My recent RoeChild post reminded me of this item that I discovered about 12 years ago, and blogged about two years ago:

MEET XERXES XOE: Most people are familiar with habitual litigant John Doe; I'm told that he's the grandson of the noted author Anon. Richard Roe is pretty common, too. Paul and Paula Poe occasionally make an appearance, for instance in Poe v. Ullman, the 1961 case challenging the constitutionality of a ban on contraceptives. (That case was dismissed on procedural grounds, though the issue reappeared in the Court in the famous 1965 Griswold v. Connecticut case.)

Less well known, though, are their cousins, who are listed in the caption of Friedman v. Ferguson, 850 F.2d 689, 1988 WL 68404 (4th Cir.). Here's the whole thing:

Wilbur H. FRIEDMAN, Plaintiff-Appellant, v. Thomas B. FERGUSON, Director, Department of Animal Control, a state actor, in his official and individual capacities; Brett Boe; Carla Coe; Donna Doe; Frank Foe; Grace Goe; Harry Hoe; State Actors, Advisors To Defendant Ferguson, In Their Official and Individual Capacities (identities currently unknown); Marta Moe; Norma Noe; Paula Poe; Ralph Roe; Sammy Soe; Tommy Toe; Private Individuals Who Conspired With the Foregoing State Actors (identities currently unknown); Roger W. Galvin, Chairman, Animal Matters Hearing Board; Vince Voe; William Woe; Xerxes Xoe; Members of the Animal Matters Hearing Board, State Actors, In Their Official and Individual Capacities (identities currently unknown), Defendants-Appellees

As you may have guessed from this post's title, Xerxes Xoe is my favorite, though Tommy Toe and William Woe are pretty good, too. Keep them in mind for your next frivolous lawsuit. (For the serious ones, John Doe #1-50 tends to be seen as a titch more respectable.)

According to the New York Times, Sen. Joe Biden (D-Del.) said:

My question is, Is Justice Roberts going to be a Scalia, a Rehnquist or maybe a Kennedy? If I think he's going to be a Justice Scalia, who I like personally very much, I vote no. If I think he's going to be a Kennedy, I vote yes. If I think he's going to be a Rehnquist, I probably vote yes because it won't change anything.

I'm not sure I understand how this reasoning works. I can see why Sen. Biden might vote for a moderate conservative like Kennedy rather than for a solid conservative like Scalia or Rehnquist. But given that Scalia and Rehnquist are very near each other on their bottom lines -- Scalia is a little to the right of Rehnquist on a few things, and Rehnquist is a little to the right of Scalia on a few other things, but on balance they are very close -- why would Biden vote for another Rehnquist but not for another Scalia?

I can imagine some law-and-order hard-liners who might prefer Rehnquist to Scalia, since Scalia has on some occasions taken a broader view of some criminal procedure rights than Rehnquist has, and in cases in which Scalia's vote counted; in nearly all the criminal procedure cases where Scalia has voted to the right of Rehnquist, Rehnquist was not the swing vote. But I have no reason to think that Sen. Biden is bothered by Scalia because Scalia is too soft on crime.

Or is this just a "speak no ill of the dead" convention at work here? Yet surely that would have been as well served by just avoiding the Rehnquist comparison. So I'm pretty puzzled by this.

We'll be switching to Pajamas Media for advertising around October 1, but in the meantime you still have a chance to get a couple of weeks' worth of relatively inexpensive advertising, should you be so inclined. Just go here to buy a premium ad or here to buy a standard ad.

We get, according to blogads, traffic of either 158,000 or 177,000 per week; for some reason, it gives us different numbers for the premium and the standard options -- I have no idea why -- but in any event that's quite a few eyeballs.

Lawprofs Larry Solum and Rick Hasen opine on the subject.

from David Savage in the L.A. Times. Thanks to reader John Judge for the pointer.

in the context of the Hamdan case: The NYU Journal of Law & Liberty -- a generally pretty libertarian outfit -- is running it today; the panelists are lawprofs Derek Jinks, Julian Ku, David Sloss, and Glenn Reynolds (InstaPundit's Clark Kent).

My one small addition to the debate: I recommend you tell your browser to display the text in a larger font.

David Hardy has the quote and a quick analysis.

So who the heck are you folks? Are you mostly lawyers? Techies? Professional procrastinators like us? Dead Roman males? Neighbors who are trying to ruin our opium-inspired works of genius?

Yeah, yeah, I know the comments aren't going to be remotely representative; yeah, yeah, I know you could be lying; but if you'd like, drop us some pithy lines about who you are and why you're here. Special bonus if you are in strange lines of business, strange places, or dogs.

From the First Amendment Center, and the AP:

Roberts said yesterday he had no "settled view" on whether Supreme Court proceedings should be televised.

Asked by Sen. Charles Grassley, R-Iowa, whether he would allow cameras in the Supreme Court courtroom or bar them, as did the late Chief Justice William Rehnquist, Roberts referred to former Tennessee senator-turned-actor Fred Thompson, who has been shepherding him through the nomination process.

"My new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of," Roberts said, eliciting laughter.

"My thoughts are, we're going to get somebody who knows what they're talking about when it comes to rebuilding cities." -- On how the rebuilding of New Orleans might commence, Biloxi, Miss., Sept. 2, 2005

What's odd, funny, mangled, or at all Bushism-worthy about this quote? Bush was asked how New Orleans should be rebuilt in the long term. That's a difficult and technical question, and one that's not easy to answer right now, especially when one is the President rather than a professional urban planner. So the President gave a perfectly sensible answer, and said that he'll figure out what the experts say. Here's the context (to Slate's credit, they now provide a link to the video, but here I quote the official transcript):

Q Mr. President, I realize the first priority is, obviously, saving lives. But let me ask you about long-term planning in New Orleans. There are some who are starting to say that since we're going to be spending billions in tax dollars to rebuild that great city, that we might want to think about building it in such a way where it's not below sea level again, whether it's somehow moved around or relocated or moved up. What are your thoughts on that?

THE PRESIDENT: My thoughts are, we're going to get somebody who knows what they're talking about when it comes to rebuilding cities. I'm going to delegate. I'm going to call upon the best experts, starting with the people of New Orleans, and get opinions as we work with the local folks. We're going to help people rebuild, Stretch. That's what we're going to do. And we're going to listen to people who know what they're doing. . . .

Why is this worth mockery or condemnation (presumably the main theme of Bushisms, as the column's compiler himself seems to suggest)?

with me.

from Howard Bashman. Technical but very interesting analysis of what precedential effect the substantive part of the Ninth Circuit decision -- which was reversed on procedural grounds -- should have.

Evidence at Purr Se.

Michael Fumento posts a photo taken by Ron Rotunda, here.

InstaPundit's reaction to the new Pledge decision sounds right to me politically -- the decision helps get conservative Justices confirmed. It helps Roberts, and it will also probably help the next nominee. Whatever you think of the merits (remember, I'm talking here about the politics, not the merits), the public seems solidly against courts' striking down the saying of the "under God" Pledge in public schools. Here's what a poll following the Ninth Circuit's initial decision yielded:

ABC News/Washington Post Poll. June 26-30, 2002. N=1,024 adults nationwide. MoE ± 3. Fieldwork by TNS Intersearch.

"The Pledge of Allegiance says the United States is one nation 'under God.' A federal court in California has ruled that the Pledge cannot be recited in public schools because this phrase violates the constitutional separation of church and state. Do you support or oppose this court ruling?" . . .

Support 14[%]
Oppose 84[%]
No opinion 2[%]

"Do you think the phrase 'under God' [rotate:] should remain in the Pledge of Allegiance OR should be removed from the Pledge of Allegiance?" . . .

Should remain 89[%]
Should be removed 10[%]
No opinion 1[%]

This seems to be the one issue on which the public is most solidly aligned with the solid the Court's conservatives, not just the moderate conservatives -- and highlighting this issue in the public's mind thus helps strengthen the case for conservative nominees.

(Justice O'Connor did opine in the Supreme Court's Newdow decision that the Pledge was indeed constitutional. But her votes and Justice Kennedy's votes in past cases helped cast doubt on the Pledge's constitutionality; and the votes of Chief Justice Rehnquist and Justices Scalia and Thomas have provided the most solid protection for this sort of governmental religious speech.)

If so, can you advise me about how I can best inform family lawyers about the arguments in my Parent-Child Speech and Child Custody Speech Restrictions?

I think that lots of family lawyers could find the arguments quite useful -- I can't promise that they'll win with them in court, but they might win with them, so the arguments will generally be worth making. (If you need a two-sentence summary of the article, it's "Palmore v. Sidoti meets the First Amendment: Why courts generally shouldn't consider parents' speech, religious or not, any more than they can consider parents' and stepparents' race.")

But family lawyers don't usually read law reviews, I suspect. What's the best way for me to get the arguments to them? At a conference? By publishing an article in a practitioner newsletter? By getting treatise writers or practice guide writers to cite them? Let me know, please, and the more detailed, the better. Just post a comment, or e-mail me at volokh at law.ucla.edu . Thanks!

A federal district court in Sacramento has just held that reciting the Pledge of Allegiance in K-12 public school classes is unconstitutional, because it psychologically coerces students to say the "under God" and thus violates the Establishment Clause. Students aren't legally required to say any of the pledge, but the theory, which has pretty substantial foundations in the Supreme Court's precedents, is that they are in any event psychologically coerced, since omitting the "under God" will expose them to opprobrium from their peers.

Interestingly, the court held that this is so because of the binding effect of the Ninth Circuit decision a couple of years ago, the same one that was reversed by the Supreme Court. Recall that the Supreme Court reversed the Ninth Circuit decision on procedural grounds — because Michael Newdow didn't have custody of his daughter, the one who was supposedly being coerced by the Pledge recitation, the Court held that he wasn't entitled to sue. The Court, however, reversed the decision rather than vacating it, and the district court here held that "A decision that is reversed on other grounds may still have precedential value, whereas a vacated decision has no precedential authority." See Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) ("A decision may be reversed on other grounds, but a decision that has been vacated has no precedential authority whatsoever."); Pines Land Co. v. U.S., 274 F.3d 881, 894 n.57 (5th Cir. 2001) ("This case illustrates the important difference between our treatment of a panel opinion after vacatur by the Supreme Court and our treatment when a judgment is reversed on other grounds. While our prior opinion in Leiter Minerals II did not bind the Little Lake panel because it was vacated, the opinion in Little Lake binds us because only the judgment was reversed on other grounds.").

This may sometimes be a plausible distinction: For instance, if a court of appeals makes two separate legal rulings in one decision, and the Supreme Court reverses the court as to one, there really hasn't been a reversal of the second legal ruling, and it may well still be properly seen as precedent.

But here the first ruling (about Newdow's standing) that the Court reversed had to do with whether the court of appeals should even have heard the case and made the second ruling (about the constitutionality of the Pledge recitation). The Court essentially ruled that the Ninth Circuit shouldn't have reached the substantive question of the Pledge's constitutionality. I would therefore think that the Ninth Circuit's substantive decision would therefore lose any precedential value it had, since in the Court's view this value was essentially ill-gotten.

Judge Karlton, though, took a different view. Now there'll almost certainly be an appeal, and a new Ninth Circuit panel will have to decide for itself whether it's bound by the prior panel's decision. I predict that the new panel will say that it's not bound (and thus disagree with Judge Karlton on this score). But, hey, I'd have predicted the same about Judge Karlton's decision, and I'd have been wrong. So we'll see what happens.

are two of the anonymous plaintiffs in the latest Pledge of Allegiance case. Is it just me, or does RoeChild have a vaguely '70s California crunchy granola softfuzzyrock feel to it? I could see John Denver or James Taylor or maybe Cat Stevens singing about RoeChild.

It helps that RoeChild-1 is a pantheist, though it would have been even better if she were a Pan-theist. And on top of that, Daddy Roe's objection — which is perfectly consistent with the Court's Establishment Clause caselaw — is that he "has been made to feel like a 'political outsider'" by the recitation of the Pledge. Feelings, nothing more than feeeeeelings . . . .

On the other hand, RoeChild-1 and RoeChild-2 are more Brave-New-Worldy, maybe with shades of THX 1138, no?

I've just accepted, with great pleasure, the NYU Law Review's offer to publish my Parent-Child Speech and Child Custody Speech Restrictions article; but fortunately I still have plenty of time to improve the piece.

To that end, let me ask our readers -- and in particular a very small sliver of our readers -- an unusual question: If you were one of the articles editors who considered the article, do you have any suggestions for improvement? Can you point to parts that you thought were unpersuasive, poorly written, or unnecessary? Were there some counterarguments that you think I could have dealt with better? Can you pass along any objections that you may have heard from your colleagues?

If some readers saw certain flaws in the article, I'm sure that other readers will see the same flaws. Right now I can still correct those flaws, or respond to the counterarguments I need to respond to; better do that now, before the article is in print.

I should stress that my only goal here is to improve the article. A couple of journals gave me offers; another expressed interest; about half a dozen rejected it; others didn't respond; that's entirely par for the course -- if you folks didn't like the article, I can perfectly well understand that. Most of my articles, and I'd wager most of other law professors' articles, get rejected by lots of places even if they get accepted by other comparably ranked places. That's just fine. I'd simply like to take advantage of people's criticisms now, when it can still do the article some good.

Please feel free to respond anonymously; please also feel free to respond either in the comments or by e-mail (volokh at law.ucla.edu). Thanks in advance for your help!

Tony Blankley, the editorial page editor of the Washington Times, has an op-ed defending (and urging) various wartime restrictions. Some of what he omits, though, is even more striking than some of what he includes.

For instance, Blankley praises a Court decision that "upheld the school expulsions and parental prosecutions" of "[m]embers of the Jehovah's Witnesses were prosecuted during World War II for refusing to let their children recite the Pledge of Allegiance." He goes on to praise this approach:

In those days, when Supreme Court justices -- liberal, moderate, and conservative -- sat down to write opinions, they knew their words and findings mattered.

Wrongly decided cases wouldn't merely expose the justices to rude comments in fashionable newspapers and magazines. Wrongly decided cases might expose the United States to disunity, sabotage, revolution or conquest.

Under such circumstances, the justices were more than prepared to let Congress give the president of the United States broad powers to defend our country. And they were unlikely to interfere with the president carrying out such powers or to second-guess the military's decisions.

The court would draw lines and preserve the essence of our freedoms. But the justices were practical men.

They understood that the broadest enforcement of every last theoretical right and privilege might well be purchased at the price of losing our most basic right: the right to effectively defend ourselves.

An interesting argument -- but might it be relevant that three years later, when the U.S. was actually fighting World War II (as Blankley points out, the decision he praises came in 1940), the Supreme Court held that the Jehovah's Witnesses did have the right to "refus[e] to let their children recite the Pledge of Allegiance"? The first decision essentially held that the Witnesses couldn't win under the Free Exercise Clause, on the theory that as religious objectors they were entitled to an exemption from a generally applicable pledge requirement. The second decision, though, held that the Witnesses -- and anyone else -- should win under the Free Speech Clause, on the theory that everyone, religious or not, was entitled to an exemption from the Pledge. If one is going to call on one Supreme Court decision as support for one's position, wouldn't it have been good to point out that another decision, three years later, rejected the very sort of argument that one is making?

Likewise, Blankley argues that "Just as their generals and admirals made no compromise to the imperative of total victory on the battlefield, so British and American political leaders, courts and popular opinion let the requirements for victory define the powers of their government on the home front," and gives as one favorable example that "Attorney General Robert Jackson described the targets and responsibility of the FBI's domestic intelligence activities as involving 'steady surveillance over individuals and groups within the United States ... which [are] ready to give assistance or encouragement in any form to invading or opposing ideologies.'" Yet oddly enough, Blankley doesn't mention that the very same Jackson, once elevated to the Court, wrote a majority decision striking down the compulsory Pledge of Allegiance, and memorably dissented from the Court's upholding the ethnicity-based internment that Blankley praises.

Blankley also refers to Justice Frankfurter as a "liberal icon," which Frankfurter probably was in his defense of the New Deal. But on free speech issues, Frankfurter took a relatively restrictive view -- certainly not the view held by the liberals on the Court in that era -- not only on national security questions but also on issues quite unrelated to national security.

Blankley writes, as to Justice Frankfurter's observation that "the mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities,"

This is particularly applicable to the situation we face today. Radical Islamists are demanding to be covered by Shariah -- laws compiled over a thousand years of Muslim jurisprudence, based on the Koran and its commentaries -- rather than by the laws of the United States, Britain, Germany or the other non-Muslim nations in which the radical Islamists live.

Yet it's well-settled under U.S. law that radical Islamists have no entitled whatever to "be covered by Shariah . . . rather than by the laws of the United States." At most, they might be entitled to rather modest statutorily defined exemptions from generally applicable laws and work rules -- for instance, to exemptions from police regulations that require officers to be clean-shaven or to modest breaks on Fridays to be able to pray, just as Jews and Seventh-Day Adventists are sometimes entitled to take the Sabbath off, and yarmulkeh-wearing Jews and turban-wearing Sikhs are often entitled to exemptions from work rules that ban employees from wearing headgear. (People who agree to have their civil disputes arbitrated by religious tribunals, whether Muslim, Jewish, or Christian, are generally allowed to have such agreements stand, but that is a well-settled principle of respect for contract rights, and probably not what people think of when they read about radicals' demands to be covered by religious law rather than secular law.) Again, might it have been worth acknowledging that, if we want to resist radical Islamists' demand to be covered by Shariah, there's little need to borrow World War II attitudes or jurisprudence -- that even the supposedly lax modern regime does perfectly fine at resisting calls for such legal separatism?

There are quite plausible arguments for restrictions on certain civil liberties in the name of national security. We have long recognized some such restraints, and may well need more in some areas (or fewer in others). And history may well be helpful in understanding which restraints have proven justified, and which have proven to be unnecessary or unduly dangerous.

But if you're going to argue based on history, it seems to me better to give a balanced account of that history.

Allen Asch, in the comments to a recent post, continues to express doubt that Baldwin was a communist in the 1930s. Since I happen to have the data handy, and since Mr. Asch had earlier expressed skepticism about a Baldwin quote on the topic that had been floating around on the Internet -- skepticism that is eminently sound, though in this particular instance proves to be misplaced -- I thought I'd post it.

To begin with, Baldwin had always denied being a member of the Communist Party, and I've seen no evidence to the contrary. He apparently didn't get along well with the Party, which he rightly saw as authoritarian.

He did, however, support the necessity of a dictatorship of the proletariat, which, once implemented, to be "maintain[ed] by any means whatever," including abrogation of civil liberties -- a pretty solidly communist view. Mr. Asch suggests a different interpretation of Baldwin's position, but I'm afraid I find that interpretation quite unpersuasive.

He also expressed support for communism as an economic system, writing in a note to be included in the 30th reunion classbook of the 1905 Harvard class,

My "chief aversion" is the system of greed, private profit, privilege, and violence which makes up the control of the world today, and which has brought it the tragic crisis of unprecedented hunger and unemployment. I am opposed to the new deal because it strives to strengthen and prolong production for private profit. At bottom I am for conserving the full powers of every person on earth by expanding them to their individual limits. Therefore, I am for socialism, disarmament, and ultimately for abolishing the State itself as an instrument of property, the abolition of the properted class and sole control by those who produce wealth. Communism is the goal. It sums up into one single purpose -- the abolition of the system of dog-eat-dog under which we live, and the substitution by the most effective non-violence possible of a system of cooperative ownership and use of all wealth.

(Robert C. Cottrell, Roger Nash Baldwin and the American Civil Union 228-29 (2000).) And despite the reference to "non-violence," the earlier quote reveals that Baldwin was willing to endorse dictatorship and not just peaceful democratic change.

Finally, Baldwin also often defended the Soviet Union; he definitely did criticize its repression of dissent and civil liberties, but he ultimately defended such repression:

I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons -- the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition when I stacked it up against what I saw of fresh, vigorous expressions of free living by workers and peasants all over the land. And further, no champion of a socialist society could fail to see that some suppression was necessary to achieve it. It could not all be done by persuasion.

Nor is it easy to dismiss this, as Mr. Asch suggests might be the case, as being based on lack of information about Soviet repression (i.e., to take the view that Baldwin was merely a dupe of the Soviets rather than a fully knowing supporter). Baldwin had traveled to the Soviet Union, had written about it, and had corresponded to many of his friends on the Left who tried to persuade him to criticize the Soviets (including Emma Goldman, see, e.g., Cottrell at 194, 197-98, 216). Yet he continued to defend the Soviets as late as December 1936, when the Moscow show trials were already underway. (One would think that a defender of civil liberties who had also written about the Soviet Union would know a show trial when he saw it.)

Only the Molotov-Ribbentrop Pact -- a foreign policy move rather than an anti-civil-liberties move on the part of the Soviet Union -- ultimately made him change his views. "The Nazi-Soviet pact made you feel that suddenly the Communists were different people. They had abandoned us and got into bed with Hitler." I can certainly see why many on the Left who were primarily focused on fighting the European fascists, and who didn't care much about Stalin's mass murders of his own, would see the Pact as "the biggest shock of [their lives]." But why would someone who is focused on civil liberties be more struck by the Pact than by the show trials and all that came before and after? In fact, why should he be that surprised that two totalitarian regimes would make this sort of foreign policy move?

I should probably be doing some real work now instead of expounding on this. But setting the facts straight on the history of communism, both abroad in the United States, is pretty important to me. There were unfortunately far too many people who (1) endorsed communism as an economic system -- a colossal blunder that's worth studying, and one that reflects a lack of interest in at least the property rights protections of the Bill of Rights -- (2) endorsed communism's goal of a dictatorship of the proletariat that would justify massive suppression of even noneconomic liberties, and (3) either let themselves be fooled into turning a blind eye to the Soviets' atrocities, or, in Baldwin's case, likely willingly ignored what the Soviets were doing. Among other things, only understanding this record can help us understand why the ACLU and other groups felt it necessary to condemn Communism, and why Baldwin himself ultimately turned into a prominent critic of the Soviets.

I asked Geof Stone to respond to my post defending the ACLU's exclusion of Communists from leadership roles and staff positions, and its statements that Communists, fascists, and others are unwelcome as members. (Geof is one of the scholars who criticized the exclusion, and whose criticism I was in turn criticizing.) Here's Geof's response:

Professor Volokh has, as always, offered a set of thoughtful observations on a difficult issue. As "the First Amendment scholar" referred to in the post, I thought it appropriate to add a few words.

Eugene's central point is that private organizations have no constitutional obligation to admit as members people they don't like. Of course, this is correct. The Constitution applies only to government. Yale University, Microsoft, and the Boy Scouts cannot violate anyone's constitutional rights.

Does this mean they act morally or wisely if they have a Jewish quota, or refuse to hire blacks, or exclude gay scoutmasters? Of course not. That these acts are not unconstitutional does not make them admirable, ethical, or defensible.

On the other hand, a private organization is not bound ethically to admit or employ all-comers. The Chicago Cubs don't have to let people who can't hit a baseball play shortstop (although they have long followed such a policy), and the Catholic church doesn't have to let Lutherans serve as priests.

The morality or wisdom of exclusionary decisions must turn on the nature of the private organization and the nature of the exclusion. I stand by my statement, quoted by Eugene, that the ACLU's decision to exclude "Communists" was a sign of "falter[ing]" in an "organization[] dedicated to the protection of civil liberties."

Certainly, the ACLU had every legal right to do what it did. But in doing what it did, it betrayed its own principles. The core principle it betrayed was that individuals should be judged on the basis of their actions rather than on the basis of their political or religious associations.

A fundamental problem during the anti-Communist witch hunt was defining a "Communist." Was a "Communist" someone who was currently a member of the Communist Party? Someone who had once been a member of the Communist Party? Someone who had been a member of an organization that had once been affiliated by the Communist Party? Someone who had once been a member of an organization that had once been supported by the Communist Party? Someone who had once attended a meeting of an organization that had once been affiliated with the Communist Party? Someone who had dated someone who had once been a member of the Communist Party?

Certainly, a private organization that adheres to certain core beliefs can ethically insist that its members support those beliefs. If the ACLU wished to insist on this, the proper approach for the ACLU would have been to focus on whether individuals supported the organization's core beliefs, rather than to focus on "Communism."

By allowing itself to be intimidated into sacrificing the principle that individuals should be judged on the basis of their actions rather than their political associations, the ACLU fell victim to the same hysteria of "guilt by association" that would infect the nation for the next two decades.

Perhaps other private organizations could act this way without violating their most fundamental values, but this was not the case for the ACLU. It had a responsibility to stand for a principle, and in this it faltered. Who knows, following Eugene's logic, perhaps members of the ACLU will someday soon demand that Muslims be excluded from its Board. I hope not.

I think my original post and Geof's suffice to lay out the arguments on both sides, but let me offer a brief reaction. The ACLU's rule as to the board and its staff was that the ACLU "regards it as inappropriate for any person to serve on the governing committees of the Union . . . or on its staff, who is a member of any organization which supports totalitarian dictatorship in any country, or who by his public declarations and connections indicates his support of such a principle." Its statement as to its members was that "The ACLU needs and welcomes the support of all those -- and only those -- whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine." The member statement thus, as I read it, doesn't focus on members' group memberships, but rather their views; the ACLU concluded, I think quite rightly, that those who adhere to Communist, Fascist, or KKK doctrine can't at the same time adequately support the organization's core beliefs.

The officers-and-staff statement did also ask whether people belong in certain organizations; but it seems to me that, where private organizations are concerned, judging people based on their political and religious associations can be quite proper. Membership in the Communist Party or the KKK doesn't tell you everything about a person's view, but it generally tells you something. We're not talking here just about past membership, or membership in a group that's supposedly allied with the bad groups; that may indeed be less telling. But if someone is currently a member of an organization that supports dictatorship (or racism), and works towards dictatorship (or greater racial prejudice), it seems to me that the ACLU can reasonably conclude that this person is pretty unlikely to be a committed ACLU officer or staffer. And outside who are judging a group may likewise think the less of the group because it has Communists or Klansmen among their officers.

I certainly hope that the ACLU won't exclude Muslims as officers, but that's because I suspect that many Muslims can be quite committed civil libertarians, much as many Jews are. The closer analogy is to the Catholic church excluding Muslims as bishops. Yes, you can imagine someone who is currently enrolled in a mosque but who would make a great Catholic bishop. It just isn't very likely. Nor is it likely that someone who is a member of the Communist Party or the Klan would do a good job of defending civil liberties.

I now have more details on the Missouri Attorney General's lawsuit against the racist post-Katrina fundraisers, which I earlier blogged about here. I've put up the complaint (see the previous link); here's the essence of the AG's argument:

Defendants . . . have engaged in methods, acts, uses and practices of deception, fraud, false pretenses, false promise, misrepresentation, unfair practice, and the concealment, suppression and omission of material facts in connection with the advertisement charitable solicitations, all in violation of [sec.] 407.020, [Rev. Stat. Missouri], for reasons including, but not limited to, the following:

a. The concealment, suppression, and omission of the material fact that Defendants are not properly registered as tax exempt entities and hold no tax exempt status.

b. The concealment, suppression, and omission of the material fact that consumers’ donations made to Defendants are not tax deductible.

c. The concealment, suppression, and omission of the material fact that Defendants do not intend to utilize any of the moneys received through charitable solicitations for the benefit of non-white victims of Hurricane Katrina.

d. The concealment, suppression, and omission of the material fact that Defendants that the charitable donations will be used for hurricane relief for white victims only.

e. Engaging in the unfair practice of soliciting charitable donations which will be used for hurricane relief for white victims only.

A few questions: (1) Should objections (a) and (b) be treated as different, for legal purposes, from objections (c) and (d)?

(2) Charities often choose whom to give money to — sometimes they prefer poor people over rich people, people with children over people without children, women over men, blacks over whites, fellow Baptists over others, or whatever else; sometimes they do this categorically and sometimes they consider various attributes together with other factors. Are charities required to disclose all of these criteria, none of these criteria, or only some of these criteria — and, if the latter, which ones?

(3) In Riley v. National Federation of the Blind (1989), the Court struck down a requirement that fundraisers disclose in their pitches what fraction of the donations are used for fundraising expenses. Though the government argued that such a requirement was needed so that people wouldn't be misled into believing that most of their money was going to help the needy — when in reality 90% might end up being used up for expenses — the Court concluded that such a requirement was nonetheless unconstitutional. Given this, would it be constitutional to have a legal rule that requires disclosure of (a & b) non-tax-exempt status or (c & d) racial targeting of the aid?

(4) The Missouri AG seems to suggest that it's per se unfair — and thus forbidden by state law — to solicit charitable donations that will benefit only whites, regardless of whether the charity discloses this, see objection (e). Is that really dictated by state law? Is it constitutional? If it is, would it be constitutional for Missouri law to allow fundraising to help blacks or Hispanics or Jews (including secular Jews, to make this an ethnic criterion and not a religious one) and to forbid fundraising to help whites? (I'm not sure whether Missouri law does this, but I'm asking this question hypothetically.)

He said empire -- "judges like empires."

Oh, and it's celebrate; priests should celebrate. If only people listened more closely, we'd all avoid a lot of needless grief.

Todd's post on SUVs, credited to him and to volokh.com, is quoted in Washington Post Express (p. 33) last week, right above a picture of Paris Hilton. We have arrived. Thanks to Hanah Metchis Volokh for the pointer.

which has the temerity to publish a poem by Ron Slate, "The Demise of Camembert". It's a neo-pastoral, as best I can tell, but though I don't go either for pastorals or for unrhymed material, I liked it a good deal (maybe because I do generally go for cheese). Check it out; my favorite lines are at the end, and though they need the rest of the poem to make sense, I thought I'd pass them along:

And you and I, paring away the rind,
do you and I have a patient nose
for the creamy inwardness of things?

I'm trying to solve a few puzzles related to how quickly -- or slowly -- law reviews get to read manuscripts. I know that people sometimes get offers two or three days after the article arrived at the journals, but I also sense that some journals take quite a while to do anything with the articles they get. There are naturally lots of plausible explanations for this, but before we go into such speculations, I was hoping I might get some background data on how journals actually oerate.

So if readers who are law review articles editors, or who were articles editors at any time since the 2002-03 year, can give me some feedback on this in the comments, I'd be much obliged. My questions:

(1) About how many submissions did you/do you get per day in September, which is one of the high submission seasons?

(2) About how long does it take between the time the envelope arrives at the law review, or the e-mail is received by the law review, and the time an articles editor at least starts skimming the piece?

(3) When you get more articles than you can conveniently read, which ones did you generally start with? (If they're ones you were most interested in, what categories were those? The more detail, the better. If you know the answers for your fellow articles editors, please give me a sense of them; or if you prefer just to say what you did, that would be fine, too.)

(4) If you found an article that you liked, how quickly could your journal generate an offer, assuming your colleagues agreed with you?

(5) Roughly what ranking is your school in the U.S. News & World Report rankings? (If you feel comfortable just giving the name of your journal, please do; conversely, if you want to give a rough range, such as 15-20 or 30-40 [but not something as rough as "top 20"], to avoid identify yourself or your journal, that would be fine.)

(6) Was your journal the primary journal or a specialty journal?

Please feel free to post the answers anonymously, if you prefer. Many thanks in advance.

Glenn Reynolds points to some interesting proposals, including his own. Given the traditional unsubstantiveness of judicial nomination hearings, though, I doubt that they'll get answered -- or even asked.