I include all 44 states' provisions, dating from 1776 to 1998, sorted by state, categorized by type, and sorted by date, in this short article that's forthcoming in the Texas Review of Law & Politics. It's mostly reference material with little analysis, but it hadn't been assembled before in an Official Source. But since the two Web pages that I put together on this have been cited in several law review articles, I figured that they were useful — and that publishing them in a law review could get still more people to notice them and use them.

The Court just agreed to hear one Ninth Circuit high school student free speech case, Morse v. Frederick ("Bong Hits 4 Jesus"). What does this mean for the other Ninth Circuit high school student free speech case, Harper v. Poway Unified School Dist. ("Homosexuality is Shameful")?

I think Harper will likely be held until the Court decides Morse, and if there's some uncertainty about whether the Harper Ninth Circuit decision is right given the Court's ruling in Morse, the Court will then "GVR" -- Grant, Vacate, and Remand for reconsideration in light of the new precedent. Last Monday, the Court denied "[t]he motion of petitioners to expedite consideration of the petition for a writ of certiorari," but I suspect this just reflects the Court's decision to actually slow down consideration of the petition until after Morse is decided.

SCOTUSblog reports. (Recall that it takes four Justices' votes to agree to hear a case.)

My post below about yesterday's Washington Supreme Court case reminded me that a week before the Kentucky Supreme Court expressed the same view:

Moreover, the statute provides that personal property is merely subject to forfeiture, meaning that the Commonwealth's argument in favor of automatic forfeiture [of the firearms] cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law. [Footnote: Ky. Const. §§ 1(7), 11; U.S. Const. amend. II, V, and XIV.]

Brewer v. Commonwealth, 2006 WL 3386645, *3 & n.5 (Nov. 22, 2006).

I should note that the dominant view in state courts remains that the Second Amendment is not applicable to the states, whether or not it secures an individual right. See Brewer v. State, 2006 WL 3345162, *2 (Ga. Nov. 20, 2006). The Court had indeed so held in the late 1800s, at a time when it was holding that most of the other Bill of Rights provisions don't apply to the states, even via the Bill of Rights. The leading case on this is United States v. Cruikshank, a 1875 case that held that neither the First nor the Second Amendments applied to the states; the Court reversed course on this in the 1920s and 1930s as to the First Amendment, but it hasn't revisited this question since 1900 as to the Second Amendment.

So says the Washington Supreme Court, State v. Williams, 2006 WL 3438188 (decided yesterday), and uses this as a justification for interpreting a state ban on possessing short-barreled shotguns as requiring knowledge that the shotgun was indeed shorter than the statutory limit. Here's the relevant excerpt from the three-Justice plurality:

[W]e are ... concerned that possessing a firearm can be innocent conduct. Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, § 24. A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches. RCW 9.41.190 precludes possession of a short-barreled shotgun. Moreover, the statute also criminalizes possession of a short-barreled rifle and a machine gun. The factor concerned with innocent conduct is particularly important in the case of a machine gun, which can be altered in ways not easily observable. If strict liability is imposed, a person could innocently come into the possession of a shotgun, rifle, or weapon meeting the definition of a machine gun but then be subject to imprisonment, despite ignorance of the gun's characteristics, if the barrel turns out to be shorter than allowed by law or the weapon has been altered, making it a machine gun. The legislature likely did not intend to imprison persons for such seemingly innocent conduct.

The four-Justice dissent agrees entirely on this point:

These holdings involve a particularly sensitive and limited area of regulation, since both the United States and Washington State Constitutions protect a "right ... to bear arms ...." U.S. Const. amend. II; Wash. Const. art. I, § 24.... The majority's recognition that the State must prove a defendant knows the characteristics that make a firearm illegal means that knowledge of the characteristics that make the firearm illegal is an essential element of the crime....

The plurality and the dissent disagree on whether the failure to instruct the jury about the defendant's required mental state was harmless in this case, but they agree that the Second Amendment protects the right to bear arms, and that this counsels against reading the statute as imposing strict liability.

As you can see, neither opinion explained much about why it was accepting the individual rights view of the Second Amendment, but just cited the Second Amendment and the Washington right-to-bear-arms provision.

UPDATE: I originally quoted the plurality without noting that it was a plurality, and didn't mention the dissent; my mistake — thanks to commenter marksleen for pointing out. I've corrected the post accordingly, and the bottom-line remains the same: A majority of the Washington Supreme Court treated the Second Amendment as securing an individual right to bear arms.

Here's what Iranian Grand Ayatollah Mohammed Fazel Lankarani — "one of the dozen or so Grand Ayatollahs in Iran, who has a large following" — wrote on Sept. 16, 2006, responding to the Pope's speech (the one in which the Pope quoted a Byzantine emperor who wrote, "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached"):

We can easily prove for [the Pope] that Islam is the religion of peace and mercy. One of Quran's most glorious verses is the verse 12 of Al-An'am chapter which says[, ']He has ordained mercy on Himself[']. Pope Benedict XVI should spend several years to understand this verse.

His statements about Jihad, holy war, emanate from his lack of knowledge and understanding from the reality of Jihad. Obviously he has erroneously taken the Islamic Jihad for what the US government has created and named as 'terrorism'. We wonder why he who is considering himself leader of a divine religion denies God's will outright under the pretext of intellect and logic.

Now here's what Grand Ayatollah Lankarani did a few days ago, with regard to a writer who reprinted the Mohammed cartoons; I quote the BBC account:

One of Iran's most senior clergymen [Grand Ayatollah Mohammed Fazel Lankarani] has issued a fatwa on an Azeri writer said to have insulted the Prophet Muhammad.

The call on Muslims to murder Rafiq Tagi, who writes for Azerbaijan's Senet newspaper, echoes the Iranian fatwa against Indian writer Salman Rushdie....

The Iranian media is reporting that Grand Ayatollah Lankarani's followers inside the republic of Azerbaijan wrote to him asking for advice about what they called "the apostate writer".

They accuse the Azeri writer of portraying Christianity as superior to Islam and Europe as superior to the Middle East.

They allege that he has ridiculed all the sanctities of Islam and done it knowingly, fully aware of the consequences of his action....

I'm sure there are many Muslims whose Islam is a religion of peace and mercy. But I feel comfortable saying that Grand Ayatollah Lankarani's version of Islam is not.

I thank Ali Eteraz, who is organizing a Muslim remonstrance against Lankarani's fatwa, and to InstaPundit, who linked to Eteraz's work, for the pointers to the Grand Ayatollah's statements.

UPDATE: I initially thought that the fatwa was issued because of several actions on the writer's part, but rereading the article makes me doubt that, and suspect that it might have been based just on reprinting the Mohammad cartoons; I've therefore deleted the "among other things" before "reprinted the Mohammed cartoons." If any of you have more precise information on this, please let me know.

I've been looking at some 1800s American legal sources, and I noticed that many still used "defence" well into the second half of the century. At some point, though, "defense" became the universal American term. Do any of you know why the "-ce" shifted to an "-se"? Did the "-our" / "-or" shift and the dropping of "-me" on "programme" and the like happen for the same reason? If the latter shift was part of a spelling simplification movement, why the "-ce" / "-se" change, which isn't really a simplification?

a leading Religion Clauses public interest firm that is usually seen as coming from the Right, though they represent a wide range of litigants:

"Requiring somebody to take an oath of office on a religious text that's not his" violates the Constitution, said Kevin Hasson, president of The Becket Fund for Religious Liberty.

Andrea Stone, USA Today, Dec. 1, 2006.

A commenter on the "Creat[ing] an Atmosphere Where Students Do Not Feel Represented" thread asks, "Where's the ACLU? Right, nowhere." He then goes on to say, "Where's the ACLU? Where are the liberals? They are the ones ATTACKING this man."

Well, let's keep this in perspective. First, the ACLU's litigation arm can't do anything about this — we're talking here about a proposal to enact a student government rule. Once it's enacted, it might be challengeable, though perhaps even then the challenge would have to wait until the rule is enforced. But when it's just being talked about, neither the ACLU nor anyone else can sue.

Second, recall that I only got wind of this controversy at Boise State because Clayton Cramer e-mailed me about it. It's at least within the realm of possibility, it seems to me, that Cramer didn't e-mail the ACLU, that the ACLU's staff doesn't read Cramer's blog, and that the ACLU hadn't heard of this through other sources. (My NEXIS search for (sawmiller or "feel represented") and (bsu or boise state) revealed no newspaper references.) Even if the ACLU had heard about this, it might have legitimately concluded that it has other more pressing matters on its plate — but for now, we don't even know that the ACLU people had even heard of this matter.

Third, there's certainly no evidence that the ACLU is one of the "ones attacking this man," which is what the comment seemed to me to imply (though I suppose it's possible that the "They" refers back only to "liberals" and not both to "liberals" and the "ACLU"). And to the extent that the assertion is just a loose way of saying that the ACLU supports campus speech code, that assertion is mistaken. As I noted before, the ACLU has generally opposed campus speech code. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column — and Hentoff has long been a vocal opponent of speech codes — the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.

In Newsom v. Albemarle County School Bd., a 2003 court of appeals case, the ACLU backed a high school student's right to wear an NRA T-shirt (surely a "non-liberal voice[]"). For another recent example of an ACLU chapter's interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU's 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU's anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I'm told, in the California chapters).

I've criticized the ACLU in the past on various matters, and I'm sure I will again; I think they're mistaken on many matters. But unfounded criticism is both itself wrong, and undermines the well-founded kind.

UPDATE: (1) Just to make explicit what I thought was implicit in "Second," but on reflection might not be clear. The ACLU doesn't just litigate but also sometimes speaks out in other ways; "First" is intended to explain why it can't litigate here, and "Second" notes one reason why it might not have spoken up.

(2) Commenter Jonathan Sawmiller -- presumably the fellow involved in the original story -- reports that "the ASBSU Ways and Means Committee indefinitely tabled the proposed Senate Bill #10," so that the restriction being discussed here "shouldn't be appearing in ASBSU code anytime soon."

From a Washington Foreign Press Center briefing Donald R. Kennon, Chief Historian at the United States Capitol Historical Society:

There's an interesting thing about John Adams and John Quincy Adams -- they were both very religious men, and John Quincy Adams were so religious that he is one of probably only one or two American presidents who did not take the Oath of Allegiance on a Bible. Now, it's kind of ironic that John Quincy Adams, being such a religious man, would not have used the Bible, but he said that he thought the Bible should be reserved for strictly religious purposes. So he took the Oath of Office on a book of laws, the Constitution and American laws. That's really what he was swearing allegiance to was the Constitution, so he didn't use the Bible.

Thanks to reader Pennywit for the pointer.

Dennis Prager, another guest, and I are scheduled to be on CNN's Paula Zahn Show tonight some time starting around 8:20 Eastern, to talk about oaths of office and religion — or so I'm told; television appearances sometimes get canceled at the last moment.

The Boise State Arbiter reports:

Senate Bill number 10, titled “Amendment to Article X ASBSU [Associated Students of Boise State University = the BSU Student Government] Senate Rules of Procedures,” was sent to the Internal Committee of Ways and Means. Sen. Cyndi Blue, Sen. Kayla Davis, Sen. Mark Getecha and Sen. Amy Ortmann sponsor it.

Sen. Blue said the bill is a response to how ASBSU is perceived on campus. She said the issue of a conflict of interest has come up continually.

The purpose of Bill Number 10 is to “significantly reduce the confusion caused by having Senators work, intern or be actively involved in organizations or student newspapers.” The amendment to Article 10 of the ASBSU constitution is purposed to add another section.

It states that “a senator of ASBSU may not work, intern, or be actively involved in organizations or student newspapers that create an atmosphere where students do not feel represented.”

For more context, see this Boise Weekly article. According to it, the bill's advocates seem to be particularly irate about student senator Jonathon Sawmiller, who heads the campus College Republicans chapter and writes for the Arbiter. He "first made waves in April, when he wrote an editorial ... [condemning the Latino group MECha by citing its] origins as a militant separatist group in the 1960s, calling the group 'racist Neo-Nazis,' and criticiz[ing] the university for 'funding organizations that call for the overthrow of America.'" He then wrote an Arbiter op-ed called "Protect Marriage From Violence--Vote Yes on HJR2," supporting the proposed anti-same-sex-union state constitutional amendment, "and cit[ing] statistics claiming that partners in same-sex relationships are more prone to domestic abuse, mental illness and suicide."

Then the College Republicans put up a poster, "which wasn't approved by ASBSU, as is required for student organizations," "to support 'Freedom Week,' a commemoration of the fall of the Berlin Wall sponsored by a national conservative student organization."

The poster included drawings of Che Guevara and Ronald Reagan under the title, "Who is the real revolutionary?" It labeled Guevara a "murderer," saying "his ideology murdered 100,000,000 people." Reagan, on the other hand, is identified as a "liberator," with the caption, "His ideology freed 425,574,817 people."

In response, students from BGLAD, the Boise State Cultural Center and other organizations again packed an ASBSU meeting, hoping to combat what was again being called "hate" from the conservative student. Later in the same week, a new unauthorized poster--this time, from an anonymous source--was posted around campus. On this poster, under the title "Abuse of Power," were two pictures. One showed Adolf Hitler, with the quotes "dirty Jews" and "His ideology cost 6 million lives." The other showed Sawmiller in his military fatigues, with the quotes, "Dirty illegal alien," and, "What will his ideology cost our students at Boise State?"

(Sawmiller had been quoted as using the term "dirty illegal aliens" in his April Arbiter editorial, although the opinion editor admitted in a correction that a staff member had added the term "dirty" independent of the author.) ...

ASBSU president Wyatt Parke decided to use his veto power to cancel Freedom Week, telling The Arbiter he "didn't feel like I could endorse a week that had gone so awry." ...

[Sawmiller's] opponents remain steadfast in their belief that his written opinions stretch the boundary between protected free speech and inflammatory hate speech. Several of Sawmiller's fellow senators recently put this sentiment into print: They drafted a bill that, if passed, would dictate that "a senator of ASBSU may not work, intern, or be actively involved in organizations or student newspapers that create an atmosphere where students do not feel represented."

Thanks to Clayton Cramer for the pointer.

UPDATE: Commenter Jonathan Sawmiller reports that "the ASBSU Ways and Means Committee indefinitely tabled the proposed Senate Bill #10, so those words shouldn't be appearing in ASBSU code anytime soon."

The AP reports:

In a novel effort targeting the lifestyle of North Korea's eccentric president, the Bush administration wants to make it tougher for him to buy iPods, plasma televisions, Segway electric scooters and more.

It is Washington's first-ever attempt to use trade penalties as a way of personally aggravating a foreign leader. They target items believed to be favored by Kim Jong Il or presented by him as gifts to the roughly 600 loyalist families who run the communist government....

The ban would extend even to musical instruments and sports equipment. The 5-foot-3 Kim is an enthusiastic basketball fan; Secretary of State Madeleine Albright presented him with a ball signed by Michael Jordan during a rare diplomatic trip in 2000. Kim's former secretary, widely believed to be his new wife, studied piano at North Korea's Pyongyang University of Music and Dance....

Experts said the U.S. luxury sanctions would be the first ever to curtail a specific category of goods not associated with military buildups or weapons designs -- and the first tailored to annoy a foreign leader. They acknowledge that enforcing the ban on black-market trading would be difficult.

"He's got folks who can move around nuclear weapons. If he tells these guys to get him a case of Scotch, they're going to pull it off," said James A. Lewis, a former State Department official who worked on arms controls. "Unless it's too large to fit into the cargo hold of a commercial aircraft, it's going to be tough to restrain him." ...

A very interesting exchange between Seventh Circuit Judges Posner and Easterbrook in the majority, and Judge Evans in the dissent, about what courts should do about certain kinds of procedural errors by lawyers. Beyond the obvious schadenfreude appeal of such things, and the case's utility as a reminder to lawyers to be careful, there's an important question here about what courts should do in such situations; fortunately, both opinions are thoughtful and eminently readable.

POSNER, Circuit Judge [joined by EASTERBROOK, Circuit Judge].... Before [reaching the merits], we remark the confusion in the parties’ briefs concerning the elements of the diversity jurisdiction. The jurisdictional statement in the appellants’ brief states that the federal district court’s jurisdiction was based on diversity of citizenship “and the jurisdictional amount of $75,000.” In fact diversity jurisdiction depends on the jurisdictional amount’s exceeding $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a).

(Show the rest of the opinion excerpts.)

The jurisdictional statement goes on to recite that the plaintiffs are citizens of Wisconsin (a proper jurisdictional allegation since the plaintiffs are natural persons) and that defendant Mazda “is a foreign corporation incorporated under the laws of the State of California.” A corporation, however, has two places of citizenship: where it is incorporated, and where it has its principal place of business. 28 U.S.C. § 1332(c)(1). If Mazda’s principal place of business is in Wisconsin, diversity is destroyed.

To ensure that litigants in diversity cases attend carefully to the dual citizenship of corporations, our Circuit Rule 28(a)(1) requires the jurisdictional statement in a diversity case to specify both the state (or other jurisdiction) in which a corporate party is incorporated and the state in which its principal place of business is located. The appellants’ jurisdictional statement violates our rule but more remarkably it does not so much as mention the second defendant, the Tokio Marine & Fire Insurance Company.

The appellees’ jurisdictional statement begins promisingly by stating that the appellants’ jurisdictional statement “is neither complete [n]or correct.” But neither, it turns out, is the appellees’. It does not mention the amount in controversy, erroneously alleged in the appellants’ statement; and concerning citizenship it violates Rule 28(a)(1) by stating that the appellees are “citizens of a different state” from the appellants, without indicating what state they are citizens of. It turns out that the insurance company is actually a citizen of a foreign country, so that the relevant provision of the diversity statute, unmentioned in either jurisdictional statement, is 28 U.S.C. § 1332(a)(2).

We asked the parties to submit supplemental jurisdictional statements. The appellants’ supplemental statement corrects the omission of Mazda’s principal place of business (also California), but blunders with respect to the insurance company by stating that it is “a corporation organized under the laws of Japan with a United States branch domiciled in the State of New York with its principal place of business located at 230 Park Ave, New York, NY 10169” (emphasis added). The location of a branch office is irrelevant to diversity jurisdiction. But reference to “domicile” and “principal place of business” naturally raises the question, unaddressed in the statement, whether this branch might be a corporation having its principal place of business in New York but incorporated elsewhere, such as Wisconsin.

We might have expected the blunder to be corrected by the major Chicago law firm representing the appellees. No such luck. Its supplemental jurisdictional statement repeats that the insurance company “is a foreign corporation organized under the laws of Japan with a U.S. Branch. The principal place of business of the U.S. Branch is New York, New York.” The fact that “Branch” is capitalized and its principal place of business alleged suggests that it might be a corporation, but at argument the appellees’ lawyer said no, it’s just a branch. When asked by one of the judges why then it was mentioned in the jurisdictional statement, the lawyer replied inconsequently that “with a U.S. Branch” is Japanese corporate lingo.

The appellees’ supplemental jurisdictional statement contains two further errors. It says that the amount in controversy “allegedly” exceeds $75,000. Actually, as we know, the amount in controversy in the appellants’ jurisdictional statement is $75,000, not $75,000 plus.

In addition, the use of the words “alleged” or “allegedly” in this connection is erroneous. The amount in controversy in a diversity case is the stakes that the plaintiff or defendant alleges, and provided the allegation is not false to a “legal certainty” the amount is taken as true for purposes of jurisdiction. E.g., Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 276-77 (1977). In other words, “When the complaint includes a number, it controls unless [the plaintiff’s] recovering that amount [in the litigation] would be legally impossible.” Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815-16 (7th Cir. 2006). The appellees’ use of “allegedly” suggests an inclination to question whether the amount in controversy exceeds the jurisdictional minimum, but they do not pursue the point.

We are satisfied that the parties’ errors in regard to the amount in controversy are harmless, given the severity of the injuries alleged. [Details omitted. -EV]

But the lawyers have wasted our time as well as their own and (depending on the fee arrangements) their clients’ money. We have been plagued by the carelessness of a number of the lawyers practicing before the courts of this circuit with regard to the required contents of jurisdictional statements in diversity cases. See, e.g., BondPro Corp. v. Siemens Power Generation, Inc., No. 05-3077, 2006 WL 2972108, at *1 (7th Cir. Oct. 19, 2006) (per curiam), and cases cited there; Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006); Wild v. Subscription Plus, Inc., 292 F.3d 526, 528 (7th Cir. 2002). It is time, as we noted in BondPro, that this malpractice stopped. We direct the parties to show cause within 10 days why counsel should not be sanctioned for violating Rule 28(a)(1) and mistaking the requirements of diversity jurisdiction. We ask them to consider specifically the appropriateness, as a sanction, of their being compelled to attend a continuing legal education class in federal jurisdiction. E.g., In re Maurice, 69 F.3d 830, 832, 834 (7th Cir. 1995); DiPaolo v. Moran, 407 F.3d 140, 144, 146 (3d Cir. 2005); In re Dragoo, 186 F.3d 614, 615-16 (5th Cir. 1999).

Are we being fusspots and nitpickers in trying (so far with limited success) to enforce rules designed to ensure that federal courts do not exceed the limits that the Constitution and federal statutes impose on their jurisdiction? Does it really matter if federal courts decide on the merits cases that they are not actually authorized to decide?

The sky will not fall if federal courts occasionally stray outside the proper bounds. But the fact that limits on subject-matter jurisdiction are not waivable or forfeitable—that federal courts are required to police their jurisdiction—imposes a duty of care that we are not at liberty to shirk. And since we are not investigative bodies, we need and must assure compliance with procedures designed to compel parties to federal litigation to assist us in keeping within bounds.

Hence Rule 28 and hence the responsibility of lawyers who practice in the federal courts, even if only occasionally, to familiarize themselves with the principles of federal jurisdiction. It would be delightful, but irresponsible in the extreme, for us to ignore the limits on our jurisdiction, forget the rules intended to prevent us from ignoring those limits, direct the Clerk of the court to tear out the parties’ jurisdictional statements before distributing the briefs to us, and jump directly to the merits of any case that the parties would like to litigate in federal court.... [Merits discussion omitted. -EV]

EVANS, Circuit Judge, concurring. I join the court’s opinion [as to the merits question]. But I decline to join the court’s stinging criticism of the attorneys regarding their less-than-perfect jurisdictional statements. Sure, the plaintiffs should have said the amount in controversy exceeds

$75,000, not that it is $75,000. And sure, both sides stumbled on their declarations regarding the dual citizenship of the corporate defendants. But, at best, these are low misdemeanors; yet the court treats them like felonies. I would not label these minor flaws as “blunders,” nor would I come close to saying this is “malpractice” which must be stopped. Also I would not issue an order to show cause, and I certainly would not suggest that an appropriate sanction might be to compel the lawyers’ attendance at “a continuing legal education class on federal jurisdiction.”

What happened in this case is not particularly unusual. The plaintiffs, represented by what appears to be a small law firm, filed this suit almost five years ago in state court where jurisdictional requirements are easily satisfied and rarely questioned. The defendants, represented by a “national law firm with lawyers in 27 offices coast-to-coast” (according to the firm’s Web site) removed the case to federal court.

That there is diversity jurisdiction has never been questioned by anyone, including at least two district court judges who issued written decisions as the case poked along for four years through discovery and several in-court proceedings. The plaintiffs then lose their case on summary judgment and file an appeal raising the issue that cuts to the very heart of their suit. Given this situation, when all eyes are really on the guts of the case, I think we should be more tolerant of the jurisdictional statement hiccups that have occurred here.

(Hide.)

On a completely unrelated note, let me remark the unusual use of the term "remark" in the first sentence quoted above. It's quite legitimate, even to a prescriptivist, but I don't recall ever having seen it.

A Seventh Circuit opinion remarks on what to call the country (which happens to be where I was born, though it wasn't an independent country back then):

There continues to be confusion over whether to use the article “the” in connection with “Ukraine.” In the briefs, Gutnik’s counsel uses “the Ukraine,” while the government uses “Ukraine.” Likewise, at joint remarks in January 2005, Vice President Cheney used “the Ukraine,” while President Yushchenko, the elected leader of the country, used “Ukraine.” See Press Release, Office of the Vice President, Vice President’s Remarks with Ukrainian President Yushchenko (Jan. 26, 2005) (Villa Decius, Krakow, Poland). We will use Ukraine, which is not only correct but is also preferred by Ukrainians themselves, see Associated Press, Terminology of Nationalism, N.Y. Times, Dec. 3, 1991, at A10, and is the grammatically consistent choice, see Andrew Gregorovich, Ukraine or “The Ukraine”?, FORUM Ukrainian Review No. 90, Spring/Summer 1994.

I say "The Ukraine," because that's how I learned it; I take it Cheney learned it this way, too. Interestingly, though Russian doesn't have articles such as "the," there's a similar controversy there — for most areas, you'd say something is in the area ("v Pol'she, v Angl'ii," "v" meaning "in"), but for the Ukraine, you'd say something is on it ("na Ukrain'e," "na" meaning "on"), or at least that's how you said it when I was growing up during the Soviet era. Nor was it just a country vs. area-in-a-country distinction; you'd say "v Litv'e," or "v B'elorussii," but "na Ukrain'e").

My sense is that this was because "Ukraina" wasn't just a place name, but also retained part of its non-place-name origins, in the sense of "borderland." It might also explain why Russians are quite comfortable with the "na Ukrain'e" / "the Ukraine" usage, and (as best I can tell) many Ukrainians prefer "v Ukrain'e" / "Ukraine" usage, which focuses more on the country as a country like any other rather than just the borderland of Greater Russia. I'll probably keep saying "the Ukraine," perhaps because I'm culturally much more Russian than Ukrainian (I'm still more American than Russian, but that's less relevant here), but my sense is that the tide is turning against it overtime, just as "the Lebanon" and "the Sudan" have in the past.

I often find that resumes of students who are looking for jobs as lawyers, judicial clerks, or summer associates note in passing that the person knows Microsoft Office Suite, WordPerfect, LEXIS and WESTLAW, or some such.

I've long thought this sort of entry is a (mild) minus rather than a plus. (1) While knowing these applications is indeed valuable, you're going to be hired for your legal knowledge and not your word processing skills or even your knowledge of LEXIS and WESTLAW. (2) Most applicants are expected to know these things, so if you don't mention them, no-one will assume that you somehow never learned them. (3) More importantly, drawing attention to these lower-status skills subtly draws attention away from your higher-status credentials. (I speak here of the way the world and its pecking orders actually work, not the way they should.)

Am I right, or is this just an idiosyncratic reaction of mine?

Just thought I'd note that apropos my response to Dennis Prager.

Prager wrote that "for all of American history, Jews elected to public office have taken their oath on the Bible, even though they do not believe in the New Testament," and I realize that a Justice isn't an elected official. Nonetheless, Justices and elected officials are bound by the same oath-or-affirmation provision of the Constitution, and all federal officeholders are equally protected by the Religious Test Clause.

Commenter Cato, on the oaths thread, insists that Carthage must be destroyed, and also writes:

What if your religious book upon which an oath is taken requires the oath taker to lie, at least in certain cases?

Certain pundits maintain that the Koran REQUIRES Muslims to lie to non-Muslims about their intentions, particularly the intention of imposing sharia law.

I can't speak to the relevant text of the Koran, or to what certain pundits mantain. But say that the Koran does indeed say so in the text.

The fact is that many ancient religious writings seem to on their face mandate various things that we'd find quite troubling, and that most modern adherents of the religion would find quite troubling. Consider Leviticus, which says that the following (among others) "shall be surely put to death": "[E]very one that curseth his father or his mother"; adulterers; male homosexuals; and "he that blasphemeth the name of the LORD." Should we disqualify Jews, as well as Christians who purport to still see the Old Testament as largely authoritative, from high government office, on the grounds that they seem committed to massive violations of the First and Eighth Amendments?

Of course not, because we in fact know that even quite devout Jews and Christians don't really read these provisions as in fact mandating the putting to death of people who do the prohibited things. They may have textual reasons for their beliefs or extratextual. But in any case, our experience tells us that looking in isolation at particular passages in a person's holy books -- or considering the practices of extremists who ostensibly belong to the same faith as the person -- gives us little information about the person's actual lived beliefs, and what the person is actually likely to do. It seems to me quite likely that precisely the same is true about Muslims.

If you have reason to think that a particular person is especially likely to lie, that's of course reason to doubt his word, or to vote against him. But looking at some passage in the Koran doesn't tell us much about this.

The Virginia Court of Appeals issued an opinion yesterday in Miller-Jenkins v. Miller-Jenkins, the case on which the Vermont Supreme Court ruled in August. Here's a brief summary of the facts from the Vermont Supreme Court opinion:

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.

Then:

(1) "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] ...."

(2) After Lisa eventually started denying Janet her visitation and contact rights, a Virginia court in which Lisa filed an action to establish IMJ's parentage backed her up, holding that "any claims of Janet to parental status were 'based on rights under Vermont's civil union laws that are null and void under Va. Code § 20-45.3,'" that Lisa was the "sole biological and natural parent," and that Janet had no "claims of parentage or visitation rights over" IMJ.

(3) The Vermont court, on the other hand, found Lisa guilty of contempt of court for violating the Vermont order, and refused to adhere to the Virginia order (which was issued after the initial Vermont order).

(4) The Vermont Supreme Court upheld the Vermont court's ruling.

Now,

(5) The Virginia Court of Appeals sided with the Vermont courts, and concluded that "the PKPA [Parental Kidnapping Prevention Act] prevented [the Virginia court's] exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court." It also agreed with the Vermont Supreme Court that the Defense of Marriage Act doesn't preclude the Vermont order:

DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ's custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers.

I criticize Dennis Prager's Tuesday column in today's National Review Online. Here's the introduction:

The U.S. Constitution is a multiculturalist document. Not in all senses, of course: It tries to forge a common national culture as well as tolerating other cultures. But it is indeed multiculturalist in important ways. We shouldn’t forget that when we’re tempted to categorically condemn supposedly multiculturalist changes to our constitutional practices.

Consider what Dennis Prager — whose work I often much like -— wrote in his most recent column:

Keith Ellison, D-Minn., the first Muslim elected to the United States Congress, has announced that he will not take his oath of office on the Bible, but on the bible of Islam, the Koran.

He should not be allowed to do so — not because of any American hostility to the Koran, but because the act undermines American civilization.

First, it is an act of hubris that perfectly exemplifies multiculturalist activism — my culture trumps America’s culture. What Ellison and his Muslim and leftist supporters are saying is that it is of no consequence what America holds as its holiest book; all that matters is what any individual holds to be his holiest book.

Forgive me, but America should not give a hoot what Keith Ellison’s favorite book is. Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don’t serve in Congress. In your personal life, we will fight for your right to prefer any other book. We will even fight for your right to publish cartoons mocking our Bible. But, Mr. Ellison, America, not you, decides on what book its public servants take their oath.

This argument both mistakes the purpose of the oath, and misunderstands the Constitution. In fact, it calls for the violation of some of the Constitution’s multiculturalist provisions....

To read the rest, go here.

Thanks to my UCLA colleague Stephen Bainbridge, who alerted me to Prager's column and who has written more along these lines.

from funding and space generally available to other student groups. The university student association vice-president for student services agrees; so does a student association vice-president at another Canadian school.

Anti-abortion speech, the theory goes, is "gender-discriminatory," and debate about abortion upsets some women because it "happen[s] in a space that they thought they were safe and protected, and that respected their rights and freedoms." So reports the A student newspaper at Carleton University in Ottawa:

Sparks flew during question period at a Nov. 21 Carleton University Students’ Association (CUSA) council meeting after a motion that would prevent pro-life groups from assembling on CUSA space was tabled.

The motion -— moved by Katy McIntyre, CUSA vice-president (student services), on behalf of the Womyn’s Centre -— would amend the campus discrimination policy to state that “no CUSA resources, space, recognition or funding be allocated for anti-choice purposes.” ...

According to McIntyre, anti-choice groups are gender-discriminatory and violate CUSA’s safe space practices.

The motion focuses on anti-choice groups because they aim to abolish freedom of choice by criminalizing abortion. McIntyre said this discriminates against women, and that it violates the Canadian Constitution by removing a woman’s right to “life, liberty and security” of person....

McIntyre said she received complaints after Lifeline organized an academic debate on whether or not elective abortion should be made illegal.

“[These women] were upset the debate was happening on campus in a space that they thought they were safe and protected, and that respected their rights and freedoms,” said McIntyre....

Julien de Bellefeuille, Student Federation of the University of Ottawa vice-president (university affairs), said that although his student association does not currently have any policies regulating anti-choice groups, he said the motion is a good idea and something that his school should adopt as well.

CUSA's motion will be formally debated at their next council meeting Dec. 5, during which council will vote to pass the motion....

The newspaper also reported that student organization officials at other schools do not share Ms. McIntyre's and Mr. Bellefeuille's views.

Thanks to Rich Poupard for the pointer.

to take the buffet and cushion the shock. It is their care that the gear engages; it is their care that the switches lock.

My post about the romance of engineering reminded me of one of my favorite poems, The Sons of Martha. I'd blogged about it in 2002 and again in 2004, so I figured that it was time to do it again, both for its substance and for a reminder that great poetry can be written about many subjects.

The poem is a reference to -- and in some ways a criticism of -- a passage from Luke, chapter 10, verses 38-42:

[38] Now it came to pass, as they went, that he entered into a certain village: and a certain woman named Martha received him into her house.

[39] And she had a sister called Mary, which also sat at Jesus' feet, and heard his word.

[40] But Martha was cumbered about much serving, and came to him, and said, Lord, dost thou not care that my sister hath left me to serve alone? bid her therefore that she help me.

[41] And Jesus answered and said unto her, Martha, Martha, thou art careful and troubled about many things:

[42] But one thing is needful: and Mary hath chosen that good part, which shall not be taken away from her.

The word "careful," of course, means "full of care." Here then is the poem; oddly enough, my favorite parts are the first two lines of each stanza (except the last), but of course you have to read it all:

The Sons of Mary seldom bother, for they have inherited that good part;
But the Sons of Martha favour their Mother of the careful soul and the troubled heart.
And because she lost her temper once, and because she was rude to the Lord her Guest,
Her Sons must wait upon Mary's Sons, world without end, reprieve, or rest.

It is their care in all the ages to take the buffet and cushion the shock.
It is their care that the gear engages; it is their care that the switches lock.
It is their care that the wheels run truly; it is their care to embark and entrain,
Tally, transport, and deliver duly the Sons of Mary by land and main.

They say to mountains "Be ye remov’d." They say to the lesser floods "Be dry."
Under their rods are the rocks reprov’d -- they are not afraid of that which is high.
Then do the hill-tops shake to the summit -- then is the bed of the deep laid bare,
That the Sons of Mary may overcome it, pleasantly sleeping and unaware.

They finger Death at their gloves' end where they piece and repiece the living wires.
He rears against the gates they tend: they feed him hungry behind their fires.
Early at dawn, ere men see clear, they stumble into his terrible stall,
And hale him forth like a haltered steer, and goad and turn him till evenfall.

To these from birth is Belief forbidden; from these till death is Relief afar.
They are concerned with matters hidden -- under the earthline their altars are --
The secret fountains to follow up, waters withdrawn to restore to the mouth,
And gather the floods as in a cup, and pour them again at a city's drouth.

They do not preach that their God will rouse them a little before the nuts work loose.
They do not preach that His Pity allows them to drop their job when they damn-well choose.
As in the thronged and the lighted ways, so in the dark and the desert they stand,
Wary and watchful all their days that their brethren's ways may be long in the land.

Raise ye the stone or cleave the wood to make a path more fair or flat;
Lo, it is black already with the blood some Son of Martha spilled for that!
Not as a ladder from earth to Heaven, not as a witness to any creed,
But simple service simply given to his own kind in their common need.

And the Sons of Mary smile and are bless’d -- they know the Angels are on their side.
They know in them is the Grace confess’d, and for them are the Mercies multiplied.
They sit at the feet -- they hear the Word -- they see how truly the Promise runs.
They have cast their burden upon the Lord, and -- the Lord He lays it on Martha's Sons!

Doug Berman (Sentencing Law & Policy) writes:

Thanks to a listserve posting by Eugene Volokh, I learned the Kentucky Supreme Court recently issued an intriguing ruling about arguments to a sentencing jury in Brewer v. Commonwealth, No. 2004-SC-000742-MR (Ky. Nov. 22, 2006) (available here). Specifically, Brewer disapproves of prosecutorial arguments to a sentencing jury that it should "send a message" to the community by imposing a harsh sentence. Here are key passages from the Brewer opinion (with cites omitted):

It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements. And it is equally well established that a prosecutor may use his closing argument to attempt to persuade the jurors the matter should not be dealt with lightly. So the Commonwealth's exhortation to the jury to recommend that Appellant be sentenced to the maximum allowable sentence is neither surprising nor improper. But what is troubling is the "send a message" portion of the Commonwealth's argument. Although we disapprove of the comments in question, we find them to be virtually indistinguishable from those we recently found to not constitute palpable error in [prior rulings]....

Lest this opinion be misconstrued, we do find that the Commonwealth's exhortation to this jury to "send a message" to the community was improper. We strongly urge the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments. Indeed, had a timely objection been made, we may have found the Commonwealth's comments to constitute reversible error. But, as in [prior cases], upon a consideration of the overall trial and the context in which the comments in question were made, we do not find that there is a substantial possibility that the Commonwealth's argument seriously affected the overall fairness of the proceedings. Thus, we decline to find that the Commonwealth's comments rise to the level of palpable error.

Eugene wonders exactly what is improper about urging a sentencing jury to "send a message." In addition, I have certainly seen this sort of argument used by many prosecutors in many jurisdictions. Have any other courts held or suggested a "send a message" sentencing argument is improper? On what basis?

(For a link to the opinion, see Doug's post.)

Two important points to keep in mind:

(1) This is an argument made to the jury while it's determining the defendant's sentence, not while it's deciding whether he's guilty. The defendant had already been found guilty; Kentucky is one of the few states in which the jury is also called on to impose a sentence.

(2) Generally, some theories of punishment — deterrence (general and specific) and norm-setting — are all about sending either the public or the defendants a message. Rehabilitation may also be partly about sending a message. The other major theories, retribution and incapacitation, aren't focused on message-sending. Is the Kentucky court implicitly requiring that the prosecution argument stick solely to retribution or incapacitation? Or is the Kentucky court acknowledging the legitimacy of deterrence and norm-setting as theories of punishment, but nonetheless concluding for some reason that the prosecution can't overtly argue to the jury about the message that their sentence would send?

I loved this Popular Science article on designing a more hurricane-resistant nail, which Orin pointed to below. And if you can't see the romance in this, then you aren't my kind of romantic.

It turns out that the answer, somewhat to my surprise, seems to be "no." (I had thought there would be some such risk.) See Mary D. Ellison et al., Living Kidney Donors in Need of Kidney Transplants: A Report from Organ Procur. & Transp. Net., 74 Transplantation 1349 (2002) (noting that the best current estimates of the risk of kidney donors’ eventually developing end-stage renal disease “approximate[] the . . . adjusted incident rate for end-stage renal disease in the general U.S. population”); Margaret J. Bia et al., Evaluation of Living Renal Donors, 60 Transplantation 322, 326 (1995) (same).

I stress "seems to," because even though we do have decades of data, the studies have some understandable limitations. But the studies do suggest that there is no such elevated risk, and in any event it appears that even if there is some elevated risk that the studies don't catch, it's unlikely to be very high.

I'll update my article draft accordingly, but since the issue had come up in my posts and the comments to those posts, I'd note it. Recall that transplant operations do involve a roughly 0.03% chance of relatively prompt donor death, and a 2% or less chance of serious complications.

I was recently reminded of this Churchill quote (and, yes, it does seem to be a genuine Churchill quote, not just a loose quote that gets attributed to Churchill, Wilde, Twain, Bierce, or Parker):

He has all the virtues I dislike and none of the vices I admire.

Thanks to Sasha for confirming this for me; Churchill apparently said this about Stafford Cripps.

or perhaps of the decade for those of us with small kids -- Kipling's Six Honest Serving Men

I keep six honest serving-men
(They taught me all I knew);
Their names are What and Why and When
And How and Where and Who.
I send them over land and sea,
I send them east and west;
But after they have worked for me,
I give them all a rest.

I let them rest from nine till five,
For I am busy then,
As well as breakfast, lunch, and tea,
For they are hungry men.
But different folk have different views;
I know a person small --
She keeps ten million serving-men,
Who get no rest at all!

She sends 'em abroad on her own affairs,
From the second she opens her eyes --
One million Hows, two million Wheres,
And seven million Whys!

Which political leader expressed concern about this, and suggested that abolishing race-based admissions could lead to this (in his view unfortunate) result?

I should note that while the concern was hyperbole -- though universities of course could fill their freshman classes with Asian-Americans, race-blind admissions would not lead to such an outcome -- this year for the first time Asians outnumbered any other racial group, including whites, among students admitted to all University of California schools. (This had already been the case as to some schools.)

My reactions:

(1) UC doesn't "look like California." In fact, as simple arithmetic will tell us, when Asians are "overrepresented" this way compared to their fraction of the California college-age population, whites and other racial groups are substantially "underrepresented." Yet that's surely no reason to institute race preferences;

(2) Asian-American culture is obviously doing something right. Others, including whites like me, should do what they can to copy those aspects of Asian-American culture that promote this.