[Eugene Volokh, 3:37 PM]
JOURNALIST'S GUIDE TO GUN POLICY SCHOLARS AND SECOND AMENDMENT SCHOLARS: I've just done a long overdue update of this site, which helps journalists find "experts -- liberals, moderates, and conservatives -- whose research has led them to be skeptical of gun control." Obviously, the site is focused on one side of the debate, but I think journalists can find that helpful: They know (or should know!) they need to talk to people on both sides, and they can use this site to find gun control skeptics and some other sites to find gun control enthusiasts. And the people I have listed here are really first-rate scholars.

     If you're a journalist who writes about these matters, check out the site and perhaps bookmark it. If you know journalists who write about this, please feel free to pass the URL along to them. And, if you'd like, please pop a link to this site on yours. I do not recommend, though, that non-journalists make a habit of contacting people on this list, simply because these are busy people who were kind enough to volunteer their time for one purpose (responding to media questions) but perhaps not for others.

 
[Eugene Volokh, 1:26 PM]
"I DO NOT KNOW ANYONE AT STANFORD WHO OWNS A GUN." So writes a Stanford prof in a letter that Sasha quotes below. As I've mentioned before, these sorts of remarks remind me of people who say "I don't know anyone who's a gay." Yeah, right: You don't know anyone who has told you he's gay. And homosexuals are 2% of the population (averaging men and women), while gun owners are roughly 20% (40-45% all of households contain a gun, but a smaller fraction of people actually own one themselves). Professor, I'm pretty sure you know quite a few people who own guns, even at Stanford.

     The "I don't know any [gays / gun owners / affirmative action opponents / etc.]" phenomenon, I suspect, tells us less about the actual prevalence of these groups in a particular circle, and more about how tolerant the circle is with respect to those groups (or, to be more precise, how tolerant the groups see the circle as being). I never knew that two of my colleagues were interested in guns until I put up a target from the shooting range outside my office door; that's not the sort of thing people talk much about in my circle unless they know they're talking to someone who's gun-friendly. All the more reason, I say, to come out of the closet.

 
[Eugene Volokh, 8:42 PM]
SPEAKING OF MISREPORTING: Cnsnews.com today says that "Professor Eugene Volokh, who teaches firearms law atthe UCLA Law School, believes [David] Kopel is wrong in arguing that firearms clauses should be added to state constitutions." I don't believe such a thing; I've never said such a thing; I actually wish that all state constitutions be amended to secure an individual right to bear arms. (Right now, 44 state constitutions -- all except California, Iowa, Maryland, Minnesota, New Jersey, and New York -- include provisions that secure a right to bear arms, most of them in ways that make quite clear that the right is individual and aimed in part at self-defense against crime.)

     I don't know why my views were characterized this way; the article quotes my testimony on the Second Amendment, but there I said only that the Second Amendment should be understood as securing an individual right to bear arms -- I never said that *state* constitutional rights to bear arms are unwise or unnecessary. Don't believe everything you read, in print or on the Internet.

 
[Eugene Volokh, 6:55 PM]
WRITING ABOUT COPYRIGHT: So I'm working on the Copyright section of the Cyberspace Law for Non-Lawyers book I'm cowriting, and am badly in need of a procrastination break. So here are a few Copyright Myths, for your delectation:

• MYTH: To copyright something, you need to register it with the Copyright Office . . . send it in a letter to yourself . . . attach a copyright notice . . . cut your finger and drop three drops of blood in it while spitting over your left shoulder.
  FACT: To copyright something, you need to write it down. Pretty much anything that's written down, whether in print or on the computer is protected by copyright. Registering it with the Copyright Office will get you some more money if someone infringes and you sue them, but it's not strictly necessary to get copyright protection.



• MYTH: If you copy someone else's work, and include nine differences (the so-called "nine differences rule"), then you're not infringing.
  FACT: So long as you copy a substantial amount of expression -- granted, a very vague test -- from someone else, you may be an infringer even if you add lots of stuff of your own. When someone makes a movie based using the plot and dialogue of someone else's book, there'll be ninety-nine thousand differences there, but it's still an infringement if the moviemaker doesn't get permission.



• MYTH: If some work becomes famous enough, it becomes part of the public domain, and loses copyright protection.
  FACT: If some work becomes famous enough, that probably means that its owners become rich enough that they have lots of money to sue people who copy it (consider, for instance, Disney). While trademarks may sometimes lose protection if they become used promiscuously, copyrighted works remain protected no matter how publicly they're distributed. The whole point of copyright law is to protect works even when they are broadly published.



• MYTH: When something is protected by copyright, it is "copywritten."
  FACT: Copyrighted, folks, copyrighted.

 
[Eugene Volokh, 5:32 PM]
CARRY-ON: Scott Shuger's Slate column rightly condemns the government's pointless airline carry-on bans. Shuger correctly points out that the ban in its current form is pointless, because it necessarily leaves off lots of things that are every bit as dangerous as tweezers or nail clippers (e.g., glasses, which can be broken into knife-like glass shards). Shuger's bottom-line:

Yes, there should still be a list of banned items, but the ban should stop at this bright line: The item is not only potentially dangerous but also dangerous to more than one person at a time and obviously so. Even though a pair of glasses can be used to perforate someone's trachea, a crowd of passengers would take some convincing of this, and even if a would-be hijacker used them this way on one person, he couldn't then hold off a planeload of people with them. On this approach, automatic weapons would still be out, but tweezers would be back in.

     As with the proverbial generals who are always fighting the last war, the people who promulgated these airline regulations miss the point: No-one could hijack a plane with box-cutters again today, after September 11, much less with tweezers. In fact, saying that we'll ban these sorts of items is actually undermining our national security, by sending exactly the wrong message -- the message that "the Rules will protect you from every risk," rather than the message that "if someone tries to highjack a plane with a corkscrew, you know what to do."

     And if we're at a point where we still need to keep tweezers off airplanes, then we're going to lose -- and we'll deserve to.

MORE ON THIS TOPIC: Two buzzards have gotten old, and figure that they'll use an airplane to fly south for the winter. But even buzzards don't like airplane food, so they bring two dead armadilloes for the road. At the ticket counter, the attendant asks them: "Would you like us to check that?" "No," says one of the buzzards, "they're carrion."

 
[Eugene Volokh, 4:55 PM]
THOUGHT FOR THE DAY: Meat is murder -- and murder tastes great.

ANOTHER THOUGHT, though this one is not original: "Vegetables aren't food. Vegetables are what food eats."

 
[Eugene Volokh, 4:52 PM]
SIGN SEEN AT THE NORTHWESTERN LAW LIBRARY: "Please be quiet -- some students are studying." I love the "some."

 
[Eugene Volokh, 4:29 PM]
SAUDI GOVERNMENT PAYING SUICIDE BOMBERS? Fox News says so:

The Saudi Arabian government paid more than $5,000 each to families of suicide bombers and other Palestinians killed in the terror campaign against Israel, according to documents obtained by Fox News.

The documents, discovered by Israeli intelligence officers, contain a list of 102 deceased Palestinians whose families have each been paid 20,000 Saudi riyals -- the equivalent of $5,340 -- by the Saudi Interior Ministry.

The names on the list were of suicide bombers and Palestinian commanders who had been killed in attacks against Israeli targets. It included the names of some of the highest-profile bombers who have been killed in recent attacks, among them children and women.

The documents, if genuine, contradict the Saudi government�s consistent claim that it does not directly pay suicide bombers� families. The Saudis have repeatedly insisted the money they send the Palestinians goes to rebuilding areas damaged or destroyed by Israeli forces operating in the West Bank and Gaza Strip. . . .

 
[Eugene Volokh, 4:23 PM]
L'AFFAIRE BELLESILES: The History News Network has the latest stuff on the scandal, including an index to all their articles on the subject.

     By the way, as many of you know, academics get far fewer brownie points for exposing fraud by others than they get for just doing their own research. Nor is this just because of a guild loyalty ethic, though that is in some measure part of it. Rather, it's just that coming up with great new ideas is understandably seen as flashier and more impressive than pointing out errors in others' work.

     And yet this sort of self-policing is vital to the health and credibility of the academy. Those who took the laboring oar in uncovering this scandal -- chiefly Jim Lindgren here at the Northwestern law school, but also Clayton Cramer, a self-taught and institutionally unaffiliated scholar who was a voice crying in the wilderness for a long time -- deserve much applause for embarking on this usually thankless task.

 
[Eugene Volokh, 4:17 PM]
FORCE OF HABIT: In L.A., I have InstaPundit set up as my Netscape "Home" button; and now that I'm in the Chicago for the day and using a computer that Northwestern's law library graciously provided me, I keep hitting the button by force of habit and wondering why the library Web site comes up instead. It'll be good to be back home again.

 
[Eugene Volokh, 3:16 PM]
MORE ON REPORTER MISQUOTES: My friend Ann Salisbury, after reading my post on misquotes, points me to another amusing misquote story, this one involving the Wichita Eagle misquoting Barbara Bush. Don't believe everything you read . . . .

 
[Eugene Volokh, 3:04 PM]
THE L.A. TIMES ON ISRAEL: This letter to the L.A. Times Reader's Representative was written by my friend Michael Klein, a liberal with whom I often disagree; but while I haven't been following the Israeli-Palestinian mess as closely as I should have, his remarks seem to me to be very apt.

Dear Los Angeles Times,

      I am continuously unhappy with the mideast coverage by the Los Angeles Times.

      Today must be a slow day. I have only TWO major issues with your coverage, although if I spent the time, I could probably find more.


      1. Bethlehem

      Below is a link to an article from the Jerusalem Post on the situation in Bethlehem which reports that 3 Armenian monks, held hostage by the Palestinian gunmen inside Bethlehem's Church of the Nativity, fled the church and were rescued by Israeli soldiers, after holding aloft a white cloth banner with the words "Please help."

      One of the monks, Narkiss Korasian, told reporters: "They stole everything, they opened the doors one by one and stole everything... they stole our prayer books and four [gold] crosses... they didn't leave anything." Israeli officials quoted the monks as saying that Palestinian gunmen had also begun beating and attacking clergymen.

      Why didn't T. Christian Miller cover this story today in his piece "Palestinians at Nativity Church Demand Meeting with Arafat?" (4/26/02)

      It is certainly a relevant and important story. A key fact, much in dispute has been whether or not the gunmen are welcome guests or unwelcome intruders in the Church of the Nativity. If they are beating the monks and stealing their religious artifacts, that answers that question, doesn't it?

      And in general, I would think that their respect or lack thereof for Christian religious rights would demonstrate their attitude towards Israelis and non-Muslims in general. That is a very relevant point.

      Of course given that the Palestinians kill "collaborators" vigilante style, the fact that the monk would say anything is pretty amazing.

      But while Mr. Miller seems to cover everything else, somehow he missed this. Why would that be? Maybe he just didn't hear about it.

      And of course, I know that I join you in waiting to see when the UN will commence an investigation into Palestinian human rights violations in their actions against Christians at the Church of the Nativity -- followed by the European Union. Do you think I should hold my breath?


      2. The Palestinians have a long history of show trials, convicting and sentencing terrorists and then releasing them quietly a few weeks or months later.

      Why doesn't Tracy Wilkinson, in her story, "Palestinians Convict 4 in Assassination" (4/26/02) cover this important, highly relevant issue of revolving door justice? It is crucial context for evaluating the Israeli demand for an Israeli trial of these people accused of killing an Israeli government minister.

      Indeed, why not a story in general about Palestinian justice, or the lack thereof?


      In general, why are you continuously whitewashing the Palestinians? What happened to the old Los Angeles Times, the one that built the reputation for excellence in journalism?

 
[Eugene Volokh, 2:09 PM]
SIC 'EM: Best of the Web today takes a justified dig at Jeremy Hayes, who spoke out against a proposed dress code for Iowa State University student senate members:

"[Hayes] said the bill was sexist and gender-biased," the campus paper reports. "He dressed in a skirt, blouse and heeled shoes at the senate meeting to protest the implementation of the bill. 'This bill is discriminatory,' Hayes said. 'It's ethnocentric based on a Western, middle-class white ordeal [sic]."

     Sounds mostly fair enough -- a man indicted by his own foolish words -- but I wonder about the "ordeal" part. Yes, it would be priceless if indeed the objector showed such a lack of knowledge of Freshman (or, let's face it, 6th-grade) English; but it's just as likely, unfortunately, that the error was the newspaper reporter's, not Hayes's.

     The sad fact is that reporters mangle quotes all the time -- and it's the quoted person who ends up looking like a fool. A colleague of mine recently said that he's had to train himself to talk to reporters very slowly and deliberately -- "like I talk to my mother," he said, "who's deaf but doesn't know it." If your reaction to a quote is "I can't believe he said something that stupid," maybe it's because he didn't really say something that stupid.

     Here's my latest piece of evidence on this: Early this month, I was quoted in the Ventura County Star about a free speech controversy. A marina operator wanted to exclude a boat owner because his boat had sexually themed language written on it, and I said that this wasn't a First Amendment violation, because the boat owner was a private actor, and the First Amendment only covers government actors. This came out as "'The marina operator's right to hypocrisy takes precedent over what the man's boat says,' Volokh said" (emphasis added).

     Now first, I highly doubt that I compared the operator's right against the person's statement -- that just wouldn't be a logical comparison. I strongly suspect that I said something about the marina operator's right taking precedence over the man's desire to say something, or interest in saying something. Maybe I misspoke, but I doubt it.

     Second, things don't take "precedent" over other things -- they take "precedence." Here, I'm quite sure I said it right; and while the two words sound similar, surely the reporter should have realized which one was correct (or at least checked it with me).

     Third, I said "his property." The marina operator's right to his property.

 
[Eugene Volokh, 1:35 PM]
ANOTHER THOUGHT ON SCHOOL SHOOTINGS: What are the possible causes for the advent of the mass school shootings that we've had over roughly the past 5 years in the U.S. -- and now outside the U.S. as well?

     It can't be guns; the gun ownership rate today (40-45% of all households) is roughly the same as it has been for decades -- possibly a titch lower, but not by much. Nor are guns any easier for teenagers to get than before. On the contrary, they're probably a bit harder to get, but again not by much.

     It's true that if teenagers couldn't get their hands on guns, it would be harder for them (though not impossible) to do such massive damage. I don't think that it's possible to stop someone who is bent on planning mass murder and suicide from getting guns, especially in a nation where there are 200-250 million guns. But it's true that if somehow this miracle could be worked, the problem of mass school shootings would diminish (though other problems might increase). Still, the availability of guns doesn't tell us why we've had mass school shootings in recent years, but not in the years before.

     For the same reason, I don't think the answer can be violence in the media, or the other usual suspects. We just haven't seen any vast increases in violence in the media that would explain the sudden spike in the mass school shootings.

     I know of only one conjecture that is even slightly plausibly, and I stress that it is only a conjecture: What changed since the time of the first school shooting is that there's been a lot of media coverage of school shootings. Teenagers keenly resent their own insignificance; when they see someone being in the news -- even for committing an atrocity -- some of them begin to envy this person's fame. And some tiny fraction of those may even decide, against all reason, self-preservation, and decency to take the same path. The first mass school shooting was an essentially random event, but the media coverage that it triggered dramatically increased the probability of subsequent events of the same variety.

     I am certainly not arguing that the media should be barred from covering school shootings. I am not even sure that as an ethical matter, the media should moderate their coverage.

     But I think that if we're looking for a causal explanation for the advent of mass school shootings, the one that so far best fits the evidence -- the only one that shows a correlation, which is surely not sufficient for showing causation but is largely necessary to show it -- is this one.

 
[Eugene Volokh, 1:19 PM]
A THOUGHT ON SCHOOL SHOOTINGS: Mass school shootings are of course horrible crimes. But let's keep in mind that in the U.S., there are over 10,000 homicides a year; and (this is just based on my recollection, so I might be mistaken) on average fewer than 10 deaths in mass school shootings a year -- less than 0.1% of the total. I suspect that the ratio in Germany, even given their lower population, lower homicide rate, and unusually large death toll in this one shooting, is likewise very small.

     Naturally, we should try to do something about such crime. But we certainly shouldn't try to decide national crime policy -- whether gun control policy, crime control policy more broadly, or for that matter gun decontrol, as some are suggesting -- based on such extraordinarily unrepresentative events. Such tail-wagging-the-dog decisions are recipes for huge policy mistakes.

 
[Eugene Volokh, 1:03 PM]
WHY NOT REGULATE GUNS LIKE CARS? As I mentioned before, there are lots of interesting, plausible arguments in the gun control debates -- and some that seem appealing but on close viewing prove to be just plain unsound.

      One of the latter kind is "Why not regulate guns like cars?"  The implicit argument here is "Why not require licenses, registration, tests, and so on for gun possession?" See, for instance, Chicago's Million Moms March on Mother's Day, PR Newswire, Apr. 27, 2000, quoting Million March organizer Donna Dees-Thomases as saying "We want Congress to create a meaningful gun policy in this country that treats guns like cars"; Partnership for Prevention's New Report to Congress Recommends Gun Owner Licensing and Gun Registration, U.S. Newswire, Mar. 24, 2000, quoting Handgun Control, Inc. president Michael Barnes as saying "For years now, we have been calling on Congress to treat guns like cars by a system of licensing and registration."

       This argument is odd because cars are basically regulated as follows (I rely below on California law, but to my knowledge the rules are similar throughout the country):

     (1) No federal licensing or registration.

     (2) Any person may use a car on his own private property without any license or registration. See, e.g., California Vehicle Code �� 360, 12500 (driver's license required for driving on "highways," defined as places that are "publicly maintained and open to the use of the public for purposes of vehicular travel"); California Vehicle Code � 4000 (same as to registration).

     (3) Any adult may get a license to use a car in public places by passing a fairly simple test that virtually everyone can pass.

     This is pretty much how many gun rights advocates would like to see guns regulated: No need to register or get a license to have a gun at home, and a simple, routine test through which any law-abiding citizen can get a state license to carry a gun in public. Gun control advocates would in reality prefer a much more onerous system of regulations for guns than for cars.

     Of course, one can certainly argue that guns should be regulated more heavily than cars; thoughtful gun control advocates do indeed do this.  But then one should candidly admit that one is demanding specially burdensome regulation for guns -- and not claim to be "merely asking that guns be regulated like cars."

     Incidentally, I don't claim any great originality on these points: Others have made them before me, see, e.g., David Kopel's Taking It to the Streets, Reason, Nov. 1999. But some things are worth repeating . . . .

 
[Eugene Volokh, 12:47 PM]
LITTLE-KNOWN FACT: If an infinite number of rednecks shot an infinite number of shotguns at an infinite number of stop signs, they would eventually reproduce the works of Shakespeare, in Braille.

 
[Eugene Volokh, 9:37 AM]
OUT OF TOWN: I'll be leaving shortly for Chicago, to give a talk on my The Mechanisms of the Slippery Slope paper at Northwestern Law School. Blog posts will probably be scarce until then, unless I find myself around a convenient computer and in dire need of a reason to procrastinate.

 
[Eugene Volokh, 9:28 AM]
BELLESILES UPDATE: I had the following forwarded to me, and it seems to be legit:

April 25, 2002

Statement Regarding Investigation of Michael Bellesiles

On February 7, Emory University announced that its History Department and Michael Bellesiles had jointly initiated a formal process to address allegations of misconduct in research concerning Professor Bellesiles' book, Arming America: The Origins of a National Gun Culture. That internal inquiry is now complete, and based on it, Robert Paul, Dean of Emory College, concluded that further investigation would be warranted by an independent committee of distinguished scholars from outside Emory University. That investigative committee's work is now underway and should be concluded no later than summer's end. During the course of the investigation the committee's work will remain confidential. Professor Bellesiles has concurred that the outcome of the investigation may be made public.

I am very happy to hear this -- academic work must be held to the highest standards of reliability, and neither willful fraud nor gross negligence should go uninvestigated and uncorrected. As I mentioned earlier, I was one of those who originally fell for Bellesiles' assertions, and my own research was the worse for it -- and of course this happened to plenty of others as well. The academy must take whatever steps are needed to decrease the chances that this will happen again.

 
[Eugene Volokh, 2:12 PM]
SPEAKING OF APPLES AND EDUCATION: Ribstone Pippin has a theory regarding the changes in education between 1960 and now: "[I]t is only since 1960 that the Federal Government blundered into the picture, increasingly involving itself both in both funding and setting education policy." Interesting, and I'd like to believe that this is part of the problem, since as a matter of first principles I'm not wild about much of a federal role in education. But I think the theory would need a considerable amount of supporting evidence to be really persuasive; and I've too often found that my intuitive reactions in these areas weren't quite correct.

UPDATE: Ribstone Pippin has some new and more detailed comments on this, which are much worth considering.

 
[Eugene Volokh, 2:03 PM]
APPLES AND ORANGES: My key disagreement with Max Power's The Sound and Fury, though (see below), has to do with the phrase "comparing apples to oranges," which is usually used to mean "comparing two things that can't properly be compared."

     We compare apples and oranges all the time! We compare them by price, by how much we like the taste, by likely sweetness and ripeness, by how well they'll go in a tasty fruit cocktail, and so on. In fact, every time we go to the store and buy apples rather than oranges -- or vice versa -- we are necessarily (if implicitly) comparing apples and oranges.

     I hereby move that the phrase be changed to reflect two items that really are radically dissimilar -- say, "comparing apples and democracy," or "comparing oranges and the multiplication table." All in favor, say "aye"; all opposed, say "nay"; motion carried. It's Now Official; use them in good health.

     (I realize that Max Power might have, deliberately or not, used "comparing apples to oranges" to indeed refer to comparing the slightly-difficult-to-compare -- after all, the comparison was between 1959-60 education statistics and 1999-2000 education statistics -- rather than the cannot-sensibly-be-compared. Given this, "comparing apples to oranges" may in fact have been the right phrase in context. But I hereby pronounce this an Unimportant Detail.)

 
[Eugene Volokh, 12:18 PM]
SPECIAL EDUCATION SPENDING: I got quite a bit of response to the education stastics post. One recurring question had to do with special education spending (see, e.g., the excellent The Sound and Fury, which often does signify something) -- just how large is it, and (I infer this from the question) might some possible increase in such spending explain the huge increase in total educational expenditures?

    Apparently, the extra spending (beyond that required for the average child) on special ed students amounts to a bit over 10%. Now this is based on just one Department of Education-funded report, and I stress again that I Am Not An Education Policy Expert; perhaps the report is in error, or I'm missing something important. But the numbers seem plausible, and the source appears fairly credible. The 10% figure is a calculation from the data in the report -- I take the $5918 extra expenditure per special ed student, divide by the $12639 total regular and special ed expenditure per special ed student, and multiply by the 22% of the total primary and secondary education budget that goes to all expenditures for special ed students, see p. v of the report.

     The report doesn't tell us what the number was back in 1959-60. It does say that the relative magnitude of extra spending per special ed student was about the same in 1999-2000 and 1968-69 (p. 8), but that a higher fraction of students get special ed now (13%) than in 1977-78 (8.5%) -- this just highlights the difficulties of making casual inferences about what was done 40 years ago.

     But even if in 1959-60 schools spent no extra money on educating special ed students, and today they spend 10% of their budget on this extra spending, we still have the non-special-ed spending increasing more than 3-fold since 1959-60 in constant dollars, and increasing by over 20% as a fraction of Gross Domestic Product. And my point therefore remains: Given that this increase has not seemingly correlated with any great improvement in non-special-ed educational quality -- if anything, the perception is that it has correlated with the opposite -- we should be skeptical of claims that spending still more money on education is likely to materially improve matters.

ON THE OTHER HAND: The Sound and Fury's other point -- which was also echoed in a couple of e-mails I got, especially a very nicely put one from reader Curt Wilson -- does suggest an important confounding factor: The schools in 1960 were almost certainly getting a huge subsidy from the fact that smart, well-educated women were often barred from more lucrative professions, and thus ended up being schoolteachers. Today those women can and do become doctors, lawyers, and the like, which I think is great. But the downside is that there's a much smaller pool (not nonexistent, of course, but still much smaller) of first-rate people who are willing to become schoolteachers.

     How that should be figured into the analysis, I don't know. It might suggest that we should be spending more for education than we used to in 1959-60; but of course we are spending more, much more. It might also suggest that we should spend even more for education than we are today -- but I'm not sure to what extent this is indeed so.

     But in any event, I think my main point remains: Perhaps extra money will mean better results; but that's far from clear, especially since the last 40 years of increasing spending have not produced those results. The casual assumption, which I often hear, that "we're spending too little on education" or "if we want to improve education, we should invest more money in it," strikes me as worth being skeptical about.

 
[Eugene Volokh, 11:38 AM]
LINKS: Several people asked for links to the Dershowitz and Sunstein responses to my The Justices and Free Speech study; my article quoted them but didn't link to them. Unfortunately, to my knowledge these responses are not available for free on the Web (how primitive! how, well, twentieth century!). The Sunstein response is apparently available for money in the New York Times archives; I don't think the Dershowitz transcript is anywhere online.

     One of the great perks of being a law professor is free LEXIS access, so I've gotten spoiled by that. Though I try to include links whenever I know something is available for free online, sometimes such links just aren't possible.

 
[Eugene Volokh, 8:29 PM]
TEN PERCENT? Last week, the question of what fraction of the population are homosexuals came up in a conversation (I have very statistically oriented conversations!), and someone bandied about the number 10%. My recollection was that this number had been debunked, and apparently this is indeed so.

     According to a 1994 study (see N.Y. Times, 10/18/94, p. B4), about 3% of U.S. men aged 18 to 59 and 1.5% of U.S. women in the same age range label themselves as homosexual. I have not read the study myself, and certainly can't fully vouch for it, but it matches the other reports that I've heard, and to my knowledge is seen as quite credible. This of course measures current self-identification; past conduct is a different matter -- there, 16% of the men and 6% of the women said that they had had at least one same-sex partner in the entirety of their past adulthoods.

     All this should be taken with a grain of salt, because of the usual uncertainties and measurement difficulties. But the one thing that's pretty clear is that the 10% estimate has been discredited, at least if one measures the status based on one's general orientation (which I think is the more useful question), rather than the existence of at least one past homosexual experience.

     Of course, all this says nothing about how gays and lesbians should be treated. I think that, whether they're 10% of the population or 2% (aggregated among men and women), their orientation is their business and not mine -- others think that same-sex relations are sinful, and would think that whether 10% or 2% of the population engage in them. But while this number isn't tremendously important, either morally or generally even practically, one might as well know the best guess as to the right number, rather than relying on the wrong one.

 
[Eugene Volokh, 7:55 PM]
PASSOVER IN THE NEWS: Just got this in the e-mail from a friend. I'm generally hesitant to post such items, partly because I'd on balance prefer to get the author's permission, but this is so good that I can't resist. (My view as a copyright prof is that such posting doesn't violate copyright law, both under a fair use theory and an implied license theory, but I'll spare you the details; still, if you're the author and would like this taken down, just let me know and I'll gladly do so.)

If the Passover Story Were Reported by The New York Times or CNN
by Daniel P. Waxman

     The cycle of violence between the Jews and the Egyptians continues with no end in sight in Egypt. After eight previous plagues that have destroyed the Egyptian infrastructure and disrupted the lives of ordinary Egyptian citizens, the Jews launched a new offensive this week in the form of the plague of darkness.

     Western journalists were particularly enraged by this plague. "It is simply impossible to report when you can't see an inch in front of you," complained a frustrated Andrea Koppel of CNN. "I have heard from my reliable Egyptian contacts that in the midst of the blanket of blackness, the Jews were annihilating thousands of Egyptians. Their word is solid enough evidence for me."

     While the Jews contend that the plagues are justified given the harsh slavery imposed upon them by the Egyptians, Pharaoh, the Egyptian leader, rebuts this claim. "If only the plagues would let up, there would be no slavery. We just want to live plague-free. It is the right of every society."

     Saeb Erekat, an Egyptian spokesperson, complains that slavery is justifiable given the Jews' superior weaponry supplied to them by the superpower God.

     The Europeans are particularly enraged by the latest Jewish offensive. "The Jewish aggression must cease if there is to be peace in the region. The Jews should go back to slavery for the good of the rest of the world," stated an angry French President Jacques Chirac.

     Even several Jews agree. Adam Shapiro, a Jew, has barricaded himself within Pharaoh's chambers to protect Pharaoh from what is feared will be the next plague, the death of the firstborn. Mr. Shapiro claims that while slavery is not necessarily a good thing, it is the product of the plagues and when the plagues end, so will the slavery. "The Jews have gone too far with plagues such as locusts and epidemic which have virtually destroyed the Egyptian economy," Mr. Shapiro laments. "The Egyptians are really a very nice people and Pharaoh is kind of huggable once you get to know him," gushes Shapiro.

     The United States is demanding that Moses and Aaron, the Jewish leaders, continue to negotiate with Pharaoh. While Moses points out that Pharaoh had made promise after promise to free the Jewish people only to immediately break them and thereafter impose harsher and harsher slavery, Richard Boucher of the State Department assails the latest offensive. "Pharaoh is not in complete control of the taskmasters," Mr. Boucher states. "The Jews must return to the negotiating table and will accomplish nothing through these plagues."

     The latest round of violence comes in the face of a bold new Saudi peace overture. If only the Jews will give up their language, change their names to Egyptian names and cease having male children, the Arab nations will incline toward peace with them, Saudi Crown Prince Abdullah declared.

 
[Eugene Volokh, 5:51 PM]
RACIAL PRIVACY INITIATIVE: When an editorial in the UC Berkeley student newspaper (not an op-ed, but an editorial!) endorses a ban on California government entities asking people about their race -- an initiative spearheaded by Ward Connerly, the leader of California's 1996 anti-race-preference campaign -- you know how far the color-blindness movement has come, and how tired people are of "state-enforced racial classification."

 
[Eugene Volokh, 4:02 PM]
MORE ABOUT MY BROTHER'S LITTLE PROJECT: Jonathan Last's Weekly Standard article mentions various items that indirectly helped lead the author to rethink his discomfort about guns -- and, lo and behold, there's the Harvard Law School gun club that Sasha founded (behind the Mt. Holyoke Second Amendment Sisters, but, hey, girls with guns always seem cooler than boys with guns). Just a small influence, I admit, but I think in such matters every little thing counts.

     Of course I suppose that Weekly Standard writers are probably easier to convince on this than most journalists . . . .

 
[Eugene Volokh, 3:02 PM]
WHO'S ANGRY NOW? Mickey Kaus and Andrew Sullivan rightly condemn today's appalling Paul Krugman column, entitled "The Angry People," and I won't repeat their powerful criticisms here. What struck me most about this, though, is that the piece was so focused on condemning anger, not just in the headline (which I assume wasn't written by Krugman himself, since headlines generally aren't written by the authors), but throughout: The term is used eight times in the piece. Here's a representative sample:

The result [of an election] is a stunning victory for the hard right. It's by and large a tolerant, open-minded country; but there is a hard core, maybe 20 percent of the electorate, that is deeply angry even in good times. And owing to the peculiarities of the electoral system, this right-wing minority prevails even though more people actually cast their votes for the moderate left.

     If all this sounds like a post-mortem on the Gore campaign in 2000, that's intentional. But I'm actually describing Sunday's shocking election in France . . . .

     So the core Bush supporters were supposedly "deeply angry," an "angry right [that] rails against godless liberals." But what adjective should we use to describe those who complain about "the hard right [which] has essentially been co-opted by the Republican Party -- or maybe it's the other way around"? What about those who suggest that Tom DeLay and John Ashcroft have views that "are, in their way, as extreme as Mr. Le Pen's"? (Both of these quotes are, of course, from later on in Krugman's article itself.)

     Are these people also "deeply angry"? Are they "rail[ing] against" their enemies? Are they some "hard core" of the "angry [left]"? Are they emblematic of "a lot of irrational anger lurking just below the surface of politics as usual"? Oh, no, they are just sweet, calm reason personified -- not like those dangerous, angry conservatives.

     This is a classic (and classically dishonest) rhetorical ploy. (1) Hide your substantive disagreement with the other side behind seemingly value-neutral condemnations of behavior or temperament, such as "anger." (2) Never, ever acknowledge that perhaps those same attributes might apply to people on your side. (3) And in the process avoid having to ask the tough question whether the pejoratively mentioned character trait is really so bad, or whether maybe sometimes anger at the Clinton Administration and some elements of the left might have been as justified as Krugman's obvious anger at the Bush Administration and some elements of the right.

 
[Eugene Volokh, 2:11 PM]
MORE "BUSHISMS": Slate's "Bushisms" column -- billed as "The president's accidental wit and wisdom" and apparently specializing in supposed malapropisms and misstatements by the President -- has the following as the Bushism of the Day: "'This foreign policy stuff is a little frustrating.' As quoted by the New York Daily News, April 23, 2002."

     Sure enough, the Daily News article does say:

Not long ago, President Bush was musing with an old friend about one of the few drawbacks of a job he still finds exhilarating most days.

"This foreign policy stuff," he confided, "is a little frustrating."

Ironically, that conversation occurred before a reluctant Bush was sucked into the Middle East quagmire -- a belated engagement that some advisers concede has resulted in the worst two foreign policy weeks of his presidency.

But the article doesn't say whether the line was said seriously or was a facetious understatement (e.g., "This blogging stuff is a little time-consuming"). Was this really "accidental wit and wisdom" (i.e., a flub that we cognoscenti should knowingly mock the President for)? Or was this the intentional variety?

     And even if one thinks that Bush was being dead serious, might it have been helpful to point out that this was said before the latest Middle East developments, when the President's foreign policy plate did indeed seem less frustrating than it does right now?

     Look, if a politician says something that deserves mockery, by all means we should mock him. But it seems to me that such derision should be focused on finding actually mockworthy comments -- rather than on casting aspersions on remarks that would probably have been unremarkable from any other politician.

 
[Eugene Volokh, 1:47 PM]
THE COSTS OF POLITICAL CORRECTNESS, EUROPEAN STYLE: Slate's Anne Applebaum, who's certainly no fan of LePen, argues that LePen's success stems partly from the French political establishment's refusal to seriously discuss immigration and the growth of the EU:

[M]any French do object to their large North African immigrant population, some 5 million people. Rightly or wrongly, many believe the North Africans have failed to assimilate. Rightly or wrongly, many believe they take jobs away from natives. Rightly or wrongly, many link their presence to rising crime. Rightly or wrongly -- in the wake of Sept. 11 -- many believe Islamic fundamentalism in France is growing. It may well be, as defenders of French immigration policy contend, that none of these statements is true and that immigration is slowing down in any case. But if French politicians make it unacceptable to discuss such things in the mainstream, then the discussion will take place on the far-right fringes.

I'm generally no great fan of the term "political correctness," which is often used quite imprecisely to just generally refer to views on the Left that one disagrees with and wants to deride. But Applebaum's argument is a good example of the true vice of true political correctness: the tendency of knee-jerk accusations of racism and jingoism to drive out honest, thoughtful debate in the center.

 
[Eugene Volokh, 9:04 AM]
THE MOMMY TRACK: Monday's CENTER-RIGHT op-ed (click here to subscribe to this free e-mail distribution list) was Jonathan Rauch's excellent "America Can't Be Mommy in the Middle East". Highly recommended.

 
[Eugene Volokh, 1:04 AM]
GOOGLE, SCIENTOLOGY, FREE SPEECH, AND COPYRIGHT: Check out this very interesting story:

Google, the company behind the popular Web search engine, has been playing a complicated game recently that involves the Church of Scientology and a controversial copyright law.

Legal experts say the episode highlights problems with the law that can make companies or individuals liable for linking to sites they do not control. And it has turned Google, whose business is built around a database of two billion Web pages, into a quiet campaigner for the freedom to link.

The journalist wisely chose to interview David Post, a first-rate cyberlaw professor and a coauthor of mine (with Larry Lessig) on a forthcoming book about Cyberspace Law for Non-Lawyers.

 
[Eugene Volokh, 12:52 AM]
"SPEAKING LIES TO POWER": Just read Matt Welch's excellent "Speaking Lies to Power" (subtitle: "Ralph Nader fudges the truth just like a real politician") in Reason Magazine. Highly recommended.

 
[Eugene Volokh, 12:07 AM]
EDUCATION SPENDING: Friday over lunch the question of education spending came up again; and I was reminded of an interesting statistical question -- what is the ratio, adjusted for inflation, of per-pupil spending in, say, 1959-60, compared to 1999-2000?

     Whenever I ask this, someone nearly always says "Oh, spending back then was much greater than it is now" (again, adjusting for inflation). Well, if you go to the 2001 Digest of Education Statistics, table 167, you see the answer: Per pupil spending, in 2000-01 dollars, was $2235 in 1959-60, and $7591 in 1999-2000. Spending has risen by a factor of 3.3 in the last 40 years.

     Ah, some might say, but even if spending has increased, school staffing has gotten worse -- aren't there more pupils per teacher now than before? Well, no. Table 65 tells us that in 1960 the pupil-teacher ratio was 25.8 in public schools; in 2000, the ratio was 16.0.

     Still, one might reason, surely we spend less a fraction of our nation's wealth on education now than we did back then. Table 29 suggests otherwise: The U.S. spent 3.3% of the Gross Domestic Product on primary and secondary education in 1959, and 4.4% in 1999.

     But that money must all be frittered away on administration rather than instruction, at least as compared to 1960. Well, table 164 suggests that this isn't so: The ratio of instructional expenses to all current expenses in 1959 was 67.7%; in 1998, it was 61.7%, somewhat less but not tremendously so. I know of no evidence that the definition of "instructional expenses" has changed materially since then, though if some of you do know of such evidence, please let me know.

     What does this all mean about educational policy? By itself, not much; and I hasten to stress that I'm not an educational policy expert, and don't know how to cure what ails American education. But it does suggest to me that we should take with a grain of salt the casual assumption that the problems of American education are caused by underfunding, or can be cured by funding increases.

 
[Eugene Volokh, 4:06 PM]
FOR THE LAWYERS: From 2 Green Bag 2nd 125, here's my take on what issue-spotter exams should be like -- the "Hum a Few Bar Exam":

Contracts: You couldn't get what you wanted, but you got what you needed instead. You sue for breach of warranty. What is the measure of damages?

Environmental Law: Big wheel keeps on turning; Proud Mary keeps on burning (or "boining"). What is the maximum level of particulate emissions Proud Mary may put out? Is an Environmental Impact Statement required?

Evidence: Can my admitting that I shot the sheriff be used as prior bad act evidence in my trial for shooting the deputy? If I want to introduce my prior denial of shooting the deputy, will I be barred by the hearsay rule?

Family Law: I've got a wife and kids in Baltimore, Jack -- I went out for a ride and I never went back. How much alimony and child support do I owe? Am I within reach of the long-arm statute?

Criminal Law: I'm an ordinary guy, burning down the house. That's right -- don't want to hurt nobody. People on their way to work, and baby what do you expect? What sentence would I get under the Federal Guidelines for my arson conviction?

Critical Legal Studies: I am the egg man. I am the walrus. Deconstruct. Explain relevance to ruling-class influences in farm subsidies and the law of the sea. Should it be "I am the egg person"? Goo goo goo joob.

 
[Eugene Volokh, 9:45 PM]
PUSHKIN: Something recently reminded me of four great lines from Pushkin's "Yevgeniy Onegin." James Falen has an excellent translation:

We've all received an education
In something somehow, have we not?
So thank the Lord that in this nation
A little learning means a lot.

 
[Eugene Volokh, 5:04 PM]
BELLESILES UPDATE: I just got a link to the latest article on l'affaire Bellesiles, this one in Friday's Emory Wheel. When the newspaper at the faculty member's own university says that "academic con[s]ensus has shifted largely against Professor of History Michael Bellesiles' book on guns in early America," that's pretty telling.

 
[Eugene Volokh, 4:43 PM]
AOL SUED FOR ALLOWING ANTI-ISLAMIC SPEECH: Max Power also reminds us about the lawsuit (Noah v. AOL) that accuses AOL of tolerating anti-Muslim speech on its discussion groups. What about the First Amendment, you might ask? How can the government (either through the legislature or the judiciary) punish a service provider for allowing anti-religious speech?

     Well, welcome to the wonderful world of hostile environment law, one of the broadest and vaguest speech restrictions out there today. If you're interested in this, check out my Free Speech vs. Workplace Harassment Law Web site (basically an edited and jazzed-up version of about seven law review articles I've written on the subject); and as to lawsuits based on cyberspace speech, including lawsuits against service providers, see in particular Freedom of Speech, Cyberspace, Harassment Law, and the Clinton Administration.

     I do believe that hostile environment harassment law is constitutional in many cases. But in many other cases, it poses very serious First Amendment problems. I expect that the Noah v. AOL lawsuit will be dismissed -- but unfortunately, given the recent growth of harassment law, it isn't an open-and-shut matter.

 
[Eugene Volokh, 4:31 PM]
A BIT MORE ON THE ESP CARD TRICK: The mysterious Max Power provides a link to a page of e-mails responding to the ESP card trick. Quite amusing (that is, once one has figured out the true explanation!).

 
[Eugene Volokh, 3:12 PM]
DUPED BY MICHAEL BELLESILES' RESEARCH: I'm afraid that I was one of the people who erroneously relied on Prof. Michael Bellesiles claims about late 1700s gun ownership -- the claims that were eventually reprinted in his "Arming America" -- in one of my law review articles. (Instapundit has covered the "Arming America" scandal extensively, see, e.g., here.) I've just corrected the online version of the article to explicitly retract my reliance -- I only wish I could correct it in WESTLAW and LEXIS, but I doubt that this is possible. Fortunately, I think my main thesis remains correct even with the retraction.

 
[Eugene Volokh, 2:53 PM]
HOW TO BLOW A SMALL FLUB OUT OF PROPORTION: Here's Slate's Bushism of the Day from last Thursday:

And so, in my State of the -- my State of the Union -- or state -- my speech to the nation, whatever you want to call it, speech to the nation -- I asked Americans to give 4,000 years -- 4,000 hours over the next -- the rest of your life -- of service to America. That's what I asked -- 4,000 hours."
-- Bridgeport, Conn., April 9, 2002

Funny and inarticulate -- classic "Bushism", no?

     OK, now here's the context, from the CNN transcript:

. . .

     Perhaps it had to do with the vivid lesson of flight 93. Here we are, we're a nation kind of moving along thought oceans would separate us from any threats. Kind of, you know, we're, perhaps, in a culture of self-absorption.

     And all of a sudden people on an airplane call their loved ones and told them they loved them, said a prayer and sacrificed to save somebody else's life. To me, that was one of the most meaningful moments of September 11 and on.

     It spoke of a spirit of America that recognizes there's something greater than ourselves, the need to serve our fellow mankind. These folks did it in the most courageous of ways, but we can do it in other ways as well here at home.

     And so, in my State of the Union -- or my speech to the nation -- whatever you want to call it, speech to the nation. . .
     (LAUGHTER)
     . . . I asked Americans to give 4,000 years -- 4,000 hours over the next -- of the rest of your life, of service to America. That's what I asked. I said, 4,000 hours.

     Now, many of you already do that, so this is a drop in the bucket for you. I understand that, but many Americans don't. So 4,000 hours of service for the remainder of your life, I've set that as a goal and Americans are responding.

     Many of heard the call, and in order to channel that enthusiasm, we set up what's called the USA Freedom Corps and inside the USA Freedom Corps we're focused on three distinct areas: One is the Citizen Corps. I was in Knoxville, Tennessee yesterday heralding the Citizen Corps program.

     . . .

     Seems like a normal, decently delivered speech, with one small flub of the sort that normal, decently articulate speakers often make. Anyone who has ever read transcripts of depositions or panel discussions sees stuff that's much worse than these few paragraphs. I think I'm an OK speaker, but I hate reading transcripts of my own talks, precisely for this reason: There are always glitches like this. And I suspect that Bush is much more harried and preoccupied when he gives his speeches than most of us are when we speak in public.

     Had the flub been quoted in context, with the surrounding paragraphs of fairly well-presented material, readers would have quickly understood this. Readers might also have come to suspect, seeing text like "many of heard the call," which is likely a mistranscription of "many have heard the call," that transcripts are sometimes imperfect.

     But it wasn't quoted in context, because quoting out of context is always better: more pithy, more amusing, more snide, more likely to make readers feel superior to the inarticulate flyover-country bumpkin, more effective at scoring a cheap political point.

 
[Eugene Volokh, 2:20 PM]
TIP FOR BLOGGERS: LinkScan provides what seems to be a good link-checking service. Just enter your URL, make sure that only the "Display Broken and Suspect Links", and click on "Check It Now".

 
[Eugene Volokh, 1:47 PM]
A FEW THOUGHTS ABOUT GUNS: A week or so ago, Megan McCardle praised this Web log for being "chock-full of crunchy Second Amendment goodness" (OK, she didn't say "crunchy"); and I am indeed somewhat interested in Second Amendment matters (see Senate subcommittee testimony, Wall St. J. op-ed, article on preambles, more).

     But I think the much more interesting questions about gun control have to do with whether it would work: whether it would reduce crime or increase it, and, if it would reduce it, at what cost. Even if the Second Amendment is read as securing an individual right (as I think it should be), some gun controls would still be constitutional; after all, the First Amendment secures individual rights, but some speech restrictions -- e.g., bans on speech using soundtrucks that drive through residential neighborhoods -- are constitutional. And beyond that, as a practical matter, much as most Americans love the Constitution in principle, most voters are in fact more concerned about what works than about what's constitutional.

     Now I'm not nearly as hard-core a gun-rights enthusiast as some. I think that some pro-gun-control arguments are quite credible, though my reading on the subject suggests that on balance the gun-control skeptics are correct. But some pro-control arguments are just unsound, and I want to over time touch on them in this Web log. (There are also some unsound anti-control arguments, which I'll discuss as well.)

     GUNS ARE GOOD FOR ONLY ONE THING -- KILLING PEOPLE (see, e.g., here; see also Albuquerque J., 10/18/2001; The Capital (Annapolis), 4/26/00; Riverside Press-Enterprise, 12/3/99; Wisc. State J., 7/31/94): I've heard this argument often, especially in response to my opposition to gun manufacturer lawsuits. When someone driving a Ford Mustang while drunk on Coors kills another driver, I argued, we don't think that Ford and Coors should be sued; likewise when someone using a handgun murders someone else. No, people respond -- guns are different because they're good for only one thing: killing people.

     1. Let's begin with some simple arithmetic -- there are 200-250 million guns in the U.S. (see Kleck, Targeting Guns, but the statistic isn't particularly controversial). In 1999, 29,000 people died of firearms injuries: 16,500 in suicides, 11,000 in homicides, 825 in accidents, 300 in police shootings, and 300 in situations where the cause was undetermined. The overwhelming majority of all guns, I suspect about 99%, will never be used to kill: They are mostly used for hunting, target-shooting, collecting, and just enjoying knowing that one has a gun (all of these except target-shooting aren't my thing, but that's what people use them for).

     2. OK, people might say, what we really meant was "guns are good for only one thing except entertainment -- killing." But that's surely not right, either. Even when a gun is used in crime, over 90% of the time no-one is killed; it's at most used to threaten. Maybe a picky objection, but it helps to be precise. So the comment has to be further refined to "guns are good for only one thing except entertainment (which is probably over 90% of their use) -- killing and threatening killing."

     3. At this point, the argument may be factually accurate -- but on its own, morally and legally meaningless, because it lumps together two completely different sorts of killings and threats: offensive and defensive.

     Both law and most moral systems recognize that there's a huge difference between offensive violence and defensive violence. People sometimes say that defensive use of guns is "taking the law into your own hands," but that's not right: The law itself authorizes the use of lethal force when faced with the threat of death and bodily injury -- the law itself recognizes that the right to defend yourself is in your hands.

     And in fact, while guns are used in crime about 550,000 times per year, they are used defensively from 100,000 to 2.5 million times per year, and may deter still more crimes because criminals know that some victims have guns. The defensive gun use numbers and the deterrence claims are hotly contested; I might say more about those debates later (and I'll also say more about how one should compare the offensive and defensive use counts; it's not just by seeing which is larger). But one way or another, defensive gun use is not chopped liver.

     Defensive and offensive killing and threatened killing are indeed mechanically the same -- but that's the only way that they are the same. From a moral and legal perspective, they are two vastly different activities.

     CONCLUSION: So, as I said, there are plenty of serious arguments in favor of gun control. But the claim that guns are special because they "are good for only one thing -- killing people" just makes no sense. It's not an argument, but a slogan, and one that commits three different errors: two factual, and one moral.

 
[Eugene Volokh, 9:36 AM]
THE LIFE OF THE LANGUAGE: I've gotten quite a few interesting response on the smelly/tasty post, which remind me of Justice Holmes' quote: "The life of the law has not been logic; it has been experience." Surely this is even more true of language (and especially the English language). I find the language's peculiarities quite amusing, but of course we can't expect this sort of "grown order" to be anything but peculiar.

 
[Eugene Volokh, 9:22 AM]
LOSING YOUR RELIGION? A reader writes about the Cyber-Psychic Powers item, "I just about called my bishop to quit my religion before I finally discovered the trick." What trick? It's ESP, man -- deep, hidden, mysterious powers! OK, if you don't quite buy that, here's a hint.

     Actually, like many such tricks, it does illuminate an interesting aspect of human psychology (though not parapsychology).