Saturday, October 25, 2003

 
[David Bernstein, 10/25/2003 08:15:16 PM]
Straw Man Criticism: Blogging, and being involved in public debates more generally, leaves one open to criticism, and sometimes the critics even turn out to be right. But in a couple of recent instances, bloggers have criticized arguments I never made, setting me up as a libertarian strawman.

Responding to an excerpt from my You Can't Say That! book posted at Frontpage.com about the ACLU's abandonment of civil liberties in favor of antidiscrimination concerns, Mithras states: "According to Bernstein, nothing about fighting discrimination in employment, in housing, in public accomodations, or in education can possibly require government action." Read the excerpt for yourself; I never make this argument, nor do I make this argument elsewhere in the book. Nor is it a logical implication of my contention that as a civil libertarian organization, the ACLU should prefer constitutionally protected civil liberties to antidiscrimination laws when there is a conflict, which there often isn't. [Aside: In the comments section Mithras, who claims my arguments regarding the ACLU are "silly," acknowledges that speech codes at public universities are "clearly unconstitutional." Is Mithras aware that all three California chapters of the ACLU are in favor of such speech codes, and that the national ACLU has given an honorary position to Mari Matsuda, the leading legal academic champion of changing First Amendment law to permit such speech codes?]

Meanwhile, Brian Leiter acknowledges the correctness of the sole point I made in a post on vouchers, which is that the extensive funding of vouchers would lead to a proliferation of private schools. Leiter then goes on to argue against vouchers, responding to arguments I never made (again, read my post yourself). I happen to think that Leiter's argument that American public schools are "underfunded" is risible, but he should have the courtesy of waiting until I state my support for vouchers, and my reasons for that support, before attributing views to me. (For criticism of Leiter's substantive point, see this post by Michael Rappaport).

And it's not just bloggers who create libertarian strawmen. Back in the days of the Bernsteinblog, I noted that a review in an academic journal of my previous book, Only One Place of Redress, claimed that I argued that a "'classical liberal' state promoting free market principles is the best remedy to end racial discrimination." I actually explicitly stated that "the classical liberal vision of civil rights admittedly holds little utopian promise. It does not obligate the state to eradicate discrimination, or to guarantee 'equal opportunity.'"

I understand why opponents of libertarianism are eager to find libertarian claims to rebut. I only ask that these claims not be attributed to me unless I've actually made them. While the harm in the blogging world is probably minimal, the sort of attitude that makes all libertarianish thinkers responsible for every disreputable or un-pc argument that the left thinks is generally attributable to libertarians--regardless of whether the libertarian in question has actually expressed that point of view--can lead to significant discrimination against libertarianish folks in the academy. Recall that when I presented a job talk at a major Northeastern law school on African American legal history, I was asked completely irrelevant questions about affirmative action, apparently on the theory that (1) all libertarians must oppose affirmative action; (2) any libertarian writing about race in any context must be doing so because he is trying to promote an anti-affirmative action agenda, however subtly; and (3) that it's proper to ask a libertarian candidate about this subject even if the candidate has not said anything about it. Needless to say, all three of these propositions are incorrect.

 
[Tyler Cowen, 10/25/2003 08:10:31 PM]
Private trading in antiquities: It seems that the Israelis are considering privatizing part of the antiquities market, and allowing private trading:

"The Antiquities Authority is considering selling pottery shards unearthed in archaeological digs on
the open market. If the move is approved, it could be an international precedent - a state authority
established to protect antiquities will be trading in them. "

One commentator noted: "It's almost like letting the police sell drugs..." N.B.: This is not my idea of a reductio ad absurdum. I do not favor complete privatization of the antiquities market, but I would rather see the police sell marijuana than throw people in jail for possession, as they currently do.

Thanks to binref.com for the link.

 
[Jacob Levy, 10/25/2003 02:52:42 PM]
Book searches and the Authors' Guild complaint For what it's worth, I signed a contract-amendment with OUP in the spring authorizing the creation of services like this. I had thought it mostly had to do with libraries buying subscriptions to Oxford Scholarship Online, and hadn't realized how dramatic the difference would be if the service was made available, in conjunction with lots of other publishers, to Amazon. But Oxford was very careful to get an amended contract, and although I didn't envision Amazon usage, it looks to me as if the contract clearly allows for the possibility. So even if I as an author minded (which I don't), I think my publisher has handled it appropriately.

 
[Eugene Volokh, 10/25/2003 01:53:50 PM]
Academic freedom: Eric Rasmusen reports on what appears to be the University of Illinois' attempt to restrict the Web speech of one of its professors:

I've just come across a case of a very good university, the University of Illinois, apparently suppressing a professor's academic freedom to avoid offending diploma mills. A tenured physics professor, George Gollin, set up a website on the subject of diploma mills-- low-quality schools that sell unaccredited degrees-- on the computer used by his high energy physics group. (This computer contained other pages, including a a recipe for stir-fried kangaroo, which apparently the University thinks is appropriate for such a computer.) On July 25, CBS News did a story about his website. The university started getting complaints and threats of lawsuits from the diploma mills.

What happened next is a little unclear, but by October, Professor Gollin had moved his materials to the George Gollin homepage, so, as usual with university attempts to suppress information, the information didn't really get suppressed, but the university was able to demonstrate its strong desire that it be suppressed. What is unclear is why the website was moved. . . .

[From a] subscription-only [story] from The Chronicle of Higher Education, October 24.

Under pressure from administrators at the University of Illinois at Urbana-Champaign, a tenured physics professor has shut down a Web site he created to make information available about the unaccredited distance-learning institutions often referred to as "diploma mills."

The professor, George Gollin, said administrators ordered him to remove the material from the university server last month because proprietors of some of the online institutions mentioned on his site had threatened to sue the university. The administrators told him that his research into the controversial institutions did not meet the "public service" obligation for faculty members of land-grant universities, he said.

. . .

But Robin Kaler, a spokeswoman for the university, denied that Illinois had ordered the professor to remove the material. "We were trying to help him find a more appropriate place for his Web site," she said, adding that a Web site about diploma mills should be "housed in a place that deals with accreditation."

The university did not view Mr. Gollin's research into diploma mills as meeting the institution's public-service requirement, Ms. Kaler said, because the work is not related to physics, his area of expertise. "He has a lot to offer the community and the world outside of his discipline," she said. "But for the university support he receives, it's for his work in his discipline."

Rasmusen also provides, on another page, his commentary on the question.

     Based on the facts as Rasmusen reports them, and especially the quotes from the Chronicle of Higher Education, this strikes me (and Rasmusen) as pretty bad behavior on the University's part. As best I can tell from the CHE story, the university's Web hosting policy is more or less "We'll host material that's related to your research, teaching, and public service in your area of expertise; and we might host other material, too, but when we get threats of lawsuits based on that other material, we'll no longer feel obligated to host it." This is probably a constitutionally permissible policy in general, because it's not viewpoint-based (as opposed to a policy of hosting a wide range of material but not material that, say, expresses anti-gay opinions). When the government sets up a so-called "designated public forum" by voluntarily opening up its property for some group of people to speak on, it can impose such viewpoint-neutral limits on the forum.

     But -- certainly as applied here -- I think this policy is quite unsound. Gollin wasn't just speaking about some random hobby-horse. He was complaining about what he saw as corruption of the higher education system; university professors in all disciplines may rightly view it to be part of their "public service" mission to speak up against such corruption. University professors from all disciplines should step up to publicly fight threats to universities as a whole, whether these threats come from, for instance, restrictions on academic freedom, cheating by university students, or cheating by diploma mills. That's not just a matter that should be left to, say, professors of education or law. I think universities should support their professors' public service in all sorts of areas, but especially when the public service relates to maintaining the health of the higher education system.

     What about the threat of libel liability? (The university probably wouldn't be liable simply for hosting the material, under 47 U.S.C. sec. 230; but it might be liable as the professor's employer for what the professor does as part of his employment, and its actions might have been aimed at establishing that the professor's speech here was outside the scope of employment.) Well, if the university found that the professor's speech was indeed false and defamatory, then they could properly refuse to host it -- or, in some situations, even discipline the professor, if they found that he was knowingly fabricating his claims or was even grossly negligent in his scholarship.

     But if they thought the professor's speech was accurate, and they just wanted to avoid the hassle and cost of a lawsuit, then I think that this is a reaction that's unworthy of a center of learning. I certainly understand why a business would act this way; but a university is supposed to be more than a business that aims to minimize its costs of operation. It's supposed to be a place that supports the spread of ideas, ideas that are largely developed by its faculty. Part of its duties to its faculty is to help protect their scholarship even if that means bearing some cost and legal risk.

     If the university investigates the matter and concludes the professor was guilty of libel, then it's entitled to banish his speech. But absent some such finding, it seems to me that the university's job is to defend its faculty -- especially when, as here, the faculty member is trying to defend universities generally. And by getting a reputation as an institution that's willing to stand by its faculty, the university will probably decrease the number of demand letters and credible lawsuit threats that it's going to get.

 
[Eugene Volokh, 10/25/2003 07:49:18 AM]
Trouble for Amazon's book search? Here's what the Author's Guild has to say about it. I don't know whether their claims about the authors' contracts are accurate, but if they are, this could pose problems for Amazon. (Amazon would still have a decent fair use claim even if they can't claim a contractual right, but it won't be open and shut, for some of the reasons the e-mail below describes.) I leave it to readers to decide whether this shows that the copyright system imposes too many transaction costs on worthy endeavors, that publishers and other businesses violate authors' rights, both, or neither:

From: AuthorsGuild Staff [mailto:staff@authorsguild.org]
Sent: Friday, October 24, 2003 5:09 PM
To: Member@authorsguild.org
Subject: Amazon's New Book Database

You might have read about Amazon.com's "Search Inside the Book" program, launched yesterday, in which the entire texts of participating publishers' titles are available on the Amazon.com website. Visitors can locate titles containing search terms they choose, and then access the two pages preceding and the two pages following the page containing those terms. Amazon sets a limit that permits a user to see no more than about 20% of a particular work. The company reports that publishers consented to the placement of all 120,000+ titles in the program.

We've reviewed the contracts of major trade publishers and concluded that these publishers do not have the right to participate in this program without their authors' permission. We wrote to these publishers after we learned about the program in July. Most argued with our interpretation of their contract (no surprise there), but some have said that they would remove a work from the program if the author insisted.

Whether your works should be in the program is hard to say. This program will likely prove to be useful in promoting certain titles. Midlist and backlist books that are receiving little attention, for example, may benefit from additional exposure in searches. For other titles, the program may erode sales. Most reference books would be at clear risk in such a database. So would many (if not most) travel books and cookbooks. Most fiction titles are not likely to be greatly threatened.

When we learned of the program, we thought that it would be impossible to read more than 5 consecutive pages from a book in the program. It turns out that it's quite simple (though a bit inconvenient) to look at 100 or more consecutive pages from a single lengthy book. We've even printed out 108 consecutive pages from a bestselling book. It's not something one would care to do frequently, but it can be done. So a reader could choose to print out all the fish recipes from a cookbook in the program. Or the section on Tuscany from a travel book. We believe readers will do this,
and the perplexing question is whether the additional exposure for a title -- and the presumptive increase in sales -- offsets sales lost from those who just use the Amazon system to look up the section of a book when they need it.

Other books at especially high risk include those that sell to the student (particularly college student) market as secondary reading. A student could easily grab the relevant chapter or two out of a book without paying for it. Students certainly have the time and most likely the inclination to do so, and, with the help of some willing colleagues, could print out the entire texts of books in the program.

We'll be sending you more information about the program shortly, and we're going to be in further touch with the major publishers. If you'd like a book removed from the program and your publisher isn't cooperating, please let us know.

-----------------------------------------
Copyright 2003, Authors Guild. This work may be forwarded and posted, so long as it is not edited. www.authorsguild.org

UPDATE: My friend and colleague Steve Bainbridge shares the Guild's concerns. I express no views on the economic or the legal question (in part because to answer the legal question I'd have to see just what the contracts say).

 
[Eugene Volokh, 10/25/2003 07:43:10 AM]
NPR's report on the Schiavo case: Mickey Kaus critiques it -- if he has the facts right (and I've found him to be quite trustworthy), it's a sad commentary on NPR bias. This is a difficult case, with good arguments on both sides; NPR doesn't seem willing or able to do it justice.

 
[Tyler Cowen, 10/25/2003 07:06:52 AM]
Happy to be back home: I very much enjoyed my outings and talks in Tennessee and Dallas. In Tennessee I gave one of my "economics of music" talks, this time about old-timey music, country and western, and gospel; in short the talk was about how music evolved in Tennessee and nearby parts (I've done the same in Mississippi), and the centrality of market forces to that evolution. The fun thing about the talk is using actual music samples, and then discussing how economic forces shaped the musical innovation. So I was able to play Roscoe Holcombe, Elvis Presley, and Mahalia Jackson, among others, for people, and then explain how those ideas came about.

I disagree with Charles Murray's recent contention that the twentieth century shows fewer aesthetic peaks than previous times (I'll post more detailed comments on Murray's new book soon). We simply need to look for them in different places, and in different ways. And we observe a far greater "aesthetic division of labor." So no single "old-timey" star has the cache of Bach, or anything close to it. Nor are many contemporary musicians so prolific as a composer. But old-timey music, taking numerous individual contributions as a whole, is something wondrous, startling, often scary, and most of all deep. Try this CD, American Primitive, selected by the late, great John Fahey, if you are looking for a place to start. You need to listen to each cut individually, just don't through it into your car CD player.

Friday, October 24, 2003

 
[David Bernstein, 10/24/2003 05:47:37 PM]
Gang Rape In France: The Times carries this disturbing story about gang rape among North African immigrants in France, and tolerance of the practice by the immigrant community.

 
[Jacob Levy, 10/24/2003 01:51:12 PM]
You know it's bad when... Richard Gephardt can credibly accuse you of of adopting a position so protectionist that it's "demagoguing."

I hereby invite commentary from the libertarians-for-Dean crowd about trade. Bush has been awful on trade, of course. But I'm just not going to get enthusiastic about someone running for president on the platform that Bush hasn't been protectionist enough, someone who promises to go still further in that direction. Everyone professes to think Dean's a straight-shooting kind of guy. Libertarians-for-Dean, do you believe Dean's promises about trade?

I'm pretty close to launching libertarians-for-Lieberman. I don't necessarily want Lieberman to be president; but I sure want him to do better than humiliatingly-badly in the Democratic primaries, since right now he's the most pro-free-trade candidate from either major party. It was a major accomplishment of the Clinton restructuring of the Democratic Party that it beat back the Gephardtians and got trade agreements passed. I'm not going to be happy to see the Democrats (whether they win or lose the White House) revert to their bad old ways on the issue.

Yes, I'd probably prefer Lieberman to Dean on other grounds-- not least the foreign policy questions that are attracting some libertarians to the latter. (I felt like writing Joe a check purely on the basis of the speech he gave at the Arab-American convention last week, though I didn't in the end.) But it's trade, and the future of the Democratic Party on trade, that concerns me. One of the things that's supposed to be hopeful about the Tuxeira "emerging Democratic majority" thesis is that it's a Democratic Party built on professionals rather than unions, and so friendlier to trade. That's the kind of Democratic Party I would think libertarians should want to encourage.

 
[Eugene Volokh, 10/24/2003 12:39:31 PM]
Bumper sticker law: If we're going to have posts about bumper stickers, might as well throw one in about bumper sticker law: Cunningham v. State, 260 Ga. 827 (1991), which struck down a statute that read

No person owning, operating, or using a motor vehicle in this state shall knowingly affix or attach to any part of such motor vehicle any sticker, decal, emblem, or other device containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body.

     Cunnigham was ticketed for a bumper sticker that said "Shit happens," and he challenged the conviction on First Amendment grounds. The Court sided with Cunningham, relying (correctly) on Cohen v. California, 403 U.S. 15 (1971), which upheld Cohen's right to wear a jacket that contained the words "Fuck the Draft." Just thought you'd want to know.

 
[Randy Barnett, 10/24/2003 11:15:23 AM]
The Event of the Age: Victor Davis Hanson explains here why "each day the great gamble in Iraq is taking on significance that transcends the immediate tactical advantages that accrued from ridding the world of Saddam Hussein's savagery."

 
[Jacob Levy, 10/24/2003 10:07:21 AM]
More on the new Amazon toy: From Russell Arben Fox; and another use for it, from Michael Jennings. I'll be especially pleased when the function is extended to amazon.fr , since French intellectual books are shamefully spotty in whether they have indices at all.

UPDATE: laloca dissents, though in a kind of generalized information-overload way. More from Kevin Drum, Steven Johnson, and Virginia Postrel. Virginia's exactly right about this:

One of the most exciting effects of Amazon's full-text search is that it restores books to students' reference sets. As many a professor has complained, kids these days think if a text isn't on the Internet it doesn't exist. But not much written before the mid-1990s, and very little in books, can be Googled. Hence, for many young (or busy) researchers, most of the world's written knowledge might as well not exist. Amazon's search engine is a great advance for civilization--and for authors. Work that would have gone unread will now be read and, along the way, books that would have gone unsold will now be bought.

And one correspondent points out to me that the engine provides a slight boost to the catching-plagiarists side of the technological arms race between plagiarists and thhose trying to stop them. Anything that makes text and phrase searches of more sources free might tempt some into copying-- but it also makes it easy to catch them, since the enforcing prof can enter phrases from dubious papers. But I'm not sure how much plagiarism comes out of books anymore anyways; finding the right passage in a book to copy is more work than going to an online paper mill. [NOTE TO STUDENTS: That does not mean the paper mills are a good idea. The quality of the papers is conspicuously low. You're going to be surprised at how easy it is for a prof to sniff out a paper from one of them-- and the fact that you went behind a paid-credit-card wall to get the paper provides a lot less protection than it used to...]

 
[Randy Barnett, 10/24/2003 08:59:58 AM]
MI-5 Reader Response: A reader writes about my recommendation of MI-5:

I saw your note about the show MI-5 on the Volokh Conspiracy. I agree that it is a superb show and very entertaining. However, one should be aware when watching it in A&E that the episodes have been fairly dramatically cut, to the tune of 5-7 minutes per episode. This is to make up for the far larger number of commercials that A&E runs relative to the BBC. So when we Americans watch MI-5 we are getting a somewhat attenuated product. Personally I am hoping that the BBC decides to put out the European episodes on DVD and that way we can see them as the directors intended.

I was not aware of this and this cutting must be part of why it seemed to me as though more plot is being squeezed into the time allotted. Apparently it is. This is too bad, but the series is still riveting. Indeed, perhaps this time compression adds to its fast paced nature--though I would still prefer to see the uncut episodes.

UPDATE: Another reader writes to tell us that the DVD will be available in January with 10 minutes restored to each episode. Check it out here. I see that they are also selling a DVD of the excellent Tinker, Tailor, Soldier, Spy here.

 
[Eugene Volokh, 10/24/2003 07:50:26 AM]
"Student expelled over diary": Schools have to keep kids safe, and this can be a very tough task. I therefore generally sympathize with schools' judgment calls in this area, even if they may seem excessive. Sometimes a bit of overreaction may be better than underreaction. Still, this item seems a bit excessive:

A Roswell High School freshman has been expelled for the remainder of the year for writing a fictional tale in her private journal about a student who dreams that she kills a teacher. . . .

School system spokeswoman Susan Hale said the expulsion was for "inappropriate writings that describe the threat of bodily harm toward a school employee."

"Anytime the safety and security of our students and staff are put into question, we investigate the situation and, if warranted, take serious action," Hale said. "After reviewing the evidence, the hearing officer felt expulsion was an appropriate disciplinary response."

Rachel will be allowed to attend another school within the Fulton system until the end of the academic year, but the choice must be approved by school officials. . . .

[Georgia] Poet Laureate David Bottoms, who was contacted by the family for help in defending Rachel's writing, said Thursday that he tried to convince the hearing officer that the journal entry was a narrative that grew out of creative thought.

"In my opinion, based on my experience as a writer and with more than 20 years of teaching creative writing, this piece of work is clearly an imaginative piece, a piece of fiction -- totally non-threatening," Bottoms said, recounting the statement he made at the hearing. . . .

The journal entry describes a student, who is unnamed, having a dream while asleep in class. In the dream, the student shoots a teacher and then runs out of the classroom, only to be killed by a security guard. After that, the school bell rings and the student having the dream wakes up, picks up her books and walks to another classroom.

The journal does not name a specific teacher, according to Rachel's parents, who described their daughter as a gifted writer and not someone with violent intentions. . . .

David Boim said his daughter often carries her personal journal and did not have it in class as part of an assignment when it was confiscated Oct. 7. Art teacher Travis Carr took the journal during the class because Rachel was passing it to a classmate, Boim said. . . .

Rachel is an honors student in biology, French and English literature, her parents said. She is the captain of her crew team and a voracious reader, they added. She comes from a family of writers. . . .

"Thomas Wolfe, Faulkner, all wrote about the South because that was their experience," Boim said. "Students today are very aware of the violence around them. The shootings in school, we all hear about that and they affect children. Creative writers, or people who create art, write about what's happening in their society." . . .

If I thought that a kid's having written such stories really was a strong proxy for her likely willingness to kill people, I could understand even such harsh measures; I just highly doubt that this is so, especially given everything else we know about the student. I also understand why a school might not want these decisions to turn too much on whether someone "seems like a good kid," since this could raise all sorts of discrimination objections and even lawsuits (and in fact one of the strongest indicators that the girl wasn't actually likely to kill people, which is that she's a girl, probably wouldn't be legal for the school to use as part of the analysis). Still, I think that some such evaluation really is necessary, at least in cases such as this one.

     Finally, if she's such a danger to people, why will she "be allowed to attend another school within the Fulton system until the end of the academic year"? Thanks to How Appealing for the pointer.

UPDATE: Reader Michael Moreland reports:

I haven't found any links or I would have included them, but CNN and Fox News are both reporting that the young girl's suspension has been rescinded (either by the school or the school board, they're not very clear).

FURTHER UPDATE: Ralph Luker points to a short article from Rachel Boim herself about her case, in the Atlanta Journal-Constitution. An accompanying note says that Boim "was temporarily reinstated at the school on Friday, after news of her expulsion became public. The school system has scheduled another hearing on her case for Nov. 13."

 
[Eugene Volokh, 10/24/2003 07:28:35 AM]
Interesting reason not to be called on: I call on students randomly in my class, but I generally allow them to get out of this for a day if they warn me up front, and if they don't make a habit of it. Sometimes people know they're unprepared, often for a fairly good reason (they've been sick, they've been up all night with a baby, and such) -- and even if they've just goofed off, it does little good for me to call on them under such circumstances: It just embarasses them and wastes the other students' time, and the extra deterrence provided by a hard-core no-pass policy wouldn't be worth these costs. Plus maybe I'm just a softie.

     But a few weeks ago, I got this rather unusual explanation, which I reproduce here with the student's permission:

I have an odd feeling that my turn is coming up in [class], so I just wanted to request that I not be called on today -- today's topic is at the heart of a moot court competition that I'm involved in, and other students in the class are on the opposite side; it would be hard for me to talk about the issues without giving them a sense of how strong I think our argument actually is. Thanks very much.

I was happy to accept this, but I just found it interesting enough to note.

 
[Randy Barnett, 10/24/2003 06:47:20 AM]
Star Trek Reader Response: I have received several interesting responses on my views of the various Star Trek series. My original post is here. Frankly I expected more like this one from a reader:

I loved classic Star Trek. I've hated everything since.

As far as I'm concerned, the various Star Trek series trace the evolution of liberalism across forty years: from a sense of positive mission, that we can all live together in peace, to self hatred, that we are too flawed to achieve the good we proclaim we seek and that our actions are all-too-easily misguided by this mere humanity.

Trek, the classic "old coke" variety, was all about hope and optimism. It's basic premise insisted that within each of us was the possibility of escaping from a heritage of violence and barbarism to build a better future for our children. Each "problem" culture they encountered
reflected our own issues, from race to the cold war and so forth. And for each, there was hope that the problem could be solved and that people could move beyond. And this ideal future was no socialist utopia. Instead, we found human federation members doing such heroic things as homesteading--before pioneering became an unwelcome concept. Old Star Trek glorified American Empire--spreading a culture of democracy and decency wherever humans went. It was Cowboys in Space--the good, decent, John Wayne cowboys, not the troubled loners and drifters who fled normal society to pick up the most awful grunge work herding cows across long distances.

Trek:TNG and beyond lost this hope. Instead, we see a humanity that's really quite...human. Full of foibles and weakness, led into darkness by our emotions. Data, the main viewpoint character, spent his entire time trying to understand emotions--how they could give us fulfillment while at the same time they caused us so much trouble. The episodes were full of torture, pain, and sadism. Throughout, the crew reacted and negotiated, trying to win, often failing. This came to fullest expression in the Borg, the nightmare of nightmares, where the victim gives up his identity yet lives on as a zombie. Those searching for hope had to look long and hard--all too often Captain Picard and his crew made bad choices. Unlike the first series, there was little comedy. The crew took themselves deathly seriously, to the point of absurdity. (Troi: "I sense...I sense...they are in...pain...")

I am aware of the political/libertarian critique of Star Trek, as well as its sometimes PC nature (which I view as somewhat inevitable on network TV). Indeed one reason I tuned out of Deep Space Nine is well reflected in the following summary:

The station belongs to the Bajorans, a race of spiritual people whose home planet Bajor was until recently occupied by the Cardassians. After many years of terrorist attacks by the Bajorans, the Cardassians withdrew from Bajor. The Bajoran Provisional Government has asked the Federation for help with the immense task of rebuilding Bajor after the occupation. A small Federation crew under the leadership of Commander Benjamin Sisko have established a presence on the space station.

For me, the present day world of oppressed minorities is troublesome enough. I don't need to generate compassion for a fictional minority in addition.

So long as it is not overtly political, however, as it sometimes but very rarely gets, I can focus on the dramatic aspect of Star Trek and appreciate it at the level of plot and character, not message. I guess I like the characters on all the series except DS9 so I care about about their adventures.

[ASIDE: If you want a very non-PC new British series that deals with the war on terrorism (among other spy themes), check out MI-5 on the A&E network. It is a series that fills a gap that American Hollywood is too PC to do. (Antiwar types can enjoy it as well however.) The acting is what you expect from a British drama. In addition, production values are superb and it is shot mainly on location. Unlike any other TV show I have ever seen, it crams 90-120 minutes of plot into 60 minutes, less commercials, which makes it is extremely fast paced. It has a continuing story line beneath each week's plot, but that is mostly personal you can tune in now and still get what's happening. It is very very cool.]

Now here is my puzzle. As far as TV space shows go, I find I only can watch Star Trek series. I have never been able to get into other space shows, even though I know they have their fans. For some reason Star Trek seems real enough for me to suspend my disbelief, whereas the others seem so artificial and fake. But I don't know why. Is it because of production values? Or is it because the Star Trek series has created an artificial universe I have been familiar with since I was a kid? If you have any ideas, send them along.

PS: Jacob asks what I liked about Voyager here. Well, I liked the plot that took them away from the Federation and needing to operate on their own. It made them more vulnerable and less rule bound, especially when dealing with the internal culture clash between the Federation and the Maquis. To some extent, Voyager responded (quite unintentionally I am sure) to the PC concerns expressed above by our reader. I liked the characters. I even liked Kate Mulgrew as Captain Janeway, despite her occassional use of soap opera acting techniques (which date back to her Mary Ryan character on Ryan's Hope, which NO I didn't watch as a kid). I thought she grew into the part. And then, dear Jacob, there is 7 of 9. 'nuff said.

 
[Eugene Volokh, 10/24/2003 06:43:43 AM]
Rewriting history? My friend Jesse Walker, in Reason's Hit & Run, echoes the New York Times publisher's and editor's opposition to revoking Walter Duranty's Pulitzer Prize:

There's a movement afoot to revoke the late Walter Duranty's Pulitzer Prize. Duranty, a reporter for the New York Times and an apologist for Stalin, won his award in 1932 for work one later observer described as a "dull and largely uncritical recitation of Soviet sources"; he subsequently failed to write about the famine that Stalin's policies were unleashing in Ukraine.

Duranty's prize has always been a black mark on the Pulitzers' admittedly less-than-stellar record. But revoking it would be, at best, a gesture as meaningless as Clinton's apology for slavery; at worst, a noxious attempt to rewrite history. The Pulitzer committee once chose to honor a man who didn't recognize that he was living under one of the century's most brutal dictatorships. Seven decades later, that's a decision it should still have to live with.

     I still don't see how this criticism is apt. No-one is suggesting that the official Pulitzer Prize listings should just have a blank spot for 1932, any more than the listings of the Presidents should show that no-one was elected in 1972. Presumably Duranty would still be listed, but with a footnote or parenthetical saying "prize revoked, 2004," and, better yet, with a brief explanation of why it was revoked.

     That way, twenty years from now (or even one year from now), when someone who doesn't know about the Duranty travesty is looking at the list, he'll at least know that Duranty's work has been debunked, rather than just seeing "Oh, that Duranty guy -- haven't I heard of him somewhere? -- must have been one great reporter." If they had given the award to Hitler for Mein Kampf, then Hitler's name would be a standing indictment of the Pulitzer committe's error. But many more people know the meaning of the Pulitzer Prize than know what Duranty did wrong. If there's no revocation and no asterisk, then Duranty will continue to get luster from the Pulitzers, at least for the casual reader, rather than the Pulitzers properly losing some luster from the award to Duranty. In fact, the way to make sure that the Pulitzers "have to live with" the Duranty award -- in the sense of having the world see their error -- is by the award being revoked, which will make it more likely that the Pulitzers' error will continue to be prominently noted.

     When an honor is wrongly given, it should be rightly taken away -- even when, unfortunately, it takes 70 years to do so. It may not be the most effective gesture; the praise heaped on people like Duranty has done its damage. But awards themselves are just gestures, and revocations are the best countergesture that can now be made.

Thursday, October 23, 2003

 
[Sasha Volokh, 10/23/2003 07:14:41 PM]
This will only be interesting for Harvard Law School students or grads, but here's my latest letter to the editor of the Harvard Law Record on the ongoing Law School debate over the "gender gap" at the Harvard Law Review. This letter concurs with this other one I signed on to two weeks ago (scroll down), and responds to this one by former Law Review editors and especially to this one (scroll down).

(And, if those aren't enough for you, some other contributions to the debate are here, here, and here.)

 
[David Bernstein, 10/23/2003 03:24:05 PM]
Bumper Stickers--Readers' Favorites: (1) Jesus saves; Moses invests
(2) Jesus is Coming. Look Busy!
(3) Dog is my copilot
(4) I'm your honor student's real father
(5) 186,000 miles per second - it's not just a good idea, it's the law!
(6) Horn broken -- watch for finger
(7) Nuke the Unborn Gay Whales
(8) The west wasn't won by a registered gun!

This was my last post on bumper stickers.

 
[Jacob Levy, 10/23/2003 12:30:40 PM]
Line between print and 'net blurs: Good lord-- this is quite an impressive new toy.

Amazon has enabled full-text searches of books whose publishers cooperate. (So far I've seen books from Oxford, Cambridge, Johns Hopkins, and Basic Books-- apparently not Harvard or Princeton, yet.) The engine gives you all the references to a given word or phrase in a book, and lets you download a scan of the page. I don't know quite what the protocol is; the scans don't seem to be pdfs, and you can't text-search or highlight on a page once it downloads, so they may be image files. But the full text fo the book is lurking there in the memory banks.

They've integrated those full-text searches into the basic search engine, which seems to me like it might be a bad idea-- looking for "John Rawls" or "F.A. Hayek" is now going to yield many hundreds of results instead of the few score books with those names in the author, title, or keyword sections. But the searches I've run so far seem to work smoothly; the engine returns Rawls' own books and those with his name in the title long before it returns, say, The Multiculturalism of Fear, which (according to the search engine) has six references to Rawls in it, two of which are in the titles of other people's works.

That corresponds to the results in my index, which is a relief-- but I think I'm going to often end up using these text-searches before or instead of using indices. The former shouldn't displace the latter. (For one thing, the OCR technology used for scanning certainly isn't perfect, and so there will be references in books that won't show up in the text searches.) At first glance I suspect that'll be the way lots of researchers use this-- go to the listing for a particular book and use the "search inside this book" box, rather than running a massive search-all-books-for-these-words. But the search-all-books has its uses, too-- it makes those publishers' books something more like the articles on JSTOR or LEXIS. It makes it possible to discover books that have references or sections or chapters that are of interest to you even though the book as a whole may not be. And it makes something like a citation index possible using books, something that hasn't been true before.

By the way: Amazon has had the foresight to disable things like searches for "a" and "the" that might let you download every page of a book and print them out.

I think this is a pretty significant new development. There has been bloggic discussion in the past about whether there would be an increasing turn to journal articles away from books because journal articles had an online existence. Books do, too, now.

(For the record: no, I didn't first stumble onto this by by noticing the search box on my own book's page. I noticed it because I ran a search on one scholar's name and it turned up his book and also his wife's book, which doesn't have his name in the title or keywords or anything. This baffled me until I scrolled far enough down the page to realize that his name was in the acknowledgments, and that the search engine had retrieved it from there.)

UPDATE: Alec Nevala-Lee says:

Their Search Inside the Book feature, which allows you to search and browse 33 million pages worth of material from 120,000 books, is just about the most intoxicating online toy I've ever seen. But it terrifies me at the same time. Between this monstrous djinn and Google.com, I have no excuse, no excuse whatsoever, for not writing a grand synthetic essay of everything, or a brilliant, glittering, Pynchonesque novel...because millions and millions of beautiful connections between people and ideas are already out there, at my fingertips, ready to be made without effort or erudition. I hate to say this, but it's all up to me now. The burdens of research have suddenly been lifted. No excuses. The answers are all right there. The only question is, What do you want to know today?

One example. I spent months writing a thesis on Amphiaraus, an obscure figure from the Theban epic cycle who survives mostly in scraps and fragments. Near the end of the thesis process, more than a year ago, I got to the point where was browsing through books at random in the Smyth Classical Library, poring through indexes and concordances, hoping to find a few stray pieces of information that I'd missed in my more systematic searches. Whenever I found something, and I often did, it was magic, witchcraft: tapping into the order of the universe, trusting my inner oracle. Now, a quick Search Inside the Book uncovers 170 textual references to Amphiaraus in translations, handbooks, dictionaries, novels, The Anatomy of Melancholy, Casanova's Memoirs.... All the things I missed...all the things I overlooked. Now there's no excuse to not knowing your sources...to not knowing what the Library of Babel contains. Jesus.

Yeah. What he said. There's a certain joy of discovery of things in books that might get lost here... and yet... and yet. Books are my life. (Well, books and coffee.) And looking at this feature I have the strongest sense I've had in ages that it was something revolutionary and marked a profound change in how I would read. (That's why I didn't title the post "Amazon unveils new procrastination device.") It doesn't have to, of course; I don't have to use it. But I know I will, and that's kind of dismaying as well as being exciting.

 
[Eugene Volokh, 10/23/2003 11:27:02 AM]
"Airbrushing history": The New York Times runs an article today that begins:

Columbia University history professor hired by The New York Times to make an independent assessment of the coverage of one of its correspondents in the Soviet Union during the 1930's said yesterday that the Pulitzer Prize the reporter received should be rescinded because of his "lack of balance" in covering Stalin's government.

The striking thing is the Times publisher's and editor's response:

While careful to advise the board that the newspaper would "respect" its decision on whether to rescind the award, Mr. Sulzberger asked the board to consider two things. First, he wrote, such an action might evoke the "Stalinist practice to airbrush purged figures out of official records and histories." He also wrote of his fear that "the board would be setting a precedent for revisiting its judgments over many decades."

In an interview last night, Bill Keller, the newspaper's executive editor, said he concurred with Mr. Sulzberger.

"It's absolutely true that the work Duranty did, at least as much of it as I've read, was credulous, uncritical parroting of propaganda," said Mr. Keller, who covered the Soviet Union for The Times from 1986 to 1991.

And yet, Mr. Keller added, "As someone who spent time in the Soviet Union while it still existed, the notion of airbrushing history kind of gives me the creeps."

     Airbrushing history? What does that have to do with anything? No-one is suggesting that the Pulitzer people and the Times enter into some conspiracy to pretend that the award had never been given. The advocates of rescinding the Pulitzer would surely much prefer that the award be marked as "rescinded, 2003," with a suitable explanation of why it was rescinded.

     This isn't airbrushing history; it's correcting error. When the Times errs in its reporting, it publishes a correction; presumably it also notes the correction on the Web-archived version of the story (or at least it should). That's what people are asking the Pulitzers to do. Newspaper editors shouldn't confuse calls for corrections with Stalinism, or get "the creeps" from the prospect of announcing such corrections -- though they should get the creeps from the realization that the correction is necessary.

     Many thanks to reader Bill Rudersdorf, for pointing me to this.

 
[David Bernstein, 10/23/2003 08:54:05 AM]
Subordinating Freedom of Expression to Antidiscrimination Concerns: People for the American Way is not the only liberal organization that claims to support freedom of expression, but frequently decides that antidiscrimination concerns are more important (see Eugene's post, below). The ACLU, of all groups, does this more and more frequently; indeed, it supported the plaintiff in the Aguilar case Eugene writes about. I shudder to think what will become of the ACLU when its current president and strong free speech advocate Nadine Strossen retires. Most likely, the authoritarian elements in the organization will take over.

 
[Eugene Volokh, 10/23/2003 06:25:03 AM]
Libel tourism: The new En Banc blog has a nice post about this, but I just particularly like the term, which I hadn't heard before.

Wednesday, October 22, 2003

 
[Eugene Volokh, 10/22/2003 10:17:36 PM]
People for the American Way says protecting free speech too much is "very disturbing": Here's an excerpt from their report criticizing Janice Rogers Brown:

Aguilar v. Avis Rent A Car Systems, Inc., 980 P.2d 846 (Cal. 1999), cert. denied, 529 U.S. 1138 (2000).

A number of Latino employees of Avis Rent A Cacr brought a race discrimination lawsuit based upon the use of racial epithets in the workplace by an employee named John Lawrence. The trial court found that the employer allowed Latino employees to be repeatedly subjected to racial slurs, thus creating a hostile work environment in violation of the California Fair Housing and Employment Act (“FHEA”). To remedy the situation, the trial court enjoined Lawrence from using the racial slurs to describe Latino Avis employees and enjoined Avis from allowing Lawrence to use such slurs.

On appeal, Lawrence and Avis argued that prohibiting them from using or allowing such speech in the future was a violation of their First Amendment rights. The majority of the California Supreme Court upheld the injunction. Brown, on the other hand, dissented in a very disturbing opinion. Brown argued that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is protected by the First Amendment and cannot be limited. In coming to this conclusion, Brown downplayed the fact that several U.S. Supreme Court opinions have found exactly the opposite -- the Court has made clear that speech can and does constitute illegal race discrimination in some cases. Brown also argued that even if such speech is racial discrimination, it cannot be limited by an injunction aimed at preventing a recurrence of the discrimination.

Brown’s opinion, if it were to become the law of the land, could make it impossible for judges or legislators to take effective steps to halt the recurrence of sexual harassment and racial discrimination involving speech in the workplace. In fact, Brown went so far as to suggest that the landmark civil rights law, Title VII of the Civil Rights Act of 1964 (which prohibits discrimination in employment), could be unconstitutional under the First Amendment. In her responses to the questionnaire of the Senate Judiciary Committee, Brown listed her dissent in Aguilar as one of her ten most significant opinions. The Supreme Court denied review of the case, although Justice Clarence Thomas dissented from the denial of certiorari, 529 U.S. 1138 (2000).

As discussed below with respect to free speech and association, Brown’s approach in Aquilar conflicted sharply with her rulings in several cases that concerned individual First Amendment rights, where she has not been protective of First Amendment freedoms.

     If you want to read Brown's opinion for yourself, and see whether you find it "very disturbing," you can see it here. You'll note, among other things, that Justices Stanley Mosk and Joyce Kennard also filed dissenting opinions that came to results similar to Justice Brown's. If you look closely at Justice Brown's opinion and the cases it cites, you'll find that the Court has never "found exactly the opposite" of her position; the several decisions the PFAW alludes to mentions were either purely statutory, with no discussion of free speech (which means they don't set any precedent on the First Amendment question), or said in dictum that some, not all, aspects of harassment law were constitutional. You'll also find that Justice Brown didn't say that the Title VII could generally be unconstitutional under the First Amendment, but only that it could be unconstitutional in some of its applications -- hardly a novel conclusion, given that lots of courts have found that Title VII must yield to the Free Exercise Clause of the First Amendment in such situations (see here for some examples). Many general statutes are unconstitutional in a few of their applications, and it's not terribly stunning for a court to so hold.

     But these are details. The more remarkable thing is that the People for the American Way, supposedly a stalwart champion of free speech, calls an opinion that supports a broad reading of free speech -- and, if you read it, a pretty plausible and well-reasoned opinion -- "very disturbing."

     Now I'm not saying that they have to agree with all broad readings of free speech. They can surely think that some such opinions are mistaken, or go too far, or some such. I can certainly understand not praising Justice Brown for her opinion (for instance, excluding it from their report criticizing her work). I could certainly understand their saying "We appreciate Justice Brown's defense of free speech, but we think that in this case free speech regrettably has to yield." But the People for the American Way condemning an opinion as "very disturbing" because it protects speech too much? Say it ain't so.

     Incidentally, since I like disturbing people, here's a sample of the very disturbing opinion:

In America, Father Terminiello can give a speech in which he describes the crowd outside the auditorium as “ ‘imported from Russia’ ” and then adds, “I speak of the Communistic Zionist Jew . . . . We don’t want them here; we want them to go back where they came from.” In America, Clarence Brandenburg can attend a Ku Klux Klan rally, stand near a large burning cross wearing a hood, and give a speech saying, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” In America, Nazis can march through the streets of the predominately Jewish community of Skokie, Illinois, wearing uniforms and displaying swastikas. In each instance, racist and discriminatory views are being expressed. Nevertheless, these expressions are protected by the First Amendment to the federal Constitution and by our state Constitution. We as a nation so value the free exchange of ideas that we are willing to tolerate even offensive ideas, knowing that “one man’s vulgarity is another’s lyric” and today’s heretical idea may become tomorrow’s gospel.

“[T]ime has upset many fighting faiths.” For example, the abolition of slavery, women’s suffrage, and even a solar-centric solar system were once controversial ideas, but today are considered conventional wisdom. Some ideas—like bigotry and prejudice—have been wrong from the beginning and always will be. And when we are confronted with bigotry, our visceral reaction is to strike back hard, which in this case took the form of the tough injunction the court upholds today. But hostility, hatred, jealousy, resentment, envy, and vengefulness are passions as old as humankind and, though the expression of such sentiments may cause much misery and mischief, hateful thoughts cannot be quelled at too great a cost to freedom. “That at any rate is the theory of our Constitution.” . . .

Read the rest -- the entire file is long, but Justice Brown's opinion is just the last 11 double-spaced pages (and it gets quite a bit more detailed than the general paragraphs that I quote). Then decide what, if anything, about this controversy you find "very disturbing."

 
[Eugene Volokh, 10/22/2003 03:47:31 PM]
More things you won't find at this site. From our referrer logs:

22 Oct, Wed, 13:51:13 Google: hasidic jew halloween costumes
. . .
22 Oct, Wed, 15:04:55 MSN Search: nasty poems from brazil

 
[David Bernstein, 10/22/2003 02:51:44 PM]
It's Called Supply and Demand: Matthew Yglesias makes an error that I've heard over and over again from otherwise-intelligent liberals--that vouchers can't do much of anything to solve the problems that exist with public schools, because there are so few slots available in private schools. Call me crazy, but I assume if vouchers gradually became available to more students, especially those trapped in bad public schools, existing private schools would expand, and new private schools would arise, to meet the increased demand for their services. People didn't say sixty years ago, when Las Vegas was a small town in the desert, "guess we can't settle Vegas, there aren't enough grocery stores." It's possible that existing voucher plans don't provide a large enough voucher to give entrepreneurs the incentive to expand or create schools. But that's not an inherent problem with vouchers, that a problem of funding vouchers at far lower levels per student than the funding of public schools.

 
[David Bernstein, 10/22/2003 01:16:28 PM]
Bogus Anthrax Lawsuit from the Brentwood Post Office Facility as reported by Ted Frank of Overlawyered.com.

 
[David Bernstein, 10/22/2003 12:45:16 PM]
More Bumper Stickers: Will Baude reports his favorites. I especially like one that he attributes to libertarians: "Too late to work within the system, too early to shoot them all."

Another one I dislike: "My kid beat up you honor student." It would be funny if a lot of honor students didn't actually get beat up by thuggish, stupid kids. (I went to Jewish day schools where it was actually cool to do well in school, and where no one ever really got beaten up, so I'm not speaking from personal experience here.)

UPDATE: Reader Jason Colby informs me that the response to this bumper sticker is a new one that says, "My honor student sued your bully." He suggests as a riposte, "My bully retained Johnnie Cochran."

And Kieran Healy reminds me of another favorite: "Jesus Loves You, But Everyone Else Thinks You're an Asshole." This also reminds me of the great (if somewhat sacreligious, and perhaps apocryphal) bank advertising campaign: "Jesus saves, shouldn't you?"

Further UPDATE: And how about the great t-shirt/bumper sticker of the mid-'80s--"Don't Blame Me, I Voted for Bill & Opus."

 
[Eugene Volokh, 10/22/2003 11:33:05 AM]
Speeding and toll roads. Eric Muller (IsThatLegal?) has an interesting proposal on speeding and toll roads.

 
[Jacob Levy, 10/22/2003 11:25:12 AM]
Religious symbols: I think I disagree with both David and Juan on the Darwin Fish question. (For the record, I had a gleeful little smirk when I first saw a Darwin fish, and continue to give such smirks at lots of the variants one sees from time to time.)

My view is a) that the Darwin Fish is disrespectful and mocking, and b) that that's OK-- and not only OK because there's something twee about witnessing Christ by invoking the symbol of martyrs in a little chrome symbol on an SUV.

I think it's important to respectful of religious believers, taken one at a time. I think it's very important for institutions-- and not only governmental institutions-- to be very respectful of religious believers and the demands of their faith. I support robust religious exemptions from statutes and administrative rules that conflict with rules of conscience (bracketing the question Eugene's written on, about whether such exemptions should be authorized by courts or legislatures). I think that even private universities ought to refrain from giving exams or other mandatory activities Fridays and Saturdays as well as Sundays. I support home schooling and vouchers, freely accepting that one of the (many) uses to which parents will sometimes put them is to insulate their children from challenges to their faith.

But I also think that it's terribly important, in our private individual capacities, to be able to mock religious beliefs. (NB: Not the same as mocking believers.) Call this the Satanic Verses or Life of Brian or Stranger in a Strange Land principle. Religious doctrines are doctrines. They make truth claims. They contain propositions. And arguments about religion-- that is, in the views of believers, arguments about the most important of questions-- depend on some ability to comment on those doctrines and propositions. This is tricky, given the complex epistemologies involved in religious claims. And so a central part of religious argument and thought has traditionally depended on mockery-- trying to get the believer of one doctrine to see it as absurd or silly. The mocking has only sometimes been done by non-believers; it has often been done by, as it were, other-believers, subscribers to other religious doctrines.

The old Talmudic story about Abraham smashing the idols is a fine illustration. Abraham's father was an idol-maker and merchant. One day Abraham smashed them all except for the biggest, and put the stick into the hands of that one. When his father came back to the shop, Abraham claimed that the idols had all gotten into a fight, which the biggest one had won. The father angrily burst out that this was stupid, they were nothing but clay statues; Abraham responded, in good smart-ass-kid fashion, 'Exactly. So how can you worship them?' This is not an act of respect toward the religious views of others. It's an act of mockery, designed to convince by forcing someone else to see an absurdity, to laugh at what he or she reveres.

Protestant-Catholic religious argument, of course, had lots of very nasty satire and mockery in it, too. And so do lots of religious responses to irreligion. ("If you find a watch in the field, don't you assume a watchmaker? Aren't you silly and absurd to see something as complex and beautiful as the world and not imagine a worldmaker?")

And, frankly, disrespectful mockery is one of the only tools in the hands of atheists, who have freedom of religious speech and thought and inquiry and argument, too. One can't disprove what someone else has already decided to take on faith, regardless of the facts of the physical world or the epistemic barriers to proof.

Respect for our fellow-citizens and fellow human beings, a due regard for their sensibilities most of the time in most social settings, and an appropriate de-emphasis of the stakes of religious argument prevent most of us most of the time from walking around mocking each other's religions. That's as it should be. But mocking is sometimes appropriate-- precisely because we respect the believers as human beings, we shouldn't condescend to them by permanently treating (what we take to be) their false and absurd beliefs as socially sacred. Let me put it more provocatively: Mocking the belief while respecting the believer is no more a paradox than hating the sin and loving the sinner, and indeed rests on the same underlying thought-- that one's fellow humans aren't to be treated with kid gloves at the cost of denying them access to the truth. (Again, this is all about how private persons should act-- the state isn't entitled to an official view that some religious views are false.)

I do agree with David that there's a difference between insulting the content and expression of religious doctrines and, insulting the people who hold them-- between mocking Judaism and invoking anti-Semitism, for example. The rules of kashrut, circumcision, covered heads, division of gender roles, etc etc-- this is all fair game for mocking, just as the idols were. That's appropriately socially different from the blood libel or from characterizing Jews as vicious hooked-nose misers. The Satantic Verses is socially more appropriate than, say, Oliver Twist. Both should, of course, be free to be written and published. But I think that Oliver Twist is a sign of sheer hatred and is appropriate for social condemnation, and I wouldn't mourn never seeing its like again. I think the Satanic Verses is one of the things we ought to expect to see in a healthy society and world, in which people believe in a variety of religions and some believe in none, and in which they try to genuinely engage each other rather than treating their religious or irreligious beliefs simply as feelings not to be hurt. A healthy society will have people mocking transubstantiation (some atheists, some Protestants, some non-Christians); it doesn't need to have people accusing Catholics of dual loyalty. It may have Darwin fish and "what would Elvis do?" bracelets; it doesn't need to have Washington Post articles stereotyping evangelical Protestants as inbred illiterate hicks.

Maybe I've strayed off-topic here, but I think that mockery and derision is, oddly enough, part of the stuff of taking religion seriously. If we're not to treat those who believe other than how we believe the way we treat people who think they're Napoleon (Yes, Monsieur General, I agree. Now You do look especially splendid in that uniform with the long sleeves that tie in the back.) then we're going to express our disagreeent with their beliefs sometimes and-- given the nature of the subject under dispute-- those expressions will sometimes be mocking, derisive, and insulting. There's an appropriate line of social civility and decency to monitor, but it's not simply a line between being nice and not being nice. Not-niceness can be just fine, in this context.

 
[Jacob Levy, 10/22/2003 10:29:15 AM]
Star Trek: The Next Post: At the risk of turning our little corner of the blogosphere into, well, The Corner, a few quick comments on and for Randy.

1) You've really got to give DS9 another try. The second half of the show's run-- which, as you note, includes some serious ethical-dilemmas-in-wartime episodes-- stands as the high point of the whole franchise, as far as I'm concerned. DS9 took a while to find its footing (so did TNG!) but eventually it became really quite good. And, after watching the real character and plot complexities of late-season DS9, I've come to find TNG pretty painful to watch in reruns, though I was once a big fan. TNG demands to be watched as a drinking game even more than TOS does. (Drink once when Troi uses her powers to infer something really obvious, like "the people in that ship firing on us are very angry!" Drink twice when Picard confronts his mortality and/ or his fatherhood issues. If the episode is about Data searching for his humanity, chug the pitcher.)

2) What was it you enjoyed about Voyager?

3) Am I the only one who, when I heard about the new Enterprise plotline, immediately launched into song?

We're off... to outer space!
We're le...eaving Mother Earth!
To sa....ave the human race!
Our... Star... Blazers!

(If you don't already know, don't ask.)
(UPDATE: Turns out that a lot of you know, and that those who don't can find out.)

 
[Randy Barnett, 10/22/2003 09:45:32 AM]
Star Trek Enterprise: A New Beginning: Some of you may hate Star Trek. You may even hate people who like Star Trek. Others of you may bemoan its current quality. I, who am old enough to have watched the original series in FIRST RUN (gasp!), think that The Next Generation was the best Star Trek series, did not like Deep Space Nine at all (it's the only one I stopped watching), but enjoyed Voyager more than others did. Until this season, I was also enjoying Enterprise--the prequel to the whole Star Trek series. I find the idea of a technologically more vulnerable Enterprise and inexperienced crew interesting and, as an old Star Trek watcher, like witnessing the introduction of new technology (familiar in all series set in later periods) with archaic names (like "phase pistols," instead of "phasers"). And the always present sexual subthemes are a bit racier too.

But this season Enterprise has ramped up several notches. Now after an unprovoked and entirely mysterious attack that killed millions, the Enterprise is sent on a mission to save Earth from complete annihilation to a region called the Delphic Expanse. In the Expanse, there are repeated "anomalies" that affect time and space in unpredictable ways.

This plot device serves a number of purposes and changes the character of the series.

The Enterprise is on a post 9/11 mission of utmost importance, and the formerly peaceful Captain (Scott Bakula of Quantum Leap) has really toughened up. My wife thought it looked like he even buffed up in the off season. For example, now you see him threatening torture to get information in this life or death struggle. There is a new edge to the whole series. (Deep Space Nine tried something like this, and I was told it improved, but it was too late for me.)

The Enterprise is now all alone--the same plot device used in Voyager to mitigate the omnipotence of the Federation. Of course this series is pre-Federation, and using pre-original Star Trek technology so they were already the most vulnerable Enterprise in the whole Star Trek oeuvre, but now they are REALLY vulnerable in ways that increase drama. The well-known challenge for Star Trek plots is preventing the advanced technology from eliminating dramatic risk--which is why communicators and the transporters are always off line when you need them. Here the vulnerability, already heightened in Enterprise concept, is inescapable.

The Enterprise is up against a very powerful and unknown enemy: the Xindi. For my money, there has never been an enemy to top The Borg. It is not clear that the Xindi will do so--we do not know much about them yet or even why they are intent on destroying Earth--but the entire season is one continuous search and destroy mission providing an unfolding mystery as clues to the Xindi's nature, intent and whereabouts are gradually revealed.

There is now one continuous plot that adds a novelistic serial quality to this season.

Why blog on this today? Because tonight UPN is replaying the first episode of this season at (8ET/7CT, check your local listings). I don't know how many others it will be replaying before resuming new episodes, but if you gave up on Star Trek a long time ago--or gave up on Enterprise--I recommend you try it again. Tonight should help appreciate the rest of the season.

You can get more information here:

http://www.startrek.com/startrek/view/series/ENT/episodes/index.html?season=3

You should also read this synopsis of last season's finale which depicts the attack on Earth and the launching of the mission:

http://www.startrek.com/startrek/view/series/ENT/episode/128800.html

 
[Sasha Volokh, 10/22/2003 09:13:25 AM]
Modern music: I had a dream that I was going to put on an oratorio using as text Brown v. Board of Education.

 
[Eugene Volokh, 10/22/2003 07:22:57 AM]
One cost of leaks: InstaPundit has it right, I think, about the Rumsfeld memo:

[The] real damage [done by the leak] isn't that it gives our enemies a window into our military thinking, though that's certainly damaging. The real damage is that when this sort of self-examination -- which is essential to winning any war -- becomes the subject of leaks and bad press, you tend to get less of it.

Naturally, there are benefits to leaks, too; but this is indeed a serious cost.

UPDATE: Eric Muller asks "was it leaked? Or was it simply released?" Eric has some interesting evidence that this was the latter, though I'm skeptical; I doubt that Rumsfeld would have wanted this publicized, and I suspect that it would have been marked as confidential. But I can't be sure, and Eric makes some interesting points here.

 
[Eugene Volokh, 10/22/2003 07:08:09 AM]
A story: For some reason, I was reminded yesterday of a story my mother told me a few months ago; I think she heard it from a writer who was doing a book on the Stalin era. With a provenance like that, you know you can't rely fully on the story's accuracy, but I thought I'd pass it along, with the proper caveats.

     In the late 1930s, Stalin's purges butchered, among other things, most of the old Bolsheviks who fought on the Communist side in the Civil War -- Stalin thought of them as threats. One of the few who survived was Marshal Budenny (pronounced Boodionniy, with the accent on the "dion").

     Budenny knew he was in danger -- everyone was -- so he devised a plan. When the secret police knocked on the door, he signaled to his aide (a man who he knew would stay with him to the death) to go to the attic and start firing his machinegun. He then called Stalin on the phone. "Koba," he said (Stalin's nickname), "run! The counterrevolutionaries have arrived; they're here already for me, and I'll try to hold them off as long as I can. They must be coming for you, too -- run, Koba, run!"

     Stalin was apparently either so touched by the old marshal's loyalty, or so amused by his trickiness, that he called off the goons, and sent Buddeny a signed photograph, with the inscription "To my only true friend." Budenny died in 1973, at age 90, a remarkable feat for any Russian of that era, much less for one of the tall poppies. Another story of the mad, bad, sad 20th century.

 
[Randy Barnett, 10/22/2003 07:04:50 AM]
The Future of Blogs: Apart from the creative stimulation I gain as a blogger, I find the phenomenon of blogs itself fascinating. Blogging seems to me revolutionary in ways not fully articulated and I have wondered what its future holds. So has Joho the Blog (link courtesy of Instapundit).

 
[David Bernstein, 10/22/2003 06:41:55 AM]
One more note on the funeral I attended in Israel: In the area of the cemetery where the mourners congregate before the service, there was a charity box with a sign (in Hebrew) that said something to the effect of "Charity postpones death." I understand that whoever put this charity box up was just trying to encourage people to give money to help the poor and whatnot. But I couldn't help but think that the last thing a family whose loved one has just died needs to see is a sign implying that if the deceased had just been more charitable, he or she might still be alive.

 
[Eugene Volokh, 10/22/2003 06:35:02 AM]
A few of my favorite things: One of my favorite words is "flense," "To strip the blubber or skin from (a whale, for example)". I don't say it much, since few people know it (I only learned it several years ago, when I read Vernor Vinge's fantastic novel A Fire upon the Deep) -- but I think it when I try to edit my articles. To strip the blubber from a whale: That's what editing is supposed to be about, and the mental connection to "cleanse," coupled with "flense"'s vaguely violent sound, only makes it better.

     If only my flensing actually did get rid of all the blubber. (And if only I would actually get to it, rather than procrastinating by blogging about it.)

UPDATE: Reader Eugenio Labadie points out a big item I missed:

[T]his really isn't an apt metaphor. The blubber was the valuable part of the whale, prescisely what was kept. Stripping off the blubber isolated that which was stripped off, leaving behind the chaff. On the other hand, editiings usually strips away extraneous words, distilling prose to tight little bundles of precision. Just a thought.

Rats -- I think he's right; the metaphor doesn't work nearly as well as I thought. Still, I like the word itself and its definition and modern application, conveniently forgetting the underlying economics of whaling . . . .

 
[Juan Non-Volokh, 10/22/2003 05:14:31 AM]
PATRIOT Attacks "Overblown": Several Senators came to the defense of the PATRIOT Act yesterday, reports the Washington Post. Senator Joseph Biden (D-Del) called much civil libertarian criticism of the act "ill-informed and overblown." I agree -- but then again, didn't Biden sponsor the RAVE Act?

 
[Juan Non-Volokh, 10/22/2003 05:08:31 AM]
Darwin Fish and Mezzuzot: It's rare that I disagree with David, but I do take issue with his post immediately below. A mezzuzot (or mezuzah) is also a public expression of one's religious faith, as it is placed outside of one's front door. Granted, the purpose (as I understand it) is to protect the house, but it is a fairly public display nonetheless. One could also make a similar argument about religious garb, whether a yarmulke or full dress. Are all such public displays fair game?

I am not religious myself, but I've always thought the Darwin fish was deliberately disrespectful of what is, in context, a fairly discrete display of personal faith (and one that, as Sasha noted, does not imply a belief in creationism). It is one thing to ridicule creationism, but quite another to ridicule religious faith, as such. In my view -- again as someone who lacks religious faith -- the Darwin fish does the latter, and therefore is an intolerant and disrespectful gesture (though I recognize that some who display the Darwin fish do not intend it as such).

UPDATE: A Rabbi writes to clarify the purpose and history of mezzuzot:

the purpose of a mezuzah (singular, mezuzot is plural) is not to protect the house to which it is attached or the family that resides therein, but rather to carry out the express commandment in Torah which says "Thou shall afix these words that I command you on this day upon thy houses and gates ..." etc. No specific reason is given, though the rabbis have made glosses on it over the years. The generally accepted explanation is that it is a symbol of identity, coming from the similarity to the events during the Passover story: God commanded the proto-Israelites to paint their doorposts with blood so that the Angel of Death would know which houses to avoid in carrying out the last plague, the death of the first born.

The great medieval French commentator Rashi (1040-1105) finds this more than a little odd, as one would presume that the Creator of the Universe would know without the helpful hint who is and is not a Member of the Tribe and all the more so since (in his reading) the blood was to be put on the inside of the door not the outside. He argues that it is an affirmative act to ourselves of identity, claiming our heritage if only internally.

 
[David Bernstein, 10/22/2003 03:58:23 AM]
Darwin Fish: I've received quite a few emails about the Darwin Fish, mostly to the effect that it takes a sacred Christian symbol and profanes it, and how would I like it if someone took a sacred Jewish symbol and profaned it. I don't quite see it that way. The way I understand it, putting a Jesus fish on one's car is a public expression of religious faith. I emphasize the word public, because I think such public expressions, by there very nature, are meant to admonish non-believers that they should be believers--otherwise, what's the point of putting one's faith out there in the public domain?

The Darwin fish, by contrast, is a public expression that the bearer chooses to rely on reason and science and not faith in understanding the world, while also being a brilliant satire of the Jesus fish. I hardly think that Christians who choose to publicly declare their faith in an inherently missionizing manner should get all prickly when non-believers respond in the marketplace of ideas by satirizing them.

And as for Jewish symbols, if believing Jews start putting little Ten Commandments tablets, or torahs, or succahs, or matzahs, or mezzuzot, or whatever, on the backs of their cars in a wave of sudden evangelizing fervor, I won't object to secular satirization.

UPDATE: Regarding Juan's post above, mezzuzot and yarmulkes are personal religious obligations, and don't have any evangelical content that I am aware of; Judaism, unlike Christianity, is not an evangelizing religion, and hasn't been for almost 2,000 years. I suppose I am operating under the assumption that a large majority of those who put Jesus fish on their cars do so with at least implicit evangelical intent, and thus should not be especially offended when the target of their evangelizing do some counter-evangelizing for secularism, even if it includes some satire.

Even if someone did mock Judaism as a religion, that's a far cry from "anti-Semitism," the analogy that is drawn by some correspondents to the Darwin fish. Someone can satirize, or even mock Christian beliefs without hating Christians, and someone can satirize or even mock Jewish beliefs (it's actually tough to get through 12 years of Jewish day school without doing this oneself, believe me) without hating Jews. [edit: and note that in any event, I interpret the Darwin fish not as satirizing Christian beliefs, as such, but satirizing those who publicly proclaim their choice of faith over science and reason.]

Further UPDATE: Substituting dollar signs for the Hebrew text on the mezuzah, a hypothetical "satire" proposed by one correspondent, would not be satirizing Jewish beliefs, but using a Jewish symbol to promote the traditional anti-Semitic canard that Jews are only concerned about money. If there were some traditional anti-Christian canard that involved feet on fish, I could see the analogy. BTW, I've seen rabbis quoted as suggesting that tragedies befell this or that family because the text of the their mezuzot was not "kosher" (did not abide by relevant religious standards), a view that I think is almost self-satirizing.

And courtesy of reader Aaron Kendall, here is a webpage displaying various satirical fish. I find a few of these offensive, but mostly they are just funny takes on the "fish on the car" phenomenon. I should not that I think a lot of people who put the Darwin fish on their car probably just think it's a funny riff on the traditional fish, and aren't trying to send any particular message.

Tuesday, October 21, 2003

 
[Eugene Volokh, 10/21/2003 10:23:42 PM]
Gubernatorial stays: The Florida legislature has just passed a statute authorizing the governor to issue a stay to prevent the withholding of nutrition and hydration from Terri Schiavo (who is comatose). Now I haven't been following the case closely, so I might be missing something, but I'm not sure how this can work legally.

     First, as best I can tell -- and I may be mistaken, since this is just based on a very cursory skim of some of the earlier Florida appellate decisions in this case -- the court order scheduling the removal of the feeding tube was based on Schiavo's constitutional rights, as asserted on her behalf by her husband. I don't quite see how the Florida Legislature can overcome that.

     But, second, even if the order was based on statutory grounds and not constitutional ones, and the legislature can therefore change that, how does the governor get to play a role in all this? Executive officials generally don't have the power to just issue "stays" -- that's generally for courts to do, not for executive officials (with obvious exceptions pursuant to enumerated executive powers, such as stays of execution under the pardon power, or stays of the actions of state employees). Even executive branch agencies that have considerable power over private behavior generally need to go to court to get their orders enforced. Now perhaps the Florida separation of powers rules allow governors to issue stays on their own, but I'm skeptical. Am I missing some important legal twist here? Is she, for instance, in a state-run hospital, over which the governor has authority? (I leave the political twists to others.)

     Incidentally, I express no opinion on what the right result should be in this case. I'm generally not a huge fan of a constitutional right to withdraw treatment from an incompetent patient, in the absence of very clear pre-incompetence instructions on the patient's part. My question here relates purely to separation of powers.

     Thanks to reader Robert Becker for pointing me to this.

 
[Sasha Volokh, 10/21/2003 08:53:51 PM]
Self-representation: Dahlia Lithwick is basically right that having a constitutional right to self-representation is in tension with not having a constitutional right to harm yourself in all sorts of other ways:

For the same reason we prohibit suicide, we also believe that whether he lives or dies is not solely the defendant's decision to make.

Except she has it exactly backwards.

Forget the Constitutional difference (the right-to-die cases are about the meaning of due process, where the Court doesn't always take a broad view because the language is so vague; the self-representation cases are about the Sixth Amendment, a specific guarantee in the Bill of Rights).

As a moral matter, suicide is one of the most basic rights, because a right is no right at all if it can't be waived; a non-waivable right to life is a duty or a burden, not a right. (This is separate from whether we should recognize the right to assisted suicide; there are possibly good arguments against that based on the possibility of "semi-forced" suicides, actually homicides masquerading as suicides; so maybe it's O.K. for states to be able to burden the right with high evidentiary standards or possibly even ban the practice altogether.)

Whether and how you die is one of the most personal decisions to make. Lithwick lists cases where people are so nuts they don't even let their lawyers save them with an insanity defense; as a result, the Unabomber and others like him "will die in jail" (and I suppose could have been executed if that had been an option). But being freed based on an argument that's repulsive to you and that you don't want made can be worse for the defendant than dying on his own terms.

If we want defendants to have counsel because we want to help them, then we should let them define their own interests, and not assume that being freed (or living) is better than being imprisoned (or executed) after having put up what you thought was a dignified fight, with the friends you want and using your own arguments. This part is just as valid for crazy defendants as for sane ones; it's a question of honor.

Now this doesn't mean Lithwick's wrong generally. There are other values involved than the life of the defendant, for instance, "the notion of a fair trial [or] the truth-seeking function of the courts." If "the notion of a fair trial" means people's perception that trials are fair, it shouldn't be that hard for people to distinguish between trials that are actually unfair and trials that are badly skewed because the defendant publicly takes a dive.

But the truth-seeking function is more important. In inquisitorial (not adversary) systems, the court does its own investigations, and even in our own system, you could think of the initial police investigation as being a kind of inquisitorial system. The police can dig deeper, even if someone steps forward and implausibly confesses, perhaps because he wants to commit suicide that way; and maybe the police should dig deeper, because the deterrent function of criminal law may be better served if we actually catch the person who did it. (See the Godfather novel; this is how Michael Corleone gets to return from Sicily.)

So the truth-finding function, through deterrence, is an important consideration. But to think in terms of the life of the defendant, as though saving his life against his will (even his crazy will) is doing him a favor, is to demean the value of life. The value of life isn't the value of living, but the option value of being able to die on your own terms. And that's a value we should export to other areas of the law. As Lithwick puts it, though she means the opposite of what I do:

If we are truly interested in privileging human autonomy above all things, including life, we'd best start revising the rest of the criminal law system.

UPDATE: Reader Jenny Foreit reminds me of the line in the classic, Heathers, where the flaky school guidance counselor, says, "We have to talk. Whether to kill himself or not is one of the most important decisions a teenager can make."

 
[Sasha Volokh, 10/21/2003 08:20:31 PM]
Poems: Just came across an old favorite, written during the 1992 presidential primary season by UCLA student Josh di Donato and performed at a poetry reading around that time:

clinton clinton
brown brown
babbitt clinton
brown brown
cuomo cuomo
kennedy kennedy
brown brown

clinton clinton
clinton brown
brown clinton
buchanan clinton
buchanan bush
bush bush
bush buchanan
clinton jackson
brown jackson

jackson brown

clinton clinton
brown brown
tsongas

Poesy!

 
[David Bernstein, 10/21/2003 07:28:22 PM]
More on Bumper Stickers: Reader Parker Smith has this idea for a bumper sticker: "It'll be a great day when the Air Force has all the money they need and the NEA has to have a bake sale to buy a lobbyist."

And reader Dave Menke's alltime favorite bumper sticker is "Help Eliminate Bumper Stickers."

 
[Tyler Cowen, 10/21/2003 06:42:04 PM]
Will the French limit Google? The Mises blog led me to the following:

"A French court has ruled against the internet search engine Google in an intellectual property rights case that may have far reaching technological and financial implications for internet search firms, which process tens of millions of queries a day.

The civil court in Nanterre, near Paris, fined Google €75,000 ($126,000) for allowing advertisers to link text internet advertisements to trademarked search terms and gave the company 30 days to stop the practice, common at internet search services.

The ruling, handed down last week, is believed to be the first in which the owner of a trademarked term successfully sued an internet search service for allowing advertisers to use protected terms in text ads.

If it is upheld on appeal and validated in other countries, the decision could force the search services to pre-screen search terms for trademarks before letting advertisers use them. "

For the full story, click here. I am not familiar with the legal issues involved, but from an economic point of view this is ill-conceived. If you are worried about trademark protection, make the advertisers liable, not Google. The advertisers must know, at lower cost, what is legitimate use of a trademark-protected name and what is not. I can see at least two issues here. One is whether someone else can use the trademarked name, the other is whether you can link to a trademark-protected page. I don't see a good reason for holding Google liable in either case. Why not go even further and hold the Internet service provider liable too?

 
[Eugene Volokh, 10/21/2003 05:35:03 PM]
Right to represent yourself: Slate's Dahlia Lithwick has a powerful critique of this constitutionally doctrine -- recognized by the Court in Faretta v. California (1975). It's a brief for one side, and it doesn't fully describe the arguments on the other; but it's an effective and readable brief nonetheless, and makes some excellent points. Note that her argument about the need to determine "the truth in [each] case" and maintain "a national confidence in the fairness of trials" would apply not just when the defendant is "legally competent to stand trial [but] still . . . extremely mentally ill," but even when the defendant is perfectly sane but just legally untrained. For the other side, read the Faretta v. California majority opinion itself.

 
[David Bernstein, 10/21/2003 03:15:55 PM]
Good Column by Marni Soupcoff on the Janice Brown nomination to the D.C. Circuit.

 
[Eugene Volokh, 10/21/2003 03:13:32 PM]
Cartoon:
This one is from the site The Black Commentator, and accompanies the People for the American Way / NAACP joint press release condemning Brown.

     I've never been quite sure what to make of complaints that cartoons exaggerate some stereotypical racial or ethnic features -- on the one hand, I can see why it might be offensive, but on the other hand, they are cartoons, and it's standard procedure for cartoonists to exaggerate everyone's features (though I've never understood why that's seen as so funny). Still, those who generally don't like cartoons that depict blacks with fat lips and vast Afros (and as best I can tell, Justice Brown has neither particularly large lips nor particularly large hair, so it's not like they're mocking her own well-known personal characteristics) might want to note this one.

UPDATE: A couple of readers suggest that I misunderstood the cartoon; one, for instance, suggested that it "does not seek merely to exaggerate racially stereotypical features . . ., but instead depicts Justice Janice Rogers Brown as Justice Thomas in drag with a fright wig." I suppose it might -- Brown's and Thomas's faces are supposed to look alike -- but I'm not sure why that explains either the fat lips (why not have normal lips on both of them?) or the fright wig / mega-afro (if you want Brown to be Thomas in drag, don't the other elements of the costume and the body already do the trick?).

FURTHER UPDATE: Reader Jason Rylander points out that I should have been clearer when I said that the cartoon is from the Black Commentator site, and accompanies the People for the American Way / NAACP press release -- it accompanies the release only on that site; the decision to combine the two seems to have been made the Black Commentator site operators, not PFAW or NAACP.

STILL MORE: See here for a response from the publishers of blackcommentator.com, and my reaction.

 
[David Bernstein, 10/21/2003 03:09:24 PM]
Op-ed On Affirmative Action Bake Sales:

Is it a no-no for students to satirize affirmative action at UC Irvine? The answer is a resounding "yes!" Recently, the university shut down an "affirmative action bake sale" run by the College Republicans. Members of the group offered doughnuts at prices ranging from 10 cents to $1, depending on each student's race and gender. The obvious message: It's wrong to treat people differently based on immutable characteristics. But apparently you can't say so in public.

So begins my op-ed (link requires free registration) in today's Orange County Register.

 
[Eugene Volokh, 10/21/2003 03:03:32 PM]
The Pejmanesque backup site is at http://pejmanbackup.blogspot.com -- he has temporarily fallen victim to the Hosting Matters problems, too.

 
[Eugene Volokh, 10/21/2003 02:36:15 PM]
Not so mysterious? Slate's Chatterbox column today begins with this paragraph:

One of the enduring mysteries of America's occupation of Iraq is why a nation that so little relishes peacekeeping nonetheless refuses to turn the job over to the United Nations.

I'm not quite sure where the mystery is: Don't we all have things that (1) we hate to do, but that (2) we do ourselves, because we don't trust others to do them for us? Seems like a perfectly simple explanation.

     Oddly, the headline to the piece (which may not have been written by the piece's author -- hard to tell for sure, with in-house authors) provides part of the solution to the mystery: "Everybody Hates Peacekeeping / But hawks hate the United Nations more." Substitute "distrust" for "hate" (more or less), or "hate turning it over to" for "hate," and you have the answer. (Some hawks hate the U.N.; many don't hate it, but just don't think it will do a very good job here.)

     The column is right to point out that if we win wars, and we aren't willing to turn over the battlefields to third parties, then we'll have to invest time, money, effort, and lives into keeping the peace. I just don't see any justification for an air of mystery here.

 
[Eugene Volokh, 10/21/2003 12:09:00 PM]
Editing my own writing: Just saw this clause in a draft of my article -- "may aid others in the commission of crimes." Why didn't I write "may help others commit crimes"? I have no idea. You'd think that one's first impulse would be to write something that's too simple, so one would then have to add more detail and nuance. But for me (and I think for many other writers), the first impulse is often to write something that's too complex, so I then have to trim it down.

UPDATE: The problem, by the way, is "nominalization": turning verbs, adjectives, and adverbs into nouns or noun phrases. Here, the nominalization is of "commit" into "commission." Nominalization isn't always bad, but it tends to add words, which makes text longer, and to add prepositional or verb phrases, which makes text more complex. It also tends to make the writing less concrete and thus less lively, because the new nouns generally tend to be more abstract than the concrete actions and attributes that they replace.

 
[Jacob Levy, 10/21/2003 11:56:46 AM]
A job well done: The new issue of the East European Constitutional Review is apparently the last. The Review began in my current department (though I wasn't here at the time!)-- or, to be precise, in the associated Center for the Study of Constitutionalism in Eastern Europe, and I was a faithful reader through most of its eleven-year existence. The Review was an impressive publication that struck a number of difficult balances well. It was the definitive English-language source for news about the development of constitutional democracies in Eastern and Central Europe and the ex-Soviet republics; its front-of-the-book country reports provided lots of fascinating information that never made it into the NYT or the Economist about the drafting and amending of new constitutional documents, the struggles over judicial independence and the rule of law, and so on. Its academic articles and book reviews were mostly-successful at being accessible to educated nonspecialists, and were free of journal-jargon, while still offering sophisticated analyses by major academics and intellectuals. I always especially liked the contributions of Andras Sajo, whom I might never have heard of without the Review. (I recommend his book, Limiting Government: An Introduction to Constitutionalism, which I think gre out of some of his EECR articles.)

During a period of time when the developemnt of constitutionalism in ECE raised exciting intellectual issues as well as being exciting as a matter of politics, the EECR did a very good job of bringing the two kinds of excitement together; it kept the intellectual arguments in view of those who cared about the news, and the information and developments in view of those who cared about the ideas. As the new democracies passed the ten-year mark, as fundamental constitutional transformations and innovations gave natural way to more ordinary politics, the journal's mission came to seem a bit less urgent. And I haven't been much interested in some of its intellectual preoccupations of the past few years. But I still read it, and respected its accomplishment.

I don't know whether the journal is shutting down as part of George Soros' publicized reductions of funding of post-Communist transitional causes; he, reasonably, thinks that there ought to come soemthing like a graduation day from Open Society Instiute-funded transitions. (After all, states of transition are supposed to be temporary.) It might also be that the EECR is closing because the energy of its editors and contributors is being redirected to the new, more-purely-academic, International Journal of Constitutional Law, which has already had a very impressive first three issues published. In any event, the EECR was a distinctive and valuable creation, and will be missed, despite both the launch of I-CON and the fact that it became less needed with the profoundly good news of basically-successful constitutional entrenchment in many of its countries of interest.

(Disclosures: The EECR left the University of Chicago when Stephen Holmes did, in 1997. I applied to Chicago for grad school when the department included Holmes, Adam Przeworski, Bernard Manin, Jon Elster, and Cass Sunstein, most or all of whom were involved in the journal and the associated center; but I went elsewhere, and all of those people except for Sunstein departed for points east a couple of years later, making me very happy that I hadn't enrolled here. Holmes and I overlapped briefly at Princeton, but the journal wasn't housed there and I never worked with him. The Center has now been succeeded, here, by a new Center for Comparative Constitutionalism with which I'm involved.)

 
[Eugene Volokh, 10/21/2003 11:18:39 AM]
More on General Boykin's comments: Phil Carter analyzes them under various military regulations. His conclusion (on which I express no opinion, since I haven't looked closely into the matter):

I support the principle of free speech and I support the Constitutional rights of our servicemembers. However, there are other principles in the Constitution as well, including that of civilian control of the military. We don't let our generals speak openly on political, social, religious and other hot-button issues for good reason. . . . We also don't condone outside speaking by military officers in uniform, also for good reason. Setting aside the morality or rightness of LTG Boykin's comments, this issue seems to be fairly cut and dry to me. LTG Boykin should not be allowed to break the rules.

 
[Eugene Volokh, 10/21/2003 11:16:34 AM]
InstaBackup: InstaPundit is now posting at http://instabackup.blogspot.com, because Hosting Matters is again under hack attack. Visit him there; there are lots of posts this afternoon.

 
[Randy Barnett, 10/21/2003 07:08:35 AM]
RE: Withdrawing from an Accepting Law Review to Resubmit Later Elsewhere. . . : Randy agrees with Lara.

 
[Eugene Volokh, 10/21/2003 06:54:13 AM]
Speech by generals: Others have discussed in great detail whether Gen. William Boykin should be reprimanded or dismissed for his remarks about Islam, or at least told not to say such things in the future; I don't want to opine on that (I have nothing to add that debate). But some people have asked whether it would be constitutional for that to happen, so I thought I'd chime in briefly.

     The government is indeed limited in its ability to fire or otherwise discipline its employees based on their political or religious statements. The general rule is that if an employee's speech is on a matter of public concern, the government can't restrict the speech unless the interference of the speech with the government's operations outweighs the value of the speech to the speaker and the listeners. Yes, it's a very mushy test, which requires courts to weigh two matters that are hard to quantify, and that are themselves incommensurable. But there it is.

     However, the government likely also has extra authority to restrict speech by high-level employees, and generals pretty clearly qualify. (See generally Elrod v. Burns, which distinguishes -- in the closely related political patronage context -- between policymaking employees and other employees, as modified by Branti v. Finkel.) Some lower court cases say that the government has a nearly free hand to restrict speech by such employees, while others say that the policymaking status of the employee is just one important factor in the analysis; but surely the status as a general and deputy assistant secretary of defense would weigh very heavily even under the latter test. And the government has super-duper extra large authority to restrict speech by members of the military, see Parker v. Levy.

     Between these three doctrines, I'm pretty sure the President could dismiss Gen. Boykin on the spot with no constitutional problems: His speech may well have substantially interfered with the government's mission -- and courts tend to defer considerably to the government's judgment about such interference -- but more importantly, he's a very high level official, and a member of the military. (Even if you think that Gen. Boykin's speech did not substantially interfere with the government's mission, the high-level official point and the military point, especially put together, should be conclusive.) And the President, or other government higher-ups, can impose discipline or restrictions short of dismissal as well.

     What about the fact that the speech is religious? That shouldn't generally change the analysis, I think. As a general matter (subject to complications that I set aside here), the Free Exercise Clause comes into play only when the government punishes people precisely because their conduct was religious. Presumably any government punishment (if there will be such punishment here) would have equally applied if the general's statements were political rather than religious, or delivered in a nonreligious place rather than in a church. The Free Exercise Clause thus wouldn't be in play.

     What if the government does punish the general more precisely because his speech was religious? Or what about the Religious Freedom Restoration Act, a statute that does require the government to give special exemptions to religious believers even from generally applicable rules that don't single out religion? It's a long story, but I think that even these theories would fail because of the government's conclusion (if the government so concludes) that the speech seriously harmed the government's mission, and even more so because he's a high-ranking official and a member of the military.

     Two last items. First, it's possible that courts would simply refuse to intrude into decisions about the President firing a general; but my analysis relates to whether the President's actions are constitutional under existing law, not the sometimes different question of whether courts would step in to decide the question. Second, I strongly suspect that Gen. Boykin would in any event not sue over any dismissal or other discipline.

 
[Sasha Volokh, 10/21/2003 06:53:34 AM]
Massachusetts oppresses us again: Massachusetts is set for a statewide ban on smoking:

The state ban is expected to largely mirror the prohibition that went into effect May 5 in Boston, with smoking allowed only in nursing homes; fraternal organizations, such as American Legion halls; and in cigar bars that can demonstrate they derive a majority of their sales from selling tobacco.

They're not specific, but I assume it's limited to the inappopriately named "public accomodations" or something similar, so you can still smoke in your house.

Now I'm not a smoker and I don't like cigarette smoke, but I hate it when they do this . . . and what's more galling is that this statewide ban is justified by the need to create a level playing field so those cities (like Boston, Cambridge, and Somerville) that have instituted such a ban don't lose business to neighboring cities.

One time I went home to L.A. and somehow (how???) I got talked into going out to a club; it was so pleasant that there was no cigarette smoke, but in my soul, it wasn't worth the knowledge that regulation is at work.

 
[Eugene Volokh, 10/21/2003 06:32:45 AM]
Dear Lara: Yes, it's Law Review Lara, self-appointed advisor on all things related to legal publishing. Today's question:

Dear Lara: I've submitted my article to the Top 80 journals, and I've gotten some offers from journals in the bottom half. I've naturally tried to shop up the offers to the top-ranked journals, but I've gotten no bites. Some of the journals are full (this happens in October); others just aren't responding.

I think this is a great article, and I had expected to see some more interest. Should I just refuse the offers from the lower-ranked journals and resubmit in March, when the new editorial boards come in?

Signed,

Submitting in Seattle

Lara replies:

Dear Submitting:

Indeed, the upside of submitting in the Fall (the optimal times are mid-August to mid-September, since by early October more and more journals fill up) is that if you get no offers, you can resubmit in the Spring. The editorial boards do change once a year (these are, after all, student-edited journals), usually in early to mid-March, with a few exceptions. If you submit in March or April, you'll get a second crack at the journals that rejected your piece (or just couldn't get to it because they were full) in the Fall. You might even submit to the Top 40 in the Fall and then the Top 80 in the Spring, if none of the Top 40 take the piece originally.

But while Lara doesn't mean to be a goody-two-shoes, she wonders whether it would be quite right for you to refuse the offers just because you think you'd do better in March. By submitting to a journal, you of course aren't agreeing to publish there: The rule in law, as opposed to other academic disciplines, is that you may submit to multiple journals. If you get an offer from one journal, it's expected that you'll try to leverage it into an offer from a better journal -- and that the original journal's editors might thus have invested their time and effort for nothing. That's the way it is, and it's an expected part of the system.

But Lara thinks that by submitting to a journal, you're implicitly representing to the editors that you'd be willing to publish it there if you get no better offers. That, she thinks, is the understanding under which they take the time to read the article. It's not a legally binding obligation. But she thinks that using a journal just to get a better offer, without any chance that you'd accept their offer even if you get nothing better, is a bit outside the conventional understanding, and not very nice: You're wasting poor young editors' time knowing that there's no chance that you'll give them anything in return (other than the undoubted joy of reading your article).

Now Lara realizes that it's a rough world out there, and these niceties may be too much for some people who are looking to get a teaching job or a promotion out of a published piece. And this isn't, she suspects, as clear a moral rule as that once you accept an offer from a journal, you can't then withdraw the acceptance if you get a belated acceptance from a better journal. (When she was but a wee slip of a law review article writer, one journal's editor actually encouraged her to do this.)

Still, it seems to her that the better course is to accept the best offer one has. Write early and often,

Law Review Lara

UPDATE: Owing to an error by the cite-checkers, er, by Lara herself, the clear moral rule that "that once you accept an offer from a journal, you can't then withdraw the acceptance if you get a belated acceptance from a better journal" was originally written as "you can then withdraw." Whoops. Fortunately, it's corrected now; Lara hopes it hasn't done any damage (except to her reputation) in the meantime.

FURTHER UPDATE: Law Review Sally and Law Review Helga weigh in. Law Review Lara pays homage to the intensely competitive nature of the law review world by pointing out that her name is much more euphonious than those of the janie-come-latelies.

 
[Eugene Volokh, 10/21/2003 06:12:30 AM]
"Hope the birds are flying right, W": "I think the signs are auspicious, Dick." A moment of puzzlement about how to spell "inaugurate" led me to recognize the root of the word -- the same as "augury." Unless Colleen McCullough has steered me wrong (yes, I know it's a bad idea to try to learn history by reading fiction, but she seems reliable), the original inauguration involved elected Roman officials, such as consuls, watching the skies for omens. The root of "augury" is actually partly "auis," which means bird (see here; thanks to Iain Murray for the pointer).

     Thus, to make it a true inauguration, that's what the next President and Vice-President should do. Expect that as part of the forthcoming platforms, to get the all-important Classical Religion Revival vote.

UPDATE: Reader John Houlihan writes:

I think the Lewis & Short etymology that you link to may be a little out of date. (Even in classical philology, 1879 is not the cutting edge of scholarship.) I believe more recent thinking relates the word to the verb augeo, augere, "to increase" (cognate to the English verb "wax"): see, e.g., http://www.bartleby.com/61/roots/IE28.html. The word "auspice," however, pretty clearly does derive from the practice of divination by bird-watching.

I express no further opinion on who's right here (though I certainly agree as to "auspice").

 
[Tyler Cowen, 10/21/2003 04:58:22 AM]
The overcriminalization of economic conduct: "Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. The American Bar Association reported in 1998 that there were in excess of 3,300 separate criminal offenses. More than 40 percent of these laws have been enacted in just the past 30 years, as part of the growth of the regulatory state. And these laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies under congressional authorization. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are "[n]early 10,000.""

Consider also the following:

"Nor is the growth in the number of federal criminal statutes merely an academic question, without real world effects. To the contrary, between March 2001 and March 2002 (the latest year for which data are available), federal prosecutors commenced 62,957 cases, involving 83,809 individual defendants. More than 3,100 of these defendants were charged with crimes categorized as violations of "federal statutes"--a category broadly (though not precisely) congruent with charges reflecting violations of a regulatory program. This number exceeds the number of federal prosecutions during the same year for a host of common law offense categories, including murder, robbery, embezzlement, forgery, and sex offenses. Put another way, more federal prosecutorial resources are invested in regulatory prosecutions than in the prosecution of forgery charges."

Addendum: Eugene points out that some of this comparative numerical effect follows from the typically state-level nature of crimes such as murder and robbery. Nonetheless the following remains true: "...as has now become commonplace, American society will enforce complex and often unclear regulatory obligations not through the law of tort and civil liability but through the stringent provisions of criminal law. Those who voluntarily choose to engage in productive economic conduct place themselves at risk of criminal sanction for their "felony failure to supervise.""

For the full link, click here, which leads you to a Heritage study on the issue.

 
[Eugene Volokh, 10/21/2003 04:06:33 AM]
ABA's Student Lawyer magazine, I'm happy to report, has just published a very kind review (by Prof. Richard Bales) of my Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers book. See the review here -- if it makes you want to buy a personalized copy, for yourself or a for a friend, click here.

 
[Eugene Volokh, 10/21/2003 02:52:57 AM]
What ESPN said: What I wrote to ESPN:

I hear you folks fired Gregg Easterbrook because of the flap about his comments on his blog about Kill Bill and Jewish movie executives. I'm Jewish myself, and I disagreed with Easterbrook's remarks. But they surely were not anti-Semitic (he certainly wasn't saying that Jewish movie executives were any worse than non-Jewish ones); and his prompt apology made clear that he didn't intend them as anti-Semitic. If you did indeed fire him for such a minor offense -- basically just expressing himself in a confusing way that some people might take amiss, and on his own site, not ESPN -- that strikes me as much more reprehensible than his remarks ever were.

If the story that I had heard is not correct, and you did not fire Easterbrook on these grounds, please let me know.

Thanks,

Eugene Volokh

What ESPN sent in response (emphasis added):

From: ESPN Support
To: volokh@mail.law.ucla.edu
Subject: Re: Other

Hi Eugene,

Thank you for contacting us.

We appreciate your interest, but that is currently not a feature on ESPN.com.

Regards,

Patty
ESPN.com
http://espn.go.com/

I kid you not: That was the entirety of their response. Now that's public relations for you.

UPDATE: Two readers report that they got a more suitable note from ESPN in response:

Hi [name],

Thank you for contacting us.

We appreciate your comments and are considering your opinion. We will forward your comments along to the appropriate department for review.

Regards,

Jesse

Monday, October 20, 2003

 
[Sasha Volokh, 10/20/2003 04:36:45 PM]
The Darwin fish: Apropos David's post below (sorry I missed your Harvard talk earlier today), I now oppose the Darwin fish -- not because I'm against making fun of creationists but because I think it supports the popular identification among atheists of Christians (who use the fish symbol) with creationists. People who put Jesus fish on their cars aren't necessarily supporting creationism, so Darwinists' appropriation of the Jesus fish improperly casts too wide a net (so to speak). It would be nice if there were a separate symbol for creationists.

But... I still have a Darwin fish on my car, because I put it there once years ago and have grown kind of attached to it. Also, I have an NRA bumper sticker ("Vote Freedom First"), a bumper sticker advertising Herman Melville's home in Western Mass. which I visited once ("Call me Ishmael"), and this presidential bumper sticker I designed a few years ago (it's the one on the top of the page).

By the way, if anyone wants some of the McKinley-Roosevelt '00 bumper stickers, I have a lot of them, so I'll send them to you (pretty much any quantity you want) for just the cost of postage and a large envelope (about $1).

 
[Eugene Volokh, 10/20/2003 03:44:36 PM]
The Thing is Jewish. Should we be happy or sad? I haven't read enough comic books to find out, but I guess he's supposed to be a good guy, so we'll take him. I wonder, though, whether this would be going too far:

According to [Marvel senior editor Tom Brevoort], [Thing cocreator Jack] Kirby (born Jacob Kurtzburg) kept in his house, but never published, an early drawing of the Thing in full rabbinical regalia.

A rabbi? (Thanks to reader Jason Walta for the pointer; he adds: "Anyway, maybe he can take on Malaysian Prime Minister Mahathir Mohamad.")

 
[Eugene Volokh, 10/20/2003 03:38:58 PM]
Qualifications for being Vice President: Can the Vice President be under 35, or not have been born a U.S. citizen? For instance, could a 34-year-old be inaugurated as Vice President, on the theory that by the time (if ever) that he needs to step into the Presidency he'll likely be 35? No, but many people miss this because it's in a funny place: The last sentence of the Twelfth Amendment says:

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

So, no, Wesley Crusher isn't eligible.

 
[David Bernstein, 10/20/2003 03:07:39 PM]
Bumper Stickers: Eugene's posts below remind me of one of my alltime favorite bumper stickers: "If you can't read this, thank the public schools." Alternative: "If you can't read this, thank the teachers' union."

I also love the fish with feet that say "Darwin," though not everyone agrees.

Least favorite: "It'll be a great day when schools have all the money they need and the Air Force has to have a bake sale to buy a bomber."

Close second: "You can't hug a child with nuclear arms."

 
[Eugene Volokh, 10/20/2003 01:03:18 PM]
Mickey Kaus on the Gregg Easterbrook controversy: A thoughtful and insightful analysis. Among other things, I think it persuasively explains how someone who, by all the accounts, is not at all personally anti-Semitic would come up with this rather odd argument about Jews and their obligations. (Mickey knows Easterbrook, and I think likely has a pretty good insight into his psyche here; at the same time, this isn't just a friendly all-out defense, which would have made it less interesting.)

 
[Eugene Volokh, 10/20/2003 11:01:45 AM]
"Where weakness attracts vultures": Words to remember:

DATE=5/17/2000
TYPE=CORRESPONDENT REPORT
NUMBER=2-262495
INTERNET=YES CONTENT=
VOICED AT:
INTRO: Secretary of State Madeleine Albright has warned the U-S Senate not to try to force the withdrawal of American troops from Kosovo. V-O-A's Luis Ramirez reports the warning came as Congress considers deep cuts in the Clinton Administration's foreign policy budget.

TEXT: A bill currently in the Senate would, among other things, slash funding for the deployment of U-S troops in Kosovo - forcing them to withdraw from the region next year. Speaking to a U-S business group (the Chamber of Commerce) in Washington, Mrs. Albright said the proposal sends the wrong signal.

///ALBRIGHT ACT///
This is playing with fire. In the Balkans, signs of impatience can be misinterpreted as symptoms of weakness. We cannot afford that in a region where weakness attracts vultures.
///END ACT///

The Secretary of State says keeping U-S troops in place along with other international peacekeepers is vital to securing lasting peace in the region. She says a hasty withdrawal would be a mistake.

///SECOND ALBRIGHT ACT///
We will not achieve our goals in Southeast Europe if our eyes are always on the clock and our focus is solely on what others do. We are more than bookkeepers and spectators. We are leaders, and our fundamental objective in Southeast Europe is not to leave. It's to win.
///END ACT///

Mrs. Albright says she believes a withdrawal next year may bring a resurgence of violence, and she predicts the peacekeepers would have to return. In her speech, the Secretary urged members of Congress to support funding for the United States' foreign policy programs. She blasted members of Congress who oppose full funding for United Nations missions, including those in East Timor, Congo-Kinshasa, and Sierra Leone. The plan being considered by the Senate also includes cuts in administration backed programs for trade promotion, the Peace Corps and some environmental initiatives. (SIGNED)
NEB/LR/ENE/KBK 17-May-2000 16:16 PM EDT (17-May-2000 2016 UTC)

(Thanks to Randy Barker for the indirect pointer.)

 
[Eugene Volokh, 10/20/2003 10:36:44 AM]
A bit more on bumper stickers: Apropos "If you can read this, thank a teacher" -- actually, my parents taught me to read (both Russian and English). In one sense, the sticker is still right for me: Because they taught me to read, they were by definition teachers, and my mother even worked (albeit highly unofficially) as an English teacher in Russia, teaching children of her friends as well as teaching me. But I don't quite think that this is what the sticker is referring to: I think it's meant to praise professional teachers, not just parents as teachers.

     What's more, I think I should be thanking my parents for more than just teaching me to read. I should also be thanking them for taking the view that teaching their child to read is primarily their own job, and not just something to be left to professional teachers -- perhaps the opposite, in some ways, of the message the bumper sticker conveys. And while I'm happy to praise teachers for many things, I'm not sure the bumper sticker gets this matter quite right.

 
[Eugene Volokh, 10/20/2003 10:05:00 AM]
I'm glad my name isn't Latrina (0.002% of the female U.S. population = about 3000 people), or of course Titiporn. The latter, by the way, is apparently a not uncommon Thai woman's name, so I presume most of these women are immigrants who didn't know what they were getting into. What we really need there is officious immigration authorities who are willing to say "Nope, from now on you're Tina; trust me on this one." (And, yes, I also feel sorry for the poor people named Bich, Phuc and My Dung [fortunately, pronounced not quite how it's spelled]. I actually once ate at a My Dung Restaurant in the L.A. area; very tasty Vietnamese food.) But the Latrinas, I assume, were American-born and had English-speaking parents, who should have known better.

 
[Eugene Volokh, 10/20/2003 07:54:01 AM]
Palestinian terrorists killing Americans: Jeff Jacoby has a pretty powerful column on the subject. I have no independent knowledge of the matter, and I'm not sure I agree with all of Jacoby's analysis; but if he has his facts right -- and I've generally found him to be quite reliable -- this seems to be yet another powerful indictment of Arafat's Palestinian Authority, and another powerful reason for the U.S. not to deal with Arafat, or insist that Israel deal with him.

 
[Eugene Volokh, 10/20/2003 07:41:46 AM]
Three arguments: A great quote (lifted from today's Supreme Court opinion in Yarborough v. Gentry) from Justice Robert Jackson, who had been Solicitor General -- the government's chief Supreme Court advocate -- before being appointed to the Court:

I made three arguments of every case. First came the one that I planned -- as I thought, logical, coherent, complete. Second was the one actually presented -- interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.

 
[Eugene Volokh, 10/20/2003 07:32:25 AM]
When may the police demand that a pedestrian identify himself? The Supreme Court has just granted certiorari on this question, as I predicted last December that they would. Here's my post from then:

WHEN MAY THE POLICE DEMAND THAT A PEDESTRIAN IDENTIFY HIMSELF? The police may not just stop someone without any reason and demand that he identify himself; the Supreme Court made clear in Brown v. Texas (1979) that stopping someone for no reason violated the Fourth Amendment. (There are exceptions to this, such as for drunk driving checkpoints and the like, but this is the general rule.) The Supreme Court also made clear, in Terry v. Ohio (1969) that the police may stop someone if they have "reasonable suspicion" to believe that the person may be involved in crime, a standard that's below the "probable cause" needed to arrest him, and then briefly detain the person while they figure out what's going on.

     But the Court has not clearly decided whether a state law may obligate people (pedestrians or passengers, and not just drivers) to present identification once they are lawfully stopped. A 1983 case, Kolender v. Lawson, raised this Fourth Amendment issue but didn't squarely decide it because the Court held that the state law was unconstitutionally vague.

     The Nevada Supreme Court has just made it fairly likely that the Court will indeed have to settle the matter. The Ninth Circuit, in Carey v. Nevada Gaming Control Bd. (2002) struck down the Nevada law that required people to present identification when they are lawfully stopped; but the Nevada Supreme Court has just upheld the same law, in Hiibel v. District Court. The Nevada Supreme Court decision creates a disagreement between a federal circuit court (the Ninth Circuit) and a state supreme court in that circuit (the Nevada Supreme Court) about the constitutionality of a particular statute. The Supreme Court tends to view such disagreements as particularly in need of resolution, even more so than the conventional "circuit split," where different circuits (or some circuits and some state supreme courts outside the circuit) reach different results.

     I predict that the Court will agree to hear the case, unless there's some procedural problem that I'm unaware of (these are often hard to tell until one sees the response to the petition for certiorari). You heard it here first (unless you read the Las Vegas Review-Journal, which seems to be the only newspaper that has covered this, or unless you subscribe to the Westlaw WLB service, which is where I first found a paragraph-long description of the case).

 
[Eugene Volokh, 10/20/2003 07:25:41 AM]
Easterbrook and the state action doctrine: A reader writes:

Did the [blogger critics of Easterbrook] violate Easterbrook's first amendment rights?

No: The First and Fourteenth Amendments by their terms only apply to the government restricting speech. Private people can criticize others all they want, and even call for their firing (which I believe the blogger criticics of Easterbrook generally didn't do, and in fact generally opposed). In fact, such criticism is itself exercise of the critics' free speech rights, and ESPN's firing is ESPN's exercise of its own free speech rights, since ESPN isn't the government, either.

     The reader then asks:

Did they libel him?

     Not at all: To be libelous, something has to be a false statement of fact (and some other requirements also have to be met). The critics of Easterbrook accurately reported the facts of what Easterbrook said; they then expressed the opinion that this speech was, in their view, anti-Semitic. That's fully constitutionally protected; a court wouldn't even inquire whether this opinion is true. (Even if their allegation was that deep down inside Easterbrook in fact hated Jews, which I believe was generally not part of their allegations, it would be clear that such a statement about a person's mental state would just be opinion).

     Now, had they made false (especially knowingly false) statements about some other things Easterbrook supposedly said or did -- for instance, if they said "I once heard Easterbrook say that Jews drank the blood of Christian babies," and that turned out to be a lie, then they would be liable for that false statement of fact. But expressing an opinion based on an accurate summary of the facts is not libel.

     The reader continues:

Are there any legal responsibilities to being a blogger or can any one say anything?

Sure, same as with any other medium: You can't libel people, you can't threaten people, you can't post child pornography. But the First Amendment fully protects your right to express opinions about people, and even call for their firing.

     Finally, the reader asks:

If so, why was Easterbrook fired?

He was fired because ESPN, an entity with its own First Amendment rights, exercised those rights by choosing not to publish Easterbrook's speech any more. I disagree with ESPN's decision, but they have a perfect legal right to make it.

 
[Eugene Volokh, 10/20/2003 06:53:28 AM]
Airplanes, nail scissors, and glass: I've long meant to blog about this, but I kept forgetting. The TSA prohibits nail scissors (as "scissors -- metal with pointed tips"), presumably because one can use them to slit people's throats, or threaten to do so. But what about eyeglasses? My guess is that one can, with little difficulty, break eyeglasses to produce an edge that's pretty much as sharp as that on a pair of nail scissors. Likewise with wine bottles, especially if you break one against another. Perhaps not all glass can be broken this way -- but lots can, enough that someone who wants to try to hijack a plane that way can easily get himself a very sharp edge. I suspect that one can even cut the glass at home, and reattach the cut pieces in a way that they'll show up as an uncracked bottle (of perfume or some such) in the airport scanner. (Incidentally, if one cut a piece of metal to produce a very sharp edge, but then put the two pieces together so they seem like just a plain metal square -- perhaps stored inside a laptop -- would this even show up as something unusual on the scanner? I doubt it.)

     Of course, I don't think that these days one can get away with hijacking a plane with a sharp piece of glass -- or with a pair of nail scissors. But that just highlights that banning nail scissors, pocket-knives, and the like is pretty pointless. I'm not sure that it even instills a false sense of security; it certainly isn't true security.

     It's not just that banning nail scissors won't solve much of the security problem: Sometimes, you have to institute a bunch of small steps, each of which solves only a small part of the problem -- I don't mind that. I also don't mind some restrictions on freedom (especially if it's just the freedom to pack nail scissors without having to check luggage) in the interests of security. I just don't think that this restriction will solve any part of the problem at all, or produce any increase in security.

     And I do think that it will send the wrong message: Not a message that air travel is safe because the TSA is looking out for you (I can see the economic reasons for this message, but I doubt that banning nail scissors will really enhance this message), but a message that we should fight all such threats through the government trying (inevitably unsuccessfully) to provide perfect prevention, rather than by teaching passengers to fight back when someone tries to hijack a plane with nail scissors or a broken bottle. And if we can't fight off a hijacker who's armed with that, then we deserve to lose.

 
[Eugene Volokh, 10/20/2003 06:50:43 AM]
Happy Birthday! According to a Third Circuit decision,

Happy Birthday, originally penned by two Kentucky kindergarten teachers in the late 19th century, remains a protected and highly profitable copyright in the intellectual property portfolio of AOL/TimeWarner. Purchased by the company in 1988 for an estimated $25 million, it produces revenues estimated at $2 million per year. Under the Copyright Term Extension Act of 1998, for better or for worse, the song will not enter the public domain until at least the year 2030.

Since the Act extends pre-1976 copyrights to a term of 95 years (if they were still in their original 75-year term as of 1998), this suggests to me that the current version of the song was published in 1935. In any case, a pretty penny for a rather brief ditty. (Thanks to How Appealing for the pointer to the Third Circuit decision.)

 
[Randy Barnett, 10/20/2003 06:18:33 AM]
David Ramsay Steele on The Mystery of Fascism: A few days ago I posted this bemoaning the unavailability of David Ramsay Steele's Liberty magazine article on The Mystery of Fascism. Now another old friend, Mark Brady, has supplied a link to the article on the Libertarian Alliance website. Find David's article here. Perhaps these excerpts from the introduction will pique your curiosity:

You're the top!
You're the Great Houdini!
You're the top!
You are Mussolini!. . . .

From 1912 to 1914, Mussolini was the Che Guevara of his day, a living saint of leftism. Handsome, courageous, charismatic, an erudite Marxist, a riveting speaker and writer, a dedicated class warrior to the core, he was the peerless duce of the Italian Left. He looked like the head of any future Italian socialist government, elected or revolutionary. . . .

[After turning to fascism and rising to become the youngest prime minister in Italian history,] Mussolini was showered with accolades from sundry quarters. Winston Churchill called him "the greatest living legislator." Cole Porter gave him a terrific plug in a hit song. Sigmund Freud sent him an autographed copy of one of his books, inscribed to "the Hero of Culture." The more taciturn Stalin supplied Mussolini with the plans of the May Day parades in Red Square, to help him polish up his Fascist pageants.

The rest of il Duce's career is now more familiar. He conquered Ethiopia, made a Pact of Steel with Germany, introduced anti-Jewish measures in 1938, came into the war as Hitler's very junior partner, tried to strike out on his own by invading the Balkans, had to be bailed out by Hitler, was driven back by the Allies, and then deposed by the Fascist Great Council, rescued from imprisonment by SS troops in one of the most brilliant commando operations of the war, installed as head of a new "Italian Social Republic," and killed by Communist partisans in April 1945.

Given what most people today think they know about Fascism, this bare recital of facts is a mystery story. How can a movement which epitomizes the extreme right be so strongly rooted in the extreme left? What was going on in the minds of dedicated socialist militants to turn them into equally dedicated Fascist militants?

 
[Eugene Volokh, 10/20/2003 06:15:26 AM]
Don't give me that old-time religion:

IN THE shadow of Mount Olympus the toga-clad worshippers sway to the beating of a drum as the bearded man leading the ceremony throws a pinch of grain into a torch, then circles his hand above the flames.

While the group, dressed in yellow, red and blue robes, may appear to be taking part in some bewildering historical re-enactment, they are members a growing pagan movement dedicated to resurrecting the religion and way of life of ancient Greece.

The pagans have gathered in a meadow near the sacred mountain where their ancestors believed the gods lived and held court to perform a naming ceremony for a nine-month-old boy, Nikoforos Xanthopoulos. . . .

Leaders of the "return of the Hellenes" movement say they have 2,000 "hard-core" practising followers, about 5,000 who travel to Mount Olympus, 100km southwest of the city of Thessaloniki in northern Greece, for the annual celebration, and 100,000 "sympathisers" who support their ideas. . . .

"We want to take the world view, concepts, ideas, religion and values of the ancient Greeks, the founders of western civilisation, and adapt them to today," [Tryphon] Olympios explained. "The Greek way is to establish a scientific society. Christianity today is hostile to science." . . .

"We think of Carl Sagan as a Greek, and all the people in the world who love knowledge and don’t hate others," said Giannis Psomiadis, 48, a medical doctor at the naming ceremony. "We wouldn’t have Socrates or Plato without polytheism."

One of the group’s followers is Cornelia Buschbeck. The 32-year-old from Chemnitz, in the former East Germany, was wearing a white T-shirt showing a picture of a bust of Zeus. . . .

Buschbeck explained that Hellenes do not worship the pantheon of 12 gods as deities. Rather, each god represents a natural phenomena or human value. . . .

     I've always enjoyed Greek mythology, and some of the governmental discrimination that the neo-polytheists face (there's more in the story) seems to be improper. But, look, they are myths. If they think that Christianity is itself myth (presumably, they wouldn't leave Christianity just because it's supposedly "hostile to science" if they thought its factual assertions were true), then why replace it with other myths?

     Sure, take the "world view, concepts, ideas, . . . and values" of the ancient Greeks -- or, more likely, a select subset of that world view, for instance eliminating slavery, and the subordination of women -- but why the "religion," even with "each god represent[ing] a natural phenomena or human value" rather than a person who was screwing around and fighting with other people? If you want "a scientific society," do you really need Zeus, whether you think he's real or metaphorical, to do it?

 
[David Bernstein, 10/20/2003 06:02:44 AM]
Religious Objections to Emails About Gay Pride Month: From the AP:

A Church of Jesus Christ of Latter-day Saints teacher at a federal job training center is claiming religious harassment because he was not allowed to object to government recognition of Gay and Lesbian Pride Month....

This week, Gee asked a federal judge to order the Bureau of Reclamation to stop sending him e-mail messages asking him to recognize gay pride month.

Gee also asked the court to protect his right to object to government e-mails that he believes promote homosexuality. He also wants any negative materials concerning his objections removed from his file."

Mr. Gee clearly has no constitutional right to not receive emails from his employer, the government. His harassment claim, while very weak, is no weaker than some harassment claims that have gotten past summary judgment, meaning that the courts found that reasonable juries could find in favor of the plaintiff. That should give some pause to gay rights activists who are eager to use harassment law to make the workplace more p.c.

As for Gee's constitutional right to object to government policies, the AP story doesn't contain information regarding how, when, and where he objected, and what, if any, materials on the matter on in his file, so there is not enough information to judge the merits of his claim.

 
[Randy Barnett, 10/20/2003 04:51:24 AM]
Remembering Herbert Hoover: Many forget that Republican Herbert Hoover was a political progressive. Not only was he responsible for appointing Supreme Court justices who moved away from the scrutiny afforded liberty by the Lochner Court, but in today's OpinionJournal.com, Bob Bartley places first responsibility upon him for prolonging the Great Depression in a column discussing Jim Powell's new book Roosevelt's Folly (now on sale here at Laissez-Faire Books):

I prefer the explanation offered by Robert Mundell, another Nobel Prize economist and my own longtime guru. In his Nobel lecture he stressed the failure of the international monetary mechanism; World War I disrupted the gold standard, and leading central banks had not constructed a good alternative. The result was a shortage of world liquidity, setting off a chain reaction of bad policies around the globe.

From this viewpoint, I would lay the first blame not on FDR but on Herbert Hoover, who was after all on watch when disaster struck. Mr. Powell ably recounts Hoover's mistakes in signing the Smoot-Hawley Tariff, and in vainly trying to balance the budget by raising taxes in 1932. The Republican president boosted the top marginal rate to 63% from 25%; Roosevelt took it to 75% and then 91%.

Hoover also started many of the New Deal measures, for example the Federal Home Loan Bank System that melted down in the 1990-91 recession. Most importantly, he was the original proponent of the notion of spontaneous market failure. In my view the decisive turn was not FDR's electoral landslide, but Hoover's rejection of his first Treasury secretary, Andrew Mellon.

 
[Eugene Volokh, 10/20/2003 04:38:08 AM]
Campus military recruitment: The most recent flaps about the Solomon Amendment and campus military recruitment reminded me of an op-ed I wrote for the National Review Online last December. I thought I'd take the liberty of repeating the key parts here.

     Generally, I think that a person's sexual orientation is none of the government's business. There are decent pragmatic arguments for why the military is different; and these arguments might be right, though I'm not expert enough to tell. My suspicion is that they're mistaken, or at least aren't strong enough to justify excluding homosexuals. But in any event, let's stipulate for now that the military is wrong to discriminate against gays, and that patriotic gays should be fully welcomed by the military, rather than being told that they must conceal their preferences or risk discharge.

     So what? So the military is wrong -- why should law schools therefore exclude the military from recruiting? Many excluded the military before the government threatened to withdraw federal funds from them; and many faculty members would like to do this even now. But why?

     Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs. But surely this isn't the issue here. If the military changes its policy, it won't be because they're having a slightly harder time recruiting lawyers; the boycott just can't make that sort of practical difference. What's more, officers coming from (say) Yale Law School would likely be more tolerant of homosexuality than the average officer. As a purely practical matter, discouraging Yalies from joining the military may make the military slightly less gay-rights-friendly.

     So, of, course the boycott isn't really about practical questions -- it's about morality and symbolism. Even if our boycott will be completely ineffective, the theory goes, it's still the right thing to do: The military's recruitment policies are wrong, so we must refuse to help the military recruit.

     But the trouble with this approach, I think, is that it betrays a rather serious lack of perspective, a mental view of the relative importance of things. Let's assume the military's discriminatory practices are bad. But isn't the military also doing something good?

     The military, after all, protects all of us -- straight and gay -- from foreign attack. That's pretty good. All the rights we have, we have because members of the military have bled to protect them. That's pretty good. During World War II, the American military was racially segregated, which was bad. But it defeated Japan and helped defeat Hitler, which was good. Perspective is what tells us that the good the military does vastly exceeds the badness of its discriminatory practices.

     So as a moral matter, excluding the military isn't just remaining pure of complicity with discrimination. Rather, it's remaining pure by shunning the institution that protects our liberty, our equality, and our lives from forces far worse than "Don't Ask, Don't Tell" can ever be.

     As a matter of symbolism, the symbolic message isn't "We detest discrimination." Rather, it's "Discrimination is so bad that we must wash our hands of the military, in spite of all the good the military does." The boycotters have weighed the military in the balance, and they have found that on balance it should be excluded, rather than included. The symbolism of that exclusion is pretty clear.

     And this symbolic message, I think, is profoundly misguided. Equal treatment without regard to sexual orientation may be important, and it's quite proper for law schools to speak up in favor of such equal treatment. But what our soldiers, organized into a fighting force, do to defend us is far more important. If that's so, then you can't treat the military as a pariah, focusing on its small error and not on its great virtue.

     When I've made this argument before, some people have responded "Well, we wouldn't let a law firm interview if it discriminated against gays; why should we let the military do so?" Yup, that's right, the military, it's just another bigoted law firm. Jones & Smith, the U.S. Army, same difference. That's what the logic of antidiscrimination-above-all tells us.

     But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation -- yes, even despite what we may see as their vices -- than institutions that don't. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by.

 
[David Bernstein, 10/20/2003 04:33:37 AM]
Funerals in Israel: I attended my girlfriend's beloved mother's funeral in Israel last week. It was appalling. Like most Israelis, her parents were not affiliated with a synagogue. However, rabbis are necessarily on call to do funerals, as the presence of a (state-sanctioned, Orthodox) rabbi is required for Jewish funerals in Israel.

The service started at the cemetery in a semi-enclosed building. The rabbi ordered the men to one side, the women to the other. Close male relatives got to stand near the body (Jewish law dictates no casket in Israel, just a shroud), female relatives did not. My girlfriend's sister wanted to stand near her father and deceased mother during the ceremony, but she was forbidden. The rabbi mumbled a bunch of Hebrew prayers, providing no explanation whatsoever of the significance of the prayers, nor any eulogy for the deceased. In accordance with Jewish custom, the body was then walked by (male) pallbearers to the cemetery. There are reasons for this tradition, but the rabbi explained exactly nothing. The male relatives again were near the deceased, and the female relatives shunted off behind.

We eventually arrived at the grave site. The rabbi once again mumbled some Hebrew, and some Aramaic, prayers, again explaining precisely nothing to the mourners, and again not eulogizing the deceased. The rabbi gave the male relatives an opportunity to say the traditional Kaddish prayer, but studiously ignored the women relatives, who, I should add, are absolutely allowed (but not required) to say the prayer. The rabbi then gave the family an opportunity to say a eulogy, at precisely the worst time: when the family was most upset, the deceased having just been lowered into the grave. Fortunately, my girlfriend's sister managed to get out a few very nice words.

The time then came to bury the deceased. It's considered the greatest mitzvah (religious obligation/good deed) in Jewish tradition to help bury someone, because it's a good deed that cannot be repaid by the beneficiary. At American Jewish funerals, this is typically explained by the rabbi, and most mourners pick up the shovel and scoop some dirt in the grave as a sign of respect for the deceased and to do the mitzvah. At this funeral, the rabbi once again explained nothing, and only a few men who apparently knew the tradition took part in the mitzvah. I wanted to do it, but I was afraid with almost no one else doing it that perhaps there was some Sephardic or Israeli counter-tradition I wasn't aware of, but in retrospect I doubt it.

Apparently, the ceremony I saw was typical. I suspect that many rabbis in Israel don't explain anything because they want the public to be ignorant. They rely on this ignorance for their political power. For example, the Orthodox rabbinate insists on having a monopoly over marriages and funerals even though there is nothing in Jewish law that requires, or even suggests, the presence of a rabbi at these functions. In Jewish law and tradition, a rabbi has no greater authority or privileges than any other observant individual. For the Israeli rabbinate to demand the continuation of its monopoly makes no sense under Jewish law, a fact that Israelis of my acquaintance are not aware of. To take another example, many otherwise non-religious Israelis, especially Sephardim, go to "special" rabbis for blessings; there's one famous for helping infertility, one for serious illness, etc. Others go to kabbalists, who basically add religious mumbo-jumbo to traditional fortune-telling scams. The organized rabbinate should discourage such anti-Judaic nonsense, but as far as I can tell the situation is quite the opposite.

In Israel, then, the rabbinate functions something like, from what I've read, how the pre-Vatican II Catholic clergy often apparently functioned: as intermediaries seen to be necessary for ritual, who mumble ancient prayers and follow ancient customs that no one really understands, and that no one bothers to explain. (Though I suppose Israelis at least understand some ancient Hebrew, unlike Catholics who didn't know any Latin.) Anyway, the Catholics have democratized (and translated) their rituals, but still use priests as intermediaries, and that's fine for Catholics, but it's completely against Jewish tradition for rabbis to establish themselves in that role. Rabbis are supposed to be teachers, helping the laity understand and follow traditions, not obscuring what they are doing the way the rabbi at the funeral did. For example, I noticed that the rabbi followed at least one superstition that I felt dishonored the deceased, and in fact made me a little ill. Had the family been asked, I'm sure they would have told the rabbi not to do it, and adhering to such superstitions are in any event contrary to Jewish law.

The rabbi's obscurantism, adherence to superstition (or, more precisely, pagan superstitions), failure to learn or inquire about the deceased at all (he had to ask her name at the gravesite!), combined with the utter sexism of the service, and the lack of familial participation in it except at the rabbi's command, really distressed me. But it didn't stop there. Before and after the service, the rabbi, along with some religious relatives, kept telling my girlfriend what she may and may not do during the mourning period. No one bothered to give her any reasons or explanations for these commands, or to tell her which things are Jewish laws, which are Jewish customs, which are Israeli customs, which are Sephardic customs, and which are Iraqi Jewish (her background) customs. You're just supposed to do things because the rabbis tell you to. I went with her to two Israeli bookstores only to find that no books on mourning rituals--or much of anything else related to Judaism--are carried there. I had to call my father and ask him to send a book in English from the United States!

It's been almost a week, and I'm still angry about the funeral, and how alienating it was for my girlfriend, who, despite being a native Hebrew speaker, had absolutely no idea what was going on. Arggh! It's little wonder most Israelis want nothing to do with the religious establishment, or with organized Judaism more generally.

 
[David Bernstein, 10/20/2003 03:03:45 AM]
Nice Plug: Thanks to Glenn the Instagod for a nice plug for my book (scroll down).

Sunday, October 19, 2003

 
[Eugene Volokh, 10/19/2003 10:05:40 PM]
"Democrat [California A.G.] Lockyer Voted for Schwarzenegger":

Lockyer said he voted against the recall of Gov. Gray Davis, but marked his ballot in favor of the Republican actor. . . .

Lockyer is a liberal Democrat who was elected attorney general in 1998. Before that he spent 25 years in the California Legislature, where he was a frequent opponent of Republican Gov. Pete Wilson, who led Schwarzenegger's campaign. . . .

After his speech, Lockyer also took a swipe at Lt. Gov. Cruz Bustamante, the only major Democrat who ran as a replacement for Davis if the governor were recalled.

Asked why he didn't vote for his fellow Democrat, Lockyer said, "You know the people in your profession really well. You know who works hard and who doesn't. Cops know that about cops. Doctors know that about doctors. I know that about politicians."

Thanks to Patterico's Pontifications for the pointer.

 
[Eugene Volokh, 10/19/2003 09:31:32 PM]
Bumper sticker: Bill Wycoff passes along his candidate for "Best Bumper Sticker of the Year":

"If you can read this, thank a teacher....

If you are reading this in English, thank a soldier."

Not quite perfect -- even if the Nazis won World War II, or the Communists won the Cold War, chances are that they wouldn't have tried to change the language we speak. But I still appreciate the sentiment.

 
[Eugene Volokh, 10/19/2003 06:37:02 PM]
"Low Mortgage Rats!," reads a FoxNews advertisement.

 
[David Bernstein, 10/19/2003 04:23:41 PM]
Wonders Never Cease: Liberal Yale Law professor Owen Fiss, along with several dozen colleagues, supports freedom of association against an antidiscrimination law (via How Appealing). OK, the law in question is the Solomon Amendment, and the freedom of association claimed by Fiss is the right of the Yale faculty to discriminate against military recruiters. But it's a start.

Or is it? Anyone care to wager how many of the Yale professors involved in this lawsuit support the right of the Boy Scouts of America to discriminate against homosexuals, as the Supreme Court held in 2000? How about a Catholic university's right to deny funding to a gay student group, a right denied Georgetown University by the D.C. Court of Appeals in 1987? The Boy Scouts and Georgetown actually had easier cases, because the law in question absolutely forbad them to discriminate against homosexuals. Yale can evade the Solomon Amendment by declining federal funds, and the Supreme Court held in the Grove City College case that under such circumstances the First Amendment is not violated when universities are compelled to adhere to antidiscrimination regulations.

In my view, expressed in Chapter 11 of You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, the Grove City Court was wrong. Federal funding of universities is so pervasive and important to universities' ability to compete in the educational marketplace that regulations tied to such funding should be considered coercive and as potentially violative of the First Amendment as if the government regulated directly. The Solomon Amendment is thus unconstitutional as applied to private schools that want to assert their First Amendment right to expressive association, but so are many other federal antidiscrimination regulations tied to federal funding. This includes large chunks of Title IX and Title VI regulations, which interfere with the First amendment rights of universities. So I hope the Yale professors win their lawsuit, but I'm not sure they hope they do. In any event, the controversy over the Solomon Amendment is yet another example of how coercive "liberal" antidiscrimination policies often wind up being used in ways contrary to liberals' interests. And to hear Prof. Fiss rail against "forced association" is music to my ears.

 
[Randy Barnett, 10/19/2003 12:36:22 PM]
Howard Kurtz on Bush Hating: From today's Washington Post: A Dislike Unlike Any Other?

 
[Randy Barnett, 10/19/2003 09:59:29 AM]
"The taste of victory had gone sour": You might want to check out this post-war pessimism from the pages of Life Magazine, January 7th, 1946, courtesy of Jessica's Well. Here is an excerpt from the editorial introduction:

On Germany, which plunged the Continent into its misery, falls the blame for its own plight and the plight of all Europe. But if this winter proves worse even than the war years, blame will fall on the victor nations. Some Europeans blame Russia for callousness to misery in eastern Europe. But some also blame America because they expected so much more from her.

Here are a few excerpts from the article by LIFE correspondent, novelist John Dos Passos:

The troops returning home are worried. “We’ve lost the peace,” men tell you. “We can’t make it stick.” A tour of the beaten-up cities of Europe six months after victory is a mighty sobering experience for anyone. Europeans. Friend and foe alike, look you accusingly in the face and tell you how bitterly they are disappointed in you as an American. They cite the evolution of the word “liberation.” Before the Normandy landings it meant to be freed from the tyranny of the Nazis. Now it stands in the minds of the civilians for one thing, looting. . . .

When the British and American came the Viennese felt that at last they were in the hands of civilized people. But instead of coming in with a bold plan of relief and reconstruction we came in full of evasions and apologies. . . .

We have swept away Hitlerism, but a great many Europeans feel that the cure has been worse than the disease.

 
[Eugene Volokh, 10/19/2003 08:57:03 AM]
NAACP: Apropos the To Kill a Mockingbird discussion: Say, doesn't the "C" in NAACP stand for "colored"? Outrageous! Everyone knows that "colored" is a pejorative term nowadays; people would be very offended if you called them "colored." High schools should stop using texts that contain the organization's name.

 
[Eugene Volokh, 10/19/2003 08:07:12 AM]
Local NAACP chapter and newspaper vs. To Kill a Mockingbird: I agree with David's post below -- both the sense that it's often proper for high schools to choose material carefully, and with the conclusion that here their choice was just silly, to the point of self-parody. When an NAACP chapter objects to To Kill a Mockingbird, and a high school agrees, we've come to a strange, strange place, folks. Does the chapter think that the world would be a better place for blacks (or for anyone else) if high schools stopped putting on To Kill a Mockingbird? (Also, what does the national NAACP think about this? Local chapters might well have considerable autonomy, but it still seems to me the national group should speak up to make clear what its views are.)

     One item that makes this incident even more troubling: The Indianapolis Star endorsed the school's decision. Newspapers are in the word business. They ought to know the value of conveying unpleasant truths (here, the truths about how blacks were in fact viewed and addressed during that era). They ought to know the value of rearing children to understand these truths. They ought to know that giving in to the desire to avoid "counterproductive" "controversy" simply redefines the controversial more and more broadly, as "To Kill a Mockingbird" shifts from controversial to forbidden, and the next item on the list shifts from accepted to controversial. And they ought to know that a word isn't a magic incantation with inherent evil powers, but a device for conveying meaning that varies greatly with context, and that can't be understood, praised, or condemned apart from its context. Add the Star to the list of institutions that have lost their understanding of what words actually mean and do, and how we should deal with them.

UPDATE: This column provides a more detailed defense of the school's actions -- but, in my view, the defense remains unpersuasive. One example:

Olisa Humes is a black mom who backs Wiggins. "The issue is not even the use of the 'n' word," she says. "Students have all heard that word before, sad to say."

The real problem, she says, is that everybody pretends that the schools are wonderful and black kids are safe. Given recent events [i.e., recent racial incidents at the school], she disagrees.

She maintains it would be hypocritical for the school to present a play dealing with sensitive racial history when it can't tackle current concerns.

Hypocritical? What's hypocritical about highlighting the evils of racism when there are racist incidents still happening? Seems to me especially appropriate, not hypocritical. See also this story for further unpersuasive defenses of what the school did:

[Local NAACP chapter president Gwendolyn] Wiggins said she supports the story's message, but she doesn't like the way it is delivered, particularly when it is delivered to high school students.

"Don't we have some positive things going on with black people that we can highlight now? Find those plays and use them," she said.

So that's the problem with To Kill a Mockingbird -- that it's not "positive" enough? (Thanks to Joanne Jacobs for the pointer to this story.) Sad.

FURTHER UPDATE: For a much better approach to this, see this:

TO KILL A MOCKINGBIRD opens the theatre season at Eastern Oklahoma State College, Oct. 9, 10, & 13, 2003, at 7:30 p.m. in Mitchell Auditorium on the Wilburton campus, according to Ruth Askew Brelsford, artistic director. . . . The Eastern Psycho Club/NAACP are sponsoring the Friday night performance as a fund-raiser. An "informance" is planned for Tuesday, Oct. 7, at 11 a.m. in Mitchell Auditorium where a panel of students and guests will discuss the topic "Race Relations: Then and Now." The award-winning video MIGHTY TIMES: The Story of Rosa Parks will be shown. The public is cordially invited.

 
[David Bernstein, 10/19/2003 07:59:24 AM]
Beantown Book Tour: My book tour comes to the Boston area this week, with appearances Monday at BU Law School at 1:00 pm, Harvard Law at 2:30, and Northeastern Law at 6:00. Tuesday, I will be at BC Law at noon.

On Thursday I will be speaking at University of Richmond Law School at noon.

All events are free and open to the public.

 
[David Bernstein, 10/19/2003 04:38:49 AM]
KillingTo Kill a Mockingbird: An Indianapolis High School has cancelled a production of To Kill a Mockingbird after African American parents and the NAACP protested that the play contains the "N" word. "The NAACP insisted the word 'nigger,' while used for positive effect by the writers, would be offensive to many in a mixed crowd of high school families. Goshorn, weighing audience sensitivity along with the youthfulness of the cast, asked the play's publisher for permission to edit around the word. The answer was no."

My general view on such controversies is that given the cruelty of children, and the incompetence of many teachers, it's not the worst thing in the world to avoid teaching offensive material in the classroom. Why teach The Merchant of Venice to junior high school kids, if Julius Caesar will work just as well, without spreading the anti-Semitism or making Jewish kids suffer the taunts of classmates, as often happens when Merchant is taught? Merchant can surely be taught in a sensitive way, exploring along with the literary merits of the play the history of European anti-Semitism, the scapegoating of Jews, etc., but many teachers simply aren't up to it.

To Kill a Mockingbird is a different story entirely, especially when the play is being presented at the high school level, and mainly it's adult reaction, not the reaction of the kids involved, that is of concern. While Merchant is in fact anti-Semitic (though Shylock is not entirely unsympathetic), Mockingbird is one of the great anti-racist works of alltime. I read it in eighth grade and again in ninth grade and don't remember any of my classmates having any reaction except the anti-racist reaction the author intended. If the fear is that parents wouldn't understand the underlying message and would focus on the use of the "n word," a short explanation of the underlying message of the play by the theater teacher should have solved the problem.

The cancellation was especially unfortunate because the high school actors had already rehearsed for several weeks. The message that is being sent to these kids is that hypersensitive individuals can stifle even productive, progressive exploration of racial issues because of fear and ignorance. Unfortunately, it's a lesson that they are likely to relearn when they go to our p.c. universities, and when they encounter what passes for racial and sexual harassment law in their future workplaces.

 
[David Bernstein, 10/19/2003 04:14:19 AM]
More on Palestinian Ignorance of Israel: A reader writes:

I spent a week in Israel ... with a group of editorial writers. There is no shortage of people eager to talk with a busload of American editorial writers, as you can imagine. We had a meeting with Arafat, no less, and with a number of mid-level PA officials, governors and mayors and the like. Not Arafat or his immediate circle, but just about everybody else we met lower down, was staggeringly ignorant. They knew almost nothing about Israel, completely mischaracterized its reasons for acting as it did and for all you could tell, might never have spoken to an Israeli in their lives.

They'd tell us things like, "We are suffering under the cruelest occupation in history" or "Israel is using all its military power against us" neither of which is true even now, when things are much worse than they were then.

I dunno, maybe it sounds better in Arabic and it is just a manner of speaking, but even so not having the cultural knowledge to realize that they are discredting themselves with people who do not speak in that manner is another kind of ignorance.

And these were people of some prominence, one would hope better informed that the average Palestinian.

But just about every Israeli we met, Jewish or Arab, from Simon Peres down to the hotel clerks, was eager to talk politics and could lay out quite accurately for you the central claims of the Palestinian arguments even when they strongly disagreed with them.

The PLO strategy to keep the Palestinian people poor and ignorant so they would be easy to manipulate has succeeded brilliantly, with catastrophic effects.

To make matters worse, Israel since Oslo has pursued a top-down strategy, hoping peace with the Palestinians can be imposed by PA leaders from above. Meanwhile, Israel has completely ignored the Palestinian public. From what I read, I gather that many, perhaps most, Palestinians see Israel's nascent security wall, roadblocks, and other harsh security measures purely as collective punishment, having no real concept that Israel is reacting as best it can to suicide murders. It could not do anything but good, for Israel to occasionally use its helicopters and F-16s to drop Arabic leaflets on Palestinian cities explaining the Israeli position, and noting that the Palestinian public was much better off in every way before the Second Intifada began. Sample proposed title of leaflet: Want an end to the roadblocks? Stop suicide murders.

An Arabic-language radio station targeted at the Palestinians, especially young Palestinians attracted (or who would be attracted if they knew about it) to Israel's thriving youth culture, would help as well.

Are any Palestinians willing to listen? There seem to be plenty of Palestinians willing to "collaborate" with Israel, which is how Israel is able to target top Hamas and Jihad officials. I'm sure many of them have venal motives, but I suspect that at least part of the motivation for some informers is abhorrence of these groups, including fear and loathing of a potential Islamic theocracy. And enough Palestinians have had contact with Israel through employment, the media, and other things to recognize the truth of much of what Israel would have to say.