The Seattle Post-Intelligencer reports:

Six women were shot -- one fatally -- this afternoon at the Jewish Federation of Greater Seattle by a man who told a witness he was upset about "what was going on in Israel." ...

"We believe it's a lone individual acting out his antagonism," said David Gomez, who heads the FBI's counterterrorism efforts in Seattle....

"He said 'I am a Muslim American, angry at Israel,' before opening fire on everyone," [Marla] Meislin-Dietrich[, who works at the center,] said. "He was randomly shooting at everyone." ...

Pajamas Media has a round-up; thanks to InstaPundit for the pointer.

The law should, I think, treat such crimes with the same severity as it would a similar crime motivated just by a desire to kill random people. While I think many laws that enhance penalties for crimes in which victims are chosen based on race, religion, sexual orientation, and the like are constitutional, I think they are unwise and draw a moral distinction that strikes me as on balance inadequate (not irrational by any means, but on balance inadequate). Nonetheless it certainly makes sense that we would notice these crimes for what they are -- manifestations of ethnic hatred that needs to be recognized in order to be fought.

The AP reports:

A federal appeals court on Friday barred the Justice Department from reviewing evidence seized from a Louisiana congressman's office during an unprecedented FBI raid on his Capitol Hill office in May.

A three-judge panel ordered a federal trial judge to ensure that Democratic Rep. William Jefferson be given copies of seized evidence ... [so that Jefferson has the chance] to invoke legislative privilege claims in private with the trial judge.

Thanks to Ron Coleman (Dean's World) for the pointer. Unfortunately, I couldn't find the opinion on the D.C. Circuit site, findlaw, WESTLAW, or LEXIS, so don't have anything more to say about it yet.

A reminder about something I'd posted about earlier:

The Yale Law Journal seeks to publish two Articles engaged in a dialogue on a single compelling legal topic. Selected Articles will be published in the same issue in the spring of 2007.

We encourage scholars to submit pieces in development rather than completed pieces ready for submission and publication so that the pieces that will evolve in response to each other. Interested authors should seek out a colleague in their field with a differing viewpoint who will join them in this project.

There is no subject matter limitation for submissions, but the topic should be both contentious and suitable to thorough and engaging discussion.

Each submission should include a partially developed paper of at least 5000 words and the author’s curriculum vitae. The interlocutor should include a prospectus of at least 1200 words, as well as a curriculum vitae. Please send proposals via e-mail in MS Word format to the Features & Symposium Committee at [email protected]. The subject line should read: Debate Proposal: [Title]. All submissions must be received by August 1, 2006, and the Journal will respond by August 15.

If you would like more information, please do not hesitate to email us at [email protected] or visit our website at http://www.yalelawjournal.org/documents/CallforDebate.pdf.

Sincerely,
Brian Wong
Symposium Editor, Yale Law Journal

A professor asked me: Have any professors used Academic Legal Writing, or similar books (such as Fajans & Falk's Scholarly Legal Writing) as classroom teaching material for their seminars; and, if so, can they share their syllabuses or teaching tips? I didn't know the answer -- I know some assign it as reading for their students, but I don't know whether they actually teach from it -- so I thought I'd ask here. If you teach such a class, were a student in such a class, or have heard of such a class, please let me know.

The UCLA Law Library and I have put together http://www.lawtopic.org, a Web-based clearinghouse for student article ideas. The theory is that law professors, lawyers, law clerks, and judges would submit such ideas to this site, and students would pick up those ideas.

Why would someone want to submit? A few thoughts:

1. Law professors often run across article ideas that they don't want to write about themselves. (The topics may be ambitious enough for a student but not for the professor, or the professor may be tired of writing in this field, or the topic may be outside the professor's field.) They might contribute the idea to students just because they want to help. What's more, all I ask is a few paragraphs, which is to say five minutes of the professor's time.

2. Law professors want to increase the impact of the articles we write. One way to do this is to have others write articles that build on the professor's work. Many of our articles set forth proposals that can apply to problems beyond the one that they specifically address. Many others identify collateral problems that are related to the issue that we’re discussing. Our work often raises more questions than it answers; it's good if others answer those questions, and cite us in the process.

3. Lawyers -- whether in private practice, in government service, or at public interest organizations -- often run across issues that (a) are of recurring importance to them and their clients, (b) are unresolved by the current case law, (c) are meaty enough to justify a student article, and (d) haven’t been sufficiently discussed in the treatises or the law reviews. The lawyers are unlikely to take the time to themselves write the scholarly article; why not suggest it to students?

4. The same goes for judges and law clerks; if they see an issue that's of recurring importance, they can help both the legal system generally and the judiciary in particular by stimulating good scholarship on the subject. And if you want to keep the suggestion anonymous, we let you do that.

So if you're a professor, lawyer, judge, or law clerk, just go to this page, click on "Submit," and fill out the form we give you. More detail is obviously better, but beggars can't be choosers. We’ll also let you indicate whether you (1) are willing to discuss the topic with students who want to write about it, (2) don’t want to be bothered but are still willing to see your name given as the source of the idea, or (3) would rather submit the topic anonymously. You'll be helping students, you'll be helping the legal profession more broadly, and you may also be helping yourself.

A few details:

1. We'd like to get submissions from legal professionals, or (in rare circumstances) nonlawyers who still know the literature quite well (e.g., scholars in allied fields). It's not enough that the topic be important; it also has to be relatively uncovered by the existing scholarship, and manageable for a law student, two things that nonlawyers tend not to be able to evaluate well.

2. Students who get a topic from the database do run the risk that other students might be writing on the same topic that they choose. But that's a risk with any topic; a single other student note on the subject (or even two or three) is unlikely to preempt your own note, since students tend to have very different views; the chances that a student will have selected this particular topic aren't that high; and the risk isn't something we can do much about, since we can't just let student authors withdraw, on their own say-so, the idea that they've chosen to work on.

3. I tried promoting this site about four years ago, and got several dozen serious submissions; but unfortunately I didn't promote the site as well as I should have, so it wasn't heavily used. I've therefore archived those submissions and removed them from the database, since there's a substantial risk that many are now obsolete. I'm hoping that this pass will produce more submissions, and more use by students.

4. If you think this is a good idea, please promote it on your blog, especially if it's read by law professors, lawyers, judges, law clerks, or law students. You'll be doing your readers, and others, a service.

Every year, a few of our top students are foreign citizens. Can they apply for federal judicial clerkships?

The answer it turns out, is generally yes, if they're from countries that have a qualifying defense treaty (or some other qualifying treaty) with the U.S.: "Argentina, Australia, Bahamas, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, Cuba (as a signatory of the Rio Treaty in 1947), Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, France, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Italy, Japan, Korea (Republic of), Latvia, Lithuania, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Thailand, Trinidad and Tobago, Turkey, United Kingdom, Uruguay, and Venezuela." They may need to upgrade their education visa (if that's what they have) to a temporary work visa, but apparently that's not that hard to do, and happens often enough. (I'm speaking here only of federal clerkships; I don't know if some states imposed different rules for their judiciaries.)

Naturally, some judges may prefer to hire U.S. citizens rather than noncitizens, and especially than noncitizens for whom some immigration law hoops would have to be jumped through — to my knowledge they are not restrained from implementing such a preference — but I suspect that many judges don't care much about that. So if you're one of those darned furriners a citizen of one of our fine friends and allies except for Canada, damn it, don't feel reluctant to apply.

UPDATE: Peter Spiro (Opinio Juris) asks a broader policy question about this.

Here's Yesterday's Bushism at Slate:

"And the question is, are we going to be facile enough to change with—will we be nimble enough; will we be able to deal with the circumstances on the ground? And the answer is, yes, we will."—Washington, D.C., July 25, 2006

To Slate's credit, they point to the video of Bush's comments (referring to the material starting at 17:44). I followed the video and noticed that the transcript was incorrect; here's what I wrote to Slate (apologies for the typo in the parenthetical):

Today's column says, [quote omitted] .... Fortunately, it includes a link to the video.

I followed that link, and it turns out the transcription is mistaken. President Bush says:

"And the question is, are we going to be facile enough to change with the c—will we be nimble enough; will we be able to deal with the circumstances on the ground? And the answer is, yes, we will."—Washington, D.C., July 25, 2006.

I understand that you folks might still want to fault Bush for having cut off the word "conditions" (assuming this wasn't just a technical glitch (note that the audio might have some skips, see 18:10-18:16). But at least the transcript ought to be corrected, I think.

To my surprise, here's the message I got back from Slate:

Geoff (Jacob's Bushism researcher) followed up on this, and here's what he has to say.

Bush makes an audible, vague "c" sound in the video, very briefly. But he often makes a lot of sounds that don't end up in the White House transcript. Plenty of "uhs" and "ums" and sometimes real starts and stops to words or thoughts. And part of what the White House does to indicate that he's changing gear abruptly is they use those em dashes between disjointed points. We print their version faithfully and I think we have to. I'm glad we run video so that people can see how these things are actually delivered.

Bush's comment was widely quoted in the form in which it appeared in the White House release. I don't think Volokh would find it fair if we got into the business of "correcting" the White House transcript in this way.

This struck me as pretty remarkable: The video conclusively proves the transcript to be mistaken; whatever one may say about the "c" (and it seems to me clearly audible enough to be included), the transcript clearly omits the word "the." Yet Slate insists on continuing to cite the transcript, which is what I suspect 95+% of its readers will rely on) even though it's wrong.

I don't see how that could be proper. Even if Slate feels uncomfortable departing from the White House transcript — odd, given that it's quite entitled to transcribe the video itself — surely there'd be nothing wrong with noting that the transcript was mistaken. And it seems to me quite wrong to continue to use a transcript that one now knows to be in error.

Naturally, one could conclude that even the corrected version somehow shows a risible error on President Bush's part (assuming there's no video skip); I've never found such slips in extemporaneous speech to be particularly telling, but others may disagree. Still, I'd think a basic rule of journalism would be: When you give a transcript, give an accurate transcript, and if you learn that it's wrong (by comparing it with an actual live recording), correct it, even if you think that the error in the transcript is immaterial. That apparently is not Slate's view, though.

A commenter on an earlier thread faults me for citing Prof. Browne's work as a counterpoint to Prof. Barres':

ev loses significant credibility with me when he attempts to "balance" an article about a scientific subject, written by an expert in the field and published in nature, with an article by a law professor with no scientific expertise in a (presumably student-edited) law review. granted, the nature article was not peer-reviewed either, but the author at least had the credentials and experience to know what he was talking about.

This highlights, I think, an important and oft-forgotten point: While laypeople understandably care about experts' credentials — we lack the talent, time, or both to evaluate the underlying data ourselves — it helps to scrutinize credentials with some care, especially since scholars often cross disciplinary boundaries.

Prof. Browne, for instance, is a law professor who has been trained as a lawyer; but his legal interests have led him to the interdisciplinary field of law and evolutionary biology. Besides law review articles, he has also written two books published by university presses, Divided Labours: An Evolutionary View of Women at Work, in Yale University Press's Darwinism Today series, and Biology at Work: Rethinking Sexual Equality, in Rutgers University Press's Series in Human Evolution. I haven't read the books — I've only looked at Prof. Browne's shorter work — but my sense is that writing such books (1) is not at all outside the competence of an intelligent law professor with a job that permits him to do interdisciplinary work, and (2) will give even someone who doesn't have a Ph.D. in psychology or biology, and who doesn't have an appointment in the psychology or biology department, a pretty broad and deep knowledge of the experimental literature. I'd take quite seriously what Judge Posner has to say about economics, though he's trained as a lawyer rather than an economist; I'm sure many economists disagree with much of what he says, but his opinions are nonetheless worth considering despite his academic background. Likewise with Prof. Browne.

Prof. Barres is indeed trained as a neurobiologist, and is a Professor of Neurobiology. He has written extensively on neuorobiology, and neurobiologists are likely to find work on genetics and cognitive psychology to be quite accessible. On the other hand, Prof. Barres' list of publications does not seem to include any scholarly work on gender differences, unless I've missed some, and setting aside any pieces too recent to include (such as his Nature essay).

It is possible that Prof. Barres has read as deeply and broadly as Prof. Browne on the subject, or even more deeply and broadly. It is possible that he has read less. Whether or not Prof. Barres has studied this field more than Prof. Browne has, Prof. Browne's books on the subject suggest that Prof. Browne has read enough to be taken seriously. In any event, I would not casually dismiss either Prof. Barres' opinion or Prof. Browne's, regardless of the departments in which they teach, the degrees that they have, or the nature of the journal in which they published their shorter work.

NewsBusters reports (for links, go to the NewsBusters site):

Former CNN and MSNBC commentator Bill Press has denounced bloggers as people "with no credentials, no sources, no rules, no editors and no accountability."

On his official site, BillPressShow.com, Bill Press ... reported [last week] on the "Lovenstein Institute of Scranton, Pennsylvania" and their IQ study that the last six Republican presidents have had an average IQ of 115.5, while the last six Democrats had an average IQ of 156. Press proudly noted that it was with "President Clinton leading the class at 182."

As for George W. Bush:

You guessed it again: George W. Bush, with his rock bottom IQ of 91: seven points lower than his Daddy.

So now we know. Iraq, Iran, North Korea, Social Security, Medicare, Stem Cells, FEMA, the deficit, immigration...

The reason George Bush has screwed up in so many areas the last six years.

He’s not just incompetent. He’s just plain dumb – the dumbest president in the last 50 years.

The only problem with this stunning "new development" is that it is a joke, a five-year-old one. According to Snopes.com [details omitted -EV].... [The item has been removed from the site, but i]t can still be accessed with Google Cache....

Snopes, incidentally, reports that "As obvious as this joke was, at least two publications were taken in by it: The [London] Guardian and the New Zealand Southland Times. Both ran the "Presidential I.Q." tale as a factual item (on 19 July and 7 August 2001 respectively). The Associated Press publicized The Guardian's error on 12 August, moving The Guardian to post a retraction on 14 August, and U.S. News & World Report clearly reported the I.Q. item as a hoax on 20 August, 2001." Several news reports also state that Doonesbury had fallen for the same hoax.

UPDATE: By the way, here's an OpinionJournal Best of the Web item on this from the 2001 hoax season.

Some commenters to my earlier post reason:

It [presumably discussion of possible innate gender differences in cognition] shouldn't be suppressed for political reasons. I think that a scientific issue, though, shouldn't be taught if there's not good scientific evidence for it. And I haven't seen good scientific evidence for this theory

I think the words "without proof" are implied from the second paragraph.

I.E. "when faculty tell their students that they are innately inferior, without proof, based on race, religion, gender or sexual orientation, they are crossing a line that should not be crossed"

I can see that as being fair.

Yet not every step in the scientific process can (or should) contain "proof" in any strong sense of the word. Scientific debates often present conjectures based on ambiguous evidence. The conjectures lead to responses, often equally conjectural. Evidence on one side or the other grows or shrinks. We often get something approaching "proof" only after decades of unproven conjectures have led to more evidence-gathering and more discussion.

This is especially so in areas (including biology and social science) where the evidence tends to be suggestive, not dispositive, and confounding factors are always potentially present. Even in math, though, where "proof" is indeed the touchstone, unproven conjectures are often made. If you couldn't say anything without "proof," whether logical proof, proof beyond a reasonable doubt, or even proof by a preponderance of the evidence as determined by some campus committee, scientific debate would be much curtailed.

I agree with Frank that professors who are teaching classes shouldn't teach as true statements that haven't been adequately proven. But Summers wasn't teaching a class, nor did he assert his claims as having been proven true. If professors can't express such conjectures — yet presumably their rivals would be quite free to present contrary conjectures, unless we're to completely eliminate public conjecture in science — then what sort of debate would we have?

Now perhaps conjectures that are entirely unbacked by any evidence, or backed by asserted evidence or reasoning that has been conclusively disproven through decades of open debate, are sufficiently implausible that we'd fault people who make them. But there is indeed a hot debate on the subject, involving some pretty serious people on both sides. There is evidence that some say points towards biological differences, and that others think is not probative enough (since it's so hard to isolate biological causes from social causes). There is the unquestioned reality that men and women are materially different chromosomally, hormonally, and physically, and that male and female animals of other species (where the explanation must presumably be biology and not "culture" divorced from biology) are often different in temperament and behavior. This at least suggests that looking for possible biological cognitive and temperamental differences and differences in distribution of various traits, alongside the chromosomal, hormonal, and physical differences, is not obviously a fool's errand — and thus is plausible fodder for conjecture and discussion of suggestive evidence, even in the absence of conclusive proof.

We have, as best I can tell from my layman's perspective, a serious and potentially intellectually exciting debate here. Shutting off one side, imposing on one side requirements of "proof" that bar the proposal of scientific conjectures, or for that matter imposing on both sides such requirements, strikes me as bad both for our knowledge of this subject and for scientific debate more generally.

UPDATE: In the post in which I first mentioned Prof. Barres' article, I linked to the article and also to an Edge.org debate between Steven Pinker and Elizabeth Spelke.

I probably should have also, for balance, linked to an article that takes the view contrary to Prof. Barres'; since I suspect that the attention on this thread has shifted from that post to this more recent one, I decided to add that link here -- it's to Kingsley Browne, Women in Science: Biological Factors Should Not Be Ignored, 11 Cardozo Women's Law Journal 509 (2005). Browne's piece is just a short version of some much longer work he's done, but I figure that shorter is often better for at least a first look at the matter. I stress again that I'm not claiming I know what the right answer is; I'm just trying to pass along pointers to both sides of the argument.

The Denver Post reports:

[A] group of residents vow that [Greeley Councilman LeRoy Johnson's] comment in a recent public hearing about the women in Greeley's Cranford neighborhood will cost him his council seat.

After a six-hour hearing on a proposal to give the Cranford area historic designation status, Johnson told a packed City Council chamber that the neighborhood had some nice homes, and "they have some pretty good-looking women who live there." ...

[Johnson later] said he only wanted to "inject some humor into the proceedings." ...

Greeley resident David Gutierrez said Johnson's comments and his past brushes with the law show a lack of integrity and judgment. Gutierrez will lead a recall drive against Johnson, who has said he is not going to resign from the post he has held since November 2003.

"His comments insult every mom, wife, daughter and sister in the entire city," Gutierrez said, adding that paperwork for the recall effort should be filed by Wednesday.

Councilman Johnson may well be a dunderhead, and one that Greeley residents shouldn't want representing them. But I don't see much value in the tendency (of which this is just one example) to turn every foolish statement into an alleged insult.

I blogged yesterday about Stanford neurobiology professor Ben Barres' article in Nature; I thought his argument was quite interesting, and may be generally quite right as a scientific matter (my correction was only focused on one error, which may not affect the bottom line). Yet the following passage from the article troubles me (emphasis added):

Steven Pinker has responded to critics of the Larry Summers Hypothesis by suggesting that they are angry because they feel the idea that women are innately inferior is so dangerous that it is sinful even to think about it. Harvard Law School professor Alan Dershowitz sympathizes so strongly with this view that he plans to teach a course next year called 'Taboo'. At Harvard we must have veritas; all ideas are fair game. I completely agree. I welcome any future studies that will provide a better understanding of why women and minorities are not advancing at the expected rate in science and so many other professions.

But it is not the idea alone that has sparked anger. Disadvantaged people are wondering why privileged people are brushing the truth under the carpet. If a famous scientist or a president of a prestigious university is going to pronounce in public that women are likely to be innately inferior, would it be too much to ask that they be aware of the relevant data? It would seem that just as the bar goes way up for women applicants in academic selection processes, it goes way down when men are evaluating the evidence for why women are not advancing in science. That is why women are angry. It is incumbent upon those proclaiming gender differences in abilities to rigorously address whether suspected differences are real before suggesting that a whole group of people is innately wired to fail.

What happens at Harvard and other universities serves as a model for many other institutions, so it would be good to get it right. To anyone who is upset at the thought that free speech is not fully protected on university campuses, I would like to ask, as did third-year Harvard Law student Tammy Pettinato: what is the difference between a faculty member calling their African-American students lazy and one pronouncing that women are innately inferior? Some have suggested that those who are angry at Larry Summers' comments should simply fight words with more words (hence this essay). In my view, when faculty tell their students that they are innately inferior based on race, religion, gender or sexual orientation, they are crossing a line that should not be crossed — the line that divides free speech from verbal violence — and it should not be tolerated at Harvard or anywhere else. In a culture where women's abilities are not respected, women cannot effectively learn, advance, lead or participate in society in a fulfilling way.

As best I can tell, Prof. Barres is arguing that those like Larry Summers who believe that the disparate representation of men and women in certain fields flows partly from biological cognitive differences ought not be allowed to express their views, at least at the university. Such speech, he argues, is not "free speech" but instead "verbal violence" and "should not be tolerated at Harvard or anywhere else." What's more, he seems to be distancing himself from the view that this lack of "tolerat[ion]" should extend only to counterargument (though he himself engages in this): This view, he says, is what "Some have suggested," while "In [Barres'] view," statements like Summers' should not be tolerated and should instead be treated like verbal violence (and violence is usually fought through tools other than counterspeech) rather than speech.

This strikes me as an extremely troubling proposition. Prof. Barres may have the better of the scientific argument — but here he seems to be suggesting that we shut down the scientific argument, by refusing to "tolerate[]" or treat as "free speech" contrary views. This (1) risks suppressing true counterarguments to Prof. Barres' views, if it turns out that Prof. Barres' is mistaken (at least in part).

It also (2) undermines the credibility of Prof. Barres' own views, even if they're completely correct. As a layperson, I don't know who's right on this debate. Prof. Barres may be sure based on his own extensive research, but naturally most of the rest of us — including the rest of the colleagues who are deciding whether to condemn statements like Prof. Summers' and "not [to] tolerate[]" such statements in the future — can't be.

If after decades of open and tolerant discussion Prof. Barres' view emerges as the dominant one, laypeople like us can have considerable confidence in its accuracy. (This is why, despite our general openmindedness, we would indeed have little social and professional tolerance for someone who urges the phlogiston theory of fire or something that's been similarly broadly discredited.) If, however, we know that Prof. Barres' view prevailed but only in a debate in which rival views were not tolerated, and were punished as "verbal violence" rather than protected as "free speech," then we can have no confidence in the view's accuracy. For all we know, the view may be largely wrong, and contradicted by important data, but that data has been hidden from us by speech codes or by scientific peer pressure.

Of course, Prof. Barres' position (3) would also set a tremendously dangerous precedent for other fields. Prof. Barres seems to also argue that academics shouldn't be allowed to argue about whether there are important innate racial differences, or innate sexual orientation differences. Apparently one can investigate and debate whether sexual orientation is partly or largely genetically caused, I take it, but not whether it may be correlated with other genetic traits. There'd also be some unclear limits on criticism of religion: Literally his argument is only that faculty may not be allowed to tell their students (or presumably give speeches, such as Summers', that students may hear about) "that they are innately inferior based on ... religion," and it's not clear what innate inferiority based on religion might be (though I have seen discussion of whether a tendency towards religiosity might indeed be genetically linked). But the logic of his argument would suggest that harsh criticisms of certain religious ideological systems that may make adherents of those systems feel unwelcome would also be prohibitable. And those are just Prof. Barres' specific examples; the same arguments could apply to suppressing a wide range of supposedly dangerous academic viewpoints.

Now I understand part of people's concern about discussion of innate gender differences: If certain students get alienated or dispirited enough by such statements, for instance because they're insulted by them or because they wrongly infer that such assertions about broad populations mean that they themselves have no future in some field, they may stay away from certain fields, or certain universities. I do think there are social factors that push many girls and women away from science and engineering, and I think those factors are costly for universities and for society as a whole. Universities and other institutions should work hard to diminish these factors, and to encourage people with mathematical and scientific aptitude — boys and girls alike — to go into math and science (plus encourage people without such aptitude to nonetheless get some decent grasp of the basics).

Such efforts on the part of university, however, should not come at the expense of constraining academic debate about very important scientific issues such as the interaction of gender and cognition. If some students are offended by scientific theories faculty propose, they should be taught to respond with research, analysis, and (if the theories are wrong as well as offensive) rebuttal, not alienation. If some students are dispirited by the implications of those theories, they should be taught to understand the limits of those implications. If some students are concerned about sex discrimination both in society and in their institutions, they should certainly fight it (including by researching the matter, and seeing to what extent any observed disparities flow from discrimination, and to what extent, if any, they may flow from genuine biological differences).

But students should never be taught that apparently dangerous ideas about what is true ought to be fought through suppression, rather than investigation and (when called for) rebuttal. And that brings us to one other problem with Prof. Barres' proposal: (4) It would teach the next generation of scientists the wrong approach to science — an approach that urges them to premature certainty rather than constant doubt and inquiry, and an approach that urges them to suppress contrary views rather than rebut them. That's a poor service to all students, whether male or female.

The Seattle Post-Intelligencer reports that "[t]he state Supreme Court is set to announce tomorrow whether Washington will become the second state to let same-sex couples marry." The decision should be up by 8 am here. Thanks to reader Jon Bashford for the pointer.

The Pennsylvania Bill of Rights (1776) begins with the following (emphasis added):

That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

Many other state constitutions echo this "defending life" language, and some state courts plausibly read it as securing a constitutionally protected right of self-defense. (We can set aside for now the debate about the right to bear arms in self-defense; for now I'm interested in the rhetoric about self-defense more generally.) Interestingly, this is a departure from the Virginia Declaration of Rights (1776), which says,

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Can anyone point me to some sources that discuss what function the "defending life" language was understood as serving at the time -- or for that matter in the succeeding decades -- and why it might have been added?

While I realize bleggars can't be choosers, I'd prefer some relatively concrete evidence, rather than just general speculation about what the Framers must have thought during the Revolutionary War. Many thanks!

Geof Stone, who argues that it's improper for a government official to make a decision based on "his own, sectarian religious belief" (see this post for more), gives this example, which I've also seen others give (emphasis added):

[I]n what sense is it “ethical” for Mr. Bush -– acting as President of the United States -- to place his own sectarian, religious belief [about stem cell research] above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

But, as I noted last year, it turns out that many laws do ban the eating of various animal products, for reasons quite unrelated to "objective" matters such as human health. California voters in 1998, for instance, banned the sale of horsemeat for human consumption. Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.

I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic of eating horsemeat, "morally perverse," "a perversion of the human-animal bond." Many of the laws' backers probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption -- the sale of horsemeat for animal consumption is, to my knowledge, still allowed.

Both religiously motivated pork bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. (Geof Stone's exact hypo, which is the denial of a subsidy to pork producers, doesn't even suffer from that problem, but I'll happily use the more troubling case of a total pork sales ban.) Both of them do so because of the unproven and unprovable views of the majority.

One can say that both are permissible, on democratic grounds. One can say that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, then the horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

As any parent knows, tickling your small child gets you a huge positive reaction -- uproarious laughter, huge smiles, and the like. Likewise with raspberries (pressing your face in the baby's stomach and going "Phhht," as best I can transliterate it).

On the other hand, tickling an adult will also get you uproarious laughter, but the adult will generally not like it. Laughter and smiles are usually a sign of pleasure, but not in this instance. So this makes me wonder: Should we not do it to children (say, from a few months old to a few years old), either? Is there some reason to think small children really do like it even though older children and adults don't?

I assume that if we conclude children don't like it, we shouldn't do it, since tickling and raspberries don't fall in the immunizations/medicine/making-them-clean-up-their-rooms category of "we do it because it's good for them, regardless of whether they enjoy it." Or is there some conceptual difficulty with even asking "does a one-year-old like it, despite his laughing and smiling?"

Scot Powe, a constitutional law professor I much respect, who knows a good deal about Justice Douglas -- he clerked for him, and he wrote a history of the Warren Court -- writes:

The problem is that Posner believed everything Murphy wrote when in fact much was in error (as my review in Reviews in American History showed).

Here are some more specific criticisms of Murphy's book, from Powe's review, which is also a good and short read (paragraph break added):

Murphy believes [Douglas's claim of having been striken with polio as a child] was a fabrication. Yet most of Douglas’s symptoms and treatment were consistent with polio. We will never know what Douglas had, but Murphy has not shown what he claims, that Douglas knew he did not have it.

Similarly, Douglas was always a top student and all biographies note he was number two in his Columbia Law School class, but this is not quite accurate. He was near the top of his Columbia class, but not number two. Again, however, Murphy assumes Douglas is lying, although his evidence does not show that Douglas did not simply make an honest error. [endnote: The records of Columbia’s class of 1925 are still not public.] Furthermore Douglas had been terribly sick at two, and doctors thought he would die; he worked all kinds of jobs for the money that his family always needed; he was a whiz at school and never could devote himself full-time to his studies. And not many people would survive, as he did in 1949, a horse rolling over them on a mountain side, breaking twenty-three ribs plus collapsing a lung, much less return as quickly as possible to the outdoors. If he created myths, the reality did not stray so far from the myth....

Murphy's conclusion is a gratuitous slam at Douglas for being buried at Arlington National Cemetery under false pretenses. Here Murphy stretched the data too far by concluding that Douglas was not a private in the United States Army during World War I because he was merely in the equivalent of the ROTC at Whitman College. But Douglas was, as he claimed, inducted in and honorably discharged from the United States Army and the relevant documents are in both the Library of Congress and the Cravath law firm file on Douglas. Douglas also did not claim, as Murphy implies, that he served in France.

Powe also defends Douglas's protecting the First Amendment rights of Communists, his "cleaning up Wall Street" in the 1930s, and his "prescient environmentalism."

Chicago lawprof Geof Stone criticizes the veto on church-state grounds, saying that it shows "a reckless disregard for the fundamental American aspiration to keep church and state separate." Paul Horwitz (PrawfsBlawg) responds. Larry Solum (Legal Theory) passes along his own view.

My view is very close to Paul Horwitz's, for the reasons I expressed in my 2005 debate with Geof Stone on the subject of religious reasons for government decisionmaking:

Geof Stone makes a forceful argument, but it seems to me that there are two quite different strands to it — strands that need to be separated.

At times, Geof is asking whether a "law [is] based on faith," whether a "law [is] based solely on sectarian religious belief," whether it "serves no legitimate public purpose." This category, he suggests, does not include laws that are "perfectly sensible law without regard to anyone's religious faith" or that have "a religious as well as a secular purpose," which would include a "moral-based reason" as well a "faith-based reason." Note that so far we're talking about the law. [EV: I should add here that the ban on stem-cell research funding can have obvious "moral-based" justifications, albeit ones I disagree with, just as a ban on experimentation on animals or a ban on killing endangered species would have "moral-based" justifications, even if some may disagree with them.]

At other times, though, he asks whether a person (including a political leader) backs a law "based entirely on his own sectarian religious beliefs," whether a person is "imposing [his] faith on others." That is a very different inquiry, an inquiry into the subjective motivations of a law's backers rather than whether the law in fact serves some public or moral purpose. For instance, I take it that all of us would agree that abolition of slavery, prohibition of alcohol, opposition to war, or support for civil rights are laws that have "moral-based reason[s]" as well as potentially "faith-based reason[s]." But all these laws were backed by some people — perhaps many people — for reasons that flowed from their own sectarian religious beliefs. (I chose these movements precisely because so many of their backers were deeply religious.)

In fact, I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others. (In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)

Any other approach is itself deeply discriminatory — it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

Hence my claim: It is certainly quite proper to ask whether a law is morally or constitutionally sound. A law banning the eating of pork may be quite unsound. Likewise, laws banning — or allowing — abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound.

But it shouldn't matter whether someone supports them because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

I found Ben Barres' Nature article, "Does Gender Matter?", to be very interesting; and one thing that quite struck me was this assertion: "[D]espite all the social forces that hold women back from an early age, one-third of the winners of the elite Putnam Math Competition last year were women." Perhaps I overestimated the importance of this assertion because I'm actually familiar with the Putnam Competition (I never participated, and I'm not nearly good enough at math to get anywhere near top scores on it, but I occasionally look at some old problems and enjoy taking a whack at them). Still, the competition seems to test creative math ability and not just rote application of rules, and to test high-end ability: The "does gender matter?" debate in science faculty hiring, after all, has to do with claimed differences between the very far right tails of the male and female math ability bell curves, not between the average man and the average woman or even the average male and female college students.

So, I thought, if one-third of the winners — basically, of the top 15 or so finishers — of the competition are women, despite the social pressures that I'm quite sure would drive down the number of successful women, that really is a powerful data point. (Recall that the question generally isn't whether the disproportionate representation of men and women in high-end science jobs is due entirely to biology, but only whether it's due partly to biology.)

Unfortunately, when I looked more closely at this data point, it turned out to be in error. Here's what I submitted as a letter to the editors of Nature:

Dear Editors:

I read with interest Ben Barres' "Does gender matter?" (13 July 2006), and particularly the statement that "one-third of the winners of the elite Putnam Math Competition last year were women." This struck me as a particularly telling piece of evidence: If indeed so many women performed so well in such a respected competition, this would indeed undermine assertions of substantial biological gender differences in the higher levels of mathematical ability.

Unfortunately, on further research, it seems that this statement is mistaken. Last year's (2005's) top 16 finishers seem to have included only one woman (UNL 2005). Prof. Barres was likely referring to 2004, but even in that year the top 15 included only four women (Hopkins 2005; UNL 2004). In 2003, two of the top 16 were women (UNL 2003; Princeton 2006). In 2002 and 2001, the number was one of 15. Perhaps I'm mistaken, despite my attempts to verify the ambiguous names; but this is the data as best I can determine it.

Prof. Barres' other claims in the article may well be accurate; the data I cite above certainly don't prove that the reason for the low numbers is even partly biological sex differences. On the other hand, I thought it might be helpful to let readers know that one particular piece of evidence mentioned in the article seems mistaken.

Eugene Volokh
Professor
UCLA School of Law

Sources: Hopkins, Nancy, 2005. "Academic Responsibility and Gender Bias," XVII MIT Faculty Newsletter No. 4, pp. 1, 24.
UNL Web site, 2005. "The William Lowell Putnam Mathematical Competition, Announcement of Winners ...."
     2004. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2004results.html.
     2003. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2003results.html.
     2002. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2002results.html.
     2001. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2001results.html.
Princeton, 2006. Telephone Conversation with Mathematics Department at Princeton University, July 19, 2006.

Unfortunately, Nature has decided not to publish the letter; here's their response:

Dear Professor Volokh

Thank you for your letter. We have checked into the figures and it seems that in 2004 four of the fifteen top ranked Putnam winners were women (one other might have been, we can't tell). Although we agree that it is unfortunate that we did not include the year in the relevant sentence in the commentary, we feel that 4 (probably, but maybe 5) out of 15 is sufficiently close to one-third not to publish a correction on this occasion.

Thank you again for writing to us.

If you see "last year the results were X," that might suggest to you that the results in previous years were similar but only the last year was mentioned because it's the closest data point; or it might suggest to you that in any event the trend is towards last year's X. But if you see "in 2004, the results were X," you'd be much likelier to quickly recognize that maybe the 2005 results were different. And given how different the results are — in reverse chronological order, they seem to be 1, 4, 2, 1, 1 — is it quite right to solely cite the 4 (even setting aside the dispute about whether it's 4 or 5); to suggest that it's the most recent result; and to omit the four data points, one of them a more recent one, that would suggest a very different situation?

Two notes. First, I corresponded with Prof. Barres when trying to track all this down, and he was quite gracious about it. I'm sure his error was entirely innocent; I just wish the Nature editors were willing to correct it. Second, I should stress that the aggregate data does not prove that biology is the reason for disparity; cultural factors may well account for the entire gulf even so. My point is simply that one of the reasons to believe that the biological factors are absent or slight — much closer to par representation of men and women on the Putnam exam — appears not to be correct.

And, more broadly, as the title suggests, don't trust everything you read — even relatively easily verifiable data in a respect journal such as Nature.

A reader kindly pointed me to a couple of interesting items on a matter related to something we touched on a few weeks ago: whether there are material biological cognitive factors that lead men and women to be disproportionately represented in certain fields. (Note that the question isn't whether these are the only factors, or where any particular woman or man falls within the distribution of certain cognitive skills.) The posts on this blog were about law, where matters may be quite different from science. Still, the debate about gender and science is interesting in its own right, and likely overlaps in some measure (though of course not entirely, given that much of the scientific debate is about mathematical aptitude, something that lawyers of both genders are infamous for not having) with similar debates about law.

The reader's two sources were:

1. Edge.org has a debate between Harvard psychology professors Steven Pinker and Elizabeth Spelke.

2. Nature has an article by Stanford neurobiology Prof. Ben Barres, taking the view (as best I can tell) that there are no such material biological differences, and that the entirety of the disparity between men and women in the sciences comes from societal factors. (This is not completely clear, since his introduction frames the issue as being between the "Larry Summers Hypothesis" "that women are not advancing because of innate inability rather than because of bias or other factors," and the rival hypothesis that "women are not advancing because of discrimination." But since Larry Summers' point was that part of the reason for the disparate representation of women is biological cognitive differences, I take Barres' rejection of the "Larry Summers Hypothesis," and specific criticism of Summers, to mean that he's saying that biological differences are no part or perhaps next to no part of the matter.)

I'll have a bit to say shortly about details in the Barres source, but for now I just wanted to post the links.

I'm delighted to say that Stanford law professor — and intellectual property expert — Mark Lemley was good enough to submit a friend-of-the-court brief opposing the injunction against "any comments that could be construed as to disparage [a trademark]", in our The Freecycle Network, Inc. v. Oey case. The brief was written on behalf of 38 intellectual property law professors (including Mark himself), plus the Electronic Frontier Foundation. The brief reasoned that "The District Court’s Opinion Wrongly Concludes That Merely Talking About a Trademark Can Infringe Trademark Rights," and that "The District Court’s Order Interferes With the Speech Rights of Defendants, Amici, the Press, and Others."

My coblogger David Post and Los Angeles appellate lawyer Bruce Adelstein were also good enough to submit another friend-of-the-court brief, on behalf of InstaPundit (Glenn Reynolds), Wikipedia cofounder Jimmy Wales, author and professor Larry Lessig, cyberjournalist Declan McCullagh, Trademark Law blog author and trademark lawyer Martin Schwimmer, and law professors Lauren Gelman, Jamie Boyle, Jonathan Zittrain, and David Post himself. Here's what seems to me the heart of his brief (which is shorter and in some ways less technical than Mark's, and thus more easily subject to excerpting):

The district court concluded that, because plaintiff had “established a recognizable logo and name . . . through over three years of use,” and because defendant “recognized [plaintiff’s] legitimate trademark rights” in the past, any “comments that could be construed as to disparage upon the possible trademark” rights associated with that logo and name would likely constitute an actionable infringement of those rights. The breadth of this principle, and its potential for silencing constitutionally-protected speech on and off the Internet, is quite breath-taking.

For instance, the law professors among us might opine, in a media interview, an op-ed article, or a classroom discussion about the principles of trademark “genericide,” that some registered U.S. trademark -– “Kleenex™,” perhaps, or “Xerox™,” or “Starbucks™,” or “Google™,” or “Aqua-Lung™,” or “Hot Wheels™,” or “Miracle Whip™,” etc. -– is not valid because of its generic use; one of the public interest advocacy groups among us might make the same (or the contrary) argument in a press release published on its web site; one of the journalists among us might take up the argument (for or against) in a news analysis or opinion column; so might a commenter or editor at an online encyclopedia, or at one of the many thousands of blogs and websites across the Internet at which questions of trademark law and policy are discussed.

Our comments might look very much like the defendant’s in this case: “In my opinion, the word ‘xerox’ is generic and therefore in the public domain. The best way to keep ‘xerox’ (and the terms ‘xeroxed,’ ‘xeroxing,’ etc.) in the public domain is for as many people and groups as possible to continue to use the terms generically.”

It might even be the case that we had changed our minds about this very question in the past -– surely something we have all done many times, and which is both a part of, and in many ways the point of, the public debate on these questions.

Under the district court’s reasoning, our comments alone could be “construed as disparaging the possible trademark” associated with the “Xerox” name and subject us to liability for infringing the “Xerox” trademark. And this would be so even though we offered no goods or services in competition with Xerox, Inc., nor confused or misled any consumers about the source or origin of any goods or services.

And under Plaintiff’s reasoning, each such statement -– even in a law review article, a newspaper column, or a web site -– would constitute commercial speech, simply because it “draw[s] ‘attention to [Xerox’s services]’ and directly impacts [Xerox’s] ability to attract new [users], and retain current [users] and sponsors by harming [Xerox]’s commercial reputation via its Marks,” and “because it relates to [Xerox’s] Marks and the public’s perception of [Xerox].”

We cannot believe that the First Amendment tolerates such a restriction on the rights of academics, advocates, or public-minded citizens to express their opinions about the validity vel non of specific trademark claims. Trademark rights, of course, are public rights; they are granted by the people through our duly authorized representatives in the legislatures, courts, and administrative offices. Unfettered public discussion about those rights -– about how law is made and applied, in the abstract and in the particular, and about whether it is or is not being made and applied (in the speaker’s opinion) correctly -– lies at the very heart of the First Amendment freedom of speech. It is difficult to imagine an Order more at odds with this principle than the one issued by the district court in this case, and we respectfully urge you to overturn it.

I noted last week that the Ninth Circuit had stayed the injunction against "any comments that could be construed as to disparage [a trademark]" pending appeal. I didn't have time then to note that Mayer Brown Rowe & Maw (the firm with which I'm working as a part-part-part-time Academic Affiliate) had filed an interesting supplemental brief supporting the stay petition.

It turns out that in 2005 Grist Magazine published an article about The Freecycle Network, and put up a brief summary on its accompanying blog. Tim Oey, the defendant in the Freecycle Network case, then posted some comments attached to that blog post. After the injunction was issued, The Freecycle Network's lawyers sent Grist Magazine a letter stating, "In accordance with the Order [i.e., the injunction], we request that you remove Tim Oey's posting located at [address]. In light of the Court's Order, we request that you remove the posting by no latter thaqn Friday, July 14, 2006."

Grist said no, pointing out (among other things) that "this Arizona order does not apply to Grist, which simply exercised its First Amendment rights in discussing, and facilitating discussions about, issues of public concern relating to the environment. If it were applied to Grist, which was not a party to that Arizona proceeding and furthermore was not afforded any prior notice of the motion, we believe it would be in violation of Grist’s rights to free speech and to due process under the First and Fifth Amendments." (The quotes are all from attachments to the supplemental brief, which is a public document.)

And then Grist's lawyers learned of the appeal from the initial post on this blog about the case, and were good enough to pass along the correspondence to Mayer. The result was the supplemental brief, which used the TFN-Grist exchange to "underscore the speech-suppressing aspects of the injunction." We don't know to what extent the supplemental brief influenced the decision to grant the stay, but we were certainly glad to have this extra evidence supporting our criticisms of the injunction.

The Sun (U.K.) reports:

Motorists were driven mad when they got stuck in a two-mile rush-hour jam -- caused by council officials doing a traffic survey....

Poole[, Dorset] Borough Council transport boss Steve Tite said: “We were aiming to understand drivers’ problems and reduce traffic congestion.

“It was not possible to give advanced warning as drivers might have taken alternative routes.”Thanks to Reason's Brickbats column for the pointer.

Jonathan Adler's post about the ACLU's opposing a funeral picketing ban leads me to repost my earlier piece on the subject (for links, see the original in National Review Online):

Fred Phelps has pioneered the charming practice of protesting people's funerals. It began with picketing funerals of gays while carrying signs saying things like "God Hates Fags." It then moved on to picketing funerals of soldiers with signs saying things like "Thank God for 9/11" and "Thank God for Dead Soldiers" (the theory being that God is punishing America for its toleration of homosexuality).

There is a move afoot in some cities and states to ban this practice; most recently, the Minnesota senate and house of representatives have enacted such a law, though some differences in the versions remain to be ironed out. Wisconsin enacted such a law late last month. Are such bans constitutional?

It turns out that the government (a) can ban loud picketing outside funerals, and (b) can probably ban all picketing immediately outside the funeral, but (c) must allow picketing or marching relatively near to funerals. How near is impossible to tell, but picketers can't be required to stay 300 feet or more away; they probably have to be allowed to march past the funeral, and perhaps even to picket, say, 100 or 200 feet away.

1. The government generally may not ban picketing based on its content — for instance, banning anti-gay picketing, anti-military picketing, hostile picketing, or picketing that uses pejoratives such as "fag." Thus, if the government wants to ban critical demonstrations outside funeral homes, it also has to ban demonstrations of support. See Carey v. Brown (1980).

(Click here to see the rest of the piece.)

2. The government also may not ban offensive picketing on the grounds that it will supposedly start fights. Though "fighting words" can be banned, that category is generally limited to epithets addressed to a particular insulted person. Even though many attendees at a funeral will be quite upset at speech that condemns the decedent, or gays as a whole, soldiers as a whole, or Americans as a whole, that's not enough to strip the speech of protection. See Cohen v. California (1971).

3. The government generally may not impose even content-neutral bans on all picketing or all picketing in certain places — for instance, all picketing around schools, all picketing around abortion clinics, and the like. The Supreme Court has long recognized picketing and demonstrating as an important means of communicating one's views to the people present at the place being picketed. Other means of communication — newspaper ads, billboards, and the like — are not seen as adequate substitutes, either because they're much more expensive or because they don't reach the same audience. The Court has upheld some limits on abortion-clinic picketing, but those limits have usually been quite narrow — for instance, fairly small no-picketing zones around the entrance aimed at keeping people from obstructing access to the clinic, or no-approach zones in which picketers and leafleters can stand with their signs but can't approach passersby. See Hill v. Colorado (2000).

4. The government generally may impose content-neutral limits on noisy picketing, picketing that blocks traffic, and so on, but must do this through regulations of the number or volume level of picketers, and not through bans on picketing. See Madsen v. Women's Health Center (1994). A ban on disrupting funerals would fit within this principle only if it defines "disrupt" to mean disrupt through noise or traffic obstruction, rather than through the content of its offensive message.

Likewise, a ban on "violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct" within 500 feet of a funeral would be constitutional if it is read as being limited to violent or unreasonably loud conduct, but not if it is read to cover insulting signs.

5. The Court has recognized one place where picketing can be banned (if the ban is content-neutral): outside the targeted person's home. In Frisby v. Schultz (1989), the Court held that focused picketing immediately outside a person's home can be banned to protect the especially important interest in residential privacy. "Although in many locations, we expect individuals simply to avoid speech they do not want to hear," the Court reasoned, "the home is different." "The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." "[T]he home [is] 'the last citadel of the tired, the weary, and the sick,' and ...'[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.'"

This doesn't literally cover picketing around funerals, but it's a good bet that courts will find that the interest in protecting the privacy of the grieving at a funeral is at least as strong as the interest in protecting the privacy of people at their homes. The chief danger is the slippery slope: Once the supposedly narrow exception for residential picketing is broadened to cover funeral picketing, these two exceptions (one older and one new) could then be used as precedents in arguments for more exceptions (say, for churches or for medical facilities), which would eventually swallow the rule. But I suspect that courts would nonetheless be willing to recognize funerals as places where picketing is unusually intrusive, much more so than even at hospitals and abortion clinics.

6. Yet even the power to ban residential picketing isn't limitless: In Madsen v. Women's Health Center (1994), the Court specifically rejected an injunction that banned residential picketing within 300 feet of the homes of abortion-clinic employees. "[T]he 300-foot zone around the residences in this case," the Court reasoned, "is much larger than the zone provided for in the ordinance which we approved in Frisby[, which] ... was limited to 'focused picketing taking place solely in front of a particular residence.' By contrast, the 300-foot zone would ban '[g]eneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses.'" Thus, a 1000-foot buffer zone around funeral homes or even a 300- or (probably) 200- or 100-foot zone would be unconstitutional. Marches through the neighborhood, including ones that briefly pass by the funerals, would remain constitutionally protected; likewise for picketing some distance away from the funeral home.

7. Finally, to be constitutional, even a limited content-neutral no-picketing zone must be defined with sufficient precision. A Kansas funeral-picketing law, for instance, was struck down in 1995 because it banned picketing "before" and "after" funerals without defining those terms. (It has since been reenacted with more precise terms.)

I'm not sure what legislatures should do about funeral picketing. I strongly sympathize with the desire to shield the grieving, especially given how cruel and contemptible many of the funeral picketers have been; I also think little would be lost to public debate if funeral picketing is banned. On the other hand, I do worry about the slippery-slope risks from any new exception to free-speech principles. In any case, though, I've tried to explain above what First Amendment law is now, whether or not that's the way it should be.

(Click here to hide most of the above.)

The AP reports:

Two victims of a knife-wielding grocery store employee remained hospitalized Saturday after the man attacked eight co-workers and was finally stopped by a witness who pulled a gun, authorities said....

Elartrice Ingram, 21, was charged with nine counts of attempted first-degree murder, police said....

Ingram, chasing one victim into the store's parking lot, was subdued by Chris Cope, manager of a financial services office in the same small shopping center, Memphis Police Sgt. Vince Higgins said.

Cope said he grabbed a 9mm semiautomatic pistol from his pickup truck when he saw the attacker chasing the victim "like something in a serial killer movie."

"When he turned around and saw my pistol, he threw the knife away, put his hands up and got on the ground," Cope told The Associated Press. "He saw my gun and that was pretty much it." ...

While I'm at it, and since a tangential search came up with it, I might as well add this:

With Australian outback hero Crocodile Dundee as her inspiration, an 80-year-old British pensioner foiled a knife-wielding burglar with an even bigger blade of her own.

When woken by a masked man holding a knife, Winifred Whelan screamed and ran downstairs to the kitchen.

Grabbing a giant carving knife, she told the startled intruder "You call that a knife? This is a knife" in an echo of the famous scene in the Crocodile Dundee film when actor Paul Hogan confronted a New York mugger.

As she took on the intruder, her husband grappled with his accomplice.

Good work.

Linda Seebach of the Rocky Mountain News heard about the study from Andy Leipold's posts on the subject, and wrote it up in this article. She even includes the URL for those who want to look at the whole piece, a nice touch that I wish I saw in more print publications. I'm delighted that she found Andy's work as noteworthy and interesting as I did.

I thought I'd briefly chime in on the legal dispute between Orin and David Kopel. I stress that I'm speaking here only of the legal dispute (as was Orin). The question is whether UN officials' (and by extension the UN's) actions would make them accomplices under U.S. law in a Hezbollah kidnapping, given the factual account that David set forth -- several UN peacekeepers take bribes from Hezbollah to assist in the kidnapping, and then top UN officials authorize the destruction or concealment evidence with the purpose of covering up the peacekeepers' misconduct (though not necessarily the purpose of helping Hezbollah). We're also all applying U.S. law, rather than, say, Lebanese or Indian or Israeli law, because the question is whether it's sensible to use the label "accomplice" to an overwhelmingly U.S. audience, and not whether particular people are likely to be convicted of particular offenses in the likely jurisdiction.

Here are my thoughts; I may be mistaken (unlike Orin, I've only taught crim law for a year, though I did study some of the mens rea / accomplice rules pretty closely for my Crime-Facilitating Speech article), and the matter is complex because some of the rules vary from American jurisdiction, but this is my sense of the matter.

1a. In most U.S. jurisdictions, to be guilty of aiding a crime under an "aiding and abetting" theory, also sometimes called an "accessory before the fact" theory, one (generally speaking) needs to help the criminal with the purpose that the crime be committed. Mere knowledge that one is helping bring about the crime, but in the absence of such purpose, isn't enough.

1b. But in a significant minority of U.S. jurisdiction, aiding and abetting liability can be satisfied even by a showing of help plus mere knowledge. E.g., People v. Spearman, 491 N.W.2d 606, 610 (Mich. Ct. App. 1992) ("To find a defendant guilty on an aiding and abetting theory, the people must show that (1) a crime was committed either by the defendant or by another, (2) the defendant performed acts or gave encouragement that aided or assisted in the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid or encouragement"), overruled as to other matters, People v. Veling, 504 N.W.2d 456 (Mich. 1993); Ind. Code § 35-41-2-4 ("A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense ...."). Some jurisdiction treat knowing-but-not-purposeful assistance as the separate crime of facilitation, but some (including those I just pointed to) treat is as ordinary aiding and abetting.

1c. There's also some authority -- though I'm not sure how widely it's followed -- for the proposition that the rule should be purpose (plus, of course, aid) for aiding merely "[v]enial crime[s]," but knowledge for "[h]einous crime[s]." People v. Lauria, 59 Cal. Rptr. 628, 633-35 (Ct. App. 1967).

2. OK, that's for standard aiding and abetting, for instance driving someone to a crime scene, acting as a lookout, and so on -- the sort of thing that the U.N. peacekeepers are accused of. But the U.N. high officials are being accused of covering up the crime after the fact. Here the question is whether they are "accessor[ies] after the fact," people who affirmatively help a felon escape capture after the crime is committed. Here the law generally requires only knowledge that the felony has been committed, though possibly plus the purpose of helping cover up the felony. The purpose to have helped in the felony in the first instance is unnecessary. Corpis Juris Secundum, Criminal Law § 140, states that "An accessory after the fact is one who, knowing a felony to have been committed receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment." (There are problems with relying on legal encyclopedias as opposed to binding authorities such as cases or statutes, but here I think it's apt, because we're looking for the general view throughout the U.S. jurisdictions, so short of a 50-state survey the encyclopedia or a treatise is the best bet.) Similarly, the federal accessory-after-the-fact statute, 18 U.S.C. § 3, states that "Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact."

Therefore, under the facts set forth in David's post, the U.N. high officials' actions would likely make them accessories after the fact, because they knew that the peacekeepers (who were likely liable for at least some felony) had committed a crime, and were acting with the purpose of helping them evade capture. It does not matter whether the U.N. high officials had the purpose of advancing Hezbollah's goals; it's enough that they had the purpose of helping their subordinates evade capture.

3. So under the facts as described, the U.N. high officials would be accessories after the fact -- but would they be accomplices? The modern view seems to be "no," but not uncontroversially. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 727 (3d ed. 1982), as cited in Black's Law Dictionary, reports, "There is some authority for using the word 'accomplice' to include all principals and all accessories, but the preferred usage is to include all principals and accessories before the fact, but to exclude accessories after the fact." The federal courts definitely take this latter view, though the contrary view survives at times, especially in casual use; see, e.g., U.S. v. Payner (1980) (Marshall, J., dissenting) (opining that allowing the admission of illegally gathered evidence would make a federal court "the accomplice of the Government lawbreaker, an accessory after the fact"); Minn. Stat. Ann. § 609.495 (calling accessories after the fact "accomplice[s] after the fact"); United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998) (same); People v. Dye, 427 N.W.2d 501, 512 (1988) (same); Purvis v. State, 208 Ga. App. 653, 654 (1993) (same); People v. Knapp, 441 N.E.2d 1057, 1067 n.1 (N.Y. 1982) (Jasen, J., dissenting) (same).

Thus, my tentative sense is: (1) It's probably better to describe people who act as the U.N. officials were alleged to have acted as "accessories" rather than "accomplices." There's a good deal of precedent, though, for using the term "accomplice"; and in any event, the two have similar enough connotation that in casual discussion little harm is done by substituting one for the other (though in careful legal discussion it might be clearer to follow what seems to be the dominant view and limit "accomplice" to accessories before the fact).

(2) A person or institution may be liable as an accessory after the fact (or, if you prefer, an accomplice after the fact) even if the person (or, for an institution, the institution's responsible actors) had no desire that the underlying crime be committed. Knowledge that they're helping the offenders escape, coupled with the purpose that the offenders escape (for instance, if the purpose is simply to cover up the offenders' crime so as to avoid embarrassment for the offenders' employers), suffices.

Please do let me know if I'm mistaken on any of these points.

Much worth reading; I'm no expert on the substance, but it's certainly a fun and interesting read, and my sense is that the criticisms of Douglas, from what I've heard, are indeed quite apt. (Certainly Douglas's constitutional work, with which I am familiar, betrays the flaws that Posner identifies.) Thanks to Orin for the pointer.

I was just reminded of Lucinda Williams' Those Three Days, which I blogged about three years ago, and thought that I'd post it again. (Thankfully, I was not reminded of it by an event in my happily married life.) It's a stunning song, raw and bitter and true. Here are the lyrics, which of course don't do the song justice, thought they are very good:

You say there's always gonna be this thing
Between us days are filled with dreams
Scorpions crawl across my screen
Make their home beneath my skin
Underneath my dress stick their tongues
Bite through flesh down to the bone Since those three days

Did you only want me for those three days?
Did you only need me for those three days?
Did you love me forever
just for those three days?
For those three days

You built a nest inside my soul
You rest your head on leaves of gold
You managed to crawl inside my brain
You found a hole and in you came
You sleep like a baby breathing
Comfortably between truth and pain
But the truth is nothing's been the same
Since those three days