(Again, for more details, please read the article.)

All the general no-stun-gun jurisdictions, plus Arkansas, Indiana, Minnesota, New Hampshire, Las Vegas, and probably Oakland and San Francisco, ban under-18-year-olds from possessing and carrying stun guns. Illinois and Maryland ban them from possessing and carrying irritant sprays. New Jersey, New York, Annapolis, Aurora (Illinois), Baltimore, and Washington, D.C. ban them from possessing and carrying either stun guns or irritant sprays, and of course guns, thus leaving under-18-year-olds entirely disarmed.

Few people would give a stun gun or irritant spray to a small child: They would rightly worry that the child will use the device irresponsibly, which likely won’t lead to death but would lead to severe and unnecessary pain, for the child himself or a playmate. They would rightly suspect that the child will be unlikely to know when he needs to use the device defensively, and unlikely to use it effectively when he does realize the need. And they would rightly suspect, especially for young enough children, that the child’s risk of being the target of violent crime is much less than an adult’s risk.

Yet it does not follow that older minors, such as 16-year-olds, should be denied such defensive tools as well. Girls age 15 to 17 are three times more likely to be victims of rape or sexual assault than women 18 and over. Older teenagers are often victims of other crimes as well. And older teenagers are likely about as able as adults to effectively use a stun gun, and to know when the need for self-defense arises. California and Florida law, incidentally, allows minors 16 and over to possess stun guns, so long as they have a parent’s consent; many other states have no prohibitions at all on minors’ possessing stun guns.

Older teenagers are likely to be less mature than adults, and might thus be tempted to misuse stun guns and irritant sprays, for instance for juvenile pranks or for revenge. But we do have a benchmark for thinking about when teenagers should be treated as mature enough to possess such nonlethal devices: Throughout the U.S., teenagers 16 and above are routinely given access to deadly devices, despite the risk that they will misuse those devices, and despite the temptation that those devices offer for such misuse.

Those devices, of course, are cars. Car accidents involving 16- and 17-year-old drivers kill over 1500 Americans each year. These older minors are tempted to drive cars too fast, or even deliberately race them. Some such minors use their cars to further other crimes, for instance to get to and away from a robbery, or to more effectively deal drugs. (Many crimes become much harder to commit without access to a car.) Yet despite that, we are willing to run the risk, even the certainty, of death and crime to allow 16- and 17-year-olds to drive.

Minors are allowed to drive because the aggregate benefits are seen as more important than the injuries and deaths that minors’ driving causes. When minors may drive, they can much more easily hold jobs. Letting minors drive is more convenient for their parents, who no longer have to drive their older children to school or to meet friends. Letting minors drive gives the older minors more freedom to do things that they enjoy. And driving sometimes even makes minors safer from crime, for instance if the minor can drive to a nighttime job instead of walking down a dark street to and from a bus stop.

But there are also benefits to letting older minors have nonlethal defensive weapons. When minors can effectively defend themselves, they can much more easily have certain jobs, because they can be more secure when going to and from work. Letting minors have nonlethal weapons gives them more freedom to do things that they enjoy, and lets them enjoy those things more because they worry less about being attacked. And letting minors have nonlethal weapons makes them safer from crime.

And it does all this without being likely to cost 1500 lives, as driving by 16- and 17-year-olds does. At most, it might lead to some extra crime by immature older minors, something that is largely deterrable by criminal punishment for misuse of the weapons -- more so than as to cars, since most injuries involving cars are accidental and thus harder to deter, while most misuses of nonlethal weapons would likely be deliberate.

Consider also our attitudes to martial arts classes, or for that matter self-defense fighting classes (such as Krav Maga). Knowing how to fight is useful for self-defense, but, as with a nonlethal weapon, it can also be used in crime -- whether robbery, bullying, revenge, an attack on a romantic rival, or many other things that an immature 16-year-old might want to do. While manual attacks only very rarely kill, the same is true for stun gun or irritant spray attacks. And manual attacks can inflict both serious pain (though probably less than with stun guns) and lasting injury (probably more likely than with stun guns or irritant sprays).

Yet our reaction to martial arts classes or self-defense fighting class¬es is not “save them for 18-year-olds, who are mature enough to use their training wisely.” Rather, we applaud minors’ taking such classes, even when the minors are quite young.

This is partly because we think the classes are good exercise, or teach discipline. (The classes may also teach an ideology of responsibility and restraint in using martial arts techniques, but naturally some students can learn the techniques while rejecting the ideology.) But I take it we’d applaud a child’s taking classes even if the child’s purpose was expressly to learn self-defense, and even if the class was designed for that rather than for more extended learning of martial arts as sport, philosophy, or fitness training. We would recognize that self-defense is valuable enough that children should be able to learn to defend themselves even when that also teaches them to attack. Why shouldn’t the same be true, especially as to older minors, for defensive tools as well as defensive techniques?

(We might also think that children who take martial arts classes are especially likely to be “good kids” because they are willing to work hard. But the main concern I’ve heard about older minors’ possessing stun guns has to do with the minors’ lack of maturity, and willingness to use such devices in anger or as a prank. Such lack of maturity is not inconsistent with willingness to work hard.)

To be sure, these analogies are not perfect. Among other things, because nonlethal weapons are less lethal than cars it may be proper to let minors have nonlethal weapons even before they reach driving age. That is in fact the policy in most states, which put no age limit on stun guns and irritant sprays (as well as in Washington, which has deliberately set the irritant spray age limit at 14). On the other hand, my suspicion about the likely rarity of children’s misuse of nonlethal weapons is speculation, for much the same reasons as those mentioned earlier as to adults. If an increase in legal nonlethal weapon possession by 16- and 17-year-olds leads to thousands of stun gun or pepper spray pranks each year, and to very few defensive uses, the case for prohibiting such possession would be stronger (though the analysis would still have to weigh the degree to which stun gun possession deters attacks on older teenagers, and thus makes defensive uses unnecessary).

But absent such evidence, we shouldn’t dismiss older minors’ need for self-defense, just as we shouldn’t dismiss adults’ need for self-defense. And our willingness to run what are likely much greater risks by letting older minors use lethal cars should further counsel in favor of running lesser risks by letting the older minors use nonlethal weapons.

A funny video, with a government program to go with it. And note the Doonesbury connection.

I blogged about this two years ago, and concluded that the site would and should win under the fair use doctrine. Yesterday, the Fourth Circuit accepted the site's fair use claims. Here's my summary of the matter from last year, though you might instead just read the Fourth Circuit opinion:

Turnitin.com is a commercial service that aims to help educators catch plagiarism in student papers. Schools require that student papers be submitted to the site, which (1) checks each student paper against its database, and (2) adds each student paper to its database so that future papers can be checked against it. I take it that the database already contains papers from commercial term paper mills, encyclopedia entries, and the like; but adding student papers helps spot students who are copying from classmates, or from friends at other schools, as well as students who are copying from publicly available sources.

But, the high school student plaintiffs say, step 2 violates our copyright: You folks are making money by copying our papers onto your servers. The consent you get from us is inadequate because we are coerced to give it (especially plausible, I take it, when the students are students at public high schools, and when they are within the compulsory school attendance age range). And your use is not fair use, chiefly because it's commercial....

Turnitin.com's strongest fair use argument (which would be needed if the court concludes that the student did not voluntarily consent to the use of their works) is that though their use is commercial, it is

1. transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism --

2. is in aid of others' nonprofit educational mission, and

3. does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.

The students' strongest response would essentially be that if Turnitin is making money from the students' works, the students are entitled to a share of that, and Turnitin's using the works for free interferes with the students' ability to license their papers to Turnitin itself. The most familiar analogy here would be if Steven Spielberg decides to make a movie out of your novel. It may well be that the movie won't interfere with the value of your novel -- it may even increase your sales--— but his making the movie without paying you interferes with your right to license movie rights to the novel. (Some condemn this as circular reasoning, but I don't think that's quite right, and in any event it is precisely the reasoning that lets authors profit from selling movie rights to their books, and that bars moviemakers from just using the books for free and claiming fair use.) If anything, the students would say, our case is even stronger because our works are unpublished, and the unpublished status of a work is generally seen as cutting in favor of the work's owner and against the fair use claims of the user.

[But] I'm pretty sure Turnitin would and should win, because (1) the value of the licensing rights in their papers would in any case be next to nil, (2) Turnitin's use is transformative -- in the sense that it uses the original to make something that's very different (much as a parody or a photo search engine that presents thumbnails of others' photos is transformative, though not quite in the same way) -- and therefore is not within the authors' legitimate licensing rights (cf. the Supreme Court's holding that "there is no protectible derivative market for criticism"), and (3) the unpublished status of plaintiff's work should only matter when the defendant is trying to publish the work (or a version of the work), which it isn't doing.

(As before, see the full article for more.)

In ten to twelve states, even law-abiding adults generally can’t get licenses to carry concealed handguns. In those states and for those people, stun guns would be the most effective available defensive weapon. In fact, in California and Delaware (except Wilmington), stun guns may indeed be carried even though handguns generally cannot be.

But in the no-stun-gun no-handgun-carry jurisdictions -- Hawaii, Massachusetts, New Jersey, New York, Rhode Island, Wisconsin, Annapolis, Baltimore, the Virgin Islands, Washington, D.C., and Wilmington -- law-abiding citizens are entirely denied the most effective defensive weapons in public. And noncitizens and nonresidents in Massachusetts are denied such weapons, as well as irritant sprays, both in public and at home.

Even in those no-stun-gun jurisdictions (Michigan, Akron, New Orleans, Philadelphia, and South Bend) where handgun carry licenses are generally available, 18-to-20-year-olds are nonetheless not allowed to get such licenses. They are therefore likewise denied both firearms and stun guns in public places. Yet 18-to-20-year-old women need defensive weapons more than most adults do: The average 18-to-24-year-old woman’s risk of being raped is 5 times greater than the risk for the average woman age 25 and above.

Legislatures that ban both carrying stun guns and carrying handguns can at least say they are worried about the criminal uses of weapons generally, not just about the rare situations where a stun gun would be misused but a handgun would not be. And indeed stun guns can be used both for crime and for self-defense.

But this is likewise true for the criminal law justification of self-defense: Allowing lethal self-defense lets some deliberate murderers (or people guilty of voluntary or involuntary manslaughter) get away with their crimes by falsely claiming self-defense. The killer is alive, and able to claim he was reacting to a threat from the victim. The victim is dead, and can’t rebut the killer’s claim. The killer doesn’t have to prove the victim had a weapon, since it is enough for him to claim that the victim said something threatening and reached for his pocket. And the prosecution has to disprove the killer’s claims beyond a reasonable doubt.

Sometimes the jury will see through the killer’s false claims of self-defense, and conclude the claims are false beyond a reasonable doubt. But sometimes it won’t, and the killer will be acquitted. And sometimes a killer will be emboldened to kill by the possibility that he might get away on a self-defense theory. The self-defense defense is thus crime-enabling as well as defense-enabling.

So are irritant sprays, which are now legal nearly everywhere in the United States (of course with the narrow exceptions noted above), though they are indeed sometimes used by criminals. So are the skills taught in fighting classes, whether the classes focus on street fighting (such as Krav Maga), Asian martial arts, or boxing. Someone trained in these things can use the skills for crime -- whether robbing someone or just beating someone up -- as well as for lawful self-defense. (Some of the classes also provide physical fitness and recreation, but some, such as Krav Maga, are focused chiefly on self-defense.) Yet these classes are not only lawful, but generally seen as socially valuable.

Among other things, we expect that criminals will already have plenty of tools -- often deadly ones, such as guns and knives -- for committing crimes. The marginal benefit to criminals of fighting skills is thus comparatively small. But the marginal benefit to law-abiding citizens of such skills is quite large, especially if the citizens are barred by law from carrying deadly weapons.

Stun guns and irritant sprays are in this respect much like fighting skills. Such weapons might be more effective than mere unarmed combat for committing crimes. But they are likewise more effective for self-defense. And for some people -- such as the weak, the disabled, or those whose work or family commitments keep them from taking classes -- unarmed self-defense is just not much of an option, while stun guns are.

It seems to me, then, that stun guns and irritant sprays should likewise be allowed. The law rightly values self-defense, which should include effective self-defense. Nonlethal defensive weapons dramatically facilitate self-defense. They also facilitate crime, but comparatively slightly (again, because criminals have access to many other tools, both highly deadly, such as guns and knives, and less deadly, such as blunt weapons), and at a lower level of harm than lethal weapons such as guns and knives. The protection they offer to law-abiding citizens should justify allowing them, despite the modest risk of crime they pose.

The Roanoke Times has the story, including the audio of a 911 call that "represents close to 13 minutes of conversation between [the homeowner], his wife and a 911 dispatcher"; it's not clear exactly what fraction of the 13 minutes was the time it took the police to respond, but it appears that it took many minutes for the police to arrive: "About seven and a half minutes after Hoover calls 911 [because Jones was outside shouting], Jones shatters the glass door with a wrought-iron chair and tries to come in." This may well not be the fault of the police, but it does reveal the value of private self-defense and not just of relying on the police.

Here's the summary,

In the 911 recording, Jody Hoover calls the sheriff's office and tells a dispatcher that there is a "strange man outside our home, and he's hollerin' and he's crying out. I don't know what's going on with him."

Hoover hands the phone to his wife while he gets his double-barreled, 12-gauge shotgun.

Jones can be heard yelling and repeatedly banging on the back sliding glass door.

Hoover's wife tells the dispatcher that the man is talking about Vietnam and 1969, and that he asked Jody Hoover for the date.

Hoover talks to the man from inside. "I don't want to hurt you," he says. "I can't let you in.

"Please, just go away. Please."

About seven and a half minutes after Hoover calls 911, Jones shatters the glass door with a wrought-iron chair and tries to come in.

Hoover told authorities that he shot at Jones twice. Deputies arrived at the house as the shots were fired. Jones was pronounced dead at Carilion Roanoke Memorial Hospital....

In 2005, Jones was found guilty in Botetourt County of brandishing a firearm and in 1999 and 2000 he was found guilty in Roanoke County of driving under the influence.

I should acknowledge that it's of course possible that, after this extremely drunk man broke the door with a chair, he wouldn't have hurt the residents (or at least wouldn't have hurt them much). We can't know what would have happened. But I'm glad that the Hoovers didn't have to run that risk.

Thanks to Hill Welford for the pointer.

rejected by the federal district court for the District of Arizona, in Yount v. Regent University, Inc., No. CV-08-8011-PCT-DGC (April 14):

Plaintiff moved for sanctions on January 16, 2009 due to Defendant's method and timing of service: “[t]he Certificate of Service [states that Defendant's motion] was sent by ‘Mail’ on December 20th when, in fact, it was hand delivered [by Fed Ex] ... on December 24[.]” Dkt. # 68 at 2. Plaintiff asserts this Christmas Eve service reflected an effort by Defendant to disrupt Plaintiff's holiday and to violate his rights under the First Amendment.

To quote the plaintiff, "Obviously, the Defendant wanted to taint the Plaintiff's religious celebrations, and as an officer of the Court, Mr. Myer should be cautious of violating the Plaintiff's First Amendment rights during his religious celebrations."

No dice, says the court, presumably taking the view that no-one has the right to a Christmas unmarred with memories of service of legal documents.

Jan Rybnicek passes along this e-mail sent to students, faculty, staff, and alumni by the UNC-Chapel HillChancellor:

Message from the Chancellor: Free Speech at Carolina (April 15, 2009)

Dear Students, Faculty and Staff:

I want to express how disappointed I am in what happened last night when former Congressman Tom Tancredo wasn't able to speak when a protest got out of hand, and our Department of Public Safety had to take action. Congressman Tancredo felt threatened and left without making his remarks.

Mr. Tancredo was scheduled to speak about immigration. We expect protests about controversial subjects at Carolina. That's part of our culture. But we also pride ourselves on being a place where all points of view can be expressed and heard. There's a way to protest that respects free speech and allows people with opposing views to be heard. Here that's often meant that groups protesting a speaker have displayed signs or banners, silently expressing their opinions while the speaker had his or her say. That didn't happen last night.

On behalf of our University community, I called Mr. Tancredo today to apologize for how he was treated. In addition, our Department of Public Safety is investigating this incident. They will pursue criminal charges if any are warranted. Our Division of Student Affairs is also investigating student involvement in the protest. If that investigation determines sufficient evidence, participating students could face Honor Court proceedings.

Carolina's tradition of free speech is a fundamental part of what has made this place special for more than 200 years. Let's recommit ourselves to that ideal.

Sincerely,

Holden Thorp

has just been reversed by the First Circuit in In re Sony BMG Music Entertainment. The court relies chiefly on the text of a District of Massachusetts local rule, but also suggests that the Judicial Conference's policy for federal courts likewise cuts against such webcasting. And though the policies involved bar "televising," the court concludes that

The difference between televising and webcasting is one of degree rather than kind. Both are broadcast mediums. The absence of a specific reference to webcasting is not telling; both at the time when the policy was promulgated and at the time when the resolution was adopted, Internet webcasting had not attained the ubiquity that currently prevails. What is more significant is that the intention of both the Judicial Conference, and the circuit council is transparently clear. That intention is to forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. The webcasting that the district court authorized contravenes that intention.

The court also rejects the argument that there's a First Amendment right to have proceedings webcast:

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

This is no surprise, since that has been the view of the federal courts on the subject for quite some time.

Careful students of the First Circuit will be able to guess who wrote the opinion when I tell them that the opinion uses the words "impuissant," "perscrutation," and "sockdolager." Going through the Google results for "perscrutation" reveals only 324 items (as usual, including some junk pages), though I'm sure there will be more soon.

So law firms are asking some new hires to defer going on the payroll for a year, and often are paying a stipend for the year. Law firms have also long been complaining that their incoming associates don't have enough skills training.

UCLA's answer: An LL.M. for recent graduates, which is supposed to largely focus on skills training. (The LL.M. isn't limited to students whose jobs have been deferred for a year, but I expect that they will make up a big chunk of the applicants.) Apparently we're the first school to do something like that. Will people snap it up or shun it en masse? We'll know in a few months. One possible problem is that even people who could really profit from the degree might just be sick and tired of school; but it strikes me as potentially quite useful to many students.

I should note that I wasn't at all involved in planning this project. In fact, today is the first time I heard of it (I was out of town during the faculty meeting when it was approved, and I wasn't on the relevant planning committee). Naturally, as a UCLA guy I'd love to see it succeed, and I suspect it will, but check back this Fall.

(As before, see the full article for more.)

The nonlethality of stun guns and irritant sprays does make it possible that such weapons will be abused in situations where firearms wouldn’t be, though each such abuse would likely be much less harmful. Robbers might be likelier to stun victims than shoot them, precisely because this won’t expose the robber to a murder charge (and because stun guns are quieter, even than firearms with illegal silencers). People looking for revenge, or trying to pull a prank, might stun or spray their victims even if they wouldn’t have tried to kill them.

There are, though, three countervailing factors that should overcome this extra risk of abuse. First, nonlethal weapon bans, especially city- and state-level ones, are likely to have only modest effects on the already seemingly modest level of stun gun or irritant spray crime, precisely because much such crime would be perpetrated by serious criminals. Someone who is not stymied by the laws against robbery, rape, and kidnapping is unlikely to be much influenced by laws against possessing stun guns or sprays. (The Taser Corporation’s products have a special “Anti-Felon Identification” feature that tries to reduce taser crime still further: “Every time a TASER cartridge is deployed, 20-30 small confetti-like Anti-Felon Identification (AFID) tags are ejected. Each AFID is printed with the serial number of the cartridge deployed, allowing law enforcement to determine which cartridge was fired.” This feature, however, doesn’t operate when the stun gun is used in contact mode; and it’s not useful for tracing the stun gun if it has been stolen. I therefore won’t rely on this feature in my analysis.

The bans would make it harder to buy nonlethal weapons locally, if such weapons (especially stun guns) remain rare enough that no black market develops. But many criminals would have no trouble visiting a neighboring state to buy the stun gun or the spray, or asking a friend to do that, or just driving out of town if the ban is only city-level. And bans on carrying stun guns, in jurisdictions that allow buying them, would be even easier for criminals to violate.

Second, a crime committed with a stun gun or irritant spray will often be a crime that would otherwise have been committed with a gun or a knife. This is especially true of robbery, rape, and kidnapping, but it may also be true of revenge attacks (for instance, by people who caught their spouses cheating).

Thus, nonlethal weapon bans might decrease painful stunnings or pepper spray attacks, but might increase knife and gun crimes that cause death, serious injury, and psychological trauma. And even if the stun gun crime or irritant spray crime would otherwise have been performed using only manual force, that too could have led to serious pain, to lasting injury, or even to death — especially given that the sorts of robbers who are likely to use manual force are likely ones who are strong enough to inflict significant injury.

Third, nonlethal weapon bans are likely to have a far greater effect on self-defense by law-abiding citizens than on attacks by criminals. A woman who wants a stun gun or irritant spray for self-defense is much more likely to be deterred by the threat of legal punishment for illegally buying, possessing, or carrying the nonlethal weapon than a criminal would be. And if she can’t get the nonlethal weapon that works best for her, she might be less able to protect herself against robbery, rape, abuse, or even murder.

Why then do some jurisdictions treat nonlethal weapons — especially stun guns — worse than firearms? My sense is that it isn’t because allowing stun guns is indeed more dangerous than allowing only firearms. Rather, it’s because firearms bans draw public attention and hostility in ways that stun gun bans do not.

There is no well-organized National Stun Gun Association that has millions of members who fight proposed stun gun bans. There is no stun gun culture in which people remember being taught to use stun guns from an early age. Stun guns are too new and too rare for that. There is also no stun gun hunting, stun gun target-shooting, or stun gun collecting that makes people want to protect stun gun possession even when they feel little need to have stun guns for self-defense.

Moreover, many stun gun bans date back to the 1970s and 1980s, before the Taser Corporation started widely marketing guns to the public. At the time, stun guns might well have seemed like exotic weapons that are rarely used for self-defense by law-abiding citizens. It was therefore easy to ignore the effect of stun gun bans on self-defense, even in states whose laws reflected the potential value of firearms for self-defense. But today stun guns are practically viable self-defense weapons, owned by over 100,000 people. The self-defense interests of prospective stun gun owners in the no-stun-gun states ought not be ignored.

Much of this, of course, is speculation. There is no available data about how often stun guns or irritant sprays are used either criminally or defensively. The Uniform Crime Reports, our best source on crimes reported to the police, doesn’t provide a category for such crime. Neither does the National Crime Victimization Survey, our best estimate of all crimes, whether or not reported to the police. Neither does the Centers for Disease Control’s WISQARS Fatal Injury Reports and Nonfatal Injury Reports query system. So speculation is all we have, and it’s all that the legislatures that banned stun guns or irritant sprays had.

But for the reasons I mentioned above, I think such speculation strongly points towards the choice selected by 43 states (minus a few cities) as to stun guns and 49 or 50 states (minus some restrictions in a few states) as to chemical sprays: allowing stun gun and chemical spray possession, and criminalizing only misuse. And this is especially so given the value of self-defense — a value that, as Part III discusses, is constitutionally recognized — and the value of freedom more broadly. If there is uncertainty, we should resolve this uncertainty in favor of letting law-abiding people use nonlethal tools to defend themselves and their families.

[This is part of a series of posts drawn from my Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion (forthcoming in the Stanford Law Review). For footnotes, and for the rest of the argument, check out the full draft; I will also post most of the rest of the argument in the coming days.]

Some people are especially reluctant to use lethal force or possess lethal tools, even when they legally can. There are many possible reasons for this, some of which may be mutually reinforcing:

(1) Some people have religious or ethical compunctions about killing.

(2) Some feel they will be emotionally unable to pull the trigger on a deadly weapon even when doing so would be ethically proper.

(3) Some worry about erroneously killing someone who turns out not to be an attacker.

(4) Some are reluctant to kill a particular potential attacker, for instance when a woman doesn’t want to kill her abusive ex-husband because she doesn’t want to have to explain to her children that she killed their father, even in self-defense.

(5) Some fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. It’s not clear whether the availability of guns actually increases the risk of suicide, given the availability of other comparably lethal means, but it’s at least reasonable to be concerned about the possibility that a gun would make suicide more likely. And this is especially so because some people might feel especially emotionally traumatized if their guns are used by a family member or friend to commit suicide, even if they suspect that the suicide would have happened in any event.

These are not just esthetic preferences, such as a person’s desire to have a particular gun that he most likes, or that has special sentimental value (for instance, his father’s military-issue weapon), when other equally effective guns are available. Perhaps even those esthetic preferences should be respected in the absence of particularly good reasons to disregard them. But there should be even more respect for preferences that stem from understandable and even laudable moral belief systems and emotional reactions, or reasonable worries about the risk that a gun might be abused. Even if one thinks (as I do) that killing in self-defense is morally proper, people who take the opposite view should be presumptively free to act on their beliefs without having to go without the most effective self-defense tools.

(A few people might be able to learn unarmed self-defense techniques. But many people can’t, because they are physically disabled or otherwise not strong enough. Many others might lack the time needed to train themselves in such techniques, especially if they have work or family obligations. And even those who are comparatively well-trained might end up being considerably less effective with their limbs alone than they would be with a stun gun.)

Naturally, many people don’t have such worries, or conclude that the value of having a gun for self-defense overcomes such worries. Both firearms and nonlethal weapons can stop people, and can deter through the risk of pain or incapacitation leading to arrest. But firearms have the major extra deterrent force of threatening death: That’s why “I have a gun!” is more likely to cause an attacker to flee than “I have a stun gun!”

Also, civilian stun guns today are good only for one shot. After the cartridge is shot, the stun gun can only be used in direct contact mode. This makes stun guns less useful than firearms against multiple attackers, or when the defender misses with the first shot.

But this just shows that many people may reasonably prefer firearms for self-defense. It doesn’t undermine the legitimacy of other people’s preference for stun guns or irritant sprays instead of firearms.

A ban on stun guns would be a less substantial burden if other nonlethal weapons remained available and were pretty much as effective for self-defense purposes. But batons and similar devices generally aren’t as effective at stopping the attacker with one blow, and, to be even moderately effective, they require strength that many defenders don’t possess.

Stun guns also appear to be materially more effective than irritant sprays. Pepper spray (the most effective irritant spray in use today) may still leave the attacker able to attack, though he is distracted and in pain. It’s especially likely to be ineffective when the attacker is less sensitive to pain because he’s drunk or on drugs. To be most effective, pepper spray requires a hit on the suspect’s face rather than, as with a stun gun, any part of the suspect’s body. Pepper spray may in part blow back at the defender, which can leave the defender especially vulnerable if the attacker isn’t entirely stopped. And pepper spray has an effective range of only about 7 feet (about the average width of a car), as opposed to 15 feet for modern stun guns. Since an attacker can lunge 7 feet in a split second, pepper spray gives a defender less time to react.

Pepper spray does have advantages. It can be used at a distance more than once, which is useful when one misses the first time, or needs to fight off multiple attackers. It’s also much cheaper than a stun gun. Bans on carrying irritant sprays would thus also materially interfere with people’s ability to defend themselves, even if stun guns were an available option. But that just reflects that different defensive devices are optimal for different people, and that banning either one may materially interfere with the ability of many people to defend themselves.

[More on the arguments in favor of such nonlethal weapons restrictions, even when when guns are allowed, in coming posts.]

Many arguments against allowing private gun ownership or gun carrying strike me as quite plausible; I think they're mistaken, but they make sense. The arguments claim that banning guns would provide more benefits, especially in saving people's lives, than the costs that such a ban would impose (frustrated self-defense, decreased deterrence, and other things). I think that this argument is empirically unlikely, and morally troublesome. But it makes sense on its own terms.

Occasionally, though, I run across a different phenomenon — both as to guns and as to other things — that I think of as "self-defense-blindness": a complete failure to even consider self-defense as one of the functions of a gun or other weapon. Either the speaker doesn't even think of self-defense, or at least he assumes that the listener can be persuaded not to think of self-defense.

We see this, for instance, in claims that some guns should be banned because they lack a "sporting purpose," without considering a possible self-defense purpose. We also see this in statements that guns are good only for killing. Even if one includes threatening to kill alongside killing (and ignores target-shooting), talking about "killing" in condemning guns without distinguishing criminal killings/threats from self-defense killings/threats strikes me as self-defense-blindness.

But in doing research for my nondeadly weapons article, I saw the same for non-firearms devices as well. Consider Tear Gas — Pencil Gun — Dangerous Weapon, 26 Opinions of the Connecticut Attorney General 207 (1950). The question was whether "tear gas pencil gun[s]" (described basically as individualized irritant spray weapons) should be treated as "dangerous or deadly weapon[s]" for purposes of the Connecticut statute banning the carrying of such weapons without a permit. The A.G. said yes, and that's a plausible bottom-line, if the question is just whether the device is dangerous. But consider the A.G.'s rationale:

It is obvious that the function of this so-called pencil gun is to injure and to disable an individual and it is inconceivable that this instrument would be used or has any other function than to disable temporarily or permanently. It may well be that in the hands of proper authority, such as a police official, the temporary disabling of an individual or individuals may ultimately serve a useful function. However, in the hands of an individual without any such authority, there is no question but that the pencil gun could only be calculate [to] injure.

It is our opinion, therefore, that the so-called tear gas pencil gun is a dangerous and deadly weapon within the provisions of [the statute].

So the only "useful function" for a tear gas pencil gun is when police officers use it to temporarily disable people. The possibility that a citizen who wants to defend himself (or herself) might "useful[ly]" do so with a tear gas pencil gun is simply omitted. Nor is the A.G. simply commenting on the physical reality that the tear gas pencil gun can be dangerous regardless of whether used for good or ill; he's making a normative judgment that the device is "useful" when used by the police, but not even discussing whether people might find it equally "useful" for self-defense.

And all these examples aren't about guns. They can't just be described as the direct effect of hostility to guns. Nor can they be defended on the grounds that they implicitly borrow from the standard critique of gun ownership. Rather, they seem to be part of a broader blindness to self-defense, and an unthinking assumption that the "useful function," the "common lawful purpose," and the "customary employment" of weapons simply doesn't include lawful self-defense.

All the states of the union legally allow self-defense. They even allow deadly self-defense when necessary to repel a threat of death, serious injury, rape, kidnapping, or in many states robbery (or even burglary). But despite this, the arguments I quoted above (and many like them) simply ignore self-defense altogether. The arguer is self-defense-blind, or he wants his listeners to be.

My article on this subject will be coming out next year in the Stanford Law Review, and I thought I'd preview it on the blog (with the journal's permission). I hope you folks find it interesting, and I'd very much like to have people's comments, criticisms, and suggestions while there is still plenty of time to work them in. Let me begin with the Introduction, with the footnotes largely omitted; for the footnotes, the Appendix listing the various statutes, ordinances, and rules that I refer to, and for the body of the paper, see here.

Owning a stun gun is a crime in seven states — Hawaii, Massachusetts, Michigan, New Jersey, New York, Rhode Island, and Wisconsin — plus New Orleans, Philadelphia, South Bend (Indiana), the Virgin Islands, Washington, D.C., Wilmington (Delaware), and three counties surrounding Annapolis and Baltimore. In Illinois, possessing a stun gun in a public housing project is a crime. In Akron, Ohio, 18-to-20-year-olds aren’t allowed to possess stun guns. Connecticut allows home possession of stun guns, but ban carrying them in public; North Carolina and Omaha ban concealed carrying.

Yet in all these jurisdictions, people are free to possess guns at home. In some — Connecticut, Michigan, North Carolina, New Orleans, Omaha, Philadelphia, and South Bend — pretty much any law-abiding adult over age 21 is even entitled to a license to carry a concealed handgun in public. In North Carolina, Wisconsin, and New Orleans, no laws bar any adult from carrying a gun openly even without a license.

So in those jurisdictions, killing devices are fine. But say you have religious or ethical objections to killing, or fear that you’ll be emotionally unable to pull the trigger on a gun, or don’t want to risk accidentally killing an innocent bystander, or don’t want to risk having your children get their hands on a deadly weapon. Not wanting to kill, and knowing that modern stun guns pose at most a very small risk of death, you get a stun gun instead of a handgun (something that over 130,000 civilians have apparently done). Then you’re a criminal.

In other contexts, firearms are restricted as much as stun guns are, so stun gun bans leave people unable to defend themselves either with stun guns or firearms. This is so

• in public places in those no-stun-gun jurisdictions (such as New York) that also generally ban carrying concealed firearms;
• on public streets in Illinois;
• for 18-to-20-year-olds in public places in all the no-stun-gun jurisdictions, since even those jurisdictions that freely grant licenses to carry concealed firearms (such as Michigan and Pennsylvania) generally don’t grant such licenses to 18-to-20-year-olds;
• for aliens admitted under a nonimmigrant visa in Illinois, which can include long-term residents, such as students and workers let in because of their special skills (for instance, foreign lawyers who live in the U.S. and who are allowed to work here because of their knowledge of foreign law);
• for 18-to-20-year-olds in Illinois, even at home, if their parents refuse to give permission, if their parents are dead, if their parents are felons, or if their parents are nonimmigrant aliens;
• for university students on Georgia and North Carolina campuses (including in their own homes in campus dorms), and on California campuses unless they have written permission from the university;
• for people staying in Louisiana domestic violence shelters;
• for minors, even ones old enough to use the deadly devices known as automobiles, in public places in all the no-stun-gun jurisdictions plus Arkansas, Indiana, Minnesota, New Hampshire, Las Vegas, and probably San Francisco and Oakland;
• for 16- and 17-year-old minors even at home, in Massachusetts and Minnesota;
• for under-16-year-old minors in Hawaii, New Jersey, Annapolis, Baltimore, and New York City; and
• for felons (even nonviolent felons) in all the no-stun-gun jurisdictions plus Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and Las Vegas are barred from having access either to stun guns or firearms, which also means that people who live with felons may find it dangerous to possess either weapon.

Say that you have Word configured to insert quotation marks as curly rather than just normal typewriter-like straight marks (which correspond to the ASCII quotation characters). But say that at some point you need to enter a straight quotation mark, for instance when you're entering some HTML code. What to do?

I struggled with this for years, until I accidentally discovered a trivial solution: After you type the quotation mark and it gets automatically made curly, just hit control-Z (undo), and it'll straighten out. The same seems to be the case for all the Word auto-corrections, such as (c) becoming a copyright symbol (if you have that set) and the like; hitting control-Z returns the item to being exactly what you typed.

My apologies if this is old hat to all of you, but my guess was that many people don't know about this, just as I didn't until recently. I think this is so for Word 2003 as well as Word 2007.

the Crime of "Exhibiting Harmful Matter to a Minor"? That's the question in People v. Dyke, decided last week, and the answer is "no," in the absence of more details about the movies.

The prosecution doubtless arose because the defendant (the father of a friend of the 16-year-old) tried to seduce the 16-year-old, and the defendant was indeed convicted of misdemeanor sexual battery (for stroking the 16-year-old's breast). But the court concludes that, absent more details about the movies, evidence that such movies were shown is insufficient to sustain a conviction for displaying "harmful to minors" material (basically, the same test as for obscenity but with "for minors" attached to each prong). It's a short and readable decision -- if you're interested, check it out.

or at least to me, uncovered by Marc Abrahams of the Annals of Improbable Research in Kenneth R.H. MacKenzie's Burmah and the Burmese (1853) (short video here). It apparently began (paragraph breaks added):

If I speak not the truth, may it be through the influence of the laws of demerit, viz.: passion, anger, folly, pride, false opinion, hardheartedness, and scepticism; so that when I and my relations are on land, land animals, as tigers, elephants, buffaloes, poisonous serpents, scorpions, &c., shall seize, crush, and bite us, so that we shall certainly die.

Let calamities occasioned by fire, water, rulers, thieves and enemies, oppress and destroy us, till we come to utter destruction. Let me be subject to all the calamities that are within the body, and all that are without the body. May we be seized with madness, dumbness, blindness, leprosy and hydrophobia. May we be struck with thunderbolts, and lightning, and come to sudden death.

In the midst of not speaking truth, may I be taken with vomiting black clotted blood, and suddenly die before the assembled people. When I am going by water, may the water Nats assault me, the boat be upset, and the property lost; and may alligators, porpoises, sharks, or other sea monsters, seize and crush me to death; and when I change worlds, may I not arrive among men or Nats, but suffer unmixed punishment and regret in the utmost wretchedness among the four states of punishment, Hell, Prita, Beasts and Athurakai.

There's more.

N.Y. Education Law § 5703 sets up the Cornell board of trustees, and includes — as one member out of 64 — "The eldest lineal descendant of Ezra Cornell[, who] shall be a trustee for his or her life."

Hardly outrageous, given Ezra Cornell's role in founding the university that bears its name, but still pretty odd.

UPDATE: UC Hastings Prof. Calvin Massey reports on a similar item in California:

California Education Code section 92204 stipulates that an "heir or representative" of Serranus Clinton Hastings, the founder of Hastings College of the Law, must always be a member of the Board of Directors.

My question: Heirs are easy enough, but how can you tell who counts as a "representative" of someone who is over 100 years dead?

From the Charlotte News & Observer:

UNC-CH police released pepper spray and threatened to use a Taser on student protesters Tuesday evening when a crowd disrupted a speech by former Colorado congressman Tom Tancredo opposing in-state tuition benefits to unauthorized immigrants.

Hundreds of protesters converged on Bingham Hall, shouting profanities and accusations of racism while Tancredo and the student who introduced him tried to speak. Minutes into the speech, a protester pounded a window of the classroom until the glass shattered, prompting Tancredo to flee and campus police to shut down the event....

About 200 protesters reconvened outside the building. "We shut him down; no racists in our town," they shouted. "Yes, racists, we will fight, we know where you sleep at night!" ...

UNC graduate student Tyler Oakley, who had organized the protest, said he regretted the broken window but not silencing Tancredo. "He was not able to practice his hate speech," said Oakley. "You have to respect the right of people to assemble and collectively speak."

Appalling. But here's an enheartening item:

But campus visitors and some faculty members in the capacity crowd of 150 urged the students to let Tancredo speak.

"We are the children of immigrants, and this concerns us," said junior Lizette Lopez, 22, vice president of the Carolina Hispanic Association. "So we would at least like to hear what he has to say if you want to hear what we have to say." ...

"We were more interested in an intellectual conversation instead of a shouting match," she said. "Ironically, the people that are trying to get our voices heard silenced us."

Thanks to InstaPundit for the pointer. Cornell Prof. William Jacobson has more, including video.

That seems to be so, under New York City Administrative Code § 10-303 (at least with some narrow exceptions), as interpreted by the New York Police Department. Does anyone whether there are other rules that might keep this from being the case?

Query: If the Second Amendment is incorporated against the states, can this be constitutional? As I noted with regard to a much less restrictive Illinois limit on 18-to-20-year-olds, the age of majority has indeed historically been 21 until the early 1970s, though now it's 18 virtually everywhere, including in New York.

Would the right to keep and bear arms not fully apply to under-21-year-olds, the way some constitutional rights today don't fully apply to under-18-year-olds (consider the right to sexual autonomy, the right to marry, the right to abortion, which could be limited through certain kinds of parental consent laws, and likely the right to bear arms itself)? Or does the right apply to all adult citizens — unless otherwise disqualified by reason of felony conviction or the like — under today's age of majority, regardless of what the age of majority was at the time? Or has the right always extended to everyone 18 and above, regardless of the age of majority for other purposes?

These questions would also have some importance in other states that allow long gun possession for 18-to-20-year-olds but ban handgun possession until age 21, and also as to the federal government, which makes handguns harder for under-21-year-olds to get.

Ed Whelan at National Review Online's Bench Memos argues:

American transnationalists ... use a bait-and-switch game on “human rights” treaties. In urging that the United States adopt the treaties, they hide behind the treaty’s grand and sweeping statement of a seemingly unobjectionable principle. Focused on the supposed concerns of a hypothetical world community, they trumpet the need for the United States to make an “important global statement” and to show that “our national practices fully satisfy or exceed international standards.” Meanwhile, at the same time as the supervisory committee established by the treaty is interpreting the treaty to advance a radical agenda, American transnationalists obscure or dissemble about what the treaty committee is doing when they are speaking to the Senate and the American public — and then they turn around and use its interpretations to advance their agenda in courts.

I'm not sure of the intentions of the people involved; Whelan is criticizing Koh here, but that's not my goal with this post. But the intentions might not matter that much, because my sense is that this is indeed a potential danger, even if everyone's intentions are pure.

Whenever one is proposing adherence to a treaty, or the enactment of a statute, it's tempting to describe the proposal narrowly. Then once it's enacted, it's tempting to read this broadly. People being what they are, they fall into this temptation, and the rest of us may find the result to be a bait-and-switch even if it wasn't so intended.

And it strikes me that this is indeed a potential danger with a range of "human rights" treaties: We might indeed sign on to the text of a treaty because the text seems sensible, but then end up some years or decades later being stuck with international interpretations of the treaty that are much broader than the text suggests. To be sure, we could say "We signed on to the treaty's text, not its interpretations." But that might be a difficult argument to make, especially (1) when people are pressing us not to alienate the "international community," and (2) given that deference to judicial and even executive interpretations of domestic statutes — and not just to the statutory text — is an American legal norm.

But this is just a tentative judgment, based on my limited experience with the field. Can those of you who have more experience with these sorts of international treaties speak to this question?

I'm delighted to report that Prof. Eugene Kontorovich (Northwestern Law School) will be guest-blogging for the next several days about prosecuting pirates and terrorists. Here's his quick summary of his plans:

Many of the issues about the legal regime for responding to and prosecuting pirates that have arisen in the wake of the capture of a U.S. vessel this week are discussed at length in my forthcoming scholarly essay entitled “A Guantanamo on the Sea": The Difficulties of Prosecuting Pirates and Terrorists, to be published in volume 98 of the California Law Review. I wrote it several months ago, before the piracy problem had attracted major attention, but due to the slow production schedules of law reviews, it won't be published for some time, so I thought it would be appropriate to share the central ideas informally now. (For background on the issue, one can consult a short briefing paper I wrote for the American Society of International Law, International Legal Responses to Piracy off the Coast of Somalia.)

The essay explains the legal and practical difficulties to taking both military and criminal approaches to the piracy problem. Because pirates are not combatants but rather civilians -– yet civilians operating in a highly organized armed manner outside the control of any country -– international law and the criminal procedure rights of Western countries make any solution challenging. The Article’s principal contention is that many of the difficulties in dealing with pirates are exactly the same ones presented by terrorists and Guantánamo detainees. If anything, prosecuting pirates should be easier because they have no obvious political constituency. Thus, the piracy fiasco has cautionary implications for the idea that terrorists can easily be dealt with through regular civilian law enforcement mechanisms.

(The difficulties of prosecuting pirates are illustrated in a recent Ninth Circuit case last year -– the first universal jurisdiction piracy case decided by America in hundreds of years, and the subject of a short piece of mine forthcoming in the American Journal of International Law. The little noticed case also demonstrates the difficulties involved: The entire crew had to be detained on material witness warrants, translators found for everybody, and more.)

I write on public law generally, including constitutional and public international law. Because of my interest in jurisdiction, I have been studying piracy since the beginning of my scholarly career. Piracy is the first and paradigm universal jurisdiction crime -– one that can be punished by any nation, even without a nexus to the offense. Given the rise in universal jurisdiction over human rights offenses, studying how it worked for hundreds of years in the context of piracy could teach a great deal about modern universal jurisdiction, as I’ve shown in The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation and other articles. I have also followed the current piracy problem closely since it began in 2005, for an ongoing project empirically analyzing universal jurisdiction to see how often nations are willing to exercise it. Unfortunately, this area of knowledge has become too relevant as of late.

I'm much looking forward to seeing the other Eugene's posts.

My post on defamacasts and graffitism reminded me of bottomry -- not nearly as uncommon a legal term (150,000+ Google hits reported), but still one that I expect many people don't know.

For my article on nonlethal weapons, I'd like to come up with a good collective term for such devices. "Defensive sprays" seems to stack the deck in favor of my conclusion that the devices should be allowed, since it assumes that they are defensive -- of course, they can be used offensively. "Personal chemical weapons" sounds too ominous, because of the link to the deadly chemical weapons. "Nonlethal chemical weapons" is possible but sounds too abstract, and again too linked to chemical weapons in the military sense. (I realize that such sprays could be lethal, but punches could be lethal, too; as best I can tell, the sprays are lethal only in a tiny fraction of all uses, comparably to other weapons, such as fists, that aren't treated as deadly force.)

My tentative thinking so far is "irritant sprays," but again that seems a bit abstract. I also thought of using "pepper spray," which is more concrete, more commonly heard, and thus more quickly grasped by readers, and defining it at the outset to include the other kinds of sprays; but I prefer to avoid such literally inaccurate definitions, even if I make the literal meaning clear at the outset. So if you have some suggestions, I'd be much obliged. Thanks!

Some people have questioned whether the Obama Administration's proposal to "Lift all restrictions on transactions related to the travel of family members to Cuba" or "Remove restrictions on remittances to family members in Cuba" would be unconstitutional discrimination based on ethnicity in favor of Cuban-Americans. I don't think so (though of course it would depend on the precise text of the rule, which to my knowledge hasn't yet been set forth).

The rule wouldn't distinguish people of Cuban ethnicity (whatever precisely that might be) from people of other ethnicities. Rather, it distinguishes people on whether they have family members in Cuba. If two German Jewish brothers left Europe before World War II, and one came to the U.S. and another to Cuba, the children of one would be able to visiting the children of the other.

To be sure, the overwhelming majority of the beneficiaries of the law will be Cuban-Americans, in the sense of people who came from Cuba or whose own ancestors came from Cuba. That's what is called in the law a "disparate impact" on Cuban-Americans, here in their favor.

But such a disparate impact doesn't make for unconstitutional discrimination. That, after all, is why the current policy of sharply restricting visits to Cuba isn't unconstitutional discrimination -- it doesn't distinguish Cuban-Americans on the grounds of their ethnicity, though it has a much greater impact on Cuban-Americans than on others. Under the current policy, most people are free to visit their relatives (since their relatives aren't in Cuba), but most Cuban-Americans are much constrained in their ability to visit their relatives (since their relatives are indeed in Cuba). That's not presumptively unconstitutional discrimination because it doesn't facially discriminate based on ethnicity, and isn't intended to so discriminate. The same is true of the proposed relaxation of the travel restrictions.

This also helps explain why there's little reason to think that this facially ethnicity-neutral distinction (do you have a relative in Cuba?) is intended to discriminate in favor of Cuban-Americans because of their ethnicity. (As I suggested above, intentional ethnic discrimination is generally treated by U.S. constitutional law as tantamount to facial ethnic discrimination, and not just to disparate impact.) The proposed change seems intended to do precisely what it facially does -- to let people visit their families, something that the rest of us can generally do without U.S.-imposed restrictions.

So while I can't speak to the wisdom of the proposal, I don't see any constitutional problem with it, or any ethical problem that is related to any supposed ethnic discrimination.

Kotaku reports:

Electronic Arts today contacted game writers around the country asking them to return the brass knuckles they were sent as part of a promotion for Godfather II....

Brass knuckles or metallic knuckles are illegal in many of the states that they were shipped to. They're also illegal in California, where EA is based....

UPDATE: After a little research we found that according to California Penal Code even shipping brass knuckles [back to the sender -EV] may be illegal.

Uh oh. Thanks to Eric Horbey for the pointer.

From the Associated Press:

Taylor Moseley, a North Carolina State freshman who expressed a common-enough opinion on campus when he started the Facebook group called "John Wall PLEASE come to NC STATE!!!!"

More than 700 people signed up for the group encouraging Wall — a local standout and the nation's No. 1 basketball recruit — to pick the Wolfpack by national signing day next week.

But the NCAA says such sites, and dozens more like them wooing Wall and other top recruits, violate its rules. More than just cheerleading boards, the NCAA says the sites are an attempt to influence the college choice of a recruit.

Moseley got a cease and desist letter from N.C. State's compliance director, Michelle Lee, warning of "further action" if he failed to comply. In an interview Friday, Lee said that people who act as boosters but fail to follow recruiting guidelines could face penalties such as being denied tickets or even being formally "disassociated" from the athletic program.

Adam Kissel, director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education, said the NCAA can impose rules on its member colleges. But universities -— especially public ones -— can't enforce them if it means punishing students in any way for expressing an opinion.

"A student doesn't lose First Amendment rights because of a contract the university signs with (the NCAA)," he said....

I'm with Kissel (and Aden Fine of the ACLU, also quoted) on this.

Thanks to Ben Riley for the pointer.

I just noticed that "foreword" is surprisingly often miswritten "forward," even in cite-checked and edited law review articles.

One data point: The Harvard Law Review's yearly Supreme Court issue contains "Foreword" articles, which are almost always by top legal scholars and often end up being heavily cited. They are also generally labeled "The Supreme Court, [year] Term: Foreword -- [Title]." Searching for "Term Foreword" pre/20 "Harv. L. Rev." and date(> 1/1/2000) through the LAWREV;ALLREV file in Lexis reveals 1795 citing articles. But running the same search for "Term Forward" ... reveals 179, with virtually no false positives. That's a much higher error rate than I would have expected.

Of course, one day "forward" might become common enough to be a perfectly acceptable synonym for "foreword." (I hope not, but it might happen; many perfectly acceptable words today were once errors.) But this day hasn't yet come, and certainly the dictionaries don't suggest that it has come. Plus in any event, when you're citing a document with "Foreword" in its title, "Foreword" is what you should use. So be careful out there.

Rick Hasen (Election Law Blog) on the ruling just handed down in Franken's favor.

Nev. Rev. Stats. § 202.380 bars felons from possessing "tear gas," defined in § 202.370 as:

all liquid, gaseous or solid substances intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispersed in the air. The term does not include a liquid, gaseous or solid substance whose active ingredient is composed of natural substances or products derived from natural substances which cause no permanent injury through being vaporized or otherwise dispersed in the air.

My question: How exactly should courts interpret the phrase "composed of natural substances or products derived from natural substances" mean here? In a sense, isn't everything composed of products derived from natural substances?

Seen in the Salt Lake County Code of Ordinances, § 10-64-010, as well as in several other Utah local codes:

It is unlawful for any person to discharge any firearm, gun, sparrow gun, flipper or similar contrivance within the limits of the county except in a careful and prudent manner, and in such designated area as the council shall by proclamation appoint.

What in blazes is a "flipper," in the sense used here?

My favorite is still defamacast, with only 289 Google hits reported (though the reported number becomes only 60 if one actually pages through the results). The word isn't that common in law, either — it's just a Georgia term — but what I like about it is that it purports to be just a normal English word, albeit one coined by Georgia courts. It's not some Latin phrase, or all-caps statutory abbreviation or agency identifiers, or some such. It looks like a word, but a highly uncommon one.

I just came across another such example, which might be even more interesting, since I'm not sure that it's a self-conscious coinage (the way "defamacast" surely was): "Graffitism," defined in the Columbus (Ohio) City Code as basically the act of writing graffiti. It's at 1020 Google hits reported, though the number becomes only 189 if one actually pages through the results; and, as with "defamacast," many of the results aren't even substantive uses of the term.

Any other examples? Again, they have to be words that are used as ordinary English words would be — not Latin, not proper nouns, not all-caps, or the like. And, to give a convenient if arbitrary cutoff, they shouldn't yield more than 10,000 Google hits initially reported. (Just by way of a benchmark, "burglariously" yields over 30,000 Google hits initially reported.)

UPDATE: I originally said "term," but I've now corrected this to "word" -- I'd like to focus on individual words, rather than phrases.