Saturday, October 25, 2003

 
[David Bernstein, 10/25/2003 08:15:16 PM]
Straw Man Criticism: Blogging, and being involved in public debates more generally, leaves one open to criticism, and sometimes the critics even turn out to be right. But in a couple of recent instances, bloggers have criticized arguments I never made, setting me up as a libertarian strawman.

Responding to an excerpt from my You Can't Say That! book posted at Frontpage.com about the ACLU's abandonment of civil liberties in favor of antidiscrimination concerns, Mithras states: "According to Bernstein, nothing about fighting discrimination in employment, in housing, in public accomodations, or in education can possibly require government action." Read the excerpt for yourself; I never make this argument, nor do I make this argument elsewhere in the book. Nor is it a logical implication of my contention that as a civil libertarian organization, the ACLU should prefer constitutionally protected civil liberties to antidiscrimination laws when there is a conflict, which there often isn't. [Aside: In the comments section Mithras, who claims my arguments regarding the ACLU are "silly," acknowledges that speech codes at public universities are "clearly unconstitutional." Is Mithras aware that all three California chapters of the ACLU are in favor of such speech codes, and that the national ACLU has given an honorary position to Mari Matsuda, the leading legal academic champion of changing First Amendment law to permit such speech codes?]

Meanwhile, Brian Leiter acknowledges the correctness of the sole point I made in a post on vouchers, which is that the extensive funding of vouchers would lead to a proliferation of private schools. Leiter then goes on to argue against vouchers, responding to arguments I never made (again, read my post yourself). I happen to think that Leiter's argument that American public schools are "underfunded" is risible, but he should have the courtesy of waiting until I state my support for vouchers, and my reasons for that support, before attributing views to me. (For criticism of Leiter's substantive point, see this post by Michael Rappaport).

And it's not just bloggers who create libertarian strawmen. Back in the days of the Bernsteinblog, I noted that a review in an academic journal of my previous book, Only One Place of Redress, claimed that I argued that a "'classical liberal' state promoting free market principles is the best remedy to end racial discrimination." I actually explicitly stated that "the classical liberal vision of civil rights admittedly holds little utopian promise. It does not obligate the state to eradicate discrimination, or to guarantee 'equal opportunity.'"

I understand why opponents of libertarianism are eager to find libertarian claims to rebut. I only ask that these claims not be attributed to me unless I've actually made them. While the harm in the blogging world is probably minimal, the sort of attitude that makes all libertarianish thinkers responsible for every disreputable or un-pc argument that the left thinks is generally attributable to libertarians--regardless of whether the libertarian in question has actually expressed that point of view--can lead to significant discrimination against libertarianish folks in the academy. Recall that when I presented a job talk at a major Northeastern law school on African American legal history, I was asked completely irrelevant questions about affirmative action, apparently on the theory that (1) all libertarians must oppose affirmative action; (2) any libertarian writing about race in any context must be doing so because he is trying to promote an anti-affirmative action agenda, however subtly; and (3) that it's proper to ask a libertarian candidate about this subject even if the candidate has not said anything about it. Needless to say, all three of these propositions are incorrect.

 
[Tyler Cowen, 10/25/2003 08:10:31 PM]
Private trading in antiquities: It seems that the Israelis are considering privatizing part of the antiquities market, and allowing private trading:

"The Antiquities Authority is considering selling pottery shards unearthed in archaeological digs on
the open market. If the move is approved, it could be an international precedent - a state authority
established to protect antiquities will be trading in them. "

One commentator noted: "It's almost like letting the police sell drugs..." N.B.: This is not my idea of a reductio ad absurdum. I do not favor complete privatization of the antiquities market, but I would rather see the police sell marijuana than throw people in jail for possession, as they currently do.

Thanks to binref.com for the link.

 
[Jacob Levy, 10/25/2003 02:52:42 PM]
Book searches and the Authors' Guild complaint For what it's worth, I signed a contract-amendment with OUP in the spring authorizing the creation of services like this. I had thought it mostly had to do with libraries buying subscriptions to Oxford Scholarship Online, and hadn't realized how dramatic the difference would be if the service was made available, in conjunction with lots of other publishers, to Amazon. But Oxford was very careful to get an amended contract, and although I didn't envision Amazon usage, it looks to me as if the contract clearly allows for the possibility. So even if I as an author minded (which I don't), I think my publisher has handled it appropriately.

 
[Eugene Volokh, 10/25/2003 01:53:50 PM]
Academic freedom: Eric Rasmusen reports on what appears to be the University of Illinois' attempt to restrict the Web speech of one of its professors:

I've just come across a case of a very good university, the University of Illinois, apparently suppressing a professor's academic freedom to avoid offending diploma mills. A tenured physics professor, George Gollin, set up a website on the subject of diploma mills-- low-quality schools that sell unaccredited degrees-- on the computer used by his high energy physics group. (This computer contained other pages, including a a recipe for stir-fried kangaroo, which apparently the University thinks is appropriate for such a computer.) On July 25, CBS News did a story about his website. The university started getting complaints and threats of lawsuits from the diploma mills.

What happened next is a little unclear, but by October, Professor Gollin had moved his materials to the George Gollin homepage, so, as usual with university attempts to suppress information, the information didn't really get suppressed, but the university was able to demonstrate its strong desire that it be suppressed. What is unclear is why the website was moved. . . .

[From a] subscription-only [story] from The Chronicle of Higher Education, October 24.

Under pressure from administrators at the University of Illinois at Urbana-Champaign, a tenured physics professor has shut down a Web site he created to make information available about the unaccredited distance-learning institutions often referred to as "diploma mills."

The professor, George Gollin, said administrators ordered him to remove the material from the university server last month because proprietors of some of the online institutions mentioned on his site had threatened to sue the university. The administrators told him that his research into the controversial institutions did not meet the "public service" obligation for faculty members of land-grant universities, he said.

. . .

But Robin Kaler, a spokeswoman for the university, denied that Illinois had ordered the professor to remove the material. "We were trying to help him find a more appropriate place for his Web site," she said, adding that a Web site about diploma mills should be "housed in a place that deals with accreditation."

The university did not view Mr. Gollin's research into diploma mills as meeting the institution's public-service requirement, Ms. Kaler said, because the work is not related to physics, his area of expertise. "He has a lot to offer the community and the world outside of his discipline," she said. "But for the university support he receives, it's for his work in his discipline."

Rasmusen also provides, on another page, his commentary on the question.

     Based on the facts as Rasmusen reports them, and especially the quotes from the Chronicle of Higher Education, this strikes me (and Rasmusen) as pretty bad behavior on the University's part. As best I can tell from the CHE story, the university's Web hosting policy is more or less "We'll host material that's related to your research, teaching, and public service in your area of expertise; and we might host other material, too, but when we get threats of lawsuits based on that other material, we'll no longer feel obligated to host it." This is probably a constitutionally permissible policy in general, because it's not viewpoint-based (as opposed to a policy of hosting a wide range of material but not material that, say, expresses anti-gay opinions). When the government sets up a so-called "designated public forum" by voluntarily opening up its property for some group of people to speak on, it can impose such viewpoint-neutral limits on the forum.

     But -- certainly as applied here -- I think this policy is quite unsound. Gollin wasn't just speaking about some random hobby-horse. He was complaining about what he saw as corruption of the higher education system; university professors in all disciplines may rightly view it to be part of their "public service" mission to speak up against such corruption. University professors from all disciplines should step up to publicly fight threats to universities as a whole, whether these threats come from, for instance, restrictions on academic freedom, cheating by university students, or cheating by diploma mills. That's not just a matter that should be left to, say, professors of education or law. I think universities should support their professors' public service in all sorts of areas, but especially when the public service relates to maintaining the health of the higher education system.

     What about the threat of libel liability? (The university probably wouldn't be liable simply for hosting the material, under 47 U.S.C. sec. 230; but it might be liable as the professor's employer for what the professor does as part of his employment, and its actions might have been aimed at establishing that the professor's speech here was outside the scope of employment.) Well, if the university found that the professor's speech was indeed false and defamatory, then they could properly refuse to host it -- or, in some situations, even discipline the professor, if they found that he was knowingly fabricating his claims or was even grossly negligent in his scholarship.

     But if they thought the professor's speech was accurate, and they just wanted to avoid the hassle and cost of a lawsuit, then I think that this is a reaction that's unworthy of a center of learning. I certainly understand why a business would act this way; but a university is supposed to be more than a business that aims to minimize its costs of operation. It's supposed to be a place that supports the spread of ideas, ideas that are largely developed by its faculty. Part of its duties to its faculty is to help protect their scholarship even if that means bearing some cost and legal risk.

     If the university investigates the matter and concludes the professor was guilty of libel, then it's entitled to banish his speech. But absent some such finding, it seems to me that the university's job is to defend its faculty -- especially when, as here, the faculty member is trying to defend universities generally. And by getting a reputation as an institution that's willing to stand by its faculty, the university will probably decrease the number of demand letters and credible lawsuit threats that it's going to get.

 
[Eugene Volokh, 10/25/2003 07:49:18 AM]
Trouble for Amazon's book search? Here's what the Author's Guild has to say about it. I don't know whether their claims about the authors' contracts are accurate, but if they are, this could pose problems for Amazon. (Amazon would still have a decent fair use claim even if they can't claim a contractual right, but it won't be open and shut, for some of the reasons the e-mail below describes.) I leave it to readers to decide whether this shows that the copyright system imposes too many transaction costs on worthy endeavors, that publishers and other businesses violate authors' rights, both, or neither:

From: AuthorsGuild Staff [mailto:staff@authorsguild.org]
Sent: Friday, October 24, 2003 5:09 PM
To: Member@authorsguild.org
Subject: Amazon's New Book Database

You might have read about Amazon.com's "Search Inside the Book" program, launched yesterday, in which the entire texts of participating publishers' titles are available on the Amazon.com website. Visitors can locate titles containing search terms they choose, and then access the two pages preceding and the two pages following the page containing those terms. Amazon sets a limit that permits a user to see no more than about 20% of a particular work. The company reports that publishers consented to the placement of all 120,000+ titles in the program.

We've reviewed the contracts of major trade publishers and concluded that these publishers do not have the right to participate in this program without their authors' permission. We wrote to these publishers after we learned about the program in July. Most argued with our interpretation of their contract (no surprise there), but some have said that they would remove a work from the program if the author insisted.

Whether your works should be in the program is hard to say. This program will likely prove to be useful in promoting certain titles. Midlist and backlist books that are receiving little attention, for example, may benefit from additional exposure in searches. For other titles, the program may erode sales. Most reference books would be at clear risk in such a database. So would many (if not most) travel books and cookbooks. Most fiction titles are not likely to be greatly threatened.

When we learned of the program, we thought that it would be impossible to read more than 5 consecutive pages from a book in the program. It turns out that it's quite simple (though a bit inconvenient) to look at 100 or more consecutive pages from a single lengthy book. We've even printed out 108 consecutive pages from a bestselling book. It's not something one would care to do frequently, but it can be done. So a reader could choose to print out all the fish recipes from a cookbook in the program. Or the section on Tuscany from a travel book. We believe readers will do this,
and the perplexing question is whether the additional exposure for a title -- and the presumptive increase in sales -- offsets sales lost from those who just use the Amazon system to look up the section of a book when they need it.

Other books at especially high risk include those that sell to the student (particularly college student) market as secondary reading. A student could easily grab the relevant chapter or two out of a book without paying for it. Students certainly have the time and most likely the inclination to do so, and, with the help of some willing colleagues, could print out the entire texts of books in the program.

We'll be sending you more information about the program shortly, and we're going to be in further touch with the major publishers. If you'd like a book removed from the program and your publisher isn't cooperating, please let us know.

-----------------------------------------
Copyright 2003, Authors Guild. This work may be forwarded and posted, so long as it is not edited. www.authorsguild.org

UPDATE: My friend and colleague Steve Bainbridge shares the Guild's concerns. I express no views on the economic or the legal question (in part because to answer the legal question I'd have to see just what the contracts say).

 
[Eugene Volokh, 10/25/2003 07:43:10 AM]
NPR's report on the Schiavo case: Mickey Kaus critiques it -- if he has the facts right (and I've found him to be quite trustworthy), it's a sad commentary on NPR bias. This is a difficult case, with good arguments on both sides; NPR doesn't seem willing or able to do it justice.

 
[Tyler Cowen, 10/25/2003 07:06:52 AM]
Happy to be back home: I very much enjoyed my outings and talks in Tennessee and Dallas. In Tennessee I gave one of my "economics of music" talks, this time about old-timey music, country and western, and gospel; in short the talk was about how music evolved in Tennessee and nearby parts (I've done the same in Mississippi), and the centrality of market forces to that evolution. The fun thing about the talk is using actual music samples, and then discussing how economic forces shaped the musical innovation. So I was able to play Roscoe Holcombe, Elvis Presley, and Mahalia Jackson, among others, for people, and then explain how those ideas came about.

I disagree with Charles Murray's recent contention that the twentieth century shows fewer aesthetic peaks than previous times (I'll post more detailed comments on Murray's new book soon). We simply need to look for them in different places, and in different ways. And we observe a far greater "aesthetic division of labor." So no single "old-timey" star has the cache of Bach, or anything close to it. Nor are many contemporary musicians so prolific as a composer. But old-timey music, taking numerous individual contributions as a whole, is something wondrous, startling, often scary, and most of all deep. Try this CD, American Primitive, selected by the late, great John Fahey, if you are looking for a place to start. You need to listen to each cut individually, just don't through it into your car CD player.

Friday, October 24, 2003

 
[David Bernstein, 10/24/2003 05:47:37 PM]
Gang Rape In France: The Times carries this disturbing story about gang rape among North African immigrants in France, and tolerance of the practice by the immigrant community.

 
[Jacob Levy, 10/24/2003 01:51:12 PM]
You know it's bad when... Richard Gephardt can credibly accuse you of of adopting a position so protectionist that it's "demagoguing."

I hereby invite commentary from the libertarians-for-Dean crowd about trade. Bush has been awful on trade, of course. But I'm just not going to get enthusiastic about someone running for president on the platform that Bush hasn't been protectionist enough, someone who promises to go still further in that direction. Everyone professes to think Dean's a straight-shooting kind of guy. Libertarians-for-Dean, do you believe Dean's promises about trade?

I'm pretty close to launching libertarians-for-Lieberman. I don't necessarily want Lieberman to be president; but I sure want him to do better than humiliatingly-badly in the Democratic primaries, since right now he's the most pro-free-trade candidate from either major party. It was a major accomplishment of the Clinton restructuring of the Democratic Party that it beat back the Gephardtians and got trade agreements passed. I'm not going to be happy to see the Democrats (whether they win or lose the White House) revert to their bad old ways on the issue.

Yes, I'd probably prefer Lieberman to Dean on other grounds-- not least the foreign policy questions that are attracting some libertarians to the latter. (I felt like writing Joe a check purely on the basis of the speech he gave at the Arab-American convention last week, though I didn't in the end.) But it's trade, and the future of the Democratic Party on trade, that concerns me. One of the things that's supposed to be hopeful about the Tuxeira "emerging Democratic majority" thesis is that it's a Democratic Party built on professionals rather than unions, and so friendlier to trade. That's the kind of Democratic Party I would think libertarians should want to encourage.

 
[Eugene Volokh, 10/24/2003 12:39:31 PM]
Bumper sticker law: If we're going to have posts about bumper stickers, might as well throw one in about bumper sticker law: Cunningham v. State, 260 Ga. 827 (1991), which struck down a statute that read

No person owning, operating, or using a motor vehicle in this state shall knowingly affix or attach to any part of such motor vehicle any sticker, decal, emblem, or other device containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body.

     Cunnigham was ticketed for a bumper sticker that said "Shit happens," and he challenged the conviction on First Amendment grounds. The Court sided with Cunningham, relying (correctly) on Cohen v. California, 403 U.S. 15 (1971), which upheld Cohen's right to wear a jacket that contained the words "Fuck the Draft." Just thought you'd want to know.

 
[Randy Barnett, 10/24/2003 11:15:23 AM]
The Event of the Age: Victor Davis Hanson explains here why "each day the great gamble in Iraq is taking on significance that transcends the immediate tactical advantages that accrued from ridding the world of Saddam Hussein's savagery."

 
[Jacob Levy, 10/24/2003 10:07:21 AM]
More on the new Amazon toy: From Russell Arben Fox; and another use for it, from Michael Jennings. I'll be especially pleased when the function is extended to amazon.fr , since French intellectual books are shamefully spotty in whether they have indices at all.

UPDATE: laloca dissents, though in a kind of generalized information-overload way. More from Kevin Drum, Steven Johnson, and Virginia Postrel. Virginia's exactly right about this:

One of the most exciting effects of Amazon's full-text search is that it restores books to students' reference sets. As many a professor has complained, kids these days think if a text isn't on the Internet it doesn't exist. But not much written before the mid-1990s, and very little in books, can be Googled. Hence, for many young (or busy) researchers, most of the world's written knowledge might as well not exist. Amazon's search engine is a great advance for civilization--and for authors. Work that would have gone unread will now be read and, along the way, books that would have gone unsold will now be bought.

And one correspondent points out to me that the engine provides a slight boost to the catching-plagiarists side of the technological arms race between plagiarists and thhose trying to stop them. Anything that makes text and phrase searches of more sources free might tempt some into copying-- but it also makes it easy to catch them, since the enforcing prof can enter phrases from dubious papers. But I'm not sure how much plagiarism comes out of books anymore anyways; finding the right passage in a book to copy is more work than going to an online paper mill. [NOTE TO STUDENTS: That does not mean the paper mills are a good idea. The quality of the papers is conspicuously low. You're going to be surprised at how easy it is for a prof to sniff out a paper from one of them-- and the fact that you went behind a paid-credit-card wall to get the paper provides a lot less protection than it used to...]

 
[Randy Barnett, 10/24/2003 08:59:58 AM]
MI-5 Reader Response: A reader writes about my recommendation of MI-5:

I saw your note about the show MI-5 on the Volokh Conspiracy. I agree that it is a superb show and very entertaining. However, one should be aware when watching it in A&E that the episodes have been fairly dramatically cut, to the tune of 5-7 minutes per episode. This is to make up for the far larger number of commercials that A&E runs relative to the BBC. So when we Americans watch MI-5 we are getting a somewhat attenuated product. Personally I am hoping that the BBC decides to put out the European episodes on DVD and that way we can see them as the directors intended.

I was not aware of this and this cutting must be part of why it seemed to me as though more plot is being squeezed into the time allotted. Apparently it is. This is too bad, but the series is still riveting. Indeed, perhaps this time compression adds to its fast paced nature--though I would still prefer to see the uncut episodes.

UPDATE: Another reader writes to tell us that the DVD will be available in January with 10 minutes restored to each episode. Check it out here. I see that they are also selling a DVD of the excellent Tinker, Tailor, Soldier, Spy here.

 
[Eugene Volokh, 10/24/2003 07:50:26 AM]
"Student expelled over diary": Schools have to keep kids safe, and this can be a very tough task. I therefore generally sympathize with schools' judgment calls in this area, even if they may seem excessive. Sometimes a bit of overreaction may be better than underreaction. Still, this item seems a bit excessive:

A Roswell High School freshman has been expelled for the remainder of the year for writing a fictional tale in her private journal about a student who dreams that she kills a teacher. . . .

School system spokeswoman Susan Hale said the expulsion was for "inappropriate writings that describe the threat of bodily harm toward a school employee."

"Anytime the safety and security of our students and staff are put into question, we investigate the situation and, if warranted, take serious action," Hale said. "After reviewing the evidence, the hearing officer felt expulsion was an appropriate disciplinary response."

Rachel will be allowed to attend another school within the Fulton system until the end of the academic year, but the choice must be approved by school officials. . . .

[Georgia] Poet Laureate David Bottoms, who was contacted by the family for help in defending Rachel's writing, said Thursday that he tried to convince the hearing officer that the journal entry was a narrative that grew out of creative thought.

"In my opinion, based on my experience as a writer and with more than 20 years of teaching creative writing, this piece of work is clearly an imaginative piece, a piece of fiction -- totally non-threatening," Bottoms said, recounting the statement he made at the hearing. . . .

The journal entry describes a student, who is unnamed, having a dream while asleep in class. In the dream, the student shoots a teacher and then runs out of the classroom, only to be killed by a security guard. After that, the school bell rings and the student having the dream wakes up, picks up her books and walks to another classroom.

The journal does not name a specific teacher, according to Rachel's parents, who described their daughter as a gifted writer and not someone with violent intentions. . . .

David Boim said his daughter often carries her personal journal and did not have it in class as part of an assignment when it was confiscated Oct. 7. Art teacher Travis Carr took the journal during the class because Rachel was passing it to a classmate, Boim said. . . .

Rachel is an honors student in biology, French and English literature, her parents said. She is the captain of her crew team and a voracious reader, they added. She comes from a family of writers. . . .

"Thomas Wolfe, Faulkner, all wrote about the South because that was their experience," Boim said. "Students today are very aware of the violence around them. The shootings in school, we all hear about that and they affect children. Creative writers, or people who create art, write about what's happening in their society." . . .

If I thought that a kid's having written such stories really was a strong proxy for her likely willingness to kill people, I could understand even such harsh measures; I just highly doubt that this is so, especially given everything else we know about the student. I also understand why a school might not want these decisions to turn too much on whether someone "seems like a good kid," since this could raise all sorts of discrimination objections and even lawsuits (and in fact one of the strongest indicators that the girl wasn't actually likely to kill people, which is that she's a girl, probably wouldn't be legal for the school to use as part of the analysis). Still, I think that some such evaluation really is necessary, at least in cases such as this one.

     Finally, if she's such a danger to people, why will she "be allowed to attend another school within the Fulton system until the end of the academic year"? Thanks to How Appealing for the pointer.

UPDATE: Reader Michael Moreland reports:

I haven't found any links or I would have included them, but CNN and Fox News are both reporting that the young girl's suspension has been rescinded (either by the school or the school board, they're not very clear).

FURTHER UPDATE: Ralph Luker points to a short article from Rachel Boim herself about her case, in the Atlanta Journal-Constitution. An accompanying note says that Boim "was temporarily reinstated at the school on Friday, after news of her expulsion became public. The school system has scheduled another hearing on her case for Nov. 13."

 
[Eugene Volokh, 10/24/2003 07:28:35 AM]
Interesting reason not to be called on: I call on students randomly in my class, but I generally allow them to get out of this for a day if they warn me up front, and if they don't make a habit of it. Sometimes people know they're unprepared, often for a fairly good reason (they've been sick, they've been up all night with a baby, and such) -- and even if they've just goofed off, it does little good for me to call on them under such circumstances: It just embarasses them and wastes the other students' time, and the extra deterrence provided by a hard-core no-pass policy wouldn't be worth these costs. Plus maybe I'm just a softie.

     But a few weeks ago, I got this rather unusual explanation, which I reproduce here with the student's permission:

I have an odd feeling that my turn is coming up in [class], so I just wanted to request that I not be called on today -- today's topic is at the heart of a moot court competition that I'm involved in, and other students in the class are on the opposite side; it would be hard for me to talk about the issues without giving them a sense of how strong I think our argument actually is. Thanks very much.

I was happy to accept this, but I just found it interesting enough to note.

 
[Randy Barnett, 10/24/2003 06:47:20 AM]
Star Trek Reader Response: I have received several interesting responses on my views of the various Star Trek series. My original post is here. Frankly I expected more like this one from a reader:

I loved classic Star Trek. I've hated everything since.

As far as I'm concerned, the various Star Trek series trace the evolution of liberalism across forty years: from a sense of positive mission, that we can all live together in peace, to self hatred, that we are too flawed to achieve the good we proclaim we seek and that our actions are all-too-easily misguided by this mere humanity.

Trek, the classic "old coke" variety, was all about hope and optimism. It's basic premise insisted that within each of us was the possibility of escaping from a heritage of violence and barbarism to build a better future for our children. Each "problem" culture they encountered
reflected our own issues, from race to the cold war and so forth. And for each, there was hope that the problem could be solved and that people could move beyond. And this ideal future was no socialist utopia. Instead, we found human federation members doing such heroic things as homesteading--before pioneering became an unwelcome concept. Old Star Trek glorified American Empire--spreading a culture of democracy and decency wherever humans went. It was Cowboys in Space--the good, decent, John Wayne cowboys, not the troubled loners and drifters who fled normal society to pick up the most awful grunge work herding cows across long distances.

Trek:TNG and beyond lost this hope. Instead, we see a humanity that's really quite...human. Full of foibles and weakness, led into darkness by our emotions. Data, the main viewpoint character, spent his entire time trying to understand emotions--how they could give us fulfillment while at the same time they caused us so much trouble. The episodes were full of torture, pain, and sadism. Throughout, the crew reacted and negotiated, trying to win, often failing. This came to fullest expression in the Borg, the nightmare of nightmares, where the victim gives up his identity yet lives on as a zombie. Those searching for hope had to look long and hard--all too often Captain Picard and his crew made bad choices. Unlike the first series, there was little comedy. The crew took themselves deathly seriously, to the point of absurdity. (Troi: "I sense...I sense...they are in...pain...")

I am aware of the political/libertarian critique of Star Trek, as well as its sometimes PC nature (which I view as somewhat inevitable on network TV). Indeed one reason I tuned out of Deep Space Nine is well reflected in the following summary:

The station belongs to the Bajorans, a race of spiritual people whose home planet Bajor was until recently occupied by the Cardassians. After many years of terrorist attacks by the Bajorans, the Cardassians withdrew from Bajor. The Bajoran Provisional Government has asked the Federation for help with the immense task of rebuilding Bajor after the occupation. A small Federation crew under the leadership of Commander Benjamin Sisko have established a presence on the space station.

For me, the present day world of oppressed minorities is troublesome enough. I don't need to generate compassion for a fictional minority in addition.

So long as it is not overtly political, however, as it sometimes but very rarely gets, I can focus on the dramatic aspect of Star Trek and appreciate it at the level of plot and character, not message. I guess I like the characters on all the series except DS9 so I care about about their adventures.

[ASIDE: If you want a very non-PC new British series that deals with the war on terrorism (among other spy themes), check out MI-5 on the A&E network. It is a series that fills a gap that American Hollywood is too PC to do. (Antiwar types can enjoy it as well however.) The acting is what you expect from a British drama. In addition, production values are superb and it is shot mainly on location. Unlike any other TV show I have ever seen, it crams 90-120 minutes of plot into 60 minutes, less commercials, which makes it is extremely fast paced. It has a continuing story line beneath each week's plot, but that is mostly personal you can tune in now and still get what's happening. It is very very cool.]

Now here is my puzzle. As far as TV space shows go, I find I only can watch Star Trek series. I have never been able to get into other space shows, even though I know they have their fans. For some reason Star Trek seems real enough for me to suspend my disbelief, whereas the others seem so artificial and fake. But I don't know why. Is it because of production values? Or is it because the Star Trek series has created an artificial universe I have been familiar with since I was a kid? If you have any ideas, send them along.

PS: Jacob asks what I liked about Voyager here. Well, I liked the plot that took them away from the Federation and needing to operate on their own. It made them more vulnerable and less rule bound, especially when dealing with the internal culture clash between the Federation and the Maquis. To some extent, Voyager responded (quite unintentionally I am sure) to the PC concerns expressed above by our reader. I liked the characters. I even liked Kate Mulgrew as Captain Janeway, despite her occassional use of soap opera acting techniques (which date back to her Mary Ryan character on Ryan's Hope, which NO I didn't watch as a kid). I thought she grew into the part. And then, dear Jacob, there is 7 of 9. 'nuff said.

 
[Eugene Volokh, 10/24/2003 06:43:43 AM]
Rewriting history? My friend Jesse Walker, in Reason's Hit & Run, echoes the New York Times publisher's and editor's opposition to revoking Walter Duranty's Pulitzer Prize:

There's a movement afoot to revoke the late Walter Duranty's Pulitzer Prize. Duranty, a reporter for the New York Times and an apologist for Stalin, won his award in 1932 for work one later observer described as a "dull and largely uncritical recitation of Soviet sources"; he subsequently failed to write about the famine that Stalin's policies were unleashing in Ukraine.

Duranty's prize has always been a black mark on the Pulitzers' admittedly less-than-stellar record. But revoking it would be, at best, a gesture as meaningless as Clinton's apology for slavery; at worst, a noxious attempt to rewrite history. The Pulitzer committee once chose to honor a man who didn't recognize that he was living under one of the century's most brutal dictatorships. Seven decades later, that's a decision it should still have to live with.

     I still don't see how this criticism is apt. No-one is suggesting that the official Pulitzer Prize listings should just have a blank spot for 1932, any more than the listings of the Presidents should show that no-one was elected in 1972. Presumably Duranty would still be listed, but with a footnote or parenthetical saying "prize revoked, 2004," and, better yet, with a brief explanation of why it was revoked.

     That way, twenty years from now (or even one year from now), when someone who doesn't know about the Duranty travesty is looking at the list, he'll at least know that Duranty's work has been debunked, rather than just seeing "Oh, that Duranty guy -- haven't I heard of him somewhere? -- must have been one great reporter." If they had given the award to Hitler for Mein Kampf, then Hitler's name would be a standing indictment of the Pulitzer committe's error. But many more people know the meaning of the Pulitzer Prize than know what Duranty did wrong. If there's no revocation and no asterisk, then Duranty will continue to get luster from the Pulitzers, at least for the casual reader, rather than the Pulitzers properly losing some luster from the award to Duranty. In fact, the way to make sure that the Pulitzers "have to live with" the Duranty award -- in the sense of having the world see their error -- is by the award being revoked, which will make it more likely that the Pulitzers' error will continue to be prominently noted.

     When an honor is wrongly given, it should be rightly taken away -- even when, unfortunately, it takes 70 years to do so. It may not be the most effective gesture; the praise heaped on people like Duranty has done its damage. But awards themselves are just gestures, and revocations are the best countergesture that can now be made.

Thursday, October 23, 2003

 
[Sasha Volokh, 10/23/2003 07:14:41 PM]
This will only be interesting for Harvard Law School students or grads, but here's my latest letter to the editor of the Harvard Law Record on the ongoing Law School debate over the "gender gap" at the Harvard Law Review. This letter concurs with this other one I signed on to two weeks ago (scroll down), and responds to this one by former Law Review editors and especially to this one (scroll down).

(And, if those aren't enough for you, some other contributions to the debate are here, here, and here.)

 
[David Bernstein, 10/23/2003 03:24:05 PM]
Bumper Stickers--Readers' Favorites: (1) Jesus saves; Moses invests
(2) Jesus is Coming. Look Busy!
(3) Dog is my copilot
(4) I'm your honor student's real father
(5) 186,000 miles per second - it's not just a good idea, it's the law!
(6) Horn broken -- watch for finger
(7) Nuke the Unborn Gay Whales
(8) The west wasn't won by a registered gun!

This was my last post on bumper stickers.

 
[Jacob Levy, 10/23/2003 12:30:40 PM]
Line between print and 'net blurs: Good lord-- this is quite an impressive new toy.

Amazon has enabled full-text searches of books whose publishers cooperate. (So far I've seen books from Oxford, Cambridge, Johns Hopkins, and Basic Books-- apparently not Harvard or Princeton, yet.) The engine gives you all the references to a given word or phrase in a book, and lets you download a scan of the page. I don't know quite what the protocol is; the scans don't seem to be pdfs, and you can't text-search or highlight on a page once it downloads, so they may be image files. But the full text fo the book is lurking there in the memory banks.

They've integrated those full-text searches into the basic search engine, which seems to me like it might be a bad idea-- looking for "John Rawls" or "F.A. Hayek" is now going to yield many hundreds of results instead of the few score books with those names in the author, title, or keyword sections. But the searches I've run so far seem to work smoothly; the engine returns Rawls' own books and those with his name in the title long before it returns, say, The Multiculturalism of Fear, which (according to the search engine) has six references to Rawls in it, two of which are in the titles of other people's works.

That corresponds to the results in my index, which is a relief-- but I think I'm going to often end up using these text-searches before or instead of using indices. The former shouldn't displace the latter. (For one thing, the OCR technology used for scanning certainly isn't perfect, and so there will be references in books that won't show up in the text searches.) At first glance I suspect that'll be the way lots of researchers use this-- go to the listing for a particular book and use the "search inside this book" box, rather than running a massive search-all-books-for-these-words. But the search-all-books has its uses, too-- it makes those publishers' books something more like the articles on JSTOR or LEXIS. It makes it possible to discover books that have references or sections or chapters that are of interest to you even though the book as a whole may not be. And it makes something like a citation index possible using books, something that hasn't been true before.

By the way: Amazon has had the foresight to disable things like searches for "a" and "the" that might let you download every page of a book and print them out.

I think this is a pretty significant new development. There has been bloggic discussion in the past about whether there would be an increasing turn to journal articles away from books because journal articles had an online existence. Books do, too, now.

(For the record: no, I didn't first stumble onto this by by noticing the search box on my own book's page. I noticed it because I ran a search on one scholar's name and it turned up his book and also his wife's book, which doesn't have his name in the title or keywords or anything. This baffled me until I scrolled far enough down the page to realize that his name was in the acknowledgments, and that the search engine had retrieved it from there.)

UPDATE: Alec Nevala-Lee says:

Their Search Inside the Book feature, which allows you to search and browse 33 million pages worth of material from 120,000 books, is just about the most intoxicating online toy I've ever seen. But it terrifies me at the same time. Between this monstrous djinn and Google.com, I have no excuse, no excuse whatsoever, for not writing a grand synthetic essay of everything, or a brilliant, glittering, Pynchonesque novel...because millions and millions of beautiful connections between people and ideas are already out there, at my fingertips, ready to be made without effort or erudition. I hate to say this, but it's all up to me now. The burdens of research have suddenly been lifted. No excuses. The answers are all right there. The only question is, What do you want to know today?

One example. I spent months writing a thesis on Amphiaraus, an obscure figure from the Theban epic cycle who survives mostly in scraps and fragments. Near the end of the thesis process, more than a year ago, I got to the point where was browsing through books at random in the Smyth Classical Library, poring through indexes and concordances, hoping to find a few stray pieces of information that I'd missed in my more systematic searches. Whenever I found something, and I often did, it was magic, witchcraft: tapping into the order of the universe, trusting my inner oracle. Now, a quick Search Inside the Book uncovers 170 textual references to Amphiaraus in translations, handbooks, dictionaries, novels, The Anatomy of Melancholy, Casanova's Memoirs.... All the things I missed...all the things I overlooked. Now there's no excuse to not knowing your sources...to not knowing what the Library of Babel contains. Jesus.

Yeah. What he said. There's a certain joy of discovery of things in books that might get lost here... and yet... and yet. Books are my life. (Well, books and coffee.) And looking at this feature I have the strongest sense I've had in ages that it was something revolutionary and marked a profound change in how I would read. (That's why I didn't title the post "Amazon unveils new procrastination device.") It doesn't have to, of course; I don't have to use it. But I know I will, and that's kind of dismaying as well as being exciting.

 
[Eugene Volokh, 10/23/2003 11:27:02 AM]
"Airbrushing history": The New York Times runs an article today that begins:

Columbia University history professor hired by The New York Times to make an independent assessment of the coverage of one of its correspondents in the Soviet Union during the 1930's said yesterday that the Pulitzer Prize the reporter received should be rescinded because of his "lack of balance" in covering Stalin's government.

The striking thing is the Times publisher's and editor's response:

While careful to advise the board that the newspaper would "respect" its decision on whether to rescind the award, Mr. Sulzberger asked the board to consider two things. First, he wrote, such an action might evoke the "Stalinist practice to airbrush purged figures out of official records and histories." He also wrote of his fear that "the board would be setting a precedent for revisiting its judgments over many decades."

In an interview last night, Bill Keller, the newspaper's executive editor, said he concurred with Mr. Sulzberger.

"It's absolutely true that the work Duranty did, at least as much of it as I've read, was credulous, uncritical parroting of propaganda," said Mr. Keller, who covered the Soviet Union for The Times from 1986 to 1991.

And yet, Mr. Keller added, "As someone who spent time in the Soviet Union while it still existed, the notion of airbrushing history kind of gives me the creeps."

     Airbrushing history? What does that have to do with anything? No-one is suggesting that the Pulitzer people and the Times enter into some conspiracy to pretend that the award had never been given. The advocates of rescinding the Pulitzer would surely much prefer that the award be marked as "rescinded, 2003," with a suitable explanation of why it was rescinded.

     This isn't airbrushing history; it's correcting error. When the Times errs in its reporting, it publishes a correction; presumably it also notes the correction on the Web-archived version of the story (or at least it should). That's what people are asking the Pulitzers to do. Newspaper editors shouldn't confuse calls for corrections with Stalinism, or get "the creeps" from the prospect of announcing such corrections -- though they should get the creeps from the realization that the correction is necessary.

     Many thanks to reader Bill Rudersdorf, for pointing me to this.

 
[David Bernstein, 10/23/2003 08:54:05 AM]
Subordinating Freedom of Expression to Antidiscrimination Concerns: People for the American Way is not the only liberal organization that claims to support freedom of expression, but frequently decides that antidiscrimination concerns are more important (see Eugene's post, below). The ACLU, of all groups, does this more and more frequently; indeed, it supported the plaintiff in the Aguilar case Eugene writes about. I shudder to think what will become of the ACLU when its current president and strong free speech advocate Nadine Strossen retires. Most likely, the authoritarian elements in the organization will take over.

 
[Eugene Volokh, 10/23/2003 06:25:03 AM]
Libel tourism: The new En Banc blog has a nice post about this, but I just particularly like the term, which I hadn't heard before.

Wednesday, October 22, 2003

 
[Eugene Volokh, 10/22/2003 10:17:36 PM]
People for the American Way says protecting free speech too much is "very disturbing": Here's an excerpt from their report criticizing Janice Rogers Brown:

Aguilar v. Avis Rent A Car Systems, Inc., 980 P.2d 846 (Cal. 1999), cert. denied, 529 U.S. 1138 (2000).

A number of Latino employees of Avis Rent A Cacr brought a race discrimination lawsuit based upon the use of racial epithets in the workplace by an employee named John Lawrence. The trial court found that the employer allowed Latino employees to be repeatedly subjected to racial slurs, thus creating a hostile work environment in violation of the California Fair Housing and Employment Act (“FHEA”). To remedy the situation, the trial court enjoined Lawrence from using the racial slurs to describe Latino Avis employees and enjoined Avis from allowing Lawrence to use such slurs.

On appeal, Lawrence and Avis argued that prohibiting them from using or allowing such speech in the future was a violation of their First Amendment rights. The majority of the California Supreme Court upheld the injunction. Brown, on the other hand, dissented in a very disturbing opinion. Brown argued that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is protected by the First Amendment and cannot be limited. In coming to this conclusion, Brown downplayed the fact that several U.S. Supreme Court opinions have found exactly the opposite -- the Court has made clear that speech can and does constitute illegal race discrimination in some cases. Brown also argued that even if such speech is racial discrimination, it cannot be limited by an injunction aimed at preventing a recurrence of the discrimination.

Brown’s opinion, if it were to become the law of the land, could make it impossible for judges or legislators to take effective steps to halt the recurrence of sexual harassment and racial discrimination involving speech in the workplace. In fact, Brown went so far as to suggest that the landmark civil rights law, Title VII of the Civil Rights Act of 1964 (which prohibits discrimination in employment), could be unconstitutional under the First Amendment. In her responses to the questionnaire of the Senate Judiciary Committee, Brown listed her dissent in Aguilar as one of her ten most significant opinions. The Supreme Court denied review of the case, although Justice Clarence Thomas dissented from the denial of certiorari, 529 U.S. 1138 (2000).

As discussed below with respect to free speech and association, Brown’s approach in Aquilar conflicted sharply with her rulings in several cases that concerned individual First Amendment rights, where she has not been protective of First Amendment freedoms.

     If you want to read Brown's opinion for yourself, and see whether you find it "very disturbing," you can see it here. You'll note, among other things, that Justices Stanley Mosk and Joyce Kennard also filed dissenting opinions that came to results similar to Justice Brown's. If you look closely at Justice Brown's opinion and the cases it cites, you'll find that the Court has never "found exactly the opposite" of her position; the several decisions the PFAW alludes to mentions were either purely statutory, with no discussion of free speech (which means they don't set any precedent on the First Amendment question), or said in dictum that some, not all, aspects of harassment law were constitutional. You'll also find that Justice Brown didn't say that the Title VII could generally be unconstitutional under the First Amendment, but only that it could be unconstitutional in some of its applications -- hardly a novel conclusion, given that lots of courts have found that Title VII must yield to the Free Exercise Clause of the First Amendment in such situations (see here for some examples). Many general statutes are unconstitutional in a few of their applications, and it's not terribly stunning for a court to so hold.

     But these are details. The more remarkable thing is that the People for the American Way, supposedly a stalwart champion of free speech, calls an opinion that supports a broad reading of free speech -- and, if you read it, a pretty plausible and well-reasoned opinion -- "very disturbing."

     Now I'm not saying that they have to agree with all broad readings of free speech. They can surely think that some such opinions are mistaken, or go too far, or some such. I can certainly understand not praising Justice Brown for her opinion (for instance, excluding it from their report criticizing her work). I could certainly understand their saying "We appreciate Justice Brown's defense of free speech, but we think that in this case free speech regrettably has to yield." But the People for the American Way condemning an opinion as "very disturbing" because it protects speech too much? Say it ain't so.

     Incidentally, since I like disturbing people, here's a sample of the very disturbing opinion:

In America, Father Terminiello can give a speech in which he describes the crowd outside the auditorium as “ ‘imported from Russia’ ” and then adds, “I speak of the Communistic Zionist Jew . . . . We don’t want them here; we want them to go back where they came from.” In America, Clarence Brandenburg can attend a Ku Klux Klan rally, stand near a large burning cross wearing a hood, and give a speech saying, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” In America, Nazis can march through the streets of the predominately Jewish community of Skokie, Illinois, wearing uniforms and displaying swastikas. In each instance, racist and discriminatory views are being expressed. Nevertheless, these expressions are protected by the First Amendment to the federal Constitution and by our state Constitution. We as a nation so value the free exchange of ideas that we are willing to tolerate even offensive ideas, knowing that “one man’s vulgarity is another’s lyric” and today’s heretical idea may become tomorrow’s gospel.

“[T]ime has upset many fighting faiths.” For example, the abolition of slavery, women’s suffrage, and even a solar-centric solar system were once controversial ideas, but today are considered conventional wisdom. Some ideas—like bigotry and prejudice—have been wrong from the beginning and always will be. And when we are confronted with bigotry, our visceral reaction is to strike back hard, which in this case took the form of the tough injunction the court upholds today. But hostility, hatred, jealousy, resentment, envy, and vengefulness are passions as old as humankind and, though the expression of such sentiments may cause much misery and mischief, hateful thoughts cannot be quelled at too great a cost to freedom. “That at any rate is the theory of our Constitution.” . . .

Read the rest -- the entire file is long, but Justice Brown's opinion is just the last 11 double-spaced pages (and it gets quite a bit more detailed than the general paragraphs that I quote). Then decide what, if anything, about this controversy you find "very disturbing."

 
[Eugene Volokh, 10/22/2003 03:47:31 PM]
More things you won't find at this site. From our referrer logs:

22 Oct, Wed, 13:51:13 Google: hasidic jew halloween costumes
. . .
22 Oct, Wed, 15:04:55 MSN Search: nasty poems from brazil

 
[David Bernstein, 10/22/2003 02:51:44 PM]
It's Called Supply and Demand: Matthew Yglesias makes an error that I've heard over and over again from otherwise-intelligent liberals--that vouchers can't do much of anything to solve the problems that exist with public schools, because there are so few slots available in private schools. Call me crazy, but I assume if vouchers gradually became available to more students, especially those trapped in bad public schools, existing private schools would expand, and new private schools would arise, to meet the increased demand for their services. People didn't say sixty years ago, when Las Vegas was a small town in the desert, "guess we can't settle Vegas, there aren't enough grocery stores." It's possible that existing voucher plans don't provide a large enough voucher to give entrepreneurs the incentive to expand or create schools. But that's not an inherent problem with vouchers, that a problem of funding vouchers at far lower levels per student than the funding of public schools.

 
[David Bernstein, 10/22/2003 01:16:28 PM]
Bogus Anthrax Lawsuit from the Brentwood Post Office Facility as reported by Ted Frank of Overlawyered.com.

 
[David Bernstein, 10/22/2003 12:45:16 PM]
More Bumper Stickers: Will Baude reports his favorites. I especially like one that he attributes to libertarians: "Too late to work within the system, too early to shoot them all."

Another one I dislike: "My kid beat up you honor student." It would be funny if a lot of honor students didn't actually get beat up by thuggish, stupid kids. (I went to Jewish day schools where it was actually cool to do well in school, and where no one ever really got beaten up, so I'm not speaking from personal experience here.)

UPDATE: Reader Jason Colby informs me that the response to this bumper sticker is a new one that says, "My honor student sued your bully." He suggests as a riposte, "My bully retained Johnnie Cochran."

And Kieran Healy reminds me of another favorite: "Jesus Loves You, But Everyone Else Thinks You're an Asshole." This also reminds me of the great (if somewhat sacreligious, and perhaps apocryphal) bank advertising campaign: "Jesus saves, shouldn't you?"

Further UPDATE: And how about the great t-shirt/bumper sticker of the mid-'80s--"Don't Blame Me, I Voted for Bill & Opus."

 
[Eugene Volokh, 10/22/2003 11:33:05 AM]
Speeding and toll roads. Eric Muller (IsThatLegal?) has an interesting proposal on speeding and toll roads.

 
[Jacob Levy, 10/22/2003 11:25:12 AM]
Religious symbols: I think I disagree with both David and Juan on the Darwin Fish question. (For the record, I had a gleeful little smirk when I first saw a Darwin fish, and continue to give such smirks at lots of the variants one sees from time to time.)

My view is a) that the Darwin Fish is disrespectful and mocking, and b) that that's OK-- and not only OK because there's something twee about witnessing Christ by invoking the symbol of martyrs in a little chrome symbol on an SUV.

I think it's important to respectful of religious believers, taken one at a time. I think it's very important for institutions-- and not only governmental institutions-- to be very respectful of religious believers and the demands of their faith. I support robust religious exemptions from statutes and administrative rules that conflict with rules of conscience (bracketing the question Eugene's written on, about whether such exemptions should be authorized by courts or legislatures). I think that even private universities ought to refrain from giving exams or other mandatory activities Fridays and Saturdays as well as Sundays. I support home schooling and vouchers, freely accepting that one of the (many) uses to which parents will sometimes put them is to insulate their children from challenges to their faith.

But I also think that it's terribly important, in our private individual capacities, to be able to mock religious beliefs. (NB: Not the same as mocking believers.) Call this the Satanic Verses or Life of Brian or Stranger in a Strange Land principle. Religious doctrines are doctrines. They make truth claims. They contain propositions. And arguments about religion-- that is, in the views of believers, arguments about the most important of questions-- depend on some ability to comment on those doctrines and propositions. This is tricky, given the complex epistemologies involved in religious claims. And so a central part of religious argument and thought has traditionally depended on mockery-- trying to get the believer of one doctrine to see it as absurd or silly. The mocking has only sometimes been done by non-believers; it has often been done by, as it were, other-believers, subscribers to other religious doctrines.

The old Talmudic story about Abraham smashing the idols is a fine illustration. Abraham's father was an idol-maker and merchant. One day Abraham smashed them all except for the biggest, and put the stick into the hands of that one. When his father came back to the shop, Abraham claimed that the idols had all gotten into a fight, which the biggest one had won. The father angrily burst out that this was stupid, they were nothing but clay statues; Abraham responded, in good smart-ass-kid fashion, 'Exactly. So how can you worship them?' This is not an act of respect toward the religious views of others. It's an act of mockery, designed to convince by forcing someone else to see an absurdity, to laugh at what he or she reveres.

Protestant-Catholic religious argument, of course, had lots of very nasty satire and mockery in it, too. And so do lots of religious responses to irreligion. ("If you find a watch in the field, don't you assume a watchmaker? Aren't you silly and absurd to see something as complex and beautiful as the world and not imagine a worldmaker?")

And, frankly, disrespectful mockery is one of the only tools in the hands of atheists, who have freedom of religious speech and thought and inquiry and argument, too. One can't disprove what someone else has already decided to take on faith, regardless of the facts of the physical world or the epistemic barriers to proof.

Respect for our fellow-citizens and fellow human beings, a due regard for their sensibilities most of the time in most social settings, and an appropriate de-emphasis of the stakes of religious argument prevent most of us most of the time from walking around mocking each other's religions. That's as it should be. But mocking is sometimes appropriate-- precisely because we respect the believers as human beings, we shouldn't condescend to them by permanently treating (what we take to be) their false and absurd beliefs as socially sacred. Let me put it more provocatively: Mocking the belief while respecting the believer is no more a paradox than hating the sin and loving the sinner, and indeed rests on the same underlying thought-- that one's fellow humans aren't to be treated with kid gloves at the cost of denying them access to the truth. (Again, this is all about how private persons should act-- the state isn't entitled to an official view that some religious views are false.)

I do agree with David that there's a difference between insulting the content and expression of religious doctrines and, insulting the people who hold them-- between mocking Judaism and invoking anti-Semitism, for example. The rules of kashrut, circumcision, covered heads, division of gender roles, etc etc-- this is all fair game for mocking, just as the idols were. That's appropriately socially different from the blood libel or from characterizing Jews as vicious hooked-nose misers. The Satantic Verses is socially more appropriate than, say, Oliver Twist. Both should, of course, be free to be written and published. But I think that Oliver Twist is a sign of sheer hatred and is appropriate for social condemnation, and I wouldn't mourn never seeing its like again. I think the Satanic Verses is one of the things we ought to expect to see in a healthy society and world, in which people believe in a variety of religions and some believe in none, and in which they try to genuinely engage each other rather than treating their religious or irreligious beliefs simply as feelings not to be hurt. A healthy society will have people mocking transubstantiation (some atheists, some Protestants, some non-Christians); it doesn't need to have people accusing Catholics of dual loyalty. It may have Darwin fish and "what would Elvis do?" bracelets; it doesn't need to have Washington Post articles stereotyping evangelical Protestants as inbred illiterate hicks.

Maybe I've strayed off-topic here, but I think that mockery and derision is, oddly enough, part of the stuff of taking religion seriously. If we're not to treat those who believe other than how we believe the way we treat people who think they're Napoleon (Yes, Monsieur General, I agree. Now You do look especially splendid in that uniform with the long sleeves that tie in the back.) then we're going to express our disagreeent with their beliefs sometimes and-- given the nature of the subject under dispute-- those expressions will sometimes be mocking, derisive, and insulting. There's an appropriate line of social civility and decency to monitor, but it's not simply a line between being nice and not being nice. Not-niceness can be just fine, in this context.

 
[Jacob Levy, 10/22/2003 10:29:15 AM]
Star Trek: The Next Post: At the risk of turning our little corner of the blogosphere into, well, The Corner, a few quick comments on and for Randy.

1) You've really got to give DS9 another try. The second half of the show's run-- which, as you note, includes some serious ethical-dilemmas-in-wartime episodes-- stands as the high point of the whole franchise, as far as I'm concerned. DS9 took a while to find its footing (so did TNG!) but eventually it became really quite good. And, after watching the real character and plot complexities of late-season DS9, I've come to find TNG pretty painful to watch in reruns, though I was once a big fan. TNG demands to be watched as a drinking game even more than TOS does. (Drink once when Troi uses her powers to infer something really obvious, like "the people in that ship firing on us are very angry!" Drink twice when Picard confronts his mortality and/ or his fatherhood issues. If the episode is about Data searching for his humanity, chug the pitcher.)

2) What was it you enjoyed about Voyager?

3) Am I the only one who, when I heard about the new Enterprise plotline, immediately launched into song?

We're off... to outer space!
We're le...eaving Mother Earth!
To sa....ave the human race!
Our... Star... Blazers!

(If you don't already know, don't ask.)
(UPDATE: Turns out that a lot of you know, and that those who don't can find out.)

 
[Randy Barnett, 10/22/2003 09:45:32 AM]
Star Trek Enterprise: A New Beginning: Some of you may hate Star Trek. You may even hate people who like Star Trek. Others of you may bemoan its current quality. I, who am old enough to have watched the original series in FIRST RUN (gasp!), think that The Next Generation was the best Star Trek series, did not like Deep Space Nine at all (it's the only one I stopped watching), but enjoyed Voyager more than others did. Until this season, I was also enjoying Enterprise--the prequel to the whole Star Trek series. I find the idea of a technologically more vulnerable Enterprise and inexperienced crew interesting and, as an old Star Trek watcher, like witnessing the introduction of new technology (familiar in all series set in later periods) with archaic names (like "phase pistols," instead of "phasers"). And the always present sexual subthemes are a bit racier too.

But this season Enterprise has ramped up several notches. Now after an unprovoked and entirely mysterious attack that killed millions, the Enterprise is sent on a mission to save Earth from complete annihilation to a region called the Delphic Expanse. In the Expanse, there are repeated "anomalies" that affect time and space in unpredictable ways.

This plot device serves a number of purposes and changes the character of the series.

The Enterprise is on a post 9/11 mission of utmost importance, and the formerly peaceful Captain (Scott Bakula of Quantum Leap) has really toughened up. My wife thought it looked like he even buffed up in the off season. For example, now you see him threatening torture to get information in this life or death struggle. There is a new edge to the whole series. (Deep Space Nine tried something like this, and I was told it improved, but it was too late for me.)

The Enterprise is now all alone--the same plot device used in Voyager to mitigate the omnipotence of the Federation. Of course this series is pre-Federation, and using pre-original Star Trek technology so they were already the most vulnerable Enterprise in the whole Star Trek oeuvre, but now they are REALLY vulnerable in ways that increase drama. The well-known challenge for Star Trek plots is preventing the advanced technology from eliminating dramatic risk--which is why communicators and the transporters are always off line when you need them. Here the vulnerability, already heightened in Enterprise concept, is inescapable.

The Enterprise is up against a very powerful and unknown enemy: the Xindi. For my money, there has never been an enemy to top The Borg. It is not clear that the Xindi will do so--we do not know much about them yet or even why they are intent on destroying Earth--but the entire season is one continuous search and destroy mission providing an unfolding mystery as clues to the Xindi's nature, intent and whereabouts are gradually revealed.

There is now one continuous plot that adds a novelistic serial quality to this season.

Why blog on this today? Because tonight UPN is replaying the first episode of this season at (8ET/7CT, check your local listings). I don't know how many others it will be replaying before resuming new episodes, but if you gave up on Star Trek a long time ago--or gave up on Enterprise--I recommend you try it again. Tonight should help appreciate the rest of the season.

You can get more information here:

http://www.startrek.com/startrek/view/series/ENT/episodes/index.html?season=3

You should also read this synopsis of last season's finale which depicts the attack on Earth and the launching of the mission:

http://www.startrek.com/startrek/view/series/ENT/episode/128800.html

 
[Sasha Volokh, 10/22/2003 09:13:25 AM]
Modern music: I had a dream that I was going to put on an oratorio using as text Brown v. Board of Education.

 
[Eugene Volokh, 10/22/2003 07:22:57 AM]
One cost of leaks: InstaPundit has it right, I think, about the Rumsfeld memo:

[The] real damage [done by the leak] isn't that it gives our enemies a window into our military thinking, though that's certainly damaging. The real damage is that when this sort of self-examination -- which is essential to winning any war -- becomes the subject of leaks and bad press, you tend to get less of it.

Naturally, there are benefits to leaks, too; but this is indeed a serious cost.

UPDATE: Eric Muller asks "was it leaked? Or was it simply released?" Eric has some interesting evidence that this was the latter, though I'm skeptical; I doubt that Rumsfeld would have wanted this publicized, and I suspect that it would have been marked as confidential. But I can't be sure, and Eric makes some interesting points here.

 
[Eugene Volokh, 10/22/2003 07:08:09 AM]
A story: For some reason, I was reminded yesterday of a story my mother told me a few months ago; I think she heard it from a writer who was doing a book on the Stalin era. With a provenance like that, you know you can't rely fully on the story's accuracy, but I thought I'd pass it along, with the proper caveats.

     In the late 1930s, Stalin's purges butchered, among other things, most of the old Bolsheviks who fought on the Communist side in the Civil War -- Stalin thought of them as threats. One of the few who survived was Marshal Budenny (pronounced Boodionniy, with the accent on the "dion").

     Budenny knew he was in danger -- everyone was -- so he devised a plan. When the secret police knocked on the door, he signaled to his aide (a man who he knew would stay with him to the death) to go to the attic and start firing his machinegun. He then called Stalin on the phone. "Koba," he said (Stalin's nickname), "run! The counterrevolutionaries have arrived; they're here already for me, and I'll try to hold them off as long as I can. They must be coming for you, too -- run, Koba, run!"

     Stalin was apparently either so touched by the old marshal's loyalty, or so amused by his trickiness, that he called off the goons, and sent Buddeny a signed photograph, with the inscription "To my only true friend." Budenny died in 1973, at age 90, a remarkable feat for any Russian of that era, much less for one of the tall poppies. Another story of the mad, bad, sad 20th century.

 
[Randy Barnett, 10/22/2003 07:04:50 AM]
The Future of Blogs: Apart from the creative stimulation I gain as a blogger, I find the phenomenon of blogs itself fascinating. Blogging seems to me revolutionary in ways not fully articulated and I have wondered what its future holds. So has Joho the Blog (link courtesy of Instapundit).

 
[David Bernstein, 10/22/2003 06:41:55 AM]
One more note on the funeral I attended in Israel: In the area of the cemetery where the mourners congregate before the service, there was a charity box with a sign (in Hebrew) that said something to the effect of "Charity postpones death." I understand that whoever put this charity box up was just trying to encourage people to give money to help the poor and whatnot. But I couldn't help but think that the last thing a family whose loved one has just died needs to see is a sign implying that if the deceased had just been more charitable, he or she might still be alive.

 
[Eugene Volokh, 10/22/2003 06:35:02 AM]
A few of my favorite things: One of my favorite words is "flense," "To strip the blubber or skin from (a whale, for example)". I don't say it much, since few people know it (I only learned it several years ago, when I read Vernor Vinge's fantastic novel A Fire upon the Deep) -- but I think it when I try to edit my articles. To strip the blubber from a whale: That's what editing is supposed to be about, and the mental connection to "cleanse," coupled with "flense"'s vaguely violent sound, only makes it better.

     If only my flensing actually did get rid of all the blubber. (And if only I would actually get to it, rather than procrastinating by blogging about it.)

UPDATE: Reader Eugenio Labadie points out a big item I missed:

[T]his really isn't an apt metaphor. The blubber was the valuable part of the whale, prescisely what was kept. Stripping off the blubber isolated that which was stripped off, leaving behind the chaff. On the other hand, editiings usually strips away extraneous words, distilling prose to tight little bundles of precision. Just a thought.

Rats -- I think he's right; the metaphor doesn't work nearly as well as I thought. Still, I like the word itself and its definition and modern application, conveniently forgetting the underlying economics of whaling . . . .

 
[Juan Non-Volokh, 10/22/2003 05:14:31 AM]
PATRIOT Attacks "Overblown": Several Senators came to the defense of the PATRIOT Act yesterday, reports the Washington Post. Senator Joseph Biden (D-Del) called much civil libertarian criticism of the act "ill-informed and overblown." I agree -- but then again, didn't Biden sponsor the RAVE Act?

 
[Juan Non-Volokh, 10/22/2003 05:08:31 AM]
Darwin Fish and Mezzuzot: It's rare that I disagree with David, but I do take issue with his post immediately below. A mezzuzot (or mezuzah) is also a public expression of one's religious faith, as it is placed outside of one's front door. Granted, the purpose (as I understand it) is to protect the house, but it is a fairly public display nonetheless. One could also make a similar argument about religious garb, whether a yarmulke or full dress. Are all such public displays fair game?

I am not religious myself, but I've always thought the Darwin fish was deliberately disrespectful of what is, in context, a fairly discrete display of personal faith (and one that, as Sasha noted, does not imply a belief in creationism). It is one thing to ridicule creationism, but quite another to ridicule religious faith, as such. In my view -- again as someone who lacks religious faith -- the Darwin fish does the latter, and therefore is an intolerant and disrespectful gesture (though I recognize that some who display the Darwin fish do not intend it as such).

UPDATE: A Rabbi writes to clarify the purpose and history of mezzuzot:

the purpose of a mezuzah (singular, mezuzot is plural) is not to protect the house to which it is attached or the family that resides therein, but rather to carry out the express commandment in Torah which says "Thou shall afix these words that I command you on this day upon thy houses and gates ..." etc. No specific reason is given, though the rabbis have made glosses on it over the years. The generally accepted explanation is that it is a symbol of identity, coming from the similarity to the events during the Passover story: God commanded the proto-Israelites to paint their doorposts with blood so that the Angel of Death would know which houses to avoid in carrying out the last plague, the death of the first born.

The great medieval French commentator Rashi (1040-1105) finds this more than a little odd, as one would presume that the Creator of the Universe would know without the helpful hint who is and is not a Member of the Tribe and all the more so since (in his reading) the blood was to be put on the inside of the door not the outside. He argues that it is an affirmative act to ourselves of identity, claiming our heritage if only internally.

 
[David Bernstein, 10/22/2003 03:58:23 AM]
Darwin Fish: I've received quite a few emails about the Darwin Fish, mostly to the effect that it takes a sacred Christian symbol and profanes it, and how would I like it if someone took a sacred Jewish symbol and profaned it. I don't quite see it that way. The way I understand it, putting a Jesus fish on one's car is a public expression of religious faith. I emphasize the word public, because I think such public expressions, by there very nature, are meant to admonish non-believers that they should be believers--otherwise, what's the point of putting one's faith out there in the public domain?

The Darwin fish, by contrast, is a public expression that the bearer chooses to rely on reason and science and not faith in understanding the world, while also being a brilliant satire of the Jesus fish. I hardly think that Christians who choose to publicly declare their faith in an inherently missionizing manner should get all prickly when non-believers respond in the marketplace of ideas by satirizing them.

And as for Jewish symbols, if believing Jews start putting little Ten Commandments tablets, or torahs, or succahs, or matzahs, or mezzuzot, or whatever, on the backs of their cars in a wave of sudden evangelizing fervor, I won't object to secular satirization.

UPDATE: Regarding Juan's post above, mezzuzot and yarmulkes are personal religious obligations, and don't have any evangelical content that I am aware of; Judaism, unlike Christianity, is not an evangelizing religion, and hasn't been for almost 2,000 years. I suppose I am operating under the assumption that a large majority of those who put Jesus fish on their cars do so with at least implicit evangelical intent, and thus should not be especially offended when the target of their evangelizing do some counter-evangelizing for secularism, even if it includes some satire.

Even if someone did mock Judaism as a religion, that's a far cry from "anti-Semitism," the analogy that is drawn by some correspondents to the Darwin fish. Someone can satirize, or even mock Christian beliefs without hating Christians, and someone can satirize or even mock Jewish beliefs (it's actually tough to get through 12 years of Jewish day school without doing this oneself, believe me) without hating Jews. [edit: and note that in any event, I interpret the Darwin fish not as satirizing Christian beliefs, as such, but satirizing those who publicly proclaim their choice of faith over science and reason.]

Further UPDATE: Substituting dollar signs for the Hebrew text on the mezuzah, a hypothetical "satire" proposed by one correspondent, would not be satirizing Jewish beliefs, but using a Jewish symbol to promote the traditional anti-Semitic canard that Jews are only concerned about money. If there were some traditional anti-Christian canard that involved feet on fish, I could see the analogy. BTW, I've seen rabbis quoted as suggesting that tragedies befell this or that family because the text of the their mezuzot was not "kosher" (did not abide by relevant religious standards), a view that I think is almost self-satirizing.

And courtesy of reader Aaron Kendall, here is a webpage displaying various satirical fish. I find a few of these offensive, but mostly they are just funny takes on the "fish on the car" phenomenon. I should not that I think a lot of people who put the Darwin fish on their car probably just think it's a funny riff on the traditional fish, and aren't trying to send any particular message.

Tuesday, October 21, 2003

 
[Eugene Volokh, 10/21/2003 10:23:42 PM]
Gubernatorial stays: The Florida legislature has just passed a statute authorizing the governor to issue a stay to prevent the withholding of nutrition and hydration from Terri Schiavo (who is comatose). Now I haven't been following the case closely, so I might be missing something, but I'm not sure how this can work legally.

     First, as best I can tell -- and I may be mistaken, since this is just based on a very cursory skim of some of the earlier Florida appellate decisions in this case -- the court order scheduling the removal of the feeding tube was based on Schiavo's constitutional rights, as asserted on her behalf by her husband. I don't quite see how the Florida Legislature can overcome that.

     But, second, even if the order was based on statutory grounds and not constitutional ones, and the legislature can therefore change that, how does the governor get to play a role in all this? Executive officials generally don't have the power to just issue "stays" -- that's generally for courts to do, not for executive officials (with obvious exceptions pursuant to enumerated executive powers, such as stays of execution under the pardon power, or stays of the actions of state employees). Even executive branch agencies that have considerable power over private behavior generally need to go to court to get their orders enforced. Now perhaps the Florida separation of powers rules allow governors to issue stays on their own, but I'm skeptical. Am I missing some important legal twist here? Is she, for instance, in a state-run hospital, over which the governor has authority? (I leave the political twists to others.)

     Incidentally, I express no opinion on what the right result should be in this case. I'm generally not a huge fan of a constitutional right to withdraw treatment from an incompetent patient, in the absence of very clear pre-incompetence instructions on the patient's part. My question here relates purely to separation of powers.

     Thanks to reader Robert Becker for pointing me to this.

 
[Sasha Volokh, 10/21/2003 08:53:51 PM]
Self-representation: Dahlia Lithwick is basically right that having a constitutional right to self-representation is in tension with not having a constitutional right to harm yourself in all sorts of other ways:

For the same reason we prohibit suicide, we also believe that whether he lives or dies is not solely the defendant's decision to make.

Except she has it exactly backwards.

Forget the Constitutional difference (the right-to-die cases are about the meaning of due process, where the Court doesn't always take a broad view because the language is so vague; the self-representation cases are about the Sixth Amendment, a specific guarantee in the Bill of Rights).

As a moral matter, suicide is one of the most basic rights, because a right is no right at all if it can't be waived; a non-waivable right to life is a duty or a burden, not a right. (This is separate from whether we should recognize the right to assisted suicide; there are possibly good arguments against that based on the possibility of "semi-forced" suicides, actually homicides masquerading as suicides; so maybe it's O.K. for states to be able to burden the right with high evidentiary standards or possibly even ban the practice altogether.)

Whether and how you die is one of the most personal decisions to make. Lithwick lists cases where people are so nuts they don't even let their lawyers save them with an insanity defense; as a result, the Unabomber and others like him "will die in jail" (and I suppose could have been executed if that had been an option). But being freed based on an argument that's repulsive to you and that you don't want made can be worse for the defendant than dying on his own terms.

If we want defendants to have counsel because we want to help them, then we should let them define their own interests, and not assume that being freed (or living) is better than being imprisoned (or executed) after having put up what you thought was a dignified fight, with the friends you want and using your own arguments. This part is just as valid for crazy defendants as for sane ones; it's a question of honor.

Now this doesn't mean Lithwick's wrong generally. There are other values involved than the life of the defendant, for instance, "the notion of a fair trial [or] the truth-seeking function of the courts." If "the notion of a fair trial" means people's perception that trials are fair, it shouldn't be that hard for people to distinguish between trials that are actually unfair and trials that are badly skewed because the defendant publicly takes a dive.

But the truth-seeking function is more important. In inquisitorial (not adversary) systems, the court does its own investigations, and even in our own system, you could think of the initial police investigation as being a kind of inquisitorial system. The police can dig deeper, even if someone steps forward and implausibly confesses, perhaps because he wants to commit suicide that way; and maybe the police should dig deeper, because the deterrent function of criminal law may be better served if we actually catch the person who did it. (See the Godfather novel; this is how Michael Corleone gets to return from Sicily.)

So the truth-finding function, through deterrence, is an important consideration. But to think in terms of the life of the defendant, as though saving his life against his will (even his crazy will) is doing him a favor, is to demean the value of life. The value of life isn't the value of living, but the option value of being able to die on your own terms. And that's a value we should export to other areas of the law. As Lithwick puts it, though she means the opposite of what I do:

If we are truly interested in privileging human autonomy above all things, including life, we'd best start revising the rest of the criminal law system.

UPDATE: Reader Jenny Foreit reminds me of the line in the classic, Heathers, where the flaky school guidance counselor, says, "We have to talk. Whether to kill himself or not is one of the most important decisions a teenager can make."

 
[Sasha Volokh, 10/21/2003 08:20:31 PM]
Poems: Just came across an old favorite, written during the 1992 presidential primary season by UCLA student Josh di Donato and performed at a poetry reading around that time:

clinton clinton
brown brown
babbitt clinton
brown brown
cuomo cuomo
kennedy kennedy
brown brown

clinton clinton
clinton brown
brown clinton
buchanan clinton
buchanan bush
bush bush
bush buchanan
clinton jackson
brown jackson

jackson brown

clinton clinton
brown brown
tsongas

Poesy!

 
[David Bernstein, 10/21/2003 07:28:22 PM]
More on Bumper Stickers: Reader Parker Smith has this idea for a bumper sticker: "It'll be a great day when the Air Force has all the money they need and the NEA has to have a bake sale to buy a lobbyist."

And reader Dave Menke's alltime favorite bumper sticker is "Help Eliminate Bumper Stickers."

 
[Tyler Cowen, 10/21/2003 06:42:04 PM]
Will the French limit Google? The Mises blog led me to the following:

"A French court has ruled against the internet search engine Google in an intellectual property rights case that may have far reaching technological and financial implications for internet search firms, which process tens of millions of queries a day.

The civil court in Nanterre, near Paris, fined Google €75,000 ($126,000) for allowing advertisers to link text internet advertisements to trademarked search terms and gave the company 30 days to stop the practice, common at internet search services.

The ruling, handed down last week, is believed to be the first in which the owner of a trademarked term successfully sued an internet search service for allowing advertisers to use protected terms in text ads.

If it is upheld on appeal and validated in other countries, the decision could force the search services to pre-screen search terms for trademarks before letting advertisers use them. "

For the full story, click here. I am not familiar with the legal issues involved, but from an economic point of view this is ill-conceived. If you are worried about trademark protection, make the advertisers liable, not Google. The advertisers must know, at lower cost, what is legitimate use of a trademark-protected name and what is not. I can see at least two issues here. One is whether someone else can use the trademarked name, the other is whether you can link to a trademark-protected page. I don't see a good reason for holding Google liable in either case. Why not go even further and hold the Internet service provider liable too?

 
[Eugene Volokh, 10/21/2003 05:35:03 PM]
Right to represent yourself: Slate's Dahlia Lithwick has a powerful critique of this constitutionally doctrine -- recognized by the Court in Faretta v. California (1975). It's a brief for one side, and it doesn't fully describe the arguments on the other; but it's an effective and readable brief nonetheless, and makes some excellent points. Note that her argument about the need to determine "the truth in [each] case" and maintain "a national confidence in the fairness of trials" would apply not just when the defendant is "legally competent to stand trial [but] still . . . extremely mentally ill," but even when the defendant is perfectly sane but just legally untrained. For the other side, read the Faretta v. California majority opinion itself.

 
[David Bernstein, 10/21/2003 03:15:55 PM]
Good Column by Marni Soupcoff on the Janice Brown nomination to the D.C. Circuit.

 
[Eugene Volokh, 10/21/2003 03:13:32 PM]
Cartoon:
This one is from the site The Black Commentator, and accompanies the People for the American Way / NAACP joint press release condemning Brown.

     I've never been quite sure what to make of complaints that cartoons exagg