is in the news again (thanks to InstaPundit for the pointer); for more on this fellow and his remarkable views about the Holocaust, our "Zionist-Occupied Government," and more, see here.

Folks, I'm glad you like reading the blog, and find my posts worth closely scrutinizing -- but there really is no need to overread between the lines. A commenter on an earlier post writes:

What's with the literary quotes today? Employing the maxims of implicature, we can infer that Eugene is trying to convey some relevant message. The analogy seems to be that we Americans are too unwilling to defend ourselves today.

So, Professor: is the mssage "we should be cheering the latest illegal NSA program" or "we should invade Iran"?

The commenter, I'm afraid, is inferring what I am not implying. I started reading Rebecca West's chapter because I liked the "It was good to take up one's courage again" quote that someone had posted on another blog months ago; and it did seem linked to the posts about courage, which were in turn triggered by the Ayaan Hirsi Ali story. I blogged the first set of quotes because of the link to courage. I blogged the second quote because I ran across it in the same reading session, because it struck me as eloquent and moving, and because I am pretty interested in history. I had hoped that my readers would be moved by it as I was -- always a good reason, I think, to pass along quotes.

But if you absolutely must try to infer some deeper message -- and, I stress again, I'm flattered that you'd want to, but I don't see why you should -- consider the possibility that, contrary to the (often accurate) stereotype of Americans, not all of my messages are about Americans.

Perhaps the West quote is apt about certain aspects of European society today; we've all heard things said that suggest it might be. Or perhaps not. If you as a reader find that resonance, great. If not, you might just find the quote moving as a commentary on a trait that sometimes arises in human nature, for instance in the era or eras about which West was writing.

Guarded from the Young as the Facts of Sex Had Been in Earlier Ages": One more quote from Rebecca West, writing about the English after World War I (Black Lamb and Grey Falcon (1941), Epilogue, p. 1122, paragraph breaks added):

The sense of guilt which is born in every man, and is willing to operate without reasonable cause, had here abundant food, and for long we had been sick with masochism.... [Many Englishmen] had lost all sense that it is sometimes necessary to fight for one's life; and many children born in the decade after the Great War can never have heard a word from their parents and teachers which suggested that their country had or could have been actuated by any motive except stuipd and credulous jingoism in taking up arms in 1914.

The idea of self-preservation was as jealously guarded from the young as the facts of sex had been in earlier ages. Thus England ... put itself in a position of insecurity unique in history by raising a generation of young men to whom the idea of defending their nation was repugnant not so much by reason of the danger involved (though indeed they were now often instructed in fear as in other times boys had been instructed in courage) as because they could not believe it would in any circumstances be necessary.

Since every day Germany and Italy were formulating in more definite and vehement terms that they meant to vanquish and annihilate England, it was amazing that it should have been possible to enclose them in the magic sphere of this illusion. It would, of course, be comprehensible had they been drugged by sensual indulgence or grown careless of honour; bet never had the mass of the people been more sober, and law-abiding, and restrained, never had they been so anxious for honourable dealings between class and class and between nation and nation.

The fault was not decadence but the desire for holiness, the belief in sacrifice, and a willingness to serve as the butchered victim acceptable to God.

By Pretending They Were Fearless":

It was good to take up one's courage again, which had been laid aside so long, and feel how comfortably it fitted into the hand.

Most [Londoners, after and during] the fall of France believed, and rightly, that they were presently to be subjected to a form of attack more horrible than had ever before been directed against the common man.

Let nobody belittle them by pretending they were fearless. Not being as the ox and the ass, they were horribly afraid. But their pale lips did not part to say the words that would have given them security and dishonour.

As quoted in the New York Post — "Kids, for whatever reason, think they're entitled to go right to the top with $50,000 or $75,000 jobs when they have not done anything to earn their way up .... A lot of kids don't know what work is. They think work is a four-letter word.... We've got to send a different message to our young people. America didn't happen by accident. A lot of people worked really hard. They've got to do their part, too."

Kids these days! Why, when I was a kid — walk to school — snow, six feet deep — both ways — shoveled manure for the pennies that I could find in it — grumble grumble grumble — o tempora, o mores . . . .

(By the way, I agree with the sentiment starting with "America didn't," and for all I know she's right about kids' attitudes these days — I just thought it was funny.)

UPDATE: Commenter Riskable writes:

I'd just like to point out a simple fact that everyone else seems to have missed: One has only to point a finger at the preceding generation to find exactly who is to blame for "kids these days."

I read and enjoyed David Remnick's Lenin's Tomb, but I was wondering if there were other good ones, especially ones that covered slightly different territory (such as what happened in Eastern Europe). If you have some recommendations, please post them in the comments. Thanks!

According to the Danville Register & Bee,

Jerry and Melissa Guyles -- the parents of a recently expelled cadet -- [were using] their Web site, www.HargraveHasProblems.com ... to publicly question Hargrave president Wheeler Baker’s leadership and his handling of their son’s dismissal.

Hargrave sued for libel, and a federal judge issued a temporary restraining order, pending trial, enjoining the Guyleses (among other things) from:

a. continuing to operate the website HargraveHasProblems.com and/or from creating any other websites which disparage, defame, vilify, and/or contain false statements concerning Baker, Hargrave, and/or its administration, faculty, staff, and students;

b. continuing to solicit, contact or otherwise communicate with any parents or guardians of current, former, or prospective Hargrave students or any other persons or entities for the purpose of interfering or continuing to interfere with Hargrave's contractual relationships and/or expectancies; ...

Seems to me like a quintessential unconstitutional prior restraint -- a court order that's entered prior to a finding on the merits that the speech is constitutionally unprotected (in this case, consisting of false statements of fact). The government may indeed sometimes impose liability after a trial on the merits that finds that statements are false. In some situations, it may even be able to impose criminal liability after a trial on the merits that makes such a finding. But the prior restraint doctrine generally bars the court system from suppressing speech before any such finding, especially when the court order goes far beyond false statements -- for instance, statements that merely "disparage" the school, or that communicate opinions or true statements aimed at persuading people not to deal with Hargrave.

I can understand why the court would want to issue a temporary injunction pending a trial on the merits, in case the trial ultimately does find that the speech is unprotected. But as the Supreme Court held in Vance v. Universal Amusement Co. (1980), such temporary restraints on speech -- which may be entered based on a mere finding of likely success on the merits, following a highly truncated factfinding process -- are generally unconstitutional.

Many thanks to Becky Dale for the pointer to this case.

Some law review competitions involve both a writing assignment and a bluebooking/cite-checking/editing test. Others give you just a writing assignment, but give considerable weight to the bluebooking and proofreading of the paper. Generally the substance, the organization, and the writing style are given more weight than the more technical bluebooking, cite-checking, and proofreading. But the latter are often given a good deal of weight, too, and for good reason: Bluebooking, cite-checking, and proofreading will be a huge part of your job as a law review editor, and the law review is naturally looking for people who are good at that, and (more broadly) who are careful, meticulous, and hard-working.

But here's the twist: The substantive evaluation of your paper will inherently be subjective. You might have a great argument, but if the readers take a different view, they may not evaluate it as positively as they should. That's true for professors -- the grading of essay exams is often quite subjective (not by any means random, but subjective). And it's even more true for law review write-on grading, given that the essays are usually split among different teams of several readers, so that different essays are graded by different people.

On the other hand, what bluebooking, cite-checking, and proofreading errors you caught (or made) is more objective. If you do really well on this, then you can insulate yourself considerably from the vagaries of the more subjective grading of the substance.

So if you think you can be good at the technical stuff -- if you have a careful eye and a meticulous temperament, and can catch most errors if you have the time (and if you've familiarized yourself with the Bluebook) -- then invest some time into the technical part of the test.

Naturally, you should still not bomb the substantive part, so don't let your bluebooking completely distract you from your writing. But if you think you can be good at bluebooking, work hard at it. That way, even if the readers are for their own idiosyncratic reasons not wowed by your substance (brilliant substance, of course, but brilliance so often goes unappreciated!), they will be wowed by your objectively great performance on the technical portion.

The Foundation for Individual Rights in Education reports on the Gettysburg College Sexual Misconduct Policy, which says:

Sexual Misconduct is defined as a threat of a sexual nature or deliberate physical contact of a sexual nature without the other person's consent. Examples of such behavior include, but are not limited to, 1) deliberate or reckless threat, actual or implied; 2) physical contact of a lewd type such as brushing, touching, grabbing, pinching, patting, hugging, and kissing; 3) physical contact of a sexual nature that results in reasonable apprehension of a sexual assault or physical harm; and 4) coerced sexual activities, including rape.

All sexual interaction between any two people must be consensual. Each individual has a responsibility to obtain consent before engaging in sexual interaction. Consent is defined as the act of willingly and verbally agreeing (for example, by stating "yes") to engage in specific sexual conduct....

The requirement of consent is of course completely proper -- but the requirement of verbal agreement strikes me as vastly overbroad, given the way perfectly decent and consenting adults routinely behave.

By the way, Antioch College still has its infamous policy, which says that "Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct.... Consent is required each and every time there is sexual activity." Do you verbally agree to have sex each time you have consensual sex with your spouse or lover?

By the way, the Antioch policy also says that

The SOPP is violated whenever there is an incident of non-consensual sexual conduct on the Antioch College campus, during an Antioch College sanctioned event, or between two Antioch College students regardless of location. This may include but is not limited to:

* Sexually based gestures ...
* Sexually based forms of non-consensual communication, whether verbal, written, electronic, or telecommunication based ...

There's no doubt that nonconsensual sex is a serious problem. It's just that these codes aren't, it seems to me, a serious solution.

As I mentioned in the post on my odd vacation-time activities, I've now realized that a few of the suggestions I give in my Academic Legal Writing book aren't as sound as I thought they were. I'll naturally revise things accordingly in my third edition, but for now let me pass this along as a sort of online update.

On the Ayaan Hirsi Ali thread, one commentator asked me:

[W]here did the Volokh family just move to? If it's not a gated community, maybe you and your family could bear the risks and invite her to live next to ... you and yours.

We're always braver when it's someone else you want to share the risk with you, based on your own actions, not your neighbors or friends.

That's a fair question, it seems to me: What would I do if Ayaan Hirsi Ali -- or Salman Rushdie, or a Muslim who's gotten death threats from anti-Muslim bigots, or a black activist who's gotten death threats from Klansmen -- moved next to me?

Well, I hope I'd be ashamed to complain, much less try to demand that the neighbor be evicted. Would I realize that Ali's presence, for instance, creates some extra risk for me and my family? Sure. Would I feel some fear because of that? Sure.

But I'd hope that her presence would impress me with her courage, and would move me to at least try to feign equal courage, rather than trying to hound her from the neighborhood. I hope that I'd be embarrassed to say, to my neighbors and eventually to my sons, "Someone who was very brave, and brave in the service of trying to help our nation and help mankind, took tremendous risks. And to avoid taking far lesser risks, I turned against her."

Protecting one's family is a very great thing. Protecting oneself is generally good, too. But, no, protecting one's family and oneself against all risks can't be the highest goal, if our nation, the values we cherish, and ultimate we ourselves are to survive.

We praise the brave and we condemn those who -- however rationally -- conspicuously display absence of bravery precisely to reinforce this notion. We recognize that fear is human, and often rational. We recognize that each of us, if tested, might fail. But at least we should ask, I think, for a certain degree of chagrin about certain kinds of fears, for the decency to be embarrassed about them and to keep quiet about them rather than acting on them by trying to evict a courageous neighbor.

Finally, let's put things into a bit of perspective. The risk to the neighbors in the Ali case isn't zero, but it isn't a tremendous risk, either. It's not having to go to war against an invader. It's not joining the Resistance. It's not becoming a dissident against a tyrannical government. It's not being Gary Cooper in High Noon.

It's not rushing the cockpit of a hijacked plane (which, even if it might be rational on a personal cost-benefit analysis, requires more presence of mind and ability to overcome panic than I suspect most of us could muster). It's not even speaking out yourself against an oppressive and violent ideology. Look, I understand how appalling those risks are. I sympathize with those who silently try to avoid running them.

But dark days are here, and darker still are ahead. Each of us may one day indeed face a terrible test. If we don't perform the small acts of bravery, how will we ever be able to perform the large ones? If we don't try to make a habit of courage -- if we don't seize, in our mostly safe and comfortable lives, the opportunities to be brave -- how can we make sure that our courage will be there when we really need it?

Here I'd thought that "jihadist" was getting moderately well-established as a term for radical Islamists -- Jonathan Rauch, whom I much respect, suggests that it's actually the best term for them, but at least it's easily understood as one possible term for them -- and now Charles Krauthammer says this, on the Fox Special Report last Friday (emphasis added):

[Jim] Angle: Yes. Now, Charles, one of the interesting things here is that Senator Roberts was talking about the fact that Goss was essentially rebuilding the CIA after some very difficult years, two tumultuous episodes in which its competency was questioned, and rebuilding the size of the agency.

[Charles] Krauthammer: And also trying to deal with the jihadists inside the agency, the people who consider themselves the loyal opposition, which really is the role of Congress, but who oppose administration policy, had been leaking and had been trying to undermine and obstruct administration initiatives.

One of the roles he had adopted, Goss, was to go after these people. He fired Mary McCarthy, who supposedly was the leaker on the secret prison story. And I think there is some -- you know, if you look at this, you could say, well, maybe he was defeated by that element in the CIA. From what I have heard, that's not so. And the next -- and his successor is going to be as tough on the leakers as he was.

Krauthammer also apparently said the same on Hugh Hewitt's radio show:

Well, I think there is a jihadist element in the CIA, people who think that, or a jihad against the administration's policies, and who think that they owe a duty to the nation above their own oath to keep secrets. And they leak stuff as a way to embarrass the administration or undermine a policy or two. And they have been a problem. And we know that Goss acted against that.

Isn't this a titch beyond the level of proper hyperbole, even in these rather shrill times? Is it too much to ask that we save jihadist, terrorist, Nazi, fascist, racist, and the like for people and actions that have some real resemblance to the evil that these terms are associated with?

Thanks to Mark Kleiman for alerting me to this; I can't say I'm nearly as incensed by it as he seems to be, but I agree that this really isn't the way people ought to be talking.

Orin Kerr analyzes this.

The Washington Post reports:

[In a recent speech,] Housing and Urban Development Secretary Alphonso Jackson . . . recounted a conversation he had in the nation's capital with a minority publisher.

"He had made every effort to get a contract with HUD for 10 years," Jackson said of the bidder, according to an account of the speech in the Dallas Business Journal. "He made a heck of a proposal and was on the GSA [General Services Administration] list, so we selected him. He came to see me and thank me for selecting him.

"Then he said something. . . . He said, 'I have a problem with your president.' I said, 'What do you mean?' He said, 'I don't like President Bush. ' I thought to myself, 'Brother, you have a disconnect — the president is elected, I was selected. You wouldn't be getting the contract unless I was sitting here. If you have a problem with the president, don't tell the secretary.'

"He didn't get the contract," Jackson continued. "Why should I reward someone who doesn't like the president, so they can use funds to try to campaign against the president? Logic says they don't get the contract. That's the way I believe."

Does Jackson's decision, if the newspaper account is correct, violate the First Amendment? Generally speaking, terminating a contract — or failing to renew a usually renewable contract or removing a contractor from a list of regular service providers — based on the contractor's speech or political affiliation is presumptively unconstitutional. If the speech is on a matter of purely private concern, or if the speech was disruptive to the government's functioning (quite unlikely in this case), this presumption can be rebutted. But the First Amendment rules apply to termination of contracts as much as to government employement. So the Supreme Court decided in Board of County Comm'rs v. Umbehr (1995) and O'Hare Truck Servs. v. City of Northlake (1995).

But does this extend to initial refusals to award a contract? (It sounds like in this case the contractor was selected, but no contract had yet been signed.) On the one hand, Umbehr said it wasn't addressing the First Amendment implications of denying an initial contract — as opposed to canceling or refusing to renew an existing contract — based on the contractor's speech. On the other hand, Umbehr and O'Hare expressly analogized contractors to government employees, and in Rutan v. Republican Party (1990) the Court expressly extended the First Amendment limits on political patronage firing to apply also political-patronage-based refusal to hire. (The limits don't apply to high-level, mostly policymaking, employees, but do apply to most lower-level employees and would by analogy apply to most contractors.)

Lower courts seem to be split on the issue, as a First Circuit case from 2002 reports, citing (internal cert. denied notation omitted) "Lucas v. Monroe County, 203 F.3d 964, 972 (6th Cir.2000) (tow truck operator who had never been called was protected from removal from the call list), McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir. 1999) (limiting Umbehr and O'Hare to ongoing commercial relationships); Tarpley v. Jeffers, 96 F.3d 921, 924 (7th Cir.1996) ('The First Amendment bars patronage hiring of independent contractors.')." So it's a tough constitutional question, though I lean to the conclusion that such contractor selection based on the contractor's political preferences is indeed as unconstitutional as employee selection based on the employee's political preferences.

The Post also suggests that the Secretary's reported decision "may violate federal procurement law, which requires 'complete impartiality and . . . preferential treatment for none,'" but I'm not knowledgeable on that area of the law and thus can't do more than just flag the issue.

UPDATE: A reader points to this Chicago Tribune news blog item, from Frank James:

I called HUD and talked with Jackson's spokesperson, Dustee Tucker, about the incident. After talking with Jackson, she returned with information that made the matter even more extraordinary.

She essentially said that Jackson made the whole story up. He told a room full of people something happened which didn't.

"What the secretary was talking about (in his speech) was all of our accomplishments with minority contracts. At at the very end of his statement, the secretary offered an anecdote to explain politics in Washington D.C. He was speaking to a group of business leaders in Dallas and there were lots of Dallas Cowboys in the room.

"So he was offering an anecdote to say, this is how politics works in DC. In DC people won't just stab you in the back, they'll stab you in the front. And so the secretary's point was a hypothetical, what he said was an anecdote. It did not happen....

"You know when you tell a joke you put yourself in first person, for delivery," she said. "You say I was on this train and so and so did this even if you know it wasn't a train. The secretary was putting himself in that first person to make the story more effective...

"The secretary was taking situations that have happened to him in the past. As you know, people come up to political figures all the time and say 'I don't like you, I don't like your politics, I don't like the president... He was blending together things that happened to him in the past." ...

The main message Tucker wanted to leave me with was that Jackson didn't yank anyone's contract because he vehemently disagreed with the Bush administration....

FURTHER UPDATE: Reader David Smith passes along this item, from the Washington Post:

Housing and Urban Development Secretary Alphonso Jackson apologized yesterday for telling a Dallas business group that he had rejected a HUD contract because the contractor had criticized President Bush.

Jackson said he made up the story. "I deeply regret the anecdotal remarks I made at a recent Texas small-business forum and would like to reassure the public that all HUD contracts are awarded solely on a stringent merit-based process," Jackson said in a statement. "During my tenure, no contract has ever been awarded, rejected, or rescinded due to the personal or political beliefs of the recipient."

Alphonso Jackson said HUD contracts are awarded based solely on merit....

Neil Gorsuch, who clerked for Justice White the year I clerked, is apparently likely to be nominated to the Tenth Circuit Court of Appeals. (He also later clerked for Justice Kennedy.)

Neil is very smart and thoughtful, and would make an excellent judge. I haven't kept up with him much, but I did read and very much like his recent Wisconsin Law Review article called The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review of the Dutch and Oregon Experiments and Leading Utilitarian Arguments for Legal Change. He also has a book coming out on the same general subject, from Princeton University Press, which I read, liked, and wrote a blurb for.

Thanks to Stuart Buck for the pointer.

Luttig, a leading conservative judge who had often been talked about as a possible Supreme Court nominee, has just resigned. He's going to become General Counsel of Boeing.

Reader James Wallmann, who's a lawyer and who speaks Dutch, very kindly responded to my request -- many thanks to him for his help. Here's what he writes:

Here is a translation of the summary and a summary of the opinion....

Mr. Dorsman’s translation of the summary is very good — probably better than mine.

Translation of "Inhoudsindicatie" (Summary) of LJ# AW5258, Gerechtshof [Court of Appeal], The Hague, 06/83

Translator’s note: Except as indicated, all brackets are in the original decision.

The State purchased an apartment in an apartment building in [place] and renovated it as a high security residence. At the present time, the State allows [person] to live in this apartment. A number of residents of the other apartments object to this. They claim that they are in danger of becoming victims if an attack is carried out on [person] while she is in the building. In addition, they claim to be burdened by the security measures which have been established for [person]. For the most part, the court agrees with the residents. The court finds that an impermissible burden on the residents has not been proven. But, according to the judgment of the court, it is reasonable to believe that the residents do not feel safe within their own apartments because one of the apartments is a high security residence for [person]. Because the residents do not feel safe in the place where they — of all places — should feel safe, namely their residence, it is a violation of their right to live where they want to live [woonrechten, probably not "human rights" — trans.] In order to keep this violation of Art. 8 EVRM [Europees Verdrag voor de Rechten van de Mens, or European Convention on Human Rights — trans.] from becoming an actionable violation, the State must see that [person] leaves the apartment within four months. The error of the State in establishing her residence in the apartment without legal justification must not be shifted to the residents, who did not agree to this. The judgment of the court is based on the specific circumstances of this case and, in particular, on the fact that this high security residence is occupied by [person]. There are insufficient grounds to conclude that the occupancy of the apartment by another protected person would be a violation of Art. 8 EVRM.

Pieter Dorsman (PeakTalk) points to the court's ruling in the Ayaan Hirsi Ali case. If anyone could translate it from Dutch, that would be a substantial public service, deserving of much public praise and recognition that I'll be delighted to give you. Summarizing the argument and translating key passages would be a good start, since we beggars can't be choosers. . . .

This article reports:

The suspension notice states that Ryan violated a policy that says: "No student shall engage in behavior which is indecent, overly affectionate, or of a sexual nature in the school setting."

"Students leave school and essentially take the rules with them," school board lawyer Ann Majestic said in a telephone interview Friday. "The parents and the student had signed a form indicating the conditions under which a student could be off campus during the lunch hour, and it made it clear that school rules applied while the student was off campus." ...

I'm not sure that the policy is so vague that it can't be constitutionally enforced here -- much depends on the exact terms of the form -- but it seems to me that the policy's terms further suggest that the school is acting improperly. The policy itself seems to be pretty clearly focused on behavior in school or during school-sponsored events. The purpose of the policy seems to be to maintain decorum and a proper environment for learning at school. A student who's familiar with the policy would, I think, interpret it precisely this way.

If a form then says that "school rules appl[y] while the student [is] off campus," I doubt that a reasonable student would assume that this means no french kissing (might well be "overly affectionate," no?) at home or even in the car on the way to the event. I'd say that many perfectly sensible students would understand this as simply covering the things you would do while on the field trip, surrounded by students or others. That behavior in public on a school-related field trip is treated as being part of the "school setting" doesn't mean that behavior at home while playing hooky from the field trip would be treated the same way.

But even if it's not unconstitutional to apply the policy to bar sex or french kissing at home, on the theory that such behavior is barred "in the school setting" and a form says that "school rules appl[y] while the student was off campus," surely it's not quite fair -- especially when the contemplated punishment seems to be suspension for the rest of the year, which, as the news story points out, "[s]pending so much time away puts him in jeopardy of repeating 11th grade and not graduating with his class next spring."

because of the European Convention on Human Rights. This strikes me as potentially quite troubling, but also puzzling, because all I've seen on it is brief English language news accounts, plus this blog post that comments on the case and translates some Dutch news accounts, and this Christopher Hitchens Slate piece that first alerted me to this. Here's one English language account from Expatica News:

Liberal Party MP Ayaan Hirsi Ali has been ordered to vacate the high-security home she is renting in The Hague within four months.

An appeal court sided with her neighbours who complained her presence put their own safety at risk and caused disruption to their lives....

Somali-born Hirsi Ali is known as a critic of aspects of Islam and she went into hiding in November 2004 when filmmaker Theo van Gogh was murdered. They had finished work shortly before his murder on Submission, a short film about the ill-treatment of women under Islam.

Hirsi Ali and fellow MP Geert Wilders spent several months in hiding in secret locations due to death threats made against them because of their stance on Islam....

The neighbours ... won on Thursday when an appeal court accepted Hirsi Ali's presence meant they no longer felt safe in their own apartments or in the communal areas of the complex. The court ruled that is contravened Article 8 of the European Convention of Human Rights which guarantees respect for a person's private and family life.

The Dutch State had contravened these rights by moving to the apartment complex without seeking their consent and without taking measures to diminish the neighbours' valid fears, the court said....

I understand the neighbors' concerns, but it seems to me on balance quite wrong -- and quite destructive of the fight against terrorism -- that they would have a legal right and, essentially, a European constitutional right to insist that Ali move out. Some risks, it seems to me, are inevitable whenever terrorists are trying to intimidate your countrymen and interfere with your democratic process. Sure, most of us would rather that these risks be borne entirely by others. But I don't think that we ought to have a legal right to insist on this. And if we do have the legal right to insist on it, that seems to only strengthen terrorists' ability to intimidate.

Plus, as PeakTalk points out, this "is not just about one outspoken member of parliament. Beyond a number of politicians there is a growing constituency of writers, artists and cartoonists who may rightfully claim government protection. And in most cases their neighbors are equally likely to take a less than charitable view of their right to exercise free speech. This is once more evidence of how Europeans fail to understand the bigger picture and are more than willing to let some short term comfort prevail over the long term survival of core values that built their societies in the first place." (I should stress, by the way, that this failing is a common and understandable human failing, not just a European one; it's just a shame if European law comes to reinforce this failing.) And, of course, "those responsible for threatening her will have the last laugh."

Nonetheless, it's hard to evaluate this for sure without knowing more of the facts and analyses underlying the court's judgment; and unfortunately I couldn't find even the Dutch-language version of the opinion. Do any readers know where the opinion might be found? If I get my hands on it, then I'll try to take the next step and get it translated.

A local TV station site reports:

Ryan Biggar, 16, and his 17-year-old girlfriend had permission to leave Middle Creek High School for an off-campus program. When their event was canceled for the day, they were caught having sex in the girl's home.

It violated school rules, and officials say those rules apply no matter where you are during school hours.

But ... Biggar's family is filing a lawsuit against the school system, saying his suspension for the rest of the school year is unconstitutional. He says he had no notice that private, consensual, off-campus sexual activity could subject him to school suspension....

Wake County school spokesman Michael Evans says that having sex during school hours breaks the rules — even in a private home.

"Whereever you are during school hours. It's a privilege to leave campus for lunch and you sign a form to that effect, as do your parents," Evans said. "So it was with full consent and knowledge that they participate under these rules and if they chose to break them then disciplinary action will come into play."

Court documents include a copy of the lunch permit application, which states that students exercising off-campus lunch privileges are subject to the rules of student conduct, as applicable to the regular school day. Biggar and one of his parents had signed the application....

I can't speak to whether the suspension violates school rules or state law — or violates the Due Process Clause because there wasn't adequate notice.

But setting aside the legal question, even if the student did violate the rules, isn't the punishment (what sounds like several weeks' suspension) somewhat disproportional to the offense? Yes, he was essentially playing hooky, and should be punished for that; but I don't see why it's the school's business whether he was playing hooky to have sex at home or playing hooky to play video games at home. (I believe that the age of consent in North Carolina is 16, so there's no question of illegality here.) Screwing up the boy's (and presumably the girl's) studying and exam schedule, and depriving them of a month or more of what one would hope is a valuable educational experience, doesn't seem to make much sense.

Thanks to reader Mike Bavli for the pointer.

UPDATE: My favorite comment, from commenter Thief: "Wow. From in loco parentis to simply loco."

Grrr -- this is one word that really bugs me (except when it's used to deliberately distinguish an individual from a collective body). Why not "person"? Why not "someone"? "Individual" just seems like a bureaucratese or academese synonym for these simpler terms; it makes the writing seem more formal and stilted with no countervailing increase in precision.

Again, if you want to distinguish individuals from corporations, or want to discuss individual rights as a way of stressing their protecting individuals from the state, that's fine. But if in context "individual" simply means "person," it seems to me that "person" is the much better term.

How Appealing reports:

The error in a recent Ninth Circuit decision that Eugene Volokh pointed out yesterday in this post at "The Volokh Conspiracy" (and later linked here by me) has today been eradicated from the annals of the law thanks to an order amending opinion that the U.S. Court of Appeals for the Ninth Circuit has issued.

Today is when Russians celebrate (at least they celebrated it under the Soviets, but I'm sure they still celebrate it now) Dien' Pobiedy, or Victory Day, the victory of course being victory over the Nazis (or, as the Russians say, Fascists). Americans mark V-E day on May 8, but I take it that the surrender on the Russian front happened on the 9th.

Why, I wrote onto the UCLA Law Review. (I was smart enough to resign before they gave me cite-checking assignments.)

What was I smoking when I decided to do this? Why did I decide to do this? My Academic Legal Writing book gives advice to students who are trying to write on to law review, but I realized that this advice is based on my now 16-year-old experience of writing onto law review during my first year of law school, coupled with my general knowledge about legal writing. Not nothing, but I figured I could do better. So I took several days — which, valuable as I think law review is, proved to nonetheless be several not very pleasant days — and did the write-on.

I naturally cleared this experiment with the higher-ups at the law review, both because I was creating more work for them (though less than 1% more, since I was one of about 140 people who participated) and because if they wanted 35 people and I made it as one of them, I wanted to make sure they understood that they'd also need to take the 36th. (It would be a pretty nasty turn if I ended up edging out some deserving law student.) But though the top people at the law review knew I was doing it, they didn't know my anonymous exam number, and most law review editors didn't know that I was participating at all.

And as it happens, I think my experiment did indeed prove very valuable to me. I learned quite a bit about the process that I hadn't thought of before, confirmed some things I thought I had known, and concluded that a few recommendations that I'd made were a good deal less sound than I thought they were. I plan to use what I learned when I'm working on the Third Edition of my book (which should be out in Fall 2007). And I plan to blog much of it here in the next few weeks, since I know that at many schools the law review competition is still coming up.

In the meantime, I just thought I'd mention my having done this, just as a reminder that, yes, I'm as odd a duck as I seem.

UPDATE: My favorite comment so far, from commenter wt: "How very Drew Barrymore in 'Never Been Kissed' of you!"

I should note that I generally don't post entire articles from newspapers or magazines, because that would probably infringe the copyright in the articles. But I don't have such a hesitation about letters to the editor, the copyright in which is generally owned by the letter's author, not by the newspaper.

With letters to the editor, I think that there's probably an implied license to redistribute the letter further, since broad distribution (for free) is what the authors of such letters usually want. And even if there's no implied license, the republication is fair use, because the republication doesn't interfere with the letter-writer's market for his work: Letters to the editor almost invariably make no money for the letter-writer (whereas newspaper articles do make money for the newspaper, through advertising income).

This is naturally an oversimplification. When I teach copyright law, we spend days on fair use, plus some time on implied licenses, and I didn't want to go into all this detail here. But I wanted to note this for those who wonder why I'm willing to copy entire letters but generally not entire articles.

for suggesting that the university include an anti-gay book in a freshman reading program is "not an act of intellectual oppression." It doesn't even "imply judgment," but merely "notifies the human-resources office that discrimination might have occurred" ("discrimination" here meaning offensive speech). This is especially so because of "a crucial point: the discrimination reports did not focus on the book suggestion so much as the librarian’s unyielding defense of the book, even after the revelation of its bigotry, his disparagement of faculty expertise and his forwarding of others’ e-mails to an outside organization." That's what Prof. Christopher Phelps at Ohio State University (Mansfield) continues to insist.

Yup, unyielding defenses of a book recommendation are obviously something that human resources departments should be investigating in "a university that is a beacon of intellectual freedom." In any case, let me quote Prof. Phelps' letter so you can see his full argument in context; for my coverage of this issue, see here:

As a member of the faculty of Ohio State University at Mansfield, I write in the hope of providing a more precise rendering of a recent conflict on campus.

The campus’ head reference librarian told The Dispatch in an April 21 news article that he was accused of "sexual harassment" by the faculty for what the reporter called his "tongue-in-cheek" suggestion that a book called The Marketing of Evil be assigned to all incoming students as part of a first-year reading experience. A subsequent Dispatch editorial (April 26) condemned the faculty for requesting an investigation into sexual harassment.

In actuality, the faculty assembly in March decided not to request an investigation as a body. Two individual professors did file reports, but in reference to "harassment based on sexual orientation," or discrimination, not sexual harassment. Such a referral does not imply judgment. It merely notifies the human-resources office that discrimination might have occurred.

Our faculty believes firmly in free speech. We believe intellectual freedom is critical to the life of a university. We do not fault investigators for concluding that no harassment occurred.

We believe, however, that The Dispatch is wrong to condemn the faculty members who made the referrals. University policy obliges anyone who knows of a possible case of discrimination to report it, for the obvious reason that secondary parties must be encouraged to refer such matters lest victims suffer privately, leaving the university liable and injustice unaddressed. The two faculty members who filed reports, neither of them gay, perceived that their gay colleagues were finding the workplace inhospitable.

Referral of the dispute to human resources was not an act of intellectual oppression. It was an attempt to restore an atmosphere of freedom and tolerance to the campus, including the freedom of consenting adults to love whomever they wish without discrimination.

Dispatch columnist Joe Blundo has done an excellent job of conveying the ludicrousness of The Marketing of Evil ("Left vs. right: All opinions should be heard," Tuesday). Quite apart from demonstrating its unabashed bigotry, his column makes it clear that this is a book wholly unsuited to the purpose of introducing undergraduates to the life of the mind. Why would a reference librarian, entrusted with guiding students to the best possible sources, recommend such a screed?

But the news media’s coverage has missed a crucial point: the discrimination reports did not focus on the book suggestion so much as the librarian’s unyielding defense of the book, even after the revelation of its bigotry, his disparagement of faculty expertise and his forwarding of others’ e-mails to an outside organization. The claim that his proposal was tongue-in-cheek is belied by the fact that when he was employed at Lakeland Community College in 2004, he displayed an antigay book prominently, provoking controversy there, as well.

Out faculty seeks a university that is a beacon of intellectual freedom, high scholarly standards and freedom from discrimination based upon sexual orientation. I look forward to the day when we can say with assurance that our library manifests the same principles.

not "a good little monkey, and always very curious"?

Most law school exams, to my knowledge, involve a single end-of-semester exam. Some comments in this thread argue that this is pedagogically unsound, and that having several exams — a final plus a midterm or two — would better measure people's knowledge. (It might also help students learn the material better.) I'm not sure that this is so, because I haven't looked into the research; but it seems plausible, and colleagues I trust have said that the research does support this. Let's assume then that this is right. Why then the single-exam format?

Some of the commenters identified one important answer: Professors hate grading exams, and would thus rather grade one exam than two or more (since presumably the two or more put together would involve more pages of exam answers than just the one). With few if any exceptions, law professors do all the grading themselves. "Law is the only discipline in which students select what's published in the journals and the professors grade the exams." Professors and professor-run bodies get to decide how many exams there'll be. Professors hate grading the exams. You get the picture.

I think there's a lot of truth to this, but let me suggest an extra factor: I suspect that most students prefer the one-exam structure as well, so that there's little pushback against the professors' one-exam preference, and there would likely be some pushback against professors' attempts to shift to the "better" two- or three-exam format.

In my experience, most law students are very serious about studying for exams, and thus spend a lot of time studying for them and stressing out over them. What's more, if you cut the significance of the exam in half, students won't think they have to study half as long or half as hard. Rather, they'll still see themselves as in hot competition with the other students, and will feel the pressure to study nearly as hard and long for each of the two exams as they would have for the one.

Naturally, some students might value the greater accuracy of the multi-exam approach, and the lower risk to them that this approach provides (since they don't need to worry as much about tanking a class because they screw up one exam). But for many students the downside of yet more studying and yet more worrying exceeds the upside of less risk and better measurement accuracy. And on top of that, grades are on balance mostly a zero-sum game — more accuracy of testing will just rearrange the As, Bs, and Cs, so as many students will lose as will win. Increased time needed to study for exams is a net loss for students as a whole. Therefore, you'd expect that more accurate measurement devices will please only a few students, while greater need to study will displease many more students.

So professors don't want to institute more exams, even if having more exams provides more accurate measurement. More students, I suspect, don't want to institute more exams, even if having more exams provides more accurate measurement. Who would predictably benefit from more accurate measurement, and lose nothing from it? Employers, and perhaps indirectly the legal system generally.

Employer pressure may indeed have some broad effects. For instance, while abolishing grades would make life easier for professors and would in some ways make it easier for students, most employers won't hire students who don't have grades. Even Yale, which some say "doesn't have grades" does have a "High Pass" and a "Pass" [UPDATE: and two lower grades which are rarely given], which selective employers definitely focus on; and schools that aren't as selective as Yale probably couldn't get away even with that (though Berkeley somehow manages with only three grades).

But on balance I suspect that few employers care about precision enough to make a stink about this. The grades give employers some decent signal of applicant quality; employers realize that no grading system would yield a perfect signal; it's hard to tell how much extra accuracy one grading system provides over another; the random noise in the grading probably averages out in considerable measure when you look at the student's entire transcript; so employers are unlikely to spend much time and effort on even thinking about the midterms-or-no-midterms question, much less trying to pressure stodgy academic institutions into changing their ways, or shifting their hiring practices towards schools that provide more midterms (which would provide indirect pressure on the law schools).

This is just a casual analysis, not based on any deep thought, and I might well be mistaken. Yet it seems to me that while professor self-interest is an important factor here (a free-market guy like me must surely appreciate the importance of self-interest in molding human behavior), student self-interest may in practice reinforce the professor self-interest rather than clashing with it.

do something nice and call the companies to have them correct it. WESTLAW is at 1-800-REF-ATTY; LEXIS is at 1-800-543-6862 (no official mnemonic, and the best that I could get from PhoneSpelling.com is LIE-NUMB or KID-NUMB). That way future lawyers, law students, legal academics, judges, and law clerks won't be tripped up by it. It's quick and easy, and you'll feel you've done your Good Deed For The Day.

The glitch is at the start of this paragraph from Merrill Lynch, Pierce, Fenner & Smith v. ENC Corp., handed down May 4 by the Ninth Circuit:

The phrase “equity and good conscience” in our judicial usage is coterminous with the first opinions of the United States Supreme Court. See Hollingsworth v. Ogle, 1 U.S. 257 (1788). Undoubtedly in its earlier usage, equity brought to mind a fairness sought by the chancery courts that transcended statutory law and “good conscience” referred to an interior moral arbiter regarded as the voice of God. As the phrase has become domesticated and invoked in modern times, see, Montana v. Crow Tribe of Indians, 523 U.S. 696, 707 (1998), the distinction of its two elements has blurred, and it has a secular rather than religious cast. Still, its unique appearance in Rule 19 of the Federal Rules of Civil Procedure emphasizes the flexibility that a judge may find necessary in order to achieve fairness and the moral weighing that should attend the judge’s choice of solutions, a choice to be marked by “mercy and practicality.” Hecht v. Bowles, 321 U.S. 321, 329 (1944).

Some careful readers might notice that the Hollingsworth cite gives a year of 1788, and conclude that this is an error, since the U.S. Constitution didn't go into effect until 1789 and the U.S. Supreme Court didn't sit until 1790.

But Hollingsworth is indeed a case from the April 1788 Term -- it's just not a case from the April 1788 Term of the United States Supreme Court. Volume 1 of U.S. Reports is occupied entirely by cases from Pennsylvania; Hollingsworth is a Pennsylvania Supreme Court case, as the printed volume and LEXIS report (though WESTLAW erroneously calls it a United States Supreme Court case). Volumes 2 and 3 of U.S. Reports also contain cases from many courts, include Pennsylvania courts, lower federal courts, and the U.S. Supreme Court. My understanding is that Alexander Dallas, the entrepreneur who published the cases, included the other courts' cases to make the volumes more salable, since the U.S. Supreme Court produced relatively few cases in its early years.

In any case, the earliest U.S. Supreme Court reference to "equity and good conscience" that I could find in the WESTLAW SCT-OLD comes from the 1804 Term; the first two references, from 1788 and 1796 Terms, come from the Pennsylvania Supreme Court. This doesn't affect the Ninth Circuit opinion's substantive point; and the prase "equity and good conscience" does indeed seem to be roughly contemporaneous in American usage with the founding of the Republic, and likely dates back even before the Revolution in Colonial usage. (I express no view on the historical relationship between the concepts of "equity and good conscience" and "voice of God.") But the incident should be a reminder that "U.S. Reports" doesn't always mean "U.S. Supreme Court."

Foundation Press will be putting out the third edition of my Academic Legal Writing book in Fall 2007. I have some ideas of my own for improving the book, but I'd love to get suggestions from readers (and others). Hence, a few questions:

What would it be good for the book to cover that it doesn't already cover?

What does the book already cover that it should cover in more detail?

What does the book say that you think it should stress more?

What does the book say that you think is wrong or counterproductive?

I'd love to see your input on this. Thanks!

A New York Times review of a PBS program on Annie Oakley -- generally quite a positive review -- begins:

Plenty of women accomplished plenty of things in the first century or so of United States history, so it's a little dismaying to think that the country's first female superstar was famous not for her voice or her musicianship or her brain, but for her ability to shoot firearms accurately....

Even if her particular talent is not to your liking, it would be difficult to watch this program and not be awed by the woman's life....

Why exactly should it be dismaying to think that the country's first female superstar was famous not for singing ability (one form of trainable physical talent) but for athletic ability (another form of trainable physical talent)? It seems to me that, if anything, female success in a traditionally masculine field (sports generally, and target-shooting in particular) would help advance respect for women and equality for women more than female success in a less traditionally masculine field (singing).

Moreover, even if one opposes private gun ownership for self-defense, Oakley wasn't famous for that -- she was famous for marksmanship, which was then and now a sport (today, an Olympic sport).

Now naturally the author of the article is entitled to dislike marksmanship as a sport, and to find everything having to do with guns to be icky (even when the only thing being damaged is targets). But it does seem to be telling that the dislike of guns among some, dislike that would lead to two mentions in the first two paragraphs of the review (and "a little dismay[]" that a woman superstar would excel at sports rather than at singing), extends to sporting use of guns as well as to military, defending, and hunting uses.

According to Reuters,

In the latest Vatican broadside against "The Da Vinci Code", a leading cardinal says Christians should respond to the book and film with legal action because both offend Christ and the Church he founded. Cardinal Francis Arinze, a Nigerian who was considered a candidate for pope last year, made his strong comments in a documentary called "The Da Vinci Code -- A Masterful Deception." ...

"Christians must not just sit back and say it is enough for us to forgive and to forget," Arinze said in the documentary made by Rome film maker Mario Biasetti for Rome Reports, a Catholic film agency specializing in religious affairs.

"Sometimes it is our duty to do something practical. So it is not I who will tell all Christians what to do but some know legal means which can be taken in order to get the other person to respect the rights of others," Arinze said.

"This is one of the fundamental human rights: that we should be respected, our religious beliefs respected, and our founder Jesus Christ respected," he said, without elaborating on what legal means he had in mind....

I had hoped that the Catholic Church had learned that it's wrong to try to use legal coercion to suppress religious views that one disapproves of -- and that no religion should have a legal right to be free from criticism or disagreement (or for that matter novels it dislikes). I'm sorry to see that at least one leading cardinal takes a different view. Those of us who condemned Moslem leaders who called for legal suppression of the Mohammed cartoons (not just those who called for violence, but also those who called for government action) should condemn this Catholic leader's call as well.

Thanks to Robert Bidinotto for the pointer.

Why do we treat unwanted touching of some parts of the body different from unwanted touching of other parts of the body? (Obviously, I'm referring here to unwanted touching, not beating someone, holding someone down, or otherwise injuring them.) And why do we treat being nude or having sex in front of unconsenting others as a crime?

It seems to me that the two may be related. In an earlier post, I suggested that one similarity may be that both may involve "a connection with sexual arousal — either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you." If someone rubs a man's penis in a public place, for instance, the man may feel involuntary sexual arousal (though even if the touching is arousing, it might be unpleasant, precisely because it's done without the man's permission). Likewise, if two people are having sex in a public place, passersby may also feel such involuntary arousal (though I stress again that the arousal may be disgusting rather than on balance pleasant, precisely because it's unexpected and unconsented to). Such messing around with others' hormonal systems, it seems to me, is troubling in a way that an unwanted pat on the back or the ounesthetic but nonsexual display of, say, an unsightly belly is not.

On reflection, though, I think I probably overstated the importance of this factor as to unwanted touching, and understated the importance of the other factor that I mentioned: "the likelihood that the other person is deriving some sort of sexual arousal from touching you." Even if you feel entirely unaroused (neither pleasantly aroused nor, more likely, unpleasantly aroused) by someone caressing your private parts in public, you may feel quite upset by the likelihood — not certainty, but likelihood — that this other person is deriving some arousal from the action, and from your involuntary involvement in the action.

That too helps explain why we treat unwanted pats on the back differently from unwanted pats on the breast or on the genitals. (To shift for a moment to a much more intrusive but necessary touching, I take it that many of us would be quite upset if we learned that our gynecologist, urologist, or proctologist, who has to touch our private parts, is actually being aroused by the touching, or, worse still, is engaging in the touching because he wants to be aroused by it. Here, we probably must acknowledge some risk of the arousal — but I suspect most of us try to put it out of our minds, and most certainly would not enjoy learning that the risk in this instance is reality.)

And it might explain why we're quite upset by at least some forms of public nudity and especially public sex. If I see someone masturbating in a public place, I'll probably assume that he's doing precisely because he gets his jollies from being seen by unexpecting passersby (maybe not passersby quite like me, but at least some kinds of passersby). Perhaps it is this sense that the person is likely to be deriving some sexual arousal from others' involvement in his act, even if the involvement is simply observing, that makes it an offense against those others.

I'm not sure how apt this explanation ultimately is for all cases of public sex or public nudity, especially ones where it doesn't seem terribly likely that the people engaged in the act really are doing it for the sake of sexual exhibitionism. But the risk that sexual exhibitionism is part of the motive, and thus that the viewers are in a sense being involuntarily used (though without physical touching) for the actor's sexual gratification, seems to be present in at least many instances of public sex and nudity, to the point that a prophylactic rule against such conduct (except when only consenting viewers are likely to be present) seems sensible.

As I said in the earlier post, I'm not positive about this, but it seems to me that there's something interesting and possibly important in play here: Some conduct that sexually arouses a person through the unwanted participation — even visual — of another may be improper, even if similar conduct in which sexual arousal is absent is generally fine.