Saturday, April 9, 2005

Still More on Campus Intellectual Diversity:

The Dartmouth Review has done a study of party affiliation of Dartmouth's professors and the results are unsurprising:

With these statistics in mind, The Dartmouth Review decided to revisit its investigation of the political affiliations of professors on our own campus. The results were not all that surprising: of the 341 professors registered to vote in Hanover, NH, Lebanon, NH, and Norwich, VT, 225 (66 percent) are Democrats and eighteen (5 percent) are Republicans. Ninety-eight (29 percent) did not register a party. Put another way, there are 12.5 registered Democrats for every registered Republican.

Moreover, since we last collected this same information, several professors have changed their affiliation to Democratic, presumably to vote in last year’s presidential primary. None became Republicans.

When the Center for the Study of Popular Culture conducted a narrower study in 2002, it found that there were 38 Democrats and four Republicans in the eight Dartmouth academic departments it examined. Now, according to The Review’s study of Hanover, Lebanon and Norwich voters, these departments contain 70 Democrats and still only four Republicans.

An peculiar anecdote from the article:

No Republican professor teaches in interdisciplinary departments, and many teach in very narrow fields, such as engineering or mathematics, which are not likely to attract non-majors, thus limiting their influence and profile on campus. Conservatives might anticipate safety within fields in which politics should have no bearing, but even the computer science department includes a professor who uses text in programming classes to praise Democrats and condemn President George W. Bush.

Prior research by Dan Klein and the most recent article by Rothman, Lichter, and Nevitte has identified a very high correlation between party affiliation and views on ideological and political issues, so although imperfect, party affiliation in fact turns out to be a pretty useful proxy for intellectual viewpoints.

In fact, Dan Klein recently spoke at Dartmouth on his research (see news coverage here and here).

Friday, April 8, 2005

Second Circuit Judicial Council Issues Decision Related to Judge Calabresi's Remarks:

The opinion is here; the bottom line is that the judges conclude that Judge Calabresi violated the Canons of Judicial Ethics by suggesting that Bush ought not be reelected, but that his apology and the admonition that he had gotten from the Chief Judge (with which the Judicial Council concurs) are all the discipline that is necessary. I think that's quite right; I would have been happy even with the apology alone, but certainly nothing more than the Council's mild admonition is called for.

For more on the controversy, see here, here, and here. I'm also pleased to say that the report quotes (and even agrees with!) something I said to a reporter about this controversy -- that the Mussolini/Hitler analogy was "factually inaccurate and unfair, but not a breach of ethics."

Blogging and Blog-Reading -- Why and Why Not:

I was invited to be on a panel about blogging, before an audience a group of journalists who aren't very blog-knowledgeable, so I've put together a brief summary of "Blogging and Blog-Reading -- Why and Why Not."

It's a short list of short points, so don't expect it to cover everything, or to cover everything in detail; and it's old hat to most experienced blog readers. Still, in case some of you are interested, I enclose it below:

Blogging and Blog-Reading: Why and Why Not
(mostly focused on public affairs blogs, which is the area I most follow)

by Eugene Volokh, Professor of Law, UCLA School of Law,
and founder and coauthor, The Volokh Conspiracy,

Tips for thinking about blogs:

A. For most blogs, think magazine, not newspaper: Mostly analysis and opinion on news events (and sometimes on broader topics), rather than original news cover-age.

B. For most remaining blogs, think editor, not writer: Mostly selection of links to others’ work, rather than original material.

Why readers like to read blogs (sometimes more than they like to read a newspaper):

1. Expertise: Some bloggers know more about the subjects they cover than do most journalists.

2. Personal flavor: Blogs tend to reflect the blogger’s interests and voice, and readers often tend to feel a more personal connection with the writer than they do with journalists.

3. Original sources: Blogs tend to link to original sources—for instance, articles they criticize, court opinions they report on, and transcripts they quote.

4. Ideological compatibility: Just as some readers prefer The Nation, some The New Republic, and some the National Review, so readers would prefer news coverage from sources that they find ideologically congenial and trustworthy. For many libertarians and conservatives, few news media (especially few text news media) provide this. Blogging fills that gap.

5. Selection judgment: Some blogs, like, primarily link to others’ work, rather than posting a lot of original text of their own. In this respect, they’re like newspaper or magazine editors, choosing which stories their readers would find interesting. Sometimes, you might find that a blogger’s selection judg-ment matches your own more than your local newspaper editor’s does.

6. Coverage of topics that other media don’t cover, or don’t cover in depth: Specialty topics (e.g., developments on the right to bear arms) and genres that newspapers find to be not worthy enough (e.g., detailed criticism of articles in other media).

7. Thorough coverage of a particular issue: A blogger who’s interested in an issue may cover it in more detail than a typical newspaper would.

8. Note: Many blog readers may not read newspapers, but they read newspaper articles. Instead of reading one whole newspaper, they go to blogs (or other sites) and then read the articles—in a wide range of newspapers—that the blogs link to.

Barriers to readers’ reading blogs:

1. The chief barrier is not the fact that many blogs are boring, inaccurate, and generally not worth reading. Would you say “I don’t read books, because most books are boring, inaccurate, and generally not worth reading”?

2. Rather, the barrier is finding those blogs that interest you and are ac-curate (just as it is for books).

3. Possible solution: Blogs often link to other blogs (much more than newspapers link to other newspapers), usually with extracts from a recent post on the other blog. These links can act as recommendations that help readers find new blogs they like.

Why bloggers like to blog:

1. They enjoy spreading their ideas.

2. They enjoy having the freedom to discuss what they want to discuss, when they want to discuss it (no news hook requirements), in the length and depth they want to discuss it.

3. They enjoy the personal connection that blogging generate with their readers (much more than op-eds do, even when the op-ed is ready by many more people).

4. They may sometimes get or increase their reputation for knowledge and ar-ticulateness, which can help them in their day jobs.

Why people may not want to blog:

1. Takes time and effort.

2. Yields zero money for most, a little for some, decent money only for a very few.

3. May make one a controversial figure, which may be bad for some day jobs.

4. Off-hand remarks on controversial topics sometimes push you to spend much more effort than you ever intended on follow-ups, rebuttals, and the like.

5. Don’t blog if you aren’t willing to get (and ignore) nasty e-mail.

Saul Cornell Responds to David Hardy's Post

on the Joyce Foundation-funded symposium on the Second Amendment. He writes:

I fear David Hardy has not checked his facts. (Not that surprising given the quality of much of what he writes on the gun issue.) Here are the facts. Nicholas Johnson was invited to participate and he withdrew at the last moment. Calvin Massey participated in the conference and published an article that was pro-individual rights. Ray Diamond participated in the conference, but failed to contribute an essay. (He did not respond to e-mails and calls from my assistant or from the law review editors.) Johnson and Diamond are both on your pro-gun scholars guide. Jan Dizard another pro-individual rights scholar participated, but decided not to contribute an essay. Hardy never contacted me before making these false claims. The Fordham conference was much more inclusive that the law review issue organized by Glenn Reynolds that gave rise to the silly notion of a standard model. The goal of this conference was to present new research, not recycle the same old arguments.

UPDATE: David Hardy replies.

FURTHER UPDATE: Saul Cornell replies further:

Actually, once again Hardy has not bothered to check the facts. I did ask William Van Alstyne to participate and he said no. He also ignores the fact that Johnson, Diamond, and Dizard were all given the chance to write for the symposium. Of the other people he lists I am not aware that any of them has done significant new research on the topic. How many times do we need to see the same old arguments made and the same sources quoted? I did not include the stalwarts of the collective rights side either. The goal of the Fordham conference was to move the debate forward and showcase new scholarship, not rehash the same old stuff.

Supreme Gerontocracy: Wall Street Journal Op-Ed on Supreme Court Term Limits.--

Steven Calabresi and I have a Friday Wall Street Journal op-ed advocating 18 year term limits for Supreme Court Justices, which anticipates the Duke conference on ours and other such proposals that will be held on Saturday.

Our op-ed is now online at (quick, free registration required).

The draft of our manuscript can be downloaded from our page at SSRN, where it is posted along with an abstract.

Here is an excerpt from the op-ed in Friday's Wall Street Journal:


The case for reasonable term limits on the Supreme Court.

It has been almost 11 years since the last vacancy opened up on the U.S. Supreme Court. The current group of justices has served together for longer than any other group of nine justices in American history. What is more, the average tenure of justices has gotten a lot longer in the last 35 years. From 1789 until 1970, justices served an average of 14.9 years. Those who have stepped down since 1970, however, have served an average of 25.6 years. This means justices are now staying more than 10 years longer on average on the Supreme Court than they have done over the whole of American history.

The reason for this is not hard to find. Recently, the average age at time of appointment to the Court has been 53, which is the same as the average age of appointment over the rest of American history. The retirement age, however, has jumped from an average of 68 pre-1970 to 79 for justices retiring post-1970. Two of the current justices are in their 80s, two in their 70s, and four more between 65 and 69. Only one, Clarence Thomas, is younger than 65. The current Court is nothing less than a gerontocracy—like the leadership cadre of the Chinese Communist Party.

Indeed, David Garrow's scholarship has shown that decrepitude has been a problem with the last 10 justices to retire, those who left the bench from 1971-94. By some accounts, half of the last 10 retirees have been too feeble or mentally incompetent to participate fully in deliberating and deciding cases—or even in some instances, to stay awake during the few mornings of oral arguments. While mental incompetence was rare in the first century on the Court, since 1898 it has become a regular occurrence for justices who serve more than 18 years; by one estimate about a third were mentally incompetent to serve before they finally retired.

UPDATE (Sunday): I edited this post to add a link for the free, online version.

Related Posts (on one page):

  1. For the Court, Bush will pick a minority or a woman.--
  2. Supreme Gerontocracy: Wall Street Journal Op-Ed on Supreme Court Term Limits.--

Thursday, April 7, 2005

Too Good to Be Admitted: This practice is scandalous. Or at least it should be.
The Chronicle of Higher Education Responds:

Bill Horne, the managing editor of the Chronicle writes, apropos Jim Lindgren's post below:

The Chronicle of Higher Education has collected all of its coverage of the controversy over Michael Bellesiles' "Arming America: The Origins of a National Gun Culture" -- including an open Colloquy on the controversy and letters to editor -- and posted it here.

The link is free to subscribers and non-subscribers alike. We invite readers to judge our coverage for themselves.

Related Posts (on one page):

  1. The Chronicle of Higher Education Responds:
  2. I spoke at Wisconsin on Wednesday and will speak at Duke on Saturday.--
Still More on the Schiavo Memo:

Mickey Kaus (Slate), no Republican loyalist, writes (go to his post for many links):

Non-fake but inaccurate! WaPo's Mike Allen reports that the now-famous Schiavo "talking points" memo came from freshman GOP senator Mel Martinez's office. So that mystery is cleared up. The memo wasn't a fake. But Allen doesn't come off looking too good in this latest account. a) The memo was apparently not "distributed to Republican Senators by party leaders," as Allen's initial story, sent out through the Post news service to other papers, reported. It was--at least judging from today's account--handed to one Democratic senator, Tom Harkin, by one freshman Republican senator (who isn't in the party leadership); b) Allen doesn't explain why he told Howie Kurtz he "did not call them talking points or a Republican memo" when he had in fact done just that in the news service draft; c) Even the later, more "carefully worded" account Allen published in the Post itself was apparently wrong. Allen wrote

In a memo distributed only to Republican senators, the Schiavo case was characterized as "a great political issue" ...

This is almost the reverse of what Allen now reports. We know the memo was distributed to at least one Democratic senator. We don't know whether it was distributed to any Republican senator other then the senator whose staffer wrote it (although it's hard to believe it wasn't given to at least some other GOP lawmakers). Allen's story left the now-unsupported impression that Republican senators were conspiratorially reading the memo amongst themselves; d) ... [W]hatever legitimate valence Allen's 'memo' story had depended almost entirely on the impression that the memo revealed and represented the strategy of the GOP leaders who pushed the Schiavo bill. If all that was involved was a staff memo Martinez gave to Harkin, Allen's story was way out of whack. The memo wasn't close to being worth the play it got in WaPo or in Douglass' report. (It's not worth the current Senate investigation either. What's the crime--politicians considering politics?) ... Update: Reader V.H. notes that Allen refers to Martinez as "the GOP's Senate point man on the [Schiavo] issue." The Philadelphia Inquirer's Steve Goldstein named him as one of three point men (along with Frist and Santorum). That's a point in Allen's favor, making Martinez more of a Republican "leader" on this particular issue at least. But he's still low on the GOP totem pole. Allen still lacks evidence that Martinez even shared the memo with other Republicans, much less that it reflected the thinking of any other, actual "party leaders." And it still wasn't a scandal if it did. ... P.S.: Did GOP Congressional bigshots really care much about the views of Florida Democrat Bill Nelson, whom the memo mentions prominently? That seems more a Martinez-centric concern. . . .

How Much is a Million Gigabytes?

Slate reports that the Internet Archive's "main server farm" holds "half-million gigabytes of compressed and indexed pages." A thousand gigabytes — or 1,024 gigabytes, to be precise — is of course a terabyte, which is roughly 1.1 trillion bytes. How much is 1,024 terabytes, or 1,048,576 gigabytes? I had to look this up, and I'm pleased to report that it is a petabyte. 1,024 times that is an exabyte, 1,024 times that is a zettabyte, and 1,024 times that is a yottabyte.

No, of course I'm just joking. Who ever heard of such a silly word? Obviously, the proper meanings for all these terms are:

  1. A trillion bytes = 1 trilobite.

  2. One terabyte = the amount of data that terrifies you to think about.

  3. One petabyte = a tasty dog treat.

UPDATE: See also here and here.

Volokh Conspiracy Exchange Published in Drake Law Review:

Our former guest-blogger Cass Sunstein and our own Randy Barnett have published a revised version of their on-blog exchange about Cass's "Second Bill of Rights" in 53 Drake Law Review 205.

Update on the Schiavo Memo: Despite lots of speculation in the conservative blogosphere that the GOP Schiavo memo was a fake planted by Democrats, it turns out that the memo is real. The Washington Post reports today:
  The legal counsel to Sen. Mel Martinez (R-Fla.) admitted yesterday that he was the author of a memo citing the political advantage to Republicans of intervening in the case of Terri Schiavo, the senator said in an interview last night.
  Brian H. Darling, 39, a former lobbyist for the Alexander Strategy Group on gun rights and other issues, offered his resignation and it was immediately accepted, Martinez said.
New Euphemism:

Heard on local NPR station WAMU: "Most murders in DC are caused by 'loosely-knit neighborhood groups.'"

You mean, ummh, gangs?

What Planet is Columbia Professor Rashid Khalidi on?

From a Columbia "teach-in" on "academic freedom" (which somehow involves "the plight of Palestinian refugees" and the "corporatization of America):

“There is a nationwide campaign against the autonomy of universities in the broadest sense ... based on the utterly spurious assumption that universities are stronghold of radical and liberal beliefs,” charged Khalidi, the Edward Said professor of Arab studies,* loudly banging on the podium with his fist.

*The very fact that Khalidi is the "Edward Said professor of Arab Studies" should tell you something. Given that Said had no academic training in Arab Studies, was hired as an English and Comparative Literature professor, spent most of his later academic years not doing research in his field, but as a pro-Palestinian propagandist who thought the PLO was too moderate, lied about his origins (claiming to be a Palestinian refugee from Jerusalem when he was actually raised in a wealthy Cairo family), and yet somehow became one of Columbia's most respected and feted professors can't exactly be explained by Columbia's right-wingedness.

Light Blogging Ahead: Although these things can be hard to predict, chances are pretty good that I won't be doing much blogging in the next two weeks. I'll be out of town a bunch, with speeches at a Fordham Law Review symposium in New York tomorrow, the Computers, Freedom, and Privacy conference in Seattle next week, and a Harvard Journal of Law & Technology symposium in Cambridge the week after that. I'll do my best to fit in some posts, especially now that some of the Patriot Act issues are heating up, but I'm just not sure I'll have the time.
Lots of Good Stuff Up Recently over at CrimLaw.
I spoke at Wisconsin on Wednesday and will speak at Duke on Saturday.--

I'm off later today to Duke for this weekend's conference on Term Limits for Supreme Court Justices, where Steve Calabresi and I will be presenting our paper advocating a constitutional amendment for 18 year term limits.

On Wednesday, I presented at the University of Wisconsin on the scandal involving Michael Bellesiles' Arming America. One of my favorite bloggers, Ann Althouse, was there, as was her colleague Gordon Smith, whom I hadn't met before. Both were very charming and interesting, and every seat in the room was taken. Ann blogged about the talk on Althouse and Gordon blogged about it on Conglomerate. Glenn links to Gordon.

Gordon reviews some of my arguments and mentions a Wonkette angle. As I told the group, Ana Marie Cox (Wonkette) was the reporter assigned by the Chronicle of Higher Education to do an in-depth story on Bellesiles in late August/early September 2001. In 2001, the Chronicle was vigorously defending Bellesiles and was willing to print as fact ridiculous stories that he told them. Much later a Chronicle reporter privately apologized to me, and said that they were taken in and had gotten the story all wrong.

At the time, however, they were Bellesiles's strongest supporters in the press. Cox is very smart and well educated, so despite the Chronicle's strong editorial bias, I decided to try to get her to examine the evidence, not just guess at what was going on, as most historians were doing. The Boston Globe and the National Review were also working on major stories at the time. The Globe reporter actually went to Vermont to check out our claims and won a prize for confirming our research.

I sent Cox copies of probably over 100 records that Bellesiles cited so that she could see a dozen examples supporting each and every major claim that we were making in our scholarly article, at least where the documents Bellesiles claimed to have read actually were in existence. Cox interviewed me several times for extended periods of time, as she almost certainly interviewed Bellesiles as well. I believe that Cox was beginning to understand the major problems with the book, though she never actually said that to me. Suddenly, Cox called me crying, saying she had been fired and taken off the story for the rest of her time there. Although she said that the`stated reason was that they were unhappy with a previous story, I suspect that she didn't actually believe this, nor would that have necessitated removing her from the Bellesiles story before she left the Chronicle. I strongly suspected that Cox was fired because she was getting too close to writing the truth about Bellesiles.

So then the Chronicle took over Cox's story and wrote a pro-Bellesiles story (including swallowing Bellesiles's ludicrous claim that someone had hacked his website, removing true data that did NOT support his book, replacing it with phony data that did support the book, including listing a book of 18th century pornography in a probate inventory of assets). Unfortunately for Bellesiles, I had downloaded his website the day before the weekend he claimed to have discovered the porn, the weekend on which he claimed to have discovered the porn, and the Monday morning AFTER the weekend on which he claimed to have discovered the porn. Indeed, some of the probate lists were still up on his site even after the Chronicle ran its story. Guess what? No porn listed. Emory, which obviously could track uploads to his site, did an internal investigation, which apparently went just as badly for him as all the other internal and external Emory investigations.

The Chronicle story also claimed falsely that I was unavailable for comment, even though I had spent perhaps 90 minutes being interviewed several times by Cox in the 2-3 weeks that the story was in development, and no other reporter had left any messages for me, a fact that the Chronicle reporter whose byline appeared on the story admitted to me (though the new reporter said she called). Cox apologized profusely for the falsehood, but she had been pulled from the story, so there was nothing she could do. I had hoped that the Chronicle would correct their falsehood about not having talked to me, but instead they repeated it again in response to a letter to the editor from Joyce Malcolm. They also strategically edited out of Randy Barnett's very short letter to the editor his sentence pointing out how unlikely it was that Bellesiles would post true data NOT supporting Arming America and then a hacker would replace it with false data supporting Arming America.

Since my mention of Cox (Wonkette) was flagged on two blogs today, I thought I would fill in the background story. You can read my early 2002 account of the scandal here.

UPDATE: Eurgene has kindly posted a response from Bill Horne, managing editor of the Chronicle. I'll have more on this when I get a chance. Also, Ana Marie Cox emailed and we spoke briefly. She was generally supportive of my story but wanted to note that she was not actually fired from the Chronicle. She was told she would be fired, and then she resigned.

Related Posts (on one page):

  1. The Chronicle of Higher Education Responds:
  2. I spoke at Wisconsin on Wednesday and will speak at Duke on Saturday.--

Wednesday, April 6, 2005

Joyce Foundation and Funding of Pro-Gun-Control Scholarship

David Hardy has a report. I am not claiming that this is unethical, if the funding is disclosed, as it was. I tend to think symposia should cover a broad range of viewpoints (not as a matter of ethics, but as a matter of stimulating academic debate, and improving the quality of the pieces within the symposium), but others disagree. But in any event, it's helpful to know that this stuff is going on.

Patron Saint of Blogging:

Stephen Bainbridge nominates some possible candidates. But why not a muse of blogging instead?

Prawfsblawg: My friend Dan Markel has started a new group blog for youngish law professors, PrawfsBlawg. Dan will start teaching this fall at Florida State, and he has been joined so far by Ethan J. Leib, who will start this fall at Hastings. Please join me in welcoming them to the blogosphere.
Fill in the Blank:

___ John Paul John Paul John Paul.

Thanks to the puzzle's author, my former student Kevan Choset.

More on Tomatoes, Fruits, and Vegetables:

A concrete illustration of yesterday's argument: Your spouse asks you to buy some fruits at the supermarket. You come back with a tomato, a cucumber, a green bell pepper, a zucchini, and a pumpkin.

Will the spouse think that you're smart? Or a smart-followed-by-something-else?

What are the Rules on Evolution?

Paul Krugman explains that the reason that there aren't more conservative scientists is because they are skeptical of evolution (a caricature, as Orin notes, of course, but accept it for a moment), whereas the left believes in evolution. "Thirty years ago, attacks on science came mostly from the left; these days, they come overwhelmingly form the right, and have the backing of leading Republicans."

Yet when Lawrence Summers invokes evolutionary theory as a hypothesis to explain sex differences with respect to the performance of female scientists, he was pilloried--by the left.

I'm getting a bit of a headache here trying to keep track of the rules on when it is or is not appropriate to invoke evolutionary theories in the modern academy. Is there a flowchart or scorecard or something to which I can refer when in doubt?

Incidentally, my impression is that contra Krugman, most of those who are consistent evolutionary analysts tend to be libertarians and conservatives (often Hayek-influenced).

Related Posts (on one page):

  1. What are the Rules on Evolution?
  2. Kerr Contra Krugman:
  3. Krugman on Conservatives in Academia:
A House Divided, and Strong:

What a terrific column by David Brooks in yesterday's NY Times. Spot on, in tone and substance. His main point (inartfully paraphrased -- Brooks can write awfully well) is: the "key to conservatives' success" is that there's been intense argument, among conservatives, about Big Questions, and First Principles: "the order of the universe, and how the social order should reflect the moral order," about the ideas of Burke, Aquinas, Hayek, Hamilton, and Jefferson. I think he's right. The left hasn't had that comparable debate about its First Principles since the 30s -- which was, not coincidentally, just as the left was poised to become the country's dominant political philosophy . One corollary to all this is the irony that the drive for 'political correctness' is (and is slowly being recognized as being) destructive of ideas coming from the left, not of those (its ostensible targets) on the right; the inability of people on the political left to question first principles -- see L'Affaire Larry Summers -- is part and parcel of the whole phenomenon Brooks describes so well.

Tuesday, April 5, 2005

Rick Hasen on Blogging and Campaign Speech Regulations:

Rick has an interesting column on this today; I'm not sure I entirely agree with it, but I thought I'd pass it along.

San Francisco Regulating Bloggers?

There's been much talk recently about a San Francisco ordinance that might regulate campaign-related speech by bloggers (see this InstaPundit post for some pointers). The proposed text of the March 30 version, the version that I think is the latest draft, is here. I've held off on blogging about this because I wanted to figure out just what the ordinance means, and it's been surprisingly hard. I think I have enough to express at least a tentative opinion, though, so here it is.

(1) The ordinance would require that every "electioneering communication" include a statement that says "paid for by" followed by the name of the person who paid for the communication. If the statement is in "printed" as opposed to "spoken" form, it must be in at least a 14-point type; presumably Web sites would be treated as "printed" material.

This means that on our blog we'd have to say that the communication is paid for by whoever funds our blog (right now, since hosting fees are paid for by the people, presumably that's what we'd have to say). On an anonymous blog that's funded by the blogger, the blogger-owner would have to reveal his identity. And imagine what would happen if other jurisdictions followed San Francisco's lead, but required different forms of disclosure. (It's true that for many posts the marginal cost is zero or near zero, but I think that under any sensible accounting system, one would have to say that if the blog costs money to host, someone is paying for the communications on the blog.)

(2) "Electioneering communication" is defined as "any communication," including an "internet . . . communication" that "refers to a clearly identified candidate for City elective office or a City elective officer who is the subject of a recall" and "is distributed within 90 days prior to [the election]" "to 500 or more individuals who are registered to vote or eligible to register to vote in the election." So far, this suggests that blog posts which are likely to have been seen by more than 500 eligible voters in San Francisco are covered, though how one would prove such a thing?

(3) However, "The term 'electioneering communication' shall not include . . . communications that constitute expenditures or independent expenditures under this Chapter." What does that mean? Well, unfortunately, the relevant Chapter doesn't define "independent expenditure," but California Government Code sec. 82031 — presumably the best source of such a definition — does:

"Independent expenditure" means an expenditure made by any person in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure, or taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee.

(It's possible that the "or taken as a whole and in context" portion is unconstitutional, given a recent appellate decision, but let's set that side for now.)

If one follows this definition, then if your post advocates a candidate's election or defeat, you need not disclose the funding source, but if it mentions a candidate without expressly or by unambiguous implication urging his election or defeat, then you must have a disclosure statement. That sounds to be contrary to the proposal's likely purpose, but that's what the text seems to call for: The disclosure requirement applies to mentions of a candidate's name, but not to express or unambiguously implied advocacy (since the latter is the exempted "independent expenditure"). (Note that the definition of "expenditure" in the California Government Code — essentially "a payment," with no further qualifiers — is so broad as to be unhelpful in interpreting the proposed new ordinance.)

(4) But wait, there's still more! "The term 'Electioneering Communication' [also] shall not include . . . news stories, commentaries or editorials ditributed through any newspaper, radio station, television station, or other recognized news medium unless such news medium is owned or controlled by any political party, politically committee or candidate." So if blogs are a "recognized news medium," then they're categorically exempted.

But "recognized" by whom? What makes a medium "recognized"? What even makes it a "news medium"? Is The New Republic — neither a newspaper nor an organ primarily focused strictly on news (its strength is analysis) — a "recognized news medium"? How about The newsy Drudge Report? The somewhat less newsy Instapundit? The less newsy Volokh Conspiracy?

In fact, the 1976 Supreme Court case Hynes v. Mayor of Oradell struck down as unconstitutionally vague an ordinance that also relied on an undefined concept of "recognition." The ordinance regulated soliciting for a "recognized charitable cause," and the Court correctly pointed out that people couldn't tell what made a cause "recognized"; the same applies here, I think.

(5) It does seem that the ordinance's reporting requirements — which are considerably more burdensome than the disclosure requirements — probably won't be triggered by most blogs, since they apply only to people who spend at least $1000 in a year on "electioneering communications" related to San Francisco elections. But the disclosure requirements, which do indeed pose a nontrivial burden (see item 1), apply even if you don't spend $1000 on the blog.

* * *

So the bottom line is that I can't tell what the ordinance as currently drafted really means. Now some of the features I describe may well be unintentional, and perhaps they'll be clarified in future versions of the ordinance. But the version that I have seems to pose a serious risk of imposing nontrivial regulations on bloggers who mention San Francisco candidates before an election — and, I think, violates the First Amendment on vagueness grounds.

UPDATE: Chris Nolan says the Board of Supervisors is planning to substitute a revised version that is supposedly better than the original version. (If anyone has a pointer to it, please e-mail me.) But the way it's better, in theory, is that blogs are exempted as instances of a "recognized news medium":

"Blogs are to be exempt," said Supervisor Sophie Maxwell, specifically citing the phrasing that cuts "news stories, commentaries or editorials distributed through any newspaper, radio station, television station or other recognized news medium unless such news medium is owned or controlled by a political party" out of the ordinance. "The intent of the legislation is to cover blogs as a recognized news entity."
But if the only textual hook here in the ordinance is the vague -- as I argued, likely unconstitutionally vague -- term "recognized news medium," then this isn't much of an improvement. I like that the supervisors are saying they don't intend to cover blogs; courts sometimes pay attention to such legislative history. But the text that the legislators enacted is often (probably usually) more important than what they said while enacting it. And leaving blogger free speech at the mercy of judicial interpretations of "recognized news medium" -- and decisions whether some kinds of blogs are really news media or actually opinion media or commentary media or whatever else -- strikes me as pretty troublesome.

In any case, I hope to see the new version of the bill.

Google Satellite Maps: Google is now offering a new satellite mapping feature available on Google Maps. It lets you see satellite pictures of particular locations; for example, here is a photograph of George Washington University Law School in Washington, DC. This story about the service focuses on the privacy concerns, which seem relatively modest now but will become quite troubling if and when the resolution of the maps improves.

  Notably, Google has blacked out or blurred some areas with national security importance. For example, this picture of the White House has the contour of the buildings blacked out. Interestingly, Congress's image is blurred while the Supreme Court's is clear: see the picture of both here.
Papal Names:

My sister-in-law Hanah Metchis Volokh points to this this post on when various papal names were last used. My favorite candidate name for the new pontiff: Pope Lando II.

Supreme Court Puzzle:

Justice X uses Y more often than the other Justices do, and the name of Y is closely related to X's ethnicity. What are X and Y? (Note that the answer requires pretty close familiarity with the Court's work product. And, yes, I know there are several possible answers, of various levels of seriousness. I think mine is the best, though, so there.)

The Ethics of Expedited Review: Over at The Conglomerate, Gordon Smith offers thoughts on the ethics of expedited review of law review articles. My own view is that the standard should be author good faith: authors should only request an expedited review if they genuinely believe it is likely they would accept an offer at the expedited journal over the preexisting offer. I also think that staging is considered ethical; in my experience, journal editors expect it. Journals that don't want authors to try to shop up following an expedited review do what the Columbia Law Review does: they have a very short time period in which to decide on the offer, such as Columbia's one hour.

  UPDATE: One way of solving this problem Gordon identifies would be to have each author submit a ranking preference before the article goes out, such that the author is locked in to accepting the offer from the journal that they have ranked highest on their list. The problem with this is that preferences may not be fixed. Variables such as copyright policies, the timing of the editing process, whether the article will be published a lead article or essay, whether the journals wants to publish responses to the article, and many other factors can influence an author's preferences. For the most part, the author has no idea of these factors until the offer comes through, making ex ante ranking difficult.
Is the Tomato a Fruit or a Vegetable?

OpinionJournal's Political Diary, commenting on a push to name the tomato the New Jersey state vegetable, opines that "by scientists at least, the tomato continues to be regarded as a fruit, not a vegetable." I've heard lots of others say the same.

I don't think that's quite right; it seems to me that the tomato is both a fruit and a vegetable. It is indeed, botanically speaking, a fruit, a term that's technically defined as "The ripened ovary or ovaries of a seed-bearing plant, together with accessory parts, containing the seeds and occurring in a wide variety of forms." But it's also a vegetable, defined as "[t]he edible part of" "[a] plant cultivated for an edible part, such as the root of the beet, the leaf of spinach, or the flower buds of broccoli or cauliflower." These are from the American Heritage Dictionary, not a scientific work, but my sense is that these are indeed the official definitions.

Now naturally in lay English, the matter is different: Apples aren't seen as vegetables, and the categories of vegetable and fruit are generally mutually exclusive. But in lay English, the distinction isn't ripened ovary vs. not a ripened ovary, but rather dessert vs. non-dessert, as the Supreme Court astutely captured in an 1893 import duties case (which OpinionJournal does quote):

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes as fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds, in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand in speaking generally of provisions, beans may well be included under the term 'vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced."

Bring your library to life:

Brad DeLong explains why life will never be dull. Here is just one bit:

As long as I think of these as "texts," they are dry and boring. But there is a key to making them exciting: to remember that they are not texts: they are people--people urgently trying to talk to me, to tell me something very important that they think I desperately need to know...

When evening comes Niccolo Machiavelli enters his personal library. There he talks to his friends--his books, or rather those who wrote the books in his library, or rather those components of their minds that are instantiated in the hardware-and-software combinations of linen, ink, and symbols of Gutenberg Information Technology. They are 'ancient men' who receive him 'with affection,' and for four hours he 'ask[s] them the reason for their actions; and they in their kindness answer me; and... I do not feel boredom, I forget every trouble, I do not dread poverty, I am not frightened by death...'

Kerr Contra Krugman: I don't beleive Orin was unfair to Krugman in his post below. Contrary to Kleiman's claim, Krugman does attack "conservatives" generally. In the last three paragraphs he specifically accuses "conservatives" of Lysenkoism and of seeking to "chill" scholarly inquiry. Those seem like pretty stiff charges to me.

Krugman draws a parallel between the lack of conservatives in the humanities with the lack of Republicans in the sciences, and blames the disparities, at least in part, on "conservatives" "themselves." Why is it partly their fault? Because of conservatives' aforementioned Lysenkoism and Republicans' alleged preference for "revelation, not research." Yes, Krugman says Republicans do things to alienate academics. But he also attacks the academic orientation of "conservatives" as such. Indeed, he has to do both to make his point, as many of the studies of ideological bias in academia find that liberals outnumber conservatives in academia, and not simply that Democrats outnumber Republicans.

Meanwhile, while Krugman thinks those on the Right are anti-intellectual, his colleague David Brooks finds the head of a liberal think tank cannot name a favorite philosopher.
Krugman on Conservatives in Academia: In today's New York Times, Paul Krugman considers why there are so few conservatives in academia. [but see update below] Krugman's hypothesis, in a nutshell: conservatives don't fit in the academic world because they are anti-scholarship creationists who get their truth from "revelation, not research." (A special note for our readers in the Upper West Side of Manhattan and Cambridge, Massachusetts: if you ever happen to meet a conservative, you will quickly realize that Krugman's perspective is what they call a "caricature.")

  UPDATE: Mark Kleiman has a rather odd and over-the-top response to this post, but it's odd and over-the-top enough to make me realize that I mischaracterized Krugman's argument. Upon rereading Krugman's piece, I now recognize that the second half of it shifts from the question of why conservatives don't end up in academia — which seems to be the focus of the first half — to why existing academics don't tend to vote for Republican candidates. The two questions have a connection, of course, but are different in many ways. The first looks at who enters a group over time, and the second looks at why people in a fixed group do particular things. In any event, Kleiman appears to see the argument in the second half of Krugman's piece as "the" argument, and I gather he thinks I am engaging in foul play because I failed to note that argument (which Kleiman agrees is a weak argument). I just missed the switch, however, and therefore missed the distinction between the two arguments. For the record, Krugman seems to be making both arguments, or perhaps a mushy mix of the two, but definitely is making the latter. My apologies for the Orwellian "abusive misrepresentation," er, whatever you call the mischaracterization I offered the first time.

  ANOTHER UPDATE: Kleiman has added an update and appears to remain quite upset, but at this point I'm not sure what he is upset about. As best I can tell, he is reading in to my post all sorts of things he has read elsewhere and wants me to be claiming so he can accuse me of all sorts of things he finds incorrect. I don't think I am making any of the claims that he thinks I am making, however, so I think I'll scratch my head and pass this one on to Juan.

  YET ANOTHER UPDATE: Continued off-line discussion with Mark Kleiman has helped me understand the source of his overreaction. Upon re-reading Kurgman's piece a few more times, I can see that my initial characterization was wrong: Krugman's piece does not claim conservatives are "conservatives don't fit in the academic world because they are anti-scholarship creationists who get their truth from 'revelation, not research.'" It's not a very clear column, but on balance I think it is right that Krugman's piece is best read as making a point about the Republican party leadership, not about conservatives in general. My apologies for the misreading.

Related Posts (on one page):

  1. What are the Rules on Evolution?
  2. Kerr Contra Krugman:
  3. Krugman on Conservatives in Academia:

Monday, April 4, 2005

Searches and Seizures In A Digital World: My new paper, Searches and Seizures In A Digital World, was recently accepted for publication in the Harvard Law Review and is now available as a draft in electronic form. Here is the abstract:
  The new frontier of the Fourth Amendment is the search and seizure of computer data. Created to regulate entering homes and seizing physical evidence, the Fourth Amendment's prohibition on unreasonable searches and seizures is now called on to regulate a very different process: retrieval of digital evidence from electronic storage devices. While obvious analogies exist between searching computers and searching physical spaces, important differences between them will force courts to rethink the basic meaning of the Fourth Amendment's key concepts. What does it mean to "search" computer data? When is computer data "seized"? When is a computer search or seizure "reasonable"?
  This article offers a normative framework for applying the Fourth Amendment to searches of computer data. It begins by exploring the basic differences between physical searches of physical property and electronic searches of digital evidence. It then proposes an exposure theory of Fourth Amendment searches: any exposure of data to an output device such as a monitor should be a search of that data, and only that data. The exposure approach is then matched with a rule for computer seizures: while copying data should not be deemed a seizure of that data, searches of copies should be treated the same as searches of the original. In the final section, the article proposes a rethinking of the plain view exception in computer searches to reflect the new dynamic of digital evidence investigations. The plain view exception should be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice. Tailoring the doctrine in light of the new realities of computer investigations will protect the function of existing Fourth Amendment rules in the new world of digital evidence.
  I welcome comments from all sources, but would be particularly interested in thoughts from techies; the article is premised on the factual differences between physical searches and the computer forensics process, and I want to make sure that my description of the tech side matches the real world.

  You can download a copy here; just scroll down and click on the download button. Please direct comments to okerr (at sign)
War Materiel:

From the Wall Street Journal:

"Getting rid of Office wasn't an option," [a program manager at the Pentagon] notes. "You can't run a war without PowerPoint."

Thanks to my friend Haym Hirsh for the pointer. I express no views on whether the statement is accurate; I just think it was interesting enough to pass along.

It Seems A Little Late for this, although I like the idea of using Grokster to exchange mp3s of Supreme Court arguments. It might backfire, though -- doesn't it implicitly acknowledge that Grokster as used today is illegal? Thanks to Crescat for the link.
Searching Electronic Storage Devices Incident to Arrest: Over at CrimProf, Jack Chin asks if the police can access the contents of person's cell phone incident to a valid arrest. By way of background, the Supreme Court has held that the police can search a person and any containers on his person at the time of arrest; I gather Jack is asking whether the police can do the same with electronic storage devices such as cell phones.

  The answer, at least based on existing cases, appears to be yes. Here is what I wrote on the topic back when I was at the Justice Department:
  Due to the increasing use of handheld and portable computers and other electronic storage devices, agents often encounter computers when conducting searches incident to lawful arrests. Suspects may be carrying pagers, cellular telephones, Personal Digital assistants (such as Palm Pilots), or even laptop computers when they are arrested. Does the search-incident-to-arrest exception permit an agent to access the memory of an electronic storage device found on the arrestee's person during a warrantless search incident to arrest? In the case of electronic pagers, the answer clearly is "yes." Relying on Robinson, courts have uniformly permitted agents to access electronic pagers carried by the arrested person at the time of arrest. See United States v. Reyes, 922 F. Supp. 818, 833 (S.D.N.Y. 1996) (holding that accessing numbers in a pager found in bag attached to defendant's wheelchair within twenty minutes of arrest falls within search-incident-to-arrest exception); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995); Yu v. United States, 1997 WL 423070, at *2 (S.D.N.Y. Jul. 29, 1997); United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (dicta). See also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (same holding, but relying on an exigency theory).
  Courts have not yet addressed whether Robinson will permit warrantless searches of electronic storage devices that contain more information than pagers. In the paper world, certainly, cases have allowed extensive searches of written materials discovered incident to lawful arrests. For example, courts have uniformly held that agents may inspect the entire contents of a suspect's wallet found on his person. See, e.g., United States v. Castro, 596 F.2d 674, 676 (5th Cir. 1979); United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989) (citing cases). Similarly, one court has held that agents could photocopy the entire contents of an address book found on the defendant's person during the arrest, see United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), and others have permitted the search of a defendant's briefcase that was at his side at the time of arrest. See, e.g., United States v. Johnson, 846 F.2d 279, 283-84 (5th Cir. 1988); United States v. Lam Muk Chiu, 522 F.2d 330, 332 (2d Cir. 1975). If agents can examine the contents of wallets, address books, and briefcases without a warrant, it could be argued that they should be able to search their electronic counterparts (such as electronic organizers, floppy disks, and Palm Pilots) as well. Cf. United v. Tank, 200 F.3d 627, 632 (9th Cir. 2000) (holding that agents searching a car incident to a valid arrest properly seized a Zip disk found in the car, but failing to discuss whether the agents obtained a warrant before searching the disk for images of child pornography).
  The limit on this argument is that any search incident to an arrest must be reasonable. See Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997). While a search of physical items found on the arrestee's person may always be reasonable, more invasive searches in different circumstances may violate the Fourth Amendment. See, e.g. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1269-71 (7th Cir. 1983) (holding that Robinson does not permit strip searches incident to arrest because such searches are not reasonable in context). For example, the increasing storage capacity of handheld computers suggests that Robinson's bright line rule may not always apply in the case of electronic searches. When in doubt, agents should consider whether to obtain a search warrant before examining the contents of electronic storage devices that might contain large amounts of information.
  Of course, this doesn't mean that a police officer is free to download a defendant's nude pictures from her cell phone on to his personal PDA at the time of her arrest, which is what allegedly happened in a recent case. The search of the cell phone itself may be allowed under existing Fourth Amendment caselaw, but the officer certainly deserves being investigated if he did in fact abuse his law enforcement authority and take copies of the defendant's photographs for non-official use.
Interesting Vote Line-Up: In a decision announced this morning, Johnson v. United States, the Supreme Court decided by a 5-4 vote that the statute of limitations that sets when a federal prisoner can challenge his sentence if it was enhanced based on a since-vacated prior state conviction starts to run when the prisoner receives notice that the state court conviction was vacated — provided that the prisoner exercised due diligence in state court after entry of judgment in the federal case.

  Okay, so it's not exactly a hot button issue. Still, the vote line-up was rather unusual: Justice Souter wrote the majority opinion joined by Chief Justice Rehnquist, Justice O'Connor, Justice Thomas, and Justice Breyer. Justice Kennedy wrote the dissenting opinion, which offered a more defendant-friendly approach that did not require due diligence by the prisoner, and was joined by Justice Stevens, Justice Scalia, and Justice Ginsburg.
Blind Grading of Law School Exams: Christine Hurt gives a lawprof's perspective over at The Conglomerate.
Speeches This Week in Massachusetts and Texas: This week, I will be giving three talks on "Medical Cannabis, The Commerce Clause & Arguing in the Supreme Court":

Tuesday (April 5th) at Bridgewater State
Thursday (4/7) at Texas Tech
Saturday (4/9) at the BU Libertarian Society
I describe the program for the BU Liberty Conference here. Registration (free) is here.

Other speeches in April:
Thursday of next week (4/14) the University of Arizona (Ashcroft v. Raich)
Monday (4/25): Quinnipiac (Ashcroft v. Raich)(making up for speech that was snowed out)
Wednesday (4/27) at The Social Law Library, in Boston (on my book Restoring the Lost Constitution: The Presumption of Liberty).

Why You Should Read My Book Anyhow: A Reply to Trevor Morrison
Grading Justice Kennedy: A Reply to Dale Carpenter

Related Posts (on one page):

  1. Speeches This Week in Massachusetts and Texas:
  2. Defending My Book:
  3. Grading Justice Kennedy:
  4. Harken Ye Libertarians: Come to Boston!

Sunday, April 3, 2005

A Taxonomy of Privacy: My friend and colleague Daniel Solove has a new and interesting paper currently available in draft form, A Taxonomy of Privacy, forthcoming in the University of Pennsylvania Law Review. The paper examines and classifies the different types of legal claims that are placed under the umbrella term of "privacy," focusing on the specific harms involved in each type of claim. As one who has often found the word "privacy" to shed more heat than light in legal debates, I found the paper pretty interesting. From the introduction:
  Often, privacy problems are merely stated in knee-jerk form: "That violates my privacy!" When we contemplate an invasion of privacy – such as having our personal information gathered by companies in databases – we instinctively recoil. Many discussions of privacy appeal to people’s fears and anxieties. What commentators often fail to do, however, is to translate our instincts into a reasoned articulable account of why such a privacy problem is harmful. When people claim that privacy should be protected, it is unclear precisely what they mean. This poses a difficulty when making policy or resolving a case because lawmakers and judges have a hard time articulating the privacy harm. . . .
  In this article, I provide a framework for how the legal system can come to a better understanding of privacy. I aim to develop a taxonomy that focuses more specifically on the different kinds of activities that impinge upon privacy. I endeavor to shift focus away from the vague term “privacy” and more toward the specific activities that are posing privacy problems. Although various attempts at explicating the meaning of “privacy” have been made, few have attempted to identify privacy problems in a comprehensive and concrete manner.