[Eugene Volokh, 5:59 PM]
HOW MANY C (AND C-DIALECT) PROGRAMS HAVE CRASHED because "=" is an assignment, "==" is a comparison, and using "=" instead of "==" is quite syntactically valid, and thus doesn't even yield an error message (largely because many dialects of C don't much care about data types, so the fact that the condition in "if (a=b)" isn't of type boolean doesn't faze them)? I ran into it many times when I was a programmer -- granted, C wasn't one of my main languages, but I used it often enough to know it quite well once upon a time -- and now it almost happened again with the JavaScript for my page. What a !$*%#= design decision; but I guess we're all stuck with it now.

 
[Eugene Volokh, 5:40 PM]
"SPECULATORS GAMBLE ON SADDAM'S FUTURE":

SHARES in President Saddam Hussein’s future performed well on the spread-betting markets yesterday as traders concluded that Hans Blix had given the Iraqi leader some breathing space.

The handful of internet betting websites offering odds about when Saddam will meet his doom saw frenzied trading from the moment Dr Blix began speaking.

Saddam’s chances of removal fell from a high of 45 per cent to 39 per cent. Even after Jack Straw made his hawkish comments, followed by Colin Powell’s unyielding tour de force, the market bounced back only to 42. Tradesports.com of Dublin saw 2,000 contracts made in a few hours about Saddam’s chances of surviving to the end of next month as President of Iraq.

The market frenzy is driven by traders from both sides of the Atlantic and Australia. A “Mexican stand-off” has emerged, with European traders gambling on Saddam’s survival while Americans patriotically put money on his demise. . . .

“Saddam shares” are so popular that “Osama futures” have just been launched. Traders are pessimistic that the al-Qaeda chief will be “captured/neutralised” (as Tradesports.com tactfully puts it) by June 30, with only 10 per cent support for this prediction. . . .

(Thanks to Mark Brady for the pointer.)

 
[Eugene Volokh, 5:38 PM]
DON'T TELL THE CENSUS: From the St. Cloud Times:

Technical High School students involved with the play "Ten Little Indians" will make some changes to tonight's opening after people complained to the school's administration about the title. . . .

The program will be printed with "And Then There Were None," the name of the Agatha Christie book on which the play is based, in large print and the title in small print. . . .

Principal Roger Ziemann said he asked for the changes after some people involved with American Indian outreach at St. Cloud State University complained. They complained because the title is based on a children's counting rhyme from the early 1900s that is derogatory toward American Indians, he said. Nationwide, other schools have changed the name, he said.

"We count objects, not people," Ziemann said. "The times have changed since then and we need to be more sensitive. We don't want to give the impression that we're objectifying people." . . .

"We count objects, not people"? Huh? Either Ziemann or the reporter misquoting Ziemann or quoting him out of context -- impossible to tell which -- isn't making much sense. (Thanks to TongueTied for the pointer.)

 
[Eugene Volokh, 5:07 PM]
"POLITICS (LEFT)": That's the category under which Memeufacture links to one of our posts and one of InstaPundit's. Yes, I know that the Memeufacture category headings don't stand for the same thing that they would if you'd seen a list headed "Politics (Left)" in a normal blog; and, yes, InstaPundit sometimes does say things that seem "left," as do we. Still, as InstaPundit would say, "Heh."

 
[Eugene Volokh, 5:02 PM]
"THE U.S.-U.N. COURTSHIP IS OVER" (THOUGH IT WAS NEVER TERRIBLY ROMANTIC TO BEGIN WITH): William Saletan in today's Slate:

For three months, President Bush has supported U.N. weapons inspections in Iraq on the understanding that if they didn't get results fast, military action would follow. If, in Friday's Security Council debate, opponents of immediate war had offered a later deadline or a higher threshold for resorting to force, Bush might have gone along. They didn't. Instead, most members of the council converged on three assumptions that make military action impossible. In so doing, they stripped U.S. Secretary of State Colin Powell of any reason to ask Bush to wait. The U.S.-U.N. courtship is over.

1) Progress is enough. In his briefing to the council, chief inspector Hans Blix listed what Iraq had and hadn't done to cooperate. Most members focused on the bright side of Blix's report. Fourteen acknowledged the "progress" made so far. . . . The trouble with progress is that it can go on forever without reaching an absolute standard. . . . In Friday's debate, Russian Foreign Minister Igor Ivanov noted that Iraq had shown "movement in the right direction" on several matters that had been "pending" at the council's Feb. 5 meeting. By this logic, other Iraqi obstructions would become the new pending business, and Iraq could satisfy the council at its next meeting by showing movement on those obstructions.

2) Inspections can fix themselves. On Feb. 5, Powell presented evidence to the council that Iraq was moving things around to hide them from inspectors. In their briefings Friday, Blix and chief nuclear inspector Mohammed ElBaradei suggested that additional inspectors and surveillance equipment could help them catch the Iraqis in such evasions. On this view, if inspections are being foiled, the solution is more or better-equipped inspectors. Therefore, inspections never end. . . .

3) War is failure. Early in the debate, French Foreign Minister Dominique de Villepin declared, "War is always the sanction of failure." . . . But if you equate war with failure or forbid it as long as alternatives are conceivable, you'll never turn to it. Iraq can foster just enough promise in some compliance "process" to keep you from picking up your gun.

Years from now, I'll remember two moments from Friday's debate. One was when de Villepin raised the question of "how much time [should be] allowed Iraq" before giving up on inspections -- and proceeded not to answer it. The other was the concluding plea from German Foreign Minister Joschka Fischer: "There should be no automatism leading us to the use of military force." Not to worry. The United Nations' automatism leads away from force. That's why the choice in Iraq is boiling down to war now or war never.

 
[Eugene Volokh, 4:59 PM]
"SHOULD NOT BE TAKEN SERIOUSLY BY ANYONE": Fred Kaplan in today's Slate:

Today's session at the U.N. Security Council proves, once and for all, what has been increasingly clear for the past couple of months -- that the United Nations will not be an instrument for war against Iraq. The session might also lead one to conclude, though more tentatively, that any future U.N. resolution that threatens the use of force should not be taken seriously by anyone, least of all the country being threatened. The situation has come down to this: Some members of the council are in favor of going to war, some members are not, and this score card is now fixed; no amount of debate, no further mountain of intelligence data, no further discoveries in Iraq itself are likely to alter the alignment. . . .

[The French and Russian pro-inspection] line of reasoning is not only an argument for permanent inspections (and a permanently deferred enforcement of U.N. resolutions), but also a thorough misinterpretation of Resolution 1441. Nowhere does that resolution say war is an option only after inspections have been utterly exhausted. Rather, it states a) that Iraq is already in "material breach" of several U.N. resolutions going back to the 1991 cease-fire; b) that the Security Council is giving Iraq one more chance to comply with its obligations; and c) that if it commits another breach -- by failing to disarm completely, by making false statements or omissions in its stockpile declarations, or by failing to provide inspectors with "immediate, unimpeded, unconditional, and unrestricted" access to everything and everybody they want to see -- then there will be "serious consequences."

Nobody today, except the Iraqi ambassador, tried to claim that Iraq has fulfilled its obligations. Nobody tried to argue that "serious consequences" means something other than military action. Nobody disputed that, just three months ago, the council's 15 members passed Resolution 1441 unanimously -- not casually or unwittingly so, but after seven weeks of negotiations, in which Secretary of State Colin Powell altered the language to meet French reservations. . . .

Finally, the French and Russian arguments constitute, in effect, a notice to Saddam Hussein that, as long as he keeps making trivial gestures and meaningless decrees (preferably on the eve of Security Council sessions), he can -- at least as far as the United Nations is concerned -- sleep soundly at night and get away with whatever he can manage. Jack Straw, the British foreign minister, made the point: If the council backs away from the resolution, the disarmament of Iraq "will get very much harder," not easier. Certainly, to the extent Saddam has made serious steps in the past, they have come when he feared his foes were getting serious. . . .

 
[Eugene Volokh, 4:25 PM]
JONATHAN RAUCH ON FRANCE AND IRAQ: Another first-rate piece by Jonathan Rauch -- definitely very much worth reading. A key excerpt:

France has always treated weapons inspections as an end rather than a means. Inspectors, the French argue, would prevent Saddam Hussein from obtaining weapons of mass destruction, or at least nuclear weapons, and thus would suffice to contain him. Their argument was reasonable in 1999, and it still has force today; but its force is weakened by the recent example of North Korea, which successfully carried on a full-scale uranium-enrichment program under the noses of nonproliferation monitors. And, of course, Iraq can always admit inspectors today and obstruct or evict them tomorrow, after the United States has stood down militarily and the Security Council has moved on. It worked nicely in 1998.

 
[Eugene Volokh, 2:55 PM]
PLEASE DEFINE "SERIOUS CONSEQUENCES": UN Security Council Resolution 1441 "recall[ed] . . . that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." What exactly, according to the Council's sentiment this morning, are those "serious consequences"? And what happens to international bodies that keep resolving things, warn of serious consequences, and then don't deliver?

 
[Eugene Volokh, 2:35 PM]
THE NEW REPUBLIC ON THE LATEST AT THE SECURITY COUNCIL:

French Foreign Minister Dominique de Villepin used his response to this morning's Security Council briefing by chief inspectors Hans Blix and Mohamed ElBaradei partly to answer Donald Rumsfeld's recent barbs about French and German intransigence: "I am from an old country, France ... that does not forget all it owes to freedom fighters from the United States and elsewhere ... [France has] always stood upright in the face of history." Then, musing about the chaos of war, de Villepin reiterated his nation's commitment to building "a better world," and the applause erupted in Turtle Bay. . . .

[Hans] Blix reported this morning that, "At the meeting in Baghdad on the 8th and the 9th of February, the Iraqi side addressed some of the important outstanding disarmament issues and gave us a number of papers.... Although no new evidence was provided in the papers and no open issues were closed through them or the expert discussions, the presentation of the papers could be indicative of a more active attitude focusing on the important open issues." Could be indicative of a more active attitude? Was Blix listening to his own report?

The obvious point here is that if the Security Council wants to believe that Iraq's reluctant presentation of meaningless documents is a sign of future cooperation, we can all forget about that "better world" France is so committed to. . . .

Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 10:53 AM]
DRUGGED DRIVING: Hit & Run complains about this item of federal spending:

funding research to develop a saliva field test for drug use so cops can apply the test to drivers they stop. This is in service of "targeting drugged driving," a menace for which no exact harm is identified.

I'm a bit puzzled -- as I understand it, the harm of drugged driving has generally been defined pretty clearly: Being on marijuana, cocaine, and many other drugs (though perhaps not all drugs) tends to make one a dangerous driver, because it impairs one's judgment, one's reactions, or both. Am I mistaken?

     In fact, when I've heard calls for drug legalization -- calls with which I have considerable sympathies -- the claim has generally been "Legalize them, and enact laws to prevent behavior that's genuinely harmful to others, such as distribution to children or driving under the influence." Has the claim now shifted to "legalize them, and don't worry about people driving under the influence"?

 
[Eugene Volokh, 9:34 AM]
SECOND AMENDMENT CHAIR AT GEORGE MASON: The ABA Journal has a pretty balanced article on the NRA's endowing a Patrick Henry Professorship of Constitutional Law and the Second Amendment at George Mason University. The first holder of the Professorship is my friend Nelson Lund, who really is a top scholar both of the Second Amendment and other fields.

 
[Eugene Volokh, 8:45 AM]
THE COSTS OF CONTAINMENT: Andrew Sullivan makes a good point:

I keep hearing from people who insist we should try "containment" of Iraq instead of war. . . . [W]hat can containment mean now? One thing it surely does mean is maintaining sanctions. As Tony Blair just noted, "The moral choice in relation to this is a moral choice that has to weigh up the moral consequences of war. But the alternative is to carry on with a sanctions regime which, because of the way Saddam Hussein implements it, leads to thousands of people dying needlessly in Iraq every year." Exactly. How odd that those who have long accused the West of murdering thousands of Iraqi babies because of sanctions now want to continue those sanctions indefinitely. Of course, some don't. As soon as the pressure is off, they'll get back to lobbying for an end to such sanctions and liberating Saddam to even further horrors. But it seems to me that those who sincerely want to maintain the inspections farce and the sanctions tragedy need to be more honest in confronting the moral cost of this policy: not merely doing nothing credible to deter the threat to the West of weapons of mass destruction; not merely the signal to every terrorist and nuke-hungry dictator that the West is too weak to deal with them; not merely perpetuating and reinforcing one of the most hideous police states on the planet; not merely fatally undermining the credibility of the U.N.; but also maintaining the cruelty of famine for the next generation of Iraqi children. . . . No-one should treat lightly the moral responsibility of waging war. But no-one should discount the moral burden of the alternative either.

I'd make the same point as to the danger that our actions will infuriate Muslims and lead to more terrorist attacks, Islamist revolutions in neighboring countries, and so on. There definitely is a risk that war will lead to that. But there's also a risk that containment will lead to that -- wasn't the stationing of U.S. troops in Saudi Arabia part of Bin Laden's stated reason for attacking on 9/11? If so, why should we think that a war will lead to more such reactions than the drawn-out process of "containment" would? And as Hussein has the time to develop still more weapons of mass destruction -- which he's pretty clearly trying to do -- the costs of containment, which is to say the dangers that a supposedly "contained" Iraq will have more ability to attack its would-be containers (directly and through proxies) become still greater.

 
[Eugene Volokh, 8:34 AM]
SOMETHING NEW FOR ME: I've decided to put together a PowerPoint presentation that law review editors (students who have been on law review for a year, and are now running the show) can use to train law review staffers in writing student articles -- to accompany my forthcoming book, naturally. It's a novel and interesting experience; I'd put together lots of overheads before, and some PowerPoint presentations, which I usually just print out and copy onto overhead transparencies, but they've all been for my own talks. Now I'm trying to figure out what would work best for total strangers to use when they're giving a talk based on my book. Many textbook authors have had to do this for several years now; still, it's new to me. Hope the result is useful . . . .

 
[Eugene Volokh, 8:07 AM]
JACOB LEVY FANS: I'm delighted that Jacob is coblogging with us, and I hope this arrangement will continue indefinitely. As I've mentioned before, I think this blog works well as a group blog, and I hope all our readers -- both new ones that came here for Jacob, and others who have discovered Jacob through this blog -- are happy with it.

     Nonetheless, in case some people would like to be able to read Pure Jacob, they can now do so -- thanks again to our anonymous technical helper -- by using the following URL (which they can bookmark):

http://volokh.com/%3f?bloggers=Jacob

Or, if they want to read several of the bloggers, they can write something like:

http://volokh.com/%3f?bloggers=Jacob,Orin,Sasha

(Yes, the "%3f" is necessary. The feature also only works if you haven't disabled JavaScript in your browser.)

     Do I encourage you to do this? Absolutely not! The coconspirators are a handpicked bunch, selected for your intellectual delectation; I like them, and so should you. If you go into a restaurant and ask the chef "Should I have your signature dish, but with most of the ingredients left out?," he'll surely say "No, I don't think you should."

     But the customer is always right -- but wait a sec, you folks aren't customers . . . . Still, whether you're right or not, we want to accommodate you; so if you want to have just one blogger, or just a couple of cobloggers, you now know how to do that. Still, we certainly don't advise it, and we much prefer that you love all of us as much as, well, we do.

 
[Eugene Volokh, 4:46 PM]
MORE ON THE GARY HART STORY: TalkLeft interviewed Gary Hart on this, and here's the summary:

Hart says he was not singling out any one group. He had no specific group in mind. He was referring to any group with special interests, including any group that might put its concerns and feelings for the country of its heritage over the best interests of America. His point was that where there is a difference between what is in America's best interest and what is in the best intererests of the homeland or country of origin of another group, America's interest must come first in shaping foreign policy.

Hart was not referring to Jewish Americans. He was not referring to the War with Iraq. He was talking about America's long-term foreign policy role in the 21st century. His comment applies equally to Cuban, Polish, Czech, Hungarian, Greek and Turkish -American citizens. He was talking about all Americans, wherever we come from.

I think Jacob Levy's response that it can't really be about Poles, Czechs, or Hungarians is right; and I think that the suggestions (which I briefly blogged about in an update to the original post) that Jews can't be included because Israel isn't Jews' "original homeland" are mistaken (consider the reference to "the country of its heritage"). But I also think that Hart's original criticism, even if it encompasses Jews as a substantial target of criticism -- as Jacob points it out it probably does -- is factually and morally defensible. One can, of course, also disagree with it (again, see Jacob's post), but I don't think it can be lightly dismissed as anti-Semitic.

     A couple of readers raised an objection to Gary Hart's claim that I hadn't heard before -- that Hart's assertions that ethnic groups dictate government policy are factually unjustified, and that they suggest that Hart is buying into the wrongheaded (and anti-Semitic) view that Jews run American policy as to Israel, as opposed to just saying that Jews try to influence American policy as to Israel (as other groups try to influence American policy as to countries to which they feel a bond). Here's Hart's original statement:

We must not let our role in the world be dictated by ideologues with their special biases and agendas, by militarists who long for the clarity of Cold War confrontation, by think-tank theorists who grind their academic axes, or by Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests.

I do not, however, read Hart's statement that way. He's listing several different groups, and I doubt that he thinks that any one of those groups is literally dictating, in the sense of clearly running, American policy towards its "role in the world." I doubt he sees think-tankers as being influential to the point of dictating American policy. I likewise don't read this as suggesting that Jews are so influential. I continue to read this as complaining that some people are trying to influence American policy based on considerations in addition to true American interests -- a charge that, as I said, can't lightly be dismissed as anti-Semitism, though of course a charge that can be contested on other grounds.

 
[Eugene Volokh, 4:28 PM]
MORE ON THE IOWA PRISON AND RELIGION: Here are some reactions to the story I blogged this morning. This is from Chip Lupu, a leading religion-and-the-law scholar at George Washington University who's probably best described as mildly-liberal-to-moderate:

The Post got the "facts" from reading the complaints filed by Americans United. . . . I gave an interview to Barbara Bradley Hagerty of NPR on this yesterday and she said that she had been to the prison to do a story on this program last year. She admired its results, but she said the facts as she observed them are very close to what is alleged in the complaint (she said there were a few details of life in the InnerChange Wing of the prison that are embellished in the complaint, but not much). This seems like a Religion Clause nightmare -- state support of sectarian instruction; strong material incentives to enter the program; a program from one faith only; a wing of the prison essentially turned over to a religious group, raising all sorts of delegation/monitoring/entanglement problems. As I told Barbara in the interview, this seems to be so blatant a set of violations that I can imagine a judge ordering restitution to the state of monies paid to InnerChange. If that happens, it may discourage other faith organizations from becoming involved in the faith-based initiative.

And here's from Rick Duncan, a relatively conservative lawprof from the University of Nebraska:

Chuck Colson is a hero of mine (and I don't have many heroes), but if the facts are as the Post reports, this does seem to go well beyond accommodation and amounts to religious favoritism.

That's my view, too, as the original post (and the Post story) reports.

 
[Eugene Volokh, 3:20 PM]
FILIBUSTER: Brandt Goldstein in Slate has a nice piece on the history of filibusters, which includes the following particularly amusing paragraph:

A single senator thus had the power to hold the entire body hostage on an issue, so long as he was prepared to keep talking about it. Hence the term "filibuster," derived from the Spanish filibustero, or freebooter, meaning "pirate." (That word ultimately goes back to a pair of Dutch words that mean "free" and "booty" -- which may or may not be relevant to goings-on in the Senate.)

 
[Eugene Volokh, 2:22 PM]
WHAT'S THE WORLD COMING TO? Reader Michael Williams writes:

Here's a quote from a CNN article regarding Clara Harris and her murder of her husband:

In addition to the murder verdict, the nine-woman, three-man jury also found Harris guilty of the special issue of using or exhibiting a deadly weapon -- the car -- in the commission of the July 24 crime.

"We never thought it would come to this," a defense attorney told CNN shortly after the verdict was read. "It's as if (the jury) threw the whole case about the marriage and the mistress out the window."

I haven't been following the case, but the quote by the defense attorney just makes me feel good inside. Imagine, the victim's affair and mistress didn't get his client out of murder charges . . . what's the world coming to?

 
[Eugene Volokh, 1:57 PM]
PROFESSOR FIRED AND STUDENT EVICTED FOR CRITICIZING UNIVERSITY ADMINISTRATION: That's what The Foundation for Individual Rights in Education is saying has happened at Shaw University in North Carolina -- and they seem to have newspaper articles and copies of actual letters from the university administration to prove it. I haven't researched the matter closely myself, but I've found FIRE's factual accounts to be quite accurate in the past. Shaw is a private university, so there's no constitutional problem here -- but there seems to be a serious breach of academic freedom traditions. Shaw may have the right to behave this way, but others are, I think, right to criticize it. Here's an excerpt from FIRE's press release, but, as I said, you can find newspaper articles and original documents at FIRE's site:

At Shaw University during fall 2002, Gale Isaacs, long-time professor and chair of the Allied Health Department, was fired for co-authoring a faculty resolution that criticized the University’s president and Board of Trustees. President Talbert O. Shaw personally fired her for “faithlessness [and] disloyalty.” She had worked at the University for nineteen years. Four days later, Shaniqua Bizzell, a student who was preparing to graduate within a month, read aloud and distributed Professor Isaacs’ resolution in the student center. President Shaw summoned her to his office and expelled her without a hearing. Several days later, she received a letter from Vice President for Student Affairs Vaughan Witten that found her guilty of “causing damage to the reputation of those falsely exposed to the scurrilous accusations.” Although the letter rescinded the indefensible expulsion, she was given several days to “move out of housing.” . . .

On October 24, 2002, an anonymous resolution circulated among Shaw University faculty, lamenting “the present atmosphere of contention and distrust of the Faculty and Staff . . . with regard to the Shaw University Board of Trustees, the Academic Administration and the sitting President.” It called for President Shaw to honor his promise to step down at the end of 2002. On November 12, Isaacs admitted to being one of the authors of the letter. She was immediately stripped of her position as department chair. On November 18, she received a letter of termination from President Shaw. The letter stated that her involvement in the resolution “demonstrated faithlessness in and disloyalty to the University and exhibited an unwillingness to work for the common good of the University.” She was banned from campus, given until the end of that day to gather her belongings, and escorted from her office by campus security. . . .

 
[Eugene Volokh, 12:49 PM]
ANOTHER SILLY POLL: Courtesy of The History Channel:

Which right or freedom is most crucial to America's democratic way of life?

• Freedom of religion
• Freedom of speech
• Right to bear arms
• Right to due process
• Right to trial by jury

People are expected to choose one -- but how does that make sense? Liberty and democracy is protected by the combination of rights, not any one right in isolation; deciding which right is the "most crucial" is pointless. And, of course, there's the usual self-selection bias, coupled with the strong online networking of pro-gun forces, yielding this result:

Freedom of religion 7% 1073 votes
Freedom of speech 20% 2964 votes
Right to bear arms 67% 9856 votes
Right to due process 4% 567 votes
Right to trial by jury 2% 349 votes

Total: Total Votes: 14,809

Means absolutely nothing.

 
[Eugene Volokh, 12:37 PM]
WHO IS JOSCHKA FISCHER? Michael Kelly writes in the Washington Post that pacifist Joschka Fischer was, earlier in life, a street thug and a likely aider of domestic terrorists. A well-written piece that's much worth reading.

     Naturally, all this doesn't undermine Fischer's arguments on the merits (though I think those arguments are unsound) -- but it does show that Fischer shouldn't be seen as having any moral authority, and that when he says "I am not convinced," we shouldn't be terribly moved by his judgment.

UPDATE: The Kelly piece is based on a longer New Republic piece; one reader says the New Republic piece shows Fischer in a considerably less troubling light -- check out both and see for yourself what you think about Fischer as a result.

 
[Eugene Volokh, 12:32 PM]
OPERATION . . .: Daniel Wiener writes:

I haven't seen anyone else speculating on what the invasion / liberation of Iraq will be named. After "Desert Shield" and "Desert Storm" will it be "Desert Avalanche"? Or will they drop the "Desert" prefix and go in a completely different direction? Inquiring minds want to know . . . .

The creative minds of the blogosphere may also prefer to come up with their own suggestions. In case anyone is interested, I'm inviting people to post their ideas in my comments section.

Well, I have an idea -- because of the location, we should stick with the Desert theme, but maybe we should pluralize it, to show that it'll cover more territory than the previous operations. We should also work in an element from the successful Panama regime change, which was Operation Just Cause. The result:

Operation Just Deserts

 
[Eugene Volokh, 12:26 PM]
"WHEN MUST THE GOVERNMENT DISCLOSE GUN OWNERS' ADDRESSES?" It turns out the Supreme Court's remaining major gun case this Term is actually a Freedom of Information Act case. David Kopel has a short piece about this in an American Bar Association publication; I'm not a FOIA expert, so I can't judge it directly, but I've generally found Kopel to be highly knowledgeable and trustworthy.

 
[Eugene Volokh, 12:23 PM]
WHAT ARE BUSINESSES TO DO? InstaPundit reports the following:

SEVERAL READERS report that they emailed Daimler-Chrysler to express their unhappiness with Gerhard Schroeder's anti-American tilt. Here's the rather unsatisfactory reply they've been getting:

Thank you for providing us with your thoughts on U.S./German relations.

We recognize your concerns, and assure you they are shared by all of us both here in the U.S. and at our headquarters in Germany.

You may be interested to know that during a speech to metalworking companies in Germany last year, Daimler Chrysler Chairman and CEO, Juergen Schrempp, expressed the following sentiments: "The USA and Germany have always been historically closely connected with each other both through trade and capital, as well as through culture and society. And, this I say as chairman of a German-American corporation -- we will do everything to promote and foster this friendship."

We apologize for any distress this situation causes and hope that you continue to look upon your Daimler-Chrysler ownership with pride.

I wonder how much they're paying the PR genius who drafted this reply?

Well, I doubt the message is the work of a "genius," but what's a business to do? Say "we disagree with Schroeder, and support the war"? That will doubtless be picked up by the media, and will alienate more people; it might also get them into trouble with the German government, something that any business that is concerned about protecting its shareholders' investment should worry about. It might win them a few friends, but I suspect that the new friends will be less pleased with Daimler-Chrysler than the new enemies will be upset with it.

     Businesses' job is generally to enrich their shareholders by providing a competitive product to their customers, with the minimum of overhead -- not to speak out on controversial issues of social policy. They have a constitutional right to speak, but that doesn't mean that it's generally wise for them to exercise this right. I can imagine some unusual circumstances where we might feel it necessary or proper for businesses to speak up, either because the policy directly and substantially affects them, or where the policy is so outrageous that all decent people should say something. But those should be the exception, not the rule. Sounds to me like Daimler-Chrysler issued precisely the sort of mealy-mouthed, banal, noncommittal statement that they had to issue.

 
[Eugene Volokh, 11:30 AM]
ANOTHER "COLLEGIALITY"-BASED DISMISSAL AT BROOKLYN COLLEGE: Erin O'Connor writes about this. In principle, I agree that collegiality is valuable in a university department -- but in practice, I share Erin's fear that firing people based on their lack of "collegiality" risks instilling conformity and subservience to the administration, rather than true collegiality.

     If the administration wants to run the university and its departments through traditional command-and-control, that might be fine, if they don't interfere with scholars' ability to publish; I'm not sure, but it's a plausible management model. But if the administration stays with the tradition of departmental self-government, then this sort of collegiality test will damage self-government much more than it improves it.

 
[Eugene Volokh, 11:22 AM]
SMALLPOX: A fellow UCLA Law grad writes, in reaction to Jonathan Rauch's column about health care workers refusing to be vaccinated against smallpox:

I am proud to say that both my wife and I were recently vaccinated against smallpox as part of a NIH study at Stanford University (see
http://vaccines.stanford.edu/clinical_trials.html).

The worst part was having to wear a bandage on my arm for two months until the scab fell off. Other than that it was less of a bother than my yearly flu shot.

Very happy to hear that people are volunteering for this sort of thing. Obviously, the risk isn't just the "bother" but also the slight chance of serious adverse reaction, but I agree entirely with Rauch and my correspondent -- we should be willing to run the risk (unless we have some specific reason to think that we're especially and highly at risk, for instance because we're immunosuppressed).

UPDATE: My correspondent also passes along the following:

By the way, one other comment on what led us to get vaccinated.

Immediately after 9/11, I was amazed that there was gargantuan efforts made to beef up airport security, as compared to security efforts for other vunerable areas. Did people really think that terrorists smart enough to stage the 9/11 attacks would do the same thing again? (I think the phrase is "fighting the last war.") So I promptly realized the next likely area of attack: smallpox, the perfect weapon of mass destruction against a totally unvaccinated world, particularly if you have at your disposal a dozen or more suicide volunteers who will ride the nations' subways while they are contagious.

Of course, smallpox vaccine was nowhere to be found. The Stanford/NIH study did not start until the fall of 2002. And I still can't get vaccine for my teenage kids, both of whom are old enough to consent to being vaccinated. (The Stanford study only vaccinated older people who had been previously vaccinated before they stopped in the early 1970's). If health workers don't want to be vaccinated, there are plenty of the rest of us who do.

 
[Eugene Volokh, 9:44 AM]
UNIVERSITY OF TEXAS, OFFENSIVE SPEECH, RACE PREFERENCES, AND MORE: Erin O'Connor has a good post on this.

 
[Eugene Volokh, 8:40 AM]
PRISONERS GETTING PRIVILEGES FOR PARTICIPATING IN A RELIGIOUS PROGRAM: The Washington Post has a story about this case. If the facts are as the plaintiffs allege, this seems to be a clear violation of the Establishment Clause, on two separate but related grounds: it (1) involves preferences being given to prisoners based on their willingness to declare religious beliefs and participate in religious conduct, and (2) thus coerces -- not with a gun to the head, but with the offer of very substantial benefits, which is seen as coercion enough in the Court's Establishment Clause jurisprudence -- religious behavior. It may also (3) involve government money going to religious teaching (though again there's a controversy about this question) in a preferential fashion, rather than as part of a neutral program (such as the GI Bill, school choice, or the charitable tax exemption) that includes religious organizations on the same terms as secular ones.

     The religious program here -- InnerChange -- is said to be quite helpful in reducing recidivism, which of course is good. But under the Establishment Clause, the government may not serve even this worthy goal by preferences for a particular religious program, or by practices that coerce religious observance. If the state wanted to set up a true choice system where prisoners could participate in many programs, and get the same privileges for participating in any of them, that may well be permissible. But the government may not say "If you want these special benefits, you must participate in a program that requires you to 'agree to immerse [yourself] in Bible study and "the transforming love of Jesus Christ."'"

 
[Eugene Volokh, 7:20 PM]
WEB PAGE RELATED TO MY ACADEMIC LEGAL WRITING BOOK: It's still in the early stages -- more a mockup than a final version -- and of course the book itself won't be out until April, but it should give you the flavor of what I'm shooting for. The page won't have the full text of the book, but it'll have most of the introductory material and part of the first chapter; and it will also have a good deal of supplementary material, such as pointers to law review addresses, sample document templates, sample cover letters, and so on. Suggestions for more items are most welcome.

 
[Eugene Volokh, 5:50 PM]
LETTERS TO THE WASHINGTON POST ABOUT THE LOTT STUDY: Fellow lawprof Joe Olson forwarded these to a discussion list I run; I have no reason to doubt that they’re genuine. I don't know which, if any, will be published:

1. Dear Editor:
   
   The Washington Post unfairly casts doubt about whether John Lott suffered a hard disk crash on his computer in 1997 (A Fabricated Fan and Many Doubts, February 11). I was co-authoring a paper with him at the time and I was affected by some data that were lost. We lost a very large data set that had been used to estimate the wage premium paid to workers exposed to long-term latent hazards in the workplace. The loss prevented us from performing additional research and significantly delayed publication.
   
   Sincerely,
   
   Richard L Manning, PhD




2. John Lott and I worked together on a project examining the impact on government spending of women being granted voting privileges. Some of this research, utilizing older census data, was published in the Journal of Political Economy in December 1999. But the publication of other research utilizing recent survey data was set back when the basic data was lost in 1997 when John's hard disk crashed. Thus, assertions that John fabricated the story of his disk crashing are incorrect.
   
   Lawrence W. Kenny
   Professor of Economics
   University of Florida




3. On February 11, 2003, in the article "A Fabricated Fan and Many Doubts", the Washington Post incorrectly questioned whether John Lott experienced a computer crash in the summer of 1997.
   
   I can testify that Mr. Lott's computer crashed at that time and that he lost everything he had on his hard drive. He and I discussed this crash many times. John and I were co-authors on a project that ended prior to the crash. Because he lost all the data from our project, I replaced as much of the data as I could.
   
   David B. Mustard
   Terry College of Business
   528 Brooks Hall
   University of Georgia




4. Dear Editor,
   
   I believe you draw an inaccurate comparison between the issue of Dr. Lott's survey and the Dr. Bellesiles case in your article "A Fabricated Fan and Many Doubts" of February 11. I am not an expert on the Dr. Bellesiles case, but my understanding is that there was little or no contemporaneous corroborating evidence of the flood that he reported as destroying his records and that his results were not reproducible by other scholars in the field. Whatever the case is with Dr. Bellesiles, these are definitely not true in Dr. Lott's case.
   
   There are numerous contemporaneous witnesses to Dr. Lott's hard-drive crash - I am one of them. I began working for Dr. Lott as a research assistant shortly after the hard-drive crash in 1997 and I distinctly remember him mentioning it to me at the time. More importantly, Dr. Lott's general results have been reproduced in many peer reviewed academic journals and he has a strong reputation among academics for distributing his data and publishing reproducible research.
   
   Dr. Lott himself has now reproduced the survey and released the names of all people who worked on it and the phone records from the calls. The results are largely in line with his previous results and no one has questioned the integrity of the new survey.
   
   Dr. Lott has a strong academic reputation for remaining faithful to the scientific protocol. Your comparison was unwarranted and inaccurate.
   
   Sincerely,
   John Whitley
   School of Economics
   Adelaide University, AUSTRALIA 5005

UPDATE: Julian Sanchez says this is irrelevant, because there's no doubt that the computer crash happened -- the doubt is whether there was data from a specific survey that was lost in the crash. I think the confirmation of the crash is helpful, but I agree that it's surely not dispositive.

 
[Eugene Volokh, 5:44 PM]
AN ALTERNATE MAP OF THE MUSLIM WORLD: From the Cleveland Scene; very funny. Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 5:35 PM]
UK FOREIGN SECRETARY JACK STRAW PUTS IT WELL: "If Saddam bows to the UN's demands and co-operates promptly, what is the need for greater numbers of inspectors? If he maintains his refusal to cooperate, how will higher numbers help? Lethal viruses can be produced within an area the size of the average living room. In the absence of Iraqi cooperation, even a thousandfold increase in the UN monitoring, verification and inspection commission's capabilities will not allow us to establish with any degree of confidence that Iraq has disarmed." In the Guardian; thanks to

 
[Eugene Volokh, 5:15 PM]
WHAT HAPPENS WHEN YOU CAN'T SPELL "GUN": I quite forgot that the Woody Allen connection (thanks to Sasha for the reminder).

UPDATE: Clayton Cramer has more along these lines.

 
[Eugene Volokh, 4:31 PM]
Q & A WITH CHRISTOPHER HITCHENS: Some other blogs have already linked to this interview, but I hadn't seen it until someone e-mailed it around. It's both entertaining -- especially because of Hitchens' fearless (though sometimes excessive) bluntness -- and substantive; I highly recommend it, though I don't agree with all of it.

UPDATE: The same publication runs a piece by a writer whom Hitchens accuses of anti-Semitism, responding to Hitchens' charges. As I mentioned, I certainly don't endorse all of Hitchens' views, and I take no view on this particular matter (which is a small tangent from Hitchens' broader point); still, I thought it would be good to link to the response as well as the original charge.

 
[Eugene Volokh, 4:24 PM]
AMERICAN JEWS AND ISRAEL: Gary Hart is being called anti-Semitic for the following statement (emphasis added):

We must not let our role in the world be dictated by ideologues with their special biases and agendas, by militarists who long for the clarity of Cold War confrontation, by think-tank theorists who grind their academic axes, or by Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests.

ABC's The Note writes:

For the second day in a row, former Senator Gary Hart gave a speech in the Bay Area in which he said, "We must not let our role in the world be dictated by . . . Americans who too often find it hard to distinguish their loyalties to their original homelands from their loyalties to America and its national interests."

The Note and others who still remember Pat Buchanan's talk of "New York bankers" wondered what exactly the Senator meant.

So after he was done speaking at the Stanford Law School yesterday, The Note waited patiently to ask him to whom or to what he is referring when he makes this point. . . .

[T]he Senator . . . seemed at first reluctant to give any specific examples, but then offered up Irish Americans and Cuban Americans as two of many examples of lobbying groups who exercise disproportionate power, sometimes, in his view, skewing US policy.

But Armed Prophet is not persuaded. (Thanks to InstaPundit for the pointer.)

     Now it may well be that Hart was indeed partly or entirely referring to Jews. But the problem is that the factual allegation can't easily be dismissed. I've certainly heard many Jews -- not particularly my family, but many others -- consider a political candidate's stance on Israel as a very important component of their judgment; that's the well-known "Is he good for Israel?" question. Many might have taken this view because they thought (as I generally do) that support for Israel is right on its own terms, and good for America. Still, I suspect that many others might have been more emotionally and intellectually committed to Israel's interests than to America's.

     This is not disloyalty to America: Israel and America have generally been allies, so setting aside a few incidents such as the Jonathan Pollard espionage case (on which I know too few of the facts, so I won't comment on it), American Jews have rarely had to clearly choose between "good for America, bad for Israel" and "bad for America, good for Israel." But it is divided loyalty -- a situation where some people's affection for another nation may at times distract them from deciding based on pure consideration of American interests. (I set aside those who care only about right and wrong, and not about the welfare of any particular nation; suffice it to say that plenty of people do focus on one or another nation's welfare.)

     Now this sort of mildly divided loyalty may not be that bad, especially when the other nation is in much greater jeopardy than America. Certainly lots of people from lots of groups, including some Irish-Americans and some Cuban-Americans, have acted this way; and even if it is a sin, then it may well a minor one, so long as the interests of the countries don't become strongly opposed. Moreover, it's hard to estimate -- and easy to exaggerate -- the precise magnitude of this divided loyalty. Many Jews doubtless focus on American interests (or on general morality) to the exclusion of Israeli interests; many others give Israeli interests only slight consideration. Finally, when people accuse Jews and only Jews of this, and don't notice similar behavior by other groups, that might indeed warrant charges of anti-Semitism.

     But I cannot simply condemn as anti-Semitism a suggestion like Hart's -- even if it does at least partly refer to Jews. The factual foundation for it seems to me too plausible, based on my own experience; and the implicit normative claim, which is that Americans ought to entirely set aside their loyalties to foreign nations, seems to me too credible.

UPDATE: Two readers pointed out that Israel is of course not the "original homeland" of most Jews, unless you reach over 2000 years back. But many Jews do think of it that way, because they are willing to think back 2000 years; and in any event, many Jews do have some feelings towards Israel that are comparable to the feelings that some third- or fourth-generation Irish-Americans have to Ireland, or that some first- or second-generation Cuban-Americans have to Cuba. Jews are therefore commonly seen as having this sort of "my original homeland" relationship to Israel; and I suspect that both Hart and his audience therefore saw some Jews as being included within Hart's criticism, rather than focusing on questions about how far back "original" goes.

 
[Eugene Volokh, 2:20 PM]
BUT IT'S NOT CENSORSHIP: Responding to my post below, a reader writes:

For pete's sake -- this is not too far from book burning. A question for you as a free speech expert: If this nonsense were to happen here (maybe it already has) are there any free speech implications that would indicate one cannot ban the teaching of the spelling of a word?

I certainly think the Canadian school's action are foolish -- but they aren't free speech violations, and wouldn't be even in the U.S.

     The question here is what should a government-run school teach, not what should private people be able to say. Someone must decide which words to include in a test; and every decision to include, say, 20 words, is a decision to exclude all other words.

     Here, the teacher, acting on behalf of the school, originally selected some words including "gun." Now, the school's administrators seem to have changed this selection, to exclude "gun." They're constitutionally entitled to do that, and parents are entitled to urge them to do this. Government officials, influenced by and accountable to the voters, are allowed to decide the content of the government's speech. I think that this particular decision is unwise -- but it's not a free speech violation.

 
[Eugene Volokh, 12:12 PM]
DON'T EVEN TEACH THEM THE WORD GUN: From the Ottawa Citizen, via Best of the Web and an anonymous correspondent; my comments follow:

The word gun was banned from spelling tests in one school only and not across the Upper Canada District School Board, board officials said Tuesday.

Terry Simzer, the Brockville-based board's public relations officer, said the word was removed from Grade 1 spelling lists at Lombardy Public School where a complaint originated from a parent, not from all schools as had been widely reported.

"The (complainant) and the teacher had an amicable meeting and it was agreed to remove the word from the spelling list,'' Simzer said Tuesday.

"It's up to the principals at other schools to decide whether that word is in use or not.''

Simzer said earlier news reports of the word's removal from all schools across the board had the board scrambling to clarify its position on the matter.

The whole thing started when Chloe Sousa, 7, brought home from Lombardy Public School a list of 10 words to learn. Each Friday her class is tested on these words. By last week, the class had worked its way through the alphabet to the letter G.

Amanda and Mark Sousa, who consider themselves to be pacifists and who are raising their two young children with this governing belief, were shocked when Amanda's spelling list last week included the word gun.

"I realize people hunt in this area, but I still don't think that warrants the teaching of this word to my daughter or any other child," said Mrs. Sousa. . . .

Mrs. Sousa wrote a letter to her daughter's teacher describing her views on the word gun, her unease with any child learning to spell the word, a few alternatives, and the wish to speak to the teacher about its inclusion on the list.

"The word gun is synonymous with death. I'm racking my brain trying to figure out why a seven-year-old would need to learn this word," said Mrs. Sousa . . .

"I don't think this is an issue of political correctness. It's an issue of protecting your child from violence. Guns are violent. End of story," said Mrs. Sousa. . . .

A few thoughts:

1. Kids don't learn how to spell gun. This doesn't keep them from using guns -- you don't need to know how to spell the word to use it -- but it does make it harder for them to write effectively about guns. (Would you trust an article that complains about "guhnns and ryefels"?) Therefore, the kids of anti-gun people will grow up to be unable to persuasively communicate their anti-gun opinions. Say, that's not a bad idea!



2. "'The word gun is synonymous with death. I'm racking my brain trying to figure out why a seven-year-old would need to learn this word,' said Mrs. Sousa." Hmm; the word gun is synonymous with death. (After all, consider all the competitive death sports in the Olympics, or the millions of Americans who like to go to death ranges and shoot death at paper targets.) Does it follow that seven-year-olds shouldn't learn the word "death," either? If they learn the word "death," why, then, they might die! Or kill people. Or something.



3. Was there some odd Canadian holiday yesterday, maybe some sort of February Fools' Day?

 
[Eugene Volokh, 9:11 AM]
LOS ANGELES CITY GOVERNMENT MAY ISSUE AN ANTI-WAR RESOLUTION: So says the American Reporter; my compliments to my former UCLA-Law-Review-mate Jack Weiss (editor-in-chief my year), who is opposing these moves:

The City of Los Angeles on Thursday may become the largest municipality in the nation to take a formal position on a possible war with Iraq -- and the issue has already sharply divided normally like-minded members of its City Council.

Two competing resolutions are scheduled to be heard at a meeting of the council's Rules, Elections and Intergovernmental Relations committee tomorrow morning, and could be forwarded to the 14-member City Council for a vote on Friday.

Both resolutions state they oppose a war with Iraq on humanitarian grounds, but the stronger of the two rejects any unilateral attack by the United States on the regime of Iraqi president Saddam Hussein, while the other urges diplomacy first and war only as a last resort.

The first, crafted by Hollywood-area Councilman Eric Garcetti, weighs in on the human and financial cost of the war -- estimated at $9 billion to $13 billion dollars per month -- and worries aloud about the possibility of a possible preemptive nuclear strike by the United States, an option Presdent Gerge Bush says he will hold open if Iraq attacks with chemical, biological or nuclear weapons it is believed to possess. . . .

The other, introduced by Hollywood Hills representative Tom LaBonge and Mayor James Hahn's sister, Councilwoman Janice Hahn, is backed by the council's lone Arab-American, former police union head Dennis Zine of the conservative western San Fernando Valley, and downtown Los Angeles representative Jan Perry, one of just two black councilmembers. It expresses support for U.S. servicemen, notes that 271 LAPD officers and 326 other city employees are military reservists who may be called up, and urges the President to exhaust all diplomatic measures before going to war.

"We give our unconditional support to U.S. military personnel serving at home and abroad in their tireless battle against global terrorism," the LaBonge motion said. . . .

In an early test of the stronger antiwar resolution, Garcetti -- a young, brainy, movie-star handsome former Harvard teacher and son of a former two-time Los Angeles District Attorney, now in his first term on the council -- barely prevailed, winning six votes to get it referred to the rules committee. A seventh councilman, Nick Pacheco, has also indicated his support, according to published reports.

But former Federal prosecutor Jack Weiss, whose council district includes most of the affluent and famously liberal West Los Angeles, said he would not support either resolution because they were not the proper business of the body.

"It's not the sort of work we should be doing," the Los Angeles Times reported him saying. . . .

Hahn's director of communications, Courtney Chesla, sent out an email over Hahn's signature saying, "The City Council is currently reviewing 2 motions relative to the war in Iraq. Both of these motions are attached. Your neighborhood council may also want to weigh in on this action item."

At the meeting of the Hollywood neighborhood group, interim board chairman Joel Fisher, a political science professor, defended the messages as "informational," but at least one speaker said the attachment of a flyer urging NO WAR ON IRAQ was not a neutral statement.

Antiwar activist Russell Brown, who has organized many of the neighborhood council meetings here, said he included the flyer because council members "wanted us to pass it on." . . .

UPDATE: The text of the resolutions seems to be up at the Lonewacko blog.

 
[Eugene Volokh, 9:06 AM]
THE HOLLYWOOD FOREIGN POLICY REVIEW: Check out the cover.

 
[Eugene Volokh, 8:15 AM]
HOW MANY AMERICAN INDIAN STUDENTS WOULD YOU EXPECT AT UCLA LAW SCHOOL? Here's what a mass e-mail I got yesterday says:

Dear Professor:

I have some UCLA School of Law trivia for you...

How many Native American students are, according to the most recent American Bar Association statistics, presently attending the UCLA School of Law?

(The ABA statistics show that there are a total of 951 law students at UCLA).

Would your guess be 50? Or perhaps there are 25 Native Americans attending ULCA School of Law?

Unfortunately, you'd be wrong on both accounts!

According to the American Bar Association, out of the 951 students enrolled at the UCLA School of Law, there are only EIGHT (8) American Indian/Alaska Native students attending!

As a professor at UCLA School of Law, I urge you to contact Dean Varat . . . and ask him to make it a priority at UCLA School of Law to recruit more Native American students.

Please understand, we are not asking the UCLA School of Law to lower its academic standards, we are simply asking them to increase their outreach into the Native American community.

Professor, we know that you understand and value a TRULY diverse student population. Given, the UCLA School of Law does have a "respectable" minority student population (28.2%). However, Native Americans only make up .8% (that's eight-tenths of one-percent) of the student population at the law school.

I note that the UCLA School of Law is not involved with the American Bar Association CLEO (Council on Legal Education) Program. As you might know, CLEO sponsors summer "boot camps" for minority and economically disadvantaged students to help prepare them for the rigors of law school. This might be an avenue for the UCLA School of Law to actively recruit Native American students.

Again, please accept this e-mail in the spirit that it is intended --- positive encouragement. We look forward to hearing from you.

Sincerely,

Billie Black Crow Sarber
Chair
Native American Education Alliance

So here's my question: According to the Census, 0.8% of the over-18 population calls itself non-Hispanic American Indian. (Another 0.7% calls itself Hispanic American Indian, but I take it that these are people whom UCLA would probably count as simple "Hispanic," since very many Hispanics have some American Indian blood.) Even if I thought that there was something inherently wrong about racially disproportionate representation, or if I thought that such disproportionate representation was strong evidence of discrimination (which I don't), why should the numbers here bother me, or cause me to urge the school to change its priorities?

     Also, why would I guess that 50 out of 951 UCLA law students were American Indians? And if I did, would I be condemned as a racist, given that some people have argued that when white people grossly overestimate the fraction of the population who are non-white, that's evidence of racism?

     (I realize that the definition of who is and who is not an American Indian is quite ambiguous -- as I mentioned, for instance, most Hispanics are part American Indian, as are many whites who generally call themselves white despite their partial American Indian blood -- but the e-mail said nothing to suggest that the 8 students who called themselves American Indian / Alaska Native were using some broader definition than the one given by the Census.)

 
[Eugene Volokh, 7:32 AM]
A SHORTER VERSION OF MY SLIPPERY SLOPES PIECE: If any of you might be interested in reading my Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026 (2003), but are daunted by its 109-page length, you might try an edited-down version that I just came up with, a mere 54 pages long. Still too long for most, I realize, but perhaps a bit better than the original.

     Also, I was hoping that some think-tank or other policy organizations might be interested in redistributing this shorter version. Slippery slope arguments, after all, are a mainstay of public debate, and are made by liberals, conservatives, and libertarians alike. I'd like to get these ideas out there, and while the long version is published in the law review and a 2000-word essay will be published in Legal Affairs in April, I thought there might also be room for the intermediate version. If you think your organization might be interested in reprinting or otherwise redistributing the piece -- or even just linking to it from some e-publication of yours -- please let me know. Thanks!

 
[Eugene Volokh, 4:25 PM]
POEM FROM TODAY'S SLATE: I was quite struck by the second stanza from today's Slate poem ("Zeno at Zero," by Mary Kinsey). I'm not sure I understand whom this is referring to, if it is referring to anyone, and the first stanza (which struck me as quite a bit different lyrically, and which I didn't like as much) didn't help me. Still, this stanza really worked for me:

He had no life to speak of, no career
After the first depressions, waiting out
The world's compulsive exercise of skill
And constant, low-pitched bragging. His one fear,
That he would seem a supplicant. No doubt
He lasted as he did by rage of will.

 
[Eugene Volokh, 4:09 PM]
SLATE ON THE SUN: Slate's Chatterbox (Timothy Noah) rightly castigates the New York Sun's editorial that called for suppression of antiwar speech; and he also faults the Sun's follow-up editorial for trying to recharacterize the Sun's earlier stance. But he also says the following:

In sum, the Sun was saying that the only way to defend free speech is to suppress it. The vileness of this argument was noted by Joe Conason in Salon; its illogic by Brendan Nyhan in Spinsanity; and its faulty grasp of the law by Eugene Volokh in National Review Online. (Incidentally, National Review Online is thus far the only conservative publication to raise a peep about the Sun editorial.)

I'm not positive how many liberal publications raised peeps about the Sun editorial, either, but I think the Chatterbox point is important: When there are right-wing-sounding calls for restricting speech coming, the moderate left, the center, and even some on the right properly ask -- are the supposed conservative defenders of free speech speaking up against the proposed restrictions, or are they laying low? We on the right, of course, ask the same of the supposed liberal defenders of free speech when free speech is attacked from the left; they are quite right to ask this of us.

     That's why I'm particularly happy, as I mentioned in my earlier post, that the National Review Online ran my piece on the subject. If the Right wants to be credible when criticizing the Left's censorship attempts (or the Left's calls for race preferences and the like), it needs to condemn the similar excesses of those on its own side.

 
[Eugene Volokh, 2:19 PM]
CRITICISM OF CATO CIGARETTE TAX REPORT: An anonymous but apparently knowledgeable reader writes the following, responding to the Cato report linked to by my "Cigarette Taxes Causing Crime?" post; as I've said before, I'm not expert enough on the subject to have an informed opinion, but it seemed worth passing along:

The report has three main failings. First, it is significantly outdated, in that almost all (if not all) of the anecdotal support for its thesis is several decades old: While it does document a decline in tax-paid sales after the most recent tax increases, it puts forward nothing to suggest a link to criminal activity.

That brings me to the second failing, which is ignoring the effect of internet commerce. Whatever criminal and smuggling actvity took place in the past, shouldn't one consider whether today consumers who want to avoid state excise taxes simply order their cigarettes via the internet? A thriving internet cigarette market may cause some to question the efficacy of state excise tax increases, but it also may rebut the assertion that those increases lead to criminal activity.

Finally, there is pretty good body of academic research establishing that the effect of price increases -- which are necessitated by excise tax increases -- is to significantly decrease the number of adoloescents who take up smoking. It should come as no surprise that the market for cigarettes, like all markets, is elastic and that cigarette consumers, like all consumers, are price sensitive. Minors, with relatively ittle discretionary income, are more price sensitive than others. Frank Chaloupka, who is an economist at the University of Illinois at Chicago, has written extensively on this topic, as has Professor Gruber of M.I.T. The CATO report casually dismisses the public health claims that accompany excise tax increases without confronting the documented decreases in youth smoking that follow from those increases.

By the way, New York attempted to ban the direct shipment (via internet, mail or phone orders) and delivery of cigarettes to consumers, but that law was struck down on commerce clause grounds in 2001 (The decision, in Santa Fe Natural Tobacco v. Spitzer (SDNY, June 7, 2002) contains a pretty decent discussion of the price elasticity data.)

Oh, and here's a message taking a different perspective, from reader Gerald Dearing:

I can't prove that taxes are the cause. But as a truck driver, I can testify that cigarette loads are the number one highjacked load in this nation. We pick up from gated, locked, guarded facilities. Go through identity verification and security inspections more stringent than checks at military bases or the mint. We watch for cars following us out of the shipping facilities. We are satellite monitored, and report our trip plan and stops. In Los Angeles, my carrier maintains a secure, fenced terminal. We are required to have a police escort for the three mile trip from our terminal to the consignee. And we still have loads evaporate.

Cigarettes are high value and easily disposed of. We haul loads of higher value (computers, electronics) but none is as highjacked as frequently as cigarettes.

Can't blame it all on taxes. But higher taxes increase the street value and increase the demand.

 
[Eugene Volokh, 2:13 PM]
JANES ADDITION: Besides the blogger RSS feed, available on the upper left-hand side of the screen, we've just added a feed produced by David Janes' RSS scraper. It looks like it'll be more reliable than the blogger-produced version; you can test it here, using SOAPClient. Thanks again to David Janes for providing this and other excellent free blog-handling tools.

 
[Eugene Volokh, 11:04 AM]
REJECTED: Edsel David Barnes, Jr., also known as Wildman v. William J. Clinton et al., 2003 WL 245329 (6th Cir. Jan. 31), involved Barnes' claim that "the following statement in Article VII of the Constitution: 'the Seventeenth Day of September in the Year of Our Lord one thousand seven hundred and Eighty Seven'" unconstitutionally "grants a title of nobility to, respects, and is based on the establishment of the Christian religion." Barnes sought an injunction "directing the defendants to cease and desist from imposing the current dating system on him and directing them to adopt a new dating system for the United States of America."

     The district court rejected the claim on the merits, and the court of appeals rejected the appeal on procedural grounds too boring to mention here.

 
[Eugene Volokh, 7:44 PM]
TONY BLAIR SEEMS TO BE IN POLITICAL TROUBLE OVER HIS IRAQ STANCE: I haven't had a chance to read the survey on which this article reports -- I hope to do so soon -- but if it's true, then Blair seems to be in big trouble. At the same time, while England's abandoning the coalition (which of course might not happen, even given the polls) might make the war harder for us, I don't see how it can affect our bottom line. What struck me most was this line from the story:

Nearly nine out of ten voters think the UN weapons inspectors should be given more time to establish whether Iraq is hiding weapons of mass destruction, as France, Germany and Russia have urged. Meanwhile, just a third think that Britain and America have so far put forward a convincing case for military action against Iraq.

"Whether Iraq is hiding weapons of mass destruction" -- is there really a credible debate remaining about that? And if this isn't a convincing case as to military action, then we have to accept more than just Iraq's possessing and further developing weapons of mass destruction; we (or, to be precise, those of us who haven't already come to this conclusion) have to accept that the U.N. is a useless organization that is unable to enforce its own mandates. I hope British public opinion is not being accurately reported here. But if it is, then just reflects the errors of the British public, not the errors of a hawkish policy.

 
[Eugene Volokh, 6:46 PM]
ABCNEWS REPORTS ON IRAQI INTIMIDATION OF SCIENTISTS:

In the last 10 days, United Nations inspectors have been given what are described as "important, new and credible leads" from a recent defector, who also told ABCNEWS that Iraqi scientists involved in the nuclear, chemical and biological weapons program were systematically intimidated.

The defector, interviewed by ABCNEWS in an undisclosed European country, is an engineer described as close to several of the weapons scientists who, he said, live in fear.
Many of the scientists are eager to cooperate with the United Nations, but the intimidation is so effective that the scientists are terrified of meeting in private with the inspectors. One scientist who met with the inspectors this week was so frightened, it took an hour for him to stop shaking, according to U.N. sources.

"Iraqi scientists and researchers are under a lot of pressure and influence by the Iraqi authorities," the Iraqi defector told ABCNEWS. "They were scared and threatened in different ways, including threatening to go after their families if they leave Iraq to meet with inspectors and going after their relatives if their families go with them and going after them even if they were in exile.

"For these reasons, the scientist or researcher becomes scared to tell the secrets, even though he knows it's a way to lift the difficult, miserable conditions the Iraqi people are living under."

     On one level, well, duh.

     On another, isn't this just another reminder that the "send in more inspectors" proposals are just pointless? The inspectors will try to interview more scientists; the scientists will say no. The inspectors will try to interview them outside the country; Hussein will threaten a horrible death to their families and friends. And so it will go, just like it's gone until now.

     The U.N. and, if it goes along, the U.S. will be seen as increasingly, almost laughably ineffectual -- never a good reputation to acquire in a dangerous world. The "Arab street" will continue to be outraged by continuing sanctions (to the extent that the "Arab street" is indeed outraged by things, something that the experience with the Afghan war puts in doubt). The bill for the military buildup and the continued military preparedness will mount (after all, if we are trying to "pressure" Iraq to comply, we have to have a realistic threat with which to back up the pressure). Weather conditions, as I understand it, will deteriorate. Depending on the pace of Hussein's development, he'll get more and more weapons of mass destruction. And all for nothing, because Hussein often says he'll comply, but never actually complies. What exactly is the point?

 
[Eugene Volokh, 6:38 PM]
CIGARETTE TAXES CAUSING CRIME? A Cato Institute study says yes. I haven't looked at this closely, and I'm in any event not expert enough on the field, but it seems like an interesting claim:

Smalltime crooks and organized
crime have engaged in murder, kidnapping, and armed robbery to earn and protect their illicit profits. Such crime has exposed average citizens, such as truck drivers and retail store clerks, to violence.

 
[Eugene Volokh, 6:30 PM]
ALMOST NO KNOWLEDGE: Here's what a local newspaper says the publisher of The New York Times said at a talk at Kansas University:

[Sulzberger o]n how the Internet is like Speaker's Corner in London: "There's all these guys ranting on their soapboxes. How much knowledge is passed out on a given day? Almost none."

So I was ready to make some snide remarks about this, and then I realized -- why should I have any confidence whatsoever that the statement is in fact correctly quoted, and quoted in context? I e-mailed the publisher's office asking them whether they can confirm the quote, but I don't expect an answer, and for good reason: Obviously the publisher of the New York Times can't take the time to respond to every correspondent who wants to check this sort of quote, and his assistants can't just respond for him, since they weren't there and don't know what's said (I highly doubt that his talk was scripted).

     Yuck. Once you drink from the well of skepticism, no newspaper account will ever taste as sweet. Or some metaphor to that effect.

 
[Eugene Volokh, 5:58 PM]
A QUESTION FOR ALL CURRENT LAW REVIEW EDITORS: Does your journal accept electronic submissions -- and, if it does, are there any glitches or serious delays in the process that would lead you to recommend that people not submit electronically? Please e-mail me at volokh at law.ucla.edu and let me know; I will keep both your name and the journal's name confidential.

     I'm trying to figure out whether to recommend, in my forthcoming Academic Legal Writing book, that students send their manuscripts by postal mail (my current suggestion), or whether I should encourage students to save time, money, and effort by submit the manuscripts by e-mail. Thanks very much.

 
[Eugene Volokh, 4:58 PM]
SLATE'S TIMOTHY NOAH ON THE "MORE INSPECTIONS" PLAN: Slate's Timothy Noah (Chatterbox) -- a self-described reluctant convert to the pro-war cause (the Powell speech did it for him), puts it well:

Among anti-war types, there's been a lot of talk since Powell's speech about steps Iraq might take to prevent war. We should get them to allow surveillance flights, we should get them to provide greater access to weapons scientists, etc. None of these steps would be meaningful now that we know Saddam has chemical and biological weapons. There's nothing left for the U.N. inspectors to do, except perhaps buy a little time to allow the Bushies to win over the Security Council holdouts. The only card Saddam has left to play is exile for himself and his family. Barring that, Chatterbox sees no alternative to war.

 
[Eugene Volokh, 4:44 PM]
THE FRENCH PROPOSAL: Tom Friedman in the New York Times puts it well:

The French position is utterly incoherent. The inspections have not worked yet, says Mr. de Villepin, because Saddam has not fully cooperated, and, therefore, we should triple the number of inspectors. But the inspections have failed not because of a shortage of inspectors. They have failed because of a shortage of compliance on Saddam's part, as the French know.

(Thanks to Andrew Sullivan for the pointer.)

 
[Eugene Volokh, 3:57 PM]
"WAR OF THE WEB ROSES": Slate seems to have a helpful column comparing various Web-based flower delivery services.

 
[Eugene Volokh, 3:56 PM]
HELP ME! I'm wondering if I might again ask some of our readers for some free computer consulting -- our VOLOKH-L distribution list appears to work well for our subscribers (about 45 right now), but just a few days ago it started sending us bloggers several copies of the following error message pretty much every time a post was distributed:

Your message is being returned to you unprocessed because it appears to have already been distributed to the VOLOKH-L list. That is, a message with identical text (but possibly with different mail headers) has been posted to the list recently, either by you or by someone else. If you have a good reason to resend this message to the list (for instance because you have been notified of a hardware failure with loss of data), please alter the text of the message in some way and resend it to the list. Note that altering the "Subject:" line or adding blank lines at the top or bottom of the message is not sufficient; you should instead add a sentence or two at the top explaining why you are resending the message, so that the other subscribers understand why they are getting two copies of the same message.

------------------------ Rejected message (16 lines) --------------------------
Received: from Oxblog.blogspot.com (pepper.blogger.com [216.34.7.181])
by caracal.noc.ucla.edu (8.9.1a/8.9.1) with ESMTP id PAA08665
for ; Mon, 10 Feb 2003 15:26:01 -0800 (PST)
Received: from AspEmail ([192.168.10.6])
by Oxblog.blogspot.com (8.11.6/8.11.6) with SMTP id h1ANEG411206
for ; Mon, 10 Feb 2003 15:14:16 -0800
Message-Id: <200302102314.h1ANEG411206@Oxblog.blogspot.com>
From: "Eugene Volokh"
To: volokh-l@listserv.ucla.edu
Reply-To: volokh@mail.law.ucla.edu
Subject: [The Volokh Conspiracy] GUIDELINES ON PRAYER IN SCHOOLS:
Date: Mon, 10 Feb 2003 15:27:19 -0800
MIME-Version: 1.0
Content-Type: text/html

[Text of the post follows]

And, yes, all such messages that I've seen seem to be routed via Oxblog.blogspot.com, though none of the subcribers seem to have that as their host name. Any thoughts on this? Thanks in advance.

 
[Eugene Volokh, 1:45 PM]
WEBLOGS AND INEQUALITY: A persuasive and apparently scientifically sophisticated essay from Clay Shirky on blogs and social networks more generally; much worth reading. Thanks to InstaPundit for the pointer.

 
[Eugene Volokh, 1:42 PM]
NEW SECOND AMENDMENT LAWSUIT CHALLENGING THE D.C. GUN BAN: Two people from the Cato Institute (though not the Institute itself) and a couple of other lawyers have filed a lawsuit challenging the D.C. gun ban on Second Amendment grounds. Here are the press release and the complaint.

     I think the plaintiffs should win; for the reasons I mention here, I believe the Second Amendment secures an individual right to keep and bear arms, and a near-total gun ban such as the one in D.C. (which prohibits the possession even of rifles and shotguns, unless they are unloaded and either locked or disassembled) surely violates that right. Whether the plaintiffs will win is, of course, a harder question.

 
[Eugene Volokh, 1:35 PM]
NEW YORK MARCH: Phil Carter passes along the following AP story:

Citing safety concerns in "this time of heightened security," a federal judge Monday upheld the city's refusal to allow anti-war demonstrators to march past the United Nations on Saturday.

U.S. District Judge Barbara S. Jones said the demonstrators' First Amendment rights were not violated by the city's decision to confine the protest to a plaza near the U.N. complex.

"The city's restriction on marching is not a restriction on pure speech, but rather a restriction on the manner in which plaintiff may communicate its message," Jones wrote. . . .

Leslie Cagan, a leader of the [organizers], said the group will appeal. . . .

In her ruling, Jones noted that the United Nations was "uniquely sensitive among locations in New York City because of its function, our country's treaty obligations and its history as a terrorist target."

She said that since the Sept. 11, 2001, terrorist attack on the World Trade Center, the city has banned all demonstrations, parades or other public events in front of the United Nations.

"This policy is all inclusive, makes no reference to the content of the regulated speech and does not distinguish between event organizers or their views," she said.

Jones also agreed with the city's argument that the march is expected to be too large for the police department to secure the landmark.

Saying that police concerns about security threats were "far from theoretical," the judge noted that the United Nations was among five landmarks targeted by terrorists in a failed plot in 1993. A dozen men were convicted and sentenced to long prison terms.

Chris Dunn of the New York Civil Liberties Union had argued that the city was using "a theoretical possibility something terrible is going to happen to cancel the right of people to participate in peaceful protest."

As I mentioned before, it's often hard to tell just when these content-neutral speech restrictions (also known sometimes as "time, place, or manner" restrictions) are permissible; a lot depends on the particular factual details of each case. I'm therefore not sure how the court of appeals will rule, though I suspect that it will try to consider the matter promptly.

 
[Eugene Volokh, 10:52 AM]
TOTAL FAILURE: A couple of weeks ago I blogged quite a bit about the Cynthia McKinney misquote. The first reference to the misquote was in David Horowitz's frontpagemag.com column, then in the Washington Times, The Hill, the Providence Journal and in some newspapers that reprinted that piece. Recall that McKinney was ridiculed for saying:

In no other country on the planet do so many people have so little as they do in this country.

But as this CSPAN video reveals, she actually said (at a bit past 1:31:20) (emphasis added),

In no other rich democracy on this planet do so many people have so little . . . .

While one can of course still disagree with the relevance of this statement, it is far more plausible than the obviously silly claim that she was quoted as saying. I have listened to the rest of the McKinney speech, and found no other place in which she says what people claim she said; I suppose it's conceivable that she got up some other time during the rally -- I didn't watch the entire thing -- and made the "no other country" statement, but I have no reason to believe this, and it seems quite implausible.

     Bothered by this, I e-mailed all the media outlets that reported on the McKinney statement, and all the bloggers that I saw reporting it. Several of the bloggers promptly took down the quote; not a single newspaper issued a correction. Only one journalist got back to me, saying that he was probably mistaken, and that he'd discuss the matter with his editors -- but there was no correction published. All my attempts to try to set the record straight were total failures, at least as far as the traditional media goes.

     Moreover, to my knowledge not a single other blogger, including those on the Left who might have been ideologically interested in pursuing the errors of the conservative media, picked up on this point. Perhaps they don't read this blog, though I have indeed had e-mails and links before from bloggers on the Left. Or perhaps so few people like McKinney that even the Left doesn't feel particularly interested in coming to her defense.

     Finally, one other obvious explanation would be that this is a pointless little item, and that I was foolishly exaggerating its importance and newsworthiness. Still, I don't think so: Here you have some substantial writers (the Washington Times piece was written by its editor-in-chief) apparently misquoting a noted political figure in a way that makes her look like she's a fool, and one who is willing to say ridiculously false and disparaging things about her own country. This was probably an innocent mistake, abetted by McKinney's reputation for actually saying things that are indeed foolish. But still, it's a mistake that wrongly tarnishes McKinney, and, by extension, her fellow speakers at the rally -- the quote was indeed generally used as an example of the supposed folly of the entire event. It seems that basic journalistic ethics would require that the mistake be promptly corrected; but it wasn't.

 
[Eugene Volokh, 9:59 AM]
CONTENT-BASED AND CONTENT-NEUTRAL SPEECH RESTRICTIONS: My National Review Online op-ed last Friday and the accompanying blog post criticized the New York Sun for urging the suppression of antiwar speech precisely because of the content of that speech. As you recall, the Sun's argument was that antiwar speech might help our enemies (which may indeed be so), and that therefore it should be suppressed with steps up to and including treason prosecutions.

     The op-ed and the blog post did not, however, criticize the NYPD or of the City for denying a parade permit to the antiwar demonstrators. And there was a good reason for this: The City might well be within its power to limit such permits for reasons that are unrelated to the content of the speech, such as the possibility that the parade would unduly snarl traffic. First Amendment law has long (and correctly) recognized a distinction between

1. content-based speech restrictions that suppress speech precisely because of the information or ideas that the speech communicates, and



2. content-neutral speech restrictions that suppress speech because of its content-independent side effects, such as excessive noise, traffic obstruction and the like.

Content-based restrictions are generally unconstitutional, unless they fall within certain categorical exceptions that don't apply here. Content-neutral restrictions, though, are often constitutional if they leave open ample alternative channels for communication.

     Whether such content-neutral restrictions are or are not constitutional depends on the facts of each case -- for instance, on how ample the alternative channels of communication are, how much content-independent harm (such as traffic obstruction) the speech would cause, what specific content-neutral policies the police have in place with regard to parades and rallies generally, and so on. I can't say for sure whether the NYPD's denial of the parade permit would be justified under these policies; but I can say that such a content-neutral justification for restricting speech is much more defensible than the content-based justification the Sun proposes.

     I thank Letter from Gotham for prompting me to post on this subject, but I leave it to readers to decide whether it's accurate, fair, or helpful to characterize the recent posts on this matter by "Volokh and a brigade of bloggers" as "hyperventilating on [our] own self-righteousness," as opposed to, say, justified criticism of a newspaper's call for viewpoint-based suppression of ideas.

     Also, one thing should be clear: It's a mistake to say that the denial of the permit is "not a First Amendment issue," but "simply a public safety issue." The Supreme Court has repeatedly, and correctly, held that content-neutral speech restrictions do raise "a First Amendment issue," though they may nonetheless be sometimes justified under the First Amendment because of public safety concerns.

UPDATE: Letter from Gotham posts a very gracious apology, which I much appreciate, and also has more commentary on the matter (scroll up).

 
[Eugene Volokh, 8:26 AM]
WE'RE #2! A Right Wing News survey of a bunch of leading bloggers lists us as #2 among group bloggers, behind Samizdata. Very glad to hear it.

 
[Eugene Volokh, 8:20 AM]
THE OXBLOGGERS AND THE MOVEMENT FOR PROMOTING DEMOCRACY THROUGHOUT THE WORLD: Seems like a great project, in which the Oxbloggers are taking a leading role. See their op-ed today in the Yale Daily News, and their on-blog summary of the movement's principles.

 
[Eugene Volokh, 8:17 AM]
GUIDELINES ON PRAYER IN SCHOOLS: The Department of Education has just released its "Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools" -- I skimmed over it, and it seems to be a fair summary of the existing constitutional law on the subject.