I've been doing some reading on the debate about the incidence of false rape reports. I've looked at a lot of studies on this, and hope to blog some more about it later (short summary: estimates range from under 2% to 40+%, though I have no opinion about which is right). But in the meantime, I thought I'd mention one observation that may be helpful for thinking about other debates as well.

Many people who believe that false rape reports are a tiny fraction of all rape reports argue that very few women would make such false reports. The common line is that women don't lie about rape, which must really mean that very few women lie about rape.

But even if this is true — and I strongly suspect that it is — this is entirely consistent with the possibility that a substantial fraction of rape reports are false. Let's say, for instance, that only 2% of all women age 16-19 would ever lie about rape; and that any particular year, only 2% of that tiny fraction actually do falsely report a rape to the police. So 98% of all women (including relatively young and not very mature women) would never lie about rape, and even of those who might under the right circumstances, most never will. (I use the 16-to-19 age group because the risk of rape is highest there; the same analysis could apply, though, to other age groups.)

There are, however, about 8 million women in the 16-to-19 age group in the U.S., and 2% x 2% x 8 million = 3200 false rape reports per year. The National Crime Victimization Survey (2002 data, see table 3) reports that 2.7 out of 1000 people age 16 to 19, which means 5.4 out of 1000 women age 16 to 19, are raped each year. This is an estimate based on a survey, not on police reports, and it may well be low (the actual rate may be higher); but in any event, we know that the rate of rapes reported to the police is roughly half that estimated to the NCVS (compare the Uniform Crime Reports data, and remember that the UCR data aggregates rapes and attempted rapes, while the NCVS breaks them out). This means that roughly 2.7 out of 1000 women age 16 to 19 report an actual rape each year, for a total of 2.7/1000 x 8 million = 21,600 true rape reports per year.

Under this model, then, 13% of all rape reports to the police would be false (in the 16-to-19 age group), even though only 2% of all women in that age group would ever make a false rape report, and only 2% of those actually make a false rape report each year. Ninety-eight percent of all women may be completely truthful on this subject, and yet we may still have a substantial false rape report rate.

This, of course, is just a model, based on numbers picked out of thin air. Maybe, for instance, the fraction of women who'd ever make a false rape report is much lower than 2%, or maybe it's higher. We can't know for sure.

But the model does illustrate that it's perfectly possible to believe that (1) only a tiny fraction of women would ever lie about being raped, (2) a huge fraction of rapes are unreported (quite possibly even more than 50%, so that rape may be a highly underreported crime by many women, as well as overreported by a few), and yet (3) a substantial fraction of rape reports to the police are false.

Some people who worry about false rape reports may in fact believe that women are psychologically wired to lie about such things; I'm certainly not one, but historically that has been the view of some, to which others have understandably reacted with hostility. That may be why some people take the opposite view: Instead of "women often lie, so the false rape report is very high," they say "women very rarely lie, so the false rape report is very low." But that doesn't follow. False rape reports, however rare they may be as a fraction of all women might still be substantial as a fraction of all rape reports.

UPDATE: Just to make it clear, I am not talking here about reports of ambiguous situations, where the complainant sincerely believes the action was rape, but it turns out that it wasn't. I'm discussing in this post outright fabrications — claims of rape that the complainant fabricated because of a desire for revenge, sympathy, money, an explanation for consensual but adulterous or otherwise socially unacceptable sex, or something else. (In some such claims the complainant may have had consensual sex with the accused, and in others there may have been no sex, but the important point is that the complainant knows there was no nonconsensual sex.) The Kanin study, which I hope to blog about in a few weeks, reports on police accounts that assert such behavior has taken place. Likewise, unless I'm mistaken it's generally believed that the infamous Socttsboro boys case involved a fabricated rape account, though the motive there may have been different from the ones identify.

I stress again that I'm not making any assertions about how common such false accounts actually are. They may be an extremely low fraction of all rape reports, or they may be a substantial minority. My point in the original post was simply to say that one can believe that very few women would ever lie this way, and yet have such false reports be a substantial fraction of all rape reports. My point in this update is to make clear that the problem I discuss here is one of fabrication — not something that can be solved, for instance, by clarifying the definition of rape to remove possible ambiguities.

Arvin Tseng (Rebuttable Presumption) has a pointer to this story. "Jeremy Stribling said Thursday that he and two fellow MIT graduate students questioned the standards of some academic conferences, so they wrote a computer program to generate research papers complete with 'context-free grammar,' charts and diagrams. . . . To their surprise, one of the papers -- 'Rooter: A Methodology for the Typical Unification of Access Points and Redundancy' -- was accepted for presentation [at a conference."

Brendan Loy reports:

The Associated Press reports, in an article that's currently being given top billing by Drudge, that Israeli Prime Minister Ariel Sharon told CNN he has ruled out a preemptive strike against Iran's possible nuclear facilities.

Sharon Rules Out Attacking Iran Over Nukes

JERUSALEM (AP) - Israel will not mount a unilateral attack aimed at destroying Iran's nuclear capability, Israeli Prime Minister Ariel Sharon said Wednesday in a CNN-TV interview.

Sharon said he did not see "unilateral action" as an option. He said Israel did not need to lead the way on the Iran nuclear weapons issue, calling for an international coalition to deal with it.

The only problem is, reading the actual transcript of the interview in question, I don't see where he says any of that . . . .

Thanks to Kausfiles for the pointer.

I'd like to design a flowchart for the second edition of my First Amendment textbook, to explain how a particular set of First Amendment rules (the one governing the government's actions as subsidizer or speaker) operate.

Can anyone recommend good, inexpensive flowchart creation software that has a free trial period? Please post the recommendations in the comments. Many thanks!

Darfur here, internationalism (reviewing Beyond the Age of Innocence: Rebuilding Trust Between America and the World) here. I'm not an expert on these subjects, but I've generally found Max Boot's work interesting and persuasive, so I thought I'd pass these two along. A quote from the Darfur piece:

So who will stop the killing? That question should trouble any tender soul who has ever mindlessly muttered, "Never again." That incantation is repeated after every genocide -- after the Holocaust, after the Cambodian killing fields, after Rwanda -- and yet the next time mass slaughter breaks out, the world conveniently averts its gaze. The major exceptions in recent years have been Kosovo and Bosnia, which had the good fortune to be on Western Europe's doorstep. The rest of the world is treated to high-minded cluck-clucking and, maybe, ex post facto prosecutions.

The only way to save Darfur is to dispatch a large and capable military expedition. But Security Council members France, China and Russia have blocked a U.N. decision on armed intervention because they covet trade ties with Sudan. . . . [And] the only nation with a serious military capacity [for independent action], the United States, is overstretched in Afghanistan and Iraq.

The European Union should step into the breach. Its economy is as big as the United States' and its population is even bigger. But it has chosen to spend its euros on extravagant handouts for its own citizens rather than on the kind of armed forces that might bring a ray of hope to the "heart of darkness." Although the European members of NATO actually have more ground troops than the U.S. -- about 1.5 million soldiers -- only about 6% are readily deployable abroad. . . .

And from the other one:

[Kishore Mahbubani, who recently stepped down as Singapore's ambassador to the United Nations] closes with an obligatory plea for a kinder, gentler superpower to promote "greater respect for international law." But isn't that what Bill Clinton did? He never saw a treaty he didn't want to sign or a foreign leader he didn't want to consult. And yet that didn't prevent the growth of murderous anti-Americanism. Mahbubani, like other critics of the Bush administration, ignores Machiavelli's dictum that "it is much safer to be feared than loved." George W. Bush may not have increased the love for the United States, but if he has increased respect for American power, that's an underappreciated achievement.

Consider yesterday's puzzle:

What are the highest-grossing movies set in (1) North America, (2) Latin America, (3) Europe, (4) Asia, (5) Africa, and (6) Australia?

Now solve it for U.S. grosses, adjusted for inflation. I used the table here; I hope it has the right data and the right adjustments. Also, for purposes of this problem, consider a movie to be set in some place if a substantial chunk of the movie takes place there. [UPDATE: I originally said worldwide grosses, but I misread the table I referred to — it's U.S.]

My former student Kevan Choset poses the following puzzle: What are the highest-grossing movies set in (1) North America, (2) Latin America, (3) Europe, (4) Asia, (5) Africa, and (6) Australia [UPDATE: and (7) Antarctica]?

For the picky: I'm using U.S. [UPDATE: I originally erroneously said worldwide] grosses, in nominal dollars (not adjusted for inflation), as given on this site. Also, since a movie may have scenes on multiple continents — or for that matter in the oceans or elsewhere — I define the movie as being set somewhere if the majority of its are there or quite near there.

here. You really need to see the pictures to get the picture, but here's the summary of his argument:

A group of UCLA students plan a student strike tomorrow in support of a one-day strike by UCLA service workers, whose union includes custodians and groundskeepers . . . .

In their zeal, the students have plastered these posters on sidewalks all over campus; e.g., in the sculpture garden . . . .

You will have spotted the irony, of course: the groundskeepers the kids purport to be supporting are the very people who will have to get these glued-down posters off the sidewalks. . . .

when they're offended by pictures of aborted fetuses being distributed on campus? Why, call the police, of course:

Protesters handing out anti-abortion pamphlets on campus caused a series of complaints to local police Wednesday.

Director of Public Safety Jerry Stewart said ISU Police received 12 phone calls within one hour on Wednesday afternoon from people objecting to graphic images displayed on posters and handouts from a group of people objecting to abortion.

Abby LaCombe, senior in political science, was approached by the group and said she was upset by its protest.

"[I told them] every time you come to our campus it just creates a deeper schism," she said. "There's better ways to go about speaking your message."

Sarah Foster, senior in mechanical engineering, said abortion was not the only subject the group was protesting.

"This [was] anti-choice, anti-women, anti-everything," she said.

The pamphlets, from the Milwaukee-based group Missionaries to the Preborn, included information on abortion, birth control, breast cancer, opposition to Planned Parenthood and contained photos of aborted fetuses.

It's not clear whether Ms. LaCombe and Ms. Foster were among the 12 people complaining to the police; but I would have hoped that the 12 college students must have realized that there's nothing illegal about displaying disturbing pictures as part of one's political argument. I guess I would have hoped in vain.

Fortunately, the police knew better. "While the images that appeared may be objectionable to a number of people, they appear to be legal," Stewart said. Funny that -- some objectionable speech is actually legal, even though it offends some college students! What is the world coming to?

Woohoo! Just checked the amazon.com rank on my Academic Legal Writing, and it turns out to be #5,448 -- not Stephen King, but still a bit under 30 per week, according to this site. We specialty book authors are easy to please.

Incidentally, this is a good opportunity to remind people: If you're planning to compete for law review right after Spring exams -- the schedule that many journals adhere to -- you should start preparing now. My close personal friend Law Review Lara has tips, copied from the Second Edition of Academic Legal Writing (personalized copies of which are still available, in plenty of time for post-exam write-ons).

Clayton Cramer disagrees with Eric Muller's position on the religious book in the school library, but then goes on to say:

Professor Muller's liberalism is really shining! Here's another book that he wants not available: Michelle Malkin's In Defense of Internment, which is offered for sale at the Manzanar book store.

Muller compares Malkin's book to David Irving's work; this is absurd. Malkin isn't denying that the internment happened; she is making an argument that it made sense under the circumstances. You can disagree with her argument without calling her a liar.

I take it that Cramer is suggesting that Muller is somehow being untrue to his own "liberal" principles, but I don't quite see why. It seems quite reasonable to argue that the Manzanar book store, like other specialty government-run bookstores at historical sites, should only carry generally accurate history books.

The bookstore must necessarily choose which books to carry: Presumably it doesn't carry every book ever written about the Japanese internment, but only those that it thinks are helpful to casual lay readers. And many of these readers are likely to read one book on the subject, rather than reading several to decide for themselves which are right and which are wrong. If Muller is right that Malkin's book is highly inaccurate -- even if it isn't as inaccurate as books that deny that the Holocaust took place -- then why should the government propagate such inaccurate views?

Now there may well be some liberals who have articulated hardline views that any refusal by the government to carry a book, in any government-run bookstore or library, is a First Amendment violation (or is otherwise inappropriate). But I have no reason to think that Muller is one of them. What reason is there to condemn him for any supposed inconsistency with his "liberalism"?

As we know, "the first thing about philosophy is 'It’s not the answers, it’s the questions.'" This should lead serious students of philosophy — or perhaps of the anthropology of philosophy — to ask: What is the question that philosophers (let's define the field for now as people with undergraduate degrees in philosophy) are asking most often?

Mark Kleiman posts it and follows up here. Judge Kozinski and I didn't include it in our Lawsuit, Shmawsuit — either the original Yale Law Journal version or in the version republished in the Annals of Improbable Research or on the Web, because we focus there on Yiddish in court opinions. But it's an amusing read.

Slate's Human Nature -- which I generally much like -- contains this item:

Liberals and conservatives switched sides on silicone breast implants. At an FDA hearing, supporters of traditional femininity defended a woman's right to choose such implants, even with a health risk. Pro-choicers on abortion argued that the implants were too dangerous to legalize universally.

Really? I don't think that "supporters of traditional femininity" have ever rejected a woman's right to choose things that might be risky to their health. I don't think such supporters ever had a consistent views on breast implants as such, but they haven't, I think, taken a paternalistic view on mere health risks. Pro-life forces oppose abortion because of its effects on the health (and more) of the fetus, not chiefly of the woman.

Some of them have argued (whether rightly or not) that abortions may be dangerous to the woman, perhaps hoping that this may make abortions seem less appealing. But the ultimate reason to make abortions less appealing is to save the life of the fetus. (This isn't much different from animal rights activists, some of whom may argue that eating meat is bad for you, but who do so chiefly in the service of protecting animals.)

The case for something of a switch by some pro-choice people is a bit stronger: If they really articulate abortion rights as simply a woman's nearly absolute right to control her own body (as some pro-choice advocates) do, then they should also take the same view as to potentially dangerous surgical procedures.

But the strongest pro-choice arguments -- and, I think, the true views of most pro-choice advocates -- aren't just that a woman has a right to control her own body. Rather, they also focus on the magnitude of the burden that an unwanted pregnancy, and the creation of an unwanted child, imposes on the woman. That's why many pro-choice people aren't also pro-drug-legalization: Snorting cocaine also relates to what you do with your own body, but unwanted abstinence from cocaine is generally seen as a much lesser burden than unwanted pregnancy. Likewise, that one thinks women have a right to avoid an unwanted pregnancy doesn't mean that they have a right to seriously risk their own health for merely cosmetic purposes. (The matter is more complex when the issue isn't just increasing the breast size of healthy but small breasts, but reconstructing breasts after a mastectomy, but I set that aside for now.)

Now as it happens, I think there's a strong case against the paternalist view, and in favor of letting women risk their health even for cosmetic reasons. But one can easily be a paternalist generally and pro-choice on abortion rights -- it's not switching sides or straddling the fence, I think, to hold such a view.

Under the American Library Association's definitions, presumably it would be. I wouldn't say that -- I don't think removing a book from a school library is properly called "banning," and I don't think it should be seen as violating the First Amendment (notwithstanding the opinion of four Justices in Board of Ed. v. Pico (1982)). Here's the full story, from Eric Muller (IsThatLegal?):

Not long ago my daughter came home from public elementary school with "Journey to Japan," a book she had checked out of its library. My daughter is in the third grade. The book is not simply available, but on a special shelf of books that kids get a sort of "extra credit" for reading and answering questions about. . . .

(. . . I have asked that my daughter's school remove this book from its shelves, and they have done so on at least an interim basis while their library committee reviews it.)

In Journey to Japan, a home-schooling American Christian family travel to Japan. There they meet a Japanese girl named Yoko. The American family quickly learns that Yoko is in some sort of conflict with her parents, especially her stern father.

The American kids keep hearing about this strange religion called "Buddhism," but don't know anything about it. The main thing they learn is that Buddhists worship many gods, not one. "What if they choose not to believe in Buddha?" the young protagonist asks an American adult. "They don't have that choice," the adult explains. The protagonist confesses that she finds the Japanese religion "confusing."

The conflict between Yoko and her father intensifies through the book, and the reader learns that Yoko is stealing off to some undisclosed location each night. The American kids learn that Yoko's father condemns her as a "rebel" and a "bad person."

There is some discussion among the Americans about Buddhist and Shinto religious practices, and the protagonist comments that these practices "all seem kind of confusing." "That's probably why Yoko won't go [to the Buddhist and Shinto services] anymore," an adult explains.

The source of the tension between Yoko and her father is revealed in Chapter 9, when the Americans go to a Japanese Christian church and find Yoko there.

It suddenly dawns on the protagonist: "Yoko was not a bad person-—she was a Christian!"

Yoko explains her situation to the Americans: "When I was a little girl, I went to a church down the street for Bible school on Sundays. My parents let me go. . . . It wouldn't hurt me, they'd say. By the time I was twelve or thirteen, I was sure that I loved Jesus and wanted to be part of God's family. I read my Bible and prayed. In the last few years, I knew I could not keep going to the Buddhist temple and the Shinto shrines. I do not believe in many gods. I believe in only one."

"I love my family," she explains, "but I love Jesus more."

At the end of the book, Yoko comes knocking on the American family's door, explaining that her father has turned her out. Everyone prays, and the American father assures the worried children that God will take care of Yoko, "just like He cares for us."

Yoko ends up deciding to come to America. "It still hurts to be away from my family," she says, "but I know God is taking care of me."

The book's dedication is "To our friend and sister in Christ, Yoko."

A few thoughts:

1. I think there's no Establishment Clause problem with a school library's keeping the book on its shelves. (Recall that though Eric objects to the book's being on "a special shelf of books that kids get a sort of 'extra credit' for reading and answering questions about," he asked that the book be removed altogether.) Though the library does in some measure endorse the books in the library as fitting reading, it doesn't endorse all the views in those books as being correct. Parents can easily explain this to their children, and I think that many third-graders can figure this out even on their own. For that matter, I would hope that one things school teach is that not everything that's written in a book -- even a school library book -- is true.

   Moreover, if the Establishment Clause does bar school libraries from stocking such books, then this wouldn't just apply to books whose primary focus is pro-religious -- it would also apply to books that have some religious themes (try the Chronicles of Narnia), or even books in which some appealing characters are religious, and express their religious views. Would even the Christmas Carol be immune? Courts ought not, I think, read the Establishment Clause in a way that would demand the exclusion of such views from school libraries.

2. At the same time, I think it's probably bad judgment for the public school library to include books that overtly criticize (even mildly) other religions -- at least for the lower grades -- unless the books have such great historical or literary value that they need to be included. Naturally, people are free to express such criticisms outside school, and many religious belief systems necessarily involve implicit and often explicit criticisms of rival systems. Still, it seems to me that public schools ought to try to teach tolerance of other religions, and the most effective likely way of doing that, at least for lower grades, is by not carrying criticisms of those religions.

   Adults and even teenagers need to learn a complex mix of tolerance of others' beliefs but a recognition that those beliefs may be wrong, even deeply wrong. But for third-graders, I think, the best way of learning that, at least in a public school, is by stressing the tolerance, and not focusing on the beliefs' supposed error. Also, though, I'm no expert on Buddhism, I'm not sure that the book's description of Buddhism is quite correct, which may be another reason the school shouldn't carry it.

   Nonetheless, these are matters of judgment about education policy, morals, and manners, often involving subtle differences of degree. They ought to be decided by school administrators, subject to moral suasion by parents and by the public, not by courts.

3. What about putting religiously proselytizing books -- assume for now that they don't include explicit or obvious implicit criticisms of other religions, or of irreligiousness -- "on a special shelf of books that kids get a sort of 'extra credit' for reading and answering questions about"? I think this too is not unconstitutional (though neither is it constitutionally mandated).

   Moreover, it seems to me that many religious parents (and maybe even some religious kids) would like to have this as an option for their own kids; other kids are getting extra credit for reading about things that they or their parents find interesting or enlightening, and the religious parents may want their kids to get extra credit for reading about things that they or their parents find interesting or enlightening. Nor do I think that there's anything unconstitutional -- or educationally sound or otherwise improper -- in the school's facilitating this.

4. But, some parents may say, my child is being exposed to religious beliefs I disapprove of, without my knowledge or permission! So? The child will be exposed to lots of religious beliefs in lots of contexts, many with much more pressure (say, peer pressure from classmates) than that provided by one of many library books (or even one of many library books that one can read for extra credit). It seems to me that parents have plenty of time, authority, and power to counteract this, by explaining to the child that while others believe the things in the book, they (the parents) don't believe it, and by explaining why the child shouldn't believe it.

   In fact, this may give the parents a good opportunity to actually strengthen their teaching of their own religious views to the child: It's often confrontation with rival religious views, and an explanation of why those views are supposedly mistaken, that helps reinforce in the child the parents' views.

   Now I can certainly understand why some parents might nonetheless not want their children exposed at school, or in the school library, to a favorable, emotionally persuasive presentation of these rival views (whether religious or political). That's one reason that I don't think schools should be barred from removing books. But I don't think they should have a constitutional obligation to remove them. And I think that people who are in a religious or political minority should expect that their child will indeed be exposed to the majority's views in the school library -- and though they can try to persuade the majority that the books should be removed, they should have no legal or moral entitlement to having those books removed.

from Longfellow by way of Wittgenstein and then Harry G. Frankfurt's On Bullshit:

In the elder days of Art,
Builders wrought with greatest care
Each minute and unseen part;
For the Gods see everywhere.

My coblogger Erik Jaffe has organized it, under the aegis of the Federalist Society, and it's happening this Thursday at lunchtime (12 to 2 pm) at the National Press Club (529 14th Street NW). The other panelists are former Solicitor General (and Duke lawprof) Walter Dellinger, leading Supreme Court litigator Tom Goldstein, and former Assistant Attorney General for the Office of Legal Counsel — quite a distinguished list of speakers, and, true to the Federalist Society's practices, a politically mixed list. To register, please go here (the lunch is just $20, and you definitely don't have to be a Society member).

Alan Greenblatt in the San Francisco Chronicle has a good column on the subject. Never mind the peevish-sounding headline (and always remember that columnists and reporters don't write the headlines for their stories, and generally aren't even consulted when the headline is written) and focus instead on the body. An excerpt:

Habitual excuse notes [in which the writer sheepishly announces that he or she has something better to do today and simply can't come out and create] were starting to bug me until I realized that blogs perform much the same functions that personal letters used to, back in the days when the U.S. mail was associated with the agile pony rather than the pokey snail. After all, 98.7 percent of all personal letters ever written begin with the same apology. "I'm sorry it's taken me so long to write, but . . . " . . .

The worst letters were exactly like the most useless blogs, filled with daily trivia and accounts of hobbies or personal comings and goings that only a mother could struggle through.

On the other hand, letters at their best had all the qualities that make many blogs attractive. They provided the correspondent's unfiltered and immediate impressions of the events and artifacts of the day.

For example, the letters of the late actor John Gielgud, published last year, read as if they were selections from a witty, catty blog about film and the London theater. . . .

[L]ike letter writers of old, [blog] creators hope to forge a connection with readers whose attention they have earned by dint of their own insights or prose quality, not through affiliation with some established publication. . . .

The letter analogy is of course quite incomplete (and I'm sure it's not intended to be complete), but it captures an important point, I think.

is here. The amici on whose behalf the brief is filed include Jack Balkin, Michael Froomkin, Joshua Micah Marshall, Markos Moulitsas (the Daily Kos), Glenn Harlan Reynolds (InstaPundit), and me. Many thanks to Lauren Gelman, who wrote the brief. How Appealing posts about this, and links to an easy-to-read list of the amici.

In the Soviet Union, I recall, the date was widely known, but in my experience Americans generally don't know it.

My friend and colleague Stephen Bainbridge writes:

[W]e have a WSJ($) column today by former Joe Lieberman aide Dan Gerstein, who explains that "the Democrats Are Losing the Culture Wars" because they have:

... a profound aversion to making moral judgments. And that's the nub of the values problem for Democrats today. We don't hesitate to judge people's beliefs, but we blanch at judging their behavior. That leaves us silent on big moral issues at a time of great moral uncertainty, and leaves the impression that we are the party of "anything goes."

I don't buy it. It seems to me that liberals in fact not only "don't hesitate to judge people's beliefs," but they also don't "blanch at judging [certain people's] behavior." In other words, the Democrats have become "the party of 'anything goes'" precisely because they are ready to judge anybody who thinks some things should remain out of bounds.

(Go to the blog post for more.)

I've always been puzzled by claims that some groups are "nonjudgmental" about political or moral matters while others are "judgmental," whether the claims are about belief or about behavior. (Warning: I couldn't read the original piece, so perhaps Gerstein is making a much more nuanced claim; I'm just using the quote as given by Stephen as an example of the kind of broad argument that I've often heard.)

One can certainly be nonjudgmental -- in the sense of not judging whether people are right or wrong, at least in a moral sense -- on certain matters, such as esthetics or similar tastes. (I may judge that people who dislike custard are missing out on a great taste, but I wouldn't say they're immoral, foolish, or more broadly wrong for not liking custard.) More controversially, one can be nonjudgmental about people's interest in various sexual practices, even though others are judgmental about these matters. One can also be more or less judgmental in one's interactions with people, in the sense of not expressing one's judgments of their moral behavior. One can imagine, for instance, concluding that a friend needs sympathy and help, unmixed with expressions of judgment about whether the friend behaved badly (at least if the behavior isn't too bad).

But surely one must be judgmental in political life on a wide range of topics. Liberals have long expressed negative judgments about people for various beliefs (racism, intolerance, desire to suppress certain civil liberties, lack of sympathy for the poor) and for corresponding actions. Conservatives have done the same, on a set of beliefs and actions that in some measure overlaps with the liberals but in some measure differs, especially in intensity; likewise with libertarians. In fact Democrats are not "silent on big moral issues" -- unless one thinks that war, equality, liberty, economic rights and obligations, and the like aren't big moral issues.

They may be silent or relatively quiet as to some moral issues (e.g., the moral question of whether one ought to get an abortion, rather than the moral question of whether the law should stop women from getting abortions). But that's because of a judgment about which moral issues (and which forms of conduct) are fit for political judgment, not a judgment that one ought not judge people's conduct.

There's of course nothing wrong with being judgmental as such. There may be something wrong with being judgmental on certain matters. Again, a trivial example is people judging others because of which flavor of ice cream they prefer, or for that matter judging them morally -- rather than esthetically -- based on whether they like classical music; there are naturally other more controversial examples.

But it is wrong, I think, to claim -- or to bemoan -- that one's side is nonjudgmental on great moral issues generally (as opposed to a few issues in particular). Republicans, Democrats, Libertarians and others are judgmental, and right to be judgmental. The debate should be about what we should judge, and what our judgments ought to be.

NYU law professor Burt Neuborne — who has been, among other things, National Legal Director of the ACLU and Special Counsel to the NOW Legal Defense and Education Fund — warns his fellow liberals in an article in The Nation not to rely too much on victories in court. He writes:

In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning. Three examples suffice.

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. . . . The progressive response [to pro-life criticism] was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. . . .

The gay rights movement, winner of a great judicial victory in Lawrence v. Texas, when the Supreme Court invalidated criminal sodomy laws, immediately redoubled its judicial bets by challenging laws banning same-sex marriage. That may be good law, but it's terrible politics. A grassroots movement designed to explain why it's unfair to deny gays the ability to live together in stable relationships would result in widespread support for legally protected civil unions and pave the way for popular acceptance of same-sex marriage. Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.

Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it's fundamentally fair to do so. Legalistic arguments simply do not convince many well-meaning people who feel cheated when their religious symbols are banned. Nor do claims that onlookers are somehow harmed merely by viewing such symbols, as long as everyone has an equal right to have the symbol of his or her choice, including symbols of atheism, displayed. We don't allow secular speech to be banned because it offends onlookers. Why should religious symbols be subject to "heckler's veto"? Thus, unlike abortion and gay rights, where powerful fairness-based arguments exist in defense of judicial decisions if only we would deploy them, I'm not sure that in this case a persuasive fairness rationale exists.

Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic--which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance. The margin of victory in the 2004 presidential election may well have come from religious believers in Ohio who voted against their economic self-interest to protest judicial decisions that appeared to them to attack their belief systems without good reason. . . .

One can argue about some of the details — for instance, while I noted the Ohio possibility myself shortly after the election, it's now far from clear that this is indeed was the reason for Bush's margin of victory in Ohio. (Plus, of course, while I'm not wild about all of the Republicans' economic policy, I think that they are in the best interests of most Americans, though obviously liberals like Neuborne generally disagree.)

Nonetheless, the broader point, I think, is quite right, and it's one I make to conservative and libertarian friends who put too much stock in winning constitutional rights battles — gun rights, campaign speech rights, property rights — in court. Why should we focus on politics rather than litigation, they ask, when there's a fundamental constitutional right at stake? Isn't the point of the Constitution to secure certain principles from political attacks?

To quote the flag salute case, West Virginia Bd. of Ed. v. Barnette, wasn't "[t]he very purpose of a Bill of Rights . . . to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts"? Shouldn't it be the case that "[o]ne's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections"?

Well, maybe this is true in some world where the Bill of Rights somehow implements itself, without the need to be interpreted and enforced by real human beings, who — being social creatures — are necessarily influenced by the views of those around whom they live, those who taught them (whether teachers, parents, or others), and those with whom they grew up. But in our world, it is at most an aspiration, not an accurate description of political reality.

Winning in court is generally good — but there's no substitute for winning elections, and for persuading the public more broadly. Any victory that's only a victory in court is not likely to last long, at least on the important issues that are likely to remain in people's minds. Neuborne is right to remind his side about this; I hope people on my side (generally libertarians and, on many issues, conservatives) remember this, too.

UPDATE: David Kravitz (BlueMassGroup) makes a similar point about gay marriage, and discusses the Connecticut civil unions bill:

"[T]he Connecticut legislature appears to be on the fast track to adopting a civil unions law that will give gay couples all the rights and privileges of marriage under Connecticut law, except that it won't be called "marriage."

The important thing about the Connecticut story is that, if the proposed law passes, Connecticut will be the first state to adopt a gay marriage or marriage-equivalent law without having had a court tell it do so. In other words, it will be the first time that the people's elected representatives have decided that granting full marriage (or marriage-like) rights to gay people is what they should do, rather than what they must do. That's a really, really big deal.

I'm still mostly sitting out the Schiavo matter (to the extent there is still a debate to sit out at this late date), but I did want to pass along Jonathan Rauch's column. Whether you agree with it or not, it's a serious and important challenge to conservatives. Here's an excerpt:

[During the debate about the 2000 election, i]n The Weekly Standard, Noemie Emery wrote that the two sides had "ended up fighting to vindicate the deepest beliefs of their respective parties. Democrats believe in intentions and feelings.... Republicans believe in the rules."

Democrats, Emery explained, "are the party of malleable standards, in the interests of what they think of as just." They "want courts and well-intended politicians to intervene to engineer outcomes they think are fair." Conservatives, in contrast, know that life is unfair, but "they do not believe laws should be calibrated to account for individual instances of unfairness, as there is no legal system conceivable that can begin to account for all the myriad forms of unfairness life metes out." After all, "there is no way to remove error from human endeavor. Life is chaotic, which is why we need rules to channel it, to give order to happenstance, and keep things from reeling out of control."

Conservatives believe that sound law depends on predictability and finality -- or at least they did before the Schiavo case. The rules should be written in advance instead of being continually reinvented on the fly, and legal disputes should not be allowed to drag on and on. . . . .

In telling the politicians to take a hike and let the law do its job, the public was acting on a hallowed conservative moral principle: "Enough is enough." Most Americans, including most conservative Americans, clung to their instinct for good legal order in a messy world. In other words, they clung to traditional Republican values. Which is more than the Republicans in Washington did.

In her 2000 article, Emery concluded by asking, "Do [Democrats] really want elections that are infinitely reviewable, subject to challenge on every slight glitch, every hurt feeling, every bright sense of outrage? Do they think life can be fair without law?" Good question. In 2005, what do Republicans think?

A quote from Jonathan Klein, the President of CNN, on the Charlie Rose Show (thanks to John Fund in OpinionJournal's Political Diary for the pointer):

Charlie Rose: If [somebody came in] and said, we believe there is the absence of progressive opinion as people now believe on cable news, would that have been successful as FOX has been? My question said another way: Is it the fact that they have some, a formula, and it doesn`t matter what the politics are, or the politics make a difference?

JONATHAN KLEIN: They've tapped into an outrage that's lurking among a certain small segment of the population, mostly angry white men, and those men tend to be rabid. They tend to be habitual. They tend to like to have their points of view reinforced. And a, quote/unquote, "progressive" or liberal network probably couldn't reach the same sort of an audience, because liberals tend to like to sample a lot of opinions. They pride themselves on that. And you know, they don't get too worked up about anything. And they're pretty morally relativistic. And so, you know, they allow for a lot of that stuff. You know, the -- FOX is very appealing to people who like to get worked up over things.

Is that really so -- "progressives" and liberals (as opposed to conservatives) "don't get too worked up about anything"? Not about guns? Not about abortion rights? Not about religious conservatives? Not about President Bush, especially during the 2004 campaign?

And recall that Klein isn't just saying that not all progressives and liberals "get too worked up about" things. His claim is that Fox is succeeding because they've "tapped into an outrage that's lurking among a certain small segment of the population" that's "rabid" and "angry." But apparently there isn't even a matching small segment of the population that's progressive or liberal, angry, and "worked up about" things.

I'm pretty skeptical when either side makes these sorts of generalizations about the other. People on the left and on the right both come in many temperaments, some angry and some calm, some interested in sampling a lot of opinions, some (probably most, I suspect) not. There may be some systematic differences in temperament, but I suspect that they're not huge. And one certainly shouldn't trust people on either side to properly identify them based on impressionistic judgments: There's a natural human tendency to see the best in people who agree with you, and the worst in people who disagree.

But while I surely wouldn't say that all or even most liberals (or even all or most progressives) like to get "worked up about" things, it seems to me quite clear that at least a "small segment" of them sure does enjoy that sort of stuff. The CNN President seems quite mistaken here.

competing head to head, courtesy of the aptly named The Surrealist. Just enter the names of your favorite blogs and see the results.