A commenter on the Vermont/Virginia child custody determination thread asks: "So what is the relationship between claimed parent Janet and IMJ if not Janet's 'civil union' with Lisa?"The Vermont court was relying in large measure on what is sometimes called the "de facto parent" or "psychological parent" doctrine, which applies not just to same-sex partners, but also to the biological parent's opposite-sex boyfriend/girlfriend (or to the child's stepparent).

The doctrine is recognized not just in crunchy granola places like California and Vermont, but also Alaska, Maine, South Carolina, West Virginia, and Wisconsin (and, I'm sure, other states -- I just don't have a list handy). See, for instance Middleton v. Johnson, 2006 WL 1814177 (S.C. App. 2006), and the cases cited therein; here's the test that the South Carolina case adopts, following a Wisconsin precedent:

[T]he petitioner must show ... (1) that the biological or adoptive parent[s] consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; [and] (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

The Vermont Supreme Court just issued its opinion in Miller-Jenkins v. Miller-Jenkins; here's a brief summary of the facts:

Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.

On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the "biological or adoptive child[]of the civil union." Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court ... on June 17, 2004 ... awarded Lisa temporary legal and physical responsibility for IMJ, and awarded Janet [visitation and a right to daily telephone contact] ....

I'm not a family law maven, but here's my sense of the matter.

First, despite how Lisa's lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren't married. The relevant federal statute, the Parental Kindapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to "enforce according to its terms" out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) ... (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

So even if Janet and Lisa weren't in a civil union, but were merely living together and had raised a child together, the initial Vermont order would have been valid, and the subsequent Virginia order invalid — that's why I say that this case is not primarily about marriage or civil unions. The Vermont Supreme Court did rely in part on the civil union, in deciding in the first instance that Janet (who isn't IMJ's biological parent) was entitled to parental rights. But while the court noted this "first and foremost," it also pointed to many other factors that would have been present even had this situation arisen without a civil union: "It was the expectation and intent of both Lisa and Janet that Janet would be IMJ's parent. Janet participated in the decision that Lisa would be artificially inseminated to bear a child and participated actively in the prenatal care and birth. Both Lisa and Janet treated Janet as IMJ's parent during the time they resided together, and Lisa identified Janet as a parent of IMJ in the dissolution petition. Finally, there is no other claimant to the status of parent, and, as a result, a negative decision would leave IMJ with only one parent." "Because so many factors are present in this case that allow us to hold that the non-biologically-related partner is the child's parent, we need not address which factors may be dispositive on the issue in a closer case."

Thus, a Vermont court decided — based partly on Lisa's and Janet's Vermont civil union, but also on other factors that would cut in favor of this decision in case — that Janet was entitled to parental rights. At that point, the federal statute kicked in, and the Virginia courts were not allowed to revisit the Vermont decision, not because Lisa and Janet had a civil union, but because the Vermont decision took precedence and would have took precedence even Lisa and Janet had been an unmarried opposite-sex couple Lisa and John.

One last issue: What about the Defense of Marriage Act"? For the reasons I mentioned, the Act doesn't apply, and thus doesn't trump the PKPA.

The Act provides that states (here, Virginia) need not follow "any public act, record, or judicial proceeding of any other State [here, Vermont], territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." Virginia thus has no obligation to take into account Lisa's and Janet's civil union. But the Vermont court's custody decision didn't involve a right or claim legally arising from the civil union; it involved a right or claim arising from a child custody decision — a decision that, as I said, could have been rendered even for a couple who had never been either married or in a civil union.

(Had the Vermont court concluded that the decision would have been otherwise absent the civil union, the matter might have been different, but the court strongly suggested that the other factors would have yielded the same result. Also, the child did "aris[e] from such [civil union] relationship," in the sense that it was born into the civil union, and Lisa and Janet might not have agreed to have a child were it not for the civil union — but the right or claim doesn't arise from a relationship, just like, say, two married people's purchase of a house as tenants in common wouldn't be "a right or claim arising" from the marriage, and would remain legally valid even if the marriage were found to be invalid.)

The Vermont Supreme Court held only (and clearly correctly) that DOMA doesn't require Vermont to honor the Virginia custody decision, and given the procedural posture of the case didn't have to "reach the broader question of whether DOMA, and not the PKPA" would govern Virginia's decision whether to honor the Vermont custody decision. But if my analysis is right, then it shows that under federal law Virginia must indeed honor the custody decision that flows from Lisa's and Janet's parenting of the child, though Virginia need not honor the civil union status.

from lawprof Brannon Denning (visiting at InstaPundit); I especially recommend items one and three.

UPDATE: Orin Kerr has just posted some of his own advice as well; I also recommend it.

for His Position that the Second Amendment Doesn't Secure an Individual Right: No, wait, that would be a substantive criticism.

Instead, he's being faulted for being "not ... of our color" (Al Sharpton, with the "our" referring to Sharpton and the mostly black electorate in the district), a "colonizer" (Major Owens, the retiring Congressman from that district), and "a white individual" (City Councilman Al Vann). Plus, Sharpton linked Yassky to Nicholas Minucci, who's accused of attacking a black man with a baseball bat while shouting a racial slur ("From this to the Minucci case to Yassky thinking he's going to run for that seat -- do they think we're just going to sit this out?"). The only connection between Yassky and Minucci appears to be that they're both white.

Here's Al Sharpton's letter defending himself:

Despite Andrea Peyser's protestations to the contrary, I and other black leaders have repeatedly stated that our objection to David Yassky's congressional candidacy in the 11th district of Brooklyn has nothing to do with his skin color or religion ("Election 'Slur' Spur," June 10).

Rather, our problem with his running in the 11th is that he made an opportunistic political calculation to move out of his own district and move into a district with four black candidates under the assumption that they'd split the vote, providing him with an inroad to victory.

That's a clear undermining of the spirit of the 1965 Voting Rights Act.

Further, population estimates from the Census Bureau reveal that blacks still don't have equal representation in New York City's congressional delegation.

I firmly believe that in a supposedly progressive state like New York, that's a problem that must be remedied, not further exacerbated. However, being for proportional representation makes me neither anti-white nor anti-Jewish.

I'm not sure how Sharpton's claim that this "has nothing to do with his skin color or religion" is consistent with Sharpton's other quoted statements. More importantly, how is it consistent with Sharpton's "being for proportional representation"? True proportional representation would mean that there'd be 2 Jewish Senators and 9 Jewish Congressmen (plus, while you're at it, almost never a Jewish Justice), since Jews are 2% of the population. It also would mean that some candidates should be opposed because of their "skin color or religion," since if one group is overrepresented, backers of "proportional representation" would presumably have to oppose candidates of that group in order to cure that overrepresentation.

The good news:

July 13, 2006 - Don't Keep White Candidate Out Of Black District, New Yorkers Tell Quinnipiac University Poll ....

By a 61 - 23 percent margin, New York City voters oppose a move by black politicians to prevent a white candidate from winning a Congressional race in a Brooklyn district that has been represented by black members of Congress since 1968, according to a Quinnipiac University poll released today. White voters oppose this move 68 - 16 percent while black voters oppose it 53 - 31 percent and Hispanic voters oppose it 54 - 28 percent.

By an even larger 77 - 12 percent margin, voters would oppose a group of white politicians trying to prevent a black candidate from winning in a historically white legislative district. There is little difference among white, black or Hispanic voters, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds.

When asked if they prefer having a candidate of their own race, New York City voters say no 54 - 19 percent. White voters say no 59 - 10 percent, while black voters say no 45 - 30 percent and Hispanic voters say no 56 - 25 percent....

Or is it such good news? True, about 77% of white voters and 53% of black voters would oppose trying to prevent a candidate of the opposite race from winning in a "historically [white / black]" district. On the other hand, 10% of white voters and 31% of black voters say they would support it. So Sharpton's, Owens', and Vann's sentiments are unfortunately hardly isolated.

The Legal Reader reports (thanks to Joe Olson for the pointer):

Plaintiff George C. Swinger, Jr., an inmate in Washington State, filed a pro se Notice of Appeal in a civil case before U.S. District Judge Ronald B. Leighton in the Western District of Washington. The Notice, filed July 12, 2006, states:

I hereby am informing you that I am appealing the asshole Ronald B. Leighton's decision in this matter.

You have been hereby served Notice. You're not getting away with this shit that easy.

You can view the handwritten Notice of Appeal here (.pdf). (That's almost as good as a "Motion to Kiss My Ass" . . . .)

The links to the notice (and the motion to kiss the movant's ass) are in the Legal Reader post.

It's just out from Princeton University Press, and I quite liked it (to the point of writing a jacket blurb for it). I know Neil from clerking, and he's a very smart and thoughtful guy. He's also just been appointed to the U.S. Court of Appeals for the Tenth Circuit -- a very good choice, in my view. Here's the publisher's summary:

In clear terms accessible to the general reader, Neil Gorsuch thoroughly assesses the strengths and weaknesses of leading contemporary ethical arguments for assisted suicide and euthanasia. He explores evidence and case histories from the Netherlands and Oregon, where the practices have been legalized. He analyzes libertarian and autonomy-based arguments for legalization as well as the impact of key U.S. Supreme Court decisions on the debate. And he examines the history and evolution of laws and attitudes regarding assisted suicide and euthanasia in American society.

A comment on the "Call Us X" thread raised the Beijing/Peking question. As I understand it, Beijing is the more accurate pronunciation, and now that the shift has happened, it's probably for the good.

But there too I'd counsel against condemning people for sticking with the pronunciation that they've used all their lives, whether the condemnation is on identity politics grounds (you Western imperialists calling our places by your names) or on supposed error grounds (what a fool you are for mispronouncing this term). In many languages, foreign place names get translated. Partly this is to track the natural sounds of the language (which is why people mock those who abandon normal English diction when using a foreign, often Spanish-language, place name), but partly this is just an accident of history.

English speakers say "Moscow," not "Moskva"; would we say that "Moskva" is more correct, or just that "Moscow" is correct in English and "Moskva" in Russian. Russian speakers say "Reem" instead of "Roma," just as English speakers say "Rome." French speakers say "Londres" instead of "London." Russians pronounce "Warszawa" much like Poles do (despite having a different alphabet), while English speakers say "Warsaw." The Poles retaliate by calling Italy "Włochy." Deutschland can be Allemagne, Germany, or Nemechyna (transliteration from Ukrainian imprecise), and while the Italians, I'm told, call it Germania, they call Germans Tedeschi. That's history for you, both the history of one country being known by the names of different groups, and the history of phonetic and orthographic modifications in translation.

If everyone started calling places by their native names (setting aside cases of political controversy, and making allowances for the target language's sounds and cadences), that would probably be good; as I said, I'm glad that we've shifted to Pinyin from Wade-Giles. But let's keep some perspective, and recognize that this is a longstanding feature of many languages, one that's probably most aptly fought on grounds of practicality than ideology or even abstract "correctness."

An Ohio television station's site reports:

A suburban Cleveland man accused of sexually assaulting nine disabled boys told a judge Wednesday that his apartment was a religious sanctuary where smoking marijuana and having sex with children are sacred rituals protected by civil rights laws....

[Phillip] Distasio, a self-professed pagan friar, is representing himself .... He said he's the leader of a church called Arcadian Fields Ministries, and that some of his congregants are among the victims in his case....

Cuyahoga County Bill Mason said Distasio was arrested after he wanted to write a blog for the Lakewood Library. Officials noticed something was wrong and notified Rocky River police.

Distasio was arrested on charges he molested two disabled boys he was tutoring at his home. He's also accused of raping seven other autistic children at a Cleveland school for special-needs students, The Plain Dealer reported. All but one of the boys was under 13, which carries a mandatory life-in-prison sentence if he is convicted, the paper reported....

This is a good illustration of two principles related to religious exemptions:

1. Though the Court has read the U.S. Constitution's Free Exercise Clause as not requiring the government to provide religious exemptions from generally applicable laws (i.e., laws that apply to conduct without regard to its religiosity), about half of U.S. jurisdictions do presumptively require such exemptions either under the state constitution's religious freedom clause or under the jurisdiction's religious freedom statute. The Ohio courts, for instance, have interpreted the Ohio Constitution this way.

2. But this is only a presumption, and generally not a strong presumption. (The cases and statutes tend to use the language of "strict scrutiny," requiring that denial of the exemption be "narrowly tailored to a compelling government interest," but while this test has been applied in a very demanding way as to content-based speech restrictions and as to most racial classifications, it has been applied in a much more pro-government way in religious freedom cases.) If there's a strong enough reason -- in the court's judgment -- for applying the law uniformly even to religious objectors, the law can be applied.

I'm positive that Ohio courts will find such a strong reason in the state's statutory rape laws (the Ohio age of consent, I believe, is 16). Some courts have suggested that such religious freedom regimes do mandate an exemption from bans on marijuana, but that's a minority view, and in any case wouldn't apply if any of the charges involved distribution of marijuana to minors.

Thanks to reader John Hackathorn for the pointer.

On the "handicapped" thread, Trevor Morrison asks:

My mother spent years as an advocate for the disabled. On the basis of her work there, I'm reasonably certain that people actually involved in the lives of the disabled tend to favor "disabled" over "handicapped." Your defense of "handicapped" relies on your account of the word's etymology. So is your position that the formal definition and origin of a word always defines its appropriate usage, or do contemporary changes in usage affect things?

A good question, which I think deserves a detailed answer.

First, let me make clear that I don't think etymology dictates meaning; my post about "handicapped" was a rebuttal to the argument that "handicapped has a pejorative etymology, therefore it's a rude term to use"; that argument, I pointed out, was premised on an inaccurate factual claim. But one can still argue that the term is pejorative even if its original meaning is fairly innocent. Let me also make clear that I don't want to fault anyone for trying extra hard to accommodate what he sees as the preferences of a group or some members of that group; if that's your choice, fine by me.

Rather, it seems to me that the interesting question here is whether people have some sort of good manners obligation to abandon "disabled" for "handicapped," "American Indian" for "Native American," "black" for "African American," and so on. I think the answer is generally no, unless the old term is so commonly used as a pejorative that listeners can reasonably infer that your use of it is pejorative, or possibly if the old term is so rarely used and thus archaic that listeners can reasonably wonder "what does he mean by that?" when they hear it (e.g., "Negro" or "Hebrew" as a noun to refer to Jews). The mere fact that some members of a group, or even a majority of the members of a group, prefer the new term doesn't impose on us an obligation to use the new term. Here are a few reasons why.

1. To begin with, note that Prof. Morrison cites the views not of the disabled generally (a hard group to poll), but of "people actually involved in the lives of the disabled." More precisely, I suspect that he is relying on the views of those people who are "advocates of the disabled" and who are outspoken enough to express their views as to the preference. This may well be a highly unrepresentative sample of the disabled.

Just by way of example, a 1995 Labor Department survey reported that 50% of American Indians preferred "American Indian" and only 37% preferred "Native American"; 44% of blacks preferred "Black" and only 40% preferred "African-American" or "Afro-American"; 58% preferred "Hispanic" and only 12% preferred "Latino" (no separate data was given for "Latino/a"). Matters may have shifted some since 1995, but not vastly; and I'm pretty sure that in 1995, the preferred terms among activists were "Native American," "African-American," and (here I'm less sure) "Latino," yet the actual majority (or, for blacks, plurality) preferences were different. (Source: U.S. News & World Report, Nov. 20, 1995.) Even if I thought that I had some moral or good manners responsibility to use the label preferred by a strong majority of the group, I see no basis for accepting such a responsibility to use the label preferred by a vocal minority, or even half of the group.

2. Moreover, shifting from an old label to a new label is not cost-free. It's not cost-free for the speaker. Sometimes the new term has shades of meaning that aren't quite apt for certain uses, and thus requires extra work to think through. ("African-American," for instance, isn't a racial group, but a racial subset of Americans; it thus isn't always an apt substitute.) Sometimes the new term carries an ideological literal meaning that the spaker may disliks evoking, even when it's fairly clear that he's using the term just as a label and not for its literal meaning. This is clearest for "differently abled" or "Latter-Day Saint" (I have nothing against Mormons, but I prefer not to call them Saints, even with the implied quotes). But it may also apply in other situations, such as with "disabled"; some people may genuinely prefer to stress the handicap (i.e., burden) under which a person labors rather than his disability.

Sometimes the word acquires a connotation of adherence to the ideology that spawned it; the word "womyn" may be the most famous example, though I suspect that these days it's so often used facetiously that people may want to avoid it for that reason as well. Speakers may then resist using the term because they don't want to be seen as proclaiming allegiance to an ideology that they do not adhere to. Sometimes the new term is just clunkier and sounds more stilted to many people; some, I suspect, take this view as to African-American, and I suspect that headline writers are especially unhappy with it.

3. But the more important cost to the speaker is that telling people that they should stop saying certain words, not because those words are likely to be reasonably interpreted as expressing hostility, but simply because some other people dislike those words, is itself something of an affront to dignity and a possible source of offense. Even the good-mannered among us cherish our freedom to speak as we please, and while we try not to be rude (in the sense of slighting others or saying bad things about them), we understandably bristle at being told to stop using this word and start using that one on pain of Being a Bad Person.

A sound explanation that shows why people are reasonably offended by a term (for instance, an explanation to someone coming from Russia, where "black" is insulting much like "yellow" would be, and "negro" is considered the proper scientific term, that in America "negro" is so rarely used that it sounds like a deliberate insult at worst or one of those what-did-he-mean-by-that? archaicisms at best) might soften the sting. But simply saying "most of us like this term, so stop using this other one that you've used all your life" is a legitimate source of offense for those whose speech people are trying to control. It's even more such a source if those people were once taught by then-representatives of the same group that "handicapped" was the better term, and some years later are now told that it's become bad. And it's especially so when the number of forbidden words grows and grows ("rule of thumb," "Chinese wall," "seminal," etc.).

4. On top of that, there's also another substantial cost to the "If you aren't a bigot, stop saying 'handicapped' and say 'disabled' instead" approach: It may actually increase how often the group that one is trying to protect from offense ends up feeling offended.

If handicapped people learn that some people say "disabled" and others say "handicapped," and that neither is evidence of hostility, a few might still bristle at one (or the other); but many will be satisfied by the explanation that decent people use both. But say that everyone is told that "disabled" is the one right term, and some decent people don't go along, whether because of force of habit, strong preference for "handicapped," or just bristling at being told what to say. Then handicapped people who hear the term may well become more offended, because they've been taught that the word is offensive.

People who might even prefer to shrug the term off might feel almost obligated to take it as an insult. If someone calls me "Gene" rather than "Eugene," I'm a little annoyed (that's just not the name I prefer in English), but I assume that it's just because they've fallen into that habit with other Eugenes they know, who do go by Gene in a way that I don't. I assume the speaker's intentions were good, and I think I'm happier for it.

But if someone started a campaign of insisting that calling me Gene is actually rude, perhaps even insulting (because the diminutive implies a diminution of my status), I'd both hear "Gene" a bit less often, and be much more annoyed when I do hear it, precisely because I'll worry that it's a deliberate violation of the New Good Manners Rule and thus a deliberate slight. Those who make the handicapped/disabled issue into a matter of identity politics rather than just a matter of apricot/apricot (or even Gene/Eugene) may thus increase the amount of hurt feelings on both sides.

5. So I think the approach that's more tolerant of speakers, ultimately more likely to avoid offense to the subjects of the speech, and less likely to be subject to the whims of a small minority of activists is generally to tolerate both the old terms and the new terms, and not consider either to be a breach of good manners.

There are exceptions. One, as I noted above, is when one term is so often used pejoratively that reasonable listeners might assume that the current user is using it pejoratively. Another is when the term is so archaic that it will make people wonder whether the speakers must have some ulterior motive in using it (the obvious motive, which is that it's a commonly used term that springs to people's minds naturally, being absent). There may well be others; rules of manners are often not competely simple and crisp. But as to handicapped/disabled, or American Indian/Native American, or black/African American, the let-at-least-a-couple-flowers-bloom approach strikes me as the clearly preferable one.

A very interesting story discussed by Manfred Gabriel (Law & Society Blog):

This week in Ireland, five peace protesters were aquitted by jury verdict of the charge of criminal damage to property. In 2003, the protesters forced their way into an airplane hanger at Shannon airport and attacked a US Airforce transport plane, bashing the airplane’s nose and causing $2.5 million of damage.

The Dublin Criminal Circuit Court ruled July 25 that the five ... were not guilty of causing damage to U.S. government property and the Aer Rianta doors at the airport. The five admitted in the court that they had forced their way into the hangar and had attacked the plane, but said their actions were legally excusable because they were trying to protect lives and property in Iraq, which the U.S. invaded the following month....

The post makes lots of interesting points, but here's one that particularly struck me:

The Irish statute declares criminal damage that was reasonably believed to be necessary to prevent harm to be lawful, which means, for example, that self-defense would not be permissible against the act. Consider that the airplane’s pilot had tried to defend his airplane against the attacking peace protesters and that the pilot had injured one of the protesters while trying to ward them off. If the protesters’ reasonable beliefs made their act lawful, the pilot would be prevented from stopping the attack by force and could be prosecuted for assault and battery if he tried: self-defense is a right only against unlawful attacks.

I should say that the Irish government would of course be entirely free to refuse to let us use their airfields. (I assume they have no treaty obligations to us on this point, but even if they did, I suspect they could renounce those obligations in various ways.) But one unfortunate aspect of the necessity defense is that the Irish government lets us use their airfields and then does not protect us when we do so. Not a good position for Irish law (which is what lets this defense go to the jury) to place the Irish government and the Irish nation.

Incidentally, many U.S. jurisdictions recognize the necessity defense in some cases, but as I understand it the defense has been interpreted quite narrowly. I doubt, for instance, that the defense would have allowed Americans to destroy British warplanes if those warplanes were bound for the Falklands War, and the defendants had thought the war improper or illegal.

UPDATE: Note that this wasn't an incident of jury nullification, in which applying the law as the judge accurately described it would lead to result X, but the jury reached result Y becauuse it chose to ignore the law. Irish law seems to be that the necessity defense actually provides a valid legally sanctioned justification that a jury can (and perhaps should) apply to acquit the defendants. The jury wasn't nullifying the law; it was applying the law.

If you want an analogy, when a judge instruct jurors that vandalizing an abortion clinic in order to stop abortions from being performed is a crime, the vandalism is proven, but the jury still acquits because it thinks that abortion is so evil that the vandals were morally justified, that's jury nullification. If a judge instructed jurors that the vandalism is not a crime if the defendants sincerely believed that fetuses were persons who were in immediate need of protection, and that the vandalism was a reasonable means of protection under the circumstances, and the jury then acquitted on those very grounds, that's not jury nullification -- it's a jury's application of the law that lets people destroy property under the specified circumstances.

I've agreed to write a short essay on the subject, and now I have to find something interesting to say. I think I have some ideas already (beyond, of course, what I've already written in my Scholarship, Blogging and Trade-offs: On Discovering, Disseminating, and Doing paper), but I'm always delighted to get tips from others. So any suggestions? The topic assigned to me is deliberately broad -- it includes how online publication might affect legal scholarship, how blogging might affect legal scholarship, and more -- though I'll probably narrow it myself.

In any event, I'd love to have your input (for which I'll gladly pay you not just in a thank-you note, but in a 10% royalty on the $0 that I'll get from the publisher for this essay). In a few days, I'll blog about an area that I'm particularly thinking about, but for now I wanted to get suggestions that aren't influenced by my current plans. Many thanks!

So holds a Second Circuit panel in New York Times v. Gonzales, over a dissent. I think the majority is right, though I'd have a quibble or two here or there. Here's the panel's summary:

After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters learned of these plans, and, on the eve of each of the government's actions, called each foundation for comment on the upcoming government freeze and/or searches.

The government, believing that the reporters' calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches, began a grand jury investigation into the disclosure of its plans regarding the foundations. It sought the cooperation of the Times and its reporters, including access to the Times' phone records. Cooperation was refused, and the government threatened to obtain the phone records from third party providers of phone services. The Times then brought the present action seeking a declaratory judgment that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter’s privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment....

We hold first that whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper's or reporter's telephone records in the possession of a third party provider. We next hold that we need not decide whether a common law privilege exists because any such privilege would be overcome as a matter of law on the present facts. Given that holding, we also hold that no First Amendment protection is available to the Times on these facts in light of the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972).

Ever since this was announced, I thought it was a great move for a law journal; and now it's available on LEXIS, too (and I'm told WESTLAW might come soon) — a really important feature for those who want to be found later as well as read now. Plus the unsolicited submissions are blind-reviewed (see the last paragraph), which is a good move, especially for a journal of this caliber.

In any case, here's their latest call for papers. Heed the call.

THE POCKET PART CALL FOR PAPERS

In October 2005, The Yale Law Journal launched The Pocket Part, an online companion to the Journal. Since then, The Pocket Part has published original essays and responses to the articles printed in the Journal. Those pieces, and future Pocket Part publications, will be available through LexisNexis later this summer.

The Journal seeks three types of submissions for The Pocket Part.

Essays. We invite members of the academy and the legal profession to submit original essays. These essays should achieve one of three purposes. First, a Pocket Part essay might bear directly on events unfolding in the present, so that it ought to be published at once, rather than at the end of a year-long editorial process. For example, while then-Judge Alito sat before the Senate Judiciary Committee, we published an essay on the scope of that Committee’s questions for a nominee — Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 YALE L.J. POCKET PART 38 (2006). Second, an essay might seek to influence legislators and policy-makers outside of academia, who may lack the time to read printed law journals. Third, an essay might set forth what Professor Eugene Volokh has termed a "micro-discovery" — a brief observation that is novel and useful but that does not require a full-length article to express. See, for example, Daniel A. Farber, Uncertainty as a Basis for Standing, 33 HOFSTRA L. REV. 1123 (2005). Essays should be as short as possible, and must not exceed 4000 words.

Responses. We invite all our readers to respond to arguments made in the Journal. See, for example, Robert C. Ellickson, A Private Idaho in Greenwich Village?, 115 YALE L.J. POCKET PART 5 (2005); Andrew P. Thomas, The CSI Effect: Fact or Fiction?, 115 YALE L.J. POCKET PART 70 (2005). Responses should be as short as possible, and must not exceed 4000 words. Commentaries. We invite all our readers to submit commentaries on interesting legal events. Recent court decisions, statutes, trials, speeches, and publications might all be good subjects for a commentary. For an excellent example, see Judy Coleman, Judgment Day — Arnold’s Star Turn as a California Supreme Court Justice, SLATE, Dec. 15, 2005. A commentary should describe and critique its subject in less than 1500 words.

We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and more information about the submissions process, please visit our website, and follow the link for "Submissions." Kindly remove all self-references from the submission itself; we will use the same blind selection process that we use for the Journal. We hope to respond to submissions within two weeks of receipt, and to publish within one month of acceptance.

talking about UC's likely joining the google library scanning project:

In a move with major significance for the worlds of academic research and publishing, the University of California is in talks to join Google's controversial project to digitize great libraries and offer books online.

Google is keen to have access to UC's 34 million volumes from 100 libraries on 10 campuses, which is described as collectively the largest academic research library in the world. UC wants to delve more deeply into the Internet revolution with a deep-pockets partner like Google paying the costs of scanning books....

Last year, a group of U.S. publishers and the Authors Guild filed suits in federal court in New York against Google, contending that scanning copyrighted books without permission is copyright infringement, even if the books are not posted online or only tiny excerpts are shown....

Under agreements with libraries, Google makes two copies of books, keeps one and gives one to the campuses. To avoid trouble, some of the libraries now allow scanning of only public domain books. But the University of Michigan and Google have said they do not need permission to allow a few sentences from copyrighted works online; such "fair use" quotation, they said, can help authors by boosting sales.

UC probably would follow the Michigan model in scanning works both in and out of copyright, Greenstein said....

UC would not receive any payments under the proposed contract. It potentially could save millions of dollars a year if libraries could buy fewer copies of books and journals and instead direct students and scholars to the digital versions. Plus, it could avoid scanning costs, which some estimate can be as much as $35 a book....

The station also provides streaming audio at the KPCC Web site.

If so, drop me an e-mail (volokh at law.ucla.edu) or call me (310-206-3926). Quite a few of our graduates go into clerking two, three, or more years after graduating, and we'd love to help. We'll give you advice on whether to do it, on where to apply, and on whom to ask for letters of recommendation; we'll help get you back in touch with your recommenders; we'll even ghost-write your writing sample and take the interview for you OK, we won't do that, but we'll do a lot to help.

I'm the chair of the Clerkship Committee this year, but I'm happy to help with such matters any year, as is the fabulous Malini Nangia at Career Services. Helping people get clerkships is a joint faculty-administration endeavor, and both the faculty and the administration are committed to it and work hard at it. So if you're interested, or even interested in finding out whether you should be interested, please let me know!

"Add" is an example of a word that's 2/3 composed of one letter. "Lull" is 3/4 composed of one letter. But this is easy enough with short words ("I" is 100% one letter!). What words can you think of that are 6 letters long but are more than 50% one letter? 7 letters? 8 letters? Words with internal special characters (hyphens or apostrophes) are fine, and the special characters don't count towards the word length.

I include some of my own answers below; post yours in the comments, if they yield results that are better than mine, and than the others you see in the comments. If you think someone's answers (including mine) are incorrect, please check the usual sources before so asserting.

The Daily Telegraph (Sydney)'s article about Mel Gibson speaks a lot about how Gibson's anti-Semitic tirade might cause him trouble "in a Hollywood dominated by powerful Jews." This seems to me quite fair; I'm not positive what share of the power in Hollywood is wielded by Jews, but plenty of the top players are indeed Jewish (surely at quite a disproportionate level to the 2% of the U.S. working population that's Jewish), and I would think that they are indeed reluctant to do business with people who say anti-Semitic things. But isn't it a bit odd just how the issue is framed not just as powerful Jews vs. people who engage in drunken anti-Semitic tirades, but as powerful Jews vs. man of iron-clas convictions? Here are some excerpts (emphasis added):

Mel Gibson's anti-Semitic remarks could have repercussions in a Hollywood dominated by powerful Jews.

Passionate and provocative, Mel Gibson has always courted controversy, thanks largely to his iron-clad convictions.

In Hollywood alone, where his voice has remained relatively uncensored, the movie star-turned producer regularly chomped on the gigantic hand that fed him....

Making anti-Semitic remarks in a movie land controlled by powerful Jews is not the most discerning thing for an actor to do.

Then again, it is nothing abnormal for Gibson, who regularly faces the ire of Jews for his statements and stances....

And one cannot forget arguably the greatest director the industry has produced, Steven Spielberg. Another famed Jew.

And it appears Gibson is not afraid of upsetting any of them.... Gibson's saving grace may be his newfound individuality. ...

[T]hanks to the success of [Passion of the Christ], he may never need to feed from Hollywood's hand again.

That passionate and provocative man of iron-clad convictions, whose voice has remained relatively uncensored: He faces the ire of Jews for his statements and stances, but he isn't afraid of upsetting any of them, especially since now he doesn't need to feed from Hollywood's hand. Doesn't that seem like an odd tone for an article that comes not in the wake of some principled disagreement about artistic matters, or even in the wake of the controversy about Passion of the Christ, but in the wake of a drunken rant about "fucking Jews"?

In any case, please read the whole thing — perhaps I've unduly focused on the excerpts I give, and you'll come to a different conclusion when you read the item.

Thanks to my colleague Mark Greenberg for pointing me to this article.

When a professor is invited to give a talk somewhere (especially out of town), he's often given an honorarium, in addition to having his expenses paid. Naturally, the practice as well as the amount varies, likely from field to field and institution to institution. Nonetheless, it's a common enough practice.

One doesn't need to be a great economist to recognize that this increases recipients' willingness to give talks, especially when it involves a good deal of travel. Yet when I first went into teaching, and for several years afterwards, I thought that this effect wouldn't be that great. We're in this field to spread our ideas, after all, and giving talks is a good way of doing that; what's more, many people, myself included, find it to be a good deal of fun (and, sometimes, something of an honor). It's also a good way to get to know faculty members at other schools, to get good ideas from questioners and commentators (espeically when the talk is at a faculty workshop), and in many instances to visit friends in town, though of course that depends on the town. What's more, while I'm not wild about spending time in crowded airports and airplanes, I find I can get a good amount of work done when traveling.

Having small kids, though, exposed for me an interesting economic twist on the matter: The pleasure of spreading ideas, and the honor of being a featured speaker at a high-profile event, are valuable, but they're valuable to the invitee. The costs of the trip, though, are often imposed on the invitee's spouse, who has to mind the children alone.

Naturally, we can assume that the spouses love one another, and derive at least some joy from knowing that the other is doing something fun, and some unhappiness from knowing that the other is being stuck with the kids. Still, "Honey, I'd like to go out of town for a few days; can you mind the kids? It'll be a great way for me to spread my ideas, I'll enjoy giving the talk, and the invitation is something of an honor" is a harder thing to say than "Honey, I'd like to go out of town for a few days to give a talk, and they'll be paying me $X,000." So even if an honorarium's marginal value to the speaker is not that significant, the honorarium's marginal value to the speaker's spouse may be the deciding factor.

The Seattle Post-Intelligencer reports:

Naveed Haq, now widely portrayed as a Muslim American so angry at Israel that he shot up a Jewish charity in Seattle, had recently converted to Christianity.

Recall that Haq is reported to have said, "I am a Muslim American, angry at Israel," before shooting.

The following paragraph suggests that a possible explanation -- he converted, but then began to view himself as a Muslim again: "Haq, 30, told a ministry leader that he saw too much anger in Islam and wanted to find a new beginning in Christianity. He converted to Christianity, but, as with many other endeavors in his life, drifted away from the faith."

The rest of the story discusses Haq's life, and suggests, in my view plausibly, that the shooting was triggered by personal problems, rather than by a coherent longstanding ideology of anti-Semitic murder. Yet my guess is that ideology can't be irrelevant here. Some people, when they have serious problems, drink. Some commit suicide (unfortunate, but still better than murder). Some decide to kill, and in particular to kill members of certain groups; and that seems like a pretty clearly ideology-driven choice, and reason to see what we can do about fighting such ideologies.

One more paragraph, for an extra ecumenical twist:

A neighbor of Haq's parents told the Tri-City Herald that Haq expressed anger at Jews, having convinced himself that the Jewish community controls the nation's media and economic system. The neighbor, Caleb Hales, also said Haq expressed an interest in the Mormon faith.

Since the worst that I've heard about Mormon-Jewish relations is that many Jews (not including me) are upset at Mormons' attempts to posthumously baptize Holocaust victims, I can only wish that the interest had blossomed into reality.

A comment raises a great question: In many states, criminal cases are styled People v. X. In some, they are State v. X, and in some they are Commonwealth v. X. But until 1807, in Pennsylvania they were Respublica v. X. What happened in 1807 to change that, and why? I'd love to know.

I thought it was worth passing it along, both for the interesting language and as evidence that there is nothing new under the sun. It's from Pennsylvania Supreme Court Justice M'Kean, addressing the jury in a murder case (Respublica v. Mulatto Bob, 4 U.S. 145, 147 (Penn. 1795)) -- at the time, it was commonplace for judges to express their view of the evidence to the jury, and here the Chief Justice's view was not on the defendant's side:

Tenderness and mercy are amiable qualities of the mind; but if they are exercised and indulged beyond the control of reason, and the limits of justice, for the sake of individuals, the peace, order, and happiness of society, will inevitably be impaired and endangered. As far as respects the prisoner, I lament the tendency of these observations, but as far as respects the public, I have felt it a sacred duty to submit them to your consideration.

"Verdict, guilty," in case you were curious.

Updating This Oldie But Goodie:
A schoolteacher asks her students to identify various quotes, by author and year.
"We hold these truths to be self-evident ...," she says.
"Thomas Jefferson, 1776!," shouts out little Moishe.
"Very good!," she says. "Now, government of the people, by the people, for the people ...."
"Abraham Lincoln, 1863!," shouts out little Shmuel.
"Very good!," the teacher says. "Now, one small step for man, one giant leap ...."
"Neil Armstrong, 1969!," says Moishe.
A voice from the back of the room mutters, "Fucking Jews."
"WHO SAID THAT?," bellows the teacher.
"Mel Gibson, 2006!," says Shmuel.

The last few posts reminded me of two incidents in 1993-94 (which I also blogged about back in 2002) in which people complained about my using the term "handicapped," rather than "disabled." "Handicapped," they pointed out, comes from "cap in hand," referring to handicapped people begging with their caps in their hands. (A NEXIS search reveals several newspaper stories in which other people also make this claim.)

Actually, it comes from "hand in cap," a betting game (see, e.g., the New Shorter Oxford, but I've found the same derivation in other sources); from there it evolved into handicaps as burdens that one party labors under in a game (as in golf or horse racing); and from there it apparently evolved into burdens that people labor under as a result of cruel fate. People are getting offended -- and then trying to use that offense to change others' speech -- based on sheer myth.

A comment on the "tar baby" thread referred to the claim that "picnic" is offensive because it refers to a lynching, the theory being that they were referred to as "pick nigs" or some such. The most prominent media source I could find that described such a complaint was this, from Andrew Brownstein, Albany Times Union, Apr. 18, 2000 (though the commenter reports that he too had been admonished about using the word):

To many, the word picnic conjures images of romance, of leisurely days in the park with cheese and a bottle of wine.

But for 40 University at Albany students, it harks back to an ugly chapter in American history -- when picnic, they alleged, meant a racist lynching....

Zaheer Mustafa, a student who serves as affirmative action director for the Student Assembly, issued the warning despite learning that the word had a harmless French derivation. It stems from the 17th-century pique-nique and referred to a fashionable type of social entertainment in which each person who attended brought a share of the food.

"My job is to make sure people from underrepresented groups are heard," Mustafa said. "Whether the claims are true or not, the point is the word offended."

He said he received 40 complaints about the issue last week, most of them from black students, which he called "unusual for such an apathetic campus." ...

Indeed, neither the current meaning nor the derivation of the word is related to lynchings; nor have I seen any evidence that the word was ever actually used in the "pick nig" sense. I'm not sure what Mr. Mustafa's job was, but I had thought that a university's job is to make sure that people from all groups, underrepresented and otherwise, are educated, and that their erroneous beliefs are corrected rather than being catered to.

Massachusetts Governor Mitt Romney has gotten into trouble for referring to the Big Dig as a "tar baby": "'The best thing politically would be to stay as far away from that tar baby as I can," he told a crowd of about 100 supporters in Ames, Iowa."

Black leaders were outraged at his use of the term, which dates to the 19th century Uncle Remus stories by journalist Joel Chandler Harris. The term refers to a doll made of tar that traps Br'er Rabbit, the main characters in the series of stories. It has come to be known as a way of describing a sticky mess — and has been used as a derogatory term for a black person.

"Tar baby is a totally inappropriate phrase in the 21st century," said Larry Jones, a black Republican and civil rights activist.

As a practical matter, politicians may be well advised to stay away from words or phrases that may be seen by some — whether rightly or wrongly — as offensive. But it seems to me that the rest of us, regardless of our race, have no legitimate grounds for complaining about statements like Romney's.

"Tar baby" is one of many words that has a standard and common meaning that is not pejorative, and that isn't even derived from a pejorative concept or strengthened by its association with a pejorative concept, but at the same time has a completely different meaning than is derogatory. Using it in a context where there's no reason to think the speaker is saying something pejorative (such as this context) is no more offensive than saying "a chink in his armor," "spic and span," or "nip it in the bud" where there's no reason to think the speaker is trying to insult the Chinese, Hispanics, or the Japanese.

Conversely, it seems to me that if you complain about Romney's use of "tar baby," you must equally condemn someone who innocently says "nip it in the bud." Both "tar baby" and "nip" can be and have been used as pejoratives; "nip" is, I suspect, even more broadly known as a pejorative than "tar baby" (Romney said he was unaware of the pejorative meaning, which seems to me plausible). Both are being used without any such intention. Someone who is actually trying to figure out what the speaker means would clearly and quickly grasp that the speaker is using the term with the innocent meaning. It seems to me that either you must condemn both (and the other examples) as "totally inappropriate," or, in my view the better position, avoid taking offense where none was intended.

Thanks to Richard Graves for the pointer.

That's how Judge Gould, concurring in the denial of rehearing en banc in Harper v. Poway Unified School Dist., describes a T-shirt that reads "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality Is Shameful."

I would surely not endorse not endorse the sentiments on the T-shirt; and such sentiments may indeed sometimes flow from "hate," whether of the "hate the sin, love the sinner" variety or of the "hate the sinner just as much as the sin" flavor. Yet if the label is apt for a T-shirt in a high school, it would apply pretty much as well to these sentiments everywhere. (The speech may be easier for offended people to avoid — or to deal with — in other contexts, but if it's "hate speech" it would still be "hate[ful]" even in those contexts.) And it could easily apply to any criticisms of homosexuality, whether or not they use the term "shameful," so long as they (in Judge Gould's words) "misusing biblical text to hold gay students to scorn" or presumably use other arguments for why homosexuality is improper.

This is all the more evidence, it seems to me, to reject the often-urged "hate speech" exception to the First Amendment, at least if one values debate about political and religious matters rather than coercive imposition of the government's preferred views. Judge Gould's opinion at least offers hope that he would limit the exception to speech in government-run K-12 schools. The calls for a "hate speech" First Amendment exception have generally not been so limited.

Judge O'Scannlain, joined by Judges Kleinfeld, Tallman, Bybee, and Bea, dissent from the denial of rehearing en banc, largely endorsing Judge Kozinski's dissent from the panel opinion. They are also kind enough to cite my post on the subject, which generally takes a view very much closer to the dissent's than to the majority's.

Many thanks to Charles Morse and Kimberly Kralowec for the pointer.

I was looking for a humorous legal poem I vaguely recalled, so I borrowed some legal poetry books from the library; and by sheer accident, I ran across a set of serious poems about war, including in one of the books chiefly because they appear to be by English lawyers. Here's one I particularly liked, presumably written around World War II (or at least about it):

TRUMPETS AGAIN

Trumpets again too soon have pealed
   For us who dreamed release from war.
   Asking that courage once before
Our fathers showed on Flanders field.

Not ours to judge their ill success,
   Who won the war and lost the peace.
   Enough if when our tired guns cease,
They deem our bravery not less.

No Lord of Hosts shall bear our trust,
   Who face all fates with open eyes.
   Straight home the unswerving bullet flies,
Unschooled to know whose cause is just.

No Angel's wings shall shield from harm,
   Nor turn the swift resistless blow.
   Stands only 'gainst a cunning foe
The cunning of our own right arm.

It may be, howsoever fain,
   We shall not hold the last redoubt;
   Stern steel shall wear our ardour out,
And all our soldiery be vain.

It may be when the fight is done,
   And peace war's retinue reprieves,
   We shall march home with laurel leaves,
As fruitless as our fathers won.

We ask nor pity nor applause.
   Say only "In the narrow pass
   Close comrades with Leonidas,
They broke a lance in freedom's cause.

-- Michael Albery

I just ran across this item on NEXIS, from the October 15, 1943 New York Times:

President Roosevelt announced today that the Allied forces are withdrawing from Italy. "Regrettably, our forces have now killed over 24,000 Italians, both soldiers and civilians who died in attacks on military targets," the President said in a prepared statement. "This puts Italian deaths at ten times our deaths at Pearl Harbor — and the Italians weren't even the attackers there, though they declared war on us after the Japanese attack. More importantly, while no exact figures are available, we suspect that Italian civilian deaths caused by our invasion are now roughly ten times the number of our civilian deaths at Pearl Harbor.

"We feel that continuing the invasion of Italy, which will likely incidentally kill more civilians, will cause harm disproportional to the harm Italy's allies have inflicted on us. We therefore feel morally obligated to declare a ceasefire. We are sure that the Italians have learned their lesson and that they won't engage in unjustified attacks again; and in any event, international law and simple morality require us to desist. Only an evil Zionist nation would ever retaliate against an act of war in a way that creates civilian casualties disproportional to those that were inflicted on it.

"Naturally, if the Italian military had had the foresight to place its forces chiefly interspersed with the civilian population, we would have had to stop even earlier, because we would have long since passed the acceptably proportional level of incidental civilian casualties. And of course if we find that we have killed a comparable number of Germans and Japanese civilians, we will promptly cease fire as well. We're sure that the world will thank us for our humaneness."

I did not know that!

A teaser from the L.A. Times front page:

Well, I suppose all of life is a mystery in some ways, so why not this? Patterico explains. (Thanks to InstaPundit for the pointer.)

P.S.: The word "mystery" (not the murder) reminds me of this substantively entirely unrelated joke:

A young Catholic boy is going through confirmation; unfortunately, he has something of a speech impediment, which is made worse by the pressure of being the center of attention. The priest asks him, "What is the Holy Trinity?"

"The father, the thon, and the holy thpiwit, thwee perthonth in one," the boy says.

"What did you say?"

"The father, the thon, and the holy thpiwit, thwee perthonth in one," the boy says.

"I'm sorry, could you repeat that, please; I still don't understand."

"You're not thuppothed to underthtand — it'th a mythewy!"