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photoblogs, by popular demand.

Several people have e-mailed asking whether I still have copies of the book left to sign and send. (Yes, seriously, they have asked this; I'm not just making this up for another chance to plug the book.) I have sold most of the 60 books I got from the publisher, but I do have 12 left, and when I run out, I can get more. So if you're inclined to order a personalized copy, just follow the instructions here. And of course unpersonalized copies are available on amazon.com.

Here's a good, though necessarily incomplete list.

A friend pointed me to this expression by Karl May (1842-1912), a German novelist: "Mitgegangen, mitgefangen, mitgehangen," which basically means "gone with, caught with, hanged with." Naturally, like "trust but verify" (dover'ay no prover'ay) and "forewarned is forearmed" (praemonitus, praemunitus), it works best in the original.

Lawprof Peggy McGuinness has an interesting post on this at Opinio Juris, "A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics." In general, if you're interested in international law, Opinio Juris is much worth reading.

I do hope to blog some more about the academic freedom questions raised by the Churchill case (plus some of the other matters we've recently discussed, such as the LeMoyne and the UNLV controversies), but I'm afraid I've gotten so much e-mail on the subject -- 25 messages that I haven't yet responded to, in addition to others that have already prompted follow-up posts -- that I'm sure I won't be able to get to all the issues. My apologies for not responding to those items, though as I said I hope to have some more general responses in the days to come.

Clayton Cramer writes about, among other things, holding Paul Revere's hunting gun and pocket pistol in his hands.

Eric Alterman has a remarkable post defending Muslim groups' decision not to attend commemorations of the Holocaust. (Thanks to Cathy Young's column, which also criticizes Alterman on similar grounds, for the pointer.) The post is mostly a rant against Andrew Sullivan's condemnation of the groups, but here's the key part:

Look, unlike[ Andrew Sullivan], I'm a Jew, but I don't expect Arabs to pay tribute to my people's suffering while Jews, in the form of Israel and its supporters -— and in this I include myself — are causing much of theirs. Would Andrew want to go to a service in honor of the suffering of gay bashing bigots? . . . Anyway, I'm sure what I'm saying will be twisted beyond recognition, and so I suppose that makes it stupid to do, but I'm sorry. The Palestinians have also suffered because of the Holocaust. They lost their homeland as the world — in the form of the United Nations — reacted to European crimes by awarding half of Palestine to the Zionists. They call this the "Nakba" or the "Catastrophe." To ask Arabs to participate in a ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe is morally idiotic — which is why, I guess, I'm not surprised Andrew's doing it.

Now let's briefly analyze this: Alterman is not just saying that Muslim groups are not interested in commemorating the harm done to a group that they're now hostile to. (He is partly saying that, which acknowledges that many Muslims are hostile to Jews, and not just to Israel, but that's not all he's saying.) I should say that such a view would be understandable, though not laudable; it's human nature not to much feel the suffering of others, especially if you have some hostility to them.

Rather, he's analogizing the victims of the Holocaust (those who suffering is honored) to "[Muslim]-bashing bigots." It's not the Israelis who are being honored, it's the slaughtered and nearly slaughtered European Jews. Yet somehow they reverse-inherit the supposed guilt of Israelis and other Jews today. Men, women, children butchered in Auschwitz, even ones who had never had much interest in Palestine and who had no opinions at all to Muslims — quite analogous to "[Muslim]-bashing bigots," yes, indeed.

This strikes me as the classic morality of group guilt. Jews of the 1940s are morally tainted by their supposed sins today; we should hate ethnically Japanese because of Pearl Harbor; Jews killed Christ (assume for a moment that this is historically accurate — the hostility to Jews would remain wrong even then) so Jews today are culpable; many Arabs support suicide bombers, so I shouldn't care about wrongs being done to completely innocent Arab-Americans.

As to who suffered from the Holocaust, it seems to me that the U.N. partition of that part of the world — followed shortly by the 1948 war in which the Arabs tried to destroy Israel, and Israel won and obtained the customary spoils of war — is quite a bit different from the Holocaust. (Among other things, there were Jews living there, who had something of a claim to their own state, too.)

But if you really want to take the "who suffered" perspective, well, many innocent Germans surely suffered a great deal from World War II. Some of them may have various grounds for complaint against the Allies, from the Dresden bombings (I'm not an expert on them, but I know there are plausible claims that they went beyond what should be done even in a total war) to what I understand was a massive and largely unpunished wave of rapes of German women by many Soviet soldiers. So I take it that it would be "morally idiotic" to ask those innocent Germans "to participate in a [Holocaust commemoration] ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe" (i.e., that many Germans were guilty of heinous crimes)?

I would have thought that good people should generally mark with sadness the mass murder of innocents, and set aside for another day the debate about what other wrongs should be commemorated or righted. Now I realize that people (whether Jews, Arabs, Germans, Americans, Russians, or anyone else), even people who are otherwise good, sometimes don't rise to the occasion this way. Again, if Alterman had simply pointed out that this is human nature, and doesn't merit harsh condemnation, I wouldn't be criticizing him.

But instead, Alterman descends into ascribing ethnic guilt, the very moral fallacy that has helped cause so much mindless slaughter. And on top of that, he ascribes the guilt to the slaughtered innocents of the Holocaust. Shameless, and shameful. In the words of Cathy Young, "Alterman frets that his words will be 'twisted beyond recognition,' but it's hard to see how they can be twisted into something more indecent than they already are."

I just got a mass e-mail from the American Conservative Union that says:

Dear Friend of ACU:

QUESTION: Who made the following statement?

"(The U.S.) military and the insurgents (in Iraq) are fighting for the same thing, the hearts and minds of the people."

A) Terrorist Leader Abu Musab Al-zarqawi B) Osama Bin-Laden C) Saddam Hussein D) Ted Kennedy

The correct answer is D.

I'll be frank. Ted Kennedy he has simply gone too far.

Ted Kennedy should be held to account for his words and actions.

Use the hyperlink below to send your personalized Blast Fax message to Senator Ted Kennedy, Vice-President Dick Cheney and the remaining five Members of the Senate Leadership, all six Members of the Senate Ethics Committee and the remaining twenty-three Members of the Senate Armed Services Committee. Tell them that Senator Kennedy has given aid and comfort to the terrorists and that he is unfit to sit on the Armed Services Committee.

http://www.grasstopsusa.com/acukennedy.html

The trouble is that whatever bad things Kennedy might have said -- and I'm sure he's said plenty -- this isn't one. First, some context from Kennedy's remarks (made Friday, February 4):

Too many Iraqi people do not believe that America intends no long-term military presence in their country. Our reluctance to make that clear has fueled suspicions among Iraqis that our motives are not pure, that we want their oil, and that we will never leave. As long as our presence seems ongoing, America's commitment to their democracy sounds unconvincing.

Other indications of anti-American sentiment are clear. CDs with photographs of the insurgents are spread across the country. Songs glorify combatants. Poems written decades ago during the British occupation after World War I are popular again.

We have the finest military in the world. But we can't defeat the insurgents militarily if we don't effectively address the political context in which the insurgency flourishes. Our military and the insurgents are fighting for the same thing -- the hearts and minds of the people -- and it is a battle we are not winning.

The goal of our military presence should be to allow the creation of a legitimate, functioning Iraqi government, not to dictate it and not to micromanage it.

Kennedy is complaining that the Iraqi insurgents (a fairly neutral term, not as harsh as I might like, but nothing I can complain about) are trying to get the Iraqi population to sympathize with them and to hate us. That seems quite right. Of course, the Iraqi insurgents are also trying to influence the Iraqi people by terror, not just sweet reason; but they surely are trying to win people over as well as frightening them.

Kennedy is also claiming that we aren't winning the public relations battle in Iraq. I don't know if he's right or wrong, but it seems to me like a plausible position. The election suggests that the Iraqi insurgents haven't won over or intimidated all Iraqis. But my sense is that we aren't vastly loved there, either, and that in some areas a considerable chunk of the public (enough to cause serious problems for us and for the new Iraqi government) is indeed on the insurgents' side.

Now Kennedy may well have been wrong in some of the other things he said in that speech. He surely has been wrong in lots of other things. Fault him for that. But this statement is hard to see as "go[ing] too far" (unless one reads it as a claim of moral equivalence between us and the insurgents, which neither the context nor the text supports).

Even if you think Kennedy deserves whatever criticism he gets, the viewpoint expressed in that particular phrase is a plausible and quite possibly correct viewpoint. The viewpoint shouldn't be denounced simply because we might not like the person who conveys it.

In the past, we've sometimes posted about how various people don't seem to give Justice Thomas a fair shake (see, e.g., here and here). Here's another example, from a panel that I was on a while back. Another panelist, a noted constitutional law scholar and expert on — among other things — the First Amendment and the Supreme Court, said (this is a transcription from an audiotape I have of the panel; emphasis added):

Here again I want to make three quick comments. The first concerns the lineup of the Justices. And specifically, I want to talk about Justice Thomas' vote. After all Justice Thomas would be thought of as probably the most conservative or one of the two most conservative Justices on this Court; on any Supreme Court case in history. And yet I think there are two principles that explain Justice Thomas' votes. Not all of the votes, but some of them. First he'll consistently vote in favor of pornography under the First Amendment and second he'll always vote against plaintiffs in sexual harassment cases. As to the former, this case illustrates it, a case from a couple of years ago, Free Speech Coalition v. Ashcroft illustrates it. And to the latter with regard to sexual harassment there's a Supreme Court case this term, Pennsylvania State Police v. Suders, which was an 8-1 with only Justice Thomas voting against the sexual harassment victim. Now if one thinks back to Justice Thomas' confirmation hearing, one might predict an opposite set of votes, but I think this says something very revealing about Justice Thomas' personality, what he's trying to say, with regard to his reaction to his confirmation battle.

As it happens, Justice Thomas does indeed take a narrower view of hostile environment harassment law than do some other Justices; he's mostly with Justice Scalia and Chief Justice Rehnquist on this, though occasionally he does write alone. He has voted for sexual harassment plaintiffs in the unanimous Oncale v. Sundowner Offshore Services (writing a one-line concurrence that didn't disagree with the bottom line) and Harris v. Forklift Systems, so "always" is wrong. But let's set that aside for now.

The trouble is that it's simply false to say that Justice Thomas "consistently vote[s] in favor of pornography under the First Amendment." I give below a list of what I think are all the porn-related cases that Justice Thomas has considered while on the Court, and here they are. When Justice Thomas's vote would clearly protect porn or clearly authorize its restriction, I've just used one word "protect" or "restrict"; when it was based on a more pro-restriction approach than some of the other pro-restriction votes, I've said "restrict+"; when it was based on a less pro-protection approach than some of the pro-protection votes, I've said "protect-":

Surely this is not "consistently vot[ing] in favor of pornography" — it's voting for protecting pornography in some situations (though not as often as, say, Justices Kennedy or Ginsburg, or even Stevens or Souter) and against it in others. So I said as much in my exchange with the other professor, though with many fewer details than I give above; I cited X-Citement and Denver Area, pointed out that Justice Thomas's pro-protection votes in Free Speech Coalition and Playboy were quite narrow, and explained that in Playboy Justice Thomas basically took a formalist view that obscenity could be defined broadly and was unprotected, but material outside the obscenity definition was protected.

Here's what the other professor said in response:

As to the second point about Justice Thomas, he is not going to position me into rationalizing or defending Justice Thomas' opinions. I do find it curious that Justice Thomas does often, does not always vote in favor of, the pornography position and he consistently votes against plaintiffs in sexual harassment cases. I leave you to draw your own conclusions.

So this professor — who knows the First Amendment caselaw quite well — says that he won't be "position[ed] into rationalizing or defending Justice Thomas' opinions," not even to the extent of squarely acknowledging his error. He seemed happy to insinuate that Justice Thomas's supposed affection for pornography leads him to "consistently" vote to protect pornographers, even though that turns out to be false. But then when confronted with his error, the chief response is that he won't rationalize or defend Justice Thomas's opinions.

Now I suspect that the professor sincerely believed he was right when he made his initial statement. But in fact he was wrong, and as a constitutional scholar who often opines on the First Amendment, he should have known better.

Yet I also suspect that his contempt for Justice Thomas blinded him to this reality: Rather than looking squarely at the facts, the professor selectively ignored those that were inconsistent with his pejorative theory.

The professor's hostility was intense enough that it kept him from thinking straight, as intense hostility often does. And I think this is pretty emblematic of how some on the left react to Justice Thomas.

A google search for Eugene Volokh Climate Change Skeptics yields as the first item a page with the header "Factsheet: Eugene Volokh." The left sidebar begins with:

EXXONSECRETS.ORG

Documenting Exxon-Mobil's funding of climate change skeptics.

The body of the page points out the apparent reason for my being listed: I'm an Academic Advisory Board Member for the Reason Foundation, and I'm on some similar boards for the Heartland Institute and the Pacific Research Institute for Public Policy.

Except I've never been funded, to my knowledge, either by Exxon-Mobil, the Reason Foundation, the Heartland Institute, and the Pacific Research Institute for Public Policy. My board membership is entirely unpaid. I have been paid for two articles in Reason Magazine, and I spoke once at a Reason Foundation event, for which I must have been paid an honorarium; but in that respect I'm equally funded by the New York Times, Hofstra University Law School, and dozens of others. This is not, I suspect, what "Exxon-Mobil's funding" would normally mean to people.

What's more, I'm not even a climate change skeptic in any significant sense. I don't believe I've ever publicly spoken out about climate change, largely because I know next to nothing about the subject. If "climate change skeptic" means someone who has publicly taken a position skeptical of various climate change theory (which I suspect is the normal meaning of the phrase), I'm not it.

Now if they want to maintain a database of people who are affiliated with various groups that have gotten money from Exxon-Mobil, on the chance that these people may at some time speak out about climate change, that's fine. They should just make sure that the Web pages make that clear. But if the Web page lists my name alongside the phrase "Documenting Exxon-Mobil's funding of climate change skeptics," then facts aren't what the page is conveying.

WTVH reports:

A graduate student at LeMoyne College has been expelled for writing a paper on his opinion that corporal punishment should be allowed in the classroom. Scott McConnell was working on his master's degree in the science education program at LeMoyne. He wrote his "Classroom Management Plan" paper in November. After receiving an A- on the paper from his professor, the college decided to expel McConnell. . . .

LeMoyne released the following statement on the matter: "If we believe a student is not suitable for classroom instruction based on his or her educational philosophy we have an obligation that is consistent with the College's mission and that upholds New York State law and education regulations." . . .

Now it's possible there's something omitted from the story, and LeMoyne's actions were based on something other than just McConnell's opinion about what should be allowed. But if the story is accurate and reasonably complete, this seems just appalling: A student expresses his views that some education policy is changed, and then he's expelled?

Here, in fact, is a powerful criticism of LeMoyne College's actions:

A college or university is a marketplace of ideas, and it cannot fulfill its purposes of transmitting, evaluating, and extending knowledge if it requires conformity with any orthodoxy of content and method. In the words of the United States Supreme Court, "Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."

These words come from The LeMoyne College Faculty Handbook — Regulations on Academic Freedom and Tenure.

Thanks to InstaPundit for the pointer.

UPDATE: This news story provides more data. First, it suggests that the student wasn't expelled as such, but rather that he had been "conditionally accepted last summer and fall and was expecting to be fully accepted this spring," had taken classes at the school (including the one for which he read this paper), but then had his conditional acceptance revoked. I don't think this changes the academic freedom issue, but I thought I'd note it in any case.

The story also quotes the acceptance withdrawal letter, written by the program's director, as saying that "I have grave concerns regarding the mismatch between your personal beliefs regarding teaching and learning and the Le Moyne College program goals." It goes on to say that the student "said he's also been trying to find out what Leogrande meant by 'mismatch.' College administrators have told him, he said, that it stems from the four-page 'Classroom Management Plan' he submitted Nov. 2 for his Planning, Assessing and Managing Inclusive Classrooms class.

"In the opening paragraph of his essay, McConnell wrote: 'I do not feel that multicultural education has a philosophical place or standing in an American classroom, especially one that I will teach. I also feel that corporal punishment has a place in the classroom and should be implemented when needed.' He got an A for the course."

The story goes on to give more details; please read it here. Nonetheless, this suggests to me that the initial press accounts were substantially true: The student expressed a view about the way education ought to be conducted that was contrary to the established orthodoxy; and as a result he was kicked out of the program to which he'd been conditionally admitted. Sounds like the university is "requir[ing] conformity with . . . orthodoxy of content and method."

If they want to insist on such conformity, they are legally free to do so (as a private university, they aren't bound by the First Amendment). But if that's so, then they should make it clear to students, donors, and others, rather than singing paeans to academic freedom and then kicking out students for the very "inquir[y]," "evaluat[ion]," and participation in "a marketplace of ideas" that the university supposedly praises.

Well, if you like this blog — or InstaPundit or ProfessorBainbridge or various other often-right-leaning academic blogs — then you do. Most of us on this blog are academics, and one reason we feel free to express views that differ from our colleagues' and administrators' views (and may even seriously anger some of our colleagues, on questions such as affirmative action, sexual orientation, the war, and so on) is that we know we're protected by academic freedom principles. (By academic freedom principles, I mean First Amendment protection for those of us at state-run schools, but also contractual protection and the protection provided by the profession's social norms.)

Naturally, we like to think that our views are much more sensible and well-defended than those of the Ward Churchills of the world. But we suspect that some of our colleagues may disagree. If it weren't for academic freedom, we might face serious retaliation for speech — even outside-the-classroom, on-blog speech — that our colleagues claims creates a "hostile learning environment" for students, supposedly constitutes "hate speech" (a vague and broad category), supposedly discredits the institution in the eyes of this or that group, and so on.

Now of course there's lots of good and fearless blogging from non-academics; and academics sometimes do avoid certain subjects for a variety of reasons. The world would keep spinning without academic freedom, and somehow public debate will continue. And one can still argue that the costs of academic freedom outweigh the benefits (and one can certainly argue that about tenure).

Still, on balance academic freedom does make it easier for us to speak safely on controversial topics. And if you've found some such speech of ours to be valuable, then you've benefited from academic freedom.

Several correspondents have argued that university faculty should be treated no differently from other employees. Here's an example:

Personally, I think "academic freedom" is grossly overrated. Anyone working in practically any industry other than academe who said what Churchill said would lose his job yesterday, and few of us would have a problem with that. Perhaps a case can be made that academics are "special" and should be guaranteed a right to speak freely in a consequence-free environment, but if so, I've yet to hear it.

Here's the case, in a nutshell (though it would take volumes to explore all the implications): In most industries, people are hired to do a good job, and part of doing that has to be getting along with people -- supervisors, colleagues, customers, and potential customers. If you do something that offends people enough, you're no longer doing a good job.

But university professors are supposed to do a good job by saying what they think is right, even when that's offensive or alienating to people. Such an ability to express highly controversial views, even views that many people find deeply offensive, is critical for the effective functioning of universities as institutions. If university professors know that expressing controversial views about the war effort, about racial differences, about sex or sexual orientation, and so on will get them fired, then effective scholarship and public debate about these issues would be very much stifled. A "don't offend the customers" or "if it's controversial, don't say it" approach may be perfectly sensible for many kinds of businesses or even government agencies. But it would be awful for universities.

I argued below that professors shouldn't be fired even for expressing views that are downright evil. A big part of my argument was the slippery slope concern: That, in Justice Black's words, First Amendment rights "must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." Let me speak in some more detail about why this slippery slope is a very serious concern.

Let's start with a standard criticism of slippery slope arguments, as applied here: Churchill said things that were unusually awful. Assume that you and I believe they are much worse than other statements that we think deserve to be explored in the academy, even if we might think they're wrong -- for instance, claims that the U.S. is on the wrong side in Iraq, claims that homosexuality is evil, claims that there are significant innate biological differences between racial groups in intelligence, claims that women are innately worse than men in science, and so on. (I think claims of racial intelligence difference need to be explored; from what I hear, they are factually mistaken, but we can only know that they are factually mistaken if scholars are allowed to seriously investigate the issue, and keep investigating it. Claims that Americans or Jews or blacks deserve to be slaughtered, on the other hand, I can do without.)

So we see a distinction between Churchill's vile views and other views. Why not act on this distinction? Why not say, yes, we'll fire Churchill, but, no, others shouldn't be fired based on other speech, precisely because there is a distinction to be drawn between the two. In the words of Wilbren van der Burg, "Someone who trusts in the checks and balances of a democratic society in which he lives usually will also have confidence in the possibility to correct future developments. If we can stop now, we will be able to stop in the future as well, when necessary; therefore, we need not stop here yet."

My answer is that we may be confident that Churchill's views are different from others' views, but we might doubt that others -- faculty, administrators, legislators, judges -- will draw the line correctly. They might indeed consider Churchill's case analogous to that of some professor who is arguing that homosexuality is evil, or that sex discrimination is sometimes proper, or what have you. And by setting a precedent allowing Churchill's firing, we will have made it easier for them to fire others.

Think how often people argue by precedent and analogy in such situations. Several messages I've gotten disagreeing with my position said that, well, surely a professor would be fired for expressing support for the Nazis during World War II, or for saying today that Jews should be killed, or the like -- and therefore Churchill should be fired, too. My view is that all these people should, loathsome as they are, be protected by academic freedom, precisely because otherwise this would set a precedent for the future. In our legal and political system, analogy and precedent are powerful forces, and we need to think hard about the precedent that we'd be setting.

Let me a bit more explicit, by identifying three particular ways that the slippery slope can work here.

1. The equality slippery slope. People often support equal treatment -- which is to say the same treatment for behavior that they think is similar enough. If there's a flat rule that professors may not be fired for expressing views hostile to certain groups (whether Americans, blacks, Jews, or what have you), then a lot of people may grudgingly tolerate a wide range of offensive speech.

But once speech that offends some groups becomes punishable, other groups (in what I call "censorship envy") would understandably ask: Why aren't we protected against views that we find equally offensive, even if you folks respond with some distinctions that we find unpersuasive? And some people may find it hard to resist such arguments. Once an exception is made for the rule, others will be added for the sake of equal treatment.

2. The attitude-altering slippery slope. People often (not always, but often) take a cue about what's permissible based on what's done. We might see firing Ward Churchill as an unusual event, something that's just barely allowed; and we might therefore plausibly reject firing people whose speech was even a little reprehensible.

But once he's fired, and others who say similar things are fired, those decisions may well become part of people's background assumptions of what's acceptable. "Well, we fired Ward Churchill for these statements; that must mean that it's OK to fire people for such statements; and that must mean that academic freedom isn't that strong a principle."

Of course, some people might adopt the attitude that it's fine to fire people only for the most heinous statements, and that it's still not permissible to fire people for any remotely legitimate commentary. But the danger is that people won't take such a nuanced view -- rather, they'll just conclude that because professors do get fired for their viewpoints, it's OK to fire people for their viewpoints.

3. The small change tolerance slippery slope. Finally, it's harder to mobilize political (or legal) opposition to small changes in degree than to big changes, or changes in kind. If there's a flat rule that tenured professors may not be fired for their political views, then any such firing -- whether of Churchill or of someone who has a thoughtful argument against homosexuality -- would be seen as a Big Deal. But if people are routinely fired for expressing extreme viewpoints, then it becomes that much easier for a university to fire people for expressing slightly less extreme viewpoints.

Sure, critics of the second firing may draw distinctions between one viewpoint and another. But the public will be a lot less interested in such criticisms based on fine differences in degree. "These are complicated judgments by professionals," the public may say. "It's established that it's fine for them to fire people based on viewpoint in some situations. Given that this new situation isn't that different from past situations, we'll give the university the benefit of the doubt."

And then, after someone is fired for expressing a slightly less extreme viewpoint than Churchill's, and that becomes the new standard for what's allowed, someone else will be fired for expressing a still less extreme viewpoint, and so on. Over time, the line may move through small steps -- and the public and courts might not stop the motion: Each step would be seen as too small to be worth fighting over, and small enough that we should defer to the university's judgment rather than making a mountain out of a molehill.

Now none of these mechanisms -- which are of course just briefly sketched here, since it takes me many pages to go into them in detail -- are sure to operate. We do sometimes draw distinctions that don't lead to much slippage. And sometimes we need to draw distinctions, even despite the risk of slippage. (One example: In the decision whether to hire or to tenure a faculty member, we inevitably have to consider the content of his scholarship, and no matter how we try to focus on the quality of the work regardless of whether we agree with the bottom line, it's inevitable that the person's views will color our judgment of the work's quality. But unless we are just to use content-neutral measures, such as the number of pages the person has written, this content-based evaluation is necessary, in spite of its risks. Deliberately viewpoint-based firings of tenured faculty members, on the other hand, are not necessary.)

Nonetheless, I think that allowing professors to be fired for their reprehensible viewpoints poses very large slippery slope risks. Narrow exceptions to academic freedom protection are especially likely to become broader, for all the reasons I give above. And that's dangerous enough that I think we should protect some evil people like Churchill rather than risk stripping protection from all faculty members who express unorthodox viewpoints.

Steve Kurtz at Pajama Guy has a long post -- basically a collection of short essays -- on 2004 movies. A few excerpts:

WORST LINE: Meryl Streep in The Manchurian Candidate: "The assassin always dies, baby, it's necessary for the national healing." This is supposed to sound smart (several critics quoted it) but is incredibly stupid. Sirhan Sirhan is still alive. Squeaky Fromme is still alive. Arthur Bremer is still alive. Mark David Chapman is still alive. John Hinckley is still alive. Charles Manson is still alive. James Earl Ray died of natural causes. The only major assassin in our lifetimes who died was Lee Harvey Oswald, and that's the best case I can think of where national healing was denied. . . .

[About The Day After Tomorrow:] Near the end of The Day After Tomorrow (the day after, I guess), the Vice President, clearly based on Dick Cheney, goes on TV and apologizes for not listening to climatologist Dennis Quaid's warnings. (The well-meaning but stupid President died in a blizzard). Slate Magazine had a contest to write how the real Dick Cheney would have apologized. I didn't enter, but I think the speech would have gone like this:

In the 1960s, there were many significant spokespeople for the environmental movement who claimed the game was already lost and by the mid-70s, we'd have mass starvation in the United States. After being proved comically wrong, they kept predicting apocalypse in very short order, and yet, though disproved time after time, never gave up making terrible predictions, and never apologized for being so frighteningly wrong. By 2004, after more than four decades of being absurdly mistaken, and with the average human on earth better fed, clothed and housed than ever before, you can understand my skepticism when one lone expert predicted outrageous scenarios of disaster, one following upon another, in a matter of weeks. I was not willing at the time to jeopardize the world economy to avoid what sounded like the plot of one of those empty, big-budget hollywood summer movies, full of spectacle at the expense of character. It now turns out after forty years of experts being wrong and not apologizing, one of the experts finally got it right--for not recognizing this, I apologize.

Slate's new Human Nature blog-column reasons:

Cell phones make young people drive as poorly as old people. A simulator study indicates drivers 18 years to 25 years old who use cell phones, even hands-free, react as slowly and overlook things as badly as drivers 65 years to 74 years old who don't use cell phones. Implications: 1) Don't talk on the phone while driving. 2) If phone use by young drivers is dangerous enough to ban, why do we let old folks drive at all?

The columnist may have just been trying to be provocative, but I know lots of people who make similar arguments (in various contexts) sincerely. Behaviors A and B impose the same costs on third parties (which is to say banning them would create similar benefits) -- why do we treat them differently?

Often the answer is very simple: Banning A and B may have similar benefits, but banning them would create very different costs. In most American cities, banning a person from driving usually dramatically interferes with the person's ability to lead a normal life. Sometimes this might be justified, in order to protect others from death and injury. But it should take a lot of risk to justify imposing such a burden (and it might require us to invest some effort in case-by-case decisionmaking, rather than just resting on statistically accurate generalizations about how dangerous most people in an age group are).

On the other hand, banning people from using cell phones while driving is a minor burden on them. It is indeed a burden; it interferes with their liberty, and it may make them less efficient in various ways. But it may rightly take a lot less risk to justify such a comparatively small burden.

(People who prefer to think in rights-based ways may reach similar conclusions: If you believe that people who share what are -- for better or worse -- government-run roads should have a right to do what they please so long as they don't create undue risks to the rights of others, it seems quite plausible to measure the "undue-ness" of a risk by the cost to people's freedom of eliminating the risk as well as by the benefit to others' security of eliminating the risk. I realize some libertarians may disagree, but I suspect that most libertarian-minded people would take something like this view.)

Of course, one could still plausibly argue that (1) the risk posed by old drivers is so high that we should ban them from driving, or (2) the risk posed by cell-phone-using drivers is low enough that we shouldn't ban such behavior. But the analogy given in the Slate column doesn't really get us very far.

Ward Churchill is the University of Colorado professor who wrote the horrific screed praising the murder of the people in the World Trade Center (on the grounds that they were "little Eichmanns"). His article reveals him to be a depraved person, much as people who applaud the butchery of innocent people are generally depraved. (I see no way of reading "If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I'd really be interested in hearing about it" as anything but applauding the deaths.) I realize that he doesn't think they're innocents — but that a Nazi thinks Jews culpable and therefore meriting death, or a Klansman thinks blacks culpable and therefore meriting death, hardly absolves him of charges of depravity.

Firing for his views: Nonetheless, I agree with Glenn Reynolds and Steve Bainbridge that he ought not be fired for this depravity (and there is talk of that happening).

I think Justice Hugo Black was right to say that First Amendment rights "must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish"; and the same is true of academic freedom principles, flowing both from the First Amendment rights of public university employees and from their tenure contracts and professional norms. If the Ward Churchills of the world are fired for their speech, disgusting as it is, that would be a perfect precedent for left-wing faculties and administrations to fire right-wing professors for much less offensive statements. And given the political complexion of universities these days (and the fact that most of the decisions will be made by university administrations and not by elected officials), this will end up happening to conservatives much more often than to liberals. So I think that protecting Churchill from being fired is both good in principle and good in practice.

Stripping him of chairmanship: Nonetheless, there is no reason that the University had to keep him as Chair of his department, had he not resigned that post. The chairmanship of a department is an administrative post; while a professor's job is to publish his own work and his own views, the chair's job is to advance the academic mission of the university. (Teaching is a separate and complicated matter, but as best I can tell none of Churchill's offensive statements were made in class.) See Jeffries v. Harleston (2nd Cir. 1995), which sensibly draws this distinction.

If the University concludes that keeping a person such as this as the administrative face of the department will cast the department and the university into disrepute, it can properly remove him as chair, while retaining his right to say whatever incendiary things he likes as professor. And of course I'd say the same as to department chairs who said things I liked: A university should have fairly broad authority to strip them of their chairmanship, though not of their posts. Firing him for lying (if he had indeed lied) about being an American Indian: But all this speaks only of whether Churchill could be fired for his views. There is also the question whether he has knowingly falsely claimed to be an American Indian and a member of various tribes (see this story). If indeed it turns out that he lied — and the lies, even if not in his scholarship, were attempts to build credibility as a scholar and public intellectual speaking on behalf of the American Indian community — then I think he ought to be disciplined, and quite possibly fired, for that.

As readers may recall, "Joseph Ellis, historian and Pulitzer Prize-winning writer, admitted [in 2001] that he led his students at Mount Holyoke College to believe that he had served as a paratrooper in Vietnam, when in reality his three years of service had been spent teaching history at the U.S. Military Academy at West Point. He was also accused of embellishing his role in the civil rights and antiwar movements. He was subsequently suspended from Mount Holyoke for one year without pay and stripped of his endowed chair. Ellis won the 2001 Pulitzer Prize for history for Founding Brothers: The Revolutionary Generation." (Quote from infoplease.) As I recall, there was no reason to think that this lie really misinformed Ellis's students about important historical questions; but it is still highly reprehensible, and properly punishable, behavior in a scholar. Ellis was only suspended for a year, but he's a Pulitzer Prize winner and, as I understand, a historian of substantial quality. Had he done less good work, his bad acts may well have led to his being fired, and quite properly so.

Moreover, knowing lies are generally not protected by the First Amendment; and though we usually don't imprison people just because they lied about their own biography, I see no First Amendment problem in firing such people, even tenured academics, based on that. Moreover, as a matter of academic freedom principles, I don't think there's anything especially dangerous in enforcing basic requirements of honesty in one's public statements, particularly about one's own life history. There is some risk of error in adjudicating such controversies, but much less than the risk involved in deciding which viewpoints are so heinous as to be beyond the pale of academic tolerance.

If Churchill actually lied about his racial affiliation in an attempt to get a job — or his chairmanship or similar posts, including temporary ones — then that's outright resume fraud, and may even be criminal (especially if the lie was in the service of getting something of financial value). But even if he knowingly told a falsehood simply to get more credibility, that would be serious professional misconduct.

Of course, all this assumes that he in fact claimed to be an American Indian (or a member of particular tribes), that he knew that he is indeed not an American Indian (or a member of the claimed tribe), and that the statements were unambiguous enough. (There can sometimes be some ambiguity: For instance, if someone who is Jewish only on his father's side claims to be Jewish, I would surely not call him a liar just because the strictest definitions of Jewishness require that one's mother be Jewish, at least unless he was speaking in a context where he knew that his statements would be interpreted using that strict definition.)

But if these charges are true, then they would warrant punishment, including possibly firing. Naturally, whoever fires him for this or supports such a firing must be prepared to apply the same standard regardless of the professor's viewpoints. But I certainly would be prepared to apply such a standard across the board, since academic dishonesty is culpable whether it's done by people with evil political ideologies or good ones.

Thanks to Sabastian Niles for the pointer to the AP story cited above.

A reader asked Lara:

How frequently do law review editors seek guidance from members of their law faculty when they are trying to decide whether or not to accept an article for publication? I am particularly interested in the practices at top schools.

I am told by sources at Harvard and Yale that the general journals at those schools always ask faculty members to review articles. I know that Stanford sometimes does, and that UCLA very rarely does.

I'd love to know what other journals do -- if you have personal knowledge of how this practice operates on a journal, could you please post the name of the journal and its practice in the comments? Please don't include arguments about what's the best approach, complaints about journals, lawyer jokes, suggestions on how I can make money fa$t, or whatever else in the comments; to make the comments useful, they should just include the name of the journal and a brief summary of its practice. Thanks!

Last week, a reader asked Law Review Lara whether The Little People can ever get to publish in Top 20 journals. Lara answered yes, though it's hard even for well-established lawprofs to get placed there, and there is some discrimination (though not 100% rejection) facing authors who aren't lawprofs, judges, or other notables.

Adam Sofen from the Yale Law Journal reported on that journal's policy, which Lara's contacts say is similar to the one at the Harvard Law Review (though I believe not at most other Top 20 journals):

[H]ere at the Yale Law Journal, article submissions are typically reviewed blind -- meaning that the voting members of the committee usually don't know the name of the author nor his or her institutional affiliations until after the piece is voted on. Moreover, all pieces are sent, blind, to faculty member for review before acceptance. One exception is that if a piece comes from younger, untenured faculty member, the person floating the article will often disclose that fact -- as a point in their favor.

Of the first four issues we've published this year, our non-student authors come from the following schools: Cardozo (3), George Mason (2), Chicago (1), George Washington (1), Iowa (1), NYU (1), Wash U-St. Louis (1), Yale (1). . . . No non-professor authors, but if we got a good piece, we'd be thrilled to publish it. . . .

I think the biggest advantage that brand-name law professors have in the selection process is not that law reviews are dying to publish yet another piece by, say, Cass Sunstein, but that . . . professors who publish time and again come to have a clear idea of how to present their pieces so as to appeal to law review editors. That goes for everything from the organization of ideas to the formatting on the page. Practice, unsurprisingly, helps. . . .

The anonymity is not complete, at least at Yale:

Each member of the [articles or essays] committee gets his or her share of the stack each week, and chooses one or two pieces to float to the whole committee at twice-weekly meetings. They have discretion about which pieces to float -- it's possible some members could be using name and school to help sort, but . . . it was my experience that most committee members had no preference for established authors, and some preference for novice ones. The only exception is that, by tradition, Yale faculty members get automatic floats. (This is an advantage but not an overwhelming one, and there were many, many Yale pieces we didn't take this year.)

Moreover, the anonymity may be relaxed when an expedite request is submitted; that's what I'm told happens, at least in some measure, at the Harvard Law Review, for instance, I'm told that people do know the author's identity once one sends in a request for an expedited review. Moreover, sometimes an article may reveal the author's identity in various hard-to-obscure ways. Nonetheless, my sense is that both the Yale Law Journal and the Harvard Law Review try hard to make the process as anonymous as possible, and do indeed publish people from relatively low-ranked schools.

Also, some people have theorized that Yale, Harvard, and the like won't even look at an article until they get a request for an expedited review -- i.e., until the article has already been accepted at some other journal. Not so, says Mr. Sofen, and my Harvard contact confirms that this so there, too. Sofen writes:

The committee members try to attend to pieces in approximately the order they come in the door. Expedites do typically get pieces a second look, but by the middle of April or so, virtually every piece of any quality has some kind of expedite attached, so that's not much help. The top-20 journals have shorter expedite periods, of course, so those force themselves on your attention faster. But, really, the only way to deal with the crush is (1) to spend an enormous, enormous amount of time reading submissions, (2) to learn to read quickly, and (3) to begin to figure out what sort of pieces won't clear the bar, period. For example, we get a not-inconsiderable number of submissions that deal with the laws of individual states. It's not plausible that YLJ is going to publish, say, a roundup of recent family-law decisions in Arizona, so the editors don't spend much time with those sorts of pieces. But people persist in sending us reams of them.

but apparently it is a Howard Dean value. According to a CNN transcript (Jan. 31, 2005), Howard Dean — front-runner for the Democratic National Committee chairmanship — said this, apparently at a Democratic National Committee forum in New York:

I hate the Republicans and everything they stand for, but I admire their discipline and their organization.

Perhaps it was a slip, and he really meant simply that he disagrees with us (or our leadership), rather than hating us. Or perhaps it wasn't a slip. Just seems worth pointing out; among other things, would a Democrat who hates Republicans, and says so publicly, be really effective helping Democrats reach out to cross-over Republicans, or even moderates who sometimes vote Republican? Or is his view that the DNC should just focus on increasing Democrat turnout, and write off those who are Republicans, or who are uncomfortable with those who like Republicans?

(Thanks to Jeff Jacoby's column for the pointer.)

UPDATE: A reader writes:

As a former Dean staffer (and diligent VC reader), I've heard him use this formulation live and in person -- so I don't doubt the transcript. But, each time (and, oh how I wish he'd not expressed the sentiment this way), I've also heard him immediately move on to refine it, to the tune of "Now I don't really hate them," etc...

Given his record in Vt., where the legislature's Dems. tended to be more frustrated with him than the bodies' Republicans, I chalk it up to an infelicitous -- and undisciplined -- phrasing. I don't believe his view is that cross-over voters should be shunned (viz. his campaigning for John Kerry, which frequently emphasized the liberty issues on which he believed Democrats might appeal to traditionally Republican voters), but accept your questioning as entirely appropriate. Perhaps it'll spur him to a more nuanced rhetoric.

I'd quite forgotten about my brother Sasha's The Countries of the World:

The Countries of the World
Alexander "Sasha" Volokh
to the tune of "The Mexican Hat Dance," inspired by The Animaniacs; current as of 5/20/97

Russia, Slovenia, Sweden, Armenia, Norway, Great Britain, Ukraine,
Belgium, Andorra, the Vatican, Monaco, Italy, Portugal, Spain.
Ireland, Albania, Greece, Lithuania, Latvia, Finland, Estonia,
Austria, Liechtenstein, Switzerland, Germany, Luxembourg, France, Macedonia.

Czech Republic, Slovakia, Hungary, Belarus, Azerbaijan, San Marino,
Moldova, the Netherlands, Denmark, Bulgaria, Bosnia-Herzegovino.

Yugoslavia, Iceland, Romania, Poland, Croatia, Morocco, Algeria,
Malta, Tunisia, Cyprus, Kuwait, Georgia, Lebanon, Israel, Syria.
Saudi Arabia, Turkey, Iraq, Arab Emirates, Jordan, Qatar,
Chad, Eritrea, Bahrain, Ethiopia, Egypt, Benin, Cote d'Ivoire.

Cameroon, Burkina Faso, Nigeria, Senegal, Yemen, Oman,
Somalia, Togo, Liberia, Guinea-Bissau, Niger, Mali, Gabon.

Tanzania, Namibia, Malawi, Libya, Guinea, Cape Verde, The Gambia,
Equatorial Guinea, Sierra Leone, Sao Tome and Principe, Zambia.
Mauritania, Ghana, Angola, Botswana, Burundi, South Africa, Rwanda,
Mozambique, Central Africa, Congo Republic, Lesotho, Djibouti, Uganda.

Zimbabwe, Maldives, Kenya, Swaziland, Congo, Mauritius, Comoros, Sudan,
Seychelles, Madagascar, Sri Lanka, Cambodia, Thailand, Malaysia, Iran.

Myanmar, Turkmenistan, Laos, Afghanistan, China, Vietnam, Kazakhstan,
Mongolia, Bangladesh, India, Pakistan, Fiji, Nepal, Kyrgyzstan.
Marshall Islands, Tajikistan, Tonga, Uzbekistan, Western Samoa, Bhutan,
The Philippines, Northern and Southern Korea, Papua New Guinea, Taiwan.

Kiribati, Australia, Singapore, Solomon Islands, Brunei, Indonesia,
Tuvalu, Nauru, Japan, Vanuatu, New Zealand, Palau, Micronesia.

Bolivia, Ecuador, Chile, El Salvador, Panama, Suriname, Paraguay,
Venezuela, Guyana, Brazil, Argentina, St. Vincent and Grenadines, Uruguay.
Trinidad and Tobago, Honduras, Barbados, Republic Dominican, Cuba,
Guatemala, Colombia, St. Kitts and Nevis, Jamaica, Antigua-Barbuda.

Nicaragua, Peru, St. Lucia, Bahamas, Grenada, Belize, Costa Rica,
Dominica, Canada, Mexico, Haiti — [pause] — United States of America!

UPDATE: Sasha writes: "The problem with the Animaniacs song was that it didn't have all the countries, it had many non-countries, and it had too many filler words. I revised it one weekend in May 1997 when Zaire became Congo."

Monday, I posted this:

The Underreported Dark Side of the Iraqi Elections: BoiFromTroy reports (thanks to Mickey Kaus for the pointer):

Voter Turnout falls 28% in Iraq; country more divided than ever

News out of Iraq should send chills of distress around the world. As voting ended, turnout was estimated at 72%. Although Andrew Sullivan may or may not consider that a success*, it reflects a 28% decline from voting in Iraq'[s] last election. Furthermore, the unity that marked Iraq's 2002 election has been dissolved by the Bush Administration's divisive policies. The consensus which marked the last election has fallen apart to the point that one party may not even gain a majority. . . .

What a disaster! Why isn't the media pointing this out? (Note that the turnout is now being estimated at a more USA-like 60%, rather than at 72%, or at a Worker's-Paradise-USSR-like 100%, but this is beside the point for purposes of this item . . . .)

Yesterday, I got this response from a reader:

Let me guess? Your a bleedy hear Democrap. I am sure the last election in Iraq had a higher turn out because if thet did not vote they were tortured, murdered or put in jail maybe we should try that here in America? Your a JUTZ! GET A LIFE YOU STINKING LIBERAL!

Wow, he really has me dead to rights there. (My apologies if I somehow missed some very deep joke of his.)

UPDATE: To his credit, the reader just e-mailed me a very nice apology.

I had just a great time last week at Hofstra Law School on Long Island, where I was a Visiting Scholar-in-Residence for three days. I gave talks on free speech and child custody, slippery slopes, and academic legal writing; did a talk for the Federalist Society on gun control policy; guest-taught three classes; and had some very pleasant meals with faculty members. It was very kind of Hofstra to invite me. (I'll also be doing a lecture at Creighton on Feb. 17, and a couple of talks at Tulane on Mar. 2-3, which I'm much looking forward to.)

The Foundation for Individual Rights in Education reports (some paragraph breaks added):

In a statement issued yesterday evening, Florida's Indian River Community College (IRCC) overturned its prohibition on a student-organized screening of The Passion of the Christ. IRCC made the decision after the Foundation for Individual Rights in Education (FIRE) took the case of the Christian Student Fellowship (CSF), which wanted to show the film, to the national media.

IRCC's statement confirmed that the college had not enforced its policies on public expression consistently and according to constitutional guidelines. Late last week, CSF also reported that IRCC has rescinded its authoritarian requirement that a faculty advisor monitor all student organization meetings.

"We appreciate IRCC's acknowledgement of its mistakes and its recognition of its duty to allow constitutionally protected expression on campus," remarked FIRE President David French. "While the students never should have been put through this experience, FIRE is very pleased that IRCC ultimately decided to reject oppression and embrace liberty—not just for the Christian Student Fellowship, but for all of its students."

Last fall, IRCC prohibited CSF from hosting a screening of The Passion of the Christ on campus, justifying its actions by claiming to have banned all R-rated movies. Soon afterwards, it enacted a new policy requiring a faculty advisor's presence at all student group events. This Orwellian policy effectively prevented CSF from meeting because its demands on the time of CSF's faculty advisor forced him to resign. When CSF's efforts to resolve the situation proved unsuccessful, the group contacted FIRE for help.

FIRE intervened and quickly discovered and publicized a profound double standard: IRCC had recently allowed the performance of a skit called "F**king for Jesus" and a viewing of the R-rated documentary film Welcome to Sarajevo, but it would not allow the showing of The Passion of the Christ. Under intense media pressure, IRCC conducted a legal review of its policies, leading to yesterday's decision to permit the screening and last week's decision to lift the requirement that a college official attend all student group meetings.

"This is a victory for free speech, students' rights, and common sense," noted FIRE Director of Legal and Public Advocacy Greg Lukianoff. "IRCC had a rule that treated college students like children, but it has shown the courage to admit it was wrong. We are pleased that this case has been successfully resolved and would be happy to advise IRCC administrators if they have any questions about how best to demonstrate their respect for the rights of their students in the future," he concluded.

So here's a little puzzle I thought up yesterday — which sets of currently existing countries or dependencies share the same last five letters (but do not share the entire last word)? (Yes, that's an imperfect proxy for rhyming, but that's the question.) So Uruguay / Paraguay and Armenia / Slovenia don't quite work, since they only share the last four letters. Likewise, North Korea / South Korea don't work, since they share the entire last word. If we weren't limited to currently existing countries, or could also use other geographical areas, we could have Syria / Assyria, Russia / Prussia, Liberia / Siberia / Iberia, Saudi Arabia / Bessarabia, and many more.

But what are the sets of country names that fit my criteria? The names must (1) refer to countries or dependencies that now exist, (2) be the standard English-language names for a country or a dependency (an example of the latter would be Guam or Gibraltar — let's use the CIA Factbook as the official reference), (3) share the last five letters, and (4) not share the last word. Also, if you want to make it extra sporting, (5) do this from memory rather than by consulting a map or other printed or electronic resource (except perhaps to check the things you've come up with from memory).

(For the answers found so far click below.)

I was doing a bit of last-minute research for my Crime-Facilitating Speech paper, and found — using a Google search for "master keys" — a paper that purports to show a huge vulnerability in many master key systems: If someone has a nonmaster key that opens a particular lock, then he can easily create the master key which opens that lock and all the other locks that are on the same master.

I'm not a locksmith, but the claim sounds quite persuasive, and the author (Matt Blaze, a former AT&T cryptographer, and now a computer science professor at Penn) seems smart and credible. If you're responsible for a building or department that uses master keys, keep this in mind. Blaze claims that some kinds of locks aren't vulnerable to this problem, so replacing all the locks may fix the problem. Naturally, this might not be cost-effective in some situations, but it may be quite cost-effective indeed if the stuff you're securing is important enough.

UPDATE: Thanks to reader Chuck Jackson for pointing out that Blaze, whom I first identified as an AT&T cryptographer, is now a Penn professor. By the way, doesn't he sound like someone from a comic book? "Matt Blaze, scholar by day, safecracker by night."

FURTHER UPDATE: My former student Dave Price writes:

I can confirm that Matt Blaze's master key privilege-escalation attack works: I saw him demonstrate it at a conference in 2003. He could do it in about two or three minutes, and he guided a graduate student through the process in five or six. All it requires is a few key blanks, a handheld punch that lops off pieces to change the keys, and a non-master key plus access to the lock that it opens during the attack.

Blaze has brought a computer security approach to analyzing the traditional products and methods of physical security. He's become a thorn in the side of traditional locksmiths and safe manufacturers, most of whom still hold to a security-through-obscurity credo. He's also published a paper on safecracking and an essay about the reactions of locksmiths to his work. In that last, he raises the prospect of having his research temporarily silenced through spurious DMCA takedown notices.

BoiFromTroy reports (thanks to Mickey Kaus for the pointer):

Voter Turnout falls 28% in Iraq; country more divided than ever

News out of Iraq should send chills of distress around the world. As voting ended, turnout was estimated at 72%. Although Andrew Sullivan may or may not consider that a success*, it reflects a 28% decline from voting in Iraq'[s] last election. Furthermore, the unity that marked Iraq's 2002 election has been dissolved by the Bush Administration's divisive policies. The consensus which marked the last election has fallen apart to the point that one party may not even gain a majority. . . .

What a disaster! Why isn't the media pointing this out? (Note that the turnout is now being estimated at a more USA-like 60%, rather than at 72%, or at a Worker's-Paradise-USSR-like 100%, but this is beside the point for purposes of this item . . . .)

My post about the term paper mills — and the thought that some algorithm concluded (perhaps rightly) that students who are looking for books on how to write papers might settle for a site offering plagiarized papers instead — reminded me of a joke about academic success and academic ethics. It works better when spoken than written, but here it goes:

A beautiful student goes to a male professor's office and says, in a breathy voice, "Professor . . . . I'd do anything to get an A on your exam."

"Anything?," the professor asks, conspiratorially.

The student leans closer. "Anything," she says.

The professor says, "Would you . . . study?"

I checked the amazon.com page for my Academic Legal Writing book, and what should I find near the bottom but:

Customers interested in this title may also be interested in:
Sponsored Links ( What's this? ) Feedback

* Research Papers
On any topic. Learn more.
askburris.com

I suspect that the amazon ad selection mechanism is fairly automated, and may be done through a third party service; if I'm right, then I won't fault amazon for accepting the ad in the first place. But I do hope that the amazon people can be prevailed on to stop running this ad (they are surely technically capable of rejecting those ads that they find improper).

I sent a message to amazon about this using the feedback link that they provide alongside the link to the sites. If you're inclined to help push amazon in the right direction, you might want to send them feedback, too. (And if there are any Amazonians [or is it Amazons?] reading this, and can pass this along to the right people, I'd be much obliged.)

Reader Ethan Hahn points to a decision from the Ohio Court of Appeals that deals with whether "clear title" means "free and clear" title. A longish but readable (because vervy) excerpt:

III. The Normans Strike Again

Monfort contends, "Although a `clear title' is one that is not subject to any restrictions, the case at bar involved a `free and clear' title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what?

Would that Harold had not lost the Battle of Hastings.

Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.

The Norman Conquest was in 1066. We can safely eliminate the couplets now. . . . IV. The Normans Conquer Lorain County

Monfort cites Zilka v. Central South Limited, a Ninth Appellate District case that distinguished a clear title from a free and clear title in much the same way that Monfort now argues. "In short, while `clear title' cannot have any encumbrance or restriction whatsoever, `free and clear' title is a marketable title * * *." We are, thankfully, unable to find any case that has cited this aberration — the Norman invasion has not progressed any farther south in Ohio.

We may consider Zilka and give it the weight that we consider appropriate. And we consider it inappropriate to give Zilka any weight at all.

The Normans and Zilka have also corrupted an Ohio real-estate treatise — namely, Baldwin's Ohio Real Estate Law. In the section defining "marketable title," the treatise states, "Title that is `free and clear' is not the same as `clear title.' Rather, `free and clear title' means title that is unencumbered by any liens and is marketable." It then cites Zilka.

Before Zilka, we are sure that Baldwin's made no such claim. Another venerable Ohio treatise (published before Zilka) states it properly: "[`Clear title'] usually refers not to the title itself but to the absence of liens or encumbrances against the real estate. The term typically appears in the following context: The seller agrees to convey to the purchaser marketable title, `free and clear' of liens and encumbrances." So the sample used to define "clear title" used the term "free and clear" title. But Monfort argues that they are two different things. Is it any wonder that lawyers get a bad rap?

Nine hundred years later, courts in Ohio are still dealing with the consequences of the Norman invasion. We can only hope that some day logic will prevail over silly tradition. . . .