Apropos Orin's post, consider whether you agree or disagree with the following excerpt from Judge Easterbrook in Wales v. Bd. of Ed., 120 F.3d 82, 85 (7th Cir. 1997):

So reports the AP:

The ruling came after Steven Cranley pleaded guilty on Tuesday to several charges stemming from an assault on a former girlfriend....

Doctors say Cranley has difficulty coping with rejection and runs a high risk to re-offend if he becomes involved in another intimate relationship.

Justice Rhys Morgan said Cranley "cannot form a romantic relationship of an intimate nature with a female person...."

I don't know Canadian law, so I can't comment on that. In America, it is pretty clear that the law can bar people who were convicted of a crime from having sexual relationships with a member of the opposite sex -- that's what happens to prisoners generally, unless they get conjugal visits (which are by no means constitutionally guaranteed). The question would be whether the law can impose such a requirement as a condition of probation; the test for that (rational relationship to a legitimate penological purpose) leaves the judge a lot of discretion, and I'd be inclined to say that this condition is rationally related to the protection of the public. On the other hand, it is pretty vague, the law having no ready definition of "romantic" (even if "intimate" is understood simply as sexual); maybe that would be the problem. In any case, this isn't my core field, so I don't want to opine too definitely -- I just thought it was an interesting story to pass along.

Thanks to John Struan for the pointer.

A reader faults my "free state" analysis on these grounds:

The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.

He then goes on to elaborate,

I should have said, "the document is internally consistent and thus clear within its 4 corners." That is, one can get a clear definition of "state" on context alone without extrinsic evidence.

Assume you have no dictionary and have no idea what "state" means. You read the Constitution and Bill of Rights, and for 116 out of 116 times the documents use the word "state," context alone indicates that "state" means one of the 50 recognized jurisdictions and not the District. You would judge, based from this text/context, that the "state" in the 2d Amend referred to the same. Of course, EV is correct that one still needs a dictionary and/or understanding of English for the remaining words, but these sources aren't typically considered extrinsic evidence. (perhaps because dictinaries and language knowledge offer every definition of a word, whereas typical extrinsic evidence does not)

This the goal of textualism, yes? That all words in a document have clear meaning based on the text of the document alone, coupled with a knowledge of the language of the text? (of course even textualism allows departing from a dictionary definition where the text specifically redefines a word)

The political branches ought to have incentives to observe textualist rules. Even assuming that the change from "country" to "state" was stylistic, to rely on extrinsic evidence to correct the textualist mistake eliminates this incentive. It permits Congress to pass whatever ambiguous, permissive language will get a majority, improperly delegating to the courts the determination of what the law ought to be.

"Textualism" is a useful label, and textualists do care about the text. But I know of no textualist who thinks that we should ignore context, and in particular the possibility that a particular textual provision was a legal term of art at the time the law was enacted. I think such an entirely acontextual textualism (perhaps we might think of it as "literalism," though even that assumes the conclusion about what the text literally means) is senseless for reasons I've mentioned in other posts in this chain. But in any event it is no textualism I've ever heard legal scholars advocate.

Let's begin with a simple example: How would and should a textualist deal with the Double Jeopardy Clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"? Should he say that it applies only to subsequent prosecutions where either the death penalty or dismemberment is at stake? (Does it perhaps apply chiefly to those soldiers who are "quartered in any house" with the owner's consent?) Or should he consider the possibility that "life or limb" is a legal term of art that doesn't mean what "life or limb" normally would?

Likewise, it turns out that the Constitution and the Bill of Rights do not always use "State" to mean "state of the union," even setting aside the Second Amendment: Two clauses of the constitution refer to "foreign State." Would we say that, because nearly all occurrences of "State" mean "one of the United States" or a "member state of a union," the "foreign State" provisions must refer to foreign members of the United States, or perhaps foreign semi-sovereigns that are part of some broader confederacy -- so that, for instance, federal officials couldn't accept offices or titles from the Swiss cantons (as states in a union), but could accept them from Japan (which is not a state in a union)? Or would we recognize that the term "State" in the phrase "foreign State" means something different from "State" in other contexts?

"Free State" is much like this. My article offers what I think is strong evidence that "free State" meant "nondespotically governed country." Blackstone used it this way. Montesquieu used it this way. Cato's Letters used it this way. Hume's Essays used it this way. Many other writers that the Framers read used it, almost exclusively this way. There's thus very good reason to think that when Americans who were raised on those works wrote or read that phrase, they understood it as precisely the same term of art, just as they understood "life or limb" as a term of art or "Suits at common law" as a term of art. No textualist I know of would ignore such evidence, just to give future Congresses an incentive to avoid all legal terms of art (something that would be a pretty hopeless cause in any event).

In the post below, I made a simple claim: You can't tell whether a text is "clear" or "unambiguous" by simply consulting the text — you also need to see whether there is external evidence that the meaning of some term is something other than what you assume it to "clearly" or "unambiguously" be (whether we refer to the meaning intended by the author or the meaning likely understood by most of the author's intended readers). This shouldn't be politically or ideologically controversial. It's just a description of how language and communication works.

Some readers seemed to disagree, for instance asking "Do we need context, etc., to tell us what '2/3' or '3/4' means?" and objecting to "the view that semantic meaning is always necessarily up for grabs." Well, consider this text:

1 + x = 10

This may seem "clear" or "unambiguous," until you see that people sometimes say — and quite correctly,

1 + 1 = 10

So even with mathematical matters, we sometimes can't be sure of their "clear" meaning until we see their context. "10" usually means "ten," and in our culture "ten" is a fair initial interpretation of "10." But we have to be open to the possibility that the number is written in a different base, and adjust our interpretation if there is evidence that this is indeed so. It's not that math is somehow indeterminate; it's just that mathematical notation, like any language, can't be understood without figuring out what it means in a particular context.

Or say you have a contract that reads,

I will turn over to you my car if you pay me twenty thousand dollars.

Usually that's pretty clear; but if it turns out the contract is made by two Canadians in Canada, contemplating a transaction in Canada, we'd realize that "dollars" means something other than what it usually means in America. Even if the contract ends up in American court (say the parties move to California and litigate the matter in California), any American court will correctly look beyond the supposedly "clear" meaning of the text to recognize that the contract meant something quite different. Even the strongest version of the parol evidence rule would not, to my knowledge, require a court to assume that the term "dollar" is "clearly" U.S. dollar, even if that's the first reaction that the judge had to the contract before he learned of its entirely Canadian context.

Again, it's not that meaning is "up for grabs" in the sense that any interpretation is always as good as any other. It's just that language can't be understood without figuring out what it means in a particular context, and recognizing that seemingly "clear" words can become less clear — or clearly something else — when one recognizes the context. Usually the context is as you expected, and the meaning is thus what it clearly seemed at first. But we can't just categorically foreclose the possibility that a word in a 200-year-old document (or even in a relatively new document) means something different than what it clearly seems to be if we look only at the text.

Apropos my evidence on what "free State" meant to the Framers, a commenter writes,

The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.

This, I think, raises a broader question: How do we decide whether a 200-year-old document "is internally consistent and clear within its 4 corners," and what its clear, consistent meaning is?

Recall that we can never understand the document simply by looking within its own four corners: We have to look at the document's text coupled with our mental dictionary of what each term means. But it's possible that people of the era in which the document was written had a different mental dictionary; it's possible that terms such as "free State" or "militia" or "life or limb" or "common law" or "an establishment of religion" meant something different to them than they do now -- or meant something clearer or less ambiguous than they do now, or meant something vaguer or more ambiguous than they do now.

That's why I'm skeptical of "just the text, ma'am" interpretation, especially when it comes to old documents. It's always text plus dictionary, but when the dictionary is of a slightly foreign legal language, we need to do more research than just from reading the text.

My article on "free State" is meant to give a sense of what the phrase meant in the Framing generation's mental dictionary. That's why I don't hesitate to use instances of the phrase used in discussing ancient Rome, Renaissance Europe, or 1600s and 1700s England. I'm looking at what the phrase "free State" meant in the language of the time, and if it consistently meant something like "nondespotically governed country" in the works that formed the Framing generation's political and legal education, that's powerful evidence that the Framers continued to use it this way. (I'd also talk about legislative floor statements if they said something clear about the meaning of the phrase "free State," but they didn't.)

But more broadly, I wanted to write a separate post to stress the difficulty of focusing solely on the four corners of the constitutional text, stripped of "extrinsic evidence." I don't think you can understand the text without looking at extrinsic evidence of what the terms in the text meant at the time.

From Archdiocese of Washington v. Moersen, 2007 WL 1703483 (Md. June 14):

The petitioners urge that, contrary to the reasoning of the Court of Special Appeals, the Rayburn primary duties test does not mean that, "participation alone [is] not enough." We do not agree.

The context helps, but not a lot (emphasis added):

It is not enough to say that Moersen's music is central to the church's method of worship; it would be just as easy to say that the manufacturer of the organ contributes to the church's worship, or that the people involved in the upkeep of the organ and worship place contribute to the church's ability to maximize the participation in religious ritual. Where does one draw the line?, that is the question. As stated in a case cited by the petitioners, Musante v. Notre Dame of Easton Church, No. 301-CV-2352, 2004 WL 721774, *6 (D.Conn. Mar. 30, 2004), "the religious nature of the employer is not dispositive of the inquiry, since it is unlikely that a church custodian would ever be considered a ministerial employee." The petitioners urge that, contrary to the reasoning of the Court of Special Appeals, the Rayburn primary duties test does not mean that, "participation alone [is] not enough." We do not agree. In Rayburn, the court considered whether the position of associate in pastoral care was important to the spiritual mission of the Seventh-day Adventist Church. 772 F.2d at 1169. Concluding that it was, the court stated: ....

No, that's worse. We're #1 squared! No, that doesn't help much either. We're #0, or, maybe better yet, #-1! Huh, maybe not.

In any case, I'm delighted to report that my colleagues at Mayer Brown Rowe & Maw have been rated #1 in appellate law by Chambers and Partners, to go along with our #1 rating for appellate and Supreme Court work from legal500.com. It's a privilege and a pleasure for me to be affiliated with the Mayer people.

I thought I'd pass an excerpt from a new article of mine, "Necessary to the Security of a Free State," which will be coming out in the Notre Dame Law Review this Fall. I might blog more excerpts from it next week, but for now here's the Introduction; to see citations, and the rest of the article, look here.

As usual, I'd love to hear whatever corrections, suggestions, or disagreements people might have -- but please look through the entire piece beforehand, just in case other sections already deal with the issue. Thanks!

"A well regulated Militia, being necessary to the security of a free State," the Second Amendment says, "the right of the people to keep and bear arms, shall not be infringed." But what did the Framing generation understand "free State" to mean?

If the answer is "state of the union, free from federal oppression," that would tend to support the collective or states' rights view of the Amendment. It would suggest that the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment does not apply outside states, for instance in the District of Columbia. I suspect the intuitive appeal to many of the states' rights theory stems from the Amendment's reference to the term "State."

But if "free State" was understood to mean "free country, free of despotism," that would tend to support the individual rights view of the Amendment. "The people" would then more easily be read as referring to a right of the people as individuals, even if a right justified by public interests, much as the term "people" is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were enrolled in a state-chosen defensive force, since the right would be unrelated to preserving the independence of the states. And it would apply to all Americans, whether in states or in D.C.

Likewise, consider James Madison's original proposal: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country."

Some assume the change from "free country" to "free state" was understood as purely stylistic, sometimes pointing to the absence of recorded controversy about the change of "free country" to "free state." This would cut in favor of the individual rights view. Others assume it was a substantive shift in the direction of a states' rights provision, and point in support to the Constitution's general use of "state" to mean state of the union (except where "foreign State" is used to mean "foreign country").

This Article makes a simple claim: There's no need to assume. There is ample evidence about the original meaning of the term "free state."

"Free state" was used often in Framing-era and pre-Framing writings, especially those writings that are known to have powerfully influenced the Framers: Blackstone's Commentaries (which I'll discuss in Parts II and III), Montesquieu's Spirit of the Laws (Part IV), Hume's essays (Part V), Trenchard and Gordon's Cato's Letters (Part VI), and works by many of the other European authors who are known to have been cited by Framing-era American writers (Part VII). [I choose these writers because I have systematically gone through Donald Lutz's list of the 36 writers most cited by Americans from 1760 to 1805; Montesquieu and Blackstone head the list, Hume and Trenchard and Gordon are in the top 10, and the other writers are all in the top 36.] [The phrase "free state"] was also used by many leading American writers as well (Part VIII), including John Adams in 1787, James Madison in 1785, and the Continental Congress in 1774.

Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase "free state" meant at the time. In 18th century political discourse, "free state" was a well-understood political term of art, meaning "free country," which is to say the opposite of a despotism.

Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.

"State" simply meant country; and "free" almost always meant free from despotism, not from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.

Even given this finding, of course, many important arguments about the nature of the Second Amendment remain. But when we consider those arguments, we should recognize that the phrase "a free State" was not understood as having to do with states' rights as such, but rather as having to do with preserving the liberty of the new country that the Constitution was establishing.

Language teachers talk about translators' "false friends" -- words in a foreign language that sound familiar, but are quite different. The classic example is the Spanish "embarazada," which does not mean embarrassed. Likewise, the Russian "magazin" means a shop, not a magazine (the latter translates as "zhoornal," cognate to journal).

I'm looking for examples of the legal historian's false friends -- terms (mostly English terms) that might sound familiar to a law student doing legal research today, but really mean something different from what the student would at first expect.

I've seen this, for instance, in my Second Amendment work. "Militia," for instance, pretty clearly meant something like "the armed able-bodied citizenry" (limiting citizens to first-class citizens of the time, and excluding blacks, Indians, and women) rather than "National-Guard-like force" or "small military band," which is what many people tend to think of when they hear "militia" today. Likewise, "free State" meant not "state independent of the federal government" but something like "democracy, republic, or constitutional monarchy" as opposed to a despotism. Neither of these terms have entirely lost the old meaning; but they have acquired enough of a modern meaning that the modern meaning may lead modern readers astray. Dean William Treanor points to another example, here of a change in grammatical convention:

Justice Thomas, Professor Amar, and others have assigned critical interpretive weight to the fact that, to quote Justice Thomas, "[i]n the Constitution, after all, 'the United States' is consistently a plural noun." This grammar would appear to suggest, as Justice Thomas and Amar have concluded, that the Constitution, as initially adopted, reflected the view that the United States was a collection of states, rather than one nation. What this reading misses, however, is the fact that, in the late eighteenth century nouns ending in "s" were commonly assigned plural verbs, regardless of whether the noun itself was plural or not, a rule gradually displaced as the nineteenth century progressed. It is true that "United States" was often matched with a plural verb in 1787 and consistently matched with a singular verb after the Civil War. But one cannot conclude simply from this change in grammatical practice that the dominant political theory changed, since the same verb shift occurred for the word "news," and there was no reconceptualization of "news."

(I can't personally vouch for the accuracy of this argument, but my sense is that Dean Treanor enjoys a very good reputation as a historian; and, more broadly, this is an example of the sort of thing I'm looking for, even if some might disagree with Dean Treanor's particular argument.)

Any suggestions? Please pass them along.

A commenter on the thread about The Odd Assumption of Islam as Monolith writes:

Yeah, that particular religion can't be compared to the other great religions, not straight up. I've listened to those who claim that you MUST read the holy book in arabic, for example, and other translations and usages are substandard.

I'm no expert on Judaism, but wouldn't many Orthodox Jews conclude that to fully understand the Torah you need to read it in Hebrew? I'm not sure they'd have the same theological explanation for this as Muslims would, but wouldn't they still insist (in a way that Christians generally do not) that translations of the Torah are in some measure "substandard"?

In the comments to the post about the Muslim policewoman who was barred from wearing a khimar on the job, one of the commenters expressed regret that the decision "means that observant Muslim women are, in effect, barred from serving as police officers." Another commenter responded,

Considering the restrictions most Muslim countries place on women I'm surprised that she thinks she can be a police officer in the first place, in a country that expects women cops to drive, handle guns, arrest men, etc., just like the male ones. (Saudi Arabia does have women on the police force, but AFAIK they really function as a sort of auxiliary so male cops don't have to manhandle, search, or even talk to non-related women.) OTOH, if she can be flexible about those restrictions, why can't she be flexible about the head-dress? The department isn't requiring that she go bareheaded, just that she wear the uniform hat. As I understand it, Mohammad only prescribed that women be "modest"; interpreting that as any particular garment is a cultural thing, not Islam.

I've heard similar arguments before, but they've always struck me as quite weak, a weakness that we can see if we adapt them to Judaism or Christianity. We know how varied Judaism is -- yet we don't express surprise when, say, a Reform Jewish man refuses to eat pork but doesn't wear a yarmulke. Nor would we, I think, have prisons deny Jewish prisoners pork-free meals just because the prisoners aren't full-on Orthodox, on the grounds that "they're flexible about some Orthodox Jewish religious laws, why can't they be flexible about pork?"

Likewise, some Christians observe a Saturday Sabbath; some observe a Sunday Sabbath; some observe no Sabbath (in the sense of a day of rest) at all. Many Christians are very serious about following some Old Testament rules, but think the others (such as the Sabbath observance and the kosher rules) have been superseded. Why isn't it equally plausible that some Muslims may interpret Islam to allow women a great deal more latitude than the Wahhabi do, yet still preserve some aspects of traditional Islamic women's garb?

Similarly, it's not uncommon for cultural rules and religious obligations to be closely intertwined. As I understand it, the requirement of wearing a yarmulke is a cultural tradition that is not understood even by the Orthodox as being mandated by the Torah. I'm not sure about this, but my sense is that the wearing of Christian-themed jewelry and the placement of ashes on the forehead on Ash Wednesday is "cultural" in the sense of not being seen as mandated by religion, but is surely linked to religious sentiments.

It may well be that the court's decision in this case is right; I'm not speaking about that here. My point is simply that some American Muslims' rights shouldn't be determined based on what Saudi Muslims do, or even other American Muslims do, just as some American Christians' rights aren't determined based on what other Christians do, and some American Jews' rights aren't determined based on what other Jews do.

Islam, Christianity, and Judaism all include multiple denominations, both formal and informal. And American religious freedom law recognizes that no religion ought to be treated as a monolith with a single Established Official View that somehow affects the rights of all members of that religion.

Say that you're writing a book, a magazine article, or some other work in a medium that (1) doesn't allow hyperlinking, and (2) discourages footnoting. And say that you want to quote a phrase you much like — for instance, "The past is a foreign country; they do things differently there."

Naturally, you should quote it, to make clear that you're not claiming authorship. But must you give credit to the author, for instance, "as L.P. Hartley wrote, '...'"? In an earlier time, I would think you should, unless the line was so cliché that its source would be familiar to most readers. (By the way, should it have mattered whether the author was long-dead?) After all, you ought to give credit where credit is due.

But these days, for many such quotes, the attribution is only a google search away — not much harder, generally speaking, than looking up the quote in an endnote, which would be considered a perfectly acceptable way to give credit in those media that allow endnotes. So assume that the google search does indeed yield the proper attribution. Does that relieve you of the obligation to mention the author in your work (again, assuming you include the quotes)? Or should you still mention the author's name somewhere, given that not everyone will be reading your piece with a computer around, or perhaps based on some deeper inherent obligation to give credit in your own work? Or might the ethical question be moot, because the text without the attribution — for instance,

"The past is a foreign country: they do things differently there." Among other things, they speak a foreign language....

-- looks clumsy enough that you ought to add "In L.P. Hartley's words" or some such just to make the text flow better?

UPDATE: Well, there's remarkable unanimity in the comments, and they all answer the question in the title with "no." Fortunately for me, I generally write in media where footnotes and endnotes are allowed, so I can avoid the "As x says" locution and yet give full credit directly in my own work. In any case, thanks for the feedback!

I'm also looking for tips that I can pass along (again, in Academic Legal Writing) to law students who are doing empirical research (of whatever kind, and I realize there are many kinds). There, too, I already have quite a few, but it would be great to have more. If you have any suggestions, I'd love to hear them. Thanks!

I'm looking for tips that I can pass along (in Academic Legal Writing) to law students who are writing articles on legal history. I already have quite a few, but it would be great to have more. If you have any suggestions, I'd love to hear them. Thanks!

From a Daily Mail (UK) article, "Disguise that took the intrepid zoologist into the crocodiles' lair." Thanks for GeekPress for the pointer.

From the AP report:

A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis "Scooter" Libby in the CIA leak case, a ruling that could send the former White House aide to prison within weeks....

[U.S. District Judge Reggie B. Walton] never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby's request, the judge waved it off as "not something I would expect from a first-year in law school."

Maybe I'm missing the context, but this seems rather intemperate. I've read the motion, which is signed by leading constitutional law professors (Vikram Amar and our own Randy Barnett), leading criminal law commentator Alan Dershowitz, and Robert Bork, and which is signed as amici by the same people plus several other well-respected scholars. It's well-reasoned and extremely competent; I'm not sure I'd agree with it, but it makes a thoughtful and plausible case for its position. There seems to me no cause at all for the judge to react this way.

Thanks to Bill Patry for the pointer to the AP story.

The khimar is "a headpiece ... which covers the hair, forehead, sides of the head, neck, shoulders, and chest," but not, at least in this instance, the face.

Philadelphia Police Department Directive 78 apparently prescribes a uniform uniform, with no exceptions for any religious apparel or any religious symbols. The case suggests that the uniform requirement is broad enough to exclude ashes on the forehead on Ash Wednesday, and therefore basically any non-uniform symbols.

Police officer Kimberlie Webb claimed that Title VII of the Civil Rights Act of 1964 required the city to accommodate her religious practice by exempting her from the strict uniformity requirement, and letting her wear the khimar. Title VII does require employers to provide exemptions for employees whose religions conflict with generally applicable work rules, but not when granting such an exemption would create an "undue hardship" for the employer. Courts have set the "undue hardship" bar pretty low, so that anything "more than a de minimus cost" would constitute an "undue hardship" that the employer need not bear.

The court held that requiring a religious exemption from Directive 78 would indeed create an "undue hardship":

The Directive's detailed standards with no accomodation for religious symbols and attire not only promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force. Prohibiting religious symbols and attire helps to prevent any divisiveness on the basis of religion both within the force itself and when it encounters the diverse population of Philadelphia.... Police Directive 78 is designed to maintain religious neutrality, but in this case in a para-military organization for the good not only of the police officers themselves but also of the public in general.

Thanks for How Appealing for the pointer.

I always love to brag (blrag?) about my colleagues' successes, and this one is pretty cool: Mayer, Brown, Rowe & Maw, with which I've been a part-time academic affiliate for about a year and a half, has been rated #1 for appellate and Supreme Court work by legal500.com.

Excellent, and from what I've seen of my colleagues' work, extremely well deserved.

(a reference, of course, to Six Degrees of Kevin Bacon). So reports Scott Scheule:

You were in a Bullshit! episode with Penn Jillette.

Penn Jillette was in the Aristocrats (which is a good movie by the way--if you ever want to watch it with someone and you're in DC, give me a call) with Kevin Pollak.

Kevin Pollak was in A Few Good Men with Kevin Bacon!

I can also be linked, Oracle of Bacon reports, via Carolyn McCormick instead of Kevin Pollak. And, as a special bonus, I'm citing Francis Bacon in a forthcoming law review article.

In my post below on the autoadmit case, I noted that the pseudonymous posters faced huge professional risks from being identified. But say that one of them decides to fight the case to trial (unlikely, but assume he does).

In a typical libel case, the plaintiff may worry that filing the case, and having a trial, will only further spread the libelous accusations. Even if the accusations are ultimately disproved, more people will have heard them, and some may pay more attention to the accusations than the ultimate disproof. This isn't really an issue here, I suspect; I doubt that anyone will really believe that plaintiffs really do have sexually transmitted diseases, for instance.

But libel cases also let defendants discover many things that plaintiffs might find embarrassing. Consider, for instance, Doe I's claim that the "harassing, offensive, and false statements posted by defendants" caused her to get no job offers through the on-campus interview process, even though she had sixteen on-campus interviews and four callbacks (paragraphs 30-33 of the complaint). I'm skeptical that there was any causation here; as Ilya pointed out,

First, most people know that anonymous comments on chat sites are often inaccurate, and intelligent employers are unlikely to give them great credence — especially if doing so leads them to pass up a strong job applicant from what is arguably the nation's most elite law school. Second, even if law firm hiring committees did believe the comments, ... [m]ost big law firms care very little about associates' personal lives outside the office, so long as those associates are racking up the billable hours. Even if one or two firms were deterred from making offers to this student by the internet comments, it is highly unlikely that all sixteen (or even a large percentage of them) were.

Instead, it seems to me that the likely reasons for Doe I's striking out were among the normal reasons why many people who look great on paper don't do as well in the hiring market as they'd like — they don't seem that interested in firm jobs, their credentials aren't really that good, they come across as too quiet or nervous, they come across as too brash and self-important, they flub some questions, they rub the interviewers the wrong way, some of their professors are unimpressed by them and say so, and so on.

But even if I'm wrong, surely defendants would be entitled to try to prove that there was no causation here, given that plaintiffs are making an issue out of this (an issue that bears directly on actual damages, and indirectly on presumed and punitive damages). Presumably defendants would subpoena the firms involved and ask them why they didn't hire Doe I. (I don't see any reason why such an obviously relevant matter would be found undiscoverable or inadmissible.)

Even if I'm wrong and the firms were somehow influenced by the online nastiness, I expect that their hiring people would do anything short of outright perjury to minimize that and to maximize the conventional reasons why they thought Doe I was unsuitable. If I'm right, or at least right as to many firms, those firms would quite candidly explain why they thought Doe I was unsuitable. Some of them may be politic ("we had an exceptionally strong pool that year, and she just wasn't quite as fantastic as the other Yale applicants"), but others may not be. (Remember that while many firms are reluctant to say anything bad about an ex-employee, for fear of a libel lawsuit, witnesses are immune from libel lawsuits for their testimony.)

So the result will be testimony from sixteen prominent law firms explaining why they didn't want to hire Doe I. What's more, the law firms aren't being painted as the bad guys in this law suit, so it's not a case where (for instance) someone sues an employer for discrimination and the employer's badmouthing of the plaintiff could be put off to the employer's racism or sexism or what have you. It's just sixteen law firms that come across as largely disinterested bystanders (despite the possible reason to shade the truth that I mention above, a reason that is likely not to be prominent in observers' mind) and that talk about how Doe I botched her interview, or about how her grades were really pretty weak. That's not exactly the best publicity for an aspiring young lawyer, especially given that the case about online chatter is likely to lead to online chatter.

Again, perhaps all this is moot because there's virtually no chance that this case will get to trial or even to discovery. Still, it's the sort of thing that libel plaintiffs ought to worry about in similar cases, and perhaps even in this one.

UPDATE: Ann Althouse has more thoughts on this, and the AutoAdmit controversy more broadly. Plus, one of the great things about Ann is that she mixes highly accessible posts about interesting legal controversies with asides about pretty technical but important legal questions, such as federal court jurisdiction — she has some thoughts about that in the second post. (Recall that she's a jurisdiction, federalism, and constitutional law scholar.)

Patterico has more (also here), which is more sympathetic to the lawsuit than Ann Althouse's posts are.

The two women law students who were generally badmouthed and insulted by pseudonymous commenters on the AutoAdmit Web site have sued. They've sued Anthony Ciolli, who helped found and manage AutoAdmit, and they've sued the pseudonymous commenters. The claims are copyright infringement (based on someone's apparent copying of some photographs of Doe I to which the copyright was owned by Doe I), appropriation of name and likeness, disclosure of private facts, false light invasion of privacy, and intentional and negligent infliction of emotional distress. The suit seeks compensatory and punitive damages, "permanent removal of the message threads from the AutoAdmit Site," "authorization to Google permanently to remove the cached message threads," and costs.

A few thoughts:

1. Ciolli's liability: If Ciolli is being sued solely because of his operation of the AutoAdmit thread — as opposed to any posts he himself might have made — then he should be immune under 47 U.S.C. § 230, which generally immunizes people from liability for online speech by other people (such as the pseudonymous commenters here). Section 230 doesn't apply to copyright liability, but even if there was a copyright-infringing photograph posted to AutoAdmit, I quite doubt that there'd be material damages. Only actual damages, an injunction, and court costs are available unless the photograph was registered within three months of its original posting, which I expect it wasn't. (AutoAdmit might also have some 17 U.S.C. § 512 protections, but only if satisfied section 512's agent identity notification requirements, which I doubt.)

2. Permanent removal of message threads: Many (but not all) jurisdictions allow injunctions in libel cases, after a finding on the merits that the speech is libelous. The same might be true of injunctions against speech that is found to fit within another First Amendment exception (such as a threats exception, or an intentional infliction of emotional distress exception, if there is one). But nearly all courts that have considered the issue have held that 47 U.S.C. § 230 preempts injunctions against online speakers based on speech of other parties, as well as damages. So I see no basis here for an injunction against Ciolli as AutoAdmit's operator, except perhaps as to removal of the infringing photograph, if it is indeed on AutoAdmit's site. (Of course, it's possible that Ciolli will give in on this score because of public pressure, because of fear of liability, or because of worry about the expense and burden of litigation; on the other hand, his § 230 defense is strong enough, and the case interesting enough, that I imagine he would be able to prevail either by himself or with some pro bono help.)

UPDATE: I had assumed that Ciolli still had some legal power over what comments stay on the AutoAdmit site, since otherwise this demand would have been pointless. If, as some correspondents have suggested, Ciolli no longer has this power, then the demand to permanently remove the message threads is especially out of place -- it can't work (even setting aside the 47 U.S.C. § 230 problem) unless the complaint is amended to join AutoAdmit or its operators as parties.

3. Authorization to Google permanently to remove the cached message threads: This is just odd; Google needs no such authorization — it can remove whatever it pleases from its cache. Perhaps there's some Google policy under which Google removes material only following a finding that the material is libelous, or perhaps plaintiffs think such a finding would in any event persuade Google to remove the material. But they can't seek such "authorization" as a remedy; there is no legal doctrine under which the court can grant such authorization, and there is no legal need for such authorization.

4. Liability of the pseudonymous posters — libel / false light: Some of the statements mentioned in the complaint may well be libelous, for instance the ones that accuse plaintiff of having herpes, and of being sexually promiscuous (assuming the statements are false, which I expect they are), or at least false plus highly offensive (which in these circumstances would suffice for a false light claim). They are on matters of private concern and about a private figure, so the defendants would be liable for actual, presumed, and punitive damages.

Defendants' only defense would be that in context a reasonable reader wouldn't understand the statement as a factual claim, but just a loose insult that lacks factual content (much as "motherfucker" may be insulting because of the connection to its literal factual meaning, but is almost always used as a pure insult and not a factual claim). That's a not implausible defense, but far from a sure winner.

5. Liability of the pseudonymous posters — other causes of action: Some of the statements mentioned in the complaint may also be actionable as intentional infliction of emotional distress, because they do seem pretty outrageous when made in a publicly accessible medium. (I doubt the other causes of action are particularly strong, but the distress one might be.) Does the First Amendment preempt such claims?

Some of the statements may be interpreted as threats of rape and the like; if they are interpreted this way, again as opposed to loose hyperbole (see Watts v. U.S. for the leading hyperbole case, though one that arose in a political context), they may be constitutionally unprotected, and there would be no bar to tort liability for them. Most of the statements, though, are just general nastiness; and it's not clear whether crude, personally insulting speech on matters of private concern about a private figure is constitutionally protected against intentional infliction of emotional distress liability.

I think it should be protected, because the emotional distress tort is in my view unconstitutionally vague as applied to otherwise protected speech (even nasty speech on matters of private concern), and because I'm generally skeptical about the courts' ability to reliably draw the public/private concern line (see PDF pages 46-52 of my Freedom of Speech and Intellectual Property). But a few courts have allowed liability without finding First Amendment problems, as in the radio station "Ugliest Bride" contest case, Esposito-Hilder v. SFX Broadcasting Inc., 665 N.Y.S.2d 697 (App.Div.1997). And of course this is the sort of case where liability seems especially apt, and especially harmless when one just looks at the particular speech involved here. The case for First Amendment protection would have to be made based on the concerns about the long-term consequences of a new "private-concern speech inflicting emotional distress" exception to First Amendment protection.

6. Disclosure of the pseudonymous posters' identities: But I think the real punitive remedy that plaintiffs may get is disclosure of at least some of the pseudonymous posters' identities, given that plaintiffs have at least plausible tort claims that should suffice to justify discovery of defendants' identities. I'm not sure whether this is primarily what plaintiffs want — but it will be much cheaper to get, since it could be gotten just using some subpoenas plus amendment of the complaint to reveal the true defendants, with no need for a trial or for anything else. (Of course, if the identities can't technically be gotten, because the site's logs are incomplete, because the posters adequately cloaked their identities, or for some other technical reason, then no remedy, social or legal, would be available.)

The posters' actions are pretty disgusting and unprofessional; they violate codes of basic decency endorsed by most of society, left, center, and right. If their identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.

Ciolli himself apparently lost a job over all this, even though his asserted sin was simply providing a largely unrestricted forum. We can debate the ethics of providing such forums, and declining to delete trash posts like these ones. But even if what he did reflects some lack of professional or other ethics, what the posters did reflects a far worse ethical standard. If Ciolli got some professional flak, the posters would likely get far more.

In any case, that's my main thinking. I'll also post a little shortly about a possible risk to one of the plaintiffs should the case go to trial (which is unlikely) — a risk that illustrates one of the many difficulties that libel plaintiffs face.

A while back, I briefly mentioned ATLEAST, NOT W/, and SY,DI() searches, and a lawprof friend of mine wrote me,

You can probably do a big favor to a lot of VC readers, including me, by explaining [these search options].

So here's a brief explanation.

All three of these help reduce the number of false positives returned by your Lexis (ATLEAST, NOT W/) or Westlaw (SY,DI()) search, without much increasing false negatives.

1. Lexis's pretty bad Index feature doesn't help much here -- try searching for ATLEAST and NOT W/, and you'll get nothing -- but if you look in the online help under Searching/Using Terms and Connectors/Connectors, and you'll see:

The NOT W/n connector tells the research software to find documents in which at least one occurrence of the first search term is not within n searchable words of the second term....

EXAMPLE: ... rico NOT W/2 puerto

This finds documents that have at least one occurrence of "rico" (possibly standing for Racketeer Influenced and Corrupt Organizations Act) that has no occurrences of the term "puerto" within two searchable words of it. This does not mean the same document could not have these two words within two searchable words of each other elsewhere.

So NOT W/ is better than AND NOT -- rico AND NOT puerto will miss cases that have both Puerto Rico and a standalone RICO, but rico NOT W/2 puerto will catch them.

2. The online help, if you properly navigate it, will also tell you about ATLEAST: Searching for, say, atleast10(copyright) will find all documents that contain the word copyright at least 10 times.

3. SY,DI() is a Westlaw connector: Searching (using terms and connectors, not natural language searching) for SY,DI(search terms) finds all cases that contain the search terms in the Synopsis -- usually a paragraph that appears at the start of the case and that was written by West, though for some courts by the court itself -- and in the Digest entries for the case. This will thus focus on what West has seen as the heart of the case's holdings, and skips casual mentions in the facts or in a parenthetical briefly discussing some other case.

Note that SY,DI() searching will exclude many unpublished cases, for which West often doesn't prepare synopses and digests, but that may be part of your goal.

If you folks have other such research tips to add, either as to Westlaw or Lexis, please post them in the comments.

Here, by the way, is Sir William Blackstone -- often a good guide to background legal principles as the Framing generation understood them -- on property in copyrights and patents:

There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions; so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right.

Now the identity of a literary composition consists entirely in the sentiment and the language: the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent.

This consent may perhaps be tacitly given to all mankind, when, an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway: but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert, and that, in the other, the whole property, with all it's exclusive rights, is perpetually transferred to the grantee.

On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials meaning thereby the mechanical operation of writing, for which it directed the scribe to receive a satisfaction; for in works of genius and invention, as in painting on another man's canvas, the same law gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, Martial, and Statius. Neither with us in England hath there been (till very lately) any final determination upon the right of authors at the common law.

But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19 hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statute 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac., I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee.

I am no historian of early copyright, but my sense is that copyright was pretty broadly referred to as property in the late 1700s and early 1800s -- though if you search for this, you had best search for the term literary property, rather than the somewhat more modern intellectual property. Justin Hughes's Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson discusses this well.

This is entirely consistent with treating this kind of property differently from other kinds of property in certain ways -- for instance, treating it as limited in duration, or subject to certain kinds of use by strangers that would not be allowed for land. My point is simply that there is at least a broad and deep legal tradition of treating copyright as property; such a view is no modern innovation, as some have suggested.

A commenter on the Madison / IP thread uses the intellectual property/tangible property analogy to argue for injunctions against infringement of intellectual property (apparently including infringement that doesn't interfere with the owner's use of the property), and goes on to say (in response to another commenter's argument),

[T]he analogy to trespass does not require an actual dimunition of your own use. It's 1L property law that a trespass is actionable even if nothing is broken, if you're not home, if your use of the property is not denied in any way. The offense is crossing the property line.

Now, the amount, impact, and circumstances of the trespass relate to damages, but liability starts from crossing the property line. There's not, nor has there been, a requirement that the property owner's actual use be diminished for there to be a trespass, as opposed to, say, conversion.

I can't say with confidence when injunctions should or should not be available in intellectual property cases; here, I just want to alert people to a common problem with analogies -- the simple problem that the analogized-to body of law is often more complex than the analogizer suggests.

For instance, let's assume that intellectual property is analogous in important ways to tangible property. There are (at least) two important classes of tangible property: real estate and personal property (also known as chattels, and generally just referring to all tangible property that is not real estate).

The "1L property law" rule to which the commenter refers is a rule applicable to real estate. But the rule for tangible property is different: As Restatement (Second) of Torts § 218 puts it,

The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.

See also Intel Corp. v. Hamidi, 71 P.3d 296, 302 (Cal. Supreme Ct. 2003).

Now maybe the rule as to personal property is wrong. Or maybe intellectual property is more analogous to real estate than to personal property. Or maybe many (most? all? some?) infringements of intellectual property are like those infringements of personal property rights that do warrant an injunction. Or maybe the analogies aren't really helpful here, and we should support injunctions against infringements of intellectual property for other reasons.

But the one thing that should be clear is that, even to the extent the intellectual property / tangible property analogy is sound (and it certainly is an analogy that's long been recognized in many respects by the law), we have to recognize that the analogized-to category is not legally homogeneous. Before we apply by analogy "1L property law" rules relevant to one class of tangible property, we should acknowledge that there are other rules relevant to another class of tangible property, and explain why we are choosing one sort of rule and not the other.

I've long disliked the "roadmap paragraphs" that many law reviews require you to write, usually as the last paragraph in the Introduction. Here's the one from my student article:

This Comment, in Part I, explains what speech harassment law restricts, and how it restricts it. Part II confronts the arguments, made by some courts and some commentators, that harassment law can already be justified under some of the existing First Amendment doctrines -- for example, as a time, place, or manner restriction, or a legitimate attempt to protect a captive audience -- but finds that none of the arguments has merit. Finally, Part III introduces the directed speech/undirected speech distinction, and argues that it is the most practical place to draw the line between harassing workplace speech that must be protected and harassing workplace speech that may be restricted.

Seems forced, boring, and hard to read -- yet unfortunately many roadmaps are framed pretty much the same way. (Just search for "Part I" in the same paragraph as "Part II" and "Part III" and you'll see.)

Yet I agree that having some roadmap of which part of the article will do what is useful. The key, I think, is to try to make the roadmap an integral part of the discussion, and the best way I've found is to make the Introduction itself a roadmap. Here's an example from my latest published article:

[Four hypotheticals that aim to illustrate my point omitted. -EV]

My claim is that all four cases involve the exercise of a person's presumptive right to self-defense--lethal self-defense in Katherine's case, and what I call "medical self-defense" in the others.

Part I [each part corresponds to one of the hypotheticals -EV] argues that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The lethal self-defense right has constitutional foundations in substantive due process, in state constitutional rights to defend life and to bear arms, and perhaps in the Second Amendment. But even setting aside those constitutional roots, the right has long been recognized by statute and common law. Even if the Supreme Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people's medical self-defense rights just as they protect people's lethal self-defense rights. While a legislature need not fund people's self-defense, it generally ought not substantially burden people's right to defend themselves.

Part II discusses one context in which medical self-defense has already been recognized: Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey secure not just a previability right to abortion as reproductive choice, but also a separate postviability right to abortion as medical self-defense when pregnancy threatens a woman's life. And it can't be that a woman has a constitutional right to protect her life using medical procedures, but only when those procedures kill a viable fetus; given that Alice has a right to defend herself even when doing so means aborting a viable fetus, Ellen and Olivia should have the same right to defend themselves through other medical procedures. Alice is free to have surgery in which a doctor inserts devices into her body to excise a fetus that, tragically, threatens her life. Ellen should likewise be free to have a procedure in which a doctor inserts chemicals into her body to destroy a tumor that threatens her life. And the government should not place substantial obstacles in the way of Olivia's having a procedure in which a doctor inserts an organ into her body to replace a failing organ that threatens her life.

Parts III and IV apply the abortion-as-self-defense and lethal self-defense analogies in more detail to experimental drugs and to compensation for organs. Part III argues that the right of medical self-defense offers extra support for the Abigail Alliance panel's controversial holding. Part IV contends that the right makes the organ sales ban presumptively improper and unconstitutional as applied to organs that are needed to protect people's lives; some concerns about organ transactions may justify regulation of organ markets, but not outright prohibition of such markets.

Part IV also argues that, while this presumption of impropriety and unconstitutionality is rebuttable, it should take much to rebut it. Recognizing medical self-defense as a constitutional or moral right means the government should need a very good reason to substantially burden that right, and any restrictions that do burden it should be as narrow as possible.

In particular, while the exercise of the right to medical self-defense may be regulated in some ways--for instance, to prevent organ robbery--such regulations can and should be far less burdensome than the current total ban on organ sales is. We respect and value self-defense rights enough that we allow lethal self-defense, despite the risk that a false claim of self-defense will be used as a cloak for murder. Rather than prophylactically banning all use of lethal force, we outlaw certain uses and rely on case-by-case decisionmaking to discover and deter these improper uses. A similar approach should apply to payments for organ transplants.

Finally, the Conclusion argues that a right to medical self-defense is not only logically supportable, but also viable both in political debate and in the judicial process. Both liberal and conservative judges and voters may be open to it, and I hope that the analogies in this Essay can be used to help persuade them.

The Introduction summarizes the argument in my article, and as it summarizes what is said in each Part, it refers to that Part. My sense is that this better lays out where everything goes, and does it without a clunky roadmap paragraph that no-one enjoys reading. One can also just include the same summary but include the part number references as footnotes.

What do others think? Does the Introduction-as-roadmap work better than the roadmap paragraph? Are there still better ways of solving this problem? Or is it a false problem -- should we just abandon roadmaps altogether?

Yukihime reports:

In a pique of boredom this evening I scanned in and annotated the map that comes with Tengai Makyou: Daishi no Mokushiroku (The 4th Apocalypse). This is a Saturn RPG famed for its historical parody humor; the first three games take place in Japan, but the fourth is set in America.

This map is basically what would happen if you got a bunch of Japanese guys in a room, got them drunk, and then asked them to draw what they could remember about America on a bar napkin.

Funny; and thanks to GeekPress, which should be on your regular reading list.

Compare Leo Tolstoy and Fyodor Dostoevsky. There are many possible axes of comparison, but I want to focus on their names. To his mother (and other compatriots), Tolstoy was and is Lev, since that's the Russian equivalent of Leo; yet to English speakers, he is Leo. Dostoevsky, on the other hand, could be Teddy. Well, OK, he wouldn't be, but he could be Theodore, since that's the analog of Fyodor; yet he remains Fyodor.

Likewise, compare Czar Nicholas (Nikolai) and Joseph Stalin (Yosif) with Mikhail — not Michael — Gorbachev. (I don't know why some people render Stalin's name as Josef, since it doesn't approach the Russian pronunciation any better; note also that while Stalin was born in Georgia, the name was borrowed into English from Russian, not from Georgian.) What's up there?

I have some suspicions, for instance relating to how similar the name is to the English version (which explains Lev becoming Leo, but Fyodor staying Fyodor, but doesn't explain Mikhail staying Mikhail), and relating to the time of English adoption. But I wonder whether others have studied this more closely, not just as to Russian but also as to other foreign-alphabet languages.

Related question: What about the occasional Anglicization of names from Latin-alphabet languages? The one example I know off the top of my head is Popes; is that just simply related to the Church's willingness to speak to people in their own language (even during the era when the Mass was in Latin), or is there more to it? Are there other examples?

Brannon Denning, guest-blogging at Concurring Opinions, is looking for some, for a book he's cowriting on the subject -- if you have advice, please pass it along.

No, wait, it's AARP Magazine, giving advice to its presumably mature readers. From 50 Things You Need to Know by 50:

44. Score a Day Off

Claim back pain. It's an easy injury to get medical documentation for, says Joe L., a workers' comp exec. "There's a 70 percent chance an MRI will show something wrong in your lower back, even if you feel fine."

So the advice is: Get a day off (just for fun, presumably, rather than because you have a genuine medical condition) by (1) lying to your employer, and (2) undergoing an unnecessary medical test, at the expense either of taxpayers or your fellow policy holders. (It's also possible that such tests would slow down service to genuinely ill people, though presumably over time more machines and demand would come available to serve the greater demand, and the long-term effect would just be higher cost.) Lovely.

I too found it hard to see any sensible justification for Judge Walton's footnote. Brief background:

Twelve current or former constitutional law professors — mostly conservatives, but also a libertarian (our own Randy Barnett) and two liberals (Vik Amar and Alan Dershowitz) filed an amicus brief arguing that (1) there are serious constitutional problems with special prosecutor Patrick Fitzgerald's appointment and (2) Scooter Libby thus has serious grounds for an appeal. This is relevant to the decision whether Libby should be let out on bail pending appeal, though the brief doesn't take a stand on this ultimate judgment, only on the inputs to that judgment (which is whether there's a close question about the appeal's merits). Four of the amici (Amar, Barnett, Dershowitz, and Judge Bork) also sign the brief as the lawyers.

Judge Walton allows the filing of the brief, but writes this odd footnote:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Yet this makes no sense. The point of amicus briefs is to express the signatories' views on some matter that they especially care about, in which they have a special interest or on which they have special expertise. A pro-abortion-rights organization, for instance, may file such a brief in an abortion rights case. Constitutional law professors who believe the Constitution, properly interpreted, supports abortion rights may do the same. No-one pretends that it's an "impressive show of public service," except insofar as any not terribly difficult action on behalf of a legal view that you think is the right view is a form of public service.

Such amici (whether advocacy groups or professors) surely incur no professional or moral obligation to start helping other litigants who raise other issues about which the amici don't are, or on which they lack expertise. Would you demand that a pro-abortion-rights professor who filed a pro-abortion-rights brief also file a brief in an assisted suicide case? Would you demand that he file such a brief even in an abortion rights case that raises a different issue? I would hope not — there's just no reason to think that because someone cared strongly about issue X he must now express his views about issue Y, or even that his views about issue Y would be helpful. The same applies here.

Now perhaps Judge Walton was suggesting that these amici would somehow have to file this brief only in cases that raise the same issue — the constitutionality of independent counsel. But while that's one way of interpreting his reference to "similar questions," it's not consistent with the rest of his footnote, in particular the preceding sentence: He's referring to "numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions" — but independent counsel prosecutions are not "numerous" (especially "throughout the courts of our nation"), and generally do not tend to involve litigants "who lack ... financial means to fully and properly articulate the merits of their legal positions." That's why I doubt that Judge Walton was only talking about the amici's supposed duty to file similar briefs only in independent counsel cases.

Yet even if he did mean this, what's the point of the sarcasm? I take it many of the signatories would be happy to express the same view in a future case raising the same issue. Some might not — and according to standard professional conventions, they are entitled to decide which litigants to speak on behalf — but many might. (Why would Amar or Dershowitz, to take the most obvious examples, treat a future Democratic special prosecutor target any worse than a future Republican?) The snideness thus seems at the very least premature.

Finally, as I understand it courts do have the power to require members of their bars (which may well not include many of the twelve amici) to represent some litigant, though that is a power that is rarely used today. But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel — such a requirement would, I think, be a violation of the right to be free from speech compulsions.

And it seems to me that it would be unconstitutional for courts to require someone to shoulder an extra burden as punishment, retaliation, or other reaction to that person's past constitutionally protected actions, here the filing of a brief before the court. (The filing of briefs before courts is generally protected from retaliation by the Petition Clause, at least so long as the briefs comply with the proper court rules.) So if the court is threatening, or even sarcastically pretending to threaten, that he will "call for" assistance in a mandatory sense — rather than just suggesting he would offer a nonbinding invitation — then that strikes me as threatening to do something the court is not allowed to do.

Thanks to Leibowitz's Canticle for first pointing me to this.

UPDATE: Thanks to commenter Leo Marvin for pointing out an error in my original post; I wrote that the brief urged that Libby be let out on appeal — in fact, the brief declined to express a view on the subject, though the likely and probably intended (by many signatories) effect of the brief is to support the claim that Libby be let out on appeal.