Saturday, October 11, 2003

 
[David Bernstein, 10/11/2003 08:56:15 PM]
Strains at Google: Interesting piece. I noted a while back that Google and other search engines are becoming less and less useful, as commercial sites with useless and duplicative information dominate searches that once brought up useful information.

 
[David Bernstein, 10/11/2003 08:31:49 PM]
An Evil Zionist Plot: Barbie, as Eugene may or may not know, was in fact invented by a Jewish woman, Ruth Handler. Why deny the obvious Zionist plot to corrupt innocent young potential Moslem martyrs into forsaking dreams of seventy-two swarthy virgins in favor of a blonde California bimbo who likes role-playing?

 
[Eugene Volokh, 10/11/2003 08:19:54 PM]
Jewish Barbies: A very different approach from Jerry McCusker.

 
[Tyler Cowen, 10/11/2003 01:32:59 PM]
Silly French villages: Read here for a chuckle.

 
[Tyler Cowen, 10/11/2003 01:17:30 PM]
A book to intrigue you: The last few days I have been fascinated by Sartre: The Philosopher of the Twentieth Century, by Bernard-Henri Levy, here is an interview with Levy and an article on the book. Here is a short interview with Levy on terrorism and his Daniel Pearl book.

No doubt, this is an easy book to attack. I don't even like Sartre, you might say I hold a grudge against Stalinists, nor do I find existentialism captivating. The book is sprawling, lacking structure, subjective to the point of being arbitrary, and assumes you know all the relevant background.

All that aside, it is alive, full of ideas, and vital in a rapid-fire machine gun sort of style, in a way that few books are.

An Amazon.com review describes it as "[an] impenetrable rhapsody to the apotheosis of French intellectualism... dispenses with biographical context and narrative thread in favor of a hop-scotching thematic treatment, full of obscure references...Essentially a 450-page love letter, the book overflows with fawning endearments, petulant reproaches and intimate allusions to epiphanies and quarrels that outsiders will not be able to grasp."

Amen, but I am still reading.

Friday, October 10, 2003

 
[David Bernstein, 10/10/2003 04:34:53 PM]
Me, G. Gordon Liddy, and You Can't Say That! Click here. Oddly enough, two weeks before the official release date the book is in stock everywhere in the e-commerce world except Amazon.
UPDATE: Amazon now has it.

 
[Eugene Volokh, 10/10/2003 02:42:19 PM]
Martha Stewart: My friend and colleague Stephen Bainbridge, who's an expert on securities law, blogs on Martha Stewart developments here ("Martha Wins a Round") and here. Commentary from someone who actually knows what he's talking about!

 
[Jacob Levy, 10/10/2003 02:09:44 PM]
Elsewhere: I haven't been blogging much this week-- Yom Kippur, baseball playoffs, academic work, etc (the etc unfortunately not including Quicksilver, which I've only managed to get through about 100 pages of.) But I have occasionally thrown in a comment on a thread John Holbo's got going on conservatism. Other participants include Henry Farrell and D-squared, and Russell Arben Fox.

 
[Eugene Volokh, 10/10/2003 01:46:24 PM]
Slate's Explainer: I generally very much like Slate's Explainer, but yesterday's column unfortunately has three significant errors. The piece begins:

This week, attorneys for Martha Stewart filed a motion seeking to dismiss the charge of criminal securities fraud against her. The government claims that when Stewart said in three statements to the press that she had not engaged in insider trading, she was trying to manipulate the market price of her company's stock, thereby committing fraud. Her lawyers argue that Stewart was professing her innocence on a personal issue "wholly unrelated to the securities of the public company" and that the securities fraud charge thus violates her First Amendment and due process rights. If Martha Stewart was lying, could she really claim that such lies were free speech?

     Much of the analysis that follows is quite interesting, but here are three errors:

1. The column says that Stewart "may be the beneficiary of heightened free speech protection, as part of her right to due process, since corporations don't have due process rights, but people do." That turns out to be mistaken; corporations definitely do have due process rights. See, e.g., State Farm v. Cambell, 123 S. Ct. 1513 (2003), among very many other cases.



2. Towards the end, the column says, "In last term's Nike v. Kasky case, the Supreme Court ducked the issue of whether corporations have a First Amendment right to lie to consumers about their human rights and labor records." Actually, the issue in Nike wasn't "whether corporations have a First Amendment right to lie," since among other things (as the Explainer mentions) even individuals engaged in noncommercial speech probably don't have a First Amendment right to lie (though see item three below). The question, rather, was whether certain kinds of corporate speech were to be treated as noncommercial speech (which can generally only be punished if it's knowingly false, at least in a context such as the one in Nike) or as commercial speech (which can also be punished if it's erroneously false, not false but misleading, or true but supposedly harmful to various govenrment interests). The precise matter at issue in Nike was complex, perhaps too complex to discuss in detail in the Explainer. But "whether corporations have a First Amendment right to lie" isn't quite right.



3. Finally, it turns out that the core issue -- whether false statements of fact are unprotected when they're not fraudulent attempts to make money, defamation of particular people, or false statements to the government (e.g., perjury) -- is indeed not fully resolved. But I think this issue has nothing to do with some supposed Due Process Clause to lie to the public about your guilt or innocence; I know of no authority for the proposition that the Due Process Clause "allow[s people] to proclaim [their] innocence" outside court. In fact, in Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court held that 18 USC sec. 1001, the federal statute generally barring false statements to federal officials, punished false assertions of innocence as well as other false statements. This didn't deal with public proclamations, and it didn't confront the First Amendment. But it did reverse many lower court cases that held that such "exculpatory no's" were excluded from 18 USC sec. 1001; this suggests that the Court doesn't really view the Due Process Clause as generally protecting your right to falsely assert your innocence. And I certainly know of no cases that suggest the opposite.
   
        Rather, the strongest First Amendment argument for some protection even of knowing lies is that in some contexts (a) courts shouldn't be trusted to decide what's true and what's false, and (b) the risk of error in such decisions might be enough to deter even true speech. See New York Times v. Sullivan, which suggested that even knowing lies about the goverment can't be punished at all; compare State v. Davis, 27 Ohio App.3d 65 (1985) (affirming conviction for knowingly making false statements in a political campaign) with State ex rel. Public Disclosure Comm'n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998) (striking down a law banning false statements said with actual malice in election campaigns). I don't think this argument will much help Stewart here. But I'm pretty certain that the "due process right to lie about your innocence" argument will be a pretty clear loser.

So, again, I think that Explainer is a great series, and that parts of this item are quite helpful; but unfortunately, there were some significant slips this time.

UPDATE: Stephen Bainbridge blogs on the securities law questions at the heart of the issue being Explained.

 
[Randy Barnett, 10/10/2003 01:17:05 PM]
Michael Bellesiles alert: Check out this new story in The Emory Wheel.

 
[Eugene Volokh, 10/10/2003 11:59:05 AM]
Federalism and tort liability: A couple of people objected to my "federalism and preempting gun liability lawsuits" argument on the grounds that it would also justify preempting many other kinds of tort lawsuits. Well, it would, and I make no bones about that. Here's a post from last November where I made this more general point:

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

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

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

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

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

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

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

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

     The article continues:

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

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

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

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

     Note that my argument here was that Congress has the constitutional power to preempt tort lawsuits that arise out of economic transactions. I wasn't arguing that such preemption is wise, or even consistent with my general preference for federalism, at least when it arises out of purely intrastate economic transactions. But when the tort liability is based on interstate economic transactions, then it is a form of state regulation of interstate commerce. And at that point, I generally don't see much of an federalism objection to Congress stepping in (though of course some particular Congressional actions may just be plain bad policy, and subject to criticism on those grounds).

 
[Eugene Volokh, 10/10/2003 09:04:01 AM]
Tort lawsuit over installation of Wi-Fi: According to c|net news.com,

Parents of students who attend an Illinois school district are suing over the use of Wi-Fi technology in classrooms, alleging that exposure to the low-level radio waves may be damaging to students' health. . . .

I express no view on the scientific merit of such a claim; I just mention it because this sort of litigation may, rightly or wrongly, directly affect Wi-Fi availability, something that a lot of readers might be interested in.

 
[David Bernstein, 10/10/2003 08:43:42 AM]
Bimbo Discrimination: From the Washington Times:

Bimbo Discrimination:
"Perhaps the most notorious case of antidiscrimination law impinging on lowbrow art involved actress Hunter Tylo. The producers of the steamy prime-time soap opera 'Melrose Place' hired Tylo to play the show's latest promiscuous bimbo, Taylor McBride. ...
"Tylo's contract included a clause forbidding any 'material change' in her appearance. When Tylo became pregnant before the new season started shooting, the producers fired her, explaining that they did not want their bed-hopping vixen character to be played by an obviously pregnant woman. ... Tylo, who gained 47 pounds during her pregnancy, was to be filmed cavorting pool-side in a thong bikini.
"Tylo sued for employment discrimination. ... The judge declined to dismiss the case ... and the jury found in Tylo's favor, awarding her $5 million. Tylo's attorney, Gloria Allred, enthused that Tylo 'is absolutely a living Susan B. Anthony and a Rosa Parks all rolled into one.' "
— David Bernstein, from his new book "You Can't Say That: The Growing Threat to Civil Liberties From Antidiscrimination Laws"

 
[Eugene Volokh, 10/10/2003 08:40:34 AM]
Federalism and preempting gun liability lawsuits: Since I support the federal proposal to preempt gun liability lawsuits, I thought I'd briefly explain why I think it's proper for the federal government to step in here.

     Tort liability rules that impose liability based on commercial transactions are a form of regulation of commerce. They may not look like "regulations," because they aren't enacted by an administrative agency or a legislature. But regulations are what they are: They are government action that constrain commercial behavior by threatening to impose substantial monetary punishment based on that behavior. Many of the regulations are quite proper; common-law fraud claims, for instance, regulate false or misleading representations in commercial transactions, and it's generally good that they do. But they are regulations.

     What's more, product liability rules for gun manufacturers end up regulating not just what's done within a state, but also what's done in other states. The gun business, like most other businesses, is hugely interstate. The lawsuits against gun manufacturers are often based on interstate conduct (production in one state, marketing in other states, harm in yet another state).

     What's more, the lawsuits end up affecting what consumers in all states may buy. If California holds out-of-state manufacturers liable when guns with certain designs are imported into California, then the manufacturers can in practice avoid the risk of this liability only by refusing to sell those guns anywhere. And if New York holds out-of-state manufacturers strictly liable for all gun injuries in the state, then the extra cost of this liability would in practice have to be borne by consumers throughout the country. That's just the reality of modern interstate business.

     It therefore seems to me quite proper for Congress to use its power to regulate commerce among the several States here. The Framers envisioned Congress facilitating a national market, and preventing some states from interfering with this market, or imposing the costs of their economic regulations on other states. That's exactly what the gun liability preemption law would do.

     Moreover, I do believe that the Second Amedment should be understood as securing an individual right, and that the Fourteenth Amendment applies this to the states. (The Court held the contrary as to the Fourteenth Amendment in the 1870s, but that decision was handed down long before the Court incorporated any of the Bill of Rights protections against the states; in fact, the decision also asserted that the First Amendment didn't apply to the states, either, a view that the Court has long retreated from.)

     Congress has the power, under section 5 of the Fourteenth Amendment, to stop states from interfering with this right. And I think one can quite plausibly argue -- though I think this wouldn't be an open-and-shut argument -- that the tort liability that are being urged in the gun liability cases are so vague that, even if they don't on their face impose flat bans on guns, they create an unacceptable deterrent effect on manufacturers, and unacceptable resulting burdens on gun users. See this article for the classic exposition of this view, which uses the New York Times v. Sullivan libel liability case as an analogy. I'm not sure that this theory alone is enough to carry the day here (though it well might be), but I think that, in combination, the commerce regulation argument and the rights protection argument suffice to justify federal preemption here, both as a matter of the Constitution and of federalism policy.

     One could, of course, come up with hypothetical state tort law rules that might have much more limited effects, and that in theory shouldn't be preempted. For instance, one can imagine a tort liability rule that (1) applies only to manufacturers that make and sell guns within the state, and (2) creates such a modest and well-defined burden that it doesn't materially burden law-abiding citizens' right to keep and bear arms. Perhaps such a rule should therefore not be federally preempted (and note, incidentally, that some of the narrower tort liability rules aren't even preempted by the proposed legislation).

     But to my knowledge not a single tort law rule in fact has such a limited scope. Tort law rules are almost invariably applicable to interstate commerce as well as intrastate (in part because any purely intrastate rule would just end up imposing a competitive disadvantage on local businesses). So I'm not too worried about the possibility that the federal statute would preempt some purely intrastate regulations when such regulations don't exist, and are highly unlikely to ever exist. If someone wants to propose such a narrow amendment, I won't argue about that; but I doubt that anyone will.

 
[Eugene Volokh, 10/10/2003 07:42:38 AM]
Law review article titles: Reader Henry Cohen passes along his favorite: Port Noise Complaint, 6 Harv. CR-CL L. REV. 61 (1970), an article on airport noise regulation. Yes, I checked, and that really is the title.

     Reminds me of Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. Rev. 1335, an article surveying the privacy tort in the 100 years since the publication of the Warren & Brandeis article that's generally credited with first proposing it. Oh, and Michael Stokes Paulsen published an article in the Montana Law Review (yes, that element is important) about how the entire body of federal law should be seen as being affected by the then newly-enacted federal Religious Freedom Restoration Act (RFRA). The title? A RFRA Runs Through It.

 
[Eugene Volokh, 10/10/2003 07:27:29 AM]
Crime-facilitating speech lawsuit seems to have been withdrawn: Michael Froomkin has the scoop.

 
[David Bernstein, 10/10/2003 07:21:35 AM]
Latest on Free Speech at U. Alabama: David Beito has the latest on the on-again, off-again censorship of the Alabama Scholars Association by the university, as well as a link to a story in the Tuscaloosa News about my speech at the university yesterday.

 
[Randy Barnett, 10/10/2003 06:35:07 AM]
Victor Davis Hanson: More myths about the current war. In Victor Davis Hanson's latest, he addresses the following myths:

THIS IS A "WAR ON TERROR"

STAGGERING COSTS AND CASUALTIES

ANTIWAR FEELING IS RISING

THE UNITED STATES IS ALONE AND ISOLATED

THE SO-CALLED WMD CRISIS

Read it here.

 
[Tyler Cowen, 10/10/2003 06:27:17 AM]
Anti-capitalism and anti-Semitism: Here is an essay of mine, from today's www.frontpagemag.com, on the relationship between anti-capitalism and anti-Semitism.

Here is one short bit:

"Hostility toward trade and commerce has often fueled hostility toward Jews, and vice versa. The societies most congenial to commercial life for their time - Renaissance Italy, the growing capitalist economies of England and the Netherlands in the seventeenth century, and the United States - typically have shown the most toleration for Jews. "

Here is another:

"The growing nineteenth-century socialist movements did little to stem the anti-Semitic tide and often explicitly promoted anti-Semitism. The initial link between socialism and anti-Semitism arose through intellectual affinity. Throughout the nineteenth century, the socialist critique of capitalism and the anti-Semitic critique used the same arguments. Many socialists considered anti-Semitism to be a way station on the path toward a more consistent socialist viewpoint. The very first systematic socialist philosophers, the French Utopians of the early nineteenth century, had implicated the Jews in their critique of capitalism. French Jewry was highly commercial, financial, and capitalistic. Proudhon and Fourier, who stressed the abolition of usury, saved their most vitriolic anti-Semitic tirades for Jewish moneylenders."

Make no mistake about it, anti-Semitism and anti-capitalism tend to go hand in hand.

 
[Eugene Volokh, 10/10/2003 06:09:18 AM]
Legal titles: Lots of people submitted their own, many of them quite amusing. Some of them would have actually made good titles for thrillers, which I think missed the point -- I was trying to come up with really bad titles. Robert Woolley, though, passed along a nice batch, though in a somewhat different spirit, a la the old favorites "Fiddler on a Hot Tin Roof" or "Cheaper by the Dirty Dozen," but legally themed:

My title suggestions:

"For Whom the Bell Equitably Tolls"

In the spirit of Joseph Heller, "Catch 12(b)(6)"

"The Slaughterhouse-Five Cases" . . .

"The Day of the Locus Delicti"

"Portnoy's Summons and Complaint"

 
[Tyler Cowen, 10/10/2003 05:42:24 AM]
Russians on the rise: And not just at Volokh Conspiracy. Consider this:

"Nearly one in five Americans speaks a language other than English at home, the Census Bureau says, after a surge of nearly 50 percent during the past decade. Most speak Spanish, followed by Chinese, with Russian rising fast although more than half also speak English “very well,” the report said...The number who spoke Russian increased the most during the 1990s, nearly tripling to 706,000. That reflected a rise in Russian immigration over the decade, the first since the fall of the Soviet Union."

Thanks to Bill Tierney's new blog www.uber-blog.com for the pointer.

Thursday, October 09, 2003

 
[Randy Barnett, 10/9/2003 08:02:59 PM]
"Operator, I need the Jaws of Life!": The following is the first paragraph of a story appearing on page D3 of Thursday's Wall Street Journal:

Underwear To Detect Heart Abnormalities

Reuters News Service

AMSTERDAM--Heart patients may soon be able to buy underwear designed to detect heart-rhythm abnormalities and even call for an ambulance in case of emergencies, according to Phillips Electronics NV. . . .

I don't even want to contemplate the sort of emergencies that a pair of underwear can have. And can you imagine what would happen if "smart underwear" started making prank phone calls?

 
[Randy Barnett, 10/9/2003 06:49:23 PM]
Ralph Peters on Deploying Turkish Troops in Iraq: In today's New York Post, Ralph Peters, a strong supporter of the Iraq war, comes down very hard on the Bush administration for its decision to seek 10,000 Turkish troops to be deployed in Iraq. Here is a taste.

. . . Bush's desire for Turkish forces is craven. Hoping to reduce U.S. troop commitments as an election looms, he verges on throwing away the practical and moral achievements won with our soldiers' blood.

His actions will backfire at home as surely as they will in Iraq. A Turkish presence will make things worse, not better.

Turkey has one enduring aim: the suppression of Kurdish freedom anywhere in the region. That will be Ankara's immutable goal in Iraq.

The administration tells us, coyly, that the Turkish contingent will be stationed in the Sunni Arab area of central Iraq, far from the Kurds. But the Turks intend to play a waiting game, confident that American patience will fail and that we will look for any excuse to bail out - leaving the Turks in place to broker power.

Introducing Turkish troops into the Sunni Arab region, the sole area of Iraq even partly hospitable to dead-enders from Saddam's regime and to international terrorists, is as short-sighted as it now appears expedient.

The Turks will quietly rebuild ties with the Ba'athists and rejectionists, shielding them from justice. Ankara was comfortable with Saddam (who shared the neighborhood taste for killing Kurds), and Turkey's preferred government for a future Iraq would return the Sunni Arab minority to power. . . .

It gets more vehement after this.

 
[Eugene Volokh, 10/9/2003 03:37:14 PM]
"Why does the gun industry deserve special protection?" asked Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, about the bill that would limit gun manufacturer tort liability, which it seems, might be enacted by Congress. Because the gun industry is under special attack.

     If when someone drunk on Coors crashes his Mustang into me, I were able to successfully sue Coors and Ford for selling their products knowing that they cause death, or for recklessly and wantonly refusing to (for instance) install breathalyzer ignition overrides that would (maybe) help prevent drunk driving, then I'd see the bill as being about "special protection" (though then I'd just want it broadened to cars and alcohol, too). But right now, the bill is simply aimed at making sure that the tort liability system treats guns like other lawful but dangerous products.

 
[Eugene Volokh, 10/9/2003 03:24:30 PM]
Crime-facilitating speech: Just as I'm finishing up the very first, extremely rough draft of my Crime-Facilitating Speech paper (a category which would cover any speech that helps some listeners commit crimes, torts, or acts of war), this story hits:

John "Alex" Halderman, a Princeton University Ph.D. student, posted an analysis of the MediaMax CD3 Copy-Prevention System which revealed that if you load a protected CD for the first time with Windows' Autorun feature disabled (which can be done on a per use basis by pressing the shift-key), you can freely copy the music on the CD. Halderman also revealed the everyday, built-in Windows setting that easily disables the protection program. CNet reports that SunnComm, the maker of MediaMax CD3 Copy-Protection System, is threatening to sue Halderman on multiple grounds:

SunnComm CEO Peter Jacobs said the company plans legal action and is considering both criminal and civil suits. He said it may charge the student with maligning the company's reputation and, possibly, with violating copyright law that bans the distribution of tools for breaking through digital piracy safeguards. . . . Jacobs said SunnComm's attorneys would refer the case to local federal authorities, who could make the decision on how to proceed on the DMCA issue. He said the company was also exploring a civil suit based on damage to the company's reputation, since Halderman concluded that the technology was ineffective without knowing about future enhancements. . . . The damage to SunnComm's reputation, while not necessarily permanent, was quickly seen in a drop in its market value, totaling close to $10 million over several days, Jacobs said. No final decisions about legal action have been made, he added.

So, you create copy protection that won't work in all situations (on my computer for instance because I have autorun disabled), and you sue the guy who calls you on it.

I'm not sure whether the student's actions do indeed violate the DMCA, but I'm pretty sure that they must be protected by the First Amendment (unless his statements are knowingly false -- or at least negligently false, though I suspect that this won't be enough -- which would be the only grounds on which a suit for "maligning the company's reputation" whould prevail). Read for yourself the CNET news.com story that the above post cites, and the student's paper (Princeton University Computer Science Technical Report TR-679-03).

     In any event, crime-facilitating speech litigation seems to be a growth area; I'm glad to be writing about it, or to be precise I'll be glad to have written about it.

UPDATE: SunnComm has apparently decided not to sue; Michael Froomkin has the scoop.

 
[Eugene Volokh, 10/9/2003 02:46:07 PM]
Barbies: Eric Muller disapproves of the Amy Alkon post that I linked to below:

If you ever need persuading that American Muslims are right to feel that they are the victims of ignorant and dangerous stereotyping, check out this blog post.

Link courtesy of Eugene Volokh, who either didn't notice the offensiveness of the post, or chose not to comment on it.

Well, I actually thought a bit about the original post, and concluded that it was not offensive (or, if it was offensive, it was offensive to the right people). The post read:

Barbies For Fundamentalists

Saudi Arabia's religious police proclaimed Barbie dolls a "Jewish" toy (apparently, nobody told them that if there were a prototypical shiksa goddess, it would be Barbie), and deemed Barbie's revealing clothes a threat to Islam. Good thing there's now a full line of dolls that should get a pass with the Saudi Arabian police:

With her long-sleeved dresses, hijab or Muslim head scarf and, by her creator Ammar Saadeh's own admission, a less-than-flattering bust-line, Razanne is all about modesty and piety.

But Saudi Arabia and other Middle Eastern countries likely would be attracted to Praying Razanne, who comes complete with a long hijab and modest prayer gown.

So much better for covering up suicide bomb packs than that scantily clad Malibu Barbie!

     I took (and continue to take) Alkon's post as chiefly a condemnation of the people mentioned in the first sentence of the text -- "Saudi Arabia's religious police [who] proclaimed Barbie dolls a 'Jewish' toy" -- and of those who agree with them. And those people who ban Barbie dolls partly on the grounds that they're "Jewish" are at least aiders of the anti-Semitic murder wing of Islamic Fundamentalism.

     Not all Muslims deserve condemnation (that's one reason my original post made clear that I have little trouble with the Muslim doll as such). Nor do I think that even all Muslim Fundamentalists deserve to be linked with suicide bombers, though I think it's legitimate to criticize their views about women. But it seems to me that Alkon is condemning "Saudi Arabia's religious police" and those who would agree with them on this score. And they are much worth condemning.

     In any case, though, I much respect Eric Muller, so I thought I'd quote his view on this, as well as responding with my own.

 
[David Bernstein, 10/9/2003 01:37:33 PM]
Gordon Liddy Show: I'm scheduled to be a guest on the Gordon Liddy Show Friday at 1:20 p.m. EST to discuss You Can't Say That!

 
[Eugene Volokh, 10/9/2003 01:29:38 PM]
National Organization for Women wants to ban about half of all handguns: This letter to Sen. Dianne Feinstein, which is signed by many groups including NOW, the Evangelical Lutheran Church in America, the Washington Office of the Presbyterian Church USA, and lots of others, demands "new legislation to reauthorize the 1994 ban" that would "clarify[] the definition of the term 'assault weapon'" as follows:

The term "assault weapon" must include any semiautomatic rifle, shotgun, or pistol that can accept a detachable magazine and includes one listed additional feature such as a pistol grip, fore-end grip, or collapsible stock.

&nbps;    Virtually every semiautomatic pistol (including, for instance, my Glock 17) accepts a detachable magazine and includes a pistol grip (that's why they call it a pistol grip). Pretty much the only pistols that this wouldn't cover are revolvers and derringers. And my sense is that probably about half of all handguns in America, maybe a bit more, are semiautomatic pistols.

     So either these groups are intentionally trying to use a purported "assault weapon" ban to prohibit about half of all handguns; or they just don't know anything about guns, though they seem quite keen on regulating them in any event. Something to remember when people mock the NRA as "paranoid" and insist that no-one is trying to ban the guns that ordinary law-abiding people own. For more examples of calls for gun bans, see here.

 
[Eugene Volokh, 10/9/2003 01:14:54 PM]
How long may Schwarzenegger serve as governor? Apparently 7 years, though the matter isn't free from doubt.

 
[Tyler Cowen, 10/9/2003 08:57:22 AM]
Culture and immigration, continued: A few days ago I offered some examples of how poor immigrants have enriched American culture. To recap one example, many Caribbean painters and musicians rely on their access to the American market, which of course includes migrant buyers from their home countries, now living in the U.S.. Haitian bands survive by playing concerts for Haitians in the United States, but we all benefit from having the music out there. Haitian artists come to this country to sell their works, not just to Haitians (also to me), although now this can be harder because getting a visa can be harder. Harder visas means fewer illegal migrants but this also hurts culture, let's not forget the numerous Latin musicians who now find it more difficult to tour the U.S., again much to my disadvantage.

A more general point is to consider the economic concept of comparative advantage. Let us say that none of the poor immigrants, legal or illegal, ever contributed anything of cultural value. This is not true, but let's just say. Let's say all they did was do the laundry, watch the children, and mow the lawns of other people. Well, this would free up these other people to be more creative. Instead of mowing your own lawn, you can go write a book, compose a symphony, or see a movie, thereby demanding more creative outputs from others.

Poor immigrants contribute to America's national creativity, even when they do not perform creative labor themselves. The effect, of course, is hard to estimate, but the general point remains important. We need to consider the secondary consequences of gains from trade, not just the direct consequences.

 
[Eugene Volokh, 10/9/2003 08:12:58 AM]
Blogging rights: Ed Cone has a Q & A with yours truly on blogging and the law.

 
[Eugene Volokh, 10/9/2003 07:57:38 AM]
I have no interest in the job, but Orrin Hatch's proposed constitutional amendment that would "allow[] people who have been U.S. citizens for at least 20 years to be elected to the White House" is a good idea. Seems perfectly fair to me. Incidentally, 28 years ago today was the day that our parents brought Sasha and me to L.A. (we came to the U.S. one day before, and stayed the night in New York on our way); I think we've been citizens just a titch over 20 years. Seems to me we are just as unqualified for the Presidency as any other U.S. citizen.

     The best explanation I'd heard for the original requirement that the President be a natural-born citizen is that the Framers were worried that foreign nations might bribe or pressure enough people that they can place a scion of their ruling house in the U.S. Presidency. That had happened often enough in Europe in the centuries before; but it's not a serious concern today, and it seems to me sensible that this form of discrimination -- not the most heinous form by any means, but still not a justifiable one -- be eliminated. And, no, I'm not campaigning for Schwarzenegger for President, either.

     At the same time, if my fellow citizens believe that they have better things to do with their time than trying to push a change like this through the laborious amendment process, I wouldn't condemn them for that, either.

 
[Eugene Volokh, 10/9/2003 07:49:53 AM]
"Professor Ginsburg's spouse was a lawyer before she found better work": David Kaufman points to an amusing bio on Marty Ginsburg's page. (Marty, among other things, is one of the top tax experts in the country, as well as a funny man and a great cook.)

 
[Eugene Volokh, 10/9/2003 07:37:54 AM]
Suppression of dissent? I'm not completely sure what to think about this case, because a lot can turn on the details -- for instance, whether the student said what she said in a rude way, and on exactly what evidence there was that this incident "disrupted learning." Still, if the AP story excerpted below is reasonably accurate and complete, the incident strikes me as quite troubling. Teachers, it seems to me, should be able to deal with student disagreeing with teachers, trying to persuade teachers, and even condemning the teachers' views, rather than try to punish the students for it. In any case, consider for yourself:

A lesson on the origin of the universe led to the suspension of an eighth-grade student who failed to follow an order to stop discussing religion with her teacher. . . .

The situation started with a discussion of the Big-Bang theory, which says the universe originated billions of years ago in an explosion of a single, superdense atom. Students brought up Christian beliefs about the creation of the universe, and the teacher told them she couldn't lead a religious discussion, Cline said.

That led to a "rumor mill" regarding the teacher's religious beliefs that was harmful to the teacher and disrupted learning, Cline said.

The student was suspended last week after encouraging another student to put a religious pamphlet on the teacher's desk.

"(The teacher) felt like it was a form of harassment," Cline said. "It was hurtful to her. She's asked them and talked with them, and after the second or third time, you know she has feelings. She is tired of kids drawing those conclusions about her."

Students are welcome to pass out pamphlets in school as long they are not disruptive or offensive, said John O'Dell, school superintendent in Sullivan County. . . .

 
[Sasha Volokh, 10/9/2003 07:31:04 AM]
I have a dream: I just woke up from a (possibly unified) dream in which all the following happened:

• I was Captain Kirk and my team and I took refuge from an angry mob in some courtyard or castle, where my communicator didn't work;



• I was studying American geography from a French teacher who said, mostly in French-accented English, that the United States was 1500 miles across ("We're going to use miles because we're talking about America"), but you should also count the archipelago of U.S. islands between Alaska and Hawaii, which is 4500 miles long;



• I was discussing the advantages of 1.5"x3.5" cards over 4"x6" cards;



• I accidentally put Equal on my lettuce, even though I wanted the lettuce for a salad and the Equal for my tea, and I posed the question: "If you want a single packet of Equal for your tea and they bring you four packets, should you claim you don't want Equal for your next three cups of tea?";



• I or someone else was making the following argument about rights: Rights become Boims when they're asserted by Daniel Barenboim instead of Stephen Penwright (not anyone real);



• There was Law School dean Elena Kagan, and she had a thermometer.

 
[Eugene Volokh, 10/9/2003 06:43:15 AM]
Dolls: Amy Alkon notes a Moslem modest-and-pious doll that may be a substitute for the banned Barbie in Saudi Arabia. I'm not much against the Moslem doll, though I'm against the Barbie ban; but what particularly struck me is something that I hadn't heard about before -- the Barbie doll was apparently decried by Saudi officials as a "Jewish" toy. That's worth noting (especially since, as Amy puts it, "apparently, nobody told them that if there were a prototypical shiksa goddess, it would be Barbie").

Wednesday, October 08, 2003

 
[Sasha Volokh, 10/8/2003 09:24:14 PM]
Freedom at last? My friend Bert Huang points me to the following Boston Globe article about how the state may relax its blue laws and allow cities to permit selling alcohol on Sundays. (These blue laws have oppressed me on a couple of occasions when I didn't stock up on booze on a Saturday; and they threaten to oppress me when I have my birthday party this Sunday.) But some businesses oppose this:

Nevertheless, many small liquor store owners oppose the change because it would create pressure for them to work on what is now their only day off, according to the Massachusetts Package Stores Association, which represents roughly 700 owners. Frank Anzalotti, executive director of the group, says it will remain neutral in the debate.

Cano Gonzales, the manager of Michel's Wine & Spirits in Boston's Brigham Circle, said most owners are against lifting the Sunday rule.

"We won't see an increase in business," he said. "Right now, the amount you lose when you are closed on Sunday, you make up for it on Saturday."

Chris McDaniel, who manages Blanchard's Liquors in Allston, agreed that the change wouldn't boost business.

"A lot of people stock up on Saturday night," McDaniel said. "Instead of buying five 30-packs or a lot on Saturday night, people may buy less on Saturday and buy on Sunday, too."

And in fact this is quite plausible -- Mark Kleiman, I believe, has personally argued to me that Sunday closing laws generally may be efficient (correct me if I'm wrong, Mark), and actually I'm inclined to believe he may be right.

Just a few days ago, when I was making a rather broad claim about ideology ("the 'economics perspective' may sometimes coincide with political libertarianism, but it's antithetical to philosophical libertarianism"), a friend of mine asked me where I would in fact disagree with Robert Barro. Well, I don't know about Barro, but John Stuart Mill thought this sort of generally beneficial activity, which requires policing to work (if it's policed, most Sunday business shifts to Saturday, while if it's not policed, the lone holdouts get all the Sunday business, so no one gets their day of rest after all), was justifiable government activity. Well, there's the difference between me and an economist.

UPDATE: A couple of readers have written in disputing that Sunday closing is efficient: it only seems efficient, they say, because I'm focus on the producer side and ignoring consumers. In general I agree that lots of restrictions seem efficient if you only think about producers and ignore consumers. But Sunday closing is an example of a restriction which may be efficient overall. Restrictions on, say, innovation, which may help (incumbent) producers at the expense of consumers (and potential entrants), hurt consumers in a major way because they prevent them from getting something entirely. But Sunday closing laws just make consumers stock up on Saturday. Especially if this is limited to alcohol; I don't know about others, but I generally know when I'll need alcohol and when I'm running out, so it's not onerous for me to stock up ahead of time.

Of course, I don't know that Sunday closing laws are efficient; I'm just saying that it's plausible here, in that I could imagine, if a huge contract were possible, that retailers would want to bribe consumers to stock up on Saturday. John Stuart Mill's example is exactly analogous: he's imagining a reduction in the work week from something like 10 hours to 9 hours. Sure everyone loses as consumers, but everyone gains as workers themselves who get more leisure time; and that situation isn't going to emerge in a market because if you started out such an (unenforceable) arrangement, the first guy who broke the deal would get a huge profit.

 
[David Bernstein, 10/8/2003 03:57:32 PM]
Controversy at the University of Alabama: My talk at the University of Alabama Law School tomorrow at noon has become part of dispute between the Alabama Scholars Association and the university administration. My friend David Beito, president of the ASA and a history professor at UA, writes:

For the past month, officials of the University of Alabama have systematically subjected the UA Chapter of the Alabama Scholars Association to intense harassment, censorship, and selective denial of its free speech rights to use the campus mail in the same manner as other duly recognized faculty organizations.

Here is some background. For more than a year, the UA Chapter of the Alabama Scholars Association has been a recognized faculty organization. Because of this recognition, it has reserved rooms on campus free of charge under its own name as well as sent materials to faculty and academic staff through campus mail. Like other faculty organizations, it has paid a low flat fee of 30 dollars per 1,000 flyers for this service. Other faculty and staff organizations with campus chapters, such as the Black Faculty and Staff Organization and the American Association of University Professors, have exercised these same powers.

In late August, 2003, the UA Chapter of the Alabama Scholars Association sent its newsletter, the Alabama Observer, through the campus mail. As required, it paid 60 dollars for this service. It relied on the exact same method used for many years without controversy by the campus chapter of the American Association of University Professors to send its newsletter, Alabama Academe, through campus mail. The Alabama Observer included articles which were highly critical of many policies of the University of Alabama administration on grade inflation and other issues.

About a month ago, Mr. Bill May of University Printing informed ASA officials that his office had made a "mistake" and would no longer deliver the Alabama Observer at the 60 dollar rate. He justified this shift in policy arguing that the ASA was "not part of the university" or a "recognized faculty organization."

ASA officials systematically refuted each of Mr. May's claims. They noted the group's long history as a recognized faculty organization and asked whether comparable organizations, such as the Black Faculty and Staff Association and the American Association of University Professors, would also have to pay second class rates. After nearly a month of repeated questions, he never gave straight answers much less addressed these inconsistencies. Along the way, however, he informed us that he was following orders from University attorney, George S. Gordon.

On Friday, October 3, ASA delivered two flyers to University Printing. Mr. May announced that Mr. Gordon had "approved" delivery of one of flyers advertising a speech on Thursday by David Bernstein, a professor at George Mason University [discussing, ironically enough, my new book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws]. The ASA paid the thirty dollar fee and received a recipient made out to the UA Chapter of the ASA. Unfortunately, the flyer was not sent out as promised despite payment in full.

On October 8, Mr. Mike Butts from Campus mail sent an email stating that his office would not deliver the flyer despite the fact that it was co-sponsored by the Law School. He has not responded to repeated emails about the outrageous attempt to quash free speech despite the fact that the ASA paid for the service and received a receipt in its own name from University Printing.

I'm not privy to any details beyond what David writes above, but I trust David as a reliable source, and expect he will tell me more about the harassment experienced by the ASA when I see him tomorrow. And at the risk of sounding self-serving, I hope that readers in the Birmingham/Tuscaloosa area will come to my talk tomorrow. I promise it will be interesting, and your attendance will also serve as a protest against the university's heavy-handed tactics.

UPDATE: The flyer was belatedly delivered this morning, following a discussion during my appearance on the popular "Russ and Dee" morning show, not to mention what I suspect was an Instalanche of complaints to the university president. The delivery was too late to be of use for my talk, but hopefully it signals a turning point in university attitudes.

 
[Eugene Volokh, 10/8/2003 03:54:17 PM]
"I order you to release reporters from their confidentiality obligations": Several people e-mailed me, suggesting that Bush should order all his employees to sign a statement releasing reporters from their confidentiality obligations. Then, the theory would go, he could fire anyone who refused to sign; and if the leaker did sign, the reporters (Novak and others) would feel free to identify him.

     I'm not an expert on how reporters understand their ethical obligations to keep their sources confidential. Still, I very much doubt that most reporters would really pay much attention to this sort of heavily pressured supposed "waiver"; I think they'll treat the waiver as not being truly voluntary, and still feel bound by the original statement.

     Nor do I think that we need to get into complex philosophical debates about what's "really voluntary" and what isn't. The reporter's view, I think, would be this: If I let this maneuver work, then future government officials (and private businesspeople) would start doing this routinely. Whenever there's a leak from a department, they'll demand the same "waiver" from all their employees, on pain of firing (and not just firing, but possible further criminal investigation).

     As a result, potential confidential sources would dry up almost as surely as if reporters just routinely revealed the sources' identity. The point of journalistic confidentiality is to avoid this sort of drying up of confidential sources. Therefore, I have to reject the legitimacy of this "waiver," and keep the sources confidential in any event.

     So I think reporters will ignore this sort of supposed "waiver" by their sources. Perhaps reporters should burn the sources here in any event, for a variety of reasons; I can't speak to that. But as a matter of prediction, as opposed to moral judgment, I don't think that the "waiver" approach is a good strategy to get the reporters to talk.

UPDATE: Mark Kleiman takes a similar view on this particular point (and I suspect he beat me to it).

 
[Eugene Volokh, 10/8/2003 03:44:16 PM]
More on Schwartzman and others: Anthony Argyriou writes:

I suspect that most of the votes for Mr. Schwartzman, and for Messers. Burton and McClain were people who punched or marked the wrong person. Mr. Schwarzman got 0.29% of Schwarzengger's vote, and Burton and McClain got 0.24% each of Bustamante and McClintock's vote. Look at http://vote2003.ss.ca.gov/Returns/alpha/00.htm -- if the ballot had been in strict alphabetical order, Camejo might have gotten more votes, as he would have been immediately after Bustamante, and many people might have impulse-voted for him. The way the ballot was, you'd have had to look somewhere other than near "Bustamante" for "Camejo", so only people who really wanted to vote for Camejo, or found him before finding Bustamante, would have voted for him.

I haven't checked the data myself, but it sounds legit.

 
[Eugene Volokh, 10/8/2003 03:42:59 PM]
Ballot order and legal titles: Thanks for the messages about ballot order and various other losing titles for legal works. I've corrected my Schwartzman/Schwarzenegger post to reflect what I think is the indeed the actual ballot order; see the UPDATE below. Sorry I can't respond to each message individually.

 
[Sasha Volokh, 10/8/2003 03:32:29 PM]
Wishful thinking: In Austria, they're saying:

"He's one of us," Waltraud Klasnic, the governor of Schwarzenegger's home province of Styria, told reporters. "And this is going to push us a little bit more into the foreground on the international stage."

"Many people in the world - and in America - now know where Styria is."

Didn't Israel just bomb Styria?

 
[Eugene Volokh, 10/8/2003 12:44:45 PM]
What's cool? Having a dinosaur named after you (see second item) -- now that's cool.

 
[Eugene Volokh, 10/8/2003 12:05:33 PM]
Not so easy: Hit & Run writes:

If Bush can't turn over the leaker, he's either a) lying or b) useless as a chief executive. It's his goddamned, famously tight-lipped crew that did the leak, for god's sake.

As Reason's Ron Bailey wrote, "There should be no need for an investigation by the Justice Department. The President should order whoever made the leak to admit it and resign." . . .

     As I've mentioned before, I'm not up enough on this scandal to know how likely it is that the President, or his closest aides, already know who did the leaking. But if they don't already know, recall that the person who leaked may be punished with 5 to 10 years in prison.

     This suggests that the leaker may be reluctant to confess, and that even if his close friends know, they may be reluctant to finger him. Maybe they should finger him. They probably have a moral and professional duty to do so. But there are some pretty obvious reasons, good or bad, why they won't. So if the leaker did it covertly, or if only one or two people know for sure who it was, I doubt that the "I order you to admit it" approach will do much good. (There may be people who suspect, and they may even report their suspicions, but there's still lots of reason for the leaker to try to brazen it out, at least until it looks like the journalists are going to turn him in.) Again, maybe the "I order you" approach should be enough. I'm just not sure that it would be.

UPDATE: Mark Kleiman points out that if people are asked to sign a form saying "I didn't leak," and they lie, they may be liable under 18 U.S.C. sec. 1001 for making a false statement; and if it ultimately turns out that they did leak, then this lie will make it harder for them to defend themselves on other grounds. But as Mark's second update points out, the penalties for a false statement are much lower than for an illegal leak of a covert agent's name, so I continue to think that the "I order you" approach isn't going to smoke people out very well.

 
[Eugene Volokh, 10/8/2003 11:27:00 AM]
That explains it: So here are the Top 10 candidates in the California gubernatorial race:

Arnold Schwarzenegger Rep 3,655,074 48.4
Cruz M. Bustamante Dem 2,409,094 31.9
Tom McClintock Rep 1,004,558 13.3
Peter Miguel Camejo Grn 210,274 2.8
Arianna Huffington Ind 42,361 0.6
Peter V. Ueberroth Rep 21,808 0.3
Larry Flynt Dem 15,245 0.3
Gary Coleman Ind 12,584 0.2
George B. Schwartzman Ind 10,818 0.2
Mary Cook Ind 9,919 0.2

So of course the obvious question: What's this with Schwartzman and Cook? I understand why the others made it to the top 10, and I even understand why they ended up where they ended up. But how did Schwartzman and Cook do it?

     The Oct. 6 Chicago Tribune provides an answer. First, Mary Cook is an "Adult Film Actress," and was listed as such on the ballot. That's got to be good for nearly 10,000 votes. What about Schwartzman? D'oh! "Blessed by the alphabet, George B. Schwartzman sits directly below Schwarzenegger" on the ballot. Sounds like the best theory I could come up with. But wait -- why didn't the people near Bustamante get the same boost? Or did they? I don't know, but hats off to Mr. Schwartzman in any case.

UPDATE: Despite my earlier vacillations on this, it turns out that Schwartzman did indeed follow Schwarzenegger, seemingly on all or nearly all the ballots. See here for the explanation. Thanks to reader Malcolm Blanchard for the pointer.

 
[David Bernstein, 10/8/2003 10:35:01 AM]
Radio Appearance Cancelled: My scheduled appearance on Blanquita Cullum at 1:15 was cancelled in favor of a Congressman who dropped by her show. Sorry I couldn't notify you, but her producer didn't notify me.

 
[Eugene Volokh, 10/8/2003 07:56:45 AM]
More legal thrillers: Sasha says:

In a Jane Austen vein: Cause and Prejudice

Perhaps a sequel to Murders & Acquisitions: Poison Pill

Big Brother is violating your constitutional rights: Nineteen Eighty-three

Harlequin legal romance: Frolic and Detour

Pip goes into property mgt.: Reasonable Investment-Backed Expectations

And a PTO thriller: Complete Bar Prosecution History Estoppel

My favorites are "Reasonable Investment-Backed Expectations" and "Nineteen Eighty-three." Sorry if some of the legal humor is largely incomprehensible for lay readers . . . .

 
[Eugene Volokh, 10/8/2003 07:46:38 AM]
The forthcoming Supreme Court term: A nice summary in Slate from Tom Goldstein, a leading Supreme Court lawyer.

 
[Tyler Cowen, 10/8/2003 07:34:23 AM]
Economics Nobel Prize A friend of mine (Andrew Farrant) just sent me this:

"for methods of analyzing economic time series with time-varying
volatility (ARCH)"
Robert F. Engle
USA

"for methods of analyzing economic time series with common trends
(cointegration)"
Clive W. J. Granger
United Kingdom

These are quality picks, although the work will not appeal much to a lay audience. Brad DeLong had heard a rumor of Paul Krugman and Bhagwati, a Harvard betting market had favored Ed Phelps and Ed Prescott.

Here is what I wrote on VC, some time ago:

Clive Granger and Christopher Sims - Someone is likely to win a prize, probably joint, for time series macroeconomics, and these are the guys. That being said, most economists don't really believe in this stuff, no matter what they tell you. The notion of "Granger-causality," for instance, tells you to look at which variable moved temporally first. Here is one very critical view, but still I vote yes.

Today's addendum to that comment: First, Engle is deserving as well, it is sad if Sims has lost his chance. Second, the committee appears to have cited Granger for his work on cointegration, his most lasting contribution, even if you are skeptical about Granger-causality.

 
[Eugene Volokh, 10/8/2003 06:41:49 AM]
Names still available for legal thrillers: The success of legal names for legal thrillers -- Presumed Innocent, Reasonable Doubt, and so on -- has led me to identify some others that have, surprisingly, not yet been used. Here they are, 100% genuine legal terms just waiting for a novel to fit them:

1. Possibilities of Reverter.



2. Collateral Estoppel.



3. And, likely the best of all, Colorado River Abstention.

Use them in good health.

 
[David Bernstein, 10/8/2003 06:29:31 AM]
I'd Pay to See It: Jess Ventura versus Arnold S., in a steel cage match. Guest Ref: Arianna Huffington.

 
[Eugene Volokh, 10/8/2003 06:21:38 AM]
Politics as comedy: The Boston Herald reports:

Playoff mania has infected politicians far and wide -- sparking a flurry of friendly wagers, not-so-friendly taunts, and even a Beacon Hill effort to ban the sale of pro-Yankees merchandise around Fenway Park.

State Rep. Barry R. Finegold (D-Andover) is pushing a resolution calling on hawkers within a mile of Fenway to turn their backs on any merchandise that smacks of support for the dreaded Yanks.

"Every so often, you need to put people over profits,'' Finegold said. "Our dearly beloved Red Sox fans have suffered quite a bit.'' . . .

The move apparently has the support of Gov. Mitt Romney -- his spokesman asking why Finegold was suggesting the no-Yankee zone would be only one mile. . . .

I'm hoping that the proposal simply "call[s] on" people not to sell Yankees gear (i.e., urges them to do so) rather than actually "ban[ning]" it -- even jokes shouldn't be unconstitutional, I think. Thanks to reader Roger Sweeny for the pointer.

 
[Tyler Cowen, 10/8/2003 05:56:19 AM]
The cultural benefits of immigration: Steve Sailer offers a critique of the claim that more immigration would be good for our culture; he is responding to an interview with me in Reason magazine.

I view the cultural benefits of immigration more favorably than does Steve. Of course, he is not denying the benefits from the Jews who came to this country and drove the development of Hollywood. I take him to be referring to more recent waves of immigration, especially from the so-called "Third World."

But consider the following:

1. Hollywood is full of foreign directors, actors, actresses, and technicians, by no means are all of these people European in origin. A Mexican director will do the next Harry Potter installment. Jackie Chan delights American movie audiences with his Hollywood movies. True, many of these people came here, or received work permits, after attaining some measure of success at home, they did not swim the Rio Grande. The point is that relatively liberal immigration policies let them come and work. I do accept Steve's point that our immigration policies could place greater emphasis on skills, but let us keep in mind that in practice immigration policies will be relatively blunt instruments.

2. The United States is a mecca for Latin American painters, who find wealthy buyers here, often wealthy Latin emigres, note that not all these buyers started off as elite immigrants by any means. Duval-Carrie, arguably the leading Haitian painter today, has spent much of his life in Florida. Cuban painters often rely on wealthy Cubans who live in the U.S. And so on. In case you are wondering, American-born people buy this stuff too.

3. Jamaican emigres and illegal aliens came to the American South in the 1950s to work, there they heard rhythm and blues music (note: they used radios as well, from Jamaica). They brought these musical ideas back to the island, which eventually led to the development of reggae and other musical forms. Wealthier Jamaicans in the US and UK are critical to the sales of reggae recordings and the sustenance of the art.

4. Desi Arnaz came to the US from Cuba, he also married Lucille Ball. His fame drove much of the boom in Cuban music, to the benefit of Americans and Cubans.

5. Indian software and tech people are involved in the production of a wide variety of computer-based cultural products or computer-based ways of consuming and enjoying culture.

6. New York City has been the center of the "Salsa" music industry for much of the twentieth century, due largely to Latin migration. Lately Miami has been taking on a bigger role, again for reasons related to migration.

7. Let us not forget the cultural consumption of unskilled migrants. They count too. By coming to this country, they are exposed to a wide variety of cultural creations, everything from skyscrapers to design to movies on TV.

Those are just a few examples. The topic is a huge one, and it is difficult to cover even a fraction of it in a single post. Nonetheless those are some examples of how immigration from the Third World has enriched world culture, and to the benefit of Americans. These examples are easy to overlook precisely because global culture is so diverse and offers so many interesting niches. Steve, of course, might not like all of these products or consider them of cultural value. And I should note that I do not think that unrestricted immigration is practicable in today's world.

Oh, yes, Steve's complaint aside, let's not forget about all those ethnic restaurants, few of which would exist without liberal immigration.

Tuesday, October 07, 2003

 
[Eugene Volokh, 10/7/2003 02:30:29 PM]
Remember whom Paris chooses to honor: According to AFP,

The city of Paris made an honorary citizen of celebrated US death row inmate and black activist Mumia Abu-Jamal, sentenced to die for the 1981 murder of a white Philadelphia policeman.

It is the first time Paris has bestowed the honor since Pablo Picasso was made honorary citizen in 1971, Socialist mayor of Paris Bertrand Delanoe told an audience of 200 people, taking the occasion to attack the "barbarity" of the death penalty. . . .

In attacking the "barbarity called the death penalty," the mayor said "as long as there is a place on this planet where one can be killed in the name of the community, we haven't finished our work."

Raising his fist in a sign of solidarity, Delanoe then shouted "Mumia is a Parisian!" as the crowd of mostly-leftist activists cheered and applauded.

Black activist Angela Davis, a former member of the Black Panthers and the Communist Party, hailed the "profound sense of humanity" of Abu-Jamal, attacking American "unilateralism" and racist attacks against immigrants. . . .

Abu-Jamal, sentenced to death 21 years ago for the murder of Daniel Faulkner, has always insisted he was innocent, and scores of movements and organizations have sprung up around the world in his defense.

His opponents view him as an unrepentant murderer.

His case has provoked particularly vivid debate in France, which abolished the death penalty in 1981. French school children are required to study the case as part of their education.

Thanks to Dan Gifford for the pointer.

 
[Eugene Volokh, 10/7/2003 02:02:08 PM]
Existence and food: Apropos my observation below that in Russian the word roughly meaning "is" or "exists" is the same word as "to eat," Sasha writes:

In German, "you are what you eat" is: "man ist, was man isst."

 
[Eugene Volokh, 10/7/2003 01:36:41 PM]
Gay marriage survey: Here's the opening paragraph in a usatoday.com story today: "The nation essentially is split in half over whether to accept gay and lesbian marriage, a USA TODAY/CNN/Gallup Poll finds."

     But here's the second paragraph: "While 48% of those surveyed say allowing gay unions 'will change our society for the worse,' 50% say they would be an improvement or have no effect." So here's my question, which the USA Today Web story doesn't answer: Just how many people say such marriages "would be an improvement," and how many say "no effect"?

&nbps;    If 48% say they'll make things worse, 25% say they'll make things better, and 25% say they'll have no effect, then that's not really "split in half." If 48% say they'll make things worse, 5% say they'll make no difference, and 45% say they'll make things better, then it is split in half. A pretty important question, no? If so, why doesn't the story answer it?

     Incidentally, here's a data point: "47% of those who seldom attend services say allowing same-sex marriages would have 'no effect' on society; 14% say it would change society for the better." So if the "don't know / not sure" group is 2%, as it is for the overall result, then the "seldom attend services" group is split 37% worse, 47% no effect, 14% better. Not really "split in half" as to that group, and that's a group that seems to be less anti-gay-marriage than the population at large. Note also that another recent poll, an ABC News survey from last month (the same month that the USA Today/CNN/Gallup survey was done), reports 37% for legalizing gay marriage, and 55% against.

     I realize that one can defend the USA Today characterization by saying that "whether to accept gay and lesbian marriage" refers just to "acceptance" in the sense of "I don't oppose it" rather than "I support it." But I don't think that's how people who are skimming the article will understand it; I suspect those readers will think that about as many people are for gay marriage as are against it. And I strongly suspect that this just isn't so.

     Incidentally, I tentatively support gay marriage myself, as readers of this blog know; I'm not criticizing this story because I have any axe to grind on the gay marriage subject.

 
[David Bernstein, 10/7/2003 01:31:00 PM]
Laissez Faire Books Sale: Laissez Faire Books has been reliable supplier of free market and libertarian-oriented books for years. This month, LFB is offering 15% off its regular prices, which are already often heavily discounted. For example, you can purchase You Can't Say That!, which lists for $20, for $11.81 this month, compared to Amazon's $14 (extra bonus: it's in stock at LFB, but not yet at Amazon). And you can purchase Only One Place of Redress, which lists for $42.95, for only $16.96, compared to $42.95 on Amazon. Tyler's Creative Destruction, which lists for $27.95, is available for $16.58, compared to $19.57 on Amazon. Randy's Structure of Liberty is available for $13.56, compared to the $15.95 list and Amazon price.

The only downside is that LFB has one of the ugliest websites I've seen lately. Completely functional, however.

 
[Eugene Volokh, 10/7/2003 01:13:37 PM]
Language factoid: In Russian, the word that roughly corresponds to "is" or "exists" (est') also means "to eat." Coincidence?

 
[Eugene Volokh, 10/7/2003 01:12:42 PM]
More on Hillary 2004 story (or non-story): Reader Leonard Murphy, who first called my attention to this, now points to this WorldNetDaily.com story:

A call to Sen. Clinton's Washington office elicited a surprised reaction from a spokesman who said: "I don't know anything about it."

The FEC, when contacted by Insight, explained the "odd" entry in its database as having been filed on Sept. 17, 2003, by an outfit called "DraftHillaryforPresident2004."

This group, which the FEC calls "an unauthorized" draft committee, lists Eric Leondard as its treasurer and he and/or it are located at 504-17th Road South, #201, Arlington, VA 22204.

An FEC spokesman explained that under the agency's procedures, once a filing is made -- by anyone, on behalf of anyone -- then the filing gets an ID and automatically enters the name of the "candidate," in this case the junior senator from New York state.

The FEC further notes that no other supporting documentation is available on this item found at www.fec.gov. And, yes, the FEC confirms that it has started receiving a number of calls from inquiring minds. . . .

[Editor's Note: Following up with Clinton's office, a spokesman said they were relieved by the news. "I knew we had nothing to do with it. Thanks for clearing that up."]

My earlier conjecture, based on the Wired article reporting a similar incident in 1999, thus seems to be correct.

 
[Eugene Volokh, 10/7/2003 12:13:50 PM]
Military voters and the recall: Phil Carter writes about this issue, which hasn't gotten much attention.

 
[Eugene Volokh, 10/7/2003 12:10:05 PM]
More on electioneering by California government agencies against Prop. 54: Deborah La Fetra of the Pacific Legal Foundation -- a conservative public interest law firm out here in California -- writes:

Your post about the LAHRC rings true. I was contacted a PLF supporter several weeks ago about an email that he received from the commission urging his attendance at a No on 54 Kick-off event. This individual is a contractor who does business with the county and he was livid. I sent off a letter to the county asking by what statutory authority they were engaging in this politicking (pursuant to Stanson v. Mott), but (surprise!) have yet to receive a response beyond "we're looking into it."

Here's a copy of the email:

From: Lisa Hart [mailto:lhart@hrc.co.la.ca.us]
Sent: Monday, August 04, 2003 7:53 AM
Subject: Oppose Prop 54!! Attend press conference and rally August 7th


STOP THE CON!

No on the “Connerly Initiative”

Join the members of the Coalition for an Informed California for the

No on Prop 54 Statewide Campaign Kickoff

Thursday, August 7th 12 noon – 1pm

Southern CA: County Plaza, behind 500 W. Temple St. (between Grand & Hill, 1st & Temple) Downtown LA

The Connerly “Information Ban”

Ward Connerly, the UC Regent appointed by Governor Pete Wilson, has introduced a dangerous, deceptive, and irresponsible initiative that he calls "The Racial Privacy Initiative." Prop 54 prevents state or local government bodies from collecting or analyzing race information. This information ban would hurt our ability to address disparities by race, or ethnicity, in healthcare and disease patterns, educational resources and academic achievement, and hate crime and discrimination.

The Connerly “Information Ban,” on the ballot October 7th will:

n Undermine accountability in school reform
n Eliminate public health programs that save lives
n Hinder law enforcement efforts
n Severely weaken Civil Rights enforcement

Act now to defend CIVIL RIGHTS, defend EQUAL ACCESS TO EDUCATION, defend PUBLIC HEALTH programs to protect targeted communities.

For more information call: (213) 747-4211

DON’T LET CALIFORNIA TAKE SUCH A HUGE STEP BACKWARDS!

<>


Deborah J. La Fetra
Principal Attorney
Pacific Legal Foundation
10360 Old Placerville Road
Suite 100
Sacramento, CA 95827
djl@pacificlegal.org
(408) 732-1953
fax (408) 273-6061 . . . .

     The issue here, I think, isn't whether the message was sent out from a Human Relations Commission e-mail address; people often use their work e-mail addresses for these things, and even if this technically violates some work rule, I wouldn't worry too much about it. (There might be some concern about whether the message seems to be coming from the Commission, but if the only indication is the e-mail address, I think people won't assume much; and while government property is being used here, again it's not much of a problem, given that the magnitude of the subsidy is tiny.)

     Rather, I take it that the objection is to the message being sent by a county-run list of county contractors, if that's what indeed happened. That is a pretty important government asset, and some might object for it being used for electioneering purposes. Again, the question of when government agencies should be able to express their views (or let employees express theirs) using valuable government property that isn't open to those who express contrary views is not, I think, an open and shut one. But nonetheless this sort of electioneering is worth publicizing, at least given that many people are indeed troubled by it.

 
[Jacob Levy, 10/7/2003 12:01:20 PM]
One more on academic bias: I've received a number of notes from people suggesting that my optimistic view that academia outside the literary humanities mostly functions without particularly severe political bias is a result of my skewed experience-- not just at Chicago, on the grounds of Chicago's ostensible right-wingness (which I disputed last week) but on the grounds of what Brown, Princeton, and Chicago have in common. Several people said ot me, one way or another, that my experience would not have been replicated at many second-tier or state institutions. One of the notes reappears as tthis disspiriting RegRats post from Beth.

My point in this example is not just to bitch, (although it feels good to get that out) but to suggest that perhaps Prof. Levy's experience with integrity in academia has to do with the quality of his institutions. Brown, Princeton, and the University of Chicago are top-tier universities because of a devotion to academic integrity and therefore won't tolerate discrimination for political biases. It's been a big blow for me to learn that every university department isn't as committed to scholarly integrity as is the University of Chicago.

I hope that her experience isn't wholly representative, but I can't say anything to contradict her conclusion, since I just don't have relevant knowledge to draw upon. Her story does remind me of an important point, though. Professors' in-class dicta are especially severe grounds for worry. The actual argument developed in a lecture is likely to be a serious matter, and not as likely to create the appearance of hostility to views other than the professor's own. (After all, it's an argument.) It's the little jokes, one-liners, casual asides, and obviously-everybody-knows comments that you've got to watch out for. This is a familiar point with regard to hostile environments against, e.g., women. But it's also true as regards whether the classroom is experienced as a place open to political disagreements. The more a prof's lecture is peppered with these little asides and dicta, the more the impression is created that views other than the prof's own won't be given a respectful hearing.

I will note that classroom bias is different from hiring bias is different from publishing bias, and showing one doesn't show the others. Classroom bias (which includes bias in the advising of graduate students) is in some ways the greatest offense, because of the power relations involved. But it may also be the easiest, because of the power relations involved, and so its presence doesn't prove the presence of the other sorts. A professor who is willing to make fun of students' political views in class may not be willing to stand up to a real argument from a colleague.

That's also a problem with the critical-mass theory. A critical mass of colleagues who have varying political views may change the tone of faculty meetings. It won't necessarily change in-classroom behavior, where one isn't monitored by one's colleagues. Student evaluations, reputation effects, and-- most importantly-- one's own sense of decency, decorum, and ethics are the only available checks.

 
[Eugene Volokh, 10/7/2003 11:43:33 AM]
More on headlines vs. stories: Reader A. Harry Williams writes:

As I was driving into work this morning, I was listening to an all news radio station in NY (880 WCBS), and they also reported the story. I had been listening to the station for a while, and they had given 2 teasers over the previous 10-15 minutes, both which were very similar to the headline, something like "FBI accused of funding terrorism". Fortunately, I was in the car long enough to hear the final report and recognize that the teaser didn't match the content of the story, but if I had arrived at work a little sooner, I might not have heard the complete report, and would have been left with the impression of the teaser/headline.

I've noticed similar problems on TV news shows also. Given the percent of people who get their basic news from TV, how many are relying on these teasers?

 
[Eugene Volokh, 10/7/2003 11:08:13 AM]
Language is a funny thing: I was walking down the street today and, for some reason, thinking about Russian, and I realized -- some Russian nouns that end in a "soft sign" (a special letter that modifies the letter before it) are masculine in gender and others are feminine. Usually the last letter of the word defines the word's gender (nearly all words that end in "a," for instance, are feminine, except for words that relate to male humans, which are masculine), but when it's a soft sign, there's no clear rule.

     I was flabbergasted, not because there's no clear rule and Russian speakers have to mentally remember for each words whether it's masculine or feminine -- I believe speakers have to do this for most words -- but because I never realized this was so, in 35 years of knowing Russian, and speaking it at least occasionally. (I'm a native Russian speaker, and I'm pretty fluent, but I never took any formal Russian classes in school; I came to the U.S. from Kiev when I was seven, and Soviet kids generally didn't start school until they were seven.) I'm almost certain that I nearly never make gender mistakes with Russian words (though I sometimes make other grammatical mistakes), including the soft sign ones; I just know the gender of each one without thinking about it. But I do this without being consciously aware that there could be any uncertainty about it.

     Language is a funny thing. Russian is ridiculously complex grammatically compared to English, but when you learn it as a child, it all just falls into place, all the nonsensical genders (why is a door feminine and a dictionary masculine), all the superfluous noun cases (English does just fine without them except for the possessive, with the only remnants being visible on the pronouns), and all the other stuff. You know what to say, and it all fits within the rules, without even knowing what the rules are. Mighty weird.

 
[Sasha Volokh, 10/7/2003 10:02:56 AM]
Actual Gypsy kings: Here.

 
[Eugene Volokh, 10/7/2003 09:45:36 AM]
Myths and Facts about the California Recall, from Dan Weintraub at the Sacramento Bee. Thanks to Rick Hasen for the pointer.

 
[Sasha Volokh, 10/7/2003 09:41:31 AM]
One more time... how intolerant is French political culture? Like this. But here's a refreshing take, on the culture side.

 
[David Bernstein, 10/7/2003 08:53:32 AM]
Daniel Pipes is Owed an Apology: One of the charges leveled against Daniel Pipes in the controversy over his appointment to the U.S. Institute of Peace is that his bigotry against Muslims was manifest in his statement that American Muslims in the military and law enforcement must be monitored for potential connections to terrorism. Hmmm.

 
[Eugene Volokh, 10/7/2003 08:39:07 AM]
More Headline vs. Story:

     Headline: "Startling Study Says People May Be Born Gay." (Thanks to Andrew Sullivan for the pointer.)

     Story (emphasis added):

The question then became, "What kind of task could be used that is not influenced by learning or socialization?" The answer came in human startle responses, which are involuntary and instinctual.

Specifically, Rahman and his colleagues decided to use pre-pulse inhibition (PPI). When humans hear a sudden noise, they respond by blinking. If that loud noise is preceded by a quieter noise (the pre-pulse), the response to the second, loud noise is weaker. In other words, it is inhibited.

The researchers compared responses to a loud noise both alone and after a quieter noise to see what the degree of inhibition was. Participants were 59 gay and straight men and women.

In the heterosexual women, the PPI averaged 13 percent and, in heterosexual men, 40 percent.

Lesbians, however, had a PPI of 33 percent, closer to the straight-man end of the spectrum, while gay men averaged 32 percent, slightly lower than that of straight men but not statistically significant.

The findings are consistent with other studies, which have found that certain traits in lesbians are highly "masculinized," while the same traits in gay men are almost the same as in straight men.

I have no idea whether PPI is in fact not socially influenced; but even if it is entirely inborn, and the correlation therefore suggests that lesbianism is inborn, too, the study only shows that people may be born lesbian. It in fact shows no such support for any findings about gay men, because the difference is statistically insignificant (quite plausible given the tiny sample size).

     One can, of course, infer that if lesbianism has an innate quality, so does male homosexuality. But male and female sexual biology and psychology is quite different in many ways, and it's surely possible that male and female homosexual biology and innate psychology are quite different, too. Certainly the data mentioned by the study suggests that there are relatively slight observed biological differences between gay men and straight men, perhaps slight enough to be statistically insignificant, as they were here.

     So this isn't the most misleading of headlines, and the claim in the headline may well be true, as to gay males as well as lesbians. But why not say "Lesbian" instead of "Gay," and actually make the headline much more accurate (especially since many people, rightly or wrongly, think "gay male" first when they hear "gay") without much increasing the length?

UPDATE: For more on homosexuality, the media, and statistics, see here on the gay marriage survey.

 
[Eugene Volokh, 10/7/2003 08:00:09 AM]
Headline vs. Story:

     Headline: "FBI Sent Money to Hamas During Clinton Years"; the same headline appears on the foxnews.com front page.

     Story:

In an undercover operation run in the shadow of Mideast peace talks, the FBI secretly sent money to suspected Hamas (search) figures to see if the militant Palestinian group would divert it from charitable purposes to terrorist attacks, according to interviews and court documents.

The counterterrorism operation in 1998 and 1999 was run out of the FBI's Phoenix office in cooperation with Israeli intelligence and was approved by Attorney General Janet Reno, FBI officials told The Associated Press. . . .

The money, usually just a couple of thousand dollars, was sent to suspected terror supporters during the operation as the FBI tried to track the flow of cash through terror organizations, the FBI said in a rare acknowledgment of an undercover sting.

"This was done in conjunction with permission from the attorney general for an ongoing operation, and Israeli authorities were aware of it," the bureau said. . . .

Yes, the headline is likely to lure readers to the story, and if they read even a couple of paragraphs, they'll understand what was really happening. But some people are likely to see just the front page headline, and those might be pretty seriously misled. Couldn't the headline be a bit clearer, e.g., "FBI Tried to Trace Flow of Hamas Money"? (Yes, this would omit the fact that the FBI was the one sending the money, but especially given the small amounts of money -- amounts small enough that they were unlikely to really tremendously help Hamas -- the attempt to trace the money seems a much more important component of the story than the actual sending of the money.)

 
[Eugene Volokh, 10/7/2003 07:05:26 AM]
Suspicious statistic: I saw a flyer here at Harvard Law with an interesting statistic: It said (more or less) "Women who leave their batterers are at a 75% greater risk of being killed by the batterer than those who stay"; this text appears on many Web sites as well.

     One of the sites gives a citation, Margo Wilson & Martin Daly, (1993) "Spousal homicide risk and estrangement," Violence and Victims, 8, 3-16; and the paper appears to do a comparison between deaths among those women who stayed and those who left, with no control for other variables, such as intensity of abuse.

     This suggests that the statistic seems to mean very little. After all, presumably both the risk of being killed and the desire to leave may be caused by the same thing -- the intensity of the abuse. Someone who occasionally gets slapped (a bad thing, mind you, but that's not the point here) is both less likely to leave and less likely to be killed whether or not she leaves. Someone who has been badly beaten is, I suspect, both more likely to leave and more likely to be killed whether or not she leaves. So the 75% statistic may just flow from this common cause, and may say nothing at all about what it at first seems to refer to, which is the greater danger caused by leaving.

     Of course, there may indeed be a causal relationship here: When a woman leaves an abusive man, this might indeed enrage him enough that he will decide to kill her. The increased safety that comes from no longer being around the man might thus be outweighed -- certainly for some women, and possibly in the aggregate, as well -- by the greater risk caused by the man's rage. But the comparison that the study provides simply doesn't demonstrate this, and certainly doesn't demonstrate the magnitude of the causal relationship. The 75% number, then, impressive as it may be, is largely meaningless.

     To consider a numerical scenario, imagine that there is a group of 40,000 women who are being abused. This group is divided into four subgroups, from the least severe to the most severe. As the severity increases, the fraction of women who leave increases, from 20% to 40% to 60% to 80%. Let's also assume that as the severity increases, the risk of getting killed also increases, from 1% to 4% to 9% to 16% if the woman leaves, and 1.1 times that if the woman stays -- so staying is more dangerous than leaving. Here's what the results would be:

	Group 1	Group 2	Group 3	Group 4	Total
Total women	10000	10000	10000	10000	40000
Number leaving	2000	4000	6000	8000	20000
% of leaving who are kiled	1%	4%	9%	16%
Total who left and were killed	20	160	540	1280	2000
Number staying	8000	6000	4000	2000	20000
% of staying who are killed	1.1%	4.4%	9.9%	17.6%
Total who stayed and were killed	88	264	396	352	1100

So the chances of a woman being killed if she left would be 2000/20000=10%, and the chances of a woman being killed if she stayed would be 1100/20000=5.5%. The woman who left her batterer would be 81% more likely to get killed (10/5.5-1) than the one who stayed, even though by leaving she would have lowered her chances of getting killed by nearly 10%.

     Now of course none of this undermines what I take it to be the broadest message of the people putting up the flyer, which is that spousal abuse is a very serious problem. And even the narrower message, which I take it is that leaving an abusive relationship may actually increase the risk of death -- which means that the "If she's being abused, why doesn't she leave him?" response that some people have to spousal abuse may often be mistaken -- may still be correct. But the simple correlation that the "75% greater risk" figure does not demonstrate this; in fact, it demonstrates next to nothing.

 
[Eugene Volokh, 10/7/2003 07:04:11 AM]
Is Hillary running in 2004? Reader Leonard Murphy pointed me to an FEC page that lists a supposed Hillary Clinton presidential campaign committee. Note, though, that Declan McCullagh at Wired reported in 1999 that a similar Hillary for President 2000 page was created as a result of a seemingly unrelated small "Draft Hillary" operation:

The cause of the apparently misleading info: Arcana buried in dusty FEC regulations, which make little sense at the best of times, and are near-inpenetrable here.

It turns out that devout Hillary fan Tom McMullen kicked off what amounted to a draft-Hillary movement in January when he formed a committee called "People for American Leadership."

As soon as that happened, it triggered a clause in the labyrinthine Code of Federal Regulations, and McMullen registered with the Feds by filling out FEC Form 1.

It may well be that the 2004 page is likewise unaffiliated with Clinton herself, and just the work of a lone enthusiast.

UPDATE: Kathryn Lopez at The Corner takes a similar view.

 
[Eugene Volokh, 10/7/2003 06:58:09 AM]
More electioneering by California government entities: Reader Chris Silvey, an SFSU student, passes along an e-mail that he got from the president of San Francisco State University last night (emphasis added):

From: Robert A. Corrigan
To: sfsu-students@sfsu.edu
Sent: Monday, October 06, 2003 12:43 PM
Subject: The Most Important Thing You'll Do Tomorrow


Dear Colleagues and Students:

Since we started our voter registration campaign a few weeks ago, San Francisco State University has registered almost 1400 new voters -- more than one-third of the total for the whole California State University!

Now, we are just a day away from the next step -- casting a vote. None of us is likely to forget that tomorrow, October 7, is the date of the Statewide Special Election, with the Governor's seat and two propositions awaiting our decision. But to be sure that a busy schedule does not get in the way of voting, I urge you to plan your day around going to the polls.

Polling places will be open from 7:00 a.m. to 8:00 p.m. If you have an absentee ballot, but have not yet mailed it, you may drop it off on Election Day at any polling place in your county.

For this election, many polling places have changed. If you want to confirm your polling place, or get any other information, call your county election office. Several numbers follow.

San Francisco 415-554-4375
Alameda 510-663-8683
Marin 415-499-6456
Santa Clara 408-299-8683
Contra Costa 925-646-4166

Voters can also call a toll-free number (Secretary of State's Office) today or on Election Day to find the location of their polling place: 1-800-345-8683.

Not just the gubernatorial recall, but every one of the four items on the ballot tomorrow deserves our careful attention. Proposition 54 (which both the CSU Board of Trustees and the California Faculty Association have voted to oppose, and which has received widespread attention) and Proposition 53, a significant fiscal measure that has been somewhat overshadowed by the other election issues, are important to Californians.

Let us make our campus voting record as outstanding as our voter registration record. Please exercise this critical right tomorrow.

-- Robert A. Corrigan, president

The "Proposition 54 (which both the CSU Board of Trustees and the California Faculty Association have voted to oppose, and which has received widespread attention)" seems like pretty clear electioneering to me; I leave it to readers to decide whether it's proper or improper electioneering (not an easy question, actually, but I set that aside for now).

 
[Jacob Levy, 10/7/2003 06:32:36 AM]
It seems... That Dan and I might have to challenge Yglesias and Adesnik to a celebratory post-series rumble after the Red Sox crush the Yankees.

But not today. Three heart-stopping games with a daylong fast in the middle... I need some recovery time before I can start drinkin' beer and knockin' around neocon and neolib Yankees-lovers...

Of course, it can't wait too long. On Day 1 of a Cubs-Red Sox World Series, I'm selling all my long-term investments and starting a week-long end-of-the-world party, because you just know the Apocalypse will hit in the 9th inning of game 7 in order to prevent either team from winning.

 
[Jacob Levy, 10/7/2003 06:05:00 AM]
This week's Crescat Sententia 20 Questions: Guess who!

 
[David Bernstein, 10/7/2003 05:56:22 AM]
Radio and Personal Appearances: I'm scheduled to be on the nationally syndicated Blanquita Cullum show tomorrow at 1:30 to discuss You Can't Say That! Thursday morning, I will be on the Russ Fine show in Birmingham during the 8:00 AM hour to discuss the book and promote my noon lecture at the University of Alabama law school, cosponsored by the Federalist Society and the Alabama Scholars Association. At 3:30, I'll be at ten Hoor Room 251 discussing my previous book, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, cosponsored by the History and African American Studies departments.

UPDATE: My Blanquita Cullum appearance has been moved up to 1:15. I'll be on Russ Fine on Thursday from 8:00 am to 8:30 or so.

 
[Eugene Volokh, 10/7/2003 05:27:51 AM]
October is Domestic Violence Month, says the Michigan Office of the Governor (and various other institutions, for instance this one). I think it sounds better as Domestic Violence Awareness Month (which seems to be the official name), no?

     Oh, and check out Domestic Violence Training.

 
[David Bernstein, 10/7/2003 02:59:44 AM]
Pregnant Catholic Schoolgirls: Are Catholic schools in Northern Ireland funded by the government? (Update: yes, say readers.) If not, than this case, awarding a woman damages for being asked to leave Catholic school during her out-of-wedlock pregnancy, is outrageous. The government calls this "discrimination" but why isn't it simply "upholding the school's moral/religious standards?" (Even if the schools are funded by the government, I fail to see the logic in funding Catholic schools and then forbidding them to enforce Catholic doctrine, though I do understand the contrary view that he who pays the piper calls the tune. I'd grant an exception to my view that the school in question should be autonomous if the Catholic school system is essentially a monopolist.)

In the U.S., there have been several cases denying summary judgment to Christian schools that fired teachers who became pregnant out of wedlock. The most recent case I've seen raising the issue was reported in Florida newspapers in June 2002:

An unmarried church day-care worker who agreed when she was hired to live by the "highest Christian virtue" was fired after telling a supervisor she and her long-time boyfriend were having a baby. While church officials say 22-year-old Laura Woodall knew the conditions of her employment, her attorney and officials from the Equal Employment Opportunity Commission say it is illegal to fire a woman because she is pregnant.

As discussed in You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, I believe the Supreme Court's opinion in Boy Scouts of America v. Dale suggests that despite antidiscrimination laws to the contrary, church schools have a constitutional right to fire teachers who become pregnant out of wedlock, or otherwise engage in publicy visible behavior that contradicts church teachings. If the Scouts has a First Amendment expressive association right to exclude a gay scoutmaster, surely a church school has a similar right to exclude a fornicating teacher.

But what if the school fires pregnant teachers, but not male teachers who confess fornication to school authorities? As far as I can tell, this scenario has never come up, though some courts have placed the burden of proof on the school that is seeking to avoid sex and pregnancy discrimination charges to prove that it would have also fired a hypothetical male fornicator. In my view, a school administration could reasonably distinguish between private sins and sins that inevitably become known to the student body, without being liable for "discrimination."

I don't know that firing a pregnant teacher is wise policy, even from the schools' own Christian perspective; there's that whole Christian love and charity business, not to mention the fact that an unemployed teacher is presumably more likely to have an abortion than an employed one [update: and some teachers may have abortions before their pregnancies become known to avoid losing their jobs]. But the question of whether a policy is right or wrong, wise or foolish is very different from the question of whether a private organization has the right to pursue that policy. [Update: but see Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546 (1987), where the Supreme Court claimed that by approving government interference with RI’s membership policies--requiring the admission of women, the Court was serving the Rotarians’ own best interests. The Court argued that its ruling would help RI achieve its stated objective of providing humanitarian service and encouraging high ethical standards. The addition of women, the Court added, would also likely promote RI’s stated goal of ensuring that Rotary clubs represented a cross-section of their communities. Because the Court believed that admitting women advanced RI’s stated goals, the Court reasoned that there was no violation of the right of expressive association. A truly horrible, arrogant opinion.]

Update: A reader points out that the most direct analogy to an unmarried pregnant schoolteacher would not be a fornicating male schoolteacher, but an unmarried male schoolteacher with a visibly pregnant girlfriend.

Monday, October 06, 2003

 
[Randy Barnett, 10/6/2003 09:56:30 PM]
On Deck in San Francisco: Tonight I am in San Francisco to argue another medical cannabis case before the 9th Circuit Tuesday morning. This one is Raich v. Ashcroft and you can read about it here. Three weeks ago, I argued the case of U.S. v. Oakland Cannabis Buyers Cooperative. The issue in both cases is whether the enforcement of the Controlled Substance Act--as applied to these parties--exceeds the powers of Congress under the Commerce Clause, improperly interferes with the traditional police power of the State of California to protect the health and safety of its citizens (thereby violating the Necessary and Proper Clause), and improperly infringes the fundamental rights of seriously ill people to alleviate their pain and suffering and preserve their lives without any compelling justification.

 
[David Bernstein, 10/6/2003 07:22:05 PM]
Cleveland Deli Update: A couple of readers sent me this link to a slightly odd story from the Washington Post about the Cleveland deli with the anti-Semitic murals.

 
[Eugene Volokh, 10/6/2003 07:11:15 PM]
Pot growers and proud of it: I wanted to come up with a few examples for my Crime-Facilitating Speech article, which I'm writing right now, so I searched for some books on drug-making. Well, I tell you, they don't seem terribly clandestine -- there are a bunch available right there on amazon.com. Check out this page, with its 24 customer reviews of the book. Sample (from "A reader in San Francisco, CA"):

Grown a garden before and needed help with pests and problems? I did, but then I got this book. With this book I saved the crop this year, from spider mites to mold - we had it all and were able to find the answers we needed in the Indoor Bible.

The color pictures and drawings are really clear and helpful, and the whole book reminds me of a college text book with it's sections in logical order and a bunch of references at your fingertips to help figure things out.

There are a lot of grow books out there with lots of pretty pictures, but this one is seriously informative and yet easy to use for all us stoners. Great tips on security and safety of indoor gardening make this a lifesaver considering the current state of paranoia in some countries.

I guess the poster trusts (probably correctly) in the relative anonymity of the Net; and given that I found the page by one of those "Customers who bought this book also bought:" references (no, I wasn't buying any of the books, just looking at the Web pages), presumably the customers also assume that the authorities aren't going to be particularly interested in tracking down home growers this way . . . .

 
[Eugene Volokh, 10/6/2003 03:29:44 PM]
Israel and Syria: I don't know much of the details about the Israeli attack on Syria. I think it's quite proper for country A that's under attack by terrorists headquartered in country B to attack those terrorists, if country B won't do it for them (it may sometimes not be prudent, though it's also not prudent to get a reputation as being the sort of country that lets others get away with it); though I suspect this factual predicate was satisfied here, I'm not sure that it was.

     But the reaction to this attack helps explain why many Israelis are quite hesitant about allowing the Palestinians to set up their own state. When the Israelis attack terrorist camps in Gaza or the West Bank, that causes a good deal of foreign grousing, but not a tremendous amount -- it is, after all, Israel policing territory that it is de facto controlling. In fact, Israel has an obligation to police such territory, and certainly a right to do so.

     Israeli attacks across an international border, on the other hand, cause a good deal more international fuss, and tensions even with countries that are generally on Israel's side. Maybe this shouldn't be so; maybe people are focusing too much on national sovereignty over its own territory -- maybe they should be more worried about Israeli attacks on alleged terrorist camps in the occupied territories, or maybe they should be less worried about Israeli attacks on alleged terrorist camps in Syria. But this extra sensitivity to cross-border attacks is traditional, firmly rooted, and understandable (even if perhaps overstated).

     Independence for the Palestinians would thus make it much harder for Israel to fight back against the terrorists' base camps. That may be obvious to many; but those who haven't focused on this, perhaps because they're keenly aware of the costs to the Israelis that flow from the occupation -- governing people who hate you is difficult and dangerous -- might look to the reaction to the Syria incident as one reminder of the dangers of Palestinian independence.

 
[Eugene Volokh, 10/6/2003 03:18:24 PM]
Shocking: Hugh Hewitt writes:

SHOCK JOCK? Shock jock? Yes, that's how NPR referred to me this morning in an account of Arnold's campaign trip yesterday: "AM radio shock jock Hugh Hewitt quickly prompted the crowd to see what they thought about the Los Angeles Times."

I think they ought to have described me as "Long time public television personality and host of the PBS series Searching for God in America Hugh Hewitt..." But that might have caused heart attacks across the NPR landscape.

(Thanks to Virginia Postrel for the pointer.) Indeed, Hugh Hewitt is not remotely a shock jock -- he's actually a very substantive and generally quite polite (though opinionated) radio talk show host. It's a small glitch, and Hugh is right to take it in good humor; but I would have thought that the reporter would check more closely before using a pejorative description such as this one.

     Though if NPR ever calls me "shockblogger Eugene Volokh," I'll at least know I'm in good company.

 
[Eugene Volokh, 10/6/2003 02:17:20 PM]
Apropos the L.A. County Human Relations Commission: Reader Joe Hiegel points me to something that I hadn't noticed, apropos the Commission's criticisms of Prop. 54 -- the "Programs & Projects" page of the Commission starts with the following quote:

Race is the least reliable information you can have about someone. It's real information, but tells you next to nothing.
-- Toni Morrison, 1998

Not by any means a flat contradiction: One can reconcile the Morrison quote with opposition to the Racial Privacy Initiative. But there does seem to be some tension here.

UPDATE: John Rosenberg has more on the Morrison quote.

 
[Eugene Volokh, 10/6/2003 01:53:46 PM]
Anti-Prop. 54 e-mail being sent around to L.A. County computers? A reader who says he or she works for L.A. County says that everyone in his or her office today got the following e-mail. It purports to be an analysis of the effects of Prop. 54, the Racial Privacy Initiative, which would prohibit many forms of data collection about race by California state and local governments -- but given the timing and its text, it seems to be in reality intended as an argument against the initiative. My correspondent conjectures that this was likely sent by the L.A. County Human Relations Commission to a very large group of county employees.

     I express no view about the merits of Prop. 54, the legality or propriety of this sort of pre-election mailing by California government agencies (which the Commission seems to be), or the accuracy of the message. But I do know that lots of people are troubled by this sort of electioneering (I'm genuinely not sure how troubling I should think it to be), so I thought I'd flag this for those who are interested in the subject:

Proposition 54, the Classification of Race, Ethnicity, Color, or National Origin (CRECNO) Initiative, would prohibit state and local governments from collecting, using, or analyzing data on race, ethnicity, or national origin, with certain limited exemptions. The Los Angeles County Board of Supervisors instructed departments to work closely with the County's Human Relations Commission to inform the public of Prop 54's impacts on LA County government.

The following is a summary of what county departments have reported on any impacts of Proposition 54 on the department.

Not all LA County Departments would be affected in the same ways.
Some county departments would not be impacted at all by Prop 54, and some departments might find that Prop 54 makes their job easier by reducing the data they need to collect. However, many departments would have a more difficult time providing effective service to county residents.

There are questions about how the Proposition would be implemented.
Several aspects of Proposition 54 are not clear at this point, and county officials are left with many questions about how departments would be affected. Several departments have indicated confusion as to the implementation of Prop 54. For example, the Department of Health is concerned that some physicians, in an effort to comply with Proposition 54, may exclude data that are in fact exempt when completing reports sent to the Department of Health Services. This would result in under-reporting of certain diseases, and could therefore reduce funding dedicated to their prevention and treatment.

Prop 54 would directly cost LA County an estimated $6 to $8.3 million dollars.
Direct costs due to the modifications of computer systems and forms and the requisite training are estimated by County departments to be approximately $5,981,449 to $8,267,353, with 28 out of 38 departments reporting. Indirect costs, addressed below, are more difficult to estimate. Also, departments estimated that 35,608 county employees would need to receive some form of retraining.

LA County would have more difficulty building a diverse workforce.
The Office of Affirmative Action Compliance would have a more difficult time ensuring a diverse workforce without data on race, ethnicity, or national origin. Employment discrimination investigations depend on data that would no longer be available to prove or disprove allegations.

Several LA County Departments would not have the information to appropriately allocate resources, making them less effective and less efficient.

Several departments are concerned that without data regarding the needs of particular racial or ethnic groups, programs and services lack the specificity required to impact those groups needing the resources the most.

For example:
The Department of Children and Family Services indicates that if it were unable to use data on race/ethnicity/national origin for resource allocation within the Department, there would likely be an inequitable allocation of resources, resulting in lower quality services for vulnerable families and children within the county.

The Department of Mental Health notes that, without information about certain groups’ needs, prevention, education, and outreach services would have to be offered to the entire community, resulting in 1) higher cost, 2) a wasted effort on communities that might not need outreach, prevention, and education services, and 3) the potential need to curtail other services, given limited financial and human resources.

The Department of Health Services cites that without racial and ethnic data, health disparities would be difficult to identify through its LA Health Survey, which has found significant differences in breastfeeding, diabetes, sudden infant death syndrome, childhood asthma, alcohol consumption and abuse, tobacco smoking, HIV testing, and health insurance coverage for children.

A complete copy of the Report can be obtained by calling 213-974-7611, or by going to our website:
The LA County Human Relations Commission
www.lahumanrelations.org

If my correspondent or I have erred on the facts here, please let me know.

 
[Eugene Volokh, 10/6/2003 12:40:07 PM]
How do you get an academic to blog? At the BloggerCon Blogging and the Law panel yesterday, someone asked: How do you get an academic to blog? I'll set aside the "Why would you want to get an academic to blog?" question, and instead answer the one that was asked: Get him to start reading other profbloggers. Find a couple of blogs that you think he'd like, and pitch them to him. If he starts reading them, and gets hooked, then one or more of the following will happen:

1. He'll think "Hey, I can do that."



2. He'll think "Wow, that guy seems to be having fun blogging -- and he's getting his ideas out to [hundreds / thousands / tens of thousands of readers] while my articles are being read by the usual 17 readers that the typical scholarly article has."



3. He'll start sending the blogger messages that he hopes the blogger will post. The blogger will post some, and the mark -- er, the person you're trying to persuade to blog -- will be happy. But at some point, the blogger may also say, out of a mixture of respect and exasperation, "Say, maybe you should get your own blog." So the mark is hooked on the possibility of getting his stuff published, but his supplier has cut him off. Next stop: Growing your own.

     This won't work for most professors, who quite reasonably conclude they have better things to do. But I think it's the only thing that can work, and I'll bet that most profbloggers got started more or less this way.

 
[Eugene Volokh, 10/6/2003 09:06:26 AM]
Popes: If the cardinals ever elect a female Pope, shouldn't she be called a Mome?

 
[Tyler Cowen, 10/6/2003 08:27:11 AM]
The new MacArthur awards: The new list of winners was announced on Sunday. Fewer of the picks were known to me than usual, and no economist made the grade. One pick caught my eye, namely the composer Osvaldo Golijov.

Golijov's masterpiece is his Pasion Segun San Marcos [St. Mark's Passion], the link has some brief audio samples.

An Amazon.com review provides a nice summary: "Osvaldo Golijov is an inspired Argentinean-Jewish composer, and his St. Mark Passion, an 86-minute, in-your-face work--drawing from African American, South American, Cuban, European, and Jewish music--is an exciting, vibrant, percussion-filled experience with the rhythmic thrust of Carl Orff." Here is an excellent article on Golijov and his favorable reception by most critics. If you are looking for contemporary classical music that is both deep and enjoyable, here is one place to start.

 
[Eugene Volokh, 10/6/2003 07:31:09 AM]
Profbloggers: Why are there so many of the leading bloggers academics? A few thoughts:

     1. The observation bias explanation: Even if the blogging impulse is as common (or rare) among academics as among others, academics are more likely to become relatively prominent. First, we have a credential that makes people notice us more (whether rightly or wrongly). Second, we do actually tend to know quite a bit about certain fields, which brings in readers, readers who stay even when we write outside our field of expertise. So it looks to you like there are a lot of blogger academics, because you judge their number based on what you see, and you disproportionately see the more prominent blogs. (Special twist: You are reading a mostly academic-written blog, which probably reveals that you tend to like academic blogs. People who don't read InstaPundit, this blog, and various other academic blogs probably perceive academic blogs as rarer than you or I do.)

     2. The job description explanation: You're getting what you're paying for. University professorships are a way that society subsidizes intellectuals (through tax money, through charitable contributions, through social conventions that give research universities special prestige as validators of undergraduate quality, and so on), by giving them lots of free time to think and write about whatever they like. Why would society want to do a silly thing like that? Because, the theory goes, intellectuals who are hired as professors will create intellectual public goods -- things that people will ultimately benefit from, but which are hard to make money on. A classic, and especially valuable, example is basic research. Another is popularization of technical ideas for laypeople, for instance when a professor is used as a (free) resource by journalists, or when a professor bypasses the middleman and blogs instead.

     Maybe if micropayments became really cheap and easy, such popularizers and opinionistas could get paid directly (Andrew Sullivan is trying to do that on the opinion journalism front), and not have to rely either on book sales or newspaper columns (which have their limitations, in terms of timeliness, format, and subject matter) or on an academic job. But for now, we profbloggers are paid through the "give academics enough to live on, and see what goodies they'll come up with" system. It's not obvious that blogging is the optimal use of our time (or even part of the basket of uses for our time). On the other hand, it's not obvious that it's not, since the other rival candidates (e.g., writing law review articles) have their own drawbacks (e.g., limited audiences and limited relevance).

     3. The academic selection bias explanation: Professors went into the academy because they like to spread their ideas, and because they like to talk. Blogging is a good way of doing that.

     I'm sure there are plenty of other explanations, too, but these are just the ones that struck me at this moment as being likely the most relevant.

 
[Eugene Volokh, 10/6/2003 07:23:45 AM]
Equal treatment of religion: The Supreme Court just allowed the federal government to participate in the oral argument of Locke v. Davey, the case which will decide whether states may exclude religious programs from school choice funding, or whether school choice systems that help fund private secular education must equally include private religious education. The government is on the side of constitutionally mandated equal treatment, which I think is correct. Oral arguments rarely change the outcome in a case, so the federal government's participation in oral argument isn't that important; but it's always possible that it will help a little bit. (In theory, it might also hurt, but the Solicitor General's people are generally very good, so I doubt that that would happen.)

 
[Eugene Volokh, 10/6/2003 07:05:48 AM]
Private colleges and speech codes: The First Amendment, by its own terms, applies only to the federal government; the Fourteenth Amendment applies the same rules to state and local governments; but private institutions -- employers, universities, landlords, and such -- aren't covered. That's the so-called "state action doctrine" (with the "state" referring to the government, whether state or federal), and it explains why private college speech codes don't violate the First Amendment.

     But what about government funding? If the colleges get a lot of government funds, aren't they bound by the Constitution? No: The Supreme Court pretty firmly held, in Rendell-Baker v. Kohn (1982), that government funding doesn't make private universities "state actors." If the government attaches speech-restrictive strings to the funding (e.g., "We'll give you these funds only if you promise to restrict student speech"), then the government may be held responsible for the speech restrictions. But if the government just gives the funds, and the private institution imposes speech restrictions entirely on its own, then there's no First Amendment problem.

     What about race and sex discrimination, you ask? Isn't such discrimination by private colleges that get government funds unconstitutional? No, it isn't -- there are federal statutes that explicitly restrict race and sex discrimination by recipients of government funds (Title VI for race, Title IX for religion), but the Constitution by itself wouldn't have had this effect. And there are no similar federal statutes that prevent private recipients of government funds from restricting speech.

     So far, I've spoken about the federal Constitution and federal statutes. A few state statutes and constitutional provisions constrain the ability of private universities to impose speech codes. The Leonard Law in California generally bars such private university speech codes; the New Jersey Supreme Court has also interpreted the New Jersey Constitution as prohibiting certain speech restrictions by private universities (State v. Schmid, if I recall correctly). But I don't know of any other such rules in other states.

     Finally, private universities may be sued for restricting speech if they've contractually obligated themselves not to restrict speech, for instance in a professor's tenure contract or in a legally binding student handbook. I'm not sure, though, how successful such lawsuits would be, especially when they're founded on student handbooks, which may well be interpreted as not creating legally binding contracts.

     In any case, that's a thumbnail sketch of the issue, prompted by an e-mail question I got from a reader.

 
[Eugene Volokh, 10/6/2003 06:38:55 AM]
More on New Hampshire and the Free State Project: Reader Lorenz Gude writes:

I grew up in New Hampshire and there are some other aspects of the way the state is run politically that have interesting possibilities for libertarians besides the large legislature. I think first of the town meeting which includes all citizens. For example in the 70s there are about 4 towns in NH that have access to the sea and when the New Hampshire governor and Aristotle Onassis wanted to build an oil refinery in NH they had to get it by those 4 town meetings. They couldn't, and there was no way they could force the towns with 'superior' state law or, well, bribe over half the town population on the sly.

Also each school district has to have a meeting of all citizens to pass the school budget. I've seen the superintendents and other professionals used to getting their own way get knocked back 3 and 4 times no matter how hard they scolded the citizenery. A lot of that budget is 'mandated' by state law and we all know about the strings attached to federal funds. It will get interesting if even a few well informed libertarians start encouraging their fellow townspeople to tell the state to keep their laws and their funds. There are more than a few natives who feel that way already. Folks in NH don't need much encouragement when it comes to not spending money.

Of course, there are a couple of little problems. One, firewood is more important than politics in NH, and two, these libertarians will have to bide their time for at least 100 years before they are regarded as anything else but furiners.

Good points.

 
[Eugene Volokh, 10/6/2003 05:49:01 AM]
Three letters: Here's a puzzle -- find three letters out of which you can make the most three-letter words, using each letter exactly once. (Each word must be spelled differently; multiple meanings of the same spelling, such as the different meanings of BAR, don't count.) Out of A, B, and C, for instance, you can only make one (CAB). The words must follow the Scrabble rules: They must be writable in all lower case, which excludes initialisms (such as ABC), place names, and abbreviations that must be followed by a period or must include an apostrophe. Naturally, the maximum number of words you can make out of three letters is six.

     So far, the best answer I've found allows you to make five words. Can you find sets of three letters that can produce six possible words? If so, please e-mail them to me, but if any of the words are at all unusual, you must include a URL to an online dictionary page that supports your claim. I will not search for the words myself. Also, no need to respond unless you have a sixsome; my five-word answer is here.

UPDATE: Reader Jimmy Wales writes:

http://phrontistery.50megs.com/scrabble3.html

This page claims to have all of the 3 letter scrabble legal words. They have official lists for American tournament play (TWL98) as well as for UK and Commonwealth play (SOWPODS).

I wrote a perl script to analyze both lists, and it turns out that [the Volokh answer] is the only combination that can make 5 words. None can make 6. . . . [The same is true e]ven if I combine both lists (as they each include words that are not on the other) . . . .

And finally, abandoning the Scrabble rules completely, I put together a huge list of English words from several sources (unix dictionary, Princeton's word net, the Scrabble lists) and ran the program again. This revealed a few more 5-score combinations, but of course these don't meet the rules of the contest . . . .

 
[Eugene Volokh, 10/6/2003 04:32:52 AM]
"Takin' It to the Jury": Would-be pornographers should take note of one way you can make your work have "serious political value," which would prevent you from being prosecuted for distributing obscenity:

The district court determined that exhibit 9, "Takin' It to the Jury," has serious literary or artistic value . . . and, therefore, found as a matter of law that these movies are not obscene. "Takin' It to the Jury" depicts the deliberation of a six-person jury in an obscenity case. The jurors discuss the community standard requirements, and when they discuss specific scenes of the movie that they are reviewing for obscenity, various jurors fantasize about themselves in similar scenes.

Based on our de novo review . . ., we conclude that the State did not prove beyond a reasonable doubt that "Takin' It to the Jury" lacked any serious literary, artistic, political, or scientific value. The movie appears to be an attempt by the producers to instruct viewers in the basics of obscenity law with political commentary regarding the lack of validity and usefulness of obscenity laws. Therefore, we affirm the determination made by the district court . . . as to exhibit 9.

I express no opinion on whether such a tactic, despite its legal efficacy, might nonetheless interfere with the, er, artistic appeal of the work at issue. Main Street Movies, Inc. v. Wellman, 598 N.W.2d 754 (Neb. 1999).

Sunday, October 05, 2003

 
[Juan Non-Volokh, 10/5/2003 10:27:43 PM]
Ironies Abound: MoveOn.org, the liberal activist group founded to oppose the impeachment of President Bill Clinton, has started running advertisements criticizing California gubernatorial candidate Arnold Schwarzenegger for the way he allegedly treated women in the past. An e-mail to MoveOn.org members warned "the truth about his character is only now starting to get out. We have just a few days to make sure everyone in California knows who this man is." It seems character counts for politicians after all.

 
[Tyler Cowen, 10/5/2003 04:53:39 PM]
Why not publish everything on the Internet? I've been thinking lately about why my discipline, economics, doesn't publish everything on the Internet, with subsequent commentary on the Internet as well. Some people, such as Brad DeLong, think this scenario is in the cards, only a matter of time. Many parts of physics already operate this way. So why don't all fields?

I might add that Gordon Tullock predicted this possibility long ago. When Gordon and Brad agree, there is much force behind the position.

I am inclined to agree with Brad and Gordon, but I thought I should give the contrary view a closer look. Here are some possible reasons (or not) why a research field would not become Internet-based:

1. The field is too big. Perhaps a field moves to the Internet only when you can follow the whole thing on a few easily accessible web pages.

2. The field is too small. Maybe the relevant insiders already digest the stuff through informal networks, and they don't need to "air their laundry" to a broader public.

3. The field is too irrelevant. Maybe the important work is digested on the web in advance, but that is only a very small portion of the total. So Alan Krueger on the minimum wage, Paul Krugman on Bush, and John Lott on guns -- all important topics -- do get done on the web.

4. Publication must be costly to signal quality. Anyone can publish on the Internet, thus there is no exclusivity.

5. "Paper publishers" will market and promote journals, hoping to extract funds from university libraries, but no one will invest resources in promoting a web journal. Good editors and writers therefore go with paper publishers because they want the accompanying promotion.

What is my take on these? #1 and #2 contradict each other, you can't have them both. Neither seems to fit the facts, however. We don't see the smaller (or larger) fields gravitating towards the web in any simple way, not that I am aware of. #3 doesn't explain why the irrelevant work shouldn't move to the web as well; OK, maybe it is irrelevant, but why not bore people more cheaply? #4 I just don't buy, a web journal edited by Harvard's Andrei Shleifer would have higher status than a web journal edited by an unknown.

#5 strikes me as the most likely. It implies that, over time, the Internet itself can be used to promote a journal at very low cost. Promotion/publicity might become altogether less important, and at that point the Web-based scholarly world can take over. So you can think that a web-based scholarly world is on the way, without necessarily expecting it immediately.

Can #5 explain why physics has moved to the web and economics has not? I don't know. Maybe physics ideas are more easily proved (or disproved) than economics ideas. Then the ideas don't need journal promotion so much. And the journals too would need promotion less. Just a hypothesis, I don't know much about the world of physics. Your thoughts on the matter are, as always, welcome.

 
[Juan Non-Volokh, 10/5/2003 03:38:32 PM]
Joe Lieberman "Lies": In a Fox News Sunday interview this morning focused on President Bush’s alleged lack of integrity, Connecticut Senator and Presidential hopeful Joe Lieberman made several false statements of his own. For example, Lieberman stated that the Bush Administration’s "Clear Skies" proposal to reform the Clean Air Act "actually would increase pollution" and "give more kids asthma." He's wrong on both counts (and should know better as a member of the Senate Environment Committee.

First, the proposed "Clear Skies" legislation will reduce utility emissions of NOx and SOx by around 70 percent. As I have noted before, the worst that can be said of "Clear Skies" is that it will reduce utility emissions marginally less than they might be reduced under current law – I say "might" because current projections presume that the current regulatory process will stay on schedule, and this is unlikely. Either way, this is not a policy that "actually would increase pollution."

As for the other statement, it is well-accepted that outdoor air pollution does not "give kids asthma." Asthma may be caused by many things, but outdoor air pollution is not likely one of them. Over the last few decades, asthma rates have increased substantially while outdoor air pollution has declined steadily. Outdoor air pollution does lead to asthma attacks, however. That is to say, a child who already has asthma may get sick, or even require hospitalization, when outdoor pollution levels increase. Thus, while it would have been correct for Lieberman to say that pollution harms kids with asthma, it was wrong for him to say increased pollution would "give more kids asthma." Again, while I would not expect all Senators to know this, I think it is reasonable to expect such knowledge from those on the Senate Environment Committee.

POST-SCRIPT: I do not actually believe that Lieberman "lied" in this interview. I believe he made factually inaccurate statements. The latter do not always constitute the former, even where, as here, the speaker should know better. A "lie" is a deliberately false statement, typically made with an intent to deceive. Not just any false statement, or bit of spin, will do. Intentional deception is key. I wish those who accuse their political opponents of telling "lies" at the drop of a hat might want to keep this in mind.

 
[Eugene Volokh, 10/5/2003 06:55:01 AM]
Weblogs and Law: Off this afternoon to moderate the Weblogs and Law panel at BloggerCon here at Harvard. Today, it turns out, is open to everyone, with no admission fee required, so if you're around Boston and want to come by for this panel or any other, you're welcome to do so. My panel is 1:30 to 3 in Pound Hall 202; here's the schedule for all the others, and here's a law school map.