A comment related to my technology and birth rates post below says:

I cannot help but think that you are treating people like a commodity (reduce costs and increase demand).

I think a big barrier to childbirth is actually our culture, which cannot see why investing into another is more important than investing in one's self.

Child creation is like a commodity in that if you reduce the price, you'll increase demand. Cost matters. Culture matters, too, of course. But even if you hold constant — as a supposedly culturally dictated factor — the amount that a person is willing to invest in a child, as the per-child decreases, the number of children in which the person is willing to invest increases.

If a family feels that they can't spend more than $50,000/year on children without doing things that are too painful to them (e.g., getting a high-paying but misery-inducing job), and the cost of having a child rises from $15,000 to $25,000, they'll be likelier to have 2 children rather than 3. If the costs decline from $25,000 to $15,000, they'll be likelier to have 3 rather than 2. Likewise, if each extra child produces nine months worth of pretty serious discomfort and some amount of health problems stemming from the pregnancy, then on the margins some women will choose to have fewer children, even if you hold culture and willingness to invest in others constant.

Moreover, people's willingness to invest in others may change over time. Twentysomethings may want to play around and have fun; fortysomethings may be more willing to invest in having children; but by then, having children may be medically impossible or too difficult. If technology changes to allow people in their 40s to have all the kids they then want, then — again, keeping culture constant — they may end up having more kids.

Perhaps I'm mistaken, but my sense is that many people resist economic analysis because they find it distasteful: People shouldn't be treated like commodities (as if I'm suggesting that I be able to sell my wife on the open market). We should be paying attention to the grand plan of making people more unselfish rather than to technocratic matters such as cost and incentive (as if campaigns to make people unselfish have enjoyed notable success).

Yet these sorts of gut reactions, and the slogans attached to them, aren't going to change human nature. With very few exceptions, as tasks get less costly — or, if you prefer, get less painful and uncomfortable — people will undertake those tasks more. One can debate how important the cost savings that I describe are compared to all the other costs of having children. But it's a major mistake to just close one's eyes to costs and how people react to them.

My post expressing skepticism about birth rate forecasts for 45 or 100 years in the future led me to think: What changes might substantially increase birth rates in the developed world?

Here's my candidate: A combination of (1) cheaper, less painful, and more reliable egg extraction and freezing, which would let 20-year-old women routinely bank eggs for the future, and (2) the invention of incubators that can safely grow a child from a fertilized egg to a live baby. It's of course impossible to be sure that development 2 will happen within the next 45 years, but I suspect that it will. Let's say for our purposes that it does. Why is this likely to substantially increase birth rates?

It seems to me that many couples have fewer children than they'd like, for several reasons. First, both the increase in women's educational and professional opportunities and changing sexual mores have led many women to marry later, and to have children later. They may still want to have 2, 3, or more children, but it becomes harder to do if you start in your mid-30s.

Second, pregnancy is hard work, especially if you also have one or two kids running around and contributing to your tiredness. Pregnancy and childbirth can also cause various health problems. Some women apparently really enjoy pregnancy and even childbirth, but I suspect that most don't. I doubt that this deters many would-be first-time mothers -- but it may deter some women who already have two kids, have experienced the unpleasantness of pregnancy, are older and thus more likely to find physical burdens more taxing, and feel less of a need to have that extra kid.

Third, I suspect that quite a few families might want to have another kid as their first batch gets older. Today, it's just not an option, at least without a great deal of work. (Adopting is of course always possible, but many people are reluctant to do that.) But if it becomes easy, I suspect a significant number of older couples may take advantage of it. Here I'm less certain, and of course as someone with two small kids I fully understand that many older couples may have no interest in going through all that again. Yet if even a substantial minority (say, 10%) do take advantage of new technology to do this, the birth rate may go up nontrivially.

So if age-related fertility decline stops being a problem, and the physical burden of pregnancy and childbirth is eliminated, two important deterrents to having more children would be eliminated. Naturally, there are plenty of other deterrents; technology won't make having children cost-free. But it will reduce the costs (I speak here mostly of nonfinancial costs) and thus increase the demand.

This is all guesswork on my part, and it may be skewed by the circles in which I travel. It would be interesting to see if there have been surveys that try to measure (however imperfectly) the extent to which people would have more children if the problems I describe were solved. Still, my suspicion is that this could easily drive up the birth rate by 0.2 or 0.3 per couple, or perhaps even more.

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SADDAM REQUESTS JACKSON’S JURY Asks Accuser’s Mom to Testify Against Him

Former Iraqi dictator Saddam Hussein startled the international legal community today by requesting that the jury in the Michael Jackson child molestation trial be empanelled to sit in judgment of him when his trial gets underway in Baghdad. . . .

In addition to requesting the Jackson jury, Saddam also requested that the mother of Mr. Jackson’s accuser be called upon to testify against him in his trial.

Read more of this breaking story here.

WordSmith reports on this legalish word that I'd never heard of before. According to the Oxford English Dictionary, it's "The action of committing a minor or petty offence, such as loitering, etc.; contravention of a trivial or hypothetical law, esp. when used as an excuse to harass or arrest a person against whom no more serious crime can be charged."

Much worth reading.

From a UK Web site:

U2 frontman BONO was horrified during a visit to Ethiopia, when he saw local women pelting a breast-feeding aid worker with stones.

The American woman was oblivious of the offence she was causing, and had to escape the angry onslaught from female Muslims who had no qualms about injuring her or her baby.

InstaPundit puts it well:

Bono: "She didn't mean to be insensitive." But they did.

Clayton Cramer correctly faults Michael Shermer for writing:

The primary reason we are experiencing this peculiarly American phenomenon of evolution denial (the doppelganger of Holocaust denial)....

Cramer argues that evolution is less well-supported than the Holocaust, but I think there's a deeper error here: The main reason that people dislike Holocaust deniers isn't just that they're factually wrong, methodologically wrong, or even foolish.

Rather, it's that we strongly suspect that the deniers either dislike Jews, or want to make apologies for Nazis. That's not logically necessary -- one can imagine someone denying the Holocaust for perfectly decent reasons, no matter how factually misguided he will be. But it does seem psychologically likely that most people who deny the Holocaust in the face of very powerful contrary evidence are indeed pro-Nazi or anti-Jewish.

Analogizing deniers of evolution with denials of the Holocaust is thus unfair: Not only is there this huge difference here, but it's a difference that goes to the core connotation of the phrase "Holocaust denial" (sympathy for Nazis or anti-Semitism). If you want to suggest that creationists are foolish, that's great -- but analogize them to those who are likewise merely foolish, rather than to those whose folly likely stems from sympathy for evil.

by Steve Jobs. Thanks to The New Editor for the pointer.

Stuart Buck on originalism:

One of the common objections to originalism is that it's too hard. All of these overworked judges and Justices don't have the time or expertise to do real historical research into the original meaning of a constitutional provision.1 It is usually liberals who make this charge. While I don't have any specific person in mind, it is curious that the latest liberal cause du jour has been to urge judges to consider the opinions of foreign courts. How are judges supposed to be capable of accomplishing that task? If a judge, despite American legal training, finds it too difficult to understand the history and context of the American Constitution, how likely is it that the judge will be capable of understanding all that is relevant about decisions written in another language and in a completely different context?

There's more in his post.

I've often heard Einstein's supposed line expressing skepticism about quantum mechanics: "God doesn't play dice with the universe." I somehow hadn't heard, though, Niels Bohr's supposed response: "Einstein, don't tell God what to do."

It's a funny commentary, I think, on the role of intuitive judgments of plausibility in evaluating scientific theory. Thanks to Damien Sorresso (in the Huffington Post comments) for the pointer.

Michael Shermer -- with whose views I often agree -- posts at Huffington Post about the evolutionism/creationism debates; and in the process he says two things that strike me as worth considering together:

The primary reason we are experiencing this peculiarly American phenomenon of evolution denial (the doppelganger of Holocaust denial), is that a small but vocal minority of religious fundamentalists misread the theory of evolution as a challenge to their deeply held religious convictions.

OK, sounds plausible on its own (though I’ll say some more about it later) -- the theory of evolution doesn’t speak to whether God exists or what he has done, but simply aims to explain how things likely happened, and if you believe that God made them happen that way, that’s something the theory just doesn’t discuss. But here’s another quote from earlier in the piece (emphasis added):

In March of 2001 the Gallup News Service reported the results of their survey that found 45 percent of Americans agree with the statement “God created human beings pretty much in their present form at one time within the last 10,000 years or so,” while 37 percent preferred a blended belief that “Human beings have developed over millions of years from less advanced forms of life, but God guided this process,” and a paltry 12 percent accepted the standard scientific theory that “Human beings have developed over millions of years from less advanced forms of life, but God had no part in this process.”

Well, if “the standard scientific theory” is that “God had no part” in the process of evolution -- not just that human beings developed in a particular way, but that God didn’t guide this -- then it seems to me that the theory of evolution is a challenge to many people’s deeply held religious convictions. And that’s so not just as to the young-earthers who believe the Earth was created several thousand years ago, but also to people who are willing to embrace the scientific evidence but see the guiding hand of God in the process.

What’s more, how exactly do scientists come to the conclusion that “God had no part in this process”? What’s their proof? That’s the sort of thing that can’t really be proved, it seems to me -- which makes it sound as if scientists, despite their protestations of requiring proof rather than faith, make assertions about God that they can’t prove.

And on top of that, if the standard scientific theory is that “God had no part in this process,” then the opponents of evolution are right -- the standard theory of evolution may not be taught in the schools. The Court has repeatedly said that the Establishment Clause bars both government endorsement and disapproval of religion. Teaching that God exists and teaching that God doesn’t exist are both unconstitutional in government-run schools. Likewise, if teaching that God created humans is unconstitutional, so is teaching that God had no part in creating humans.

Now here’s what I think Mr. Shermer is driving at by saying that “God had no part in this process” is the standard scientific theory: The standard theory tries to explain how humans might have evolved without calling on God as an explanation. This isn’t because scientists can prove that God doesn’t exist in any logical or even empirical sense of “prove.” Nor is it because assuming that God had no part in the process is more consistent with the facts than assuming that he did have a part in the process; the God assumption is perfecty consistent with the facts. Nor is it even because in some abstract sense omitting God yields the simplest explanation; “God did it” (3 words!) is a much simpler explanation than the theory of evolution.

Rather, looking for naturalistic causes is standard scientific operating procedure because it seems more likely to produce more useful results, and has in the past produced useful results. Science can’t prove to us that there are no angels pushing planets around the sky; maybe they do push the planets around, though in extremely regular patterns. But if you look for a naturalistic explanation, you’re more likely to come up with useful, predictive explanations of the world than “the angels are doing it.”

In that sense, the theory may be described as “Human beings have developed over millions of years from less advanced forms of life, and we can explain that without bringing in God’s intervention.” Many scientists conclude that this explanation makes it more plausible that God had no part in the process. Others may conclude that if there’s no evidence supporting the existence of some influence, it’s methodologically more useful to assume that the influence doesn’t exist until some supporting evidence is found. Still others may use “God had no part in this process” as shorthand for “God had no observable part in this process.”

Nonetheless, the phrasing that the poll used -- and the one that Mr. Shermer endorsed as the scientifically proper theory -- didn’t include these subtleties. It essentially asked people to decide whether, given that they thought that humans evolved from less advanced life forms, “God guided this process” (which could include the most indirect sort of guidance, perhaps guidance that yields results identical to the naturalistically predicted results, or guidance in the form of having created the world that yielded this process) or “God had no part” -- not an indirect part, but no part at all -- “in this process.” Small wonder that many religious Americans, even those who are quite happy to accept evolution, preferred the approach that’s consistent with the theory of evolution but that let them acknowledge their religious faith. And small reason, it seems to me, to complain. (The “created in the last 10,000 years” group, on the other hand, is definitely reason to complain.)

In fact, science is deeply subversive of religious belief in what one might call “descriptive religion” (religious claims that purport to describe what exists, what happened, what is happening, or what will happen, as opposed to purporting to make normative assertions about what’s morally right and morally wrong). This is not because science in some logical sense disproves such assertions. Rather, the scientific mindset, for better or worse, leads people to find descriptive religious claims less plausible.

The more science explains processes that were once thought to be divinely or supernaturally operated (the movement of the planets, the spread of disease), the more likely it is, I think, that people will be skeptical of other claims of divine or supernaturally operated processes; that’s not a logical mandate, but it is a psychological effect. The more science trains people to be skeptical about descriptive claims in the absence of evidence that leads us to endorse those claims, the more people will question things that they are asked to take on faith. There are certainly scientists who are religious (even in the “descriptive religion” sense); it is possible to have a scientific worldview but believe in descriptive religion. But the spread of scientific habits and principles makes it less likely that people will accept descriptive religion.

Yet scientific popularizers and educators have to deal with the fact that in our society, many people are still religious, and still accept descriptive religion (at least ostensibly). If the popularizers and educators describe science as taking no stand on the existence or influence of God, and as leaving such questions to others, I think they’ll have great success; and, whether they want to or not, they will indeed further undermine descriptive religion. But if they insist, in my view unnecessarily, that the standard scientific theory does take a stand that God is not influencing the world -- and that accepting evolution as the best scientific hypothesis while seeing God’s hand in its operation is an inferior conclusion that is worthy of scientific criticism -- then they will encounter much more resistance.

I have turned on comments; please, keep them polite, substantive, on-topic, and nonobvious.

I used to be pretty firmly against having comments, but Orin's experiment with allowing them led me to dip my toe in the water, and now I've tumbled down the slippery slope.

I expected most comments to be thoughtful, on-topic, and interesting, and they have been. But I've been struck by just how many good comments there have been, and how few bad ones I've seen.

I know, I know, famous last words, and maybe I've just jinxed it. Still, I've been very pleased by the results, and my sense is that many readers enjoy being able to comment (and even to read others' comments), so that's a plus. I expect to enable comments on most of my posts in the future.

It was in the news several days ago, but I missed it, and thought other readers might have, too:

The federal government has asked the National Academy of Sciences not to publish a research paper that feds describe as a "road map for terrorists" on how to contaminate the nation's milk supply.

The research paper on biological terrorism, by Stanford University professor Lawrence M. Wein and graduate student Yifan Liu, provides details on how terrorists might attack the milk supply and offers suggestions on how to safeguard it.

The paper appeared briefly May 30 on a password-protected area of the National Academy of Science's Web site. . . . [T]he Department of Health and Human Services, which asked the academy to stop the article's publication. . . .

The paper gives "very detailed information on vulnerability nodes" in the milk supply chain and "includes . . . very precise information on the dosage of botulinum toxin needed to contaminate the milk supply to kill or injure large numbers of people," [HHS Assistant Secretary Stewart Simonson wrote in a letter to the science academy chief Dr. Bruce Alberts]. . . .

The NAS did indeed pull down the paper and delay its publication, and they're apparently reviewing it further. I'm naturally interested in this as an example of crime-facilitating speech — but also as the father of a boy who drinks lots of milk.

The NAS is a private organization, and as best I can tell, this was a request, not a command or even a threat, so there's no First Amendment problem here. But it's still an interesting question about public safety, scientific openness, and what mix (and timing) of openness and secrecy is the best way to deal with potential security problems.

Wein describes the problem in the course of arguing in favor of some potential solutions, such as "that the FDA guidelines for locking milk tanks should be made mandatory, and . . . the dairy industry should improve pasteurization to eliminate toxins." To get such potentially expensive procedures implemented, one may well need to explain precisely why they're necessary, and do so publicly, so that it's harder to sweep the objections under the rug. On the other hand, there are obvious costs to public disclosure, too. A hard and important question.

Comments are enabled -- please keep them on-topic, substantive, and polite.

Given Todd's post below, I thought I'd repeat something I discussed in more detail a year and a half ago:

1. Inside the typical piece of glass — whether eyeglasses or a wine bottle — there's a knife waiting to get out, and one that's likely much sharper than a pair of nail scissors.

2. If we can't fight off a hijacker who's armed with a pair of nail scissors, then we deserve to lose.

UPDATE: I originally said "nail clippers"; reader Robert Lyman points out that the TSA now allows nail clippers, but not "scissors-metail with pointed tips," which includes the nail scissors that I much prefer over nail clippers. I've changed the post accordingly. Also, metal dinner knives (except "round-bladed knives" and "butter knives," which I think excludes even the usual, relatively blunt, metal dinner knives) are barred, and are therefore barred in restaurants that are within the airport's security zone.

The Foundation for Individual Rights in Education — whose assertions I've generally found to be quite trustworthy, and which backs them up with links to original documents — writes:

[Eliana] Campos’ tribulations began on March 23, 2005, when she went to [Seminole Community College] Student Activities Specialist Gail Agor to request permission to sit at a table and pass out literature from PETA. Agor refused her request and later justified it by writing, “Eliana, maybe you wouldn’t insult or yell, but PETA instills a feeling in me that I can’t, and won’t, take a chance on campus. [sic] ... I feel this is a set up for conflict.” She told Campos that she would only be allowed to “stand and speak freely” about her beliefs in the college’s tiny and ill-defined “free speech area.” . . .

FIRE wrote to SCC President E. Ann McGee on April 18, pointing out that Agor’s decision constituted discrimination against the student’s views and that SCC’s free speech zone policy was unconstitutional. In a response, Vice President James D. Henningsen wrote that Agor’s comments were not “authorized,” and that future requests would be considered on a content-neutral basis. However, he attached to his letter e-mails indicating that Campos could protest only in the free speech zone, and that only “registered student organizations” could table in the café.

Campos repeatedly requested a written copy of the alleged policy restricting café tables to student organizations, but was supplied only with another copy of the free speech zone policy — which does not mention the café. FIRE criticized SCC’s inability to produce the supposed student organizations-only policy in a June 7 reply to Henningsen, but has received no reply. . . .

Really, though I don't understand why PETA literature would set anything up for conflict.

UPDATE: FIRE reports that "Just hours after the story broke, FIRE received a letter from SCC indicating that the college would now allow Campos to distribute her literature outside of the free speech zone and on equal terms with other students and student groups. SCC has also promised to review and recommend changes to its speech policies to ensure students’ constitutional rights are respected." Pleased to hear it.

Robert Samuelson writes, in the Washington Post:

Europe as we know it is slowly going out of business. . . . It's hard to be a great power if your population is shriveling. Europe's birthrates have dropped well below the replacement rate of 2.1 children for each woman of childbearing age. For Western Europe as a whole, the rate is 1.5. It's 1.4 in Germany and 1.3 in Italy. In a century — if these rates continue — there won't be many Germans in Germany or Italians in Italy. Even assuming some increase in birthrates and continued immigration, Western Europe's population grows dramatically grayer, projects the U.S. Census Bureau. Now about one-sixth of the population is 65 and older. By 2030 that would be one-fourth, and by 2050 almost one-third. . . .

There's much to Mr. Samuelson's article, which may well be generally correct. But I think it's something of a mistake to make demographic predictions for what happens "in a century" "if these rates continue," or even in 2050. I doubt that a century ago we could have anticipated the demographics of Europe in 2005; I doubt that 45 years ago we could have anticipated the demographics of the U.S. in 2005 [UPDATE: I particularly had in mind the magnitude of Hispanic and Asian immigration, especially given that Asian immigration was largely opened up by a political decision in the mid-1960s]; I doubt that today we can anticipate the demographics of Europe in 2105 or even 2050. I doubt, for instance, that someone 100 or even 45 years ago could have guessed Italy, seat of the Papacy, would have such a low birth rate.

Too much depends on shifts in culture, immigration, economics, and to some extent medicine. Some things one can plan on with somewhat more confidence: People who are 30 today will be 75 in 2050, and barring a major war, plague, massive emigration, or massive immigration of older people one can make a good guess about how many of these 75-year-olds there'll be in 2050. (Immigration, I suspect, is the main variable, but one can have a decent idea of how many will immigrate in the next 10 years, and past that we're talking about immigration of 40-to-75-year-olds, which I suspect is rarer than immigration of younger people.)

But birth rates and rates of immigration of young people are, I think, much harder to estimate. And it seems to me a mistake to just assume that things will stay more or less the same over that long a timespan. They rarely do.

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I agree with Juan's criticisms of the "bloggers as digital mob" argument, and just wanted to add this: The reason that we dislike mobs is that they have the power to cause physical damage entirely unrelated to the persuasiveness of their ideas.

But when bloggers "hound[] . . . prominent newsmen from their jobs," they don't do it through force -- nor do they do it through "extravagant opinions" as such. A news organization isn't going to fire someone because people express unfounded opinions about them; and to the extent the news organization fears public reaction to unfounded opinions, it has plenty of opportunity to make its own case to the public. Unlike some of the targets of media criticism, the media targets of blog criticism have ample means to publicly defend themselves. The wealthy established media should have little difficulty rebutting unfounded opinions spread by amateur bloggers.

Of course, when the opinions, however extravagant, are actually well-founded, the media may well respond to them. And prominent newsmen who have indeed done something wrong may be dismissed by their employers, not because some oh-so-scary "digital mob" is threatening to rip apart the jail if the prisoner isn't handed over, but because bloggers are making a persuasive case that the newsmen have indeed badly erred. "Blogs can . . . be destructive and unaccountable," the Technology Review story says. Yet they are accountable in the simplest and most effective way: If their charges against newsmen aren't persuasive, there'll be little reason for the newsmen's employers to act on those charges.

Finally, Technology Review complains, even though "[p]erhaps all three men deserved their fates; maybe the blogosphere is to be applauded," "bloggers expressed an unseemly triumph after they got their man." Heaven forfend! "There's a mob outside the window, Sheriff -- and they're . . . gloating." "What has this country come to, deputy? I guess we'd better give them what they want."

Let's just say that if "mobs" were simply famous for persuading media employers, through the force of their reasoning, to fire errant newsmen, and then "express[ing] . . . unseemly triumph," then "mob" wouldn't be much of a pejorative.

Eric Muller (IsThatLegal?) points to more unattributed copying in a dean's graduation speech -- but this is copying of someone else's witticisms, rather than of someone else's serious analysis.

I'm not sure whether such copying is particularly bad. Witticisms, jokes, and other amusing turns of phrase lose much of their charm if you need to prefix them with "As X said" or "This reminds me of Y's joke" or "Here's a joke that Z tells" -- especially if you need to repeat these lines a couple of dozen times in the course of a speech. In practice, we tend to avoid giving credit by the simple expedient of not knowing whom to credit; precisely because people retell jokes without attributing them, we usually have no idea who first said something. But what if you know the source? Or what if you can find it by googling? Do you have an obligation to track down the sources and give them credit in the speech, even if that means boring and annoying the audience?

Now one reaction might be "tough luck": If you don't want to give credit, make up your own gags, or omit them altogether. But speeches like this are an odd genre -- they are generally expected to have some wit in them, but they must often be written by people who aren't professional wits. We can reasonably demand, I think, that a professional comic come up with his own material; I am told that comics who are known for stealing material are condemned by their fellows. But should we really ask this of the many people whose non-comedy jobs nonetheless require them to give speeches that include some comic relief?

Recall also that of the two chief harms of plagiarism -- harm to the reader, who is led to give the plagiarist undeserved credit for originality, and harm to the source, who is denied deserved credit for his originality -- only the second is potentially present here. People generally don't expect humor to be original (again, possibly except when a professional comic is speaking); if they give the speaker credit, it tends to be credit for selecting good gags, not necessarily for crafting them. So is this harm to the original source serious enough to require (1) boring speeches, (2) speeches punctuated with annoying giving of credit, (3) speakers investing a huge amount of effort in coming up with their own gags, something that isn't in a dean's job description, or (4) professional gagwriters hired by graduation speakers?

Finally, if I'm right that most of us don't come up with our own jokes, it's pretty likely that the person from whom the work is copied isn't the original author of the gag. If one is writing a scholarly article, the solution is to drop a footnote just in case (such footnotes are much less distracting to readers than verbal footnotes are to listeners), or to invest some effort in deciding who the gag's original author may be. But I'm not sure that the same should be required for graduation speeches. (Reprints of the speech are a different matter.)

Or am I mistaken? Should we really have a give-credit-or-discard-the-gag norm, even in oral presentations? If so, what if you know the gag isn't yours, but you don't know whose it is; how much of an obligation do you have to try to track down the original source? Should this norm extend to television and radio comments, or is broadcasting time so limited that you can drop the attribution there even if you can't in a commencement speech?

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under the New Jersey Constitution, the New Jersey intermediate appellate court holds, by a 2-1 vote — one dissenter would have held that the opposite-sex-only rule in New Jersey law violates the state constitution.

UPDATE: Daniel Schmutter points out that, because there's a dissent, the losers have a right to have the New Jersey Supreme Court hear their appeal on the merits. (Otherwise, the state supreme court, like many supreme courts, would have had the discretion to just let the appellate decision stand without further detailed review, if it concluded based on a cursory look that the constitutional claim wasn't "substantial.").

Please post them here; please keep them on-topic, substantive, and polite. (Because of a glitch, I couldn't add them to the original post.)

Would you get marked down for that? I'm speaking of this CNN item, reporting on this study [UPDATE: Reader Margaret Schoen suggests that though this is hosted on the CNN site, and includes the CNN logo on top, it may just be a Netscape News reprint of a press release; in any event the substantive analysis below stands]:

States Ranked: Smartest to Dumbest

The smartest state in the union for the second consecutive year is Massachusetts.

The dumbest, for the third year in a row, is New Mexico.

These are the findings of the Education State Rankings, a survey by Morgan Quitno Press of hundreds of public school systems in all 50 states. States were graded on a variety of factors based on how they compare to the national average. These included such positive attributes as per-pupil expenditures, public high school graduation rates, average class size, student reading and math proficiency, and pupil-teacher ratios. States received negative points for high drop-out rates and physical violence.

I have an idea: Let's have a Baseball Teams Ranked: Most Talented to Least Talented, and grade a team's talents based in part on how much it spends on salaries, how large its farm team network is, how many fights the baseball players get into, and so on. What, you say? Doesn't make sense? Some teams waste lots of money, while others spend less but do it more efficiently? A baseball player's tendency to fight may be unsporting, but doesn't show lack of talent?

My point exactly. If you want to measure how well-educated a state's students are (something that you might label "smarter" without much journalistic license), do that. You might have to use imperfect proxies, such as proficiency exam scores or graduation rates, but that's the best you can do. (After all, won-loss records are imperfect proxies of baseball talent, too, but we rely on them.)

But don't separately count per-pupil expenditures or average class size. If spending more and having smaller classes improves performance, then that will show up on the performance measures. And if it doesn't show up there, then why count it as "smart"?

I've enabled comments; please keep them on-topic, substantive, and polite.

UPDATE: Just to preempt a possible objection: It's also possible to characterize the study as misdesigned, for including the spending factors. But I'm most galled by the inaccuracy of how the study's results are misleadingly characterized. "Top-ranked," while a bit tautological, would at least not make any unsupported claims; but "smartest"? That's just not a candid way of reporting on what the study measured.

At the end of an otherwise quite interesting Slate piece, which discusses the potential development of a "consciometer" — a medical device for measuring consciousness — the author shifts from science to law and morality (paragraph break added):

As leading neuroscientist Michael Gazzaniga . . . describes . . ., current neurology suggests that a fetus doesn't possess enough neural structure to harbor consciousness until about 26 weeks, when it first seems to react to pain. Before that, the fetal neural structure is about as sophisticated as that of a sea slug and its EEG as flat and unorganized as that of someone brain-dead.

The consciometer may not put the abortion issue to rest — given the deeply held religious and moral views on all sides, it's hard to imagine that anything could. But by adding a definitive neurophysiological marker to the historical and secular precedents allowing abortion in the first two-thirds of pregnancy, it may greatly buttress the status quo or even slightly push back the 23-week boundary.

There is another possibility. The implications of the consciometer could create a backlash that displaces science as the legal arbiter of when life ends and begins. Such a shift — a rejection of science not because it is vague but because it is exact — would be a strange development, running counter to the American legal tradition. Should a fundamentalist view of life trump rationalist legal philosophy? Roe v. Wade considered this question explicitly and answered no. For nonfundamentalists, that probably still seems right.

This is a deep error; and it can be called "scientific fundamentalism" because of its tendency (similar to that in the most unpersuasive versions of religious fundamentalism) to assume that If It Isn't In [Science / The Bible / The Koran], It Doesn't Matter.

What rule we should use for deciding when someone should have the legal right not to be killed is not a scientific question. Applying the rule may be a scientific question; if we decide that only entities that have consciousness have the right not to be killed, then science can tell us whether John Smith has consciousness. But deciding on the rule is simply not a scientific issue: It's a matter of moral judgment, which science isn't equipped to provide. Science can't tell us whether the legal right not to be killed vests at conception, at viability, at consciousness, or at birth; nor can it tell us when the right dissipates.

Let's take a simple hypothetical, which I hope can persuade even people who feel a deep intuition that the right to be killed is closely connected to consciousness. Say it turns out that there's a disease that temporarily caused someone to lose consciousness — not just in the sense of sleeping or getting knocked out, but in the sense of mental functioning largely ceasing — but there was every reason to think that in several months the person would regain consciousness. Would it be OK to kill him then? (I realize that this is likely a counterfactual hypothetical, but I think it's still useful; and one can certainly imagine some future medical procedure that would turn off someone's mental functioning but keep the potential for functioning present, by stopping the brain from atrophying.)

I take it that the answer is "no," because the test wouldn't simply be whether the person is conscious; potential for consciousness, perhaps coupled with some other factors, would suffice. But why not then for a week-old fetus, which also has the potential for consciousness?

Naturally, there are answers to this; the hypothetical isn't meant to support the life-begins-at-conception position. One could, for instance, argue that the test should be whether the entity either has consciousness, or has had consciousness and seems likely to recover it. Or one could say that the test should be whether the entity has the bulk of the physical equipment needed to support consciousness, even if consciousness is temporarily absent. These may or may not be perfectly sensible arguments. But science can't prove the validity or invalidity of these arguments. Nothing in biology, chemistry, physics, or any other science speaks to whether these tests ought to be the tests for a right not to be killed.

So it makes little sense to say to someone who believes that the right not to be killed begins at conception: "You are a fundamentalist who wants to displace science as the legal arbiter of when life ends and begins, rather than the rationalist legal philosopher you ought to be — see this conscionometer that clearly proves that this fetus doesn't have consciousness, has never had consciousness, and currently lacks the physical equipment needed for consciousness, even though in several months it is nearly certain to have consciousness." The conscionometer answers a particular question, but it tells us nothing about why this should be the right question. And if you've concluded that "does it have consciousness?" (or some variant of that) is the right question, that's a moral conclusion, not a scientific one.

I can certainly see why some people, especially those who love science, might want to believe that science should be "the legal arbiter of when life ends and begins," and why they want to think that their moral intuitions are simply "rationalist legal philosophy" and any contrary moral intuitions are "a rejection of science." But they are mistaken; and they are in their own way victims of a fundamentalist (and fundamentally erroneous) perception of the role of science.

UPDATE: I had a problem enabling comments, so I've posted a new post (linked to below) that lets you post comments.

Should U.S. judges and U.S. politicians follow the views of "international opinion" on certain subjects? People who say yes often appeal to the Declaration of Independence's reference to what "a decent respect for the opinions of mankind" requires us to do.

But, as Eugene Kontorovich, a lawprof at George Mason, points out, in an eminently readable 8-page article (emphasis added),

[The Declaration] shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.

Moreover, the Declaration was specifically drafted as an appeal for arms and money. The Founders understood that these would only be forthcoming if Britain’s Continental enemies thought the Colonists were committed to the fight for the long haul. Thus the “opinions” in question are opinions about the likely perseverance of the Colonists, not the legality of their rebellion. And the “mankind” in question is France and Spain.

If the Declaration reveals anything about the relevance of foreign law to constitutional interpretation . . . it suggests that the Founders’ interest in the “opinions of mankind” did not involve their opinions on the legality of American actions. . . .

Well put — and in retrospect obvious, though it's the sort of obvious that people often miss, as I'm afraid I had until I read Kontorovich's piece.

(Of course, respect for foreign opinion may still be practically useful, both to win over foreigners and perhaps even to help us consider whether we might be mistaken in our own views. The point here is simply that the Declaration of Independence can't be soundly used as an argument that the Framers believed that such respect requires us to adhere -- or even to seriously consider -- international views about the legality of our actions.)

Someone asked on a lawprofs' discussion list whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory. (Recall that the Supreme Court has held that the First Amendment doesn't protect "obscenity," which roughly means hard-core porn, in those communities that object to such porn; these laws haven't been enforced much recently, and with the Internet there may be little that the government can do about it, but the principle is that while much sexually themed material is protected, the really hard-core stuff is not, if the community to which its distrbuted finds it "patently offensive.") This led me to think a bit more about the subject, and cobble together a quick post that I thought I'd also post here.

I can imagine (at least) three readings of Lawrence:

1. Lawrence secures a right to sexual autonomy as such. If this is so, then the case for protecting porn becomes considerably stronger. Some people get the most pleasure from oral sex, some from anal sex, some from using sexual devices, some from consensual sex with handcuffs, some from consensual whipping, some from looking at sexual pictures with a sex partner, some from looking at sexual pictures by themselves. Under a pure sexual autonomy reading of Lawrence, all these would be protected; and the distribution of material necessary for them to operate would be protected, too, at least unless the government shows a strong enough reason to restrict them (which I take it wouldn't be easy for pornography in general).

2. Lawrence secures a right to sexual autonomy in the service of human relationships, possibly even relatively emotionally serious human relationships. If this is so, then restrictions that don't materially burden the ability to develop those relationships might well be permissible. Unless we think quite a few people really need porn for their relationship with another person — not impossible, but I know of no evidence that this is so — then a ban on distributing porn would be constitutional.

How far, though, would this theory go. Say the government bans anal sex on the grounds that anyone (gay or straight) can at least engage in oral sex instead, and still have a sexual relationship that for most people would presumably be at least modestly gratifying. Would that be categorically permissible (with no need for any strict scrutiny analysis; I set aside the question whether anal sex could be banned on the grounds that it's disproportionately likely to spread disease)? Is one possible distinction that most gay men would find the limitation to be quite burdensome, even if it doesn't completely eliminate their sexual options in the contexts of the emotional and sexual relationships that work for them? What if 4% of the male population found that sex with their partners just isn't exciting without porn?

3. Lawrence secures a right to sexual autonomy in the service of human relationships, but for dignitary and practical reasons precludes the government from inquiring into just what kind of sex people really need. If that's so, then distribution of porn should be protected, because some couples use porn for sexual gratification. Should it matter that most porn is used solo (if that is indeed so)? I presume not, at least if the question is whether we have heightened scrutiny, rather than whether heightened scrutiny is passed. The question under this approach would be whether a considerable number of couples use porn as part of their sex acts within a relationship, just like they use their mouths or anuses as parts of their sex acts; if so, then heightened scrutiny would be required.

(Note that none of this deals with limits on the production of porn using human actors, which might be justified on the grounds of preventing sexually transmitted diseases, preventing the exchange of sex for money — which is involved in the making of porn with professional actors — and so on. Such limits might well not much burden any "right to sex," since even if new porn were entirely banned, there'd be a vast reservoir of preexisting porn that should satisfy the tastes of most people. [I set aside here a couple's self-produced sexually themed movies aimed at their own gratification; query whether they'd be protected in any event under Stanley v. Georgia, a 1969 case that held that private possession of even obscene materials can't be legally punished.] On the other hand, especially these days, porn can be computer-produced without any human beings at all, and the actor-protection rationale wouldn't justify bans on such material.)

So the case for a right to get pornography as part of a right to sex (even setting aside a right to free speech) seems plausible though not open-and-shut. I would expect that if the issue came up now, the Supreme Court would limit Lawrence using some version of rationale 2. But I also suspect that many people, including lawyers, will interalize Lawrence as a broad right to sex case, and adopt rationale 1 as their interpretation; and over time, that (mis?)interpretation may affect legal norms to the point that porn would indeed be protected on sexual rights grounds.

UPDATE: This discussion was triggered by the Extreme Associates case, a district court decision that in fact held that obscenity laws were unconstitutional given Lawrence. I think that this decision is the wrong one for a district court to make; given both the Miller and Lawrence Supreme Court precedents, the better view is that obscenity law is still very much constitutional. (There are possible counterarguments, but I won't go into them here.) The question that I discuss here is what the Supreme Court is ultimately likely to do with this, not what lower courts should do in the meantime.

See Sally Greene's post on this; the story has made the Chronicle of Higher Education.

This strikes me, for a variety of reasons, as a lesser sin that plagiarism in a scholarly publication — but it's a sin nonetheless. Eric Muller (IsThatLegal?) has more; and thanks to him for the pointer.

UPDATE: See (1) the dean's explanation and apology, on the History News Network; (2) evidence of more copying, though this time of witticisms rather than serious analysis; (3) Ralph Luker's comments on both instances of copying; and (4) this post of mine for some thoughts on unattributed copying of witticisms in a speech.

Prof. Bainbridge offers a dissenting opinion to the West Virginia Supreme Court's decision. I think his argument is quite powerful, though I think it's weakened by the "gun nut" references.

You don't have to be a "gun nut" or a "nut" of any sort to want to defend yourself against a criminal, to applaud others who do so, or even to endorse limitations on employment at will when people are fired for exercising their right to self-defense. Conversely, one can conclude that employers should be free to set up their own rules here, or even conclude that employers are wise to set up a no-self-defense (or no-self-defense-with-guns) rule — a matter on which I express no opinion here — without condemning the other side as "gun nuts."

UPDATE: Clayton Cramer takes a similar view.

Clint Bolick (President and General Counsel for the Alliance for School Choice) vs. Laura Underkuffler (Professor at Duke Law School); should be much worth reading.

Today marks the 30th anniversary of my family's and my leaving the then-Soviet Union.