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Friday, April 19, 2002


HURRAH! The 25 multiple-choice questions for my Free Speech Law exam are written. I was shooting for writing 30, but I just couldn't bring myself to do it. Maybe other professors find this easier, but for me writing these questions is like pulling teeth. (I don't reuse the questions from past years, since I give a 48-hour take-home exam, so it's impossible to keep the questions secret.) The advantage, of course, is that it lets me have only one big essay question on the exam -- and grading essays is even more unpleasant than writing the questions.

     Exams: People hate taking them, people hate writing them, people hate grading them. Has a nice sort of balance to it.


WHAT WOULD JESUS PLAY? Click here for some interesting products. Presented for your consideration -- not being a Catholic, or for that matter, a Christian, I have no informed opinion on this.


AUDIO OF THE MICKEY KAUS / GLENN REYNOLDS PANEL: The audio of the Mickey Kaus / Glenn Reynolds panel that I organized here at UCLA is now up. Click on the "Part 1" or "Part 2" on the "Hear Audio from the presentation:" line. Sorry for the delay getting it put up, but I'm pretty sure there's nothing really time-sensitive there.


CYBER-PSYCHIC POWERS: A colleague of mine just reminded me about this site. Amazing!


AS CONDEMNED BY ALAN DERSHOWITZ: The question of the Justices' views on free speech came up again last night, so I thought I'd say some more about the study I did on the subject. So as not to bury the lead, let me start with my results, listing the Justices from the one who has the broadest view of free speech (Kennedy) to the one who has the narrowest (Breyer):
2 (tie)Thomas61.4%
4 (tie)Stevens55.4%

     How did I get these numbers? The last appointment to the Supreme Court, Justice Breyer's, was made 7 Terms ago, in 1994. During those last 7 Terms (and excluding the not yet completed current one), the Court has decided 40 cases involving the freedom of speech (including the freedom of expressive association). Here's what I did with these cases:

     1. For each case, I counted 1 point each time a Justice voted for the free speech claimant, and 0 points each time the Justice voted against.
     2. I then adjusted up by 1/3 whenever the Justice wrote or joined an opinion that was more speech-protective than the majority (or plurality) or than the lead dissent, and down by 1/3 whenever the Justice wrote or joined a similarly more speech-restrictive opinion.
     3. For the cases that involved two or three separate issues, I split the points accordingly.
     4. I then divided the result by the number of cases, and multiplied by 100 to produce a percentage. (Recognizing that the 1/3 adjustments are somewhat arbitrary, I also repeated the entire process with adjustments of 40 percent and of 1/6 in place of the 1/3 figure.)

     I deliberately looked only at the bottom line. I avoided injecting my views about whether the Justices were right or wrong, or subdividing the cases along categories (for example, government-as-sovereign vs. government-as-funder, sexually themed speech vs. political speech) that would ultimately just reflect my own biases. And though the result might be somewhat affected by accidental circumstances -- such as the particular mix of cases that the Court has been facing -- I think the number of cases is large enough to mitigate such effects, especially when one treats scores that were very close (differing by less than one case's worth, or 3 percent) as ties. You can find my raw data in the Appendix to this article.

     I originally published these results (with what was then only 6 Terms' worth of data) in a New York Times op-ed. I'm proud to say that Alan Dershowitz promptly condemned the piece the very next morning on CBS News as "not [being] an accurate article" (without reading the underlying data, I strongly suspect); you can see his critique and my response here. You can also see the criticism by University of Chicago law school professor Cass Sunstein and my response here.


CONSERVATIVES UNDERMINING MARRIAGE? Jonathan Rauch, whom I admire greatly, argues that conservative opposition to gay marriage is undermining marriage, rather than strengthening it. I'm not an expert on marriage and social norms, so I can't be sure, but I think he's quite likely correct:
Those who worry about the example gays would set by marrying should be much more worried about the example gays are already setting by not marrying. . . . At a time when marriage needs all the support and participation it can get, homosexuals are pleading to move beyond cohabitation. We want the licenses, the vows, the rings, the honeymoons, the anniversaries, the benefits, and, yes, the responsibilities and the routines. And who is telling us to just shack up instead? Self-styled friends of matrimony. Someday conservatives will look back and wonder why they undermined marriage in an effort to keep homosexuals out.

UPDATE: Duncan Frissell replies:

It seems to me that Trads are not encouraging lewd cohabitation by homosexuals but rather a choice of either celibacy or going Straight (the Anne Heche option). I've never observed a Trad advocating lewd cohabitation. I've observed them doing it but not advocating it.

I think Jonathan Rauch responds to this in his column: Homosexuality, he points out, is here to stay in today's America; so even if traditionalists want homosexuals to remain celibate or go straight, what their policies are actually encouraging (whether this is their goal or not) is cohabitation without marriage. Moreover, some traditionalists, recognizing public support for same-sex relationships, are endorsing compromises that Jonathan calls "ABM" ("Anything But Marriage"), which give rights to same-sex cohabitants but insist on not calling the results "marriage." But I should really just let Jonathan's column speak for itself here; I do think it deals with this pretty thoroughly.

Thursday, April 18, 2002


As a professor of classics who expects his first child in four weeks, I consider myself well qualified to reflect on your blog's question about classical names. First, I should note that the name "Homer" may in fact be making a transition from hillbilly to hoity-toity -- a number of movie star types have recently named their sons Homer, including most recently Anne Heche. Another actress recently named her son Milo, although I bet without realizing that he was a gang leader and murderer of the Late Roman Republic, albeit on the republican side. I've long noticed that classically derived African-American names are often Roman, e.g. football star Aeneas Williams, boxer Evander Holyfield, and names like Calpurnia, Marcus, Julius, whereas Spanish names are often Greek, e.g. actress Penelope Cruz. The French also favor the Greek names: Achille, Ovide, Telemaque.

I am amazed that people are rehabilitating Homer, especially after The Simpsons, but, who knows, maybe that makes it chic in their eyes. Milo does have questionable antecedents -- both a gang leader and involved with some screwy phantom tollbooth thing. As to black American names, I was amused to learn that Oklahoma Rep. J.C. Watts (who I understand is quite an admirable fellow) is actually named Julius Caesar; no wonder that as a politician he decided to abbreviate it!

     I've long been quite interested in why some names are cool and some are not. Maybe it's because my family's moving from Russia to America -- on balance, a spectacularly good choice -- changed my name from Yevgeniy, a rather romantic-sounding name in Russian (cf. Yevgeniy Onegin, the protagonist of what is probably the greatest Russian poem ever), to Eugene, which, let's face it, is pretty dweeby. On the other hand, I did end up with one of the few names that comes attached to its own scientific discipline, albeit one that's in rather ill repute.

     I close by returning to my correspondent:
Once I asked a college classmate whether she was named Seneca after the Roman philosopher/playwright or the Indian tribe. She told me she was named after the brand of apple juice.


EQUAL TREATMENT WITHOUT REGARD TO RACE: In 1996 and 1998, I was privileged to be involved in helping draft and promote anti-race-preference initiatives in California (Prop. 209, the California Civil Rights Initiative) and Washington State (I-200, the Washington State Civil Rights Act). Our basic principle was simple: The government should treat people alike, with no regard to race, ethnicity, or gender. (Click here for my UCLA Law Review article describing the California Civil Rights Initiative and what it does.)

     This made me particularly delighted to see the U.S. Court of Appeals for the Ninth Circuit decision Tuesday in Parents Involved in Community Schools v. Seattle School Dist., No. 1. (Federal courts can and do enforce state law in certain circumstances.) The School District's school assignment policy considered race as one of the factors in deciding which students would be allowed into certain oversubscribed schools. The goal was the worthy one of racial integration, but it was served by treating children differently based on their race. Sometimes white students benefited by being given an edge in getting into the school they preferred, and sometimes nonwhite students benefited; but in either case, some students were helped and others hurt because of their race.

     This, Judge Diarmuid O'Scannlain (a Bush, Sr. appointee) concluded -- and Judge Susan Graber (a Clinton appointee) agreed in her concurrence -- violated the plain language of the Washington State Civil Rights Act, which generally barred discrimination or preferential treatment based on race, ethnicity, or sex in public employment, education, or contracting. The state's purposes may be laudable, but the law barred the state from serving even these worthy purposes through classifying people by race.

     There's been plenty of race discrimination in our nation's past, and there remains some in the present. But the solution, in the view of Washington and California voters -- and I share their view -- is for the government to stop discriminating, and not try to remedy one form of race discrimination with another form, no matter how well-motivated. The public schools can't teach our children to treat people equally without regard to race while at the same time telling them "Oh, you can't get into the school you prefer, partly because of your race." That's why the voters mandated that Washington and California public education, employment, and contracting be color-blind -- and the Ninth Circuit has correctly implemented the voters' will.


W.H. AUDEN: One of my favorites, "The Hidden Law" by W.H. Auden:

The Hidden Law does not deny
Our laws of probability,
But takes the atom and the star
And human beings as they are,
And answers nothing when we lie.

It is the only reason why
No government can codify,
And verbal definitions mar
The Hidden Law.

Its utter patience will not try
To stop us if we want to die:
When we escape It in a car,
When we forget It in a bar,
These are the ways we're punished by
The Hidden Law.

Wednesday, April 17, 2002


MATH PUZZLE: My father, a mathematician by training, brought up my brother and me on these little problems, and I still love them. Here's one from his stable:

     There are 23 basketball teams playing in a single-elimination tournament (i.e., one loss and you're out). Of course, with 23 teams you have to give some byes in some rounds, which is to say let some team skip the round: For instance, you might let 1 team skip the first round, which will leave you with 12 teams in the next, and will eventually require you to give at least one bye later one. But nothing says that only one team must skip the first round -- you could also give 3 byes in the first round, which will leave you with 13 teams in the second round, or 5 byes or any other odd number. (It might be a bit unfair to the teams that don't get the byes, but you've got to do this if you have 23 teams, or any other number that's not an integer power of 2.)

     So there are obviously many different ways to set up the tournament, by giving a different number of byes in each round. The questions: What's the smallest number of games in this tournament? What's the largest number of games?

     For the answer, click here.


WEEKLY STANDARD CORRECTION: The Weekly Standard and Matt Labash deserve credit for correcting certain errors in part of their traffic enforcement series, a series praised by the excellent InstaPundit and OverLawyered, among others. I alerted the Standard to these errors after I read and checked part of their discussion of speeding and safety; and they did the right thing and promptly made some corrections.

     Still, it seems to me that this incident reminds us how careful we readers need to be. Even scrupulously honest writers -- and I should stress again that the author's correspondence with me on this very much impressed me with his commitment to setting the record straight -- can err, and these mistakes can easily be propagated.

     Here is a side-by-side comparison of the original paragraphs and the revised paragraphs. (I've omitted some sentences that were unchanged or only slightly changed.) Again, you can see the entire revised version here (note the "Correction Appended, 4/17/02" line at the bottom); I don't believe the original is on the Standard site any more, though I might be mistaken. I have set in bold some of the more important changes, and included a few of my remarks in italics.

In general, fatal crashes have declined every year since 1992, and injury crashes have declined every year since 1988.[W]hen considering the fatality rate per 100 million vehicle miles traveled, that number has declined or held steady every year since 1977. And since 1988, injury rates per 100 million vehicle miles traveled have declined or held steady every year except two (in 1994 and 1995).
     [Fatal and injury crashes have at times fallen and at times increased since 1992 and 1998, though the rate per 100 million vehicle miles is indeed the better measure -- EV.]
[Several unchanged or slightly changed sentences omitted -- EV.]
NHTSA's data show that only 21 percent of drivers involved in fatal crashes had previous speeding convictions, while 57.3 percent had no driving convictions of any kind. This appears to buttress photo radar opponents' argument that speeding doesn't kill people, bad driving does.NHTSA's data show that only 21 percent of drivers involved in fatal crashes had racked up speeding convictions within 3 years of the date of their crash, while 57.3 percent had no driving convictions over the same period. This appears to buttress photo radar opponents' argument that speeding doesn't kill people, bad driving does.
Among the 'Related Factors for Drivers Involved in Fatal Crashes,' speeding and red-light running aren't even the league leaders. 'Failure to keep in proper lane or running off the road' is by far the top accident-generator, listed as a factor in 30 percent of all fatal accidents. Inattentiveness (6.9 percent) and operating a vehicle in a careless or negligent manner (5.3 percent) both rank higher than red-light running, which is grouped with failing to obey traffic signals, signs, or officers, at a scant 5 percent. In the same table, speeding ranks a distant second to the leader, listed as a factor in 19.7 percent of fatal crashes, though that figure -- not even one-fifth of all fatal accidents -- covers not just those who are exceeding the speed limit, but also those who are 'driving too fast for conditions' (a problem photo radar doesn't address).Among the 'Related Factors for Drivers Involved in Fatal Crashes,' speeding and red-light running aren't even the league leaders. NHTSA records factors in such a way that more than one can be listed for any given driver, meaning that the categories listed add up to 146.9 percent of all factors, instead of 100 percent. But after considering that 36.5 percent of drivers had no factors reported, or that NHTSA's 'Related Factors' table doesn't account for drunk drivers (NHTSA says elsewhere that 38 percent of fatal crashes are 'alcohol related') 'failure to keep in proper lane or running off the road' is by far the most frequent related factor for drivers involved in fatal crashes. Speeding ranks a distant second at 19.7 percent. Though that figure accounts for not even one-fifth of the possible factors listed, even that is padded since it covers not just those who are exceeding the speed limit, but also those who are 'driving too fast for conditions' (a problem photo radar doesn't address).
     [The factor count discussion makes for a more tentative conclusion, and I think rightly tentati e, since one can't deduce from the data what fraction of fatal accidents involve speeding -- EV.]
While it's certainly more dangerous to have an accident at higher speed, NHTSA's data suggest speed alone doesn't account for most accidents. If it did, why would over one fourth of all crashes (26.1 percent) occur when cars are going less than 30 mph and 77 percent less than 50 mph? By contrast, driving 60 mph or higher accounts for a paltry 8.1 percent of all accidents.
While it's certainly more dangerous to have an accident at higher speed (52.5 percent of fatal accidents occur in 55 mph or higher speed zones), NHTSA's data suggest speed alone doesn't account for most accidents. If it did, why would over one fourth of all crashes (26.1 percent) occur in speed limit zones of 30 mph or less, while 77 percent happen in 50 mph zones or less? By contrast, 60 mph or higher zones account for a paltry 8.1 percent of all accidents.

     The original source for these statistics is Traffic Safety Facts 1999; you can find the relevant data in tables 1, 2, 29, 64, and 65. The author clearly read this document, but must have misread some of the tables (which can happen to us all).

     Now the original errors were not necessarily fatal to the article's argument about speed and safety, though I think they did undermine the claim somewhat. Consider in particular the facts that (1) the speeding records on which the article relies were limited to tickets gotten over the past three years, and that (2) though only a "paltry" 8.1% of all accidents were in 60-or-higher zones, 52.5% of all fatal accidents were in 55-or-higher zones. Also, at least some states, such as California (though I'm not sure how many others), let people avoid convictions by choosing traffic school, which can be done once every eighteen months -- this would undermine the value of the "speeding convictions within three years" statistic even further. Perhaps the article is right that the dangers of speeding are overrated; but I can't tell for sure from the data it presents.

     Moreover, none of this directly bears on any of the other claims in the series, which I haven't had the time to check. I'm not a traffic safety expert, and just got interested in the subject because I wrote a Wall Street Journal op-ed defending traffic cameras against civil liberties charges (as opposed to the public safety and public choice points on which the Standard piece primarily focused). I hope to be able to look at the studies underlying the other claims eventually, but probably not for quite a while.

     But all this is a reminder that errors happen, even in magazine feature pieces that are obviously the results of extensive research (and, again, that are written by writers whose honesty is proved by their willingness to correct errors when they are uncovered -- not all writers, I'm afraid, are that good). Errors are if anything even more likely in daily newspapers, where a reporter often hurriedly cobbles together an article by relying on quotes from experts rather than by checking the sources himself.

     Unfortunately, since we can't check everything we read, we have to rely in some measure on the word of others. Still, we can at least take these claims with a huge grain of salt, and acknowledge that even after reading such an article, we know very little about the facts -- at best we have been alerted that there's a serious voice claiming that the facts are a particular way.

     The Standard series has raised the possibility that there are serious problems with the way traffic enforcement cameras operate, and I much appreciate this information. But until I check the underlying studies for myself, or at least see considerably more articles written by people who check the studies for themselves, I'm going to remain cautious about the claims on both sides.


SPEAKING OF NAMES: Why is Jesus a common name in Spanish-language cultures, but to my knowledge no other European-language cultures? (I don't know about Portuguese-language cultures; perhaps they're like the Spanish-language.)

     It can't just be Christianity, or even Catholicism: I've never heard of Frenchmen, Italians, Poles, or Irishmen with that name. There's nothing theologically wrong with either approach, I'm sure -- but why is it that one huge part of Christendom embraces the name Jesus for its sons, while another rejects it almost entirely?


ISRAELIS AND PALESTINIANS: Check out the piece by Anne Applebaum (whose foreign policy writing for Slate I've long admired) on Colin Powell's Mideast Disaster. I'm not remotely an expert on the Israeli-Palestinian conflict -- the main thing I know about it is that I'm tremendously grateful to my parents for taking my brother and me to America when they left Russia in 1975, and not into the middle of a standing war zone -- but I found the Applebaum article to be very persuasive.


KPCC LISTENERS: To see my post on the virtual child porn decision -- and the link to the Supreme Court case -- click here; or, if that doesn't work, search for "DIGITAL CHILD PORN" on this page.

Tuesday, April 16, 2002


QUESTION: Why are Homer, Virgil, and Horace generally seen as hick names these days in the U.S.? (Yes, yes, I know this is bitterly unfair, my own name is hardly the coolest, but facts are facts.) These are all classical poets -- why aren't university professors and big-city intellectual snobs calling their children that?

BONUS QUESTION: Why no Ovids or Catulluses? What, aren't they good enough?


OVERHEARD AT DINNER: From my friend Max Boot: "Melt the ice; eat the moose; drill the oil; get it over with."


MOTORCYCLE HELMET LAWS: This isn't a particularly topical Web log; have you noticed? Well, that's one of the beauties (and flaws) of Web logs, as opposed to op-eds: No need for a news hook.

     In any case, the perennial subject of motorcycle helmets came up over dinner a few days ago, largely focused on the Cost To Society issue. If someone crashes his motorcycle and seriously injures himself, that may well cost the taxpayers money, since many riders are un- or underinsured for bodily injuries; and even if the rider is insured, the accident will cost money to the other insured drivers who are pooling their risk with this fellow. (Of course, it's possible that helmets may actually *increase* net health care payouts, since perhaps they will lead to fewer deaths but more serious injuries -- they'd then be good for riders, but not for taxpayers. But let's assume for now, as is plausible, that wearing helmets decreases serious injuries.)

     A thoroughgoing libertarian might say that the problem is society's willingness to forcibly extract tax money in order to take care of emergency medical costs. Still, whether that position is right or wrong, the fact remains that society does take care of accident victims. Even the thoroughgoing libertarians have to ask what to do in light of that reality.

     But there's no reason why helmet laws are the only solution to the Cost To Taxpayers (or Fellowed Policyholders) problem. If we're really serious about protecting innocent taxpayers *and* motorcyclists' liberty, the state can just set up two kinds of motorcycle license plates: An H series (e.g., H123456) for people who promise to ride wearing helmets, and an N series (e.g., N123456) for people who reserve the right to ride without.

     To get an N license plate, you have to show proof of insurance for helmetless riding -- presumably that kind of insurance will be expensive to get, but that's fair given that your health care will be expensive, too. But if you get an N plate then you'll never be ticketed for riding helmetless.

     On the other hand, if you have an H plate, and are seen riding without a helmet, you'll get a ticket for reneging on your assurance that you'll always wear a helmet -- and your insurance company will know about this, and will probably sensibly hike your rates to reflect your actions. Not a perfect libertarian system, but one that provides more liberty than the current system, and more protection for taxpayers than if there were no helmet laws at all.

THE PROBLEM: But there's one problem that this doesn't resolve (besides the obvious paternalistic concerns about protecting people from their own folly, which have been debated elsewhere and thus won't be discussed further here). Helmetless riding imposes another burden on other drivers: If I hit a motorcyclist and kill him, I'm going to understandably feel tremendously guilty. And if he died because he wasn't wearing a helmet, that won't make me feel much better -- a bit less bad, perhaps, but not hugely so. This is a reality of human nature, and probably a fortunate one.

     By driving helmetless (or seat-belt-less), we thus impose a significant moral externality on other drivers. Even if they don't have to pay our medical costs, either as taxpayers or as litigants (for instance, if driving helmetless is held to waive your legal claims against drivers who injure you), they have to live with the horror of having inadvertently killed someone.

     Now this might well not be reason enough to interfere with motorcyclists' freedom. Perhaps these sorts of moral externalities shouldn't count, either for thoroughgoing libertarians, or for "presumptive libertarians" (people who believe that liberty of action shouldn't be restricted without a very good reason). But it is this, and not the argument about cost to taxpayers, that should be at the heart of the debate.


RADIO: If you're in L.A., you can probably hear me on KPCC-FM (89.3) from 9 to 9:30 am Wednesday (the 17th), and then repeated on the same day from 7 to 7:30 pm; I'll be talking about the Court's virtual child pornography decision. I stress, however, the "probably" -- in the news biz, there's always a risk of preemption.


RUBE SLIPPERY GOLDBERG: Here's a cartoon that I commissioned for my Slippery Slopes article, drawn by UCLA law student Eric Kim (click here for a larger and more legible version):

Camel (A) sticks his nose under the tent (B), which collapses, driving the thin end of the wedge (C) to cause monkey to open floodgates (D), letting water flow down the slippery slope (E) to irrigate acorn (F) which grows into oak (G). The argument is irrefutable.

     OK, most of the piece is more serious than this.


SLIPPERY SLOPES: My "The Mechanisms of the Slippery Slope" article was just accepted by the Harvard Law Review, and should be published in several months. The article is ridiculously long (I'll try to shorten it, but I'm not sure quite what to cut), but I'm told that it's fairly readable -- and it's pretty low on legalese. If you're interested, the HTML version is here, and a PDF version is here. The Introduction should also provide a short summary for you.


DIGITAL CHILD PORNOGRAPHY: The Supreme Court just struck down the ban on digital child pornography. I won't summarize the case here, since there are plenty of press accounts, and since you can just read the opinions, which are fairly clearly written. A few general thoughts:

  • The majority was Kennedy plus the liberals (Stevens, Souter, Ginsburg, Breyer); Thomas also concurred in the judgment. This sort of line-up shouldn't be a surprise: As I've noted in my New York Times and UCLA Law Review articles, Kennedy has the broadest view of free speech among the Justices, and Souter and Thomas are tied for the second. The (mild) surprise is actually that Breyer joined the majority -- Breyer, a Clinton appointee, has the narrowest view of free speech of any Justice.

  • The case doesn't change much. Real child pornography -- material made using real children -- is still constitutionally unprotected. Virtual child pornography, which by definition doesn't use real children, should have been protected under the Supreme Court's New York v. Ferber (1982) precedent, which the Court reaffirmed. The case is more significant because it doesn't change the law than because it does.

  • The most important function of this case is probably to remind legislators, lower courts, and citizens that the First Amendment protects even offensive, likely not very valuable, and in some measure indirectly harmful speech -- and that the Supreme Court remains committed to enforcing the First Amendment even in such distasteful contexts.

Monday, April 15, 2002


THE FIVE SENSES: Why is "tasty" good but "smelly" bad? Why is "touchy" completely different, and "touchy-feely" different still? And why aren't there "seey" and "heary"?


CHEESE: Had a fantastic dinner last night at a restaurant called Artisanal in New York; the place has a remarkable collection of cheeses, and we ended up trying nine different (and mostly very unusual) ones.

     We particularly liked the Blue D'Auvergne, a mild, creamy blue; Brescianella Stagionata, a very flavorful mild cheese; and what was simply called Camembert but was head and shoulders above most commercially available Camemberts that I've run across -- I am told that this is because this one was raw rather than pasteurized. In any case, if you ever run across a good specialty cheese store, I highly recommend that you try these. Also very good: Serena, a very soft Spanish cheese, and Primadonna, a sweet, hard Dutch cheese.

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