Saturday, December 06, 2003

 
[Eugene Volokh, 12/6/2003 02:31:32 PM]
Public confidence in the media: From a Fox News poll conducted Dec. 3-4:

12. If news reporters had been told about the president�s trip to Baghdad in advance, do you think the information would have been kept secret to protect the president or would it have been leaked despite the risk that might have posed to the president�s safety?

	All	Dem	Rep	Ind
1. Kept secret	16%	15%	16%	12%
2. Leaked	78	76	80	85
3. (Not sure)	6	9	4	4

I realize that it's possible that the public thinks that most media are highly reliable, but that so many news reporters would have had to be told that one bad reporter would have leaked it. But I doubt that this is so, given that the question left open the possibility that only a fairly small cadre of news reporters would have been informed.

     Note also how consistent the numbers are across party affiliations. This isn't just Republicans thinking that the liberal media have it in for a Republican president -- it's voters of all parties thinking that the media would have put the president's life in jeopardy simply to get a scoop. Puts in perspective, I think, various media members' complaints about the deception involved in keeping this sort of thing secret.

 
[Tyler Cowen, 12/6/2003 12:00:21 PM]
Proud stepfather: I am pleased to report that my stepdaughter, Yana Chernyak, had her Bat Mitzvah this morning. I have few points of comparison (not being Jewish by background), but I thought she did great today in her Hebrew reading, which started with the Jacob's ladder passage. Congratulations to Yana! Now comes the party...

 
[David Bernstein, 12/6/2003 09:11:31 AM]
How Many Jews in the US? From an ADL study:

As the 1992 study showed, Americans significantly overestimate the size of the Jewish population in the U.S. About one-in-five (21%) Americans estimate that Jews comprise less than 10% of the U.S. population.... while 43% put the figure somewhere between 10% and 25%. Roughly one-in-four (23%) Americans estimate that Jews make up more than 25% of the total U.S. population. The most anti-Semitic Americans are significantly more inclined than others to overestimate the size of the Jewish population, with 37% estimating that Jews comprise more than a quarter of the total U.S. population.

Actual Jewish percentage of population: a bit over 2%.

 
[David Bernstein, 12/6/2003 09:04:23 AM]
Noam's World: Anti-Semitism "scarcely exists" in the West, according to Noam Chomsky. Even in the U.S., historically among the least anti-Semitic countries in the West, studies consistently show a core 10-20% of the public holds strong anti-Semitic views. Chomsky can't acknowledge this, because he wants to deny that ANY manifestations of anti-Zionism are motivated by anti-Semitism (Update: see the first paragraph of this talk by Chomsky).
UPDATE: For further elaboration, see this post by Pejman.

 
[David Bernstein, 12/6/2003 08:36:06 AM]
More Evidence that the U.S. Government needs to Get its Priorities in Order: A couple training to be Arabic-language army interrogators was dismissed from the army for missing a class to attend Yom Kippur services. This sounds like either sheer stupidity or maliciousness on the part of the couple's superiors, made worse by the urgent need for the couple's skills.

 
[David Bernstein, 12/6/2003 08:32:24 AM]
Canadian Denial: Israel has arrested a Canadian citizen who reportedly was recruited and trained by Hamas in Gaza to carry out terrorist attacks against Jewish and Israeli targets in Canada. Canada's official reaction? Criticizing Israel for alerting the public to the case while the suspect is still under investigation. Methinks Canada is not yet taking its terrorism problem seriously.

Friday, December 05, 2003

 
[David Bernstein, 12/5/2003 04:42:21 PM]
Illegal Preferences: A reader points me to the following ad, in the latest Washington City Paper:

WE WANT MINORITY writers: The Academy for Alternative Journalism, supported by alternative papers like this one, seeks experienced minority journalists and students (college seniors and up) for a paid summer writing program at Northwestern University's Medill School of Journalism, Chicago. The eight-week program (June 20-August 15, 2004) aims to recruit talented minority writers into the alternative press and train them in magazine-style feature writing. Ten participants will be chosen and paid $3000 plus housing and travel allowances. For information visit the website at www.medill.northwestern.edu/aaj, http://www.medill.northwestern.edu/aaj, or write for an application: Academy for Alternative Journalism, Northwestern University, Medill School of Journalism, 1845 Sheridan Road, Evanston, IL 60208. E-mail [email protected]. Application deadline February 9, 2004.

My own view is that private universities should be able to engage in whatever sort of affirmative action they want, but under current law a minorities-only program seems blatantly illegal. Unlike in the fair housing and employment context, however, I'm not aware that there would be any liability for the City Paper in publishing this ad, though there would be for Northwestern.

 
[Eugene Volokh, 12/5/2003 03:45:12 PM]
Voting for bloggers: Wizbang is running a "favorite blogger" poll. Unscientific, but entertaining -- and perhaps helpful, if the results let people discover bloggers they might not have heard of before. Thanks to InstaPundit.

 
[Eugene Volokh, 12/5/2003 02:57:01 PM]
Flagrantly unconstitutional: An Illinois newspaper reports:

Burning an American flag landed a Jonesboro man in jail for several days, said Union County Assistant State's Attorney Patrick Duffy.

But one expert said he's surprised the flag desecration charge came to court because the U.S. Supreme Court ruled in 1989 that flag desecration rules are unconstitutional.

Michael Ravellette, 29, pleaded guilty Tuesday in Union County circuit court to unlawful desecration of the American flag. Judge Rodney Clutts sentenced Ravellette to Tri-County Detention Center in Ullin and two years' probation. He must also pay court costs and submit DNA samples to state police. . . .

Duffy said Ravellette was arrested in the flag burning case after police searched his girlfriend's residence looking for a methamphetamine lab. Ravellette was at his girlfriend's home.

Officers didn't find anything meth-related and were preparing to leave when Ravellette came out with a burning American flag. . . .

"I've never been able to figure out the motive behind this," Duffy said.

The defendant sounds like a schmuck -- but, unless some pretty important facts are omitted, it's the prosecutor who sounds like the real criminal here (either that, or remarkably ignorant). In the words of the ACLU's Ed Yohnka,

"It would be one thing for the guy to not know what the law is; it's another thing for the prosecutor not to know what the law is."

Another thing, and a very bad thing, again, if the newspaper account is accurate and reasonably complete. (Thanks to How Appealing for the pointer.)

UPDATE: My friend Gil Milbauer points out that it's pretty bad that the judge didn't know the law, either. Guilty pleas are only effective when approved by the judge; how could the judge approve a plea to an unconstitutional charge? Even if it was a deal worked out by the prosecutor and the defense attorney with the defendant's full consent (for instance, because some other, constitutionally valid charges against the defendant were dropped), a judge ought not accept an agreement in which someone pleads guilty for something of which you cannot be legally guilty under the Constitution.

 
[Eugene Volokh, 12/5/2003 02:50:54 PM]
Guess who's issuing gun permits: Reader Rick Graves writes:

I just received my Florida concealed carry permit. The issuing entity is the "Department of Agriculture & Consumer Services, Division of Licensing." The signature of the Commissioner of that entity appears at the bottom of the permit.

His name?

"Charles H. Bronson"

Of course, it would be even cooler if California switched to a system where all law-abiding adults were eligible for concealed carry permits (don't hold your breath), and they had to be signed by the governor . . . .

 
[Eugene Volokh, 12/5/2003 02:47:10 PM]
"Alternative compensation systems for digital media": I spent the day at this conference put together by the Berkman Center, and found it a very interesting and educational experience (something I don't often say about conferences). Very interesting stuff, about whether the incentive provided by traditional copyright law can be replaced either by (1) a mandatory system where taxes or levies on media are collected and split up among music owners and creators, or (2) a voluntary co-op arrangement that works off modest subscription fees, and somehow effectively competes with free peer-to-peer systems. I've expressed skepticism about this before, but I found some of the proposals to be quite intriguing and much worth considering. I suspect John Palfrey will have more about this by Monday.

 
[Juan Non-Volokh, 12/5/2003 12:25:48 PM]
The Memos and Ms. Jones: The New York Times editorial board has finally discovered the Senate Judiciary Committee �collusion memos� detailing Democratic and liberal interest group opposition to Bush�s judicial nominees. Though, as one might expect, the Times is more concerned about the manner in which the memos were disclosed � they were allegedly pilfered by a Republican staffer (an act that, if illegal, would justify prosecution) � than their content. As a result, the Times missed the big story here. No, not the confirmation that Democrats opposed Miguel Estrada because he is a Hispanic. (One memo noted �civil rights leaders� viewed Estrada to be �especially dangerous� because, among other things, �he is Latino� and, if confirmed, would be a likely Supreme Court pick.) Rather, it is the suggestion that lawyers in the Michigan affirmative action case sought to alter the outcome of the litigation by stalling the confirmation of judges to the U.S. Court of Appeals for the Sixth Circuit.

At the time, the Michigan affirmative action case was up for en banc review on the Sixth Circuit, in which all active judges on the court would participate. Apparently, under Sixth Circuit rules, were a new judge to have been confirmed then, the new judge would have been able to participate as well, and perhaps swing the result � at least, this was the concern reportedly voiced by Elaine Jones of the NAACP Legal Defense Fund. According to one of the memos written to Senator Ted Kennedy,

Elaine would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th circuit. This case is considered the affirmative action case most likely to go to the Supreme Court. Rumors have been circulating that the case will be decided in the next few weeks. The thinking is that the current 6th circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that judge will be able, under 6th circuit rules, to review the case and vote on it.

The author the memo went on to note his/her concern about �the propriety of scheduling hearings based on the resolution of a particular case,� but that �Elaine will ask that no 6th circuit nominee be scheduled until after the Michigan case is decided.� The final recommendation was to seek a temporary delay for a proposed hearing on Sixth Circuit nominee Julia Gibbons, herself an uncontroversial nominee, so long as there were other �uncontroversial� nominees for the committee to consider.

Why might this be a big deal? Because it is generally considered a big no-no for a lawyer to seek to alter the outcome of a case by tampering with the neutrality of the judicial process, such as by seeking to surreptitiously alter the composition of a judicial panel. It is an especially big no-no when a lawyer attempts to do this in her own case. That�s relevant here because the NAACP Legal Defense Fund intervened in the Michigan case.

While the Times missed this angle, several conservative groups did not. These groups are filing a formal ethics complaint against Ms. Jones with the Virginia State Bar, the Washington Times reports. Does their complaint have merit? Perhaps in principle, but I would be surprised to see Ms. Jones sanctioned by the Virginia Bar. For one, the underlying allegation may be untrue, and could well be difficult to prove. For another, it seems that there is a substantive difference between trying to alter the outcome of a case by, say, manipulating judicial selection on a given court so as to obtain a favorable judge, and seeking legislative intervention on behalf of one�s client. The former is prohibited, the latter is allowed. Finally, any sanction would be seen as highly political given the nature of current fights over judicial nominations, so even if the claim has merit, I would not expect more than a stern letter noting the appearance of impropriety created by Ms. Jones� actions. Thus, in my view, Jones alleged actions � while unseemly and, in my view, inappropriate � are unlikely to result in any formal action.

UPDATE: One reader thinks Ms. Jones could be in more trouble than I suggest. He writes:

Having been a member of the Virginia Bar since 1982, I can assure you that the primary consideration the Bar takes into account with an ethics violation is how the underlying facts and ethical violation(s) relate to the fitness of the attorney to practice law. Politics are not a consideration, nor is the argument, "but s/he's already been punished enough" considered relevant. So, assuming that the underlying facts are proven, I would expect the Virgina Bar to mete out some sort of punishment. Personally, this seems to me to be a serious ethical violation which warrants at least some suspension of license, but I rest content in the Virginia Bar's ability to reach the right conclusion.

 
[Tyler Cowen, 12/5/2003 09:42:55 AM]
Peer review for new regulations? Today's Wall Street Journal reports that the Office of Management and Budget is seeking to implement peer review of new regulations, see the first page of the Marketplace section. The article notes: "Outside scientists would do the review, and the agency would have to address any concerns they raise."

I doubt if this would improve economic growth by very much, and almost certainly it would corrupt or at least damage academic study. To be sure, our government overregulates in numerous (though not all) regards, and any new hurdle, if it slows down regulations, will bring some benefits. Typically most of the net benefits from regulation come from a small number of regulations, which suggests abolishing many of them but enforcing the ones that really matter.

That all being said, it is not obvious that academic peer review is a good vehicle for achieving the end of regulatory reform. We are all familiar with how journal editors can select referees to get the reports they want. This same power would now be put in the hands of the OMB, which of course would centralize regulatory authority, and not necessarily for the better. You might think that OMB is anti-regulation today, but the more power they have, the less likely they are to favor good outcomes.

Furthermore, to the extent peer review works well, it relies on reputational incentives. Referees care what editors think of their reviews. What would the incentives be in this case? Some referees would write to please the OMB, to assure continued refereeing fees. Other referees would receive favorable treatment from industry or other lobbies, even if they are not corrupted their objectivity would stand in question. In other cases referees would rely on their ideologies, not having an adequate handle on the day-to-day facts of the case. In reality it requires a significant amount of information to judge accurately a given regulation, so truly useful referees would be hard to find.

This idea would raise the incomes of many economists, but if enacted, it would probably lower the quality of my discipline. I will admit that I don't have a much better idea for regulatory reform, and that a good idea is needed. But if it is up to me, I vote no on this one.

 
[David Bernstein, 12/5/2003 07:58:36 AM]
Touchy Canadians: Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being "anti-Canadian" because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws.

 
[Sasha Volokh, 12/5/2003 07:19:26 AM]
O.K., I hate these internet quizzes, but this one's kind of amusing:


Which Historical Lunatic Are You?
From the fecund loins of Rum and Monkey.

Thanks to Hanah for the link.

UPDATE: Reader David McCullen says one person claims to have gotten a virus from the quiz. I don't think I did though. As with all things on the Internet, click at your own risk!

Thursday, December 04, 2003

 
[Eugene Volokh, 12/4/2003 07:32:12 PM]
Interesting google hack: Go to google, type "Miserable Failure," and then click on "I'm feeling lucky." For what seems to be an accurate discussion of the "web project" that yielded this result, go here (it's just something I found with a google search, so I can't vouch for its accuracy, but it seems to be the way one would do this). I doubt it's terribly effective politics, but I guess people are enjoying it enough to do it.

     Thanks to my friend Arvin Tseng for the pointer. UPDATE: My friend Gil Milbauer has a sensible perspective; and a reader pointed me to this description of google bombing, for those who are unfamiliar with it.

FURTHER UPDATE: N.Z. Bear is not amused.

 
[Jacob Levy, 12/4/2003 04:49:43 PM]
And now I'll drag down the average IQ of Conspiracy posts by 60 points: I'm really quite amused at the thread about worst movies. See: The initial rules; the imdb rankings; a page of links to lists inspired by the original post; and the Ted Barlow post that alerted me to the ethread's existence. The rules say:

Anyone can go the Internet Movie Database and cobble together their own list from the Bottom 100, or Maxim, or what have you. Copying someone else's list is the easiest way to make your own, therefore one requirement for creating any list of the Worst Movies of All Time should be that you've actually seen the films you're condemning. This sounds insultingly obvious, and it is, but believe me when I say that plenty of abysmal/superlative reviews have been written by individuals who never bothered to watch the film in the first place. Honestly, do you think everyone who put "Gigli" on their "worst" lists actually sat through the whole thing? Maybe regular moviegoers can be forgiven for bailing on a shitty film, but true critics are expected to possess fortitude beyond the ken of mere mortals.

And most of them get paid, anyway.

Unlike with Best Movies lists, a collection of the worst films of all time should mostly consist of films that received a relatively wide release and had a decent operating budget. Why is this? Because while it's pretty rare for a low-budget, independently released movie to garner widespread critical appeal, it's about as hard as walking into a wall for these same films to bomb. Anybody can make a "bad" indie movie: plenty of those I've reviewed qualify as such simply because the filmmaker couldn't afford decent acting talent and got friends and relatives to appear in their film, for example. Sometimes the dialogue is atrocious, or the movie looks like ass because the director only had access to a secondhand camera he had to "borrow" from the local film school.

To have your pick of A- or B-list talent, a budget in the millions of dollars, the backing of a major studio, and still make a bad movie...well, that's not too tough either, really. Dozens of them are released every year. But to make a film that will echo through the vaults of time as historically repugnant� a film that will cause future archaeologists to burst into unholy fire from simply viewing it on their vid processors�that is something special.

A truly bad movie must also aspire to goodness. Cheesy big budget throwaways ("Charlies Angels," "Wild Wild West") don't cut the mustard. Pretension and deadly earnestness are crucial to any film that hopes to plumb the depths of true suckitude.

[Comedies are the exception to this rule. Comedies that want to be included on the Roll Call of Cinematic Ignominy have to pass one simple test: they can't be funny. At all.]

The worst movies of all time have absolutely no redeeming qualities. If you chuckled once (at a comedy, that is - I probably laughed uncontrollably through half of "Armageddon"), or ended up engaged in the plot at some point, or actually found yourself giving a rat's ass about any of the characters...that movie doesn't qualify. Sorry to be so strict, but there are, literally, thousands of awful movies out there. Distilling that heap of ordure down to only ten nuggets of blackest filth takes work. Hot, sexy work.

Which brings me to my (thank Christ) last point. It�s not enough to include a movie in your �10 Worst List� if you merely dislike it � hell, I dislike over half the movies I end up seeing � you�ve got to hate it. And I don�t mean that watered down vitriol you hear bandied about these days (�I hate it when the barista doesn't doesn't give me a cup sleeve�), I�m talking about Dark Side, rage-a-holic, Bill Hicks levels of hate. If you can�t bring that to the table for a movie, it doesn�t belong on your list.

[Jacob again] I would add that there's something especially exquisite about the hate one feels for a movie that it seems the world at large loves-- doubly so if it wins lots of awards.

I'm kind of pleased to see that, on the imdb list, excluding comic book superhero-based movies which I subject myself to out of a weird sense of obligation, I've seen only two of the movies: Highlander II (which really ought to be ranked higher than 71st) and Grease 2. I've also seen very few of the movies on most of the lists except for Ted's-- at least, I've watched few of them all the way through. I think I've seen about twenty minutes of City of Angels, in bits and pieces, but always change the channel before I tear my eyes out. Life is short. I haven't watched any movie adaptations of SNL sketches, excpet for Coneheads. Life is short. [UPDATE: Silly mistake. Of course I've seen Blues Brothers and Wayne's World. Those just don't seem like the same genre as It's Pat, Night at the Roxbury, Superstar, etc etc.]

Reading other people's lists:

God, I'd forgotten about The Black Hole. That might have been the first movie that I understood was bad when I was watching it in the theater-- a ten-yer-old's first inklings of taste and judgment.

Cool World, which I sat through because the radio station I worked at at the time had promoted the hell out of it and given away lots of tickets, was on my list even before I saw it on already-existing lists.

I neither hated nor loved Moulin Rouge, which is a popular choice; I understand the reasons for both reactions, and felt each at different moments-- kind of a rabbit-duck thing. (The optical illusion, not the Elmer Fudd problem.)

Temple of Doom-- come on, guys. The least of the three, but the other two set high standard. To rank Temple of Doom as worse than, say, Phantom Menace is incomprehensible to me, and they're commensurable.

Star Trek V and Batman & Robin-- well, yeah.

But I really, really want to draw attention to Ted Barlow's speaking truth to power about Beautiful Mind.

Based on a true story, in the sense that Species II is based on On the Origin of Species*. I know that it�s rude to yell at the screen in the movies, but I could barely keep myself from shouting, �Stay away from modern pharmacology, John! Paranoid schizophrenia can be cured with the love of a good woman!� Ron Howard�s next film, �Squeeze It Out�, is a powerful story about how the power of hugs can overcome cystic fibrosis.

I think I'll go with, in no particular order: Cool World, Titanic, Beautiful Mind, Star Trek V, Batman & Robin, League of Extraordinary Gentlemen (which doesn't even rise to the level of car-crash-fascinatingly-bad like Batman & Robin does), Highlander II, The Patriot (I have a pet rule that says the earlier in the movie one starts getting audio or visual replays of and flashbacks to events from earlier still in the movie, the worse it is, with The Patriot as Exhibit A), A.I., Bounce. (I have an irrational hatred of Gwyneth Paltrow, which she keeps interfering with by acting in movies I really like-- Shakespeare in Love, Possession, Royal Tenenbaums. Next she's going to be in Proof. But Bounce I can just let loose and hate in good conscience-- though it does one exactly one redeeming quality, the line about O'Hare being Hell plus two runways and a bunch of TCBYs.) But maybe I'll reconsider overnight.

I'm not allowed to mention The Hulk, because I turned it off before the end. But I've watched Superman IV and Batman & Robin all the way to the end without stopping the tape, in my odd compulsion to see superhero movies; there had to be something really special to make me press Stop.

Probably my last post for a while; off to Geneva and Lausanne for a week. (Work in the Banjamin Constant archives, mostly.)

 
[Jacob Levy, 12/4/2003 02:50:57 PM]
Bushism of the day: From an unexpected source.

JOSEPH NYE, DEAN, KENNEDY SCHOOL OF GOVERNMENT: Governor, let me take you back to foreign policy.
You�ve been critical of President Bush�s going into Iraq over weapons of mass destruction. But there are two countries that are much closer to nuclear weapons than Iraq ever was. And one of them is North Korea and the other is Iran. If you are elected president, how will your policy toward North Korea and Iran differ from the administration�s?[...]
NYE: In Iran?
[Howard] DEAN: Iran is a more complex problem because the problem support as clearly verifiable as it is in North Korea. Also, we have less-fewer levers much the key, I believe, to Iran is pressure through the Soviet Union. The Soviet Union is supplying much of the equipment that Iran, I believe, most likely is using to set itself along the path of developing nuclear weapons. We need to use that leverage with the Soviet Union and it may require us to buying the equipment the Soviet Union was ultimately going to sell to Iran to prevent Iran from them developing nuclear weapons. That is also a country that must not be allowed to develop nuclear weapons much the key to all this is foresight. Let�s act now so we don�t have to have a confrontation which may result in force, which would be very disastrous in the case of North Korea and might be disastrous in the case of Iran.

Now, this is a minor matter. Dean several times referred to the Soviet Union in the present tense, when he meant to refer to Russia or the former Soviet Union. But it's being treated as a minor matter, which is in one sense odd during presidential campaigns eason. This is the sort of thing out of which much hay is often made.

It seems to me that this confirms the theory that the press over-reports stories that play into pre-existing tropes and stereotypes about a candidate (W's stupidity, Gore's mendacity) and ignore potential stories that don't. If W or Quayle had referred to the Soviet Union in the present tense four times, we'd have late-night-comic jokes for weeks and high-minded tut-tutting from other corners. No one thinks Dean is dumb to start with, so this is treated as a non-story.

The obvious counter-hypothesis is that the press only reports on things that tend to make conservatives look stupid. I don't think that's right; I think the "pre-existing tropes" hypothesis has, as it were, greater explanatory power. But one couldn't show that just with reference to this case. In this case, the press has given a left-leaning Democrat a pass on something that W obviously would have been mocked for.

(Hat tip: laloca.)

 
[Eugene Volokh, 12/4/2003 01:55:26 PM]
Not the best sort of education: According to an AP story,

A seventh-grade social studies teacher in Presque Isle who said he was barred from teaching about non-Christian civilizations has sued his school district, claiming it violated his First Amendment right of free expression. . . .

[Gary] Cole alleged that complaints by "a small group of fundamentalist Christian individuals" led to the creation of a curriculum "which never mentions religions other than Christianity and never teaches the history of civilizations other than Christian civilizations." . . .

Superintendent Gehrig Johnson said on Tuesday that he had not seen the lawsuit, but he noted that the curriculum has been "developed by teachers across the district and adopted by the SAD 1 School Committee."

"Teachers are expected to follow the curriculum," he added.

Cole's lawsuit alleges that the curriculum infringes on "his students' First Amendment rights to the free flow of information within the classroom" and that it "constitutes an illegal establishment of religion in violation of the First Amendment." . . .

Cole had been teaching a broader curriculum at one point, but during the past several years members of a church group "had been complaining and attempting to get the curriculum confined to a history of Christian civilization, not the civilization of the Eastern Hemisphere," [Cole's] lawyer said.

Greif said Cole wasn't trying to teach anything unusual or anything that wasn't being taught in most seventh grades across the state. His lawsuit seeks injunctive relief to allow him to teach "the history of the entire Eastern Hemisphere, as appropriate." . . .

     I think the teacher's Free Speech Clause claim should and will lose; courts generally hold -- rightly so, I think -- that a school is entitled to tell its teachers what to teach. When you're in a government-owned classroom, spending a government-own salary to teach a captive audience provided by the government, the government may insist that you deliver the government's message.

     The Establishment Clause claim is closer; the Court has held that curriculum decisions driven primarily by the desire to advance a particular religion are unconstitutional. But unless there is some quite explicit evidence that the framers of the curriculum really just wanted to advance some religion, I think the school would win: It can simply explain that it wanted to focus on those societies whose histories were more closely tied with our own. The school doesn't have to show that its curriculum has an educational justification, only that it has a plausible nonreligious justification.

     But if the teacher's factual account is correct, then the administrators are providing their children a pretty shoddy education. Nothing unconstitutional about that -- but nothing good about it, either.

     UPDATE: I'm often glad that I include qualifiers such as "if the teacher's factual account is correct," though perhaps I should also say "and sufficiently complete." I'm particularly glad of that in this case.

     The school superintendent's response is here, and says that the 7th grade curriculum is European history, the 8th grade is U.S. and Maine history, and the 9th grade is world history, including a wide range of non-Christian civilizations (including ancient European ones, which suggests that European history is of the post-classical period). If that account is correct and sufficiently complete, then I don't see a problem with making the 7th grade teacher stick to his assigned zone (though of course something also depends on the details -- if the teacher really is literally prohibited from "mention[ing] religions other than Christianity" in a European history class, that wouldn't be very wise).

     Thanks to reader Anthony Rickey for the pointer.

 
[Tyler Cowen, 12/4/2003 12:41:55 PM]
The Myth of Doomed Data? Most data created for the Web, and most jpegs, will probably be readable in future technological formats. That is the message of this very intriguing article, which I found on the ever-useful www.politicaltheory.info. Here is one bit:

"It is simply inconceivable that documents created today in Adobe�s Portable Document Format (PDF), or images stored in the Joint Photographic Expert Group (JPEG) format, won�t be decipherable on computers in the year 2030. That�s because both the PDF and the JPEG formats are well-defined and widely understood. Adobe has lost control of PDF: there are more than a dozen programs that can create PDFs and display them on a wide range of computers. In other words, PDF is no longer a proprietary format. The same goes for JPEG. Yes, Adobe may fail and new 3D cameras may make two-dimensional photography obsolete. But we will always be able to read files in these formats, because the detailed technical knowledge of how to do so is widely distributed throughout society.

What about the physical media itself? Although there are many examples of tapes and floppy disks being unreadable five or 10 years after they are created, there are many counterexamples as well. Generally speaking, people who make an effort to preserve digital documents have no problem doing so."

It is a common myth, perhaps akin to the "Fable of the Keys," that the BBC's "Domesday Project," about medieval England, can no longer be read because it was produced for obsolete media. Author Garfinkel shows that these commonly-held claims simply are not true, and that the Domesday project has been copied into other formats.

The real culprit is non-standard formats, which get cut off, perish, or require costly conversions. But when our current Web is surpassed, we will certainly have standard and cheap means of converting Web pages to the new medium.

What is the policy implication? Yes, we should care about preserving the past for the future. But we will never be able to fund every library project that scholars demand. In the meantime, regulatory decisions should look kindly on standard formats, and not obsess over the application of antitrust laws in this context.

 
[Eugene Volokh, 12/4/2003 12:11:50 PM]
Wrong, wrong, wrong: Just looked closely at a recent piece of spam, and for the first time noticed the headline: "The only solution to Penis Enlargement." What do they mean, to? Is it something you get if your penis is enlarged, and you need a solution to that problem? Does that mean that if you buy it and it shrinks your penis, you can't sue, since that's how they marketed it to you in the first place? Spam I can forgive -- but linguistically incorrect spam, never.

 
[David Bernstein, 12/4/2003 11:38:03 AM]
Putzmeister: It was pretty amusing to see a van in Israel from a company called "Putzmeister" (putz being Yiddish for, well, "schmuck"). To see a picture, click here. And I won't even say anythng about the "concrete pump."

 
[Tyler Cowen, 12/4/2003 07:49:29 AM]
The WTO and the legal reach of its provisions, concerning cultural quotas, request for assistance: I've been asked to deliver some remarks to a UNESCO convention on the WTO free trade agreements, and their implications for culture, most specifically cultural quotas as we find in France, South Korea, and elsewhere. I tend to be skeptical about such quotas, on economic and aesthetic grounds. They often make the protected home industry unable to compete in broader world markets, as we have seen with French films. Furthermore the quota often induces a good deal of production designed simply to meet the quota, such as the notorious "quota quickie" films that are churned out. I also see a moral "free speech" argument. If foreign consumers wish to view American films, why should a government interfere with this voluntary act of exchange? Isn't it uncomfortably close to the idea of banning or limiting books?

I am, however, now asking for pointers. Could any of you direct me to some readings on the legal aspects of WTO, and what force it holds relative to national laws? Something specific to cultural issues would be preferable, but anything relevant would be fine. Keep in mind I am an economist, but looking to read something intelligible about the relevant laws.

Wednesday, December 03, 2003

 
[Eugene Volokh, 12/3/2003 09:48:27 PM]
Barbra Streisand's lawsuit against coastal aerial photographer was just thrown out on First Amendment grounds, and she has been required to pay the defendant's attorney fees. Here's the opinion, and here's the press release. There may well be an appeal, but I read the opinion and it seemed sound to me. (Thanks to reader Jim Herd for the pointer.)

UPDATE: I should have been a bit more cautious in my quick summary -- the decision is technically still subject to reconsideration by the judge himself, based on any responses the parties might file, but I highly doubt, given the detail in the opinion, that the judge will reverse course.

 
[David Bernstein, 12/3/2003 03:34:58 PM]
Why Israel Needs the Security Fence: Israel caught two Palestinians intent on carrying out joint suicide-murders:

The two also told investigators that they chose
to infiltrate Israel from the West Bank, via
the northern Jordan Valley, because the
separation fence has yet to be constructed in
this region.

Res ipsa loquitur.

 
[Eugene Volokh, 12/3/2003 01:23:45 PM]
Superintendent in the Louisiana incident is denying everything: Here's his response:

I have investigated a news report recently published that indicated that an elementary student in one of our schools was disciplined as a result of this student telling another student that the first student's parent was gay.

I have reviewed the documented records on this matter, as well as have met with the school principal and have concluded that the student's discipline was unrelated to any judgment by school officials regarding sexual orientation or practices, or the student's discussion of that particular topic. However, I have concluded that the discipline was related to ordinary student disturbances, which were hindering the classroom learning process and which were addressed in an appropriate fashion by the teacher and school administrator.

The student was not belittled or embarrassed and this entire matter was reported based on a lack of accurate information.

Our goal of quality education for all of our students includes instruction in a controlled environment, as well as direction and discipline when appropriate.

Our handling of this matter was in keeping with those goals.

Sincerely,
James H. Easton, Ed.D.
Superintendent

Here's another story that quotes him:

[Easton] also strongly denied that the child was made to write repeatedly, �I will never use the word �gay� in school again,� as described in the ACLU complaint. The ACLU stood behind its statement.

Easton said the child, who is a second-grader at Ernest Gallet Elementary School, shouldn�t be punished for using a term that describes sexual orientation. . . .

�Of course not. He can�t be disciplined for using the term �gay,� � he said, adding that �he could be disciplined for describing bedroom antics, something that was personal, that took place at home.�

Easton also said Tuesday that the child was actually sent to a behavioral clinic a week later because he was disrupting the classroom and not completing a classroom assignment.

�I can�t imagine an adult saying that to a child, let alone a 10-year teacher,� Easton said. �There are some other issues here.� . . .

Except the trouble is that this is inconsistent with the documents that the school itself initially sent to the parents, which the earlier post (see below) cited. From the article above, continued (emphasis added):

Huff said no one informed her that her child was disruptive, and there was no paperwork indicating he was being troublesome in class.

Documents sent home to the mother, which were prepared by teacher Terry T. Bethea, stated that the boy told another child his �mom is gay� and explained that meant �when a girl likes a girl.� She wrote that it was not acceptable in her classroom.

In a section asking the teacher to describe the behavior, she didn�t indicate that the child was using profane language or otherwise disrupting the classroom. She marked �other,� and clarified if with remarks about the child�s reference to his mother�s sexual orientation.

The report, dated Nov. 11, does say it was the second time the child had been cited for inappropriate behavior, and Assistant Principal Nicholas Thomas recommended the child attend a one-hour behavior class the following week.

Bethea, who came to the door of her home Tuesday evening, referred comment to Gallet Elementary Principal Virginia Bonvillain. Bonvillain did not return telephone calls seeking comment.

Easton said early Tuesday that he couldn�t explain why the district did not have the documentation to support the real reasons for the child�s discipline.

Could the most likely explanation be that what was written in the two notes were "the real reasons for the child's discipline"?

     Thanks to reader Mike Newman for the pointers.

 
[Eugene Volokh, 12/3/2003 12:13:52 PM]
Excerpts of the unpublished EU report on anti-Semitism: The Jerusalem Post has them; thanks to William Sjostrom for the pointer.

 
[David Bernstein, 12/3/2003 11:40:32 AM]
U. Va. incident update: In my previous post about the U. Va. employee who is in trouble for using (or perhaps more correctly, uttered) the word "Nigger" as an illustration of offensive speech, I noted, sarcastically, that it was not clear why the student newspaper wasn't also being criticized for repeating the word in its story on the incident. I've just discovered, via Campus Press Notes, that the paper in fact published a letter objecting to the repitition:

Kara Rowland's Nov. 21 article, "Casteen reacts to U.Va. employee's remarks," included an alleged quote from a U.Va. employee. This quote included a racial epithet, something I'd rather not repeat.

My question is, was it really necessary to explicitly write out that word? I take this akin to a public official using a curse word. Typically, those are paraphrased into something we can understand, but this epithet, which is arguably worse in motive than those, gets printed.
I just ask that The Cavalier Daily exercise more judgment in printing words that can be read by anyone around the world.

Pinaki Santra

I've actually asked editors to spell the word as N-------, because I do consider it akin to an obscenity. But it seems a bit much to ask newspaper editors reporting an incident involving the word to avoid using the word!

Meanwhile, Australian blogger Robert Corr emailed the labor union official who called for punishing the fellow who used the N-word to see if there was more to the story than a ridiculous overreaction to an innocent, nay, sympathetic use (edit: mention) of a racial eptithet.There wasn't.

 
[Eugene Volokh, 12/3/2003 11:23:25 AM]
Mentioned in a court opinion: How Appealing points to the dissent from denial of rehearing en banc in Batzel v. Cremers, which gives an example involving a blog, and writes in a footnote:

To mention a few popular and respected legal blogs, see, for example, How Appealing, www.appellateblog.blogspot.com, SCOTUSBlog, www.goldsteinhowe.com/blog/index.cfm, The Volokh Conspiracy, volokh.com and Lessig Blog, www.lessig.org/blog/. The development argument is likely to hold true in other industries as well, including politics, www.instapundit.com, and software architecture, www.corfield.org/blog.

I'm tickled pink.

 
[Juan Non-Volokh, 12/3/2003 11:07:46 AM]
International Incitement Conviction: The international war crimes tribunal in Rwanda found three media executives guilty of genocide for inciting the mass murder of Tutsis through their radio broadcasts and newspaper publications, according to this report. From my understanding of the events in Rwanda, the convictions are richly deserved, and I presume the facts can be effectively distinguished from Claiborne Hardware or the Nuremberg Files case. Nonetheless, I wonder whether the incitement conviction here is in tension with domestic U.S. law. Specifically, I wonder whether this is a tangible example where international law norms may be less protective of civil liberties -- in this case, free speech -- than domestic law. If so, the subject matter here -- ethnic genocide -- would be particularly conducive to the creation of precedents that are problematic when applied in less stark circumstances. Perhaps Eugene has some thoughts.

 
[Eugene Volokh, 12/3/2003 11:04:18 AM]
Teresa Heinz's money: Is it just me, or is there something a bit troubling about this Slate argument?

If Teresa Heinz won't trust presidential candidate John Kerry with her money, why should American voters trust Kerry with their country?

Teresa Heinz and Sen. John Kerry, D-Mass., were married in 1995. Kerry's assets at the time were a few million dollars. (Click here for Kerry's Senate financial disclosure form for 1995.) Heinz's assets at the time were reportedly around half a billion dollars, which she'd inherited from her late husband, Sen. John Heinz, R-Pa., heir to the ketchup fortune. Unlike many other married couples, Heinz and Kerry kept their premarital assets separate. Much of Teresa Heinz's inheritance was no doubt tied up in trusts, but a substantial sum must have been unencumbered, because she had Sen. Kerry sign a prenuptial agreement. "Everybody has a prenup," Heinz explained to Lisa DiPaulo, who profiled her sympathetically in Elle. . . .

Teresa Heinz Kerry has often been portrayed in the press as a ditz, but in fact she is an extremely bright and accomplished woman. (Has any other candidate's wife been asked to testify before Congress on pension policy?) It simply can't have escaped her notice, when she married John Kerry, that he was going to run for president someday. . . .

Heinz Kerry must have had some inkling that the day might come when her second husband would need her money. And knowing that, she didn't make it available. That doesn't make her a bad wife. But it does raise a disconcerting question for voters. If Teresa Heinz Kerry won't give John Kerry the keys to the car, why should we?

Heinz's money is her own money. She may have had lots of perfectly sound personal reasons not to have turned it over to Kerry (and, as the Slate column points out, to let Kerry use it for the campaign as his own personal funds, she had to have turned it over before he even became a candidate). She might feel that her children have the better claim on it. She might feel some obligation to her first husband to save the money for the children. She might feel that it would be undignified for Kerry to be financially supported -- not just in the campaign but more broadly -- by his much richer wife (and for all I know Kerry might agree). And if there was any distrust at all at the time of the marriage, it might well have been just the understandable, if regrettable, concern that it's better to be safe than sorry, even with someone who you think really is quite trustworthy.

     I just don't think that Heinz's choice not to split her massive personal fortune with Kerry is at all telling about Kerry's character (in the sense of "If Teresa Heinz won't trust presidential candidate John Kerry with her money . . ."). And given that this is so, I'm just not sure that it's any of our business.

 
[Eugene Volokh, 12/3/2003 09:02:35 AM]
"Theocracy": Dahlia Lithwick writes, apropos the Locke v. Davey discrimination-against-religion case:

There is a doctrinal tension built into the long tradition of walling off church from state, and also in the claim that this wall evinces no hostility toward the church. Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy. The Rehnquist court has made its name by slowly chipping away at this wall. The good news for them: This case affords them a chance to do away with that messy tension once and for all. The bad news for the rest of us? The only way to do so will be to get rid of the wall altogether.

I'm not getting this: How is discriminating against religious participants in generally available programs "the only means of avoiding a theocracy"? The post office used to substantially subsidize mailings of newspapers and books -- should it have subsidized all newspapers and books except religious ones, as "the only means of avoiding a theocracy"? The GI Bill funded higher education for returning veterans. Should it have said "we will fund any sort of accredited education you want, except religious education," as "the only means of avoiding a theocracy"? Charitable contributions are deductible from the income tax, which is economically (and constitutionally) equivalent to a matching grant program on the government's part. Should the law instead say "you can exempt all charitable contributions, but not charitable contributions to religious institutions," as "the only means of avoiding a theocracy"?

     Equal treatment of people and programs, without regard for whether they are religious or secular, is not theocracy. Discrimination against the religious is not required to prevent theocracy, any more than discrimination against the secular is required to prevent atheocracy.

UPDATE: My friend and colleague Steve Bainbridge has more on this.

 
[Juan Non-Volokh, 12/3/2003 08:40:20 AM]
State DOMAs and Private Benefits: Some states are considering state-level �Defense of Marriage� Acts in response to the Supreme Court�s Lawrence decision and the Massachusetts Supreme Court same-sex marriage ruling. The idea is to preclude similar rulings by state courts, as well as to prevent the creation or recognition of �Marriage Lite� (i.e. civil unions) by public entities. I am undecided as to whether such laws make sense, but I certainly prefer to see this issue addressed at the state, as opposed to federal, level. (The arguments of Rick Garnett, notwithstanding.

There are good arguments against state DOMAs, but there are also very bad ones. This morning, for instance, I heard an argument (by a lawyer, no less) that state DOMAs were bad because they could be used to challenge the private provision of benefits to same-sex partners. Specifically, he claimed that passage of a state DOMA would facilitate a legal challenge to a private employer for extending the same health benefits to domestic partners that are extended to spouses under the company health plan. He also claimed that a hospital might be sued if it allowed spousal visitation rights to domestic partners. This struck me as highly dubious, so I decided to check out the language in question, and this confirmed my suspicions.

The DOMA introduced in Ohio, for example, provides, in relevant part:

- The recognition or extension of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, . . . that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is void ab initio. Nothing in . . . this section prohibits the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to nonmarital relationships between persons of the same sex or different sexes.

Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.

Setting aside the merits of gay marriage, I do not see how such language could be read to prevent the private provision of health or other benefits to domestic partners. Unless I am missing something, this language is clearly confined to the provision of benefits by government entities. I understand why advocates of gay marriage and/or civil unions wish to defeat such legislation, but they should not resort to fallacious legal arguments to do it.

 
[Eugene Volokh, 12/3/2003 08:28:59 AM]
Religious Equality Amendment: According to Linda Greenhouse, in the New York Times, things seem to be looking bad for the "religion must be treated equally" side in Davey v. Locke, which the Supreme Court heard yesterday. "By the end, a clear majority of five or even six justices appeared unconvinced that a limiting principle would be available if they accepted the broad argument that the Constitution mandates equality in awarding government benefits to religious and nonreligious activities alike."

     I don't see the need for a limiting principle: I think that the government ought not discriminate against people or institutions based on religion or religiosity, with narrow exceptions not relevant here (see below). That means that if the government wants to have a private school choice program, it can't say "secular schools are allowed, religious schools aren't." I've argued this in the last section of this article, and it seems to me that this is the best interpretation of the First Amendment's Free Speech Clause, Free Exercise Clause, and Establishment Clause.

     But if the Court really does say that discrimination against religious people and institutions is fine, that seems to me to be a great opportunity for the Republicans. I've already heard talk in the past of a Religious Equality Amendment, but so far it has seemed likely unnecessary, because the courts were already leaning in that direction. If it becomes necessary, though, it should be quite popular: It would basically read something like

Neither the state nor federal governments, nor any of their subdivisions, shall discriminate against any persons or organizations in any funding program based on their religion or religiosity, or the religion or religiosity of their programs or teachings.

There might have to be a few exceptions, but the core should be simple, understandable, and popular. I hope it might actually get the requisite votes. But if it doesn't, then it should at least get a lot of public support for the people and groups that back it.

     I would want to go even further, and say that

Neither the state nor federal governments, nor any of their subdivisions, shall treat any persons or organizations differently based on their religion or religiosity, or the religion or religiosity of their programs or teachings.

This would apply not just to funding programs, but to all programs, which would mean that exemptions for religious objectors from generally applicable laws -- when such exemptions are available -- would have to be available to secular conscientious objectors as well as to religious ones. I think that's the right thing to do, and should generally pose few practical problems (except for one item that I haven't yet figured out, which is the clergy-penitent testimonial privilege, but I set that aside for now). Unfortunately, though, this might be a more controversial and less easily enactable proposal than the narrower provision I mention above.

     (Footnote: The narrow exceptions to equal treatment would mainly arise in the few situations where such equal treatment would require the government to make theological judgments. The government, for instance, should not be able to decide what's kosher or what's not, or whether a church has remained orthodox or not, even if it's called on to do so by a generally applicable law -- the law of false advertising, or the law of wills, when a court is asked to interpret the religious terms of a bequest. Technically, government refusal to enforce such laws is a form of discrimination based on religiosity; but I think it's necessary to keep the government from discriminating based on religiosity in its application of the law, and I think they're no great burden to forewarned religious people, who can shift the religious decisions out of the court system, for instance by using neutral trademark law or specifying a third party in the will that can decide the religious questions.)

 
[Eugene Volokh, 12/3/2003 08:09:15 AM]
News sites and links: As I mentioned below, I think the most striking items in the "never use the word 'gay' in school again" story are the copies of the school reports. They are powerful indictments, I think, of the teacher's and assistant principal's cruelty, much more so than any quotes from the ACLU. The ACLU wisely included the links in its press release.

     But these items are nowhere linked to, directly or indirectly, from the CNN story. They help demonstrate the facts of the story. They should be interesting to many readers. They are news, which suggests that news outlets might want to include them on their Web sites. And yet the only reason I got them was that the student who sent me the CNN link also sent me the ACLU link.

     Now CNN just reprinted the AP story, so maybe CNN didn't have the URLs handy. But if that's so, why then didn't the AP include them? It would have been easy for them to do, as an option that subscriber organizations could use for their Web sites.

     In 2000, I wrote an op-ed for the New York Times; I was making factual claims about how the Justices voted in free speech cases, so I thought it would be good to include the URL to the site that contained the raw data: It would have added credibility to the piece, and helped those readers who wanted to check further. No, I was told -- Times policy was never to include URLs in its stories. Didn't make much sense to me, especially as to the Web version of the story. But it seems that CNN and AP have the same practice, even if not a categorical policy. The traditional mainstream news media still seem to be way behind here.

 
[Juan Non-Volokh, 12/3/2003 07:47:30 AM]
Anthropornography: Is this really why I like meat?

 
[Tyler Cowen, 12/3/2003 07:29:38 AM]
No, the grass really is greener here: Here are a few news bulletins from Africa:

"* The country of Congo has had a five year war, in which over 3 million people have perished.

* Canaan Banana, the first president of Zimbabwe, just died. He was a mere figurehead, apparently, with a light workload that left him "plenty of time for his hobby, which was raping his male attendants."

* Kenya's legal system has long been a joke, even to Kenyans. In the late 1980s, a chief justice "took his trousers off, balanced a shoe on his head and goose-stepped around the high-court car park chanting pro-government slogans." Justice comes at a literal price: "$250 to escape a rape charge, and $500 for murder." One investigation concluded that "only three of the country's 310 judges were neither corrupt nor incompetent.""

That's in case you couldn't find anything to be thankful for this Thanksgiving. My only surprise is that in Kenya it costs so much to get off on the rape charge. Here is the longer discussion of world bad news, from www.2blowhards.com.

 
[David Bernstein, 12/3/2003 05:02:55 AM]
Canadian Thought Police on the March: My piece on the declining fortunes of freedom of speech in Canada is up at National Review Online.

Tuesday, December 02, 2003

 
[Eugene Volokh, 12/2/2003 09:38:36 PM]
Indecency: cnn.com carries this (from the AP wire), but it's basically just echoing the ACLU press release, so I quote the ACLU item itself:

[A] 7-year-old boy was scolded in front of his classmates and sent to a school behavioral clinic for answering another child�s questions about his lesbian mothers . . . .

Marcus McLaurin was waiting in line to go to recess on November 11 at Ernest Gallet Elementary School when a classmate asked him about his mother and father. He responded that he didn�t have a mother and father; instead he has two mothers. When the other child asked why, Marcus told him that it was because his mother is gay. The other child then asked what that meant, and Marcus explained, �Gay is when a girl likes another girl.�

Upon hearing this, Marcus�s teacher scolded him in front of his classmates, telling him that �gay� is a bad word and he should never say it at school, then sent him to the principal�s office instead of letting him go to recess. The following week the school required Marcus to attend a special behavioral clinic at 6:45 in the morning, where he was forced to repeatedly write �I will never use the word �gay� in school again.� . . .

On a student behavior contract form that Marcus had to fill out and give to his mother about the incident, Marcus wrote that the thing he did wrong was that he �sed bad wurds.� A handwritten note at the top of the form from Marcus�s teacher further explains: �He explained to another child that you are gay and what being gay means.� On a behavior report form signed by the assistant principal, the teacher wrote, �Marcus decided to explain to another child in his group that his mom is gay. He told the other child that gay is when a girl likes a girl. This kind of discussion is not acceptable in my room. I feel that parents should explain things of this nature to their own children in their own way.�

     I think, though, that to fully understand this, you need to look at the forms themselves, which the ACLU has put up here and here. It's just shocking, seeing the words there, not just in the teacher's own writing, but worst of all in the poor little boy's own (obviously prompted by the teacher). They can think whatever they please about homosexuality -- but what kind of schoolteacher and assistant principal would take this out on a seven-year-old, for heaven's sake? Utterly shameful.

     Thanks to reader Kathy Kraig for the pointer.

 
[David Bernstein, 12/2/2003 06:46:10 PM]
Words Fail Me: According to MEMRI, the Alexandria Library in Egypt, restored with UNESCO funds, displays a copy of the anti-Semitic forgery the Protocols of the Elders of Zion next to the Torah in a display of "Jewish Holy Books."

 
[Sasha Volokh, 12/2/2003 02:58:46 PM]
An inspiring holiday message from the Reduced Shakespeare Company: Adam Long says (at the end of a skit where he gets shot in the head by the ghost of Ebenezer Scrooge):

But you know, I've learned something today, guys: I've learned that Christmas is about more than just the birth of a holy child. It's about buying things for your family and friends, and charge cards, and muzak, and food courts, and escalators, and . . . uh, no, no wait a minute, that's not Christmas, that's a shopping mall . . . .

But what I meant to say about Christmas is, it's about children of all ages gathered together in joy, in a sports arena singing "I'm bad, I'm bad" and . . . no wait, that's a Michael Jackson concert . . . .

No, no, Christmas is something more: it's more than Michael Jackson, more than a shopping mall, Christmas is about a man in the desert opening a golden chest and rays of ethereal light shooting into the eyes of Nazis and melting their evil skulls while Harrison Ford and Karen Allen avert their gaze, and yeah, sure, I'm talking about Raiders of the Lost Ark, but I guess my point is that I have absolutely no idea what Christmas is all about. Maybe nobody does! Maybe it's beyond human understanding, maybe that bullet did more damage than I thought and I require urgent medical attention, but before I lose consciousness, ladies and gentlemen, I would just like to say one thing, and I mean this sincerely: Merry Christmas to all, and to all a good night.

P.S. I've seen most of the RSC's shows (the Bible, Santa Cruz, late 1996; the works of Shakespeare, Portsmouth, 1998? [possibly not them personally]; classic literature, Kennedy Center, summer 2003), but the only truly great thing I've experienced from them is The Reduced Shakespeare Company Radio Show, a multi-cassette set about the actual works of Shakespeare.

 
[Eugene Volokh, 12/2/2003 02:42:42 PM]
Rabbi tries to trademark a Kabbalah symbol -- the red string worn around the wrist, apparently to ward off the "evil eye." David Kaufman has the goods, with some apt remarks. Fortunately, the trademark registration application was rejected.

 
[Eugene Volokh, 12/2/2003 02:16:21 PM]
Right of publicity, names, and entertainment: Apropos my Tony Twist stuff, Greg Weber kindly sent along this story:

At page 58 of Louis Chunovic's The Rocky and Bullwinkle Book (Bantam Books, 1996), you'll find the following "Bulletin from Bullwinkle News," dated November 10, 1961:

"Regular viewers of 'The Bullwinkle Show' are familiar with a remarkable piece of headgear known as the 'Kirward Derby,' which gives its wearer enormous intellectual properties. A well-known TV announcer and personality, whose name bears a startling resemblance to that of the famous hat, has seen the humor of the situation and, in an effort to join in the fun . . . is suing us!

While his and our attorneys are out haggling, we'd like to invite Mr. Kirby to feel free to name one of his hats after any one of the characters on 'The Bullwinkle Show,' including the producers, Jay Ward and Bill Scott. Toward this end, we are sending Mr. Kirby a Bullwinkle Beanie. We hope he will wear it in good health."

As I flip through the episode guide contained in the back of the book, I see other characters: Colonel Tomsk Parkoff (who became Bullwinkle's manager when Bullwinkle turned to music), a film talent scout called D.W. Grifter, a film director called Alfred Hitchhike, a magazine called Weeder's Digest....you get the point.

 
[Randy Barnett, 12/2/2003 01:36:44 PM]
Oral Argument in Medical Cannabis Case Now On-Line: The oral argument in the US v. Oakland Cannabis Buyer's Cooperative case that I argued in the Ninth Circuit in September is now available on my website here (at the top of the page).

UPDATE: One reader has been unable to access the file after receiving the following error message: "This content has been shared by multiple users on multiple machines and cannot proceed with further migration." Sounds like insidious digital rights management has somehow creeped into this copyright-free file. If anyone has advice on what might have happened and how to fix it, e-mail me. Sorry for the inconvenience.

 
[Eugene Volokh, 12/2/2003 11:18:59 AM]
Mr. Picassohead.

 
[Eugene Volokh, 12/2/2003 08:51:59 AM]
Religious prejudice: This is nothing terribly new or unusual, but it seems to be worth pointing out, alongside the other forms:

[Georgia] State Rep. Ron Forster, who shares with White a district that includes sections of north Whitfield and Murray counties, said he is "absolutely" in favor of passing a law saying local governments may display the commandments. . . .

Asked about opponents' argument that atheists or those who practice other religions feel they will be discriminated against when they see the commandments in government buildings, he said it "carries no weight."

If a judge or public official doesn't believe in God, "then that person is more likely to be corrupt," Forster said.

Really? Any particular evidence of that? I take it that if a legislator said "If someone doesn't accept Christ, his objections carry no weight, because he is more likely to be evil," or "If someone follows Catholicism, his objections carry no weight, because he is more likely to be a supertitious slave of foreign powers," or "If someone is a Protestant, his objections carry no weight, because he claims the authority to interpret God's will for himself, which surely means that he is more likely to selfishly interpret it in ways that are convenient to him," people would rightly denounce that as religious bigotry. Likewise, it seems to me, with prejudice against the irreligious.

     Yes, I know the theoretical defense: Those who don't accept obligation to a higher power are more likely to be immoral. And I know the theoretical defenses of all the other forms of religious prejudice, too. It seems to me that we have pretty wisely recognized, over time, that in fact a person's ostensible theology tells us pretty little about how corrupt or evil he's going to be. Same goes for a person's lack of theology.

UPDATE: Shoutin' Across the Pacific points out that Forster has gone even further:

"Atheists and even some religions don't have personal values, whereas our Constitution treats each individual as a special creation, and whether you believe it or not, we'll treat you as a special individual person with respect to your own due rights because of our creator -- God," Forster said.

And the evidence for the "don't have personal values" slur is . . . what? There is none, as is not uncommon with the prejudiced.

 
[Eugene Volokh, 12/2/2003 08:11:48 AM]
Explicit dig at the Ninth Circuit: From today's opinion in United States v. Banks, which unanimously reversed a Ninth Circuit Court of Appeals panel decision, and which was written by the normally mild-mannered Justice Souter (emphasis added):

[W]e disapprove of the Court of Appeals's four-part scheme for vetting knock-and-announce entries. To begin with, the demand for enhanced evidence of exigency before a door can reasonably be damaged by a warranted no-knock intrusion was already bad law before the Court of Appeals decided this case. In Ramirez (a case from the Ninth Circuit), we rejected an attempt to subdivide felony cases by accepting "mild exigency" for entry without property damage, but requiring "more specific inferences of exigency" before damage would be reasonable. The Court of Appeals did not cite Ramirez.

Nor did the appeals court cite United States v. Arvizu, 534 U. S. 266 (2002) (again, from the Ninth Circuit). There, we recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the Circuit described as "troubling . . . uncertainty" in reasonableness analysis, by "describ[ing] and clearly delimit[ing]" an officer's consideration of certain factors. Here, as in Arvizu, the Court of Appeals's overlay of a categorical scheme on the general reasonableness analysis threatens to distort the "totality of the circumstances" principle, by replacing a stress on revealing facts with resort to pigeonholes. . . .

 
[Eugene Volokh, 12/2/2003 06:13:14 AM]
Privacy -- in what you read and in what you say: I sympathize with objections to the government gathering library or bookstore records, especially without a warrant and probable cause. Such practices can indeed deter people's reading what they want to read.

     But what about the government interviewing a suspect's friends about what he said or wrote to them, or subpoenaing them to testify or bring their records? That would deter people's saying what they want to say, and e-mailing what they want to e-mail -- at least as much exercises of one's First Amendment rights as borrowing a book from a library. And people are in fact sometimes deterred this way.

     Ah, some might say, but the books you read are such imperfect evidence of what you really think -- maybe you borrowed a bombmaking manual not because you're a terrorist, but because you're writing an article on Crime-Facilitating Speech, and so the government will get entirely the wrong idea about you, and might arrest you based on a misunderstanding. Well, yes; but what you say to someone (or rather what they remembered you saying), or even the small snippet that you e-mail him, might also be misunderstood. That isn't normally reason enough to bar the government from getting the information, and trying to do the best it can with it.

     Now maybe the solution is that the government should have to get a search warrant based on probable cause whenever it wants to order a witness to reveal information or pass along documents. That is certainly not the rule now, nor to my knowledge has it been the rule for many decades. The current rule is that the government may compel anyone's testimony whenever it can show some reason to think that the testimony will bring about the production of relevant evidence (unless the testimony will incriminate the witness, which is a Fifth Amendmentproblem, not a Fourth Amendment one, and which can be cured by giving immunity to the witness). It's an ancient principle: With few exceptions, the law is entitled to every person's testimony. And it's one that is probably necessary; often the government won't have probable cause to say what a witness knows until the witness is ordered to talk, or turn over certain documents.

     Now perhaps we should make do with a halfway system on pragmatic grounds. It seems like very many criminals would escape if the government needed a warrant and probable cause every time it ordered anyone to testify or to bring any records; we've lived with this system for a while, and made our peace with it. But we don't routinely have the government subpoena library or bookstore records, though there's no Fourth Amendment barrier to that. It hasn't proven really necessary, so let's not start now -- let's draw a line based on experience, even if not necessarily abstract logic.

     Still, I hope this illustrates part of why the argument probably has to be made on such pragmatic, not fully principled lines. The argument that "Library and bookstore subpoenas are an unprecedented inroad into our First Amendment right to read" becomes much weaker when we observe that subpoenas asking for the contents of conversations, letters, or e-mail exchanges have long been accepted even though they equally burden our First Amendment right to talk and correspond.

 
[David Bernstein, 12/2/2003 06:09:17 AM]
Soros: Jackie Mason's takedown of George Soros in The American Spectator is a bit over-the-top, but I do like this thought:

There was this movie with Peter Sellers in which he played a character who was -- with all this political correctness floating around, we don't know the appropriate phrase du jour; perhaps it is -- "mentally challenged," but who everybody else thought was a great genius. At a press conference he was asked what he thought of China. He paused, bowed his head and slowly said, "China is full of Chinese." The reporters nodded their heads in awe and murmured, "Full of Chinese, hmm," remarking to each other how brilliant he was.

Money also does this to people. If you have a lot of it, people will never say you are crazy. Only poor people are crazy. You would be "eccentric." When a rich person shows up at a party wearing the most ridiculous clothes, everybody else then thinks they're the ones who aren't in style.

All this makes us think of George Soros, who apparently believes his money makes him a player on the world's stage -- someone whom other people should listen to and respect. Worse yet, these "other" people are beguiled into actually believing this nonsense. The thinking goes something like this. "All my life I have directed all my energies into making as much money as possible. Now, this man makes more in one day than I make in twenty years. Therefore, he must be a genius." But, if a baseball player hits 500 home runs, does that make him anything other than a home run hitter? If a tap dancer knocks your socks off and sounds like a combination of Fred Astaire and Bojangles, would you say he is anything more than a great tap dancer? Would you go to him to have your tonsils removed or for advice as to which mutual fund to buy?

(Via Milt's File)

 
[Eugene Volokh, 12/2/2003 05:27:09 AM]
Cool-sounding puzzle game ("one big geekfest, a time to celebrate super-smart people doing super-smart things, while everyone pretends not to care whether they win or lose") being played at Stanford, among other places; thanks to my friend Mitch Sklar for the pointer. Probably not my cup of tea these days, but don't get me started on my past with skill-gimmick car rallyes (now, sadly, dead in L.A., though they thrived for many years).

Monday, December 01, 2003

 
[Eugene Volokh, 12/1/2003 08:52:29 PM]
Wrong on both levels: From an Associated Press article about fake Lincoln quotes, via InstaPundit:

Here's another fake Lincoln quote: "There's no honorable way to kill, no gentle way to destroy. There's nothing good in war except its ending." Attributed to Lincoln by anti-war protesters earlier this year, the statement actually was made by an actor portraying Lincoln in an episode of "Star Trek."

(See here for a sample of the quote being used by an anti-war personal site.)

     So it turns out the attribution is incorrect; but if it were correct, it would prove the exact opposite of what its users intend it to prove. After all, this is from Lincoln, the President who fought the bloodiest war the U.S. has ever known. If Lincoln had said this, the point would obviously be that, horrible as war is, sometimes it has to be fought. He may well have been in some ways a reluctant hawk -- but hawk he most certainly was. It's not very sensible for pacifists to rely on such a quote from him, even entirely setting aside its spuriousness.

 
[Eugene Volokh, 12/1/2003 08:43:26 PM]
Milestone in plot summary: From the New York Times electronic front page, yet:

Reading Group
Discuss "Eugene Onegin," Pushkin's poem about a friendship between Russian aristocrats.

That's like "Discuss 'Hamlet,' Shakespeare's play about family values in Denmark."

 
[Eugene Volokh, 12/1/2003 06:08:06 PM]
It's not just a saying, it's the law: Well, it's in a dissenting opinion, so not quite. Still, Ainsworth v. Schoen, 606 So. 2d 1275 (Fla. App. 1992), a case involving a seemingly hair-splitting dispute over the finality of an arbitration decision before a Jewish beth din proceeding -- a dispute that's naturally between Jewish parties, which is why they agreed to the beth din -- Justice Schwartz writes in a footnote:

The circumstances show the correctness of the famous expression: "ten Jews, eleven opinions."

I leave it to others to judge the wisdom of this sort of humor in a judicial opinion; but I do think it's pretty funny.

 
[Eugene Volokh, 12/1/2003 05:38:09 PM]
The Bush Administration ate my homework: As readers doubtless recall, writer Wayne Madsen wrote a column on the left-wing counterpunch site that began by roundly ridiculing President Bush for showing up for Thanksgiving dinner with the troops at 6 a.m. Eastern time. "I would have thought most of the troops," the columnist wrote, "many of whom are support personnel who work relatively normal working hours, would have been more surprised when they were ordered to get up before sunrise to eat Thanksgiving dinner between 6:00 and 7:30 A.M." The columnists then faults the media for not picking up on this: "And the abysmal and sycophantic Washington and New York press corps seems to have completely missed the Thanksgiving 'breakfast dinner.'" However, it turns out that the 6 a.m. report on which the columnist relies seems to have been a typo in the Washington Post, and the timeline in the Post's own article should have made this clear. Whoops.

     So what does Mr. Madsen do? Well, I can't really do it justice, except to say that he somehow blames the whole problem on the malign machinations of the Bush Administration, the policies of which were responsible for the Washington Post's typo, which in turn was responsible for the problem in Madsen's column. Nowhere in the follow-up does Mr. Madsen even suggest that maybe the party responsible for the silly mistake was Wayne Madsen, and his quick assumption that everyone else in the media was "abysmal and sycophantic" for missing a rather striking and surprising element of the story, rather than that maybe he should double-check his sources. Oh, and on top of that there are shadowy hints of some malign conspiracy, closing with a quote from The Matrix. Okay then.

     By the way, the original counterpunch column contains no correction of the Six In The Morning Dinner Theory, but only a pointer to the new post, which says "See: Madsen's follow-up: Wagging the Media"; and, given this, I am beginning to doubt that Madsen's purported apology on Indymedia really was by Madsen in the first place. (UPDATE: Indeed, the purported apology apparently wasn't really written by Madsen.) Something apparently means never having to say you're sorry. I don't know what that something is in this case, but apparently there must be something.

 
[Eugene Volokh, 12/1/2003 05:25:19 PM]
The EU report on anti-Semitism that the EU decided to shelve has been leaked to the Jerusalem Post, and is available here (UPDATE: also here, thanks to Shaya Potter, who says that the Post version may go into their pay archives soon). Here's an excerpt from the original story:

The European Union's racism watchdog has shelved a report on anti-semitism because the study concluded Muslims and pro-Palestinian groups were behind many of the incidents it examined.

The Vienna-based European Monitoring Centre on Racism and Xenophobia (EUMC) decided in February not to publish the 112-page study, a copy of which was obtained by the Financial Times, after clashing with its authors over their conclusions. . . .

Following a spate of incidents in early 2002, the EUMC commissioned a report from the Centre for Research on Anti-semitism at Berlin's Technical University.

When the researchers submitted their work in October last year, however, the centre's senior staff and management board objected to their definition of anti-semitism, which included some anti-Israel acts. The focus on Muslim and pro-Palestinian perpetrators, meanwhile, was judged inflammatory.

"There is a trend towards Muslim anti-semitism, while on the left there is mobilisation against Israel that is not always free of prejudice," said one person familiar with the report. "Merely saying the perpetrators are French, Belgian or Dutch does no justice to the full picture."

Some EUMC board members had also attacked part of the analysis ascribing anti-semitic motives to leftwing and anti-globalisation groups, this person said. "The decision not to publish was a political decision." . . .

Ole Espersen, law professor at Copenhagen University and board member for Denmark, said the study was "unsatisfactory" and that some members had felt anti-Islamic sentiment should be addressed too.

The EUMC, which was set in 1998, has published three reports on anti-Islamic attitudes in Europe since the September 11 attacks in the US.

Beate Winkler, a director, said the report had been rejected because the initial time scale included in the brief - covering the period between May and June 2002 - was later judged to be unrepresentative. "There was a problem with the definition [of anti-semitism] too. It was too complicated," she said. . . .

I have not yet read the report myself, but I thought I'd pass it along to those readers who were interested.

 
[Randy Barnett, 12/1/2003 04:48:42 PM]
Mike Rappaport on the Direction of the Republican Party: While Democrats seem to be suffering due to a primary/debate system that lowers the perceived stature of their most able candidates to the level of their most marginal--and drives all their candidates to the positions held by the more extreme elements of the party--a serious debate has broken out over the future direction of the Republican Party. The "big government" conservatives, such as those at The Weekly Standard who supported McCain and not Bush, seem to be getting their way on the domestic front. As Fred Barnes subtitles his piece in this week's issue: The Era of Small Government is Over.

Mike Rappaport comments on "The Great Debate" today on The Right Coast:

. . . [Neoconservatives] claim that the Republicans must behave like a governing party. They must enact programs that the public demands � or else lose their power � and enacting those programs means making compromises to your principles. While I was a big supporter of Newt Gingrich�s agenda, I must admit that the Republicans did not, under his leadership, behave like a majority party. In short, the neocons are saying to the eco-cons: Grow up.

The problem is that I am not persuaded that the compromises the Bush Administration has made have been wise or necessary. It seems like the Bush Administration could have achieved better results. While it is always hard to know what could have been accomplished had the negotiators behaved differently, I would have far more confidence in the Administration�s actions had I believed that the Administration or the neoconservatives actually valued small government in the economic sphere. But their words and actions suggest otherwise. The neoconservatives defend big government conservatism (and regularly attack small government conservatives and libertarians); and the Bush Administration has shown little inclination towards making government small (other than their cutting taxes, which is explainable on other grounds). Thus, my impression is that the Bush Administration and the neocons are not sacrificing strongly held values for the greater purpose of governing, but instead their disdain towards small government (or at least their indifference toward it) is masquerading as political maturity. . . .

UPDATE: Tom Smith, Mike's colleague on The Right Coast, ups the ante by attacking--"Personally, I would not let a neo-con take care of my dog," yes I think "attack" is the appropriate word--neocons in his Big Government Conservatism without the Conservatism:

 
[David Bernstein, 12/1/2003 04:14:09 PM]
Movie of the Year: American Splendor is easily the most interesting movie I've seen this year. You should see it, if only so you can nod knowingly when an acquaintance announces in a nasal voice, "I AM A NERD!"
I also heartily recommend Shattered Glass. Hayden Christensen, the star of Glass, was absolutely atrocious in the last Star Wars movie, but he gives a wonderful performance as former TNR journalist Stephen Glass, who was fired after being caught making up stories for the magazine. Unlike co-Conspirator Randy, my enthusiasm for Master and Commander is merely tepid. As for The Human Stain, it's not a bad movie, but read the book instead. The Matrix: Revolutions is a confused mess, but worth the price of admission for the special effects.

 
[Tyler Cowen, 12/1/2003 02:28:20 PM]
Ten predictions for the future: No, they are not mine, but rather from Outlook 2004, a futurist magazine. Here they are in brief, see the link for fuller descriptions:

1. Genetically modified crops may surpass natural crops in acreage planted by 2020. Crops could be 100% genetically modified by the end of the twenty-first century, according to some optimistic experts.

2. Two-thirds of the world's population will be chronically short of water by 2050. "Water wars" are now imminent in places like Kashmir, where Pakistan's water supply is controlled by India.

3. How do you walk? Security people will be watching. Your unique swagger, stagger, or shuffle will speak volumes. "Gait analysis" could soon join fingerprinting and retina scans in the identification technology toolbox.

4. Voters are vanishing worldwide. Voter turnouts have dropped in established democracies, with record lows in the United Kingdom (59% in the 2001 parliamentary elections) and the United States (51% in the 2000 presidential election). Some countries, such as Australia, Singapore, and Belgium, have made voting compulsory, helping boost participation rates to above 90%.

5. Earthquakes will become deadlier. These future deadly earthquakes won't be more powerful, but they will kill more people simply because there will be more people to kill, particularly in the world's largest cities. Half the world's megacities, with multimillion populations, are located near potential magnitude 7.5 earthquakes.

6. We may be able to engineer longer lives for ourselves. Genetic engineering can double a worm�s life span. Mice are living 50% longer with the help of genetic inventions. Thanks to the human genome project, scientists are closer to identifying ways to decelerate human aging.

7. Polar bears extinct by the year 2100? Global warming is melting polar bears� Arctic hunting grounds and threatens to prevent new ice from freezing. If the trend continues, polar bears could starve off in the next 100 years.

8. More Americans go it alone. Compared with three decades ago, there�s a 4% rise in 25- to 34- year olds, and a 3% to 9% rise in 35- to 44-year-olds, who live alone.

9. Physicians may soon have ways to help paralyzed people move their limbs by bypassing the damaged nerves that once controlled their muscles. Researchers are already able to get rats to do things by stimulating the pleasure centers in the rats' brains.

10. You may be wearing your power on your sleeve. Fabrics containing flexible solar cells may soon be possible as researchers overcome obstacles such as losing current when fabrics are bent. Solar textiles could one day be used to provide clothing for emergency workers or as solar-powered carpets for tents in refugee camps.

Perhaps unsurprisingly, I am most willing to endorse the ones that are already happening, such as more living alone and lower voting rates. Plus I do expect life extension to be possible, and genetically modifed crops are on the way, European opposition or not. So that is four out of ten. But the rest? Well, eventually, in a long enough run, quite a few might come true. But if you take away the trends that are already happening, I don't expect these to go down as especially impressive predictions. The least likely?: massive water shortages and wars over water by 2050. Plus most people die from earthquakes in poor countries, and the world is becoming richer, and building safer structures.

 
[Eugene Volokh, 12/1/2003 02:12:04 PM]
Legal Affairs writing contest:

The deadline for the First Annual Legal Affairs Writing Contest for Law Students is quickly approaching. Entries are due on January 7, 2004 . . . .

The contest, which is sponsored by The Marbury Institute of Piper Rudnick, promotes clear, accessible writing about the law. It also provides students a rare chance to be published in an award-winning general-interest magazine. We�re asking contestants to make an argument of no more than 1,500 words about a pertinent topic in the law, written in a style that�s accessible to general readers and lawyers alike.

The first-place winner will be awarded $2,000, and his or her entry will be published in the �Argument� section of Legal Affairs� March|April 2004 issue. The second-place winner will receive a prize of $1,000, and the third-place winner will be awarded $500. You can find more information about the contest at www.legalaffairs.org.

Legal Affairs began publishing in 2002 as the first general-interest magazine for lawyers as well as non-lawyers. As an independent non-profit venture, we have a broad educational mission: To improve the quality of writing about the law, and to strengthen the legal process by making key issues of law and justice accessible to the public. . . .

I like Legal Affairs a great deal, and I highly recommend it, both to read and to write for.

 
[Eugene Volokh, 12/1/2003 02:10:34 PM]
Apropos the NRA T-shirt case, Matt Rustler, who e-mailed me a link to the opinion after Howard Bashman did, writes:

Bashman is so fast . . . it borders on supernatural. My God. He beat me to the punch by a full half-hour -- and I work with the attorney for one of the parties!! Are we sure Howard Bashman isn't just the name of some experimental, artificially intelligent computer -- like Deep Blue, but a little prosier?

Well, Sasha claims to have met "Howard Bashman" and actually seemingly eaten apparently human food with him/them/it, so I have some evidence on this score. Still, whatever his species/kingdom/chemical basis, Howard provides a tremendous service to lawyers and legal scholars, and all with zero payment on our part; it's much more useful than any silly old chess-playing computer. He has become my main source of legal news, and I'm sure that's true for many others, too. I much hope that his firm is getting lots of new business flowing from his blogging (and that he's getting lots of fun from it), because I don't want it to stop.

 
[David Bernstein, 12/1/2003 02:06:30 PM]
A Must-Read piece on the new Anti-Semitism from Foreign Policy magazine. The author notes:

"The time frame for this resurgence of judeophobia corresponds with the intensification of international links that took place in the 1990s. �People are losing their compass,� observes Dan Dinar, a historian at Hebrew University. �A worldwide stock market, a new form of money, no borders. Concepts like country, nationality, everything is in doubt. They are looking for the ones who are guilty for this new situation and they find the Jews.� The backlash against globalization unites all elements of the political spectrum through a common cause, and in doing so it sometimes fosters a common enemy�what French Jewish leader Roger Cukierman calls an anti-Semitic �brown-green-red alliance� among ultra-nationalists, the populist green movement, and communism�s fellow travelers. The new anti-Semitism is unique because it seamlessly stitches together the various forms of old anti-Semitism: The far right�s conception of the Jew (a fifth column, loyal only to itself, undermining economic sovereignty and national culture), the far left�s conception of the Jew (capitalists and usurers, controlling the international economic system), and the �blood libel� Jew (murderers and modern-day colonial oppressors)."

But one quote doesn't do justice to the article; read it! (Via Milt Rosenberg's interesting blog; I will be on Rosenberg's show from 10-midnight EST tonight. You can listen on WGN radio or at this link).

 
[Eugene Volokh, 12/1/2003 12:54:26 PM]
The First and Second Amendments, together: The Fourth Circuit has just held that a public middle school may not bar a student from wearing an NRA Shooting Sports Camp T-shirt, at least without evidence that the T-shirt caused some disruption (evidence that seemed to be quite absent), or that it was "violent, threatening, lewd, vulgar, indecent, or plainly offensive" (for instance, profanity or sexual innuendo, as in the Bethel School District v. Fraser case; I take it that the supposed offensiveness of the underlying viewpoint wouldn't count, unless it's disruptive).

     I think that the result is quite right, as I mentioned last Fall, when I first blogged about the case. Here's a paragraph that I particularly like, because it effectively responds to the school's unconditional, uncontextual "weapons bad" policy:

Turning to the language of the 2002-2003 Jouett Dress Code [which bans "messages on clothing, jewelry, and personal belongings that relate to . . . weapons"], when we examine the code in view of the fact that there was no evidence presented at the preliminary injunction stage of the case demonstrating that clothing worn by students at Jouett containing messages related to weapons, nonviolent, nonthreatening, or otherwise, ever substantially disrupted school operations or interfered with the rights of others, the 2002-2003 Jouett Dress Code can be understood as reaching lawful, nonviolent, and nonthreatening symbols of not only popular, but important organizations and ideals. For example, the State Seal of the Commonwealth of Virginia depicts a woman standing with one foot on the chest of a vanquished tyrant, holding a spear. The symbol obviously depicts a woman holding a weapon. Thus, under the 2002-2003 Jouett Dress Code, a student may not wear or carry any items bearing the State Seal of the Commonwealth of Virginia. Likewise, the symbol of the University of Virginia�s athletic mascot -- the Cavalier -- is two crossed sabers. This symbol also relates to weapons. According to the Virginia Attorney General, the symbol is used throughout Charlottesville to direct visitors to the university�s football stadium and other facilities and simply to promote the university�s athletics. Ironically, Albemarle County High School, which is located across the street from Jack Jouett Middle School, uses the image of a patriot armed with a musket as its own mascot. Various clothing depicting support for the University of Virginia and
Albemarle County High School by way of the schools� mascots would be banned under the 2002-2003 Jouett Dress Code.

Aside from these non-controversial symbols, the 2002-2003 Jouett Dress Code would apparently distinguish between a t-shirt bearing a peace sign and the message "No War" and one with a picture of an army tank in desert camouflage that urges support for our troops. Similarly, it would prevent a student from wearing a t-shirt bearing the insignia of many of the fighting units engaged in overseas operations in which parents or siblings may serve. Banning support for or affiliation with the myriad of organizations and institutions that include weapons (displayed in a nonviolent and nonthreatening manner) in their insignia can hardly be deemed reasonably related to the maintenance of a safe or distraction-free school. Finally, the quintessential political message the school here is trying to promote -- "Guns and School Don�t Mix" -- would, under a reasonable interpretation, be prohibited on clothing under the 2002-2003 Jouett Dress Code.

Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 12/1/2003 12:24:51 PM]
Gullahs: An interesting article about Gullahs:

Those who study the history of humans often compare the Gullah story to that of the Cajuns (first referred to as Acadians) of Southern Louisiana. In the 18th and 19th centuries, both groups were stripped of their homelands and forced to live in isolated patches. From these bleak conditions, they bore rich cultures that faced the threat of extinction, and both got support from the Park Service.

Because of the Gullah's low profile, their exact numbers are difficult to determine. Estimates range from 200,000 to 750,000. Much of the population is concentrated between Charleston and Savannah -- where the original indigo, rice and cotton plantations flourished. Isolation bred distinct cultural differences from the mainland, including creolized language, an engaging blend of vintage French, English and African dialects -- first spoken as the slaves' second language.

The article also reveals who is "their most famous native son," something I learned by accident just several months ago -- an interesting tidbit. (Thanks to How Appealing for the pointer.)

 
[Eugene Volokh, 12/1/2003 11:59:25 AM]
Where are they now?, part 2: Reader Laurence Rothenberg passes along this item from the Washington Post:

GOOOOD MORNING, MR. CHIEF JUSTICE! . . . [O]n Nov. 12, . . . Adrian Cronauer rose to take the oath [as a member of the Supreme Court bar]. Cronauer, 65, was the rambunctious Air Force disc jockey whose antics in Saigon were immortalized on screen by Robin Williams in the 1987 film "Good Morning, Vietnam."

Post-Vietnam, Cronauer worked in radio and sold Hollywood on the idea for the movie. The movie and ancillary pursuits helped pay his way through law school at the University of Pennsylvania. After graduating in 1989, Cronauer went into business as a communications lawyer in the District, with many radio stations among his clients.

Active in Vietnam veterans organizations and the Republican Party, Cronauer served as national vice chairman of Veterans for Bush-Cheney in 2000 and took a job at the Pentagon two years ago, working on POW-MIA issues. . . .

 
[Eugene Volokh, 12/1/2003 11:35:45 AM]
An amusing (losing) free speech claim, with some amusing remarks by fellow lawprof Eric Muller.

 
[Eugene Volokh, 12/1/2003 11:29:12 AM]
Where are they now? Joshua Davey, whose challenge to state laws that discriminatorily exclude religious education from generally available funding programs was just heard today by the U.S. Supreme Court, is a student at Harvard Law School, it turns out. And it seems his experience with the litigation is one thing that led him from theology to lawyering.

     Or perhaps this just reinforces what I tell lots of my friends, especially those who protest the loudest: Everyone is going to go to law school sooner or later.

 
[Jacob Levy, 12/1/2003 11:24:01 AM]
Measurement errors: Kevin Drum writes:

I am learning new things about the metric system today thanks to Measuring America, which has a chapter about how the metric system came about.
The first part was familiar to me: the metric system's revolutionary inventors defined the meter as one ten-millionth of the distance from the equator to the pole. What wasn't familiar was that this was actually a last minute choice.
It turns out that the idea of standardizing weights and measures based on "scientific" principle had already been a hot topic for a while in England, France, and America, and by 1793 the frontrunner for the unit of length was based not on the size of the earth but on the length of a pendulum with a period of one second. Not only did this strke the scientists of the day as an eminently rational choice, since the period of a pendulum depends solely on its length, but it also had a big practical advantage: anyone could create an accurate meter stick anywhere in the world even if they didn't have access to the vacuum-sealed brass reference rod buried in a vault in Paris.
So why didn't the French stick with the second's pendulum, which coincidentally is almost exactly the length of a meter anyway?
Jean-Charles Borda...persuaded the commission to select the meridian because it would enable them to achieve the goal of French science for more than a century, that of establishing the size of the earth. Since the meridian would have to be measured with the superb repeating theodolite that he had invented, the credit for completing the work...would finally go to him.
....It was backed by another still more compelling motive, one familiar to generations of scientists and funding bodies since then: establishing the length of the meridian was a bigger, more expensive research project than establishing the length of the second's pendulum. On these grounds their choice was shrewd, for the National Assembly did indeed appropriate 300,000 livres for the project, a sum that kept many of the Acad�mie's scientists in work when the institution was abolished in 1793.
And that was that. We ended up with the meter because it provided more work for some underemployed scientists.

Funny-- though it seems to me that the other solution leaves us with the problem of getting identical measurements of a second everywhere in the world. Or is that easier, for some reason that escapes me?

Also funny: They got it wrong. The meter is not one ten-millionth of the distance from the equator to the pole. Ken Adler's delightful The Measure of All Things : The Seven-Year Odyssey and Hidden Error That Transformed the World tells the tale.

Kevin's commentators get into the traditional discussion of the human scale of (some) imperial measures vs. the technical superiority of metric or SI. But (as far as I read, which wasn't all the way down) they didn't discuss my favorite example: temperature. I don't find pounds much more natural or intuitive than kilograms. Liters just aren't sufficiently different from quarts to confuse me; and cups and pints and things always baffled me until I started cooking all the time. I can intuit meters as easily as feet. But I've never, ever learned to intuit Celsius as a way to express temperature. Celsius takes water's states as the basic unit (just as the globe was supposed to be the basic unit for the meter): freezing point, boiling point, divide by a hundred. Which is very useful for expressing, you know, the temperature of ice or steam. But Farenheit takes, roughly, the extremes of actually-experienced temperatures in temperate climates and divides by a hundred. (NB: I have no idea whether this was actually used as the way to derive Farenheit; I assume it wasn't.) Zero degrees F is "too damn cold," the temperature below which one stays indoors unless absolutely necessary. 100 degress F is "too damn hot." Some folks have heat tolerances into the 80s, some into the 90s, but no one thinks it's fun to be out on a hundred degree day. And in Farenheit I find the units of ten to be useful: 30s, 40s, 50s, 60s, etc. Each expresses a pretty well-defined kind of day. "In the 20s" in Celsius simply covers too much to be useful (a range from 68F to 86F).

I grew up with the traditional scientific disdain for the imperial system and the American parochialism that sustains it. I've substantially changed my mind-- I think the world is plenty big enough for SI in science and engineering but Farenheit to express daily temperatures and feet to express people's heights. I've also become pretty enmeshed in the intra-French debates about measurement. In the old regime hundreds of different systems of weights and measures existed in France, often imposed by local law and often using the same names for units that had very different sizes elsewhere. How one saw this mess, and what one thought was the appropriate response to it, are very important markers of general intellectual position on a set of issues I'm interested in, with the philosophes and Napoleon on one side, Montesquieu and Constant on the other. It was that intra-French variety that made the need for a new system seem so urgent, though its proponents always talked about bringing reason to the whole world. Where there wasn't such intra-French confusion (i.e. with the calendar), the Revolutionary attempt to remake things didn't stick.

 
[Eugene Volokh, 12/1/2003 08:41:37 AM]
Why I don't enable comments: On occasion, people ask me why this blog doesn't have comments. A few people have even suggested that it's cowardly or otherwise improper for bloggers not to allow comments. And the arguments for comments are pretty substantial -- they provide extra value for those readers who enjoy them, and those readers who enjoy posting them; and those who don't like them can just ignore them.

     I've thought a bit about the subject, and my tentative sense is that I'd nonetheless rather not implement them, for two reasons.

     1. The first is esthetic, which sounds frivolous, but esthetics of a certain sort matters a lot to writers and editors. I feel that The Conspiracy is a coherent product that I help put together. I intentionally lack complete control over it, because of the participation of my cobloggers; and I find this esthetically pleasing (as well as functionally useful in various ways), since it lets me enjoy the pleasant surprise of interesting things being posted that I couldn't have even thought of posting. But that's so because I have a very high opinion of my cobloggers, and have tried to select them based on their quality.

     It would annoy me a lot if this coherent product also included some postings that I very much dislike, from people whom I never explicitly invited. Even if people didn't think less of me for those postings, it would still bother me. Maybe this isn't entirely rational; many esthetic preferences aren't rational. But it is pretty strongly felt, as are many writers' and editors' views about "their babies."

     2. The second is reputational. Rightly or wrongly, consciously or not, some people's perception of the blog and its bloggers will be molded by what the commenters post as well as by what the bloggers post. Some people will infer (not implausibly) that because (A) some dreck is posted, (B) I have the power to delete it, and (C) I don't delete it, therefore (D) I must agree with it or at least not entirely disagree with it.

     3. And this brings us to the third, eminently practical reason. I'm swamped as it is, and I don't have the time to deal with all this. "What time?," people ask. "Just enable them and leave them be." Yeah, right. Someone is going to start spamming the comments with ads for penis enhancement. Someone else is going to start a flamewar. Some jerk is going to decide that he violently disagrees with me -- or, worse yet, that he agrees with me -- and chooses to express himself in terms that are hard to just ignore. As I mentioned in the second point, the reputation of the blog will indeed be on the line.

     The consequence will be that I'll have to monitor the comments in some measure, which means a good deal of hassle -- not just time-consuming work, since that's often fun, but time-consuming hassle and obligation. That seems like something I'd much rather avoid right now.

     So there it is. I know some bloggers are happy with having their comments enabled. I've occasionally read those comments, and I've sometimes even been quite enlightened by them. I'm glad they're providing this free service, and enduring the hassle that it involves (or just shrugging it off, since they have a different view than I do on the first two points). I'm just not inclined to be quite as generous as they are in this respect. Hope this provides a helpful explanation for those who might have wondered.

 
[Eugene Volokh, 12/1/2003 07:58:36 AM]
Supreme Court refuses to hear Second Amendment case: The Supreme Court just refused to hear Silveira v. Lockyer, the Second Amendment challenge to the California assault weapons ban. Here is my post on the subject from May, entitled "Will the Supreme Court agree to hear the Silveira case?"; I hope this might explain the reasoning the Justices might have engaged in to make this decision:

A lot of people are asking this question, which I think is very hard to answer. A few general thoughts:

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



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



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



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

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

 
[Randy Barnett, 12/1/2003 07:46:26 AM]
David Boaz on the Bush Betrayal: David Boaz, the executive vice president of the Cato Institute, had an op-ed in Sunday's Washington Post entitled: The Bush Betrayal:

In 2000 George W. Bush campaigned across the country telling voters: "My opponent trusts government. I trust you."

Little wonder that some of his supporters are now wondering which candidate won that election.

Federal spending has increased by 23.7 percent since Bush took office. Education has been further federalized in the No Child Left Behind Act. Bush pulled out all the stops to get Republicans in Congress to create the biggest new entitlement program -- prescription drug coverage under Medicare -- in 40 years.

He pushed an energy bill that my colleague Jerry Taylor described as "three parts corporate welfare and one part cynical politics . . . a smorgasbord of handouts and subsidies for virtually every energy lobby in Washington."

It's a far cry from the less-government, "leave us alone" conservatism of Ronald Reagan.

Conservatives used to believe that the U.S. Constitution set up a government of strictly limited powers. It was supposed to protect us from foreign threats and deliver the mail, leaving other matters to the states or to the private sector -- individuals, families, churches, charities and businesses.

That's what lots of voters assumed they would get with Bush. In his first presidential debate with Al Gore, Bush contrasted his own vision of tax reduction with that of his opponent, who would "increase the size of government dramatically." Gore, Bush declared, would "empower Washington," but "my passion and my vision is to empower Americans to be able to make decisions for themselves in their own lives."

Bush was tapping into popular sentiment.

In fact, you could say that what most voters wanted in 2000 was neither Bush nor Gore but smaller government. A Los Angeles Times poll in September 2000 found that Americans preferred "smaller government with fewer services" to "larger government with many services" by 59 to 26 percent.

But that's not what voters got. . . .

 
[Eugene Volokh, 12/1/2003 07:46:04 AM]
Pledge case will be argued by Michael Newdow himself: Michael Newdow, who filed the challenge to the Pledge of Allegiance, and who (I believe) has litigated it himself from beginning to end, will now be arguing it before the U.S. Supreme Court. Newdow is trained as a lawyer, though to the best of my knowledge hasn't practiced, other than in litigating this case. See here for my earlier post on Newdow's desire to argue his own case, and why it's neither unprecedented nor unreasonable (though perhaps not optimal if all one cares about is maximizing the likelihood of victory).

 
[Eugene Volokh, 12/1/2003 07:38:29 AM]
Skepticism about military detention policy: (UPDATE: D'oh! My coconspirator Randy Barnett beat me to it; I posted this before I read through his posts. In any case, it's so interesting it's worth saying twice . . . .)

From the Los Angeles Times:

[A] chief architect of the USA Patriot Act and a former top assistant to Atty. Gen. John Ashcroft are . . . voicing concern about aspects of the administration's anti-terrorism policy.

At issue is the government's power to designate and detain "enemy combatants," in particular in the case of "dirty bomb" plot suspect Jose Padilla, the Brooklyn-born former gang member who was picked up at a Chicago airport 18 months ago by the FBI and locked in a military brig without access to a lawyer. . . .

Viet Dinh, who until May headed the Justice Department's Office of Legal Policy, said in a series of recent speeches and in an interview with The Times that he thought the government's detention of Padilla was flawed and unlikely to survive court review.

The principal intellectual force behind the Patriot Act, the terror-fighting law enacted by Congress after the Sept. 11, 2001, attacks, Dinh has steadfastly defended the Justice Department's anti-terrorism efforts against charges that they have led to civil-rights abuses of immigrants and others. While the Patriot Act does not speak to the issue of enemy combatants, his remarks still caught some observers by surprise.

In an interview, Dinh, a professor at Georgetown University Law Center, said the Padilla case was not within his line of authority when he was in the department, but that he began to think about the issue later, and came to the conclusion that the administration's case was "unsustainable."

Another top former Justice Department official, Michael Chertoff, who headed the department's criminal division, has said he believed the government should reconsider how it designates enemy combatants.

"Two years into the war on terror, it is time to move beyond case-by-case development," Chertoff said, according to an excerpt from a speech he gave last month at the University of North Carolina at Chapel Hill law school.

"We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said.

Chertoff, a federal appeals court judge, also mentioned at a judicial conference in Philadelphia this month the need to reexamine procedures for combatants. "Inevitably, decisions of war are made with imperfect information," he said. "Perhaps the time has come to take a more universal approach."

Chertoff emphasized in an interview that he wasn't venturing an opinion on the Padilla case, which is being litigated in the federal courts, or criticizing the decisions that the government has made to date in the case. . . .

In the interview, Dinh said he believed the president had the unquestioned authority to detain persons during wartime, even those captured on "untraditional battlefields," including on American soil. He also said the president should be given flexibility in selecting the forum and circumstances -- such as a military tribunal or an administrative hearing -- in which the person designated an enemy combatant can confront the charges against him.

The trouble with the Padilla case, Dinh said, is that the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.

"The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to," Dinh said. "But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated." . . .

I know Viet Dinh moderately well, and he's a very smart guy, as well as a serious conservative; by all accounts, the same is true of Chertoff. Their comments are definitely worth listening to.

 
[David Bernstein, 12/1/2003 07:30:29 AM]
UT Palestinian Conference is Back On: The University of Toronto conference, discusssed in these previous posts, is back on, after the organizers and the university agreed that all attendees must:

1.) Agree to abide by the University of Toronto's Policy on the Disruption of Meetings;
2.) Sign a document which outlines that "discussion in the conference shall be in accordance with the Universitys Statement on Freedom of Speech and that making homophobic, racist or sexist comments are inconsistent with the responsible exercise of free speech";
3.) Be advised that the conference organizers subscribe to the original basis of unity for the conference and that "this event has been planned in a manner which is consistent with these principles".
The original 6 point basis of unity is then listed on the form, and attendees of the conference are required to sign the form to attend the conference.

Thus, while the organizers portray this as a great victory, in fact they have retreated: attendees no longer have to state that they agree with the "basis of unity," but simply acknowledge that the organizers believe in it.

Query: The "basis of unity" states that the State of Israel must be wiped out (no two-state solution is permitted by the basis of unity), and that terrorism against innocent civilians is a legitimate means to accomplish that end. Given that Jews are apparently the only people in the world whom the conference organizers believe should be violently dispossessed of their homeland, doesn't the "basis of unity" itself violate provision number 2's ban on racist expression? Of course, I don't believe that a public university should ban racist expression on its campus, but if it does do so, the ban sholdn't be applied less strictly to racism against Jews than to other forms of racism.

The conference organizers, meanwhile, have released this statement:

The conference organizers feel that this agreement, which was reached after a week of pressuring and negotiating with the University, will achieve our goal of having a successful conference which will provide a safe space for anti-racist, feminist and pro-Palestinian activists and which will also be free of Zionist provocations and disruptions. It is a clear and resounding victory, not only for us, but for all student activists, and it will allow us to carry out our fundamental goals of discussing the criminal activities of the Israeli state and working to build a solidarity movement in support of the Palestinian people here in Toronto.

I continue to be astounded by the use of left-wing egalitarian rhetoric by reactionary Palestinian activists who wish to replace a modern liberal democracy with what would almost certainly be an authoritarian, militaristic, fascistic regime with little respect for the rights of women, minorities, and relgious dissenters.

 
[Eugene Volokh, 12/1/2003 07:14:24 AM]
Chutzpah is one piddly little species calling a supposedly beautiful member of their species "Miss Universe." I'll bet you there are billions of other creatures out there who would dispute that one (if they'd only heard about it).

     It's almost as bad as some people naming a championship contest a "World Series" when the only eligible teams come from two countries, and all but two of the teams come from one country.

UPDATE: Yes, I had heard that the name "the World Series" came from the name of the newspaper that sponsored it. I lack the inclination to check this out in detail (FURTHER UPDATE: The generally quite reliable Snopes claims that the newspaper name theory is bunk), but even if it's true, that's not quite how it's actually understood these days by 99.44% of baseball fans, no?

 
[David Bernstein, 12/1/2003 06:52:59 AM]
The Republican Collapse--Bush's Big Government Conservatism: Excellent piece by Cato's David Boaz in yesterday's Washington Post:

Leave aside defense spending and even entitlements spending: In Bush's first three years, nondefense discretionary spending -- which fell by 13.5 percent under Ronald Reagan -- has soared by 20.8 percent. His more libertarian-minded voters are taken aback to discover that "compassionate conservatism" turned out to mean social conservatism -- a stepped-up drug war, restrictions on medical research, antigay policies, federal subsidies for marriage and religion -- and big-spending liberalism justified as "compassion."

Ironically, my conservative friends told me in 2000 that John McCain would be a disaster as president because unlike Bush, he believed in Big Government.
UPDATE: And McCain, as it turns out, is becoming increasingly critical of the profligacy of his fellow Republicans, including the president.

 
[David Bernstein, 12/1/2003 06:47:15 AM]
Life Imitates Monty Python: You may have already seen that a University of Virginia employee is in hot water for using the N word in the midst of a PC diatribe denouncing the use of perceived racist language. A reader points out two interesting things about this story. First, it was reported by the Cavalier Daily, which itself used the N word in its story. So why isn't the Daily also being denounced? Second, the incident is reminiscent of the "Jehovah" scene in Monty Python's "Life of Brian:"

OFFICIAL: You have been found guilty by the elders of the town of uttering the name of our Lord, and so, as a blasphemer,...
CROWD: Ooooh!
OFFICIAL: ...you are to be stoned to death.
CROWD: Ahh!
MATTHIAS: Look. I-- I'd had a lovely supper, and all I said to my wife was, 'That piece of halibut was good enough for Jehovah.'
CROWD: Oooooh!
OFFICIAL: Blasphemy! He's said it again!
CROWD: Yes! Yes, he did! He did!...
OFFICIAL: Did you hear him?!
CROWD: Yes! Yes, we did! We did!...
WOMAN #1: Really!
[silence]
* * * *
OFFICIAL: * * * Now, where were we?
MATTHIAS: Look. I don't think it ought to be blasphemy, just saying 'Jehovah'.
CROWD: Oooh! He said it again! Oooh!...
OFFICIAL: You're only making it worse for yourself!
MATTHIAS: Making it worse?! How could it be worse?! Jehovah! Jehovah! Jehovah!
CROWD: Oooooh!...
OFFICIAL: I'm warning you. If you say 'Jehovah' once more-- [MRS. A. stones OFFICIAL]
Right. Who threw that?
MATTHIAS: [laughing]
[silence]
OFFICIAL: Come on. Who threw that?
CROWD: She did! It was her! He! He. Him. Him. Him. Him. Him. Him.
OFFICIAL: Was it you?
MRS. A.: Yes.
OFFICIAL: Right!
MRS. A.: Well, you did say 'Jehovah'.
CROWD: Ah! Ooooh!...
[CROWD stones MRS. A.]
OFFICIAL: Stop! Stop, will you?! Stop that! Stop it! Now, look! No one is to stone anyone until I blow this whistle! Do you understand?! Even, and I want to make this absolutely clear, even if they do say 'Jehovah'.
CROWD: Ooooooh!...
[CROWD stones OFFICIAL]
WOMAN #1: Good shot!
[clap clap clap]

 
[Eugene Volokh, 12/1/2003 06:30:16 AM]
Bumper fish in Egypt: My friend and fellow lawprof Rick Garnett passes along this story:

First came the fish bumper stickers, imported from the United States and pasted on cars by members of Egypt's Coptic minority as a symbol of their Christianity. Before long, some Muslims responded with their own bumper stickers: fish-hungry sharks.

It's not exactly war at sea, but the competing symbols that have cropped up on Cairo streets are a tiny reminder of the tensions between Egypt's Copts and majority Muslims. Some Christians are annoyed at the Muslim response.

"All I wanted to say is that I am a Christian, kind of expressing my Coptic identity," said 25-year-old Miriam Greiss, who has a fish sticker on her car. "I think choosing a shark doesn't make sense, as if someone is saying, 'I am a violent, bloody creature, look at me.'"

Emad, a Muslim, laughed when asked about the competing symbols but was unapologetic about the two shark stickers on his car.

"The Christians had the fish so we responded with the shark. If they want to portray themselves as weak fishes, OK. We are the strongest," said Emad, who would give only his first name. . . .

Relations are generally calm between Copts, an estimated 10 percent of Egypt's more than 70 million people, and the Muslims who make up virtually all the rest. But tensions do occasionally erupt into violence, and Copts complain of job discrimination and being shut out of a share of political power.

The complaints, though, are spoken softly. Copts -- who trace their history to St. Mark's bringing Christianity to Egypt soon after the death of Christ -- didn't survive Roman persecution and Arab conquest by being overly assertive.

Copts often wear gold cross pendants or have tiny crosses tattooed on the inside of their wrists, but the stickers seem a more public step. Karl Innemee, a specialist in Coptic studies at the American University in Cairo, said the arrival of the fish could reflect a new desire by Egyptian Christians "to express themselves openly." . . .

 
[Randy Barnett, 12/1/2003 06:02:52 AM]
Viet Dinh Questions Padilla Detention: Although I think the administration's stance towards illegal combatants is more justified than critics have charged, its treatment of Jose Padilla, an American citizen captured on American soil is unconstitutional and sets a very dangerous precedent. Now Georgetown law professor and former Justice Department official Viet Dinh has publicly questioned this policy in recent speeches as described in this article in the LA Times (free registration required), Patriot Act Author Has Concerns: Detaining citizens as 'enemy combatants' -- a policy not spelled out in the act -- is flawed, the legal scholar says. An excerpt:

The Justice Department's war on terrorism has drawn intense scrutiny from the left and the right. Now, a chief architect of the USA Patriot Act and a former top assistant to Atty. Gen. John Ashcroft are joining the fray, voicing concern about aspects of the administration's anti-terrorism policy.

At issue is the government's power to designate and detain "enemy combatants," in particular in the case of "dirty bomb" plot suspect Jose Padilla, the Brooklyn-born former gang member who was picked up at a Chicago airport 18 months ago by the FBI and locked in a military brig without access to a lawyer.

Civil liberties groups and others contend that Padilla--as an American citizen arrested in the U.S. --is being denied due process of law under the Constitution.

Viet Dinh, who until May headed the Justice Department's Office of Legal Policy, said in a series of recent speeches and in an interview with The Times that he thought the government's detention of Padilla was flawed and unlikely to survive court review.

The principal intellectual force behind the Patriot Act, the terror-fighting law enacted by Congress after the Sept. 11, 2001, attacks, Dinh has steadfastly defended the Justice Department's anti-terrorism efforts against charges that they have led to civil-rights abuses of immigrants and others. While the Patriot Act does not speak to the issue of enemy combatants, his remarks still caught some observers by surprise.

In an interview, Dinh, a professor at Georgetown University Law Center, said the Padilla case was not within his line of authority when he was in the department, but that he began to think about the issue later, and came to the conclusion that the administration's case was "unsustainable."

This, coupled with criticism of Michael Chertoff (also described in the article), should increase the pressure on the administration to comply with the constitutional obligation of habeas corpus and due process.

Sunday, November 30, 2003

 
[Tyler Cowen, 11/30/2003 06:18:06 PM]
Food, book, and movie pointers: I've been reading cookbooks lately, and I have come across an especially delightful book, What Einstein Told His Cook: Kitchen Science Explained. It is not a cookbook but rathers offers a framework with which all other cookbooks can be read. It starts with the motto that cooking is simply applied chemistry. And how exactly does this chemistry work and take hold? Imagine a Dawkins, Pinker, or Hawking, but writing a popular science book on the topic of how food ends up tasting good, or bad as the case may be, and you get this book. Delightful, a good and instructive read from start to finish. It is the only book that has ever made me think I might like chemistry, a subject that held no appeal for me in high school, to me it had always seemed arbitrary and lacked the beauty and rigor of physics.

My second pointer is toward the movie Love Actually, you know the British one with Hugh Grant and everyone else under the sun, including Emma Thompson and Rowan Atkinson. I quite liked it, and found it more tragic than the flimsy romantic comedy I had been led to expect. It also offers an interesting take on how the Brits view Americans, American Presidents are wild cowboys, incapable of compromise and, according to the movie, the Brits would like nothing more than to tell them off. American women, well, they are not showed in a totally flattering light either...I won't spoil the movie any more for those who wish to see it. It has stuck with me to a surprising extent.

 
[Eugene Volokh, 11/30/2003 12:17:47 PM]
Be careful reading the headlines: Unless I've got it quite wrong, the headline to this FoxNews copy of an AP story is the exact opposite of what it should be:

In Sniper Trial, Muhammad May Testify Against Malvo . . .

Lee Boyd Malvo's lawyers have subpoenaed Muhammad and plan to call him to the stand this week. . . .

Malvo's lawyer, Craig Cooley, said he had not received any notification from Muhammad's lawyers that they would try to quash the subpoena.

"We'd like to hear the truth," Cooley said when asked what information he wants from Muhammad. . . .

Malvo's lawyers are presenting an insanity defense, claiming their client was brainwashed by Muhammad, 42, and molded into a killer. . . .

Sounds like the headline should read "In Sniper Trial, Muhammad May Testify On Behalf Of Malvo." Mistakes, of course, happen -- but this is just a reminder to always be skeptical.

 
[Eugene Volokh, 11/30/2003 11:01:13 AM]
Bush and Nevada: Xrlq rightly condemns those who wrongly condemn Bush for supposedly mispronouncing Nevada. "The language police has just made another false arrest," Xrlq writes, and also points out that, besides being wrong on the substance, the article contains some obvious errors of its own. (The omission of the quotes in the headline strikes me as somewhat contestable, though I'm not positive about that; but the other points are entirely right.)

 
[Juan Non-Volokh, 11/30/2003 07:37:08 AM]
Natural Rainforest or "Pristine Myth"? For decades it was simply assumed that forest lands in the Americas � old growth in the North and rainforests in the South � were �pristine� and largely devoid of human influence prior to European settlement. This �pristine myth� still dominates popular conceptions � but it is no longer the accepted wisdom among archaeologists. To the contrary, there is increasing evidence that the pre-Colombian forests of the Americas were subject to extensive human alteration and influence.

What is often characterized as the �natural� condition for North American forests was actually the result of human efforts � albeit not the efforts of European settlers. It is now well-established that Native Americans extensively altered the North American landscape through the use of fire, irrevocably altering the ecology of the American landscape. New research suggests a comparable pre-Colombian human influence on the Amazonian rainforest.

Research published in the September 19 Science (Heckenberger, et al., 301 SCIENCE 1710), for example, reports on �clear evidence of large, regional social formations� circa 1250-1600 A.D., that had �substantial influence� on the surrounding ecology. Specifically, Heckenberger, et al. report on a network of at least 19 villages connected to each other and smaller settlements through roads and avenues. They estimate that each village, and surrounding settlement, supported 2,500 to 5,000 villagers. The authors suggest these settlements made much of the rainforest in the Xingu region of Brazil was less �pristine forest� than �cultural parkland.�

The scale of the prehistoric settlements, including exterior constructions, such as roads, hamlets, wetland structures, and cultivation areas, suggests that agricultural and parkland landscapes, rather than high forest, characterized the broad landscapes around ancient villages, as is true in contemporary villages.

Surrounding forest is not �virgin� growth, but secondary regrowth � largely the result of pre-Colombian land management practices.

This research has significant implications for ecological thought � if not environmental policy on the ground. To assert that the pre-Colombian landscape was somehow more �natural� is to dismiss the accomplishments of pre-Colombian American civilization. It is to place Native American land management as a part of �nature,� rather than as a part of human civilization. This view is ahistorical, and perhaps reflects a latent cultural chauvinism that dehumanizes non-white accomplishments.

The �pristine myth� of pre-Colombian America is imploding. European settlers did not discover a �natural� America, but one cultivated by Native Americans, who altered and managed the American landscape for several hundred years. The American landscape of 1492 was no more �natural� than those of the last three hundred years. The idea of an untouched American wilderness is ecological fantasy, not historical fact.