The Swiss Federal Ethics Committee on Non-Human Biotechnology's report, The Dignity of Living Beings with Regard to Plants. A sample:

The Committee members unanimously consider an arbitrary harm caused to plants to be morally impermissible. This kind of treatment would include, e.g. decapitation of wild flowers at the roadside without rational reason.

Conclusion 3 expresses the different moral stances according to which it is unanimously held that plants may not be arbitrarily destroyed, in accordance with Conclusion 1. As 3 shows, the majority considers this morally impermissible because something bad is being done to the plant itself without rational reason and thus without justification. A minority considers this treatment to be impermissible as well, but for another reason: because this destructive treatment of a wild flower expresses a morally reprehensible stance.

There's much more. Thanks to Manny Klausner and to this Weekly Standard article for the pointer.

As the Washington Post reports:

Acting as his own attorney, Pellicano made his closing arguments.... [He] addressed his jury. "Hi," he said. "This is the first time I will be able to speak for Mr. Pellicano." Because of the rules of the court, Pellicano the advocate must refer to Pellicano the defendant in the third person. You are correct: It is weird.

Well, it's weird by comparison to how people talk about themselves, but it's not weird by comparison to how lawyers talk about the defendant. To a lawyer, a closing argument that's chock full of "I"'s would sound very strange, and I take it the court's concern is that it will unduly personalize the process for the jury. So it's a slightly silly affectation in normal life, but legally compulsory in this unusual context.

Thanks to Language Log for the pointer.

Reeves v. C.H. Robinson Worldwide, Inc, decided Monday by the Eleventh Circuit, is the latest case illustrating how hostile environment harassment law may suppress constitutionally protected speech. The Eleventh Circuit held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.

Rather, her complaints, as described by the Eleventh Circuit were chiefly related to "sexually crude language that offended her." A fairly small part of the incidents involved sex-based insults ("bitch," "whore," and once "cunt") used to refer to women customers and another employee behind their backs. There was also casual use of the word "dick," and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker's computer; and the following:

Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women’s nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “sexual tyrannosaurus rex.” When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

The Eleventh Circuit expressly rejected the argument that, to constitute discriminatory harassment "based on" sex, speech had to actually specifically target the plaintiff as a woman (or, in other contexts, as a black, Catholic, or whatever else). There's a good deal of circuit precedent for this rejection -- but the consequence is that any speech, including radio programs, overheard conversations, and the like, that is "particularly offensive" to people because of their sex, race, religion, and so on is punishable. The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned." And because it implicitly expressed such degrading views, it could be punishable as harassing based on sex.

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).

But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). The government ought not be able to limit it, including through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech. Yet this is exactly what happens here.

What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).

On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?

I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. I generally don't fault employers for reacting this way. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.

Of course, many people are understandably upset about having to work around this sort of vulgarity, or for that matter around political speech that they find offensive based on religion, race, sex, and the like. But, as I've argued at length, preventing such offense -- whether in private workplaces, private educational institutions, privately owned places of public accommodation, or private housing complexes -- by punishing or imposing liability for speech (outside the narrow existing First Amendment exceptions) is not something that the government should be allowed to do.

I should also mention that the special First Amendment status of broadcast radio, under which some restrictions on vulgarities and even on content that simply discusses certain sexual themes have been upheld, is not relevant here -- the case didn't turn on this, and would have come out the same way if it had involved cable radio, or Internet radio, or CDs, or any other fully protected medium. (I think the lower protection for broadcast radio is itself unsound, but that's a separate matter.) I should also mention that the defendant didn't raise the First Amendment here, and the court therefore didn't discuss it.

Thanks to Michael Masinter for the pointer.

BBC reports (check out the video at that page for "before" and "after" pictures):

The photos of [Lee Spievak's] severed finger tip are pretty graphic. You can understand why doctors said he'd lost it for good.

Today though, you wouldn't know it. Mr Spievak, who is 69 years old, shows off his finger, and it's all there, tissue, nerves, nail, skin, even his finger print....

Mr Spievak re-grew his finger tip. He used a powder — or pixie dust as he sometimes refers to it while telling his story.

Mr Speivak's brother Alan — who was working in the field of regenerative medicine — sent him the powder.

For ten days Mr Spievak put a little on his finger.

"The second time I put it on I already could see growth. Each day it was up further. Finally it closed up and was a finger.

"It took about four weeks before it was sealed."

Now he says he has "complete feeling, complete movement."

The "pixie dust" comes from the University of Pittsburgh, though in the lab Dr Stephen Badylak prefers to call it extra cellular matrix....

Now if only he could regrow the "." after the "Mr". Thanks to InstaPundit for the pointer.

UPDATE: "Junk science," reports an English professor of hand surgery. "It looked to have been an ordinary fingertip injury with quite unremarkable healing. All wounds go through a repair process." Well, rats. I still hope the story pans out, though this criticism suggests it might not.

FURTHER UPDATE: Commenter PatHMV (Stubborn Facts) reports that Scientific American also mentioned the story, and reported that "the injury was treated with a protein powder that might have aided regeneration by acting as a scaffold for regrowing tissues" -- not a ringing endorsement, but also a suggestion that this isn't just junk science.

Traditional telephone harassment laws -- for instance, ones that ban calls (sometimes limited to anonymous calls and sometimes not) that are intended "to annoy, abuse, threaten, or harass any person at the called number" -- are generally thought to be constitutional. As to threatening calls, the First Amendment rationale is clear; they fall within the true threats exception. Likewise, if the law were limited to calls that are annoying for non-content-related reasons (e.g., they're placed at 3 a.m., or they happen twenty times over twenty minutes), it would be justified as a content-neutral restrictions.

But as to "annoy[ing]," "abus[ive]," or "harass[ing]" calls, the rationale is less obvious. The law restricts speech because of its content; the speech doesn't fit within any of the well-established exceptions; and even anonymous speech is usually constitutionally protected. In my view, the best justification for the restriction is that "One-to-one speech that's intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that's intended to annoy them. It has some value ..., but to the extent that it's in some measure deterred, the loss to public debate isn't that great -- speakers are still free to speak to others besides the person they're trying to annoy." And the same justification also extends to similar restrictions on harassing e-mail, which have recently sprung up. Yet we should recognize that the First Amendment issue is not entirely clear.

And the question is particularly unclear when the annoying speech is related to public debate, and especially when it's conveyed to public officials. In 1999, the D.C. Circuit set aside a harassment conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District); and the court seemed to suggest that speech "intend[ed] in part to communicate a political message" must be exempted from telephone harassment law. (Query, by the way, whether the same would apply to speech intended to communicate a religious message, a message on social issues, and the like.)

In any case, a similar question has just arisen in Washington state:

The Jan. 8 e-mail message, sent by "battleground anonymous" to members of the Battle Ground City Council, was a racist rant about Paul Zandamela, a black man who had been sworn in as a city councilman the previous evening.

"Our city government must be corrupt to have this (derogatory term) as an elected official," read the message in part. The message included four slurs and was signed, "Sincerely, a (derogatory term) hater."

That message and a subsequent note were traced to Christopher Reinhold, the son of Alex Reinhold, Battle Ground's deputy mayor ....

[Mayor Mike] Ciraulo received a second message that called him a "stupid (derogatory term) lover." ...

Reinhold is now being prosecuted for alleged "cyberstalking" based on his e-mail to Zandamela and Ciraulo (not his messages to other council members about Zandamela).

Please keep in mind, by the way, that telephone/e-mail harassment laws are very different from "hostile environment" harassment laws, and thus require different First Amendment analyses.

Here's what happens when you're enslaved by the myth that split infinitives are impermissible, discussed in detail by Geoffrey Pullum (Language Log):

The recent gift of a staggering $100,000,000 by a single person to Harvard University -- the largest gift from an alumnus in Harvard’s history -- has just been announced, in prose that suggests no matter how much money they may raise, the development and public relations staff at Harvard are afflicted by ancient irrational terrors:

David Rockefeller, a member of the Harvard College Class of 1936 and longtime University benefactor, has pledged $100 million to increase dramatically learning opportunities for Harvard undergraduates through international experiences and participation in the arts.

"To increase dramatically learning opportunities"? Feh. Read the post for more on the "unreasoning fear" of "a normal and fully grammatical construction of Standard English that is acknowledged as grammatical in even the most conservative reference works."

The matter seems to have been finally resolved, and resolved right (though the complaint should have been thrown out at the very beginning, rather than leading to a finding of racial harassment). Here's the letter from the Indiana University - Purdue University Indianapolis Chancellor:

I can candidly say that we regret this situation took place and that IUPUI takes this matter very seriously. IUPUI is committed to ensuring that its future approach to such matters is consistent with and affirms the long-standing commitment of this campus to the principles of freedom of expression, lifelong learning, and respect for the rights of all members of the IUPUI community. In the near future, IUPUI will be reexamining the campuswide affirmative action processes and procedures relating to internal complaints.

at Distributed Republic.

The Pacific Legal Foundation offers three new ones, one for students, one for untenured professors, and one for tenured professors, each at $5000. If you're interested in writing on the subject, or have already written a draft on it, check out the PLF's information page. Submissions (or, for tenured professors, proposals) are due July 1.

plus more on campaign transportation, here. Thanks to Michael Klein for the pointer.

An alternate title for the post below, just to bring traffic. (If you're a non-lawyer, see definition 14 for the relevant definition of "action.")

The line is reported at :

North Carolina Gov. Mike Easley (D) made his endorsement official this morning, saying that Hillary Clinton “gets it” and is a fighter who he said “makes Rocky Balboa look like a pansy.”

The editor of the Washington Blade (I'm still embarrassed that it took me years to get the pun in its name) reports on the controversy and dismisses it as overreaction (thanks to InstaPundit for the pointer).

But my thought, prompted by a glance in the Oxford English Dictionary, is that maybe we're misunderstood Gov. Easley:

3. slang.

a. A remarkable or outstanding person. Cf. DAISY n. 5. Now disused.

1899 G. ADE Fables in Slang 63 The Parishioners did not seem inclined to seek him out after Services and tell him he was a Pansy. 1920 G. ADE Hand-made Fables 62 For every Pansy in this conservative Town there were 14 Rutabagas.

Maybe he meant that for every pansy in the Senate race there are 14 rutabagas. Or for every pansy in Philadelphia. Or that Rocky was a pansy, and Hillary is a rutabaga? Not sure, but I thought I'd point out the possibility. Mmmm, rutabagas.

I stress again — it may well be that many or even all the FLDS parents are guilty of various crimes. But it's also important, in this case as well as in others, for the media to report statistical information in a useful way.

Take, for instance, this MSNBC headline, "Official: History of injuries to polygamist kids / At least 41 had broken bones; possible sex abuse of boys investigated." At least 41 kids have had broken bones — sounds like a serious problem.

But 41 out of how many? Paragraph seven reveals this: "More than 450 children are in state foster facilities from the raid."

What about the other information that would be necessary to make this data make sense? I refer, of course, to how many kids normally have broken bones without abuse. I don't know the percentage, but a quick Google search found [UPDATE: this replaces a much less reliable estimate I'd originally found] this study, which puts the risk of bone breakage at 1.3% per year per child (for 0-to-12-year-olds). Assuming this carries over to 0-to-18-year-olds (perhaps a mistaken assumption, especially since "The incidence increased linearly with age" up to age 12, but let's use it as a back-of-the-envelope estimate), this yields an estimate of about 20-25% of all minors having had a broken bone, which is to say that a minor of average age would have about a 10-12% chance of having had a broken bone. This can't automatically carry over to the FLDS kids, of course, for a variety of reasons; this is just one study that I quickly found; and some part of the broken bones reported in the study of may themselves have been caused by abuse. But still the "41" figure (which, recall, refers to children who "have had broken bones in the past") seems a lot less striking when one turns it into "under 10%" (41/450), and even less striking when one asks how this compares to the normal broken-bone rate among unabused children, which the study I found suggests is roughly 10% for the average child.

Now I stress again: Many of the FLDS kids might have been physically abused, even beyond the seeming early marriages of some of the girls and the alleged forced marriages of some of the girls and expulsion of some of the boys. The abuse rate might be higher than average. Of course the total broken bone rate may well be much higher than 10%, because not all the broken bones might have been identified. Sexual abuse at any rate, whether of teenage girls or young boys, is a serious crime that should be punished. And if there was indeed evidence of sexual abuse of young boys (with "young" meaning very young) then the removal of even small children might have been justified, contrary to my arguments below, which were based on press accounts that at the time had focused solely on the alleged sexual abuse of teenage girls.

But the particular news account here strikes me as a highly unhelpful, and potentially misleading, use of statistics, because it (1) includes the numerator in the headline, and leaves the denominator for paragraph seven, and (2) suggests that the number is significant evidence of abuse, without even trying to provide a comparison with the broken-bone rate among ordinary, nonabused children. The story does later quote the state agency as saying, "We do not have X-rays or complete medical information on many children so it is too early to draw any conclusions based on this information, but it is cause for concern and something we’ll continue to examine," but that does little, I think, to undercut the attention that MSNBC focused on the 41 number in its headline.

The recent discussion made me wonder about the actual legal norm as to general ages of consent. I set aside for purposes of this post what implications this data might have (though I hope to post soon some modest remarks on this, recognizing that of course the "ought" may well be quite different from "is," and inevitably has to be, given how many different "is"es there are).

Here I just want to summarize the data, which I've posted in this Excel spreadsheet. The age of consent information is based largely on Wikipedia (check out this map) and CoolNurse, with a little bit of checking on my part; certainly any scholarly work on this would have to rely on more reliable data, but this struck me as close enough for the rough aggregate results I'm reporting.

A few notes about how I chose the jurisdictions to survey. First, I thought that it would be most helpful to talk both about the U.S. separately, and the Western World more broadly, since we are part of a broader Western culture that shares a good deal in history and values, so that the other Western countries' judgment would at least be of some interest to us. The boundaries of the Western World are of course not precisely defined, but I basically chose the U.S., Europe West of the Iron Curtain (though including all of Germany and excluding the pinpoint countries), plus the Western Anglosphere, which is to say Australia, Canada, and New Zealand. My sense is that these are the countries that are most likely to be closest enough to us in cultural history and other values.

Second, I focused on what I call the "general age of consent," which excludes lower ages of consent when the other partner is within some range in age, or when the parties are married (which would generally require parental consent), and also excludes higher ages of consent when the other partner is in some specific position of authority over the younger partner (plus an unusual Massachusetts rule which sets the age of consent at 18 if the younger person is "of chaste life," the age otherwise being 16). Third, I focused (partly for the sake of convenience and partly because of the special moral significance of legal rules) on the legal rules, and not on social practices, which might on one hand frown on certain relationships that are legal, and on the other decline to enforce the law as to certain relationships that are illegal.

In any case, here's the summary of the data:

1. Throughout the Western World (population 750 million), sex is generally permitted with (for all items but the last, I give a percentage that includes the lower age-of-consent countries)

   • 13-year-olds for 6% of the population (Spain);

   • 14-year-olds for 27% of the population (add Austria, Germany, Iceland, Italy, and Portugal;

   • 15-year-olds for 38% of the population (add Denmark, France, and Sweden);

   • 16-year-olds for 77% of the population (add nearly all the remaining Western countries and 30 U.S. states plus the District of Columbia);

   • 17-year-olds for 88% of the population (add Ireland, South Australia, and Tasmania and 8 U.S. states);

   • only 18-year-olds and above for 12% of the population (12 U.S. states).

2. Within the U.S., the general age of consent is

   • 16 in 30 states plus D.C. (representing 45% of the population);

   • 17 in 8 states (representing 25% of the population);

   • 18 in 12 states (representing 30% of the population, California and Florida accounting for the majority of this).

3. The median in the U.S. is thus age 16 if you go by state count, but 17 if you go by population, though nearly half the population is in the age-16 states.

4. The median in the U.S. plus the Anglosphere is solidly age 16.

5. The median in the Western World is also 16.

6. The median in Western Europe is 15 (with 63% of the population living in 15-or-below countries).

7. Throughout the U.S., the general age of consent is always 16 or above (though this has been so only for the last several years). In the rest of the Western World, the general age of consent is always 16 or below, except for Ireland, South Australia, and Tasmania, which together account for a little over 1% of the non-U.S. Western population.

I stress again: I'm giving these numbers as potentially interesting data; I hope to talk in a later post about the implications of this data, but for now I just want to note the data. If there are errors in the data, please e-mail me corrections. And naturally please do not rely on any of this age-of-consent data as legal guidance for your own personal behavior ....

Last Summer, I asked,

Can anyone who knows something about modern Greece tell me what (if anything) the inhabitants of Lesbos -- Lesvos in modern Greek, I believe -- think about the term "lesbian"? Do they perceive it as annoying? Offensive? Amusing? Is there no dominant view on the subject? ...

A separate question, which might make some point, but which I stress is analytically distinct from the empirical questions I ask above: Say that the inhabitants of Lesbos find the term offensive. Should others, including lesbians, try to shift to a different term? Or should they go ahead with the term that they've used for a long time?

This Spring brings this lawsuit (from the AP):

Three islanders from Lesbos ... have taken a gay rights group to court for using the word lesbian in its name.

One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians.

"My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said.

[Lambrou and two women] are seeking to have the group barred from using "lesbian" in its name ....

Lambrou said the word lesbian has only been linked with gay women in the past few decades. "But we have been Lesbians for thousands of years," said Lambrou, who publishes a small magazine on ancient Greek religion and technology that frequently criticizes the Christian Church....

"Lesbian" as an Appellation d’origine contrôlée (a term closely linked to the term "geographical designation" that Lambrou uses)? OK, not quite, but still, intellectual property scholars should take note. Thanks to How Appealing for the pointer.

So reports The Register (U.K.). "The scientists reckon this will make biological research -- not to mention school biology lessons -- signifcantly less messy and traumatic, as it will no longer be necessary to cut the slime-filled creatures up in order to examine their innards."

By the way, while some frogs' skin might feel slimier than ours, aren't we all "slime-filled"?

Thanks to Michael Barclay for the pointer.

A school or university bans discrimination (based on race, religion, sex, and the like) by all student groups that want access to school property and school funds. The ban applies even when it seems contrary to the group's ideological mission — for instance, when a Christian student group is told that it can't limit membership to Christians (or a Muslim one to Muslims or an atheist one to atheists).

Do such bans violate the school or university student groups' rights of expressive association, see Boy Scouts v. Dale, or high school student groups' rights under the federal Equal Access Act? Or are they permissible school decisions about whom to give government benefits (such as access to classrooms or funds)?

Last Friday, the Ninth Circuit held, in Truth v. Kent School Dist., that such policies are indeed constitutional, and don't violate the Equal Access Act. The court remanded for findings on whether the policies were discriminatorily applied to this group because of its religiosity, given that the Men's Honor Club and the Girl's Honor Club were recognized even though their membership criteria violated the policy — but that's an implementation detail that I won't focus on further.

The court's constitutional reasoning seems oddly cursory to me: The court notes that Truth raised an expressive association claim, but it doesn't discuss that claim, or Boy Scouts v. Dale, the case on which Truth understandably relies in its briefs.

At the same time, as I've argued in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), the bottom line seems right — the government need not subsidize the student groups' right of expressive association, just as it need not subsidize abortion rights, private schooling rights, the right to lobby the government, and the like. Here's a table that illustrates this:

It's true that the government may not engage in (certain kinds of) viewpoint-based subsidies, see Rosenberger v. Rector. But — as I argue in more detail in my Stanford piece — this doesn't stop the government from declining to subsidize speech in content-neutral ways, or even in content-based but viewpoint-neutral ways. And a subsidy that's open only to groups that don't discriminate based on race, religion, sex, and the like in their membership decisions is a permissible viewpoint-neutral subsidy. True, the nondiscrimination rule reflects the enactors' viewpoint, but all laws, including content-neutral ones, do that. It also has a disparate impact on groups with a certain viewpoint, but again most speech restrictions, including content-neutrals, do that, too. The constitutionally significant point is that it is not triggered by the viewpoints expressed by the groups' speech, but rather by the groups' conduct.

I should say, by the way, that I think these nondiscrimination policies are not a very good idea, and not conducive to genuine diversity of viewpoints and ideas (which is often valuable even in high schools), especially when they apply to religion. After all, most ideological groups are free to open their membership only to people who agree with their ideology (the court gives as examples EarthCorps and the Gay-Straight Alliance), and that makes perfect sense: You want student groups to be effective voices for the ideologies they were organized to espouse, and you don't want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability.

It's true that religious groups' exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.

Nonetheless, while I think exempting groups this way is good policy, I think it's not a constitutionally mandated policy (and I'm inclined to say it's not mandated by the Equal Access Act, either, though I haven't spent as much time thinking about that). If you're interested in more detail on this, check out the article I cite above.

and I mean that in the best possible way:

The U.S. Patent and Trademark Office may have a major problem on its hands -- the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges.... The flaw, discovered by highly regarded intellectual property scholar John Duffy of George Washington University Law School, could also afflict the appointment of nearly half of the agency's trademark appeals judges.

A petition raising the issue has just been filed in the U.S. Supreme Court by a company whose patent was rejected by a three-judge Board of Patent Appeals and Interferences panel. That panel decision was subsequently affirmed by the U.S. Court of Appeals for the Federal Circuit, which set aside an $86.5 million infringement verdict won by the company.

The company's petition, drafted by veteran high court litigator Robert Long of Washington's Covington & Burling, contends that one of the three panel judges in its case was named to the board in violation of the Constitution's appointments clause. Translogic Technology v. Dudas, No. 07-1303.

The petition relies heavily on Duffy's analysis, which the professor published in an online IP journal....

Here's the opening paragraph of Duffy's article:

Under 35 U.S.C. § 6, administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO). That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority.

Read the rest of the piece (it's only 9 pages long) for more.

Thanks to How Appealing for the pointer.

My tentative sense based on media accounts, as I've mentioned before, is that there have been crimes -- likely very serious crimes -- committed at the FLDS compound. There are reports of outright forcible rapes, and it seems likely there was a good deal of statutory rape under Texas law. So it's very likely that there are lots of criminals living there; maybe most of the adults there are criminals; the police should be ferreting out evidence of this, and prosecutors should prosecute those who appear guilty. Nor do I have any sympathy for the FLDS people's lifestyle, which even if legal strikes me as pretty bad for the children.

But procedure matters, and it should matter when it comes to removing children from their parents and not just when it comes to criminal prosecution. There are good reasons why we don't just swoop in and arrest everyone who lives in a community where we think crime is taking place. If we could do that, we might find it easier to, say, prosecute the Mafia or street gangs; but we don't do that. Imagine what the nation would be like if we did.

Instead, we insist on individualized evidence of guilt. It generally takes probable cause to justify arrest, search, and pretrial detention. It takes proof beyond a reasonable doubt to justify criminal punishment. It takes proof by a preponderance of the evidence (though sometimes perhaps just probable cause) to justify some civil remedies, such as asset forfeiture (and when those standards are relaxed enough, and stop being individualized enough, people complain about them, too). The police can generally question people without any individualized suspicion -- the point of the questioning is often precisely to see whether such suspicion is warranted -- but for more coercive steps, something more is needed.

Now naturally when there is evidence of likely imminent danger -- whether to children or to others -- the procedures understandably become somewhat relaxed. The police, for instance, can search a home just with probable cause if there are exigent circumstances, with no need for a warrant. In certain situations, the police can even enter a home without probable cause, under the rubric of community caretaking (though the boundaries of that are complex and in some measure rightly controversial). Child protective services can temporarily isolate a child from parents who seem to be abusing the child, or likely to abuse the child shortly. But all that is where there is indeed evidence of likely imminent danger to particular people.

So if Texas had gone in and arrested those people as to whom there was probable cause to believe that they had committed crimes, I wouldn't object. If Texas had gone in and seized those children as to whom there was evidence of imminent danger, I wouldn't object. If Texas had seized some children for a few hours to conduct a physical exam, that would be closer to the border (in the absence of individualized evidence of likely harm), but I probably wouldn't object much there, either. And certainly the evidence required wouldn't t itself have to rise to proof beyond a reasonable doubt; that's a standard for a criminal trial, not for a preliminary seizure because of a material risk of imminent danger.

But from all I've seen in press accounts, there is no serious evidence of imminent danger to children and to infants. There is some suspicion that some, many, or maybe even all their parents have committed crimes against some teenage children (including aiding other adults' crimes, which is itself a crime). There is some evidence of imminent danger to teenagers. But that other children who live in the same community are harmed by some adults in the community isn't by itself adequate reason, I think, to take a small child away from his or her parents, before any evidence of actual crime by the particular parents or actual danger to the particular child is provided.

Again, imagine that the police had the power to seize all the infants and toddlers in a cohesive, culturally homogeneous neighborhood because there was evidence of serious and potentially teenager-threatening crime among many adults of that neighborhood (for instance, drug dealing, drug abuse, gang crime, and the like). That would surely be a powerful tool for law enforcement, and a powerful means to get evidence. It might even help some of the infants and toddlers, if you assume a good foster care system (not because the small children are in immediate danger from the crime, which may mostly affect teenagers, but because many of their parents might indeed be bad parents).

But it would put far too much power, I think, in the government's hands. And the traditional procedure -- arrest those as to whom you have probable cause, and take away children when you have concrete evidence that there is a threat to them in particular -- would have much (though not all) of the benefit without this dramatic increase in government power.

By the way, the careful reader may well have noted that there is an area in which we have had much broader government seizure authority -- war, and the handling of enemy combatants. The government has vast powers over people seized in foreign theaters of combat, especially when they aren't citizens. The government has also of course famously and controversially asserted similar powers over alleged enemy combatants who are citizens, and who are seized in the U.S. I think the power over foreign citizens, especially those seized in foreign country, is justified by tradition and necessity; I think some such power over U.S. citizens may also be proper, and historically recognized, but it too requires substantial procedural constraints.

Yet in any event surely everyone would agree that any such power over U.S. citizens in the U.S. is extraordinarily perilous. Even those who would leave the procedural rules chiefly in the federal government's hands would, I think, agree, though they conclude that the exigencies of war and the dangers of terrorist attacks that would kill anywhere from hundreds to millions justify this risk. Protection of children from abuse is important, but I certainly hope that we won't adapt the warfare model to it.

[See CORRECTION below.] I don't have a lot to say about the FLDS raid. It sounds to me like there might well be some criminal behavior by FLDS members, but at the same time I agree with David Bernstein that the raid seems vastly more intrusive than it needed to be, especially given the removal of small children as to whom (from all I've heard) there was seemingly no reason to fear imminent abuse. Such summary removal of small children, with no reason to fear imminent danger to them, is itself child abuse. As to the other details, I don't know enough to have a bottom-line opinion.

Here, though, is a non-bottom-line opinion on which I do have some confidence: This AP story (via Talking Points Memo and Victor Steinbok) is missing some very important data:

Child Protective Services spokesman Darrell Azar says 53 girls between the ages of 14 and 17 were living on the ranch in Eldorado. Of that group, 31 already have children or are pregnant....

Whatever we might think of marriages by 16- and 17-year-olds, Texas allows marriages at age 16 with parental consent. (It also seems to allow marriages of younger teenagers with a court order, but I set that aside for now.) Now of course this wouldn't count if the girl is a second or later wife in a plural marriage, since that doesn't count as marriage under Texas law. In such situations, the sex would be considered extramarital, and the age of consent would be 17 (unless the partner is less than 3 years older).

CORRECTION: The AP article that I cited was apparently a very much abbreviated version; the fuller version adds "Under Texas law, children under the age of 17 generally cannot consent to sex with an adult. A girl can get married with parental permission at 16, but none of these girls is believed to have a legal marriage under state law." So the AP at least noted the age of consent, and added a fact which suggests the 16-year-olds might not have been legally married (though I'd like to know more details about why this is so). Thanks to commenter jccamp for alerting me to this; I've corrected the post below accordingly.

So many of the 16- and 17-year-olds may have gotten pregnant with no law being broken, and in fact within a legally recognized marriage. Of course, many might have gotten pregnant at 14 or 15, or at 16 outside marriage and with an adult. And naturally if any of these pregnancies were the results of forced sex, that would clearly be a very serious crime. People who were complicit in this crime, or lesser crimes, should be held accountable. But the 31-out-of-53 number given by a Texas state spoken completely ignores the distinction that Texas law itself draws, and I suspect in a way that many readers won't immediately recognize on their own.

Some people might of course fault FLDS for encouraging the marriage of 16- and 17-year-olds [CORRECTION: or sex by 17-year-olds in a relationship they view as marriage but that is not a legal marriage], even if the girls are consenting and the marriages are permitted under the law. I wouldn't wish such a marriage on a 16- or 17-year-old daughter of mine. But I don't see such marriages as a justification for Child Protective Services action, unless there's some evidence of force or serious coercion (and evidence of force should of course be relevant even for marriages of adults).

It therefore seems to me CPS's statements in this case (or, if this is the AP's fault, the AP's report of CPS's statements in this case) should have focused on data that reflects illegal conduct and not on data that may reflect perfectly legal behavior. And if CPS doesn't know exactly which category any particular teenager falls in, the statements should have at least made that uncertainty clear.

UPDATE: The original version of my opening paragraph was apparently a bit confusing to some commenters -- I wrote, "... I agree with David Bernstein that the raid seems vastly more intrusive than it needed to be, especially given the removal of small children as to whom (from all I've heard) there was seemingly no reason to fear imminent abuse. Such a raid is itself child abuse." The "such a raid" referred to the aspect of the raid mentioned in the previous sentence -- the removal of small children, with no reason to think that they were facing imminent danger; I've revised that sentence to make that extra clear.

Today, at the National Press Club:

MODERATOR: What is your relationship with Louis Farrakhan? Do you agree with and respect his views, including his most racially divisive views?

WRIGHT: As I said on the Bill Moyers' show, one of our news channels keeps playing a news clip from 20 years ago when Louis said 20 years ago that Zionism, not Judaism, was a gutter religion.

And he was talking about the same thing United Nations resolutions say, the same thing now that President Carter is being vilified for, and Bishop Tutu is being vilified for. And everybody wants to paint me as if I'm anti-Semitic because of what Louis Farrakhan said 20 years ago.

I believe that people of all faiths have to work together in this country if we're going to build a future for our children, whether those people are — just as Michelle and Barack don't agree on everything, Raymond (ph) and I don't agree on everything, Louis and I don't agree on everything, most of you all don't agree — you get two people in the same room, you've got three opinions.

So what I think about him, as I've said on Bill Moyers and it got edited out, how many other African-Americans or European-Americans do you know that can get one million people together on the mall? He is one of the most important voices in the 20th and 21st century. That's what I think about him.

I've said, as I said on Bill Moyers, when Louis Farrakhan speaks, it's like E.F. Hutton speaks, all black America listens. Whether they agree with him or not, they listen.

Now, I am not going to put down Louis Farrakhan anymore than Mandela would put down Fidel Castro. Do you remember that Ted Koppel show, where Ted wanted Mandela to put down Castro because Castro was our enemy? And he said, "You don't tell me who my enemies are. You don't tell me who my friends are."

Louis Farrakhan is not my enemy. He did not put me in chains. He did not put me in slavery. And he didn't make me this color.

From Rev. Jeremiah Wright's Speech to the NAACP:

Different does not mean deficient.... Dr. [Janice] Hale showed us, that in comparing African-American children and European-American children in the field of education, we were comparing apples and rocks. And in so doing, we kept coming up with meaningless labels like EMH, educable mentally handicapped, TMH, trainable mentally handicapped, ADD, attention deficit disorder.

And we were coming up with more meaningless solutions like reading, writing and Ritalin. Dr. Hale's research led her to stop comparing African-American children with European-American children and she started comparing the pedagogical methodologies of African-American children to African children and European-American children to European children. And bingo, she discovered that the two different worlds have two different ways of learning. European and European-American children have a left brained cognitive object oriented learning style and the entire educational learning system in the United States of America. Back in the early '70s, when Dr. Hale did her research was based on left brained cognitive object oriented learning style. Let me help you with fifty cent words.

Left brain is logical and analytical. Object oriented means the student learns from an object. From the solitude of the cradle with objects being hung over his or her head to help them determine colors and shape to the solitude in a [carrel] in a PhD program stuffed off somewhere in a corner in absolute quietness to absorb from the object. From a block to a book, an object. That is one way of learning, but it is only one way of learning.

African and African-American children have a different way of learning. They are right brained, subject oriented in their learning style. Right brain that means creative and intuitive. Subject oriented means they learn from a subject, not an object. They learn from a person. Some of you are old enough, I see your hair color, to remember when the NACP won that tremendous desegregation case back in 1954 and when the schools were desegregated. They were never integrated. When they were desegregated in Philadelphia, several of the white teachers in my school freaked out. Why? Because black kids wouldn't stay in their place. Over there behind the desk, black kids climbed up all on them.

Because they learn from a subject, not from an object. Tell me a story. They have a different way of learning. Those same children who have difficulty reading from an object and who are labeled EMH, DMH and ADD. Those children can say every word from every song on every hip hop radio station half of who's words the average adult here tonight cannot understand. Why? Because they come from a right-brained creative oral culture like the [griots] in Africa who can go for two or three days as oral repositories of a people's history and like the oral tradition which passed down the first five book in our Jewish bible, our Christian Bible, our Hebrew bible long before there was a written Hebrew script or alphabet. And repeat incredulously long passages like Psalm 119 using mnemonic devices using eight line stanzas. Each stanza starting with a different letter of the alphabet. That is a different way of learning. It's not deficient, it is just different. Somebody say different. I believe that a change is going to come because many of us are committed to changing how we see other people who are different.

Now perhaps Rev. Wright is right that black children have different cultural upbringings, that yield different learning styles. I'm skeptical about many of his particular theories, but the notion that differences in pupils' culture affect education surely makes sense. And I also agree, of course, that "different" does not inherently mean "deficient."

But "different" — especially substantially different — may well mean less successful at some things, and more successful at others. "[L]ogical and analytical" is pretty important in lots of fields, and not just because the European-American-founded "educational learning system in the United States of America" says so. So if Rev. Wright is correct, that this strongly undermines the oft-heard claim that disproportions (even including substantial disproportions) in the representation of various ethnic and racial groups in education or employment is strong evidence of discrimination. Perhaps it's just that some "ways of learning" (especially associated, for instance, with the culture of Asians, Jews, or whites generally) are conducive to success in one field and other "ways of learning" are not.

Now of course it's also possible that different cultural "ways of learning" yield equally effective results, and that the disproportions in representation are caused solely by racial or ethnic discrimination, or by the system's relying on irrelevant differences in "ways of learning" rather than on actual success or knowledge. But why should we think this is so? Why should we assume that "logical and analytical" approaches will inherently yield no better and no worse results as their "[r]ight[-]brain[ed]" "creative and intuitive" "[s]ubject[-]oriented" alternatives?

UPDATE: I've corrected a couple of what seem to be transcriber errors in the block quote.

This cover:

is causing controversy (see here and here), apparently because of the supposed similarity to King Kong posters. A sample objection: "[T]here is a long history in the United States of imaging black men as brutish, and comparing black people to monkeys and apes. A good deal of racist propaganda has rested on those images, and they’re a deeply ingrained part of our cultural history. That’s why this Vogue cover, which plays on racist imagery, is troubling."

Here's my thinking on the matter: The first thing I look to in this sort of picture, and I think the first thing most viewers look to, is what the characters are doing, and what aspects of the characters' personality this highlights. The woman here is smiling; Jezebel suggests the "photo ... casts the black man as 'big and scary,'" but that's hard to reconcile with the woman's obviously not being scared.

The man is shown with a basketball, a clear reference to his being celebrated as being a master at his game; in the context of his being a sports player, and in the context of the headlines, his fitness is also being celebrated. While size and fitness in men may be seen as threatening in some contexts, they are an obvious asset in a basketball player. So far, the cover seems like a positive portrayal of both characters, but especially of the man — he's being featured as competent, as having a figure that most men would aspire to, and as being embraced by a beautiful woman who obviously seems to be enjoying his company.

Now what about the scream, which Jezebel contrasts with a much more "civilized" (in quotes) alternative picture Jezebel points to? My guess is that the answer to her own questions, "Were they looking for something more dynamic and animated? Did they want something with action, with impact?" is "yes" and "yes." The scream is more eye-catching; and beyond that, a sportsman screaming with a basketball immediately off his hand conveys the message of athletic enthusiasm, not of threat. A large, fit man dressed in gangbanger-style clothes screaming might be "scary"; gangbangers are scary, as are many kinds of screams. A black man dressed in basketball clothes dribbling a basketball and screaming, while being embraced by a beautiful smiling woman, is not.

So that's what I got from the image on its own. But is it supposed to remind viewers of the other image contained in various King Kong posters, as Jezebel suggests in showing the two side by side, or otherwise "play[] on racist imagery"?

If it was, then it didn't work with me. Maybe that's because King Kong (and visual iconography more generally) occupies a small corner of my brain — but even if there is such a reminder for some viewers, the image remains obviously a celebratory picture of LeBron James, with a message that is obviously very different from that conveyed by King Kong and Fay Wray. It's praise, not a pejorative; it portrays James as successful and admirable, not "brutish."

Artistic visual images are notoriously difficult to pin down into a single unambiguous statement, especially when one adds to them all the possible allusions that the images can contain, so I'm not surprised that others may get a different view. But my sense is that the thematic differences here overwhelm any possible visual similarities (or even deliberate visual references, if there are any).

Thanks to InstaPundit for the pointer.

UPDATE: Commenters pointed me to a datum I missed -- one of James' nicknames is "King James," which increases the likelihood that there is a deliberate allusion to "King Kong" here (and I suppose somewhat increases the likelihood that Vogue readers would be reminded of the King Kong posters, though my guess is that most Vogue readers are not basketball experts). On the other hand, it further suggests that the allusion, if allusion it is, is a positive one: What would link the two is that they are Kings (not the Sacramento kind).

Opinion here; Justice Stevens, joined by Roberts and Kennedy, and Justice Scalia, joined by Thomas and Alito, were in the majority, though there's an internal split among the two groups on some aspects. Hope to have more later. [UPDATE: Skimmed the opinion and didn't find that much I could say that others haven't been saying, so I probably won't have much more on this, at least today.]

I'm delighted to report that Prof. Robert Brauneis (of the George Washington University Law School) will be guest-blogging this week, about Happy Birthday to You. Brauneis teaches copyright, trademark and property law at GW, and is co-director of GW's intellectual property program, and during his visit here he will focus on his article, Copyright and the World's Most Popular Song. Brauneis writes:

My curiosity about [Happy Birthday to You] was originally piqued by Justice Breyer's comment in his Eldred v. Ashcroft dissent that the song was "copyrighted after litigation in 1935." Since registration has always been a prerequisite for federal copyright litigation, how could the song have been copyrighted after litigation? I eventually came to the answer to that question (the litigation was about the song's melody, and the combination of melody and words was allegedly first published with notice after the complaint was filed). But by then I was hooked. My inquiries ended up leading me to archives in New York, Chicago, Louisville, and Eugene, Oregon.

The historical thesis of the article is that two pieces of received wisdom about the song -- that it is basically an unoriginal folk song, and that it is still under copyright -- are both wrong. That leads me to suggest that there are some dangers in using anecdotes in policy arguments. It also leads me to argue that the collective action problems involved in challenging copyright validity can be quite serious: "Happy Birthday to You" makes an estimated $2 million per year, yet in spite of serious weaknesses in the copyright, no one has ever challenged it, and it is likely that no one ever will.

Finally, I make some specific suggestions. I argue that as the term of copyright lengthens, there is good reason for incorporating an adverse-possession-like doctrine in copyright law, to clear title and to protect expectations that have arisen during a long period of copyright-holder inaction. I also argue that the Copyright Office should institute better recordkeeping policies, because many of the records relevant to determining copyright issues about older works are now lost or discarded.

I much look forward to Prof. Brauneis' posts.

The AP reports,

Federal alcohol regulators ... have ordered [Vaune] Dillmann [a brewer in the town of Weed, California] to stop selling beer bottles with caps that say "Try Legal Weed." The agency, which regulates the brewing industry, said the wording could "mislead consumers about the characteristics of the alcoholic beverage." ...

What next, going after Fat Weasel Ale on the grounds that the beer actually doesn't contain any fat weasels? Is an appreciable number of customers really likely to assume that "Legal Weed" actually legally includes marijuana, which I take it is the supposed likely confusion?

Thanks to Kate Fulton for the pointer.

Very troubling, if accurate; the New York Times covers the story, but here are excerpts from the Complaint:

11. On July 31, 2007, plaintiff Hall attempted to conduct and participate in a meeting of individuals who consider themselves atheists, freethinkers, or adherents to non-Christian religions. With permission from an army chaplain, plaintiff Hall posted flyers around COB Speicher announcing the meeting. The meeting attendees included plaintiff Hall, other military personnel and nonmilitary personnel.

12. During the course of the meeting, defendant Welborn confronted the attendees, disrupted the meeting and interfered with the plaintiff Hall's and the other attendees' rights to discuss topics of their interests. During the confrontation, and because of plaintiff's actions in organizing the meeting, defendant Welborn threatened plaintiff Hall with an action under the Uniform Code of Military Justice and further threatened to prevent plaintiff Hall's reenlistment in the United States Army....

21. When plaintiff Hall learned that he would be denied an appearance before the promotions board, he sought counseling from Sergeant Van Hise, who informed plaintiff Hall that since he was "under investigation," he was not eligible for an appearance before the promotions board. Sergeant Van Hise stated that plaintiff Hall was unable to put aside his personal convictions and pray with his troops. Sergeant Van Hise believed this to be a constraint on Army morale and would limit plaintiff Hall's ability to bond with his troops. Plaintiff Hall responded that religion is not a requirement of leadership. At this, Sergeant Van Hise questioned how plaintiff Hall could ask for religious freedom when in fact, as an atheist, he has no religion. Plaintiff Hall replied that the United States Army Chaplain's manual protects atheism.

By the way, I do agree that differences in religious belief — or for that matter, racial differences — may indeed impair morale in some measure. But it seems to me that both current military rules and broader American legal principles of racial and religious equality and tolerance should lead the military to try to deal with these morale problems by means other than racial and religious discrimination. So, as I said, if the allegations are accurate, this strikes me as very troubling. Here, by the way, is what the Times story says about the factual dispute:

Major Welborn declined to comment beyond saying, “I’d love to tell my side of the story because it’s such a false story.”

But Timothy Feary, the other soldier at the [atheist] meeting, said in an e-mail message: “Jeremy [the plaintiff] is telling the truth. I was there and witnessed everything.”

I should note that it's not clear that some of the other conduct the lawsuit complains of (see paragraph 26) is unconstitutional (even if the factual account is accurate). For instance, "use of official military e-mail accounts to send e-mails containing religious rhetoric" might, depending on the circumstances, be permissible (for instance, if the message is the sender's own personal views, much as a President or other government official may often properly give a speech including religious rhetoric). But job discrimination against atheist military members, or attempts to break up atheist meetings, should be as improper as job discrimination against Jewish or Christian military members, or attempts to break up Jewish or Christian meetings.

Thanks to Adam Kaplan for the pointer.

A commenter on the thread below suggested that someone ought to respond to "[Michael Hirsh's] claim on the merits." The trouble is that the claim is so vague and impressionistic that it's hard to see just what to say about it. Are Southern/Southwestern mores "savage [and] unsophisticated"? Are "Yankees" from the "Northeast and upper Midwest" generally "more diplomatic [and] communitarian"? Where exactly is one to find good definitions for those terms, much less figure out which region best exemplifies them?

Likewise, when Hirsh says that, "the realism and internationalism of the Eastern elitist tradition once kept the Southern-frontier warrior culture and Wilsonian messianism in check," he's presupposing that there's a boundary between "the Eastern elitist tradition" and the views of Wilson, who was President of Princeton and a professor at Bryn Mawr and Wesleyan (though admittedly he was born and studied and practiced law in the South), all Eastern elitist institutions. Where precisely is that boundary, which we'd need to identify to see whether Hirsh's statement is indeed accurate?

Similarly, what exactly counts as a "coarsened sensibility," or "the shallowest sort of faux jingoism"? Not exactly the sorts of terms that are precisely enough defined to be conducive to careful analysis. And what's "faux jingoism," incidentally? Is it something that pretends to be real jingoism, but actually isn't genuinely jingoistic enough to count?

There are, I suppose, some things that one might test about Hirsh's claim, for instance whether "Jesus Christ Superstar" is indeed likely to be seen as more "blasphemous" than it was when it debuted; there are probably surveys on the subject, and I'd be happy to hear what people have to say about this. Another example that at least uses terms crisp enough to evaluate, is whether the "United Nations ... [is] are critical to missions like nation-building in Afghanistan"; presumably people who are more knowledgeable than I am on the subject can discuss whether the UN really has a good track record with nation-building in combat zones.

And there are some logical lapses, such as the complaint about "Hillary Clinton pander[ing] shamelessly to Roman Catholics, who have allied with Southern Protestant evangelicals on questions of morality" -- aren't those Roman Catholics mostly in the supposedly good Northeastern and Upper Midwest states, and didn't they come by their views and attitudes through their own cultural patterns, and not through the supposedly malign influence of Southerners and Southwesterners? Similarly, consider "Barack Obama seems to be so leery of being identified as an urban Northern liberal that he's running away from the most obvious explanation of his association with the Rev. Jeremiah Wright and former Weatherman Bill Ayers: after Obama graduated from college he became an inner-city organizer in Chicago, and they were natural allies for someone in a situation like that." That may be a good factual explanation, but does it really respond to the concern of many people -- all over the country -- that liberals should find better allies than that, and should be faulted when they do indeed make such alliances?

But at bottom, the overall piece doesn't strike me as a "claim" that can be sensibly confronted "on the merits." It's a rant. You can buy it or not, and be entertained by it or not, but you can't really substantively confront its core arguments.

From a Newsweek column by Michael Hirsh:

[A] substantial portion of the new nation [the South and much of the West and Southern Midwest] developed, over many generations, a rather savage, unsophisticated set of mores. Traditionally, it has been balanced by a more diplomatic, communitarian Yankee sensibility from the Northeast and upper Midwest. But that latter sensibility has been losing ground in population numbers--and cultural weight. The coarsened sensibility that this now-dominant Southernism and frontierism has brought to our national dialogue is unmistakable.

So here's my question: It sounds like the author is trying to align himself with the "diplomatic" "Yankee sensibility," and against the "savage, unsophisticated set of mores" of various other states. But is that a "diplomatic" approach or a "coarse[]" one? The answer seems rather unmistakable to me.

Thanks to InstaPundit for the pointer.