From today's L.A. Times:

From their first days as "Screaming Eagles," the 18,000 soldiers of the Army's 101st Airborne Division are taught to be ready for anything. As the force's proud creed goes: "First in, last out."

But at its sprawling home base — after a long year in Iraq that wreaked havoc with the blades of its helicopters, the sights of its guns and the nerves of its soldiers — the 101st is as far from ready as it has ever been.

Outside a gun locker the other day, a soldier used a bristled brush to scrape out Iraqi sand lodged in the seams of his rucksack. In the motor pool, mechanics pulled the transmission from a bomb-battered Humvee. At a social worker's office, a soldier ticked off the names of buddies he had watched die and mourned the breakup of his romance back home.

The 101st has no choice but to fix itself. And fast. With Defense Secretary Donald H. Rumsfeld saying this week that the U.S. military presence in Iraq will stand at 135,000 troops for the foreseeable future, the Pentagon must prepare these soldiers to return to the fight.

What the 101st is going through is a microcosm of what lies ahead for the entire Army. Iraq is its biggest test since Vietnam, and the rigors of fighting a counterinsurgency have demolished much of the Army's equipment and allowed its soldiers' skills to atrophy. For the first time, three Army divisions — more than a third of its combat troops — are classified as unfit to fight. . . .

Wow, "as far from ready as it has ever been": There's sand in the seams of rucksacks. Transmissions need changing. Soldiers mourn their friends, and bemoan Dear John letters. Yup, I remember well that scene from Band of Brothers, where Easy Company was pronounced unready to fight precisely because of that.

So it seems to me there are three possibilities:

1. Our military has always been so easily rendered "far from ready."

2. Once, the military could withstand sand, transmission repair, death of fellow soldiers (at a scale far greater than we've seen in this war), and broken romances; but now it is no longer able to do so.

3. More likely, the L.A. Times doesn't really know much about what causes military units to be ready or unready — or, if it knows, it isn't really accurately telling us in this story.

Interestingly, the story never tells us what the military's "unfit to fight" designation exactly means. Is it a relative term? An absolute one? What does it tend to take to make a unit fit to fight again? Whatever it is, I doubt that the list in the opening paragraphs of the story says much about the matter.

UPDATE: On rereading, I realize that I might have missed one possible definition that the story did give:

But in order to be judged as fit for combat, the 101st and other returning divisions must restore themselves to readiness in every aspect of their potential mission -- even those that aren't required in Iraq. That means working through a checklist that includes everything from ensuring its soldiers are outfitted with the proper number of chemical protective outfits to verifying that enough of its soldiers can run a speedy mile. On parking lots throughout Ft. Campbell, soldiers have laid out the long strings of parachutes to make sure every one is free from knots. Inside the base gymnasium, they practice wrestling holds to prove themselves capable of hand-to-hand combat.

So I ask again: Are these units genuinely unready? Does sand in the gear, machines that need fixing, romantic troubles, and even grief over fallen comrades (58 dead and 387 wounded out of 18,000 total) make the unit really unfit to fight? Just which items on the checklist did they fail? Should we be worried about real unreadiness, or is this simply a technical military designation that's intended to get a unit to shape up, even if it's quite capable of doing the tasks that it is in fact likely to be asked to do?

We sometimes get e-mail from people asking us to link to their blogs. We actually very rarely add new blogs to the blogroll, which is already pretty long; perhaps this is a mistake, but that's our tentative approach to this. However, we're always happy to consider linking to interesting posts on other people's blogs. Two brief reminders about what tends to make this process easier for us (reminders to which I'll link from a permanent "Linking policy" link that I'll be adding to the front page):

1. Pitch the post, not the blog. If you have a post that you think we and our readers will find especially interesting, let us know about that — such custom-selected posts are generally more tempting than just a suggestion to read whatever happens to be on the front page of some blog.

2. Include both (a) the text of the post and (b) the URL of that particular post. When we're working from home, often on slow connections, this makes it much easier for us to read the post — and thus much more likely that we will read it and consider linking to it.

I suspect that many other bloggers have similar preferences to these.

Sorry to be so demanding, but the volume of e-mail that we get has ended up requiring this.

According to the AP,

Condoleezza Rice said Thursday that terrorists today are driven by the same hatred that inspired Klansmen to bomb a church in 1963 in her hometown of Birmingham, Ala. . . .

The bombing at the Sixteenth Street Baptist Church in Birmingham killed four girls, including her friend, 11-year-old Denise McNair, and was meant to instill fear, Rice said.

"Those terrorists failed because of the poverty of their visions — a vision of hate, inequality. . . . And they failed because of the courage and sacrifice of all who suffered and struggled for civil rights." . . .

An apt analogy, on which Clayton Cramer aptly elaborates:

It is a very fitting comparison. I am afraid that most Americans don't really know what "lynching" involved. . . . [H]anging someone would have been positively humane compared to what lynch mobs often did. It was quite common to castrate the victim before hanging him. Sometimes, victims weren't hung, but burned alive.

Think of Nick Berg -- screaming in pain as they cut off his head with a knife. The analogy really does fit quite well. . . .

Paul Craig Roberts responds to my criticisms:

As everyone knows, Brown was not a 14th Amendment decision. Had it been, the problems I have identified would not have arisen. As my book makes clear, I agree with Justice Harlan's dissent to the Plessy decision. However, remember that the Plessy ruling did not uphold legal inequality. All sorts of inequalities in practice existed, including in the white schools. Being neighborhood schools, schools were segregated by class as well as by race. Unless they were

mismanaged, rich school districts could have better equipped schools.

Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender. These preferences are throwbacks to the status-based rights of feudalism. In place of practical inequality, we now have legal inequality.

Another devastating result of Brown is that it was influenced by--in my opinion, based on--Myrdal's book, which concluded that American democracy could not overcome segregation, because Americans on the whole, including Northeast liberals, were too racists in their views.

In other words, Myrdal applied Karl Marx's denial of the existence of good will between classes to races, as feminists have applied it to genders. As Marx made clear, in the absence of good will, coercion is the only effective force.

The Civil Rights Act followed in this train, invading freedom of conscience and substituting coercion for persuasion. This radically changed the nature of reform. In place of persuasion and good will, we now have rule by judges.

The Vinson Court was opposed to segregation and wanted to rule against it in 1952 but would not because the justices understood that it would usher in kritarchy. As you were born into kritarchy, their concerns may be a mystery to you. Justice Reed, who in the end went along with

the 1954 decision, knew it would fundamentally change the nature of the American political system. I saw in the news the other day that a federal judge in Kansas ordered an entire school system closed because it didn't meet his standards.

Lawrence Stratton and I told the story of how the civil rights revolution went amiss in The New Color Line (1995). The book was widely and favorably reviewed. After 9 years, no one has been able to challenge or refute our work.

There are many things I disagree with here. To begin with, I simply don't understand how Brown v. Board of Education, which held that "separate but equal" programs were unconstitutional, "ushered in kritarchy — government by judges," while Harlan's dissent in Plessy v. Ferguson, which would have held the same thing, was proper.

I also don't understand how one can say that "the Plessy ruling did not uphold legal inequality. All sorts of inequalities in practice existed, including in the white schools." Plessy v. Ferguson upheld a legal requirement that railroads segregate people based on race. That's precisely why Harlan dissented; if "the Plessy rulling did not uphold legal inequality," then how can Roberts "agree with Justice Harlan's dissent"?

But what most strikes me is Roberts' continued insistence (see here for more examples of this argument on his part) that:

Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender.

"After the civil rights revolution, . . . [t]here are now legal preferences based on race and gender." There have always been legal preferences based on race and gender in America, from the date of the Constitution. Women used to be unable to vote. They used to be barred by law from various jobs. They were kept from being lawyers. They were routinely discriminated against by the government (let's set aside private institutions here, since we're talking about the Equal Protection Clause) in hiring.

Blacks were, even after the end of slavery, subjected to Jim Crow, which surely did not involve their being treated as equal under the law. They were excluded from various government jobs and government-run universities. They were denied the vote by government action. The list of "legal preferences based on race and gender" given to whites and males (and, in some instance, females) long before the civil rights revolution could go on quite long.

It is certainly true that there are now some legal (in the sense of overtly acknowledged) government-imposed preferences based on race and gender in favor of nonwhites and women, and some government-imposed but covert preferences based on race and gender in favor of whites and men as well as nonwhites and women. I have strongly opposed these myself. But bad as they are, they are far less than the vast, systemic, governmentally imposed race and gender discrimination that existed before the 1960s.

I repeat these facts not because they are somehow novel. They are utterly old hat. They are truisms though no less true because of that. What shocks me is that despite their obviousness, Mr. Roberts' columns routinely frame the matter as if race and sex preferences were something novel, some post-1954/1964 fall from an earlier grace — as if the past massive legal preferences for whites and men are irrelevant and barely worth mentioning, while the present legal preferences for nonwhites and women are monstrous.

So How Appealing reports, pointing to the ACLU's standing up for a student's right not to have his religious speech discriminatorily excluded from a high school yearbook. Very glad to hear that the ACLU was on the right side of this.

I think we should call the California Bar about this line from Schwarzenegger's lawyers complaint against the bobble-head people (Oak Productions, Inc. v. Ohio Discount Merchandise, Inc., Cal. Superior Ct. no. SC081563 (filed Apr. 30, 2004)) (emphasis added):

10. Plaintiff owns all rights of publicity of Arnold Schwarzenegger ("Schwarzenegger"), a universally known motion picture star and celebrity who, for more than three decades, has starred in and received critical acclaim for his performances in motion pictures that have been viewed by millions of people . . .

(Actually, I think he's done quite a good job in many of his movies, but this is a bit much.)

though apparently "objective" in the sense of "goal" rather than in the sense of "impartial." Check out the opening paragraphs of this New York Times story from yesterday:

When Mildred Fruhling and her husband lost their prescription drug coverage in 2001, they suddenly faced drug bills of $7,000 a year. Mrs. Fruhling, now 76, began scrambling to find discounts on the Internet, by mail order, from Canada and through free samples from her doctors.

"It's the only way I can continue to have some ease in my retirement," she said.

Last week, when the federal government rolled out a new discount drug program, Mrs. Fruhling studied her options with the same thoroughness. What she found, she said, was confusion: 73 competing drug discount cards, each providing different savings on different medications, and all subject to change.

"I personally feel I can do better on my own," she said. But she added, "At this point, I don't think anyone can make an evaluation." . . .

Now here's the editor's note, which was appended to the story today:

Editors' Note: May 13, 2004, Thursday

An article yesterday about confusion surrounding new prescription drug discount cards that are being offered to Medicare recipients included comments in the first four paragraphs from Mildred Fruhling and later in the article from Dr. Sydney Bild.

Unknown to the writer, both had been interviewed for a video on a Web site operated by Families USA, a consumer advocacy group that has criticized current Medicare policy as inadequate. When approached by The Times during the preparation of the article, Families USA suggested Mrs. Fruhling and Dr. Bild as interviewees without disclosing that they had appeared in the video. Had that been known, The Times would have chosen others to comment for the article or would have made clear the two interviewees' connection to the advocacy group.

Now I much appreciate the Times' coming clean on this, but isn't the editors' note missing the mark? The problem isn't that Mrs. Fruhling and Dr. Bild had appeared in some video. The problem is that the reporter (1) had gotten his interviewees from an advocacy group that was very likely to refer him to people who were critical of the current policy -- a likely source of bias even if they hadn't appeared in a video for that group -- and (2) had only quoted people who took that view (not just Fruhling and Bild but others as well). I didn't find a single senior quoted in the whole story who said that he appreciated the extra choices; and only one person ("an administrator at the Center for Medicare and Medicaid Services") was quoted in support of the program.

Now maybe this is because in fact seniors are overwhelmingly opposed to the policy, and the reporter had tried to find supporters of the policy -- for instance, by calling someone on the other side from Families USA and asking them for the names of some seniors -- but couldn't. Maybe. But given the story, and given the editors' note, does that seem particularly likely?

Thanks to Dov Fischer for the pointer.

Here's columnist and author Paul Craig Roberts (whose work I've also criticized in the past) writing in 2000:

[S]ome limited victories against quotas . . . show vestiges of a constitutional order that possibly could be revived. The Hopwood decision in Texas, for example, and California's Proposition 209 are unequivocal affirmations of equality before the law.

In 1995, he likewise wrote in the Washington Times (about the Adarand Constructors v. Pena case and the Missouri v. Jenkins case) that "Those who hoped that the conservative majority on the U.S. Supreme Court would use two egregious cases to cut the cancer of racial quotas out of our society and reclaim the power of the purse for elected representatives can only be disappointed at the rulings handed down Monday"; that seems to be at least in some measure an endorsement of such hopes for a Supreme Court rejection of race preferences. In 1996, he seemed to praise the Fifth Circuit's Hopwood decision, which rejected race preferences in university admissions: "For the first time since the hated racial quotas were foisted on an unsuspecting country by unconstitutional and extralegal means, a federal court has ruled that racial quotas in university admissions are unconstitutional. . . . Score one for Texas Law School professor Lino Graglia, who has long warned his colleagues against their unconstitutional practices. . . ." So far, so good — those who read the blog know that I strongly oppose race-based preference programs, so I'm surely not criticizing Mr. Roberts on that score.

Now, check out his recent column which condemns in harsh terms Brown v. Board of Ed., calling it "An Infamous Ruling":

Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values. . . .

But Brown . . . ushered in kritarchy — government by judges . . . .

Even worse, in place of good will and persuasion Brown substituted coercion as the basis for reform. May 17, 1954, is a day of infamy, because it is the day Marxism triumphed over liberalism in America. . . .

Although decided in the name of equality, Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake, in the end invading even freedom of conscience of the American people.

Brown's true legacy is rule by judges, the destruction of equality before the law, the replacement of persuasion with coercion, the end of freedom of conscience, and the rise of insatiable racial grievances. Osama bin Laden, no doubt, is celebrating.

I certainly acknowledge that Brown v. Board of Education is open to criticism, either on pragmatic or originalist grounds. (I don't want to get into the very interesting originalist debate on that here, but suffice it to say that there's a plausible argument that "equal protection of the laws" was originally understood as not applying to political rights, such as the vote, or to participation in government benefit programs, such as employment, contracting, education, and the like.)

But how can it be that courts' striking down "racial quotas and preferences" that favor nonwhites is good, while courts' striking down racial quotas and preferences — a mild term for what Jim Crow involved — that favor whites is somehow "infamous"? Yes, I can imagine some way of reconciling disapproval of Brown and approval of Hopwood, for instance on the theory that the courts should never have gone down the path of forcing nondiscrimination on government actors who opposed it, but that once they did, this principle should be applied evenhandedly. But read those columns and see if their substance and their tone can really bear that interpretation.

Oh, and as to Brown's "usher[ing] in inequality before the law with the racial quotas and preferences that followed in its wake," I understand the verb "usher in" to mean "To precede and introduce; inaugurate". Wasn't there just a tiny smidgen of "inequality before the law" based on race, and "racial quotas and preferences," even before Brown? Even if you think Brown was flawed in some ways, wouldn't it be more accurate to say that Brown helped substantially reduce inequality before the law and government-imposed racial quotas and preferences, though it regrettably did not eliminate them?

Finally, I leave it to the reader to evaluate the column's concluding line, which is that "Osama bin Laden, no doubt, is celebrating."

For Pamela Anderson.

On the other hand, Dahlia Lithwick has a fine whine in Slate that makes what seem to be some very good points about the agency formerly known as the Immigration and Naturalization Service.

The Salt Lake Tribune reports:

Since May 6, Hillcrest [High School] officials have suspended [student Cody] McCook twice and booted at least three other students for refusing to cover up or change out of T-shirts with the anti-smoking message, "Queers Kick Ash." . . .

School officials claim the shirt violates Hillcrest's dress code, which prohibits, among other things, clothing that is vulgar or sexually suggestive, or "items which bear advertising, promotions and likeness of tobacco." The pun "kick ash" was deemed unsuitable, as was the word "queer." Principal Linda Sandstrom says the label is still seen by some as a slur and could target students for harassment.

I think this policy is more defensible on a Bethel School District v. Fraser rationale, which is that the school can ban vulgarities such as "queer" if it's doing so because they're seen as slurs in at least some situations; the full scope of Fraser, though, is unclear, especially in a context such as this one, in which the word is clearly not being used as a slur. The school would, I suppose, argue that students should be taught to avoid the word altogether, and that other words such as "Jew" are distinguishable because they're used as slurs only in rare circumstances.

The prohibition on all likeness of tobacco, though, seems to me clearly unconstitutional, since it fits neither within the Fraser exception nor the Tinker v. Des Moines Independent School District doctrine that speech may be restricted if it's disruptive.

Thanks to Matt Rustler (Sheep Free Zone) for the pointer.

From U.S. News. I hope it's true, because that would make it even funnier:

It was the lead item on the government's daily threat matrix one day last April. Don Emilio Fulci described by an FBI tipster as a reclusive but evil millionaire, had formed a terrorist group that was planning chemical attacks against London and Washington, D.C. That day even FBI director Robert Mueller was briefed on the Fulci matter. But as the day went on without incident, a White House staffer had a brainstorm: He Googled Fulci. His findings: Fulci is the crime boss in the popular video game Headhunter. "Stand down," came the order from embarrassed national security types.

UPDATE: Maybe not so funny! Chris Lansdown suggests:

Your recent post just gave me an idea. If I were to form a terrorist group, I would make a point of changing my name to that of some video game terrorist, or some such. Whenever people will claim that I'm a terrorist, they'll be laughed off for confusing video games with reality.

Many people have commented on some pro-gun-control speakers' tendency to claim — explicitly or implicitly — that the "assault weapons" they seek to ban are machine guns (also known as fully automatic weapons, defined as guns that fire more than one round per trigger pull). That's not true, though it is a convenient way to turn the public against assault weapons. Civilians are already banned by federal law from possessing fully automatic weapons, except about 100,000 that are grandfathered in. All modern "assault weapons" bans prohibit mostly semi-automatic weapons — normal guns that fire one round per trigger pull.

One common way of spreading this misinformation is to use the term "spray," which conjures up images of the fully automatic weapon; consider, for instance, Jesse Jackson speaking about assault weapons at the so-called Million Mom March a few days ago: "These are not guns for the marksman . . . . These are guns for those who spray and kill en masse." (Thanks to Aeon Skoble for the pointer.)

Actually, assault weapons are generally not materially more adapted to "spray and kill en masse" than non-assault weapons. Either Jackson doesn't understand this similarity between assault weapons and other weapons, in which case he doesn't know what he's talking about — or he understands it, in which case it sounds like he's really trying to push towards a ban on a vast range of guns (since all semiautomatics and many non-semiautomatics are just as lethal as assault weapons) and is just pretending to be focusing on a small subset of especially nasty weapons.

But beyond these errors in public debate, I've just found something similar in an actual statute — Washington, D.C. code section 7-2501.01(10), which defines "machine gun" as:

"Machine gun" means any firearm which shoots, is designed to shoot, or can be readily converted or restored to shoot:

(A) Automatically, more than 1 shot by a single function of the trigger;

(B) Semiautomatically, more than 12 shots without manual reloading.

So already the law explicitly departs from the standard definition of machine gun, to include semiautomatic guns — again, guns that fire just one round per trigger pull — with a capacity of 13 rounds or more.

But beyond this, remember that for most semiautomatic handguns and rifles, the gun's capacity is a function not of the gun but of the magazine that the shooter inserts into the gun. Glock handguns, for instance, are generally sold with 10-round magazines, since 10 years ago federal law largely banned larger magazines (except for those that were manufactured before the law's effective date). But any such handgun can easily "shoot[]" "more than 12 shots without manual reloading" if you simply insert a larger magazine into the gun.

The bottom line, then, is that tens of millions of semiautomatic handguns and rifles — perhaps most such semiautomatic guns — will qualify as "machine guns" for purposes of this law. And that's so even if the gun came with a 6- or 10-round magazine, so long as the gun is capable of handling a larger magazine (something that guns normally do unless the designers take special steps to avoid this).

Now I can understand why some people might want to ban all guns, or even all guns that are capable of using large magazines; I would oppose such a proposal, but I can see the policy arguments in favor of it. But the standard arguments for banning machine guns or assault weapons have generally not been "Yes, we want to ban tens of millions of guns, including ordinary guns that ordinary home defenders or sportsmen routinely use." Rather, they are "Don't worry if you're a normal gun owner — we're only going after a few of the really nasty awful guns, and there's no slippery slope that will lead to you."

Laws like this one show that many would-be "machine gun" or "assault weapons" banners are indeed after perfectly ordinary guns of the sort that millions of ordinary gun owners have. And to the extent they use redefinition of normal English terms (yes, something that the law sometimes does, but that doesn't make it right), they are misleading and potentially deceptive both to the regulated parties and to voters who are hearing arguments that are based on these terms.

Reader Ross Durland offers this:

Most countries have concave regions in their borders, where a neighboring country "bulges in." For example, Canada bulges into the US up by the Great Lakes. If you wanted to fly from, say, Sault Ste. Marie, [MI], to Buffalo, NY, you could fly straight there going SE. That would only be about a 370 mile flight, but you'd have to pass over southern Ontario.

If you wanted to fly there while remaining in US airspace, you'd have to first go almost straight South to about Toledo, and then turn ENE to Buffalo, for a total distance of maybe 590 miles. That's about 1.6 times as far. Let's call that ratio the "concavity index." More generally, for any two points within a single country, the concavity index is the shortest distance that is entirely within the country's borders [counting bodies of water that are in between two points in a country as within the country's borders -EV], divided by the absolute minimum distance.

Now to the puzzle. What two points exhibit the highest concavity index in the world?

Points located in non-contiguous portions of one country don't count (e.g. Anchorage & Honolulu), although there is room to argue when that rule applies. Also, I think we can safely ignore changes in altitude when measuring distances. . . .

My apologies if my explanation isn't as clear as I'd like. I always have trouble describing this in words.

Here's the answer that my correspondent arrived at, and I independently reached as well:

(click here to reveal it.)

If you have a provably better answer — not just an "I guess," but a pointer to a map and a good approximation of the concavity index — please pass it along.

My former student Jared Gordon writes, apropos my post complaining about CNN's reporting of two polls:

In your recent blogs on poll reporting at CNN, you made the statement "Someone at CNN must understand this better than most readers do." Having worked on the TIME/CNN poll with Yankelovich, Inc. prior to law school (now the Harris Interactive TIME/CNN poll), I can confirm for you from personal experience that in fact several people on their political reporting staff are well-versed in polling statistics, in particular Keating Holland, the person who was then, and I believe still is, in charge of CNN's polling. In fact, Mr. Holland routinely ran much more complicated analyses than a simple determination of the margin of error.

Because of my previous experience with the very competent polling staff at CNN, I have been considerably distressed by CNN's recent reporting of public opinion polls, not because they are ignorant of the margin of error, but because they seem to be willfully ignoring the margin of error to create news. While a story that says "there's no measurable change in the electoral picture, based on the latest poll" doesn't generate much excitement, a story that cites a poll for who's currently winning the presidential race draws considerably more eyeballs. I worry that CNN has given up on reporting the true stories in their surveys, and have instead decided to create stories in their surveys that they wish were there for purposes of improving their ratings or pageviews.

I would also note that in addition to the margin of error reported in the CNN story you referenced, there are other, less detectable, errors that result from the methodology used to determine "likely voters." Every major poll has their own methodology for determining likely voters, and the methodology may even change from survey to survey, based on an attempt to conform to the percentage of the eligible voting population that the polling firm expects to vote in the next election. Thus, likely voter comparisons are not necessarily comparable from poll to poll, or even within a time series of surveys from the same poll. Other aspects of the way in which likely voters are chosen introduce other kinds of potential errors. These errors aren't reported largely because they aren't easily quantifiable errors.

Here's a cyber-field-trip to the church that sparked the Supreme Court case Boerne v. Flores, courtesy of a student of Eric Muller's (IsThatLegal?).

Apropos my criticism of CNN's poll reporting, here's a great item from Mickey Kaus (Slate), quoting a reader e-mail:

Rasmussen numbers [though this applies to any poll numbers] are going to change even if the underlying facts they are polling do not change. To illustrate this I created an excel file in which mimicked the polling of 500 people per day and repeated this for 100 days. During this 100 day period, the underlying "facts" did not change: 45% of people supported bush, 45% of people supported kerry and 10% were other or undecided. Let me emphasize: this never changed during the 100 days: I know this because it's how the excel file was programmed.

Despite the fact that there was no change in the actual situation, the polling results did change: one day Bush outpolled Kerry 50-40; on another day Kerry outpolled Bush 49-42; and on another day it was Kerry 50-44.

Rasmussen evens out these one day jumps by reporting three day moving averages. But those also move around, though not as much. Let's look at the 3-day averages for one five day period in my simulation:

Monday: Bush 48 Kerry 41

Tuesday: Bush 46 Kerry 43

Wednesday: Bush 45 Kerry 45

Thursday: Bush 43 Kerry 47

Friday: Bush 43 Kerry 47

That's what the margin of error (+/-4.5% for 500 respondents, +/-2.5% for 1500, which means that 19 times out of 20 the true numbers will be within the stated percentage of the reported numbers) reflects: You can expect the numbers to vary by quite a bit from poll to poll, even if the underlying reality doesn't change at all.

Many opponents of same-sex marriage have argued that denying same-sex couples the right to marry doesn't really burden the couples much: After all, the argument goes, the couples can get many of the benefits of marriage through private contracting, and the special benefits that they can't get (tax breaks, mandated employer-provided benefits, and so on) are benefits that the state may properly reserve to those relationships that the state finds most beneficial.

I'm not quite persuaded by this argument, chiefly because I think that same-sex marriages are beneficial -- maybe not precisely the same way that opposite-sex marriages are, but in a similar enough way that the two should be treated equally. But I do think the argument I mention above has at least some merit.

But now Virginia has enacted the following statute:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

This doesn't just block courts from recognizing out-of-state civil unions, or creating special in-state civil union status. It also bars purely private contracts, if they "purport[] to bestow the privileges or obligations of marriage." The phrase contract or other arrangement . . . purporting to bestow the privileges or obligations of marriage" is pretty vague, but presumably it would include, among other things, contracts to share property that will be acquired in the future, contracts obligating one party to support the other, wills that devise property to the partner, and so on -- all benefits and obligations that some states automatically confer on married couples.

This strikes me as quite wrong. I realize that the law sometimes refuses to recognize contracts that are sufficiently harmful, for instance contracts to commit crimes, contracts to restrain trade, selling oneself into slavery, and so on. But this should be the exception to the rule, and something that only happens when there's some serious likely social harm or harm to the contracting parties flowing from the agreement. What's the harm of two people of the same sex promising each other that they'll share property, or support each other?

The ability to make legally binding contracts is an important power that people have. It is the power to make binding commitments, and to rely on others' binding commitments. It is the power to plan for the future with confidence -- to defer short-term gratification today with the expectation that one will get benefits over the long term.

Contract law is premised on the recognition that this power is valuable both to the individual and to society (except in unusual cases) -- and on the recognition that it is generally best to let people decide for themselves the proper terms of the contracts (again, unless there are persuasive reasons to the contrary) rather than have the government second-guess the promises they make, or limit the promises' scope. I realize that the legal system has unfortunately eroded this principle a great deal in recent decades. But there's no reason to erode it still further in this situation.

Thanks to Ron Najman and David Kaufman for the pointer.

CNN reports:

With nearly six months remaining before the November election, Bush led Kerry 48 percent to 47 percent in the survey -- a reversal of a poll taken last week, which found the Massachusetts senator with a 1-point edge, 49-48.

Uh, but as the story says two paragraphs later,

The poll, conducted Friday through Sunday, had a margin of error of plus or minus 4.5 percentage points, meaning the presidential race remains close.

The +/-4.5% margin of error doesn't just mean the race remains close -- it means that the 48%-47% pro-Bush result is not a "reversal" of the 49%-48% pro-Kerry result, but is no statistically significant change at all. Both results are dead heats; the seeming "reversal" could easily be the result of random variations in which respondents happened to be picked. A poll conducted on the very same day last week as the 49-48 Kerry poll could easily have reached a 48-47 Bush result.

Someone at CNN must understand this better than most readers do. Shouldn't it be part of CNN's responsibility not to mislead the public this way?

I've just finished a draft of Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones and put it here. I won't be circulating it to the law journals until mid-August, since many editorial boards don't consider articles over the summer, or only consider them slowly; so if people have some suggestions, I'd love to hear them (at volokh at law.ucla.edu). Warning: Many parts of this piece are pretty technical. Here's an abstract:

Speech, some argue, should sometimes lose its First Amendment protection because it's really just conduct. These arguments have been made for a wide range of speech: (1) racially and sexually offensive speech in workplaces, universities, and places of public accommodation; (2) speech that informs people how certain crimes can be committed; (3) speech that teaches children harmful ideas; (4) speech that lobbies against housing for the disabled; (5) speech that advocates crime; (6) doctors' speech recommending medicinal marijuana to their patients; (7) speech that urges political boycotts; and even (8) public porfanity.

This article will discuss several such "this speech is really conduct" theories. First, it responds to the argument that generally applicable laws, which apply to speech alongside other conduct, should be free from First Amendment scrutiny even when they cover speech because of its persuasive, informative, or offensive content. The article argue that such an argument is unsound, and inconsistent with many leading free speech cases. Restrictions that are content-based as applied should be treated the same way as restrictions that are content-based on their face.

Second, the article responds to the argument that various kinds of speech should be punishable because they are part of an illegal "course of conduct," "speech brigaded with action," or "speech act[s]" rather than pure speech; such arguments often quote Giboney v. Empire Storage & Ice Co. (1949). The article criticizes Giboney, and concludes that if such an "illegal course of conduct" doctrine should be recognized, it should be narrow indeed -- so narrow that it wouldn't apply to most of the cases where Giboney is cited.

Third, the article discusses, and to some extent critiques, Professor Kent Greenawalt's view that certain kinds of statements are "situation-altering utterances" and thus unprotected conduct. Finally, the article confronts the "uncharted zones" of free speech -- criminal agreements, criminal solicitation, much verbal aiding and abetting, professional speech, and the like -- and suggests that these zones are best dealt with by recognizing properly bounded First Amendment exceptions (as the Court has done with regard to libel, incitement, fighting words, and the like), and not by relabeling the speech as conduct.

And, yes, it's a long title, but I want people to have a sense of what the article covers when they see the title in the results of a WESTLAW or LEXIS query.

Geitner Simmons reports on an interesting POW scandal during World War II. Though the abusers there were Nazi prisoners themselves rather than rogue American soldiers, the American commanders were rightly criticized for allowing this to happen. "When newspapers and magazines like Colliers picked up the story, it became a national scandal, eventually involving Eleanor Roosevelt, who pushed for a secret program of de-nazification and re-education, which was set up in 1944." Very interesting.

Thanks to Ralph Luker for the pointer.

For his view, see here. I continue to think that the Supreme Court will think, probably rightly, that getting civilian courts in detainee cases involved will do more harm than good. But Mark's arguments are definitely worth considering.

Last Friday, I blogged the following:

Taking responsibility:People have recently suggested that various officials (the Secretary of Defense, the head of the CIA, and others) should resign as a sign that they take responsibility for their policy errors, or for their failure to properly monitor their misbehaving underlings. I think that in general there's a good deal to be said for such acceptance of responsibility, though of course much will depend on the particular circumstances of each case.

But I'm wondering: How often has this sort of behavior happened in the recent past? Since, say, 1960, which Cabinet-level officials (or the Director of Central Intelligence, who's pretty high up there) resigned because (1) they admit that they have failed in some task, or (2) their subordinates (direct or indirect) have failed and the officials want to take responsibility for the subordinates' failure (and perhaps their own failure to monitor the subordinates)? I'm excluding (A) firings of such officials, and (B) resignations prompted by personal scandal, unpopular comments, or general unpopularity. I'm looking for resignations of the "My policies have proven to be wrong, and I'm resigning to take responsibility for them" variety.

Naturally, even if such resignations have been scarce in the past, it doesn't mean that they shouldn't happen now -- but their presence or absence may indicate whether the problem is unusual shamelessness on the part of these particular officials, or a broadly shared (even if harmful) aspect of our political culture. Also, if there are such prominent past cases, perhaps they can be used as examples that we should prod officials to emulate.

I then asked for examples.

So far, the answer seems to be that such "I take responsibility for my errors, or the errors that happened on my watch, and therefore step down" resignations are very rare in modern American political life. They are apparently more common in other countries, such as the U.K., Canada, and Japan -- but not in the U.S.

Some people suggested Cyrus Vance, but his resignation was basically a resignation in protest against the Carter Administration's decision to try a military rescue of hostages -- he was protesting the Administration's error, not confessing his own. Others suggested LBJ's decision not to stand for reelection, but as I understand this was basically prompted by the perception that he might be denied the nomination or at least have a bruising battle, perhaps coupled with a sense of weariness exacerbated by the insurgency in his own party. Unless I'm mistaken, it wasn't caused primarily by a judgment that he was wrong and a desire to publicly take responsibility for his errors.

Some suggested Les Aspin, who resigned as Secretary of Defense under Clinton after the Mogadishu fiasco. As best I can tell from press accounts, though, Aspin's resignation also wasn't primarily a confession of error. Here's what the New York Times, Dec. 16, 1993, had to say about it:

Defense Secretary Les Aspin resigned today. He had concluded that President Clinton had lost confidence in his leadership, senior Administration officials and associates of Mr. Aspin said. . . .

With a clash over the Pentagon budget looming and senior military officers reportedly unhappy about his stewardship, Mr. Aspin felt he had no choice but to quit, a close aide said. . . .

But the Clinton Administration took pains tonight to portray the departure as Mr. Aspin's own decision. The Defense Secretary made the announcement in a joint appearance with the President in the dignified setting of the Oval Office. . . .

"It's time for me to take a break and to undertake a new kind of work," said Mr. Aspin . . . .

[S]enior Administration officials . . . . said that for several weeks Mr. Clinton had steadily lost confidence in the leadership skills of his Defense Secretary because of the way he handled the major issues of his short tenure and his often confusing presentations on television and on Capitol Hill.

Senior Administration officials said that Mr. Clinton had decided to shake up his national security team and that Mr. Aspin became the odd man out both because of his public stumbles and because he lacked the close personal ties to Mr. Clinton that Secretary of State Warren Christopher and the President's national security adviser, Anthony Lake, both enjoy. . . .

The only such post-1960 U.S. "I take responsibility" resignations that I've heard about are:

1. Secretary of the Navy Lawrence Garrett III under the elder George Bush apparently resigned to take responsibility for the Tailhook incident. According to the New York Times, June 27, 1992,

   Mr. Garrett, the Navy's senior official since 1989, submitted his resignation in a letter to President Bush, claiming "full responsibility" for the Navy's handling of the incident.

   In a message sent to Navy and Marine Corps personnel worldwide late this afternoon, Mr. Garrett said, "The tradition of our Navy mandates that senior officials bear the ultimate responsibility for their command."

   Mr. Garrett added, "I accepted full responsibility for the handling of the Tailhook incident and the leadership failure which allowed such misconduct to occur." . . .

   There was some speculation "that Mr. Garrett was forced to resign by Defense Secretary Dick Cheney on Mr. Bush's orders"; but at least there's some reason to think that Garrett resigned to take responsibility.

2. Allen Dulles's resignation as Director of the CIA was, some say, triggered by his desire to accept responsibility for the Bay of Pigs failure. I haven't found anything that clearly confirms or denies this, though, and some sources suggest that he was forced to resign, rather than resigning voluntarily. If you have pointers to authoritative sources one way or the other, please pass them along.

So my tentative sense is: There is virtually no modern U.S. tradition of high government officials voluntarily resigning to accept responsibility for their errors or the errors of their subordinates. Perhaps there should be, and perhaps (for instance) Donald Rumsfeld should resign on these grounds. But that would be a departure from recent American political norms, not an implementation of those norms.

This May 1, Catallarchy linked to several posts remembering the victims of Communism -- go here to see them.

or take shooting advice from religious leaders. I'm pleased that the Dalai Lama is not entirely anti-self-defense, but this suggestion suggests that he hasn't really thought hard about the subject. Clayton Cramer quotes an old Seattle Times piece (which is no longer available for free on the Web, it appears):

One girl wanted to know how to react to a shooter who takes aim at a classmate.

The Dalai Lama said acts of violence should be remembered, and then forgiveness should be extended to the perpetrators.

But if someone has a gun and is trying to kill you, he said, it would be reasonable to shoot back with your own gun. Not at the head, where a fatal wound might result. But at some other body part, such as a leg.

Unless I'm woefully mistaken, "shoot at the leg" is lousy advice, except perhaps to skilled and experienced combat marksmen.

First, when you use a gun in self-defense, you'll almost certainly be petrified, full of adrenaline, and shooting in combat for the first time in your life. Even if you're quite well-trained, I doubt that you'll be a very good marksman. That's why you should shoot at the torso, where you'll be more likely to hit.

Second, your goal should indeed not be to kill for its own sake, nor to wound for its own sake. It should be to stop the attacker from shooting (at you or at the person you're trying to defend). Even if you hit him, you're more likely to stop him if you hit him in the torso -- better yet, if you hit him several times in the torso -- than if you hit him in the leg.

Of course, one can imagine some moral systems under which the attacker's welfare isn't valued enough to bar all violent self-defense, but is valued enough to mandate such a carefully calibrated response. But given the virtual impossibility of actually achieving such careful calibration, it seems to me that such moral systems make little sense.

On the other hand, the Dalai Lama was quite correct that you usually shouldn't shoot at the man's head -- but again the right reason is simply that the head is a small target compared to the torso.

Several readers pointed out that there are still some Spanish enclaves in Morocco, including two substantial cities, Ceuta and Melilla. I knew that Spain ran the northern chunk of Morocco for a while, but I didn't know that it still had these enclaves.

I guess that makes even more interesting another trivia question, which is "Which countries are located on more than one continent?" (not counting embassies, military bases, and research outputs). The obvious answers are Russia, Turkey, and Egypt; the nonobvious ones are, it turns out, Spain and possibly France (if you do treat French Guiana as part of France). I couldn't figure out the official dividing line between South and North America; if it's the canal, then Panama would be included, but I suspect that it's the Panama / Colombia border.

Note, though, that this is not a valid answer to my Remnants of Empire puzzle because of rule #3, which excludes territories that are right across the sea from the governing country.

UPDATE: Amanda Butler points out that Kazakhstan might also be both in Europe and Asia, since part of it is apparently west of the Urals.

FURTHER UPDATE: Several people pointed out that French law treats not just Guyana but many other colonies, such as St. Pierre & Miquelon, Mayotte, New Caledonia, and others as parts of France. If you count them, and if you count islands as parts of adjacent continents, then France would also extend into North America, Africa, and conceivably Asia, depending how you count New Caledonia. Likewise, if Greenland is counted as being part of North America, and treated as part of Denmark and not just a colony (I'm not up on Danish law related to this), then Denmark would count as well. But I think the problem is most aesthetically pleasing if we limit continents to just the continental landmass.

Reader Rachel Rosencrantz writes:

When I was working at the Renaissance Faire (http://www.renfaire.com/) before the faire opened we took a class on language (so we could sound appropriately Elizabethan). The whole thou and you [thing] came up . . . .

However, we were further instructed that even though our customers would properly be addressed as "you" we should use thee/thou with them because to the unknowledgeable faire goer thee/thou has a more "archaic" feel and it will work better, even though technically it would be incorrect.

Heh, I guess business is business. And a defense of "Your Honor, I only tried to kiss that Faire worker because she called me 'thou'" would probably (and rightly) fail . . . .

A reader writes, apropos the "Remnants of Empire" puzzle:

I'm not sure what the point of this article is. Was it to pointedly make western nations look like world aggressors?

I thought rule #3 was quite interesting. It arbitrarily rules out all of the non-western nations that are or have occupied other countries. Also, there is one other country that is left off of your list -- Lebanon which is a de-facto vassal state of Syria. Taiwan doesn't yet fit the description, but quite possibly will within the decade.

Now if you tried to reverse your question and list all of the occurrances of countries that either allowed their former colonies to become free or have gone out of their way to liberate other groups of people, I think that you would get a much more interesting picture. I'd have to think about it, but I can't think off-hand of a single

non-western nation that answers that description.

The point of the post was to have fun with a cute geography puzzle. The point of rule #3 was to avoid interminable debates about Tibet, Northern Ireland, Wales, Quebec, Transylvania, and all sorts of other places that some people say are a true part of the whole country and others say are colonies or dependencies.

Some things just aren't about politics, folks.

I was one of the name callers in the UCLA law school graduation yesterday; as people came up to have their hoods put on them, I announced their names. The graduates (there were about 150 on my side, plus 150 on the other name caller's) gave me cards with their names as they came up, and I tried to get the names right. To help me, there were spaces on the cards were students could write phonetic representations of their names.

This led me to formulate these three suggestions for getting your name pronounced right:

1. If you have a moment — and you usually will, since there's a space between names as each graduate is being hooded — just whisper your name to the reader (assuming there's some possible ambiguity). It's much easier for the reader to simply repeat your name, especially when it's also written down, than to try to figure out the pronunciation from the card alone. If you're not sure whether you'll have the time, or whether this violates some unwritten rule, check with the administration beforehand. But if you're allowed to, then do it.

2. Do not, I repeat do not, use the phonetic codes like the ones the dictionaries use. Even many educated professors will not be able to figure out, quickly and under pressure, what the bar or the dots or the squiggle above some letter means. Spell it out using (unambiguous) English soundalikes — e.g., "mar-eye-a" if that's how your "Maria" is pronounced — or say "rhymes with . . ." or whatever else. Just don't start using special characters, unless you're graduating from the Linguistics Department.

3. If your name is pronounced the obvious way, leave well enough alone. "Bormon" is fine as it is; saying "Just like 'Mormon,' only with a 'B'" is probably going to be more confusing than helpful, when the reader has just a second or two to figure things out, and thus makes it more likely rather than less likely that he'll mispronounce things.

And in any case, congratulations!

Rabbi Eric H. Yoffie, the President of the Union of American Hebrew Congregations, is quoted as having said this at a past so-called "Million Mom March":

Is the need for sensible gun-control a religious issue? You bet it is.

The indiscriminate distribution of guns is an offense against God and humanity.

Controlling guns is not only a political matter, it is a solemn religious obligation. Our gun-flooded society has turned weapons into idols, and the worship of idols must be recognized for what it is-blasphemy. And the only appropriate religious response to blasphemy is sustained moral outrage.

"Turned weapons into idols"? I don't know much about Jewish religious thinking, but this seems to me like a metaphor getting out of hand.

Also, I wonder whether people on the left who condemn the Religious Right for supposedly "trying to mix religion and politics," or "trying to force their religious opinions on others," would equally condemn the Rabbi on these grounds. I doubt it, and I think their reaction to the Rabbi is the correct one: The Rabbi is just as entitled to turn his religious views into law as secular anti-gun people are entitled to turn their secular views into law — and religious gun-rights defenders are just as entitled to turn their religious views about the propriety of self-defense into law as secular gun-rights defenders are with regard to their views.

The question should be whether the arguments make sense and are persuasive, and whether the proposed results are morally sound — which is to say, who is right as to the merits of the proposal. (And of course people, both religious Jews and otherwise, may find the Rabbi's views unpersuasive.) But religious people are as entitled to make religious arguments about the proposal as secular people are entitled to make secular arguments.

Thanks to Dan Gifford for the pointer.

UPDATE: Clayton Cramer makes a good point:

[W]here does Rabbi Yoffee get this "idol" image of guns? I would suggest that it is rather like the way that the "blood libel" about Jews remained popular for so long in European civilization: Yoffee probably doesn't know anyone who owns a gun. He probably doesn't even know anyone who knows anyone who owns a gun. The more isolated you get from a group, the easier it is to either imagine the worst of members of that group (the negative stereotype of blacks as sex-crazed criminals), or imagine the best of members of that group (all Native Americans are spiritual defenders of Mother Earth). A little contact goes a long ways to correcting these stereotypes.

I'm normally not wild about speculating about speakers' motivations, but this speculation seems to be by far the most plausible.

TaxProf discusses the tax consequences of home makeover TV shows.

My wife's and mine was Kill Bill vol. 2, which we much enjoyed -- and it definitely had a Mother's Day theme (no joking). I highly recommend it; both of us thought it was better than Kill Bill vol. 1 (which was good but not very good): Less gore (not that I mind gore, but in the first volume it got a bit repetitive), and more interesting plot and characters. We saw volume 1 on video Friday and then volume 2 in the theater Saturday; I think volume 2 wouldn't work very well if you haven't seen volume 1.

Oh, and I really liked the music.

The Conspiracy now displays in whatever font you have configured as the default font (using, for instance, Tools / Internet Options / Fonts in Internet Explorer). This also lets you make the font larger or smaller easily, via View / Text Size.

But if you like the old font better, no problem -- just use (and bookmark) http://volokh.com/?oldfont instead of just http://volokh.com.

Many thanks to the invaluable Chris Lansdown, the PowerBlogs man for giving us the code for that (just a few lines for the Tag section).