The recent posts have led me to want to post some more about the relationship of sexual orientation discrimination to other forms of discrimination. I'll probably have a post directly focused on this next week. But in the meantime, I thought I'd float a related legal doctrinal argument that I've been thinking about for a while.

Federal antidiscrimination law, as we know, generally bans employment discriminate based on race, color, national origin, sex, and religion. (I say generally because there are some exceptions, but let's set them aside now.) It doesn't on its face ban sexual orientation discrimination; some state laws do, but at this point it's less than half the states.

The law does, however, go beyond simply banning religious discrimination — it also imposes on employers a duty of "religious accommodation." Even when the employer has a rule that is facially religious-neutral, and not designed in order to discriminate based on religion, it must give religious exemptions from that neutral rule to religious objectors, unless the exemptions would pose an "undue hardship." So, for instance, if an employer has a flat "no headgear" rule, designed with no desire to discriminate based on religion, it must exempt people who feel a religious obligation, or likely even a religious motivation, for wearing a yarmulke or a turban or some other religious headgear — again, unless the exemption would cause the employer undue hardship. (Where's the sexual orientation discrimination connection you ask? Hold on, we're getting there.)

This duty of religious accommodation applies even to job-related conduct (such as wearing religious headgear or religious jewelry, or in some cases — where no undue burden on the employer can be shown — to taking religious holidays off, not participating in performing abortions, and so on). It would even more clearly apply to off-the-job conduct: If an employer, for instance, disapproves of the killing of animals, and has a policy of firing employees who personally participate in the killing of animals even off the job, he must exempt those who are involved in religious sacrifices. (The "undue hardship" threshold is generally pretty low, but mere personal disapproval by the employer of the employee's behavior would not qualify.)

What's more, to qualify for the exemption (again, assuming no undue hardship can be shown by the employer), the employee must merely show that his religious belief is sincere. He needn't show that it's reasonable, that it's mandated by scriptural text, or that it's shared by all or even most of his coreligionists. It is also probably enough to show that the belief is religiously motivated, even if not religiously compelled. (Finally, though it's not necessary for my argument, note that many courts have held that deeply held secular conscientious beliefs are treated the same as religious beliefs.)

So let's say that Warren Worker is homosexual, and is involved in a relationship that the law doesn't treat as a marriage, but that his church (or his personal religious system) treats as a marriage. Let's also say that he believes that sex within that relationship is a sacrament, intended to implement God's will for him (Warren believes that he was born homosexual, and thinks that this indicates what God wants him to do), and important as a means of strengthening the sacred marriage relationship. I am not sure of this, but I am told that some religions — such as orthodox Judaism — do treat sex within traditional marriage as having religious significance, and being an implementation of God's will. Warren therefore sincerely asserts that he believes that having sex with his partner is his religious obligation, or is at least an act of deep religious significance.

Ed Employer has a general policy of firing or not hiring people who engage in homosexual behavior. That policy doesn't itself violate federal antidiscrimination law, and the state in which Ed's business is located doesn't ban such policies, either. But Warren, whom Ed is threatening to fire because Warren engages in homosexual behavior, claims a right to religious accommodation: Ed may not fire me for what is to me a religious practice — unless the practice imposes an undue hardship on him which it doesn't — just as he may not fire orthodox Jews for violating a no-headgear policy, Santerians for violating a no-killing-animals policy, Catholics for violating a no-drinking-alcohol-even-off-the-job policy, and so on.

Would Warren have a viable federal Civil Rights Act claim? I would think so, and if I'm right then the Civil Rights Act already prohibits discrimination based on employees' homosexual behavior, when the employees' behavior is religiously motivated (again, unless undue hardship on the employer is shown, which seems unlikely). The same would apply if the employee doesn't belong to an organized religious group, but can sincerely assert that his behavior is motivated by his understanding of God's will. And it would probably apply even if the employee says he's an atheist or an agnostic, but believes that sex with his life partner is part of his conscientious obligations.

Now this is well short of a flat ban on sexual orientation discrimination. Among other things, I suspect that many people can't claim a religious motivation for their sexual behavior, though some people can, especially if the behavior is part of a committed partnership (though the "committed partnership" limitation reflects just my guess of when people have such sincere beliefs that sex isn't only pleasant but religiously obligatory or at least religiously meaningful, and not any categorical legal distinction).

On the other hand, I suspect that this theory provides considerably more federal protection against discrimination based on people's homosexual behavior than most people would think exists. In particular, I suspect that many fans of religious accommodation law (including especially those who have urged that it be broadened, by lifting the "undue hardship" threshold above its rather low current level) would balk at this application of that law. Yet unless I'm mistaken, the legal argument here is quite sound. What do others think about it?

(One note: I'm using "sexual orientation discrimination" above interchangeably with "discrimination based on a person's sexual behavior," because that's what I suspect is usually involved in discrimination against homosexuals, and because that most crisply implicates the religious accommodation argument I describe above. If an employer is genuinely firing someone not because of his sexual behavior, but because of his orientation, in the sense of his sexual preference even in the absence of any behavior, the legal argument becomes somewhat more complex, since religious accommodation law protects religious behavior and not pure orientation. But the post is already long enough, so let me set aside that complexity for now, and deal with what I think is the more common scenario, and is at least a common scenario — an employer's firing an employee for the employee's sexual behavior, not just for the employee's preference that has never manifested itself into homosexual behavior.)

UPDATES: (1) Some commenters suggested that the claim I describe should be a loser because no religions actually endorse it. Let me stress again: Title VII has been interpreted as protecting (subject to the undue hardship constraint) religious conduct regardless of whether it's endorsed by an organized religious group. If someone has a sincere religious belief, it doesn't matter that the belief is shared by only a few (or even by no) other people. As a practical matter, I suspect that it's easier to persuade judges and jurors of the sincerity of a religious belief if the belief is familiar, and if you belong to an organized group that endorses this belief. But judges and jurors may be persuaded of your sincerity even if your belief is idiosyncratic (and in fact many people sincerely hold religious beliefs that differ from those of the religious denomination to which they ostensibly belong).

For an example of the kind of religious reasoning that some might engage in, see this item by Episcopalian minister Robert Warren Cromey:

I believe that same sex couples enter marriage and holy matrimony when they "enter into a life-long union, make their vows before God and the Church, and receive the grace and blessing of God to help them fulfill their vows." ...

Paul's words are that marriage is the sign of the mystical union between Christ and His church. The personal and sexual intimacy between the couples speaks of a deep connection, unity and bonding. That intimacy is a sign of our oneness with God and all creatures. The exhilaration of sexual and orgasmic union reflects the creative, intimate, and explosive character of divine energy available to all human beings. That intimacy happens to same sex couples as well as opposite sex couples. It is not dependent on procreation. It is dependent on robust sexual connection, trust, love and joy....

If someone sincerely believes this, and therefore concludes that God wants him to have sex with his same-sex life partner, and refusing to do that would be against God's will, then it seems to me that the religious accommodation argument I made above fully applies.

(2) Some commenters asked what would happen if the employer's own religious beliefs mandate discrimination against gays, but the employee's religious beliefs mandate engaging in gay sex with the employee's life partner. The answer turns out to be complex, since the rules for employees' religious accommodations from workplace rules don't mirror those for employers' (and others') religious exemptions from statutes, but let me just sketch the outline.

(a) Federal laws, including Title VII, are subject to the federal Religious Freedom Restoration Act (RFRA), which presumptively entitles people whose conduct is substantially burdened by a generally applicable federal statute to a religious exemption. If the law requires you to do something that your religion forbids, or forbids something that your religion requires, that's a substantial burden. But the presumption is rebuttable if there's a compelling government interest underlying the law, and if applying the law to the objector (notwithstanding his objection) is the least restrictive means of serving the interest. The question would then generally end up being whether requiring religious accommodations in such cases serves a compelling government interest (presumably one in protecting employees' ability to practice their religions); I suspect that most courts would say "yes," but it's not 100% guaranteed.

(b) Some states (about half) have similar state RFRAs that apply to state laws, or state religious freedom constitutional provisions that have been interpreted to presumptively mandate religious exemptions. If my hypothetical Warren Worker sues under a state employment discrimination law that requires religious accommodation, the analysis would then be the same as in (a).

(c) In other states, if neither a state RFRA nor a state constitutional accommodation requirement is available, the employer has no entitlement to a religious accommodation (unless he can somehow argue that the "undue hardship" requirement should be interpreted to cover substantial burdens on his religious practice). If the state's employment discrimination law requires religious accommodation, and Warren Worker sues under such a state law, then the employer has no religious accommodation claim vis-a-vis the law, but Warren has a claim vis-a-vis the employer.

(d0 Finally, all this applies only if the employer feels a religious motivation (or, depending on how the law is interpreted, a religious compulsion) to discriminate based on sexual orientation. For some employers, this may be present; for others, this may not be. (For instance, even some employers who think gay sex is wrong, and who therefore refuse to employ gays, may not be acting out of a sense of religious duty. They may think it would be religiously fine to ignore the employees' homosexuality, but might choose to discriminate against the employees nonetheless.)

(3) For some reason, I erroneously claimed that only about half the states currently ban sexual orientation discrimination; I meant to say less than half, and I have no idea why I misstated the matter. Thanks to commenter rmthunter for pointing out the error.

Various comments on my post below have raised the racism analogy -- if we wouldn't worry about the burdens that the civil rights movement have imposed on racists (or anti-Semites or what have you), why should we worry about the burdens that the successes of the gay rights movement may impose on those who are anti-gay?

Well, as I mentioned in my earlier post, one can certainly conclude that the burdens are justified; if that's so, then my point is still relevant, but only as a way to better "understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the 'It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?' variety."

On the other hand, while I (as I said) support a good deal of gay rights claims, I'm far from convinced that opposition to homosexuality is quite comparable to racism. I hope to have somewhat more on this later (though not a vast amount, since I'm not sure how much beyond the obvious I can add to that debate). But it's not clear to me that, for instance, the Catholic Church should be viewed as tantamount to the Church of the Creator, or even to considerably less militant racist groups. It's likewise not clear to me that the Boy Scouts should be viewed as tantamount to a "whites-only Scouts." (I'm also pretty sure that many people, including those who, like me, oppose laws that would make homosexuality into a crime, oppose the exclusion of gays from the military, and support same-sex marriage, would say something similar.)

Perhaps, even if I'm right on this, the reason for this isn't some logical distinction between hostility to homosexuality and racial hostility, but rather just cultural history: Because the big battles over racism happened some decades before the big battles over gay rights, many otherwise decent groups and individuals still have a blind spot about homosexuality. Then, even if hostility to homosexuality and racial hostility are morally equivalent, those who are hostile to homosexuality may often be decent people who haven't yet caught up to the truth on gay rights, while racists are likely to be generally bad people altogether. Nonetheless, even if that's so, we might still be more concerned about burdening (even in constitutionally permissible ways) these often-decent-but-on-this-wrongheaded people's speech and religious practice than about burdening racist's speech and religious practice.

On the other hand, perhaps my tentative judgment on this is wrong; perhaps the Catholic Church and the Boy Scouts really are morally tantamount to racist organizations. But if that's so, then that just further explains the intensity with which many traditionalists are fighting the gay rights movement: If the essence of that movement is to suggest that traditionalist religious and social groups are morally tantamount to racists, those traditionalist groups have a great deal to lose (whether rightly or wrongly) in this particular culture war.

The Washington Post reports:

Maryland Gov. Robert L. Ehrlich Jr. yesterday fired Robert J. Smith, his appointee on the Metro transit authority board, for referring to gay people as sexual deviants on a cable television show.

"Robert Smith's comments were highly inappropriate, insensitive and unacceptable," Ehrlich (R) said in a statement less than five hours after the controversy erupted during a Metro board meeting. "They are in direct conflict to my administration's commitment to inclusiveness, tolerance and opportunity." ...

Smith acknowledged after the meeting that he had referred to homosexuals as "persons of sexual deviancy" during a political round-table discussion on a Montgomery County cable show that was shown on Sunday.

"Homosexual behavior, in my view, is deviant," he said. "I'm a Roman Catholic." ... "The comments I make in public outside of my [Metro board job] I'm entitled to make," he said. His personal beliefs, he said, have "absolutely nothing to do with running trains and buses and have not affected my actions or decisions on this board." ...

The Metro directors oversee a $1 billion operating budget and nearly 10,000 employees. They set policy for the nation's second-busiest subway and fifth-busiest bus system....

Smith said he has been a regular panelist on the weekly political round-table show, "21 This Week," telecast on Access Montgomery cable Channel 21, for the past 12 years. He appears as a "Republican activist," according to Rodney Bryant, the show's producer.

On last weekend's show, Smith interrupted another speaker who was talking about federalism and Vice President Cheney's daughter. The speaker said Cheney's daughter, who is a lesbian, would not want the government interfering in her life, according to a recording of that portion of the show.

"That's fine, that's fine," Smith interrupted. "But that doesn't mean that government should proffer a special place of entitlement within the laws of the United States for persons of sexual deviancy."

It seems like Smith is the sort of high-level political appointee who can be fired for his speech -- including off-the-job speech on matters of public concern -- with no First Amendment constraints, and with no requirements that the government show any likely disruption that would be caused by the speech. (See generally Elrod v. Burns and Branti v. Finkel, which arise in the slightly different but closely related area of dismissal based on political affiliation.) And I think the Governor's decision may well have been quite sensible, not just as a matter of politics for the Governor but as a matter of public relations for the metro system and for Maryland government more generally.

Nonetheless, it seems to me that this shows that the gay rights movement -- which in many respects I support -- has indeed led, and is likely to continue to lead, to nontrivial burdens on people who hold and express traditional religious views that condemn homosexuality: Here, the firing from a government job that really does have relatively little to do with gay rights matters; in other cases, dismissals by private employers for anti-gay speech; in other contexts, burdens on religious institutions' ability to refrain from assisting conduct (for instance, adoption by same-sex couples) that they think is morally improper; in still others, the exclusion of the Boy Scouts and other groups that discriminate based on sexual orientation in the course of trying to convey their anti-homosexuality message (something that I've argued is a constitutionally permissible burden, but a burden nonetheless).

These burdens might well be justified. Also, on balance they are far less than some of the burdens that gays have had to labor under in the past (such as the threat of prison time for their sexual behavior), and are likely less than even the burdens that gays have to labor under today (such as the threat of being fired for their sexual conduct, in some states prohibitions or restrictions on adopting children, the inability to get permanent residence and U.S. citizenship for one's life partner when heterosexuals can get this important benefit as a matter of course, and so on).

Nonetheless, it seems important to recognize that unfortunately the securing of greater rights to some leads to (not inexorably, but practically) the decrease in the rigths of others. And it helps us understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the "It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?" variety. The broad gay rights movement, which goes beyond just demanding freedom from legal punishment for homosexuality and equal access to public benefits, does intrude (whether justifiably or not) on others' business, and resisting the movement then in turn becomes those other people's business.

Thanks to reader Mike Chittenden for the pointer to the newspaper article.

A conversation that I had yesterday reminded me of something I posted nearly three years ago; since the issue still seems salient, and since the original post was in the pre-comment era of this blog, I thought I'd re-post the item and see what people think about it.

One argument I’ve often heard against intellectual property is that “there’s always some other business model.” If you can’t make money selling the work, because people can copy it for free, no problem: You just need to find some other way to make money — tie-ins, product placement, and so on.

For instance, say that virtually all TV viewers start using a hypothetical new technology (just to make up a name for it, let’s call it ViTo) that lets them watch all programs (cable or broadcast) for free, and lets them seamlessly skip commercials. Pro-I/P argument: This will mean much less incentive to create new works, and thus much less new TV programming. Anti-I/P argument: No problem; there’s always some other business model. Shift from advertising and pay TV to, say, product placement (advertising Coke by having Coke cans appear as props in the show, or praise of Coke appear as part of the dialog) — that will provide the revenue needed to make people invest in making more programming.

This argument does have some merit, in rebutting the extremist pro-I/P argument that “If it weren’t for intellectual property, we’d have zero new works being created.” Like most predictions that contain the words “zero,” “always,” or “never,” this is mistaken: Some people will find some ways to make some money from the works even without intellectual property, and others will do it without a profit motive (consider blogs, for example). The extremist argument has always been hyperbole, not reality. But this leaves the moderate pro-I/P argument that “If it weren’t for intellectual property, we’d have much less investment in new works” — and the “there’s always some other business model” argument isn’t really much of a response to that.

1. How effective will the other business model be? To begin with, the other business model might be able to raise a lot less money than the intellectual property model can. I’m not an advertising expert, but my sense is that product placement isn’t effective for all products; and when it is effective, it isn’t as effective as traditional advertising. One piece of evidence for that: While some product placement is going on, most advertisers still prefer traditional advertising. If product placement were that cost-effective, then we’d probably (not certainly, but probably) be seeing a lot more of it.

Right now, there are several possible income streams for television: For instance, advertising, subscriptions, product placement, charitable funding, and on-air fundraising from viewers. If advertising and subscriptions are no longer options, the other streams may provide some revenue. But there’s no reason to think they’ll provide anywhere near as much. The result may be much less investment in production of original TV programs.

2. What will be the side effects of the business model? But even if product placement will provide enough revenue to produce some TV programs, how will those programs be different from the current ones? Upside: They won’t be interrupted by commercials (since those will be pointless). Downside: Their content will have to change considerably — plots will start revolving around products; the decor will be changed to contain more products; production investment will shift to those sorts of shows that offer more product placement opportunities.

And consider a particular kind of show: TV news. Do you really want product placement in TV news? Perhaps there’s a bit of it going on in some situations, though my understanding is that such coverage-for-advertisers deals are still considered unethical in news shows. But if advertising and subscription revenue are no longer options, and product placement is pretty much the whole game, such product placement will become routine; news programs will cover those “news” stories that benefit some company (either a company that’s being positively covered, or a leading competitor of a company that’s being negatively covered) that’s willing to pay them. Hey, it’s a business model. It’s just not one that’s very good for viewers.

(Incidentally, I understand that many TV news programs already lose money for the network, but the network is willing to fund them to preserve its reputation, or because of social or government pressure. But that will become much harder if advertising and subscription revenues dry up, and the programs start losing much more money.)

3. Would we buy this argument for other products? Say that lots of people are shoplifting from a store, to the point that others are starting to think that it’s OK to steal from stores. We could tell the store owner: “Don’t whine to us about that, or demand government intervention to protect your supposed property rights; choose another business model that isn’t harmed by shoplifting! Start carrying only promotional goods with lots of logos, which some advertisers will pay you to carry. Or just rely on the voluntary contributions of paying customers. In any case, come up with something, don’t demand government help in the form of police or courts.”

I don’t think we would, because we’d realize that (1) the other business models may be much less effective, and if stores have to shift to those models, there’d be many fewer products sold, and (2) the other business models may have undesirable side effects, for instance that consumers could only get goods with product placement (promotional slogans), since those are the only goods that stores will be able to carry. Rather, we’d think that the store owner should be protected by the government — by having the legal system enforce property law — from consumer infringement of its property rights.

Now of course one can argue that tangible property is different from intellectual property, for instance because it’s nonrivalrous; I won’t get into that debate now. But the store example shows that the argument that “there’s always some other business model” doesn’t really carry independent weight. Once you conclude that the seller has no legitimate property right in some kind of property (whether television programs or clothing), you can then pooh-pooh its claims by saying “there’s always some other business model.” But what’s doing the work in that argument is your initial rejection of the seller’s property right claim — not your argument about other business models.

UPDATE: Glen Whitman (Agoraphilia) comments.

Here's the decision; thanks to How Appealing for the pointer. The dissent (with which I disagree) captures the facts well:

On June 10, 2004, Justice [Laura] Blackburne was informed that a police officer was present who wished to speak with a defendant who had been referred to a drug treatment program. She was subsequently informed that the officer was there to arrest the defendant. She was not informed what the arrest was for. She directed a court officer to escort the defendant from the courthouse to avoid being arrested in the court. [Note: The court officer was told to just release the defendant, and not to turn him over to the would-be arresting officer's custody outside the court. -EV] She stated on the record that she was not trying to prevent the arrest but was acting because she felt that she had been misled.

The majority, I think, is quite right to conclude that this misconduct was serious enough — I would say even criminal obstruction of justice, since it involved giving a suspect active help in avoiding arrest — to warrant removal from the bench, even based just on this one incident.

The dissent argues that a lesser penalty should be imposed, based partly on the judge's past "outstanding" record. But my sense is that a judge who misbehaves this seriously needs to be removed from the bench (in a state such as New York which allows such removal for the judge's not being "faithful to the law"), and that the majority analysis is therefore quite right. And though there was no specific precedent on point about the propriety of this sanction, "That until now no judge has thought to prevent the lawful arrest of a suspected felon cannot shield petitioner from the necessary consequence of her actions."

A reader writes:

A question for you (and perhaps other profs) arises from what used to be my extensive daily contact with undergraduates. As you know, a high percentage of them these days have their speech laced -- and in some cases saturated -- with "like" and other fillers.

Listening to them, I sometimes get an image of one of them getting through law school, and the first time he presents an oral argument in an appellate court, an annoyed senior judge interrupts to ask him a question such as, "Is your assertion that the sentence was *actually* cruel and unusual, or just that it was, as you said, "*like* cruel and unusual"?" Or perhaps a judge reacts to every "y'know" or "know what I'm sayin'" with "No, I don't know--that's why you're here to explain it." (The fact that I, as a judge, would do such things, and derive sadistic pleasure from it, is one of roughly 12 million reasons that I will never be appointed to the bench.)

You must have students who have really terrible speech habits. What, if anything, do you do about it, as one who demonstrably cares about language? Do law students learn fairly quickly and easily to suppress their verbal tics?

If so, is this because the professors point out the mannerisms, because other students do, or do they just automatically become more aware of it because of the (presumably) increased amount of public speaking and classroom contribution they're required to do? Are there professors who are notorious for needling students about such things, good-naturedly or otherwise? If so, is the needling effective, or just embarrassing?

A very interesting question; I wanted to pass along some of my own thoughts, and ask you to comment on it further.

(1) I've known a few twentysomethings -- including one who was very smart and accomplished -- who have used "like" and "you know" so often that it's jarring to me. But I don't recall any of my students doing it in class. Occasional "like"'s and "you know"'s are not uncommon, just as "um"'s and "er"'s are for others; but they're not to the level of lacing or saturating.

(2) If a student did this, I wouldn't point it out in front of the whole class. I'm not hesitant to gently correct student errors; that's part of the educational process, both for the student and for classmates. If, for instance, a student who's asked how he'd argue that speech is constitutionally unprotected says, "I'd argue that this case is like a fighting words case," and it turns out that the case is a fighting words case, I'll point out that there's no need to suggest a similarity when one can suggest identity -- lawyers who are crafting arguments should learn to craft them as precisely and forcefully as possible.

But if the student had said, "I'd, like, argue that, you know, this case is, like, a fighting words case," I wouldn't correct him the same way. Such habitual use of "like" and "you know" strikes me as more a form of speech impediment than an error -- sufficiently hard to control that an in-class admonition would likely be especially embarrassing to the student (since it's a comment on a bad habit rather than just a specific error), and not terribly productive (since the habit is hard to control).

Nor do I share some people's view that such speech tics are indicative of sloppy thinking, or otherwise a sign of poor character or intellect. I'd treat such tics as similar to someone's having a mild stutter, or a Brooklyn accent (especially if in one's circle such an accent is seen as somewhat embarrassing rather than funny) -- not something to publicly berate.

(3) Nonetheless, the tics are distracting and annoying; and even if they aren't an indication of intellectual weakness, some people will likely see them that way, even if unfairly. Moreover, I suspect that it's possible to try to do something about them (more on this in a moment), and that some people are unaware how frequent their tics are and how annoying they can be. Since I think it's part of the law professor's job to give students professional advice, I might therefore gently mention this to the student outside class, especially if I've gotten to know the student.

(4) As I've suggested, one question that drives the others is whether in fact such tics are controllable. I'd think they'd be very hard to control, precisely because they're unconscious. On the other hand, I do know (though not very well) one person who had such a tic into his twenties, was gently admonished, and some time later no longer had the tic; so unless I'm misunderstanding or misremembering the situation, I think there is something to be done. And, as a practical matter, it's something that's much worth doing, for the reasons I mentioned in item 3. Can anyone speak to that, either pointing to ways in which can people ditch the tics, or to evidence that that's impossible or at least very hard?

The AP reports:

Any Connecticut high school football coach who runs up the score in a game now runs the risk of being suspended. The football committee of the Connecticut Interscholastic Athletic Conference, the state board that governs high school sports, has adopted a "score management" policy to keep teams from winning by more than 50 points.

The rout is considered an unsportsmanlike infraction and, beginning this fall, the head coach of the offending team will be disqualified from coaching the next game, said Tony Mosa, assistant executive director of the Cheshire-based CIAC.

"We were concerned with any coach running up the game. There's no need for it," Mosa said Wednesday. "This is something that we really have been discussing for the last couple of years. There were a number of games that were played where the difference of scores were 60 points or more. It's not focused on any one particular person." ...

Football committee chairman Leroy Williams ... formerly coached high school in the city and remembers well the beatings his teams were handed. He recalls being down by 54 points in one game and having the opposing team line up for an onside kick after scoring.

"Try to explain that to kids," Williams said. "When you get someone down, you don't have to kick them. The key thing to remember is, it's about the quality of the game. It's about teaching kids right from wrong. It's about the game of life and that's how we had to look about it."

The problem, it seems to me, is quite real: It is indeed dispiriting and embarrassing to be so badly beaten. One possible solution (which the story describes, but which wasn't adopted) is to stop the game when the score gap gets too large. Another is to split the league into divisions in each of which the teams would be more closely matched, though that might not work well for a small league. There are other reasonable alternatives as well.

But the solution of requiring the winning team to essentially stop competing effectively strikes me as worse than the problem. As the Laissez Faire Books blog points out,

[I]f the players of a team, after having gotten 50 points ahead in a game, suddenly begin moping about the field, carefully abstaining from scoring a single further point, the players on the losing team are going to know why.

They are going to know, first, that they are playing lousy compared to the other team. They're going to know, second, that the official rules of the game now declare that beyond a certain point they must be deemed to be playing so lousy that their opponents must be officially hobbled lest the members of the lousy team be humiliated further. And it is an elementary law of psychology that the knowledge that you are being officially declared irremediably lousy by the very rules of the game is not going to cheer you up. "We're such lousy losers that we can't even be allowed to play an honest game in the fourth quarter," is what all the players on the losing team will be thinking.

Some of the same persons on the Connecticut Interscholastic Athletic Conference proposing the penalty for too-success coaching have also opposed a "run out the clock" rule (i.e., a rule that would finish the game faster if one team is being pulverized by outlawing any more time-outs). According to the AP, "Mosa [an assistant executive director of the Connecticut Interscholastic Athletic Conference] said committee members believed the clock rule would be unfair to junior varsity players who likely would be on the field during lopsided games." But why is it unfair to impair players under a run-out-the-clock cure for the agony of defeat but not under a cure in which a winning coach will be punished if his players continue to play their best? Whether or not such a clock rule is justified, it would, obviously, at least allow all players on both sides to continue doing their best, under the same rules, and without arbitrarily penalizing coaches....

UPDATE: Some commenters defend the new rule on the theory that a coach who's winning by 50 points ought to send in his second- or third-string players, which will make the contest more even and give his weaker players some game time. That's a sensible approach, and one of the "other reasonable alternatives" I mention. Among other things, it would at least involve each player trying to do his best, though it would now be weaker players doing that.

But that's not what the rule calls for; according to the article, the rule generally prohibits "run[ing] up the score." If team A is losing by 50 points to team B's first string, it's eminently possible that team B's second or third string will still keep scoring touchdown after touchdown against A. (Some commenters in fact reported such experiences from their own lives.) Are B's second string players now supposed to spend their rare game time playing deliberately weakly, for fear that if they play their best they'll be "run[ing] up the score"?

Others suggested that the winning team ought not be allowed to use onside kicks or to throw "forward passes of more than 30 yards." That I just don't buy, for the reasons mentioned above. But even beyond this, if A is losing by 50 points, it's probably not because of onside kicks (though maybe because of forward passes). Ban onside kicks, and the other side will still score a lot -- unless they are indeed required to basically just not try to score.

I much liked this piece on the subject in Slate, by Emily Yoffe.

and can you think of some others that would fit the same mold?

• bugger

• cravat

• frank

• slave

by a majority of the University of Colorado Standing Committee on Research Misconduct. Six members recommended dismissal, two recommended suspension without pay for five years, and one recommended suspension without pay for two years. The committee also had this to say about the "[t]iming and [m]otivation of the [a]llegations" (paragraph break added):

In his response to the Investigative Committee’s report, and in other communications with the SCRM, Professor Churchill has maintained that this investigation has been motivated by a desire to censure him for his controversial expressions of political positions. He has noted, accurately, that the allegations sent to the SCRM were the result of a review of his scholarly work by an administrative committee appointed by the Chancellor, and that this review occurred in response to a public outcry following public awareness of his so-called “9/11 essay.”

Our position -- which we believe is consistent with that of the Investigative Committee -- is that while this context is important, it should not distract us from the critical points that (1) complaints of research misconduct were lodged; (2) these complaints required a response by the SCRM; (3) the investigation process proceeded as specified by University policies and procedures, and (4) the resulting findings and recommendations for sanctions were based solely on a review of the facts as determined by a panel of Professor Churchill’s peers.

While acknowledging the larger context in which their work was done, both the Investigative Committee and the SCRM have been scrupulous about limiting their analyses to the facts as uncovered by the Investigative Committee. As such, we believe we have complied with Article 5D of the Regents Laws, which stipulates that disciplinary recommendations should not be “influenced by such extrinsic considerations as political, social, or religious views, or views concerning departmental or university operation or administration.” Considerations of academic freedom and what Professor Churchill alleges to be “punishment for constitutionally protected speech” have not entered into our deliberations, except to the extent that we state our strong support for the former and our rejection of the latter.

Sounds quite right to me.

Thanks to Pirate Ballerina for the pointer.

The S.F. Chronicle reports on the judge's decision striking down the San Francisco law that (1) banned possession of handguns by residents (with a few narrow exceptions, such as for police officers and security guards), and (2) banned the sale or transfer of all guns or ammunition. Here's one item from the story:

"We're disappointed that the court has denied the right of voters to enact a reasonable, narrowly tailored restriction on the possession of handguns," [Matt] Dorsey[, spokesman for the City Attorney's office,] said.

I'm not sure that "narrowly tailored" means that much here (except in the rather trivial sense that the law is narrowly tailored to its goal of completing banning San Francisco residents from possessing handguns in the city, and making long guns harder go get). But in any event it's something to remember when people say they're just supporting "reasonable" gun controls.

And here's the reaction of one of the backers of the law:

Supervisor Chris Daly, a chief sponsor of Prop. H, urged Herrera to appeal and criticized [Judge] Warren. The judge "sided with the powerful gun lobby against the safety of San Franciscans" after showing "disregard for the voters of San Francisco" by taking nearly three months to rule, Daly said.

What exactly is the relevance of the power of the "gun lobby"? I had thought that judges were obligated to "side" with whatever side has the stronger legal argument, even if, God forbid, they're the "gun lobby" or the "civil rights lobby" or the "pro-choice lobby" (funny how somehow we only hear the first term and not the other two).

Also, is it really that bad for a judge who's writing a 30-page opinion, and presumably handling other litigation at the same time -- I don't believe that in the California court system challenges to ballot measures are fast-tracked, but I could be wrong -- to take three months to rule on a matter? Perhaps I'm too influenced by how slowly our legal system normally moves, but three months just doesn't seem like that much of a delay.

Jacob Weisberg, Slate's editor writes (emphasis added):

Any political party counts on having a few hot buttons it can push at those moments when it is a few points behind in the polls with not much time left till Election Day. These issues have certain characteristics -- a whiff of pandering, the flavor of insincerity, an aura of desperation. They aim to stir passion but have little, if any, effect on most people's lives.... Raising the minimum wage sometimes serves the same purpose for Democrats.

This week, George W. Bush smashed his party's biggest "Break glass in case of fire" box, when he called on the Senate to pass a constitutional amendment defining marriage as the union of a man and a woman....

Weisberg goes on to argue why the issue is unlikely to work for Republicans, and he might be correct on that. (I should note yet again that I generally support same-sex marriage, and have signed letters opposing the proposed Federal Marriage Amendment.) But later on he writes (emphasis added):

A second reason the issue won't work again is that Democrats have by now figured out how to handle the issue.... Democrats have honed their talking points on the subject: Marriage should be an issue for states (the federalist position usually espoused by Republicans); the amendment is discriminatory and would also ban civil unions, which most people favor (this is an unsettled question); and why tinker unnecessarily with the Constitution, especially while the Defense of Marriage Act is in force? This sort of framing works pretty well in most of the country. In conservative Southern states where they face a steeper climb, Democrats are even more pragmatic. For example, Harold Ford Jr., a black congressman who is seeking Bill Frist's Senate seat in Tennessee, has simply taken gay marriage off the table by supporting the constitutional amendment.

A bit of dissonance, it seems to me, between the characterization of the Republicans and the Democrats here. Yes, the Republicans are taking the lead -- but it's hard for me to see how the leaders are "pandering" or "desparat[e]" (or even have a "whiff" or "aura" of it), and the willing followers who are also trying to score political points by their position (as politicians are expected to do) are simply "pragmatic."

A New York Times article discusses this, citing several serious and thoughtful scholars on the subject.

Here's the opinion, which concludes that the ban on S.F. residents' possessing handguns — and on sales and other transfers of all guns and ammunition within the city — is preempted by state law (thanks to Matt Rustler at Stop The Bleating for uploading the file).

I'm not sure I'd endorse all the details of the court's reasoning, and I'm not an expert on the ins and outs of California state/local preemption law. But I did want to make a few observations:

1. California Penal Code § 12026(b) quite explicitly says:

   No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.

   This pretty clearly bars any California government entity (including cities and counties) from requiring licenses to buy or possess handguns. And it seems to me that if California government entities may not demand licenses or permits for an activity, they may not forbid it outright, either.

2. This is yet another reminder to be skeptical of claims that "no one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed." San Francisco voters categorically banned possession of handguns by city residents (except police officers, security guards, and the like), and categorically banned sales of all firearms. While San Franciscans would remain free to buy rifles or shotguns in neighboring cities, presumably those who advocate for such gun sales bans would endorse the broadening of the bans — if gun sales bans are indeed good for San Francisco, I take it that they would be good for Berkeley, Oakland, San Mateo, and Marin, too.

3. Finally, the ordinance is another reminder of how gun controls routinely favor those who can hire others to guard them, yet restrict those who want to guard themselves or their family members. "[S]ecurity guards, regularly employed and compensated by a person engaged in any lawful business, while actually employed and engaged in protecting and preserving property or life within the scope of his or her employment, may also possess handguns." The celebrity, big businessman, or relatively prosperous store owner may defend himself by hiring a guard. The woman who wants to protect herself against rapists, the parent who wants to protect his family against home invaders, or the small businessman who wants to be his own security guard — because he can't afford to hire someone else — is out of luck. (Nor can one justify this on the theory that security guards are trained professional; they're in fact generally not terribly well trained, and in any event a person who wants to defend himself, his family, and his business is not allowed to have a handgun to do so no matter how much training he gets.)

In any case, I'm glad the ordinance was struck down, and I hope the decision will be affirmed on appeal. Congratulations to my acquaintance Chuck Michel for winning this one.

UPDATE: I originally erroneously paraphrased § 12026 as "bar[ring] any California government entity ... from requiring licenses to buy or possess guns" (rather than "handguns"); thanks to commenter Christopher Cooke for correcting me.

31 years ago, our parents left the then-USSR, with then 7-year-old me and 2-year-old Sasha in tow. A very big day in our lives.

Captain Copyright, a Canadian "education" site about copyright — aimed at conveying a pro-copyright message to children, and at being used by schoolteachers for that purpose — has the following "Legal Notice":

Links from Other Web Sites ...

Permission is expressly granted to any person who wishes to place a link in his or her own web site to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any web site the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of, Access Copyright. In the event we contact you and request the link be removed, you agree to comply with that request promptly. If you link to or otherwise include www.accesscopyright.ca on your website, please let us know and create any link to our home page only.

Under U.S. law, no-one needs permission to link to another site; your bitterest enemy is free to link to your site even if you insist that the link be removed. Nor is simply placing a paragraph on the Web page saying that "you agree to comply with that request promptly" sufficient to impose any contractual obligation on you. (Even the shrinkwrap licensing cases don't go that far.) I'm not an expert on Canadian copyright law, but Prof. Michael Geist, who is an expert on the subject (and whose column alerted me to the issue) describes Canadian law the same way.

In any case, I'm sending the following message to the address posted on the site (privacy at accesscopyright.ca):

Dear Madam or Sir:

I wanted to inform you that I've linked to your site at http://volokh.com/archives/archive_2006_06_11-2006_06_17.shtml#1150217780, a post on a Weblog that gets about 15,000 unique visitors per day. The link is quite critical, and I hope that it will (justifiably) harm your reputation: I point out that your "Links from Other Web Sites" policy is legally unenforceable, implicitly misstates the law in ways that may mislead lay readers (including children and schoolteachers who are visiting your site), and therefore casts doubt on the credibility of the "educational" material you post on your site.

Should you request or demand that I remove the link, I will categorically refuse, as I am entirely within my rights to do. Copyright law does not restrict my linking to your site, and because I never expressed agreement to the offered terms on your site, I am not contractually bound by your assertions of your supposed rights, either. I have absolutely no intention of complying with your requests. Rather, I intend to continue to link to your site in ways that injure your reputation.

Eugene Volokh
Professor of Law
UCLA School of Law
(affiliation listed for identification purposes only; I speak for myself, not for my institution)
Proprietor, The Volokh Conspiracy, http://volokh.com

UPDATE: Commenter Michael Barclay reports that the site has very recently (since I visited it and copied the material quoted above) changed its policy slightly to say:

Permission is expressly granted to any person who wishes to place a link in his or her own website to www.accesscopyright.ca or any of its pages with the following exception: permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright. Specifically, permission to link is explicitly withheld from sites featuring pornographic, racist or homophobic content. If you link to or otherwise include www.captaincopyright.ca on your website, please let us know.

The court has just removed from the ballot an initiative that would bar Colorado governments from providing non-emergency services to illegal aliens. The court's argument was that the initiative violated the state constitutional rule that initiatives may not embrace more than one subject.

Here, though, is the initiative text:

(1) Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.

(2) Any person lawfully residing in the state of Colorado shall have standing to sue the state of Colorado, or any county, city, or other political subdivision of the state of Colorado, to enforce this section.

(a) Courts of record of the state of Colorado shall have jurisdiction to hear cases brought to enforce this section.

(b) The general assembly may provide reasonable and appropriate limits on the time and manner of suits brought under this section.

(3) The general assembly shall have the authority to implement this section by definitions and other appropriate legislation.

No multiple subjects here, it seems to me; sections (2) and (3) are basically procedural, as the court agreed, and section (1) focuses on one basic principle: No provision of nonemergency services to illegal aliens.

The majority's opinion strikes me as quite odd:

We identify at least two unrelated purposes grouped under the broad theme of restricting nonemergency government services: decreasing taxpayer expenditures on behalf of the welfare of the targeted group and denying access to administrative services.

First, the Initiative could restrict delivery of medical and social services to persons lawfully present in Colorado. Medical and social services are funded by the taxpayers. Consequently, restricting delivery of taxpayer-funded medical and social services will decrease taxpayer burdens....

Second, the initiative could restrict access to certain administrative services. As noted above, administrative services include a variety of recording services facilitating economic transactions between individuals, such as recording the transfer of real property....

We conclude that these two purposes –decreasing taxpayer expenditures and denying access to certain administrative services –are incongruous. The theme of restricting non-emergency government services is too broad and general to make these purposes part of the same subject. The prohibition against multiple subjects serves to defeat voter surprise by prohibiting proponents from hiding effects in the body of an initiative. It also discourages placing voters in the position of voting for some matter they do not support to enact that which they do support. Initiative #55 presents the possibility of both prohibited practices.

First, this Initiative’s omnibus proportions are hidden from the voter. In failing to describe non-emergency services by defining, categorizing, or identifying subjects or purposes, the Initiative fails to inform voters of the services its passage would affect. Because "emergency services" are commonly defined, as Defend Colorado Now does, as including police and fire protection and emergency room medical services, a voter might well assume that the converse of "emergency" would pertain to the single subject of non-emergency medical or social services. In the absence of a definition for "services" or a description of the purposes effected by restricting non-emergency services, the unrelated purpose of restricting access to administrative services is hidden from the voter.

Second, there no doubt exists a diversity of approaches and attitudes regarding the presence of the individuals targeted under this Initiative. Some voters may indeed wish to both reduce taxpayer expenditures for medical and social services and inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict recording services while only wishing to reduce taxpayer expenditures for medical and social services. The common means of restricting non-emergency services insufficiently connects the subjects of reducing taxpayer expenditures and prohibiting the targeted group from participating in administrative services. Thus, the purpose of reducing taxpayer expenditures by eliminating expenditures on behalf of individual welfare for the targeted group is not dependent on and clearly related to the purpose of restricting access to administrative services....

This strikes me as quite misguided. All constitutional provisions -- the freedom of speech, equal rights for women, a restriction on unreasonable searches and seizures, and the like -- have multiple effects, and serve multiple purposes. The single-subject rule may itself be unnecessary and unadministrable, as my colleague Dan Lowenstein has in the past argued; but to the extent that it's the law, it surely shouldn't be used to set aside proposals that are as coherent (whether or not sound) as the one proposed by Article 55, just because they have multiple effects and multiple purposes.

The dissent, I think, has it quite right (some paragraph breaks added, citations and footnotes omitted):

Although the majority opinion today pays homage to the requirement’s dual concerns for secreting unrelated provisions and combining provisions too unpopular to succeed on their own, it understands the term "subject" to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will. Because I believe the single-subject requirement was adopted to protect voters from deception and fraud rather than to limit their right to make public policy directly by constitutional amendment, I respectfully dissent.

Unlike lengthy, detailed, or convoluted regulatory measures, easily capable of hiding disparate subjects or combining them solely to increase voting power, the substantive provision of Initiative #55 contains a single mandate, clearly expressed in a single, concise sentence. Consistent with federal law, government is required to restrict non-emergency services to those whose presence in this country is lawful. The majority, however, is able to characterize even this straightforward provision as containing multiple subjects, by parsing the motivation or objective of the proponents and treating each of its component parts as a separate "subject"; and by measuring the homogeneity of those subjects according to the potential impacts or effects of the amendment if the initiative succeeds.

First and foremost, the majority unselfconsciously equates the constitutional requirement that each initiative be limited to a single subject with a requirement that each initiative be motivated by a single objective or purpose in the minds of its proponents. By finding (through examination of the Defend Colorado Now website) that the proponents consider it fundamentally unfair for illegal residency in this country to be facilitated by access to taxpayer-provided services and, moreover, that the services to be denied persons here illegally include not only non-emergency police, fire, and medical services but non-emergency administrative services as well, the majority concludes that the proposed measure contains at least two distinct subjects. Apparently inferring that the purpose for restricting police, fire, and medical services must be solely to save money while restricting other kinds of services must be motivated solely by some other, unrelated purpose, it characterizes these two purposes, or "subjects," as "decreasing taxpayer expenditures" and "denying access to certain administrative services."

Of course, the majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it’s clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority’s logic, each such "purpose," apparently constitutes a "subject" of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate.

In addition, the majority suggests (without making clear precisely how) that a potential for multiple, unspecified impacts or effects also runs afoul of the single-subject requirement, perhaps because unspecified effects themselves amount to hidden subjects, or perhaps because having a potential for multiple effects must demonstrate that any unifying theme will be too broad. But surely any provision expressed with sufficient generality to be appropriate for inclusion in a constitution will necessarily have a potential for, and be intended to have, multiple effects. Such a construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process. Nothing in the language or history of the single-subject requirement for popular initiatives or, for that matter, the identical limitation on statutes enacted by the general assembly, remotely suggests that in addition to being limited to a single subject, a proposal can also have but one, identifiable impact or effect; and any such requirement, if applied uniformly, would preclude all but the most trivial popularly-initiated proposals.

The right of the initiative appears to have been reserved to the voters, by our constitution, precisely for the purpose of providing them with a means of overriding the policy choices of their elected representatives (as well as the constitutional interpretations of the judiciary) and a means of prescribing measures they expect will more effectively accomplish their goals.

There can be little doubt that certain formalities will always be indispensable to ensure that the will of the voters is actually expressed in their vote; and regardless of the wishes of the electorate at any point in time, the law of this jurisdiction will necessarily remain subject to the supremacy of the federal constitution. I do not believe, however, that the single-subject requirement can fairly be construed to assign to this court the role of screening from the voters any measure the full impact of which it considers them unable to appreciate; nor do I believe it is possible for judicial officers, however conscientious, to apply a standard as amorphous as the majority obviously considers the single-subject requirement to be, without conforming it to their own policy preferences.

Whatever one may think of the merits of Initiative #55, when evaluated in terms of the historically and purposefully limited scope of the single-subject requirement, it clearly treats of a single subject and therefore cannot be kept from the voters on that basis alone. I therefore respectfully dissent....

A Norwegian paper reports:

"This is simply exceptional. I cannot imagine that we have had such a powerful meteorite impact in Norway in modern times. If the meteorite was as large as it seems to have been, we can compare it to the Hiroshima bomb. Of course the meteorite is not radioactive, but in explosive force we may be able to compare it to the (atomic) bomb," [astronomer Knut Jørgen] Røed Ødegaard said.

Fortunately, the meteorite landed in an out-of-the-way place (northern Norway), but it sounds like it would have been very bad if it had landed in a more populated area, or perhaps even in the ocean. This raises, I think, the old issue of how much we should fund asteroid defense, though I suspect that meteorite defense is much harder than asteroid defense. (I should note some uncertainty about what "we can compare it to the Hiroshima bomb" exactly means; it would be great if knowledgeable people can speak to that in the comments.)

Thanks to the excellent GeekPress for the pointer.

UPDATE: Commenter Jim Hu writes:

Follow up: http://www.aftenposten.no/english/local/article1348689.ece

Truls Lynne Hansen of the Northern Lights Observatory (Nordlysobservatoriet) in Tromsø disputes Røed Ødegaard's description, calling it an exaggeration.

"Our atmosphere is peppered with small stones from outer space all the time," Hansen told newspaper Aftenposten. "Most burn up and disappear, but some land here."

He thinks that what hit northern Norway last week was a stone weighing around 12 kilos (about 26 pounds).

Ødegaard estimated more than the previous record of 90 kilos. There's a photo of the impact site at the link. It's hard to tell the scale, but it doesn't look Hiroshima-like.

A very unfortunate story; the judge is in family court, incidentally, and I've heard it said that family court is the place in the court system where violence (usually by disgruntled litigants) is most likely. My best wishes to the judge, who seems very seriously wounded but still alive, and to his family.

This event is obviously a tragedy to those involved, but attempted murders of judges, even more than attempted murders of ordinary citizens, are especially troubling because they threaten our justice system as well as individual victims; I thus thought this incident was particularly noteworthy. Thanks to How Appealing for the pointer.

UPDATE: The judge's administrative assistant was apparently also hit, though her injuries seem to have been less serious.

The dissent from denial of rehearing en banc in United States v. Scott, a Ninth Circuit case involving the Fourth Amendment rights of pretrial detainees, says this in footnote 5:

It is also worth noting that the majority’s opinion has been criticized regarding its negative repercussions for criminal defendants and the defense bar in general. Judge Bybee observes in his dissent that [details omitted -EV] .... Judge Bybee’s foresight has been echoed by the defense bar, noting that even though the majority is attempting to protect 'the ideal espoused in our legal system that a citizen is innocent until proven guilty, ... it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial.' http://www.blogdenovo.org/archives/001073.html (last accessed June 1, 2006). Even the Harvard Law Review has criticized the majority’s reasoning: [details omitted -EV] ... 119 HARV. L. REV. 1630, 1630-31 (Mar. 2006) (footnotes omitted). The law review also states: [details omitted -EV].

Let me begin by congratulations Sean Sirrine, who wrote the De Novo post to which the opinion linked. But let me also point out one complexity in linking to blog posts: It's often not completely clear what the author does for a living (unlike with law review articles, where the author's note is usually quite explicit on that).

Sirrine, it turns out, wrote that post a few weeks into his first year of law school; that surely isn't reason to ignore the post, and Sirrine is one of those law students who has thought a lot about law before going to school. Still, it seems to be a mistake to call him a member of "the defense bar."

And this mistake also shows the need for a bit of extra care when describing the authors of blog posts, op-eds, and other publications that don't make the author's affiliation clear. Many blogs, like this one, do clearly indicate their authors' affiliations, but De Novo and Sirrine's other blog, Objective Justice, don't seem to.

Careful readers might also have noticed that the footnote in the dissent oddly refers to a criticism expressed by "the Harvard Law Review"; yet of course the Review as an institution almost never expresses its institutional opinion in its page (as, say, the New York Times may), but rather presents the opinions of others. (The Review does make a judgment about the quality of the works it publishes, but that doesn't mean an endorsement of the criticisms that the works make.)

The cited item, as one might gather from the lack of author and title, is a Recent Case mini-article written by an anonymous law student -- a source that's perfectly legitimate to cite (as is a blog), but one that probably should be characterized as "an article in the Harvard Law Review criticizes" or "a casenote in the Harvard Law Review criticize" rather than just as "the Harvard Law Review criticizes." On the other hand, lawyers who are reading the dissent will almost certainly realize that "the Harvard Law Review criticizes" must mean "an item in the Harvard Law criticizes," and will thus not be misled by the characterization.

Name the last two Supreme Court Justices who were born in the South, which we'll define for our purposes as covering those states that seceded from the Union. If you want to claim credit in the comments for getting the right answer, please work only from memory (though you should verify the answer through some authoritative source), rather than just going sequentially through the recent Justices, or guessing until you find the right answer.