect of Lawrence. Even with the delay, we should have a ruling in the next month or two.

As for the merits, it seems clear that criminal penalties for lewd and lascivious cohabitation (basically, living together) are directly prohibited by Lawrence. So the question is whether, to the point you make, there is anything about adultery that is distinguishable. For my part, I think the state could still regulate marriage and impose civil consequences for adultery, but imprisoning someone (theoretically, of course, as the statute is never enforced) for a private consensual sexual act seems to cross the new line. In any event, we may know sooner than you expected, at least in Virginia.

Needless to say, this case isn't by any means directly dictated by Lawrence -- but the lawyer's job is to argue by analogy even when the analogy is imperfect. It will be interesting to see if Lawrence carries any weight here.

 
[Eugene Volokh, 2:21 PM]
Justice Scalia on gay marriage: In today's Lawrence decision, Justice O'Connor refuses a general right to sexual autonomy, but concludes that banning only homosexual sodomy violates the Equal Protection Clause -- there's just no rational basis for such discrimination besides "a . . . desire to harm a politically unpopular group," she says. What about gay marriage, one might ask her? She anticipates this, by suggesting that "preserving the traditional institution of marriage" is a "legitimate state interest." "Unlike the moral disapproval of same-sex relations -- the asserted state interest in this case -- other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

     Justice Scalia derides this -- "[Justice O'Connor's reasoning] leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples," because "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples" (emphasis in original). But wait: Isn't that the usual argument of those who criticize the heterosexual-only marriage rule?

     After all, if that's the only reason for disallowing gay marriages (and Justice Scalia's argument rests on this indeed being the only reason), then presumably people who don't much mind homosexuality should gladly vote for allowing gay marriages. Likewise, once a state provides domestic partnership for gay couples, which presumably reflects at least moral neutrality, rather than moral disapproval, then there'd be no logical reason against going on to allowing gay marriage.

     That's why many defenders of traditional marriage stress that one can support "the traditional institution of marriage" for reasons other than moral disapproval of same-sex couples. "Even if you don't disapprove of homosexuality as such -- even if some of your friends, whom you hold in high esteem, are homosexual -- you should still support this traditional institution," they say. "The heterosexual-only marriage rule is based on a Burkean desire not to rashly modify the nature of our most fundamental institutions, or the need to maintain marriage as an institution that's consistent with our society's religious heritage, or the desire to label heterosexual marriage as something of which we specially approve, even if we don't disapprove of alternatives (whether homosexuality or singlehood)."

     If people really accept Justice Scalia's view -- that if you don't morally disapprove of gay couples, there's just no rational basis for you to support heterosexual-only marriage -- then the pro-gay-marriage movement should become a lot more popular.

     (Note, incidentally, that unlike with some other posts below, I'm not saying that this decision suggests that gay marriage is a constitutional right -- it doesn't. I'm only commenting on Justice Scalia's claim that the only foundation for supporting heterosexual-only marriage is moral disapproval of same-sex couples.)

 
[Eugene Volokh, 12:08 PM]
Obscenity laws: Some have argued that pornography shouldn't be really treated as "speech" for First Amendment purposes, but as a sexual aid. I don't quite agree, because I think pornographic pictures, like other pictures, should be treated as "speech" -- but certainly pornography is also a sexual aid. What's more, pornography is something that people use not just for masturbation, but also as part of their sexual relationships with their partners.

     Given that Lawrence v. Texas recognizes a constitutional right to choose with whom one wants to have sex, and how one wants to do it (e.g., I take it that a ban on anal sex would be forbidden by Lawrence, even though people could still have sex in other ways), would it also include the right to have sex using obscene pornography (which the Court has held isn't protected by the First Amendment) as well as with sex toys? It seems to me the answer might well be yes; and the supposed indirect long-term "moral rot" sorts of harms that obscenity and sex toys (I set aside child pornography, where the harms are more direct) seem to me not to be adequate, under the Court's decision, to justify these laws.

     I do think some distinctions are possible. First, one might say that private use of obscenity and sex toys should be protected, but distribution should not be; but I'm not sure that works, any more than it would work to say that people can use contraceptives and get abortions, but people can't distribute contraceptives or perform abortions. (The Court has held that the First Amendment protects private possession of obscenity but not distribution -- and for that matter not even private transportation of the obscenity while one is traveling -- but that's really something of an accident of First Amendment history.)

     Second, and much more plausibly, one could say that sexual conduct among two humans is protected because of its potential to foster a richer interpersonal relationship, and that though sex toys and obscene pornography can be used by two people, (a) they're usually used solo, and (b) they're not central to the interpersonal relationship the same way that more direct sexual practices are. I think a court might well take this view (this, incidentally, is what would distinguish bestiality); but I'm not sure. Among other things, these things may not be central to your or my relationships with our respective spouses or lovers, but what if for some people they are so central, because they find them to be physically or psychologically necessary? (After all, anal sex isn't central to most heterosexuals' sex lives, but for some percentage of the population -- gays, and perhaps even some straights -- it might indeed be so.)

     As with consensual adult incest, I don't think that even obscene pornography should be banned (I actually think that it should be protected under the First Amendment, at least because any definition of such material will be vague enough to deter some protected speech, at least if obscenity laws were seriously enforced), and I don't think that sex toys should be banned, as they are in some states. I'm just observing the possible scope of Lawrence, not condemning it.

 
[Eugene Volokh, 11:52 AM]
Parades of horribles: A thought apropos Justice Scalia's dissent in Lawrence v. Texas: When constructing a parade of horribles, the possibility that "state laws against . . . masturbation" (pp. 5-6 of Scalia's dissent) would be "called into question" isn't a terribly persuasive float.

 
[Eugene Volokh, 10:59 AM]
Consensual adult incest and homosexuality: Tyler is of course correct that consensual adult incest is different from consensual adult homosexuality in certain ways; and Philippe is correct that the Supreme Court might distinguish them in the future.

     Nonetheless, I stick by my point that I don't think the Court is likely to distinguish them in the future. The Court had an opportunity to distinguish them today, as it distinguished prostitution, statutory rape, and so on; it didn't. And the reasoning that it gave was quite broad, broadly focused on people's liberty to engage in sexual activity with whomever and however they thought was right. Like many rights (free speech, criminal procedure rights, right to have children, and so on), this is a right that may well apply -- and I think likely will apply -- even when it may potentially cause some nontrivial externalities. Certainly the right to have children, which the Court has long recognized under the same rubric that it uses here, has huge effects on society, but it's protected nonetheless. I doubt that the Court will buy arguments for criminalizing fully consensual incest, bigamy, polygamy, and adultery based just on these sorts of general and indirect (even if plausible) harms.

     Of course, we won't know for sure until the courts confront this; and it may be quite a while before they do, because prosecutions for such behavior are extremely rare. Nonetheless, if I were a betting man, I'd bet in favor of the Court treating consensual adult incest (especially if it's brother-sister rather than parent-child) identically to consensual adult homosexual conduct, citing the broad sexual rights language of Lawrence while doing so. Again, I don't think that's particularly bad -- though I agree with Tyler's point, I don't think that it justifies criminal punishment. But good or bad, it seems to me to be pretty likely.

 
[Eugene Volokh, 10:51 AM]
Whoops: I just realized that the link to the New Hampshire Supreme Court decision in my National Review Online piece on "hostile public accommodation environment harassment" in clubs is incorrect; the proper link is this. Kathryn Lopez kindly agreed to have it changed, but I thought I'd mention this in the meantime, in case people are interested in reading the case. (Actually, the Commission decision -- which the piece does properly link to -- is somewhat more enlightening, because it gives more facts and more directly discusses the sexual harassment theory.)

 
[Eugene Volokh, 9:12 AM]
Jack Balkin on the sexual rights case: Yale law professor Jack Balkin has a detailed analysis.

 
[Eugene Volokh, 8:52 AM]
Cool site: I just noticed that nationalreview.com lists us as its "Cool Site" today. We're very flattered.

 
[Eugene Volokh, 8:21 AM]
Sexual rights case: The Supreme Court has just held that adults have a constitutional right to have noncommercial sex in private. There's a lot to be said as a matter of constitutional theory both in favor and against this, and I'll probably leave it to others. I think such a right is good policy; I'm not sure the Constitution protects such a right, but I realize there are good arguments both ways.

     I do, however, want to make one point -- by no means the most important point, just one that I think some might miss. In April, Sen. Rick Santorum famously said:

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.

Many faulted him for his comments, and I certainly don't endorse all that he said. But on this sentence, I think he's been proven close to right.

     The language of the opinion -- "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (p. 11) -- applies equally to incestuous relationships among consenting adults (perhaps with the exception of parent-child incest, though even that's not clear), and to fully consensual (i.e., with the consent of all the parties, including the original spouse) bigamy, polygamy, and "open marriage" adultery (though the government would have no obligation to recognize the bigamous or polygamous relationship as a marriage). The list of exceptions on pp. 17-18 -- minors, coercion, "relationships where consent might not easily be refused" (that might be what might possibly provide an exception for adult parent-child incest), "public conduct or prostitution," and "formal recognition" -- conspicuously excludes adult incest and multiple-partner relationships. And the logic of the opinion, which stresses that sex is important to people's lives because it builds the foundation for their relationships, and involves private conduct in private places, applies equally to those practices, too. (One possible argument distinguishing bigamy and polygamy is that it also involves a publicly celebrated event and a publicly visible shared household, but I don't think that flies: Sharing households among many people isn't a crime; I don't think that the government can criminalize sexual activity simply because it's been preceded by a public exchange of vows that the government thinks are impermissible; and in any event, the logic of the opinion suggests that maintaining a homosexual household and publicly celebrated partnership is protected as well as the purely private conduct.)

     Now I actually welcome the decriminalization of these practices: Whether or not these practices are harmful to society (I think they generally aren't particularly harmful, though there are plausible arguments that they might be), I don't think they should be matters for the legal system, and especially not for criminal punishment. If society wants to send a message condemning these practices, it should send it through other means.

     But the Court's decision shows that decisions on one subject can have lots of consequences for related subjects, and that we should be hesitant to accept assurances that "Don't worry about future controversies, the courts/legislatures/voters can draw the line between this case and future cases." Yes, they can draw it -- but sometimes the logic of the arguments leads them not to draw it. The Supreme Court hasn't drawn the line between homosexual conduct and the other forms of conduct here; and I see no indication that it will draw such a line in the future.

 
[Eugene Volokh, 6:56 AM]
Law School Admission Council letter to judges: Some judges have apparently been getting this letter (I have it in front of me):

June 2003

Dear Judge:

This is a brief letter on what I hope you will agree is a very important topic -- the selection process for judicial clerks.

The Law School Admission Council, sponsor of the Law School Admission Test, has learned that some judges are asking clerkship applicants to supply LSAT scores with their applications. These judges presumably are using LSAT scores as a substantive part of their selection processes to greater or lesser degrees. Our essential message to you is that any use of the LSAT for clerkship or other employment purposes is unfounded and inappropriate.

The LSAT is designed for use in the law school admission process, in part to determine who has the verbal-reasoning skills necessary for success in law schools. It is just one of many factors that law schools consider in making admission decisions. Clerkship applicants have actual law school experience and grades. It is this actual law school performance that is relevant to the clerkship application process, not the LSAT's estimation of that performance. Once grades have been earned, the LSAT should be irrelevant. Moreover, the LSAT is validated only for admission purposes, not for use in employment decision-making. LSAC's own test-user guidelines prohibit the use of the test for employment purposes.

Thank you for your attention to this important matter. If you have any questions, please do not hesitate to contact either of us.

Sincerely,

. . .

[signed by the Chair, LSAC Board of Trustees and the LSAC President]

     Obviously the LSAC is entitled to argue whatever it wants to, but this argument doesn't make much sense to me. First, I highly doubt that judges are putting a great deal of weight on the LSAT, precisely for the reasons the LSAC gives. Just as the LSAT "is just one of many factors that law schools consider," so the LSAT is just one of many factors that some judges consider; and I suspect that they don't give it that much weight -- if the grades are highly informative, then the LSAT (which comes from an exam that was further in the past than the law school exams, and which doesn't directly measure any legal reasoning) will naturally not carry that much weight.

     But, second, some transcripts just don't have a tremendous amount of information. Yale Law School is the extreme example, but since many clerk applicants come from Yale, it's an important one. Yale releases no grades at all for the first semester of the first year, and all subsequent grades are (with very rare exceptions at the bottom of each course) either Hs (generally about 30% of each course, I'm told) or Ps. What's more, after the first year, and (if I recall correctly) as to one class in the second semester in the first year, students choose their own classes, and often choose classes that aren't very focused on legal doctrine. Rightly or wrongly, many people feel that performance in some of these classes may not be a very good proxy for the quality of one's legal thinking. Judges also have no way of knowing whether some of these classes (or even purely doctrinal electives) are just much easier (or much harder) than the classes that other applicants took.

     These days, most federal judges hire students near the start of their third year of law school. At that point, Yale applicants have three semesters' worth of grades, which usually means 12 grades (though I suspect that sometimes it might be fewer, for instance if they had externships or if some of the grades are for written papers that aren't complete), of which many might not be in doctrinal classes. Each of the grades is an H or a P. A judge might thus get a bunch of Yale resumes with, say, 7 Hs and 5 Ps.

     At that point, the LSAT may become a pretty sensible thing to consider as part of the whole mix. It's at least as sensible as favoring someone with 8 Hs and 4 Ps over someone with 7 Hs and 5 Ps, or as considering often inflated recommendations from professors, or even the writing sample, which is important but which is necessarily hard to evaluate and to compare against other writing samples.

     This is all a long way of saying that sound decisionmaking often involves a whole bunch of different inputs. Each has its flaws, but each has its advantages. (The LSAT was taken longer ago, doesn't involve legal analysis, and is aimed at just being a helpful predictor of law school grades, but it doesn't suffer from the same problems of subjectivity, puffery, or incommensurability from which the other inputs suffer.) It seems to me simply wrong to say that it's "unfounded and inappropriate" to consider such a factor, or that the LSAT's estimation of future performance is not "relevant." And as to the LSAT's being validated -- well, I suspect that letters of recommendation from professors who (not always, but often) puff their students aren't exactly validated, either.

     More broadly, I think this illustrates a common fallacy of those who criticize decisionmaking for relying on imperfect proxies. Employment decisions always rely on imperfect predictors of future performance; the goal is to consider enough of the predictors that, one hopes, the biases in each cancel out. But the flaws in one such predictor (whether it's the LSAT, or undergraduate grades, or the ability to project one's intelligence in an interview) don't necessarily make it unsound, so long as one gives it the proper weight in the analysis. (Naturally, if one thinks the attribute is illegitimate for other reasons -- for instance, if one thinks that considering an applicant's race, religion, sex, or sexual orientation is impermissible -- then the situation is different, but I see no reason why the LSAT should be treated like those attributes.)

     As to the "LSAC's own test-user guidelines prohibit[ing] the use of the test for employment purposes" -- well, it's pretty hard to prohibit federal judges from doing whatever they please.

 
[Eugene Volokh, 6:21 PM]
Chemistry sets: Can anyone recommend a good chemistry set? I'm going on a family vacation in a month, and I'd like to show some of the kids some cool experiments. The children range in age from 7 to 13; I think they're open to something like this, but I suspect they'd be easily bored by stuff that seems too esoteric. Any recommendations? Please e-mail me at volokh at law.ucla.edu. Thanks!

 
[Eugene Volokh, 4:50 PM]
People-ism of the day: Here's today's Bushism of the Day:

"I urge the leaders in Europe and around the world to take swift, decisive action against terror groups such as Hamas, to cut off their funding, and to support -- cut funding and support, as the United States has done." -- Washington, D.C., June 25, 2003

Let's see: Bush erroneously inserted a word ("to"). He quickly realized that this would change his meaning. He then immediately corrected himself.

     Who among us hasn't done this today? How about, who among us hasn't done this in the very last conversation we've had? This is the way normal people talk: They occasionally misspeak, and then correct themselves. A "Bushism" is something that's characteristically Bush -- this is something that's characteristic of all people, a "People-ism."

     I realize, by the way, that the author of the Bushisms often stresses that they're just supposed to be light-hearted humor. Now it seems to me that even humorous campaigns of identifying errors in political figures' speech may still be condemned as unfair, for instance if they fault the people for errors that everyone makes, or (as is sometimes the case with the Bushisms) if the alleged errors aren't errors at all. But even if I'm mistaken, where exactly is the humor in this item?

 
[Eugene Volokh, 4:14 PM]
Correction: The post below on the visa denial to an Irish civil rights lawyer was mistaken; the person whose message I quoted has e-mailed me to tell me that he was wrong. (Fortunately, the most serious allegation in the post -- that Francis Mackey was linked to the IRA -- appears to be correct; it's just that the newspaper article that the post was deriding was seemingly referring to another lawyer.) I'm very sorry for the error.

 
[Eugene Volokh, 2:10 PM]
Another quote problem from Maureen Dowd: Reader Marc Greendorfer points out that Maureen Dowd has yet again mischaracterized a quote. Her column today says

Justice Thomas scorns affirmative action as "a faddish slogan of the cognoscenti."

But Thomas didn't say affirmative action was a faddish slogan of the cognoscenti. The sentence in which the quote appears,

The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti.

doesn't specifically explain what the slogan is; but it's pretty clear from Thomas's opinion that the slogan he's condemning is either "diversity" as a justification for race discrimination or specifically "critical mass" as the measure of the needed race preference. As Greendorfer writes,

While Thomas' dissent does not present a clear explanation on its face of what the "faddish slogan" is, it becomes clear that he is referring to either the phrase "critical mass" (which Chief Justice [Rehnquist] refers to as a "sham" in his dissent) or the way that the majority uses the phrase "diversity" to justify its decision. . . . [I]n footnote 3 to Thomas' dissent, Justice Thomas calls diversity a "fashionable catchphrase." Since a slogan and a catchphrase are similar things, it is likely that Thomas was referring to "diversity" as a faddish slogan.

(The first sentence of footnote 3 is "'[D]iversity,' for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue.")

     Dowd's error here is less grave than her "They're not a problem anymore" misquote, because Thomas's statement is somewhat ambiguous. But it seems to me that it is indeed an error.

 
[Eugene Volokh, 11:39 AM]
Gephardt's own defense: A reliable source e-mailed me the text of a FoxNews interview with Gephardt about his "When I am president, we'll do executive orders to overcome any wrong things the Supreme Court does tomorrow or any other day" statement. (I assume that the questions are slightly paraphrased by the transcriber, but the answers appear to be verbatim. The numbers, I take it, are time stamps within the broadcast.)

q- clarify statement made at forum?
1608 It was a basic statement you would make about anything. You would always try to use an executive order to try to overcome things that you think have been done wrong. It may not be possible to use an executive order to overcome a Supreme Court decision if the decision had gone the other way, but there are times in the past where a presidents have done important things through executive order that were legal. Harry Truman integrated the military through an executive order and he didn't get a law passed, he did it because he could do it legally with an executive order. 1643

q- To what extent does a president have the right to exercise that kind of power over a SCOTUS ruling? 1702 It's rare. Usually the courts decisions stand and we have separation of powers and you can't overcome everything that you might want to. So you have got to follow the law, you have got to follow the precedence. But there are cases in the past where presidents have been able to use executive orders to get things done and I would use the executive orders in a proper and legal way. 1728

q- Had the U of M case gone another way, as president what would you do to try to overcome the ruling? 1740 You could maybe try to pass a law that would be constitutional, you could try to find a formula for a diversity program that the court might look on favorably. So that's something you could look at, you could try to do with the Congress. And that's often done, we often have Supreme Court decisions where the Congress and a president will try to pass a law to solve the problem in a way that a court in the future would say is the right way. That's the best way to do it. 1808

q- In what ways as president would you try to effect makeup of Supreme Court so that decisions like affirmative action are dealt with in the way you feel appropriate? 1850 Generally I try to pick judges that are intelligent and balanced, fair people who are basically trying to enforce the precedents of the court. I would not try to put on people who would try to dig new ideological ground and would take the court in new ideological directions in any direction and really use it like a legislative body. I have always felt it should be interpreting fact situations according to the precedents that are out there. I would want judges to keep the precedents the court has stood for in the past. 1928

q- In sum, if a Supreme Court misinterprets a decision is it within the bounds of a president to overcome that, where possible? 1942 You have to do it in a legal way, you have to pass a law or do an executive order that would be legal under our system. We have a system of laws, separations of powers, and precedence obtained and presidents and congresses can try to pass new laws, they can try to do executive orders but ultimately the test of whether or not that's constitutional rests with the Supreme Court. 2007

So here's what it looks like to me:

1. At the Jesse Jackson forum, Gephardt is asked what he'd do if the Supreme Court strikes down race preferences at the University of Michigan. He tells the audience: "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."



2. However, there's virtually nothing that Gephardt can do with a lawful executive order that would indeed "overcome" the Court's decision; Gephardt can order various policies within the Executive Branch, but he can't just order a state university to do things. (That's why this sounds on its face like he's suggesting that he'd just try to overturn a federal court decision with an executive order -- because there's little else that he could have reasonably meant that would have "overcome" the decision.)



3. In this interview, Gephardt pretty much admits that he can't do what he said he'd do with an executive order. Rather, he suggests that "You could maybe try to pass a law," "you could try to do with the Congress." He's still not specific about what sort of federal law would have "overcome" a Supreme Court decision saying that race preferences are unconstitutional; but at least he's specific about the means -- not an executive order, after all, but a request to Congress to enact something.

     So,

What was originally said	What is now being said
"When I am president, we'll do executive orders . . ."	"you could try to do with the Congress"
". . . to overcome any wrong things the Supreme Court does tomorrow or any other day"	"[Q: To what extent does a president have the right to exercise that kind of power over a SCOTUS ruling?] It's rare. Usually the courts decisions stand and we have separation of powers and you can't overcome everything that you might want to."
Summary: I'll engage in forceful, unilateral action that I could undertake on my own so long as I'm elected President (even without help from a possibly hostile, Republican-run Congress).	Summary: I'll do something that has nothing to do with an executive order -- I'd ask (the possibly hostile) Congress to enact a law that I'd then sign.

I don't want to overstate the importance of this: Other politicians have done similar things, and that's the way Presidential races go. But when these things happen, people should point them out, and should point out when the candidate's defense is ultimately not terribly persuasive. Doubtless some people may still like Gephardt's politics and character enough to conclude that he's the best candidate -- but I think that this sort of overpromising (whether done deliberately, or on the spur of the moment in a "me-too" gesture following Dennis Kucinich's similar statement) does cast at least a bit of doubt on the candidate's qualities.

 
[Eugene Volokh, 11:15 AM]
A bit more on "Do Not Spam" lists as "Please Spam Me" lists: Top cyberjournalist Declan McCullagh has two points about this problem; reader Mike Rose also pointed out the first to me:

1. Even if the list is one-way-hashed, so that spammers can't directly harvest it for e-mail addresses, spammers will still be able to use it to quickly check whether e-mail addresses that they've guessed (and, as I understand it, there are technologies that do let them guess