I've often found the arguments in Slate's new "Has-Been" column/blog (written by Bruce Reed, "who was President Clinton's domestic policy adviser, [and] is president of the Democratic Leadership Council and editor-in-chief of Blueprint magazine") to be rather puzzling. Here's the most recent example:

. . . The Post reports that in 1981, John Roberts sent a memo to Sandra Day O'Connor advising her to plead the 5th if asked about her views on legal questions. Roberts warned that answering questions would raise the "appearance of impropriety" and prejudice her views in future cases before the Court. . . .

[I]f it's improper for future Court justices to discuss specific legal questions and precedents, why do we need law schools?

In a few weeks, thousands of first-years will raise their hands for the first time in Civil Procedure class and begin compromising their futures as blank-slate Supreme Court justices. Pity the 1-L who shows up unprepared for class and tries to convince the professor that answering any questions would raise an "appearance of impropriety." . . .

What an odd and, in my view, inapt comparison. (Yes, I realize that it's supposed to be funny or witty, but I take it that it's also intended to make a serious point.)

1. To begin with, if you really want to play out the analogy, it seems to me that any law students would be entirely within his rights not to express his views about certain subjects. The student must be able to make arguments about those subjects, and understand others' arguments. But if I ask a student what he thinks about Roe v. Wade, a student tells me "I'd rather not express my views about abortion, but here are the arguments for the decision and here are the arguments against it," I would gladly accept such an answer. In fact, I think it would be unethical for me to insist that a student reveal his own views in such a context, since such a revelation would be quite burdensome on his privacy, and would give very little pedagogical benefit. (It's sometimes useful to know a student's views, for instance when I deliberately try to get students to argue against their own views, but this utility is in my view outweighed by the student's privacy.)

2. Of course, Senators understandably care about nominees' personal views on legal questions, though professors generally don't and shouldn't care about their students' views on legal questions. But that just highlights the inaptness of the analogy between questions asked of nominees and questions asked of students. Students are asked questions to gauge their knowledge; nominees are asked questions to predict how they will vote.

3. And of course an "appearance of impropriety" response from a student is silly for the simple reason that the student's answer won't create an appearance of impropriety. Probably 99% of students won't become judges, and we generally make rules with an eye towards the 99% rather than the 1%. Even as to the remaining 1%, few people will think that an answer given in law school will lead the judge to feel bound by the answer — and thus unable to reconsider the issue based on the parties' arguments — thirty years later.

On the other hand, as I argued in more detail here — and as lots of people have said, and Mr. Reed must surely have heard — there is at least a plausible argument that a nominee's expressions of his views at confirmation hearings may indeed improperly constrain him in the future:

[I]magine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. “Perjury!” partisans on the relevant side will likely cry: They’ll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers’ expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge’s duty to sincerely consider the parties’ arguments.

Now one can surely argue that, despite this risk, the nominee should be required to express his views, because the representatives of the people are entitled to consider those views when deciding whether to give him a position of great power. But Mr. Reed's misplaced law school analogy, it seems to me, does nothing to advance this argument.

Henry Farrell (Crooked Timber) is running, in response to my query about Westerners who defend the Iraqi insurgents, a query about people who "make egregious claims that a substantial section of those who opposed the war are, in fact, rooting for the other side."

Falsely claiming that someone (or the majority of some group) is rooting for the bad guys in a war is indeed pretty egregious misbehavior. (Accurately claiming that, of course, is not egregious.) I haven't followed the responses, so I can't speak to their merits, but to the extent that they uncover and condemn such false claims, they are doing reasoned debate (and basic decency and fairness) a great service.

As to whether it is indeed accurate to say that a "substantial section of those who opposed the war" is rooting for the other side, I can't speak helpfully to that, since "substantial" is pretty vague, and since I haven't followed closely the range of public commentary on the subject. My tentative guess is that the percentages of Americans and Europeans who want America to lose in Iraq may be quite different, though I'm not sure. But whether the number is "substantial" in either place is hard to tell in any objective fashion.

Ronald Bailey (Hit & Run) writes:

What Is Diversity Anyway?

"The white populations of the District, Arlington and Alexandria have grown this decade even as the region's outer counties have grown more diverse, according to new census estimates," according to a story in yesterday's Washington Post. As a part-time resident of DC, I was curious about the Post's take on the idea of what constitutes increasing or decreasing diversity in any community. The Post noted that the percentage of whites living in town rose from 28.2 percent in 2000 to 30.3 percent in 2004. My puzzlement is whether this represents an increase in "diversity" or not? Or as the Post story seems to imply, is "diversity" maximized when no white people live in a community at all? Just wondering.

his memos, decisions, oral argument transcripts, questionnaire responses, and more -- are linked to from this Washington Post page.

In response to my recent quote of an OpinionJournal post, some people questioned whether there really are a substantial number of Western commentators who defend the Iraqi insurgents, or at least justify their actions as being a supposed campaign for self-determination, allegedly justifiable rage at Western misbehavior, and so on. I think this is a good opportunity to collect examples of such people, to show that they do exist, and are worth criticizing.

If you have some such worthies in mind, please post the following in the comments:

1. The name and brief description of the person (e.g., columnist for this or that newspaper, official in this or that prominent organization).

2. An exact quote in which they defend the insurgents or seek to justify their actions.

3. The URL of the article where the quote can be found. Please refer to original sources, rather than copies of the sources on other sites, copies of copies, and so on. (If you have LEXIS access and found the article there, but the article is not available online, include the name of the newspaper, magazine, or broadcast, the date, and the name of the article.)

Please also

• Stick with quotes that are pretty unambiguous — no need to dilute the clear stuff with questionable material.

• Stick with journalists, officials, or at least famous people; avoid comments by unknown people on others' blogs.

• Check the thread before posting, to avoid duplication.

Many thanks — this should be a useful resource for people who want to respond to questions about whether such people actually exist. (For a sample of where I've done this once before on another topic, see my page on calls for total bans of handguns or all guns, which I posted in response to the common argument that supposedly "no one is talking about banning guns, so your slippery slope concerns are just paranoia.")

Sometimes, in idle moments, I notice patterns in numbers I see, for instance phone numbers. For some reason, they especially relate to sums and differences and multiples of 9. (Is it just me, or do others do this, too?)

So, if I see a number that starts with 357, I might observe that 7+5-3 = 9. If it starts with 263, I notice that 6+3 = 9 (though I have to throw out the 2). If it starts with 442, that's obvious: 4-4 = 0. But for some 3-digit prefixes, you can't do that — UCLA's 825, for instance, can't yield a multiple of 9 no matter how you add or subtract any (nonempty) subset of the digits.

(1) What about the 4-digit suffixes? Is it the case that for any 4-digit suffix, you can find some nonempty subset (either 1, 2, 3, or 4 of the digits) such that, when the proper +s or -s are inserted, you can get a multiple of 9? My office suffix, 3926, is too easy, since 9 alone is a multiple of 9, as of course is 3+6. What about others?

(2) More generally, say that you're looking for multiples of some number N (or, if you want to make it less general, use N=29). What is the lowest number X such that for any X positive integers, it is guaranteed that some nonempty subset of those X integers will, with the proper +s and -s added, yield a multiple of N? Thus, can you be sure that for any 4 integers, some subset will with the right +s and -s yield a multiple of 29? What about for any 5 integers? For any 6 integers?

REMINDERS: (A) Only addition and subtraction will qualify. Don't tell me how you can get the result using square roots or multiplication or what have you.

(B) As one of the examples illustrates, it's OK to get to a multiple of N by getting to 0, and subtracting two equal digits if necessary.

(C) Remember that the problem isn't asking for specific sets of positive integers that can be used to get to a multiple of N. It's asking for the lowest number X such thar any set of X integers will be guaranteed to yield a multiple of N (i.e., if you take some nonempty subset of the integers, and throw in +s and -s in the right places, the result will be a multiple of N).

I've deleted the comments posted before this clarification was added.

the AP reports.

OpinionJournal's Best of the Web writes:

The Scotsman has an explanation for the murder in Iraq of journalist Steven Vincent. See if you can finish this sentence:

An American journalist who was shot dead in Basra last week was executed by Shiite extremists who . . .

. . . had been worn down by grinding poverty?

. . . were angry over Israel's treatment of Palestinian Arabs?

. . . resented the presence in their country of foreign troops?

. . . sought to avenge the abuses at Abu Ghraib?

If you said any of the above, you're wrong. Here's the full sentence:

An American journalist who was shot dead in Basra last week was executed by Shiite extremists who knew he was intending to marry his Muslim interpreter, it has emerged.

That's right, Steven Vincent was killed to prevent him from intermarrying. Those Westerners who side with the "Iraqi resistance" against America and its allies are defending the equivalent of the murder of Emmett Till.

UPDATE: Some people interpreted the OpinionJournal item, and this one, as criticizing all opponents of the Iraq War. That's an interpretation that's in the mind of the interpreters -- I see no support for it in the text of the post.

The item is quite clearly a criticism of those Westerners who do endorse the Iraqi "resistance," or at least explain its actions in ways that lessen or eliminate the killers' culpability (poverty, supposed desire for "self-determination," supposedly justifiable anger at various American, Israeli, or other Western sins). That's the group the item identifies. It's the group against which the item's argument makes sense. The item doesn't criticize any broader group of Iraq War opponents.

Fortunately, the group being criticized is not a vast group. So? They're still worth condemning.

His letter is here.

who, as I've mentioned before, is a Blue Massachusetts liberal -- condemns what he calls "NARAL's anti-Roberts smear."

A little-known piece of data that came up in a lunchtime conversation with colleagues a week ago: Unlike homicides, which are highest among older minors and young adults, suicide rates are lower among teenagers, rise in the 20s, rise again in the 30s, and then remain fairly stable, though with an odd trough in the 60s and something of a bump in the 80s.

My sense is that this will be a surprise to many, since media accounts often tend to focus on suicides among the young. That's understandable, because such suicides seem more tragic (more years of life lost), more preventable (on the theory that they're more likely to be impulsive reactions to shocks, such as a lover's departure, that adults over time get used to), and less understandable (since it's less likely that the suicide is a response to an incurable and painful physical illness, which I suspect suicides among the old are more likely to be). But in fact the young are less prone to suicide than the middle-aged and the old.

In any case, here's the data, from CDC's invaluable WISQARS site:

Suicides among women show a somewhat different pattern among the middle-aged and the older, though they're still relatively low among the young:

Figures for men alone are not much different from the total ones, because men account for the great majority of suicides.

Copyright maven Bill Patry has posts about this interesting subject, here and here.

Recall that this is the case in which abortion clinics and abortion rights organizations sought an injunction against anti-abortion trespassers. The federal government filed a friend of the court brief arguing that the federal civil rights statute didn't apply to this behavior, and that the behavior was properly punished by state criminal law and tort law. (For more on the legal issue, read the Court's opinion.) John Roberts cosigned the brief, and delivered the government's oral argument.

I thought I'd add one detail, though, that people haven't noted: Not only was the government's position -- the one that Roberts is faulted for arguing -- accepted by six of the nine Justices, those six included two Justices who voted in favor of recognizing abortion rights in Casey v. Planned Parenthood. Justice Kennedy signed on to the majority opinion in its entirety. Justice Souter agreed with the majority on the issue that had been briefed by the government, but dissented in part because he thought another issue -- which the government's brief and oral argument, as best I can tell, had never addressed -- might be a winner for the plaintiffs. (The majority thought this separate issue hadn't even been presented below; Justice Souter argued that it had been adequately raised; but the government apparently didn't think it was in play, and therefore didn't address it.)

Whether this particular federal statute, as interpreted by the Supreme Court over many decades, should be read as barring illegal private interference with abortion rights, is a contested question -- the Court did split 6-3 on it (Justices Blackmun, Stevens, and O'Connor were in the dissent, Rehnquist, White, Scalia, Kennedy, Souter, and Thomas in the majority). But, as others have pointed out, one can certainly oppose criminal trespass and obstruction of entrances and yet think that this is a matter for state law, not federal law as written in the 1870s and interpreted by the Court since. And it's quite clear that this is an eminently mainstream position, taken by centrists and liberals Justices (e.g., Justices White and Souter) as well as conservatives, and by pro-abortion-rights people (e.g., Justices Kennedy and Souter) as well as by people who believe the Constitution does not secure abortion rights.

and criticizes the NARAL ad:

An abortion-rights group is running an attack ad accusing Supreme Court nominee John Roberts of filing legal papers “supporting . . . a convicted clinic bomber” and of having an ideology that “leads him to excuse violence against other Americans” It shows images of a bombed clinic in Birmingham, Alabama. . . .

In words and images, the ad conveys the idea that Roberts took a legal position excusing bombing of abortion clinics, which is false. . . .

Kaimi Wenger (Prawfsblawg) gives some tips.

A very interesting column by Max Boot.

Yesterday's e-mail brought five orders for the book, and the following kind note:

Just wanted to add my e-mail to those you've already received re Academic Legal Writing.

I bought your book and read it before law school and used it extensively my first year. I was selected for law review and have gotten rave reviews on my writing from my employer. I've even gotten an offer from my firm for employment after law school; I understand that's pretty rare for a 1L. They told me the primary reason for my early offer was my writing.

Thanks again for your excellent book; it's made a great difference in my legal career so far. I plan to recommend it to all the members of law review at my school.

[Name omitted]

P.S. Please feel free to publish this on your site if you'd like, but please remove my name if you do, because I mention employment details.

OK, now I promise to pipe down about the book for a while.

British intelligence is warning the British government about the risk of an Islamist insurgency in Britain; thanks to Michael Totten [guestblogging at InstaPundit]) for the pointer, and for the cautionary words: "Seems a bit overstated to me, but then I’m not an intelligence chief."

Here's my one observation on the subject -- consider this excerpt:

As police and the security services work to prevent another cell murdering civilians, attention is focusing on the pool of migrants to this country from the Horn of Africa and central Asia. MI5 is working to an estimate that more than 10,000 young men from these regions have had at least basic training in light weapons and military explosives.

A well-connected source said there were more than 100,000 people in Britain from "completely militarised" regions, including Somalia and its neighbours in the Horn of Africa, and Afghanistan and territories bordering the country. "Every one of them knows how to use an AK-47," said the source. "About 10 per cent can strip and reassemble such a weapon blindfolded, and probably a similar proportion have some knowledge of how to use military explosives. That adds up to tens of thousands of men." . . .

I too am worried about people who would want to violently revolt against the British government -- but does the point that "[e]very one of them knows how to use an AK-47" really mean much? Using guns is not rocket science. I don't personally know how to use an AK-47, but I'm pretty sure it's not tremendously difficult. Some of our commenters doubtless know more about this, but I suspect that stripping and reassembling it isn't that hard to learn, either. I can't speak confidently about the use of military explosives, but my sense is that those too are designed to be relatively easy to use. (Fighting effectively as a disciplined, trained, and well-led military unit is a different story, but that's not really a matter of knowing how to use an AK-47.)

If there are indeed many thousands of people who want to fight the British government, who are willing to kill many civilians, and who are willing to die doing so (since very many will die), that surely is a problem. But it would be a problem even if they had never touched an AK-47 in their lives. Conversely, I'll bet that very many Americans know all about how to use an AK-47 -- but we needn't worry too much about an Islamist revolt here.

Texas, I've recently learned, leaves child custody questions to juries — an unusual practice. I'd like to talk to a Texas family lawyer who's acquainted with how this practically works out.

Fortunately, my interest is purely academic; this is for my Parent-Child Speech and Child Custody Speech Restrictions piece. (The more family law cases I read, the more resolved I am to stay married.) If you're a Texas family lawyer who is willing to talk to me about this, or can recommend a friend who fits that description, please let me know at volokh at law.ucla.edu, so we can set a time that's convenient for you. Many thanks!

Romer, recall, is the case in which Judge Roberts -- then a partner in Hogan & Hartson -- helped out the gay rights side by participating in a moot court for their Supreme Court argument, apparently because a partner at his firm was involved in the case and wanted Roberts' help. People wonder whether you can tell much from this incident about what Roberts thinks about the underlying issue. I think the answer is "no," and here's a quote that I think helpfully explains why:

"John was building an appellate practice at our firm. And he wanted to be able to have the freedom to bring cases into the firm that were of interest to him. John therefore was open to being helpful to other partners and their clients. Pretty standard for a big law firm practice."

-- Mr. David Leitch, Former Partner with John Roberts at Hogan & Hartson (1987-1990, 1993-2001).

Seems to me that this is precisely how lawyers at big firms -- especially lawyers with Roberts' reputation for affability and collegiality -- operate. I got the quote from a Republican source, but I have no reason to doubt the quote's genuineness.

In my entirely unbiased opinion, my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review is a thoughtful and useful back-to-school gift for such people:

1. First-year students can use it to help them get onto a law journal, and can also use some of the tips in the Writing section for their first-year writing class.
2. Second-year students can use it to write a law journal note.
3. Both second-year and third-year students can use it to write seminar papers, and to do independent writing projects.

You can find some reader reviews at amazon, but I thought I'd also pass along several unsolicited messages I got from readers over the past two months:

Cory Olson: "I'll keep this quick. Your book is excellent and I will recommend it to everyone. In fact, I'm going to recommend that we require everyone on my journal (Minnesota Journal of Law, Science and Technology) be required to buy a copy. I read your book just before grading/reviewing this year's petitions to get on the journals. Everything the book said couldn't be more obvious when you saw the difference the techniques made. You can also tell that many people had read your book before writing their petition." "Your book will be the first place I turn before starting my next article. . . . I've found that the ideas have helped my non-academic work as well."

[Name omitted at my correspondent's request, but I assure you it isn't "Volokh"]: "I bought your book a few months ago and I just wanted to let you know that I think the advice you gave about the writing competition is a major reason why I earned a spot on the law review at my school. I look forward to reading the part about writing student notes. Thanks for writing the book."

Leslie Reed: "Looks like your Academic Legal Writing book has proven highly useful yet again. Danny Pouladian and I won an award from UCLA for our published paper. It's called the Aaron Award and comes with not only the honor but also a nice little sum of cash to split! We didn't even know we were up for it, but we received word this week that our paper had been awarded the honor."

Anthony Ciolli: "Tonight I received an offer to have my career placement paper published in the upcoming volume of Jurimetrics; another journal has also solicited an additional article from me. I just wanted to thank you . . . for your wonderful book that inspired me to write this article. If I had not read it, I would never have even thought of writing the paper as a lowly 1L, let alone submitting it for publication."

How can you get this fabulous late-August stocking-stuffer? The book should be available from amazon. Make sure you order the Third Edition (that's the link to which I just pointed).

For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at [email protected] and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

You can go to Legal Books Distributing, which offers prompt shipment; you can also get it at amazon, but they threaten shipping within 12 to 14 days, sorry to say.

You can also get a personalized copy from me; the publisher was good enough to send me a box of 50. Just send to [email protected] a paypal draft for $27.99, which is what amazon charges (given the cover price and shipping). Please include (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

From Oakland Raiders v. NFL, a California Court of Appeal decision filed on July 28:

RUSHING, P.J., CONCURRING

The Raiders are a diverse group of athletes. But despite such pluralism, the Raiders is a singular football team, and because of this, I must concur in the technical propriety of such phrases as “the Raiders asserts,” “the Raiders does not contend,” and “the Raiders was discriminated against,” which appear in the main opinion. However, although these phrases may be sound, their sound, to me, is personally foul and deserves dissent, if not a 15-yard penalty and loss of down. This is especially so when the phrases are read out loud.

I have long been a loyal fan of grammatical agreement. The natural harmony between subject and verb is usually euphonious. But my boosterism has not deafened me. Though the merits of agreement may be great, here it is grating. The phrases noted above are like blasts from an air horn or plastic trumpet, blaring technical correctness.

Obviously, with a subject like “the Raiders,” the writer enters the challenging zone of subject-verb agreement. And in this appellate opinion, I do not think we should have simply agreed to “disagreement.” However, I believe we could have reached our goal of meaning and avoided fumbling dissonance with a judicial substitution: pulling “the Raiders” and going with a second-stringer like “the plaintiff.”

Interesting -- but, is it just me, or does the above sound like more fitting for a blog post than for a court opinion?

Or could it be that some concurring or dissenting opinions have long been just official-looking blog posts?

People occasionally ask me what the U.S. government may do with respect to the speech of noncitizens. (See also this post by Megan McArdle, guestblogging at InstaPundit, which raises the same issue.) Here's a summary of current First Amendment law on the subject. Note that I report here on what is the law (and what the uncertainties in the law are), rather than opining on what it should be.

1. "Noncitizens," not "immigrants." First, a simple but often-forgotten note: The question here is not about the speech of immigrants; it's about the speech of noncitizens. The millions of immigrants who are citizens (for instance, me) are treated exactly the same way for First Amendment purposes as any other citizens. More broadly, we are legally like native-born U.S. citizens in virtually all respects.

There are a few exceptions: We can't be President or Vice-President; if we lied on our naturalization applications, we could be stripped of our citizenship (this is how some former Nazis ended up being stripped of citizenship); and I suspect that in practice we may arouse more scrutiny during security checks, especially if our country of former citizenship is an enemy of the U.S., or harbors many enemies of the U.S. But those are narrow exceptions, and the rule is that immigrant citizens have the same rights, including the same free speech rights, as native-born citizens.

2. Criminal punishment and traditional civil liability: The government may not criminally punish noncitizens — or presumably impose civil liability on them — based on speech that would be protected if said by a citizen. See Bridges v. Wixon (1945).

3. Entry: The government may bar noncitizens from entering the United States because of what they've said or are likely to say, even if the speech would have been constitutionally protected if said by a citizen. See Kleindienst v. Mandel (1972).

4. Deportation for speech alone: The rule is unclear. The leading case, Harisiades v. Shaugnessy (1952), which upheld Harisiades' deportation for being a Communist, speaks about nearly unlimited Congressional power over deportation, but that language is in the section holding that the deportation of Harisiades didn't violate the Due Process Clause. The Court's conclusion that the deportation of Harisiades didn't violate the Free Speech Clause (Harisiades had argued that the deportation violated both clauses) rested on the conclusion that active membership in the Communist Party was substantively unprotected by the First Amendment — both for citizens and noncitizens. (This view that the First Amendment doesn't protect Communist Party membership was the law at the time,)

Lower court cases are likewise mixed. For the view that Harisiades doesn’t generally let the government act based on otherwise protected speech by aliens, see American-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), reversed on other grounds, 525 U.S. 471 (1999); Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985). For the view that Harisiades gives Congress nearly unlimited immigration power over aliens, see Price v. INS, 941 F.2d 878 (9th Cir. 1991).

5. Deportation for technical immigration law violation, motivated by the noncitizen's speech: The Court has, however, squarely held that if the government tries to deport someone who has violated immigration law — for instance, by overstaying his visa, or working without authorization — the person may not challenge the deportation on the grounds that he was selectively prosecuted based on his otherwise protected speech. See Reno v. American-Arab Anti-Discrim. Comm. (1999). Outside the immigration context, such selective prosecution claims may generally be made (though they aren't easy to make), and, if they're successful, they can lead courts to throw out the case against the speaker. See Wayte v. United States (1985).

6. Citizenship: It’s likewise unclear whether Congress can deny noncitizens citizenship based on speech that would be protected if said by a citizen. For a lower court's argument in favor of such power, see Price: “While a resident alien may not participate in the process of governing the country, naturalized citizens may. Naturalization decisions, therefore, deserve at least as much judicial deference as do decisions about initial admission.”

7. Noncitizens may also have statutory rights. I've spoken here just of constitutional rights, which noncitizens have no matter what Congress might do. Noncitizens, and especially permanent residents, also have statutory rights to remain in the country unless they've done (or there's sufficient reason to think they've done) certain bad things — at least until Congress revises the statutes to broaden the grounds for deportation (which it may even do retroactively, since the Ex Post Facto Clause only bars retroactive criminal punishment, and deportation is not treated as criminal punishment).

So if the Executive Branch decides to deport someone, it has to have statutorily authorized grounds, and it has to provide hearings at which an immigration judge decides whether the conditions for deportation are met. (These hearings are required both by federal statute, and, at least as to permanent residents, by the Due Process Clause, on the theory that deprivation of a permanent resident's rights to live here is tantamount to a deprivation of liberty or property.) This last paragraph is just a sketch of the statutory landscape; I am not an expert in immigration law, and can thus speak in detail and with some confidence only about the specifically First Amendment issues.

I'm delighted to say that lawprof Andy Morriss (Case Western Law School) will be guest-blogging here for the next several days. Andy is an economist as well as a lawyer and generally writes about property rights and the environment, employment law, public choice and the law, and the legal history of the American west. But he also does empirical research on the law and on the topic he’ll be guest-blogging here about, legal education.

In “Student Quality as Measured by LSAT Scores: Migration Patterns in the US News Rankings Era” (coauthored with William Henderson of Indiana University), an empirical analysis of changes in median LSATs from 1992 to 2004, Andy and Bill take a close look at the winners and losers in what has been called “the LSAT arms race.” US News rankings are widely reviled in the law school community, but are nonetheless avidly watched by students and faculty alike. This paper finds that much of the change in one of the key components, entering class LSAT scores, is beyond the control of individual schools. Quite a bit of the change in median LSAT scores is related to trends in the legal job market, strategic behavior by schools, and whether or not the schools are part of the top tier of law schools.

Andy and Bill have six key findings and Andy will blog about one a day for the next six days, as well as raise some questions about the future of the market for legal education. The paper was discussed, by the way, in an article in the July 31 New York Times.