[Eugene Volokh, 6:05 PM]
NRA STICKERS AND REASONABLE SUSPICION TO SEARCH A CAR FOR A GUN: How Appealing notes a fascinating case:

. . . In March of 1993, a police officer in Texas stopped a pick-up truck in which Jeffrey Estep was driving because the truck was going 47 mph in a 35 mph zone. Based in part on the fact that the pick-up truck displayed a National Rifle Association sticker, the police -- allegedly fearing for their safety -- conducted a search of the vehicle over Estep's objection and discovered that Estep was wrongfully carrying a pistol. A state court judge later ruled the search unconstitutional, and Estep filed a federal court suit under the federal civil rights act seeking damages from the police.

Today a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that an NRA sticker in a vehicle window does not give police cause to fear for their safety. As the majority explained:

The presence of the NRA sticker in the vehicle should not have raised the inference that Estep was dangerous and that he might gain immediate control of a weapon. Regardless of whether there is some correlation between the display of an NRA sticker and gun possession, placing an NRA sticker in one's vehicle is certainly legal and constitutes expression which is protected by the First Amendment. . . . Although we do not definitively decide today whether the presence of an NRA sticker could ever contribute to a "reasonable suspicion" of danger calculus, we do find that [the police officer's] utilization of the NRA sticker in his "reasonable suspicion" of danger calculus was unwarranted when viewing the facts in the light most favorable to Estep.

Dissenting from the ruling, Chief Judge Carolyn Dineen King explained that she would have held that the officers were entitled to qualified immunity from liability. She concluded her dissent by stating that "I am dismayed by the probability that Estep has received a free pass in this case because his pickup truck sports an NRA sticker."

(The How Appealing post includes the link to the opinion itself.)

     I've read the case, and think the result is probably right; but for a variety of reasons (chiefly relating to lack of time, the complexity of the fact pattern, and the mushiness of the legal rule involved) I won't go into the details. I do, though, want to make two small observations:

1. The dissenting opinion is not implausible, but I do think there's a weakness in a key step. "As Officer Peace approached the truck, he saw indicia of gun ownership," the only one apparently being the NRA sticker. But that one owns a gun (not unlikely for people sporting NRA stickers, though not certain) isn't enough to create reasonable suspicion to believe that there's a gun in the car, which is what the Fourth Amendment demands.



2. If you hear people theorizing about how this is yet another battle in the Republican-Democrat gun debates, tell them that they're mistaken -- all three judges on the panel were Democratic appointees: Circuit Judge Parker and District Judge Ellison, sitting by designation, were Clinton appointees; Chief Judge King, the dissenter, was a Carter appointee.

 
[Eugene Volokh, 5:47 PM]
UPDATE ON THE SEQUEL/PREQUEL TO CRYPTONOMICON: Andrew Janke writes "Maybe we shouldn't get too excited about that Stephenson novel for January. Amazon is notorious for publishing optimistic release dates." He even got in touch with someone at HarperCollins, who said that they have "a current due date of 7/03." I hope that's a due date for the release, not for when they're supposed to get the manuscript!

     Don't you hate it that you can read so much faster than your favorite writers can write?

 
[Eugene Volokh, 5:39 PM]
UNIQUE VISITOR COUNTERS: I checked this out as best I could, and it looks like our counters are indeed working pretty much right (though I also noticed that if you put two BraveNet counters on the same page, both set to count unique visitors, they can yield numbers that are 5-10% off, with the counter listed first yielding a lower count than the second -- go figure). Given this, I'm happy to report that, for every weekday starting with Monday, September 30, we've had at least 3800 unique visits per day, and almost always over 4000.

 
[Eugene Volokh, 11:12 AM]
ALWAYS WORTH A READ: The official news service of the North Korean government. Here's the entire list of stories for Oct. 11:

U.S. sophism dismissed

Huge mosaic erected

KCNA accuses Chosun Ilbo of its sycophantic and treacherous nature

Fish processing factory of Rason Taehung Trade Company

Greetings to Equatorial Guinean President

DPRK government delegation leaves for Syria

Preview of silent film "Arirang" held

KCNA delegation leaves for Iran

Really enlightening stuff. I had not known about the huge mosaic, which turns out to "depict[] President Kim Il Sung and General Secretary Kim Jong Il standing on Mt. Paektu. . . . The mosaic is 18.6 m long and 15.3 m high. It portrays Kim Il Sung and Kim Jong Il looking down over the homeland from the summit of Mt. Paektu, the holy mountain of the revolution, fully determined to accomplish the revolutionary cause of Juche and reunify the country. The mosaic was erected by members of the shock brigade of the party propaganda workers from different parts of the country, creators of the Mansudae Art Studio and working people in Samjiyon county in a short span of time."

 
[Eugene Volokh, 9:58 AM]
ELDRED V. ASHCROFT ORAL ARGUMENT TRANSCRIPT is now online -- that's the case challenging the copyright term extension.

 
[Eugene Volokh, 9:48 AM]
ONE OF OUR FAVORITE LINKS TO OUR SITE: Just noticed the blog of The Bitch Girls. We're flattered.

 
[Eugene Volokh, 9:46 AM]
NORTH KOREA AND NUCLEAR BOMBS: Andrew Sullivan points out who predicted the North Korean situation correctly -- and who didn't. There are several posts there, all very good. My favorite item is a New York Times editorial from 1994:

Diplomacy with North Korea has scored a resounding triumph. Monday's draft agreement freezing and then dismantling North Korea's nuclear program should bring to an end two years of international anxiety and put to rest widespread fears that an unpredictable nation might provoke nuclear disaster.

The U.S. negotiator Robert Gallucci and his North Korean interlocutors have drawn up a detailed road map of reciprocal steps that both sides accepted despite deep mutual suspicion. In so doing they have defied impatient hawks and other skeptics who accused the Clinton Administration of gullibility and urged swifter, stronger action. The North has agreed first to freeze its nuclear program in return for U.S. diplomatic recognition and oil from Japan and other countries to meet its energy needs. Pyongyang will then begin to roll back that program as an American-led consortium replaces the North's nuclear reactors with two new ones that are much less able to be used for bomb-making. At that time, the North will also allow special inspections of its nuclear waste sites, which could help determine how much plutonium it had extracted from spent fuel in the past.

Oh, and here's a quote that Sullivan doesn't include:

From the start, the hawks' alternative to diplomacy was full of danger. Their solution -- economic sanctions and bombing runs -- might have disarmed North Korea, but only at the risk of war. President Clinton, former President Carter and Mr. Gallucci deserve warm praise for charting a less costly and more successful course.

"Impatient hawks." "Skeptics who accused the Clinton Administration of gullibility." "More successful course." I love it.

     Sullivan also points out that today's New York Times editorial on this didn't say a word about their earlier mistake. Of course there's no doubt that the North Korea situation was tough from the beginning, because of the Chinese; I don't know enough on the subject to know what could have been done. But at least some people realized that negotiating with the North Koreans wasn't going to work -- and they were right, and the Times was flat wrong.

 
[Eugene Volokh, 9:33 AM]
THE NATION ON BELLESILES: Clayton Cramer, who to my knowledge was the first to point out the massive errors in Bellesiles' work, has a very good response to The Nation's rather weak defense of Bellesiles.

 
[Eugene Volokh, 9:29 AM]
LIFE IMITATES THE ONION: From an AP story (thanks to reader Dodd Harris for the link):

Stung by accusations of anti-Semitism, New Jersey poet laureate Amiri Baraka struck back at critics from the stage of a Manhattan poetry cafe yesterday, saying he wanted to know "why the Anti-Defamation League is not registered as an agent of a foreign power."

I'm not an anti-Semite -- it's just the International Jewish Conspiracy that says that I am!

The Jewish civil-rights organization has called for Baraka's resignation over his poem "Somebody Blew Up America," which implies that Israel had prior knowledge of the Sept. 11 terrorist attacks. . . .

His controversial work reads, in part: "Who knew the World Trade Center was gonna get bombed? Who told 4,000 Israeli workers at the Twin Towers to stay home that day? Why did Sharon stay away?" . . .

In an article published yesterday, Baraka told the online magazine site Salon.com, "I have written only one poem that has definite aspects of anti-Semitism . . . and I have repudiated it as thoroughly as I can."

He was referring to "For Tom Postell, Dead Black Poet," which contains lines such as "I got the extermination blues, jewboys" and "so come for the rent, jewboys."

 
[Eugene Volokh, 5:16 PM]
A CHARACTERISTICALLY EXCELLENT LILEKS PIECE, this time in his Newhouse column. Thanks to InstaPundit for the link.

 
[Eugene Volokh, 2:52 PM]
SUSPENSE ENDS: Reader Andrew Janke points out that some reports of the Iraq election were skewed by the journalists' desire not to anger their Iraqi hosts -- itself a serious problem, as an article in The New Republic argues -- but that the news outlets fought back with subtle irony. One example that he points is the headline on the canada.com story:

Suspense ends: Saddam wins Iraqi presidential referendum, officials say

Another is the quote in the same story:

"This is a unique manifestation of democracy which is superior to all other forms of democracies even in these countries which are besieging Iraq and trying to suffocate it," Ibrahim said at a news conference in Baghdad, apparently referring to the United States.

Hey, they can't get very angry if you're just quoting their own sound bites. And here's another good one, from the same piece:

"This is a day of pride, honour and dignity as Iraqis express their free will to say 'yes' to the pinnacle of their glory and loftiness," Ibrahim said, referring to Saddam.

 
[Eugene Volokh, 12:38 PM]
"WHY DIDN'T THIS GET MORE PRESS?," asks Clayton Cramer, citing a Michael Medved column:

Another astonishing column from Michael Medved:

In late September, the Shari'ah Court of the United Kingdom issued a "fatwa" condemning dramatist Terrence McNally to death for writing the controversial play, "Corpus Christi." In the course of that drama, a Jesus figure in Texas enjoys a torrid sexual interlude with Judas Iscariot and later endures crucifixion as "King of the Queers."

Just so I can feel that I'm adding something, and not just quoting someone who's quoting someone, I did a LEXIS search through NEWS;CURNWS,ARCNWS for "MCNALLY AND (SHARIAH OR SHARI'AH OR SHARIA OR SHARI'A)". The only American mainstream coverage I saw of this -- setting aside entertainment industry trade magazines and journals of religion -- from 1999 (when the incident happened) until today, was an aside in the Pittsburgh Post-Gazette (12/22/1999), fairly brief items in the New York Post, Bergen County (N.J.) Record, and the St. Louis Post Dispatch (all on 10/31/1999), and a longer item in the New York Post on 10/30/1999.

     Part of this is doubtless the American focus on American news, but still -- wouldn't it have been worthwhile for the New York Times or the Washington Post, both papers with cosmopolitan aspirations, to say something about this? Especially since both had heavily covered the American protests (which did not involve religious groups announcing death sentences) against the play the year before?

     To be fair to the Shari'ah court, Medved points out that:

This declaration accompanied a cautionary word to British Muslims: Don't-try-this-at-home.

"We would warn individual Muslims not to try to carry it out," the sheikh helpfully explained. If Mr. McNally travels to an Islamic state, however, he certainly risks arrest and execution. "We do not believe in political assassination, but obviously he would face capital punishment," Bakri Muhammad affirmed. "He will be arrested and there will be capital punishment." He concluded that if Mr. McNally repented of his blasphemy he would still be killed, but his family would receive care and protection from the Islamic state. The only way that the condemned playwright himself could escape the fatal fatwa would be to undergo an immediate conversion to Islam.

UPDATE: A reader points out that Salon mentioned the McNally fatwa, though in one short paragraph at the end of its "People" column.

FURTHER UPDATE: Another reader points out that Best of the Web beat Michael Medved to this story, publishing something about this on Sept. 24, 2002.

 
[Eugene Volokh, 10:30 AM]
MORE SAVAGE LOVE AND WAR: The last year has given many commentators an opportunity to show their true folly, and many others to show their true worth. One of the most pleasant surprises, in my view, has been Dan Savage. I knew Savage as the author of Savage Love, a highly irreverent but amusing sex advice column that I occasionally read in local alternative weeklies. He was (and is) pretty clear on the Left politically, but his columns weren't about politics, so I never thought of him much as a political commentator.

     But since the start of the war, Savage has written some very sharp and thoughtful columns. I mentioned one in July, but now I saw that Andrew Sullivan linked to Savage's latest, which is also very good. I much recommend it. My favorite quote: "War may be bad for children and other living things, but there are times when peace is worse for children and other living things, and this is one of those times."

 
[Eugene Volokh, 10:05 AM]
SEARCHING SITE AND ARCHIVES: I thought I might solicit a bit more free help from our loyal readers -- I'd like to let people search the Conspiracy, including all the archives for various keywords. I've added our front page to google, which means that google searches for "Volokh Conspiracy keywords" often pull up the right post, but for some reason this doesn't always work. BraveNet has a search engine, but apparently one has to specifically include all the URLs one wants to search; it can't automatically capture all the archive URLs from the archive page. Does anyone have any suggestions for this? Thanks!

UPDATE: Problem seemingly solved, thanks to reader Benjamin Ritcey's recommendation of the google search feature. Now, if you click on "SEARCH" in the upper-left-hand corner of this page, just below "ARCHIVES", you'll be sent to the search box. Hope it works for you.

 
[Eugene Volokh, 9:43 AM]
MORE SPEECH RESTRICTIONS ON CAMPUS: Here's a story reported in two columns in the Las Vegas Review-Journal (here and here):

[UNLV] Boyd School of Law . . . first-year student Clarke Walton was spotted reading [Maxim magazine] on his laptop computer during a class break. Two fellow students, both women, complained to their professor, Jean Whitney, that they were offended and distracted by the image. . . .

Professor Whitney called Walton aside . . . [and Walton agreed to not do this in the future].

"I'm obligated to make this a comfortable learning environment for all students," Professor Whitney says. . . .

But Walton soon began hearing other Boyd professors discuss the incident -- no names, of course -- in other classes. So he . . . [responded] over the law school's electronic bulletin board.

"While viewing this magazine in my L.P. class approximately two weeks ago, two female students looked at my computer screen and were allegedly 'offended' by what they saw. This is unfortunate," Walton wrote. "I contend that this case was not an issue of sexual harassment, but rather an issue of privacy and of free speech. My counter complaint is that my right to privacy was violated when these women looked at my computer screen without my express or implied permission. Furthermore, I contend that by being asked to refrain from viewing this information on my computer screen, my first amendment right to free speech has been violated."

After that, Walton says he was asked to meet with UNLV Assistant Vice President for Diversity Ann Casados-Mueller Wednesday afternoon about the incident. Walton says Casados-Mueller told him Maxim was "soft porn" and that reading it on campus could be considered sexual harassment. . . . .

Now Walton is being threatened with a formal investigation for supposedly "retaliating" against his accusers (even though he didn't even mention their names), unless he takes a "sexual harassment awareness class" and writes an essay that would be publicly posted to the law school. Yet there is apparently no UNLV policy banning students from discussing the accusations against them (I suspect such a policy would be unconstitutional even if there was one).

A few thoughts:

1. A professor has a right and a duty to keep students from distracting others during class. That has nothing to do with "sexual harassment" -- if someone is playing a video game during class, and other students are distracted, the professor should tell the student to stop. (The professor can of course also tell the student to stop just so the student himself will pay attention.) If this really happened entirely "during a class break," though in the classroom, the matter might be somewhat different; but the professor can at least ask the student not to annoy his classmates (again, by looking at swimsuit pictures or at anything else), and the matter will usually stop there. And the student's response that his classmates' looking at the computer "violated" his "right to privacy" is just nonsense -- no-one has a right to privacy in the clearly publicly visible screen of his computer.



2. But if the administration punishes the student on the grounds that his viewing the magazine was "sexual harassment" is a very different matter. The standards for sexual harassment are generally that the speech must be "severe or pervasive enough to create a hostile, offensive, or abusive environment based on sex for the complainant and a reasonable person" -- an extremely vague and broad standard that can easily punish a vast (and hard-to-predict) range of speech. Add to that the analogous categories of "hostile environment harassment" based on race, religion, national origin, and so on, and you've got a speech code that's remarkably broad.
   
        Every court that has confronted campus speech codes that were phrased in terms of this standard has struck them down, and rightly so. (I think hostile work environment law also poses First Amendment problems, but the problems are even clearer in universities.) The one possible argument on the university's part is that it can enforce such a speech code when it's limited to speech in classrooms, even through threat of administrative punishment, and not just by the faculty controlling what's said in their own class. But I don't think that's right; the standard is so vague and so broad that the threat of punishment will unacceptably constrain what students say in classroom discussions, or what the students read or say to each other during classroom breaks. If Maxim is forbidden, may students visit museum sites in class? Make sexually suggestive jokes to each other, given the risk that someone might overhear and be offended? Raise in-class hypotheticals that some other students might find sexually, racially, or religiously offensive?



3. The supposed "retaliation" on Walton's part -- posting a message describing the situation, and defending himself -- is clearly fully protected by the First Amendment. Any attempt to discipline him even in part based on that would be clearly unconstitutional.

 
[Eugene Volokh, 9:06 AM]
ONE MORE UPDATE ABOUT KELLY AND PANDAGON: As I mention in the following post, Pandagon's response to Kelly was interesting and correct in some respects, though I think ultimately misplaced. But one thing that annoyed me was the end of his post: "In the words of the great Alfred Nobel, bite me." Uh, OK; is that supposed to be an argument or something? An occasional slam at one's adversaries is one thing, but between "the Bourbons of Oslo" and "bite me" there is something of a gulf.

     And this sort of line is particularly counterproductive when it turns out that the supposedly killer argument about which it's crowing is actually substantively rather flawed -- as all of our arguments risk being. Wouldn't using somewhat more muted rhetoric provide for a more graceful exit if it turns out that one was somewhat mistaken?

 
[Eugene Volokh, 8:46 AM]
UPDATE TO THE POST ABOUT MICHAEL KELLY'S ARTICLE: Pandagon has an interesting response (thanks to Thomas Maguire for passing it along), which points out the hyperbole in Kelly's article. But it is itself telling in an important way: The examples Pandagon gives are Gandhi, Cesar Chavez, Thurgood Marshall, Susan B. Anthony, Barbara Jordan, George Mason, Roger Baldwin, Malcolm X, Thomas Paine, Fannie Lou Hamer, Elizabeth Cady Stanton, Frederick Douglass, and Martin Luther King, Jr.

     Setting aside the questionable items, we have two groups of people: Those who used speech to help further causes that ultimately prevailed through war (Mason, Paine, and Douglass), and those whose causes ultimately prevailed through peaceful means but who appealed to and relied on the consciences of democracies (Gandhi, Marshall, Anthony, King, and others). (To the extent that the Southern states might be seen as not sufficiently democratic during the civil rights movement, note that their resistance was overcome in part through the threat and occasional use of federal military force.)

     So I'll offer a friendly amendment to Kelly's point: Jaw-jaw may work when you're jawing with decent people (though sometimes not even then; Britain in the late 1700s was a decent regime by the standards of the time, but it took a war for America to become independent). But the great threats to peace and liberal democracy -- Nazism, Communism, Japanese expansionism, the slavocracy -- took a war (hot or, in one case, mostly cold) to stop. How quickly would Hitler, Stalin, or Hussein have mowed down a Gandhi or a Martin Luther King?

 
[Eugene Volokh, 7:34 AM]
CHEAP SHOTS ABOUT GUNS: Dahlia Lithwick is an excellent writer, and generally an incisive thinker (and, I might add, a charming person). Why then -- and giving her some license for her genre, which is colorful commentary rather than bloodless -- does she write the following at the end of her column?

There are a few striking differences between Bean and Miller-El, although both involve giving rights back to people who have done rotten things. For one thing, both deal with pretexts, but the intent of Congress was clearly to gut the program restoring guns in Bean, and while they did so in a gutless way, Bean's best alternative was to lobby Congress, not rent a judge who loved guns as much as he did. Whereas in Miller-El, the courts have stated time and again that prosecutors cannot use racial bias to skew a jury, yet they have been unable to articulate what a pretextual reason for striking jurors might actually look like. Finally, even if we accept that mistakes are sometimes made and guys get caught up in rotten situations, Bean stands to lose, at most, his gun, whereas Miller-El will lose his life. I know some of you will disagree with me here, but there is a difference.

A bit of background on the Bean case: Bean, as she points out -- the protagonist of the United States v. Bean case that the Court heard yesterday -- "was an authorized gun dealer until, one night after a gun show, he drove to dinner in Mexico with 200 rounds of ammunition in his back seat. The ammunition was supposed to have been removed by his assistants. The Mexican authorities arrested him for the felony of importing ammunition. He was sentenced to five years in jail, of which he served six months in Mexico before being returned to Texas, where he served a month before being released on probation."

     Under a federal statute, Bean was entitled to have the Bureau of Alcohol, Tobacco, and Firearms consider his application for restoration of his right to bear arms. Congress didn't repeal the statute, but barred the BATF from spending any money on it. The question is whether Bean is entitled to have a federal judge consider the application, instead of having the BATF do it.

     So to start with, (1) it's hard to see what Bean did that was so "rotten." According to Lithwick's own account -- and the recital of the facts in the federal court of appeals opinion that's being reviewed -- Bean fell victim to a stupid mistake on his assistants' part. I quote from the opinion:

In March 1998, Bean, a Bureau of Alcohol, Tobacco and Firearms licensed firearms dealer, was in Laredo, Texas, participating in a gun show. One evening he and three assistants decided to cross the border into Mexico for dinner. He directed his assistants to remove any firearms and ammunition from his vehicle, a Chevrolet Suburban, before crossing the border; however, a box of ammunition containing approximately 200 rounds inadvertently was left in the back. The box was in plain view and Mexican customs officers saw it when they sought to enter the Mexican Port of Entry at Nuevo Laredo, Tamaulipas, Mexico.

At most, Bean was careless in not checking his car himself (let that be a lesson to us all); there's nothing rotten here, unless being a licensed firearms dealer is itself seen as rotten.

     (2) But beyond this, where did Lithwick get the "rent a judge who loved guns as much as he did"? Is there any evidence that Bean bribed the judge? Am I missing some unusual sense of the word "rent"? How did that word get into the article?

     Beyond this, where's the evidence that the judge in the case decided the way he did because he "loved guns"? Might he possibly have thought that his view was simply the right one? Who knows, maybe Judge Fisher does love guns, but Lithwick doesn't adduce a smidgen of evidence for this. Are the only reasons that a judge could rule in favor of a gun dealer that the judge is "rented" or "loves guns"?

     (3) Finally, consider "Bean stands to lose, at most, his gun, whereas Miller-El will lose his life. I know some of you will disagree with me here, but there is a difference." Ooh, what a nifty ending -- some people (presumably the ones that Lithwick earlier called "gun freaks," twice) think there's no difference between losing one's gun (actually, the right to own guns, and therefore the right to pursue one's business if one is a gun dealer) and losing one's life. What fools.

     But what possible bearing does this have on the merits of the article? Perhaps it's just a statement of fact -- somewhere out there in America, and perhaps among Lithwick's readers (the earlier reference to "gun freaks" was to people "who lurk in my 'Fray' and rant maniacally when I say there's no personal Second Amendment right to bear arms"), there are people who think this. Who knows; that might possibly be true, but it's no more relevant than some people thinking that the earth is flat.

     Alternatively, perhaps it's a suggestion that Bean is that sort of person, or that pro-gun-rights groups generally are those sorts of people. Now that might be relevant; except it's wrong. In my experience, people who think that the right to own guns is pretty important are not maniacs or fools. They have a pretty good sense of proportion. They think that being able to defend yourself and your family against criminals is pretty important -- but no, they don't think it's as important as not being wrongly executed.

     Yup, it's possible to side with Mr. Bean and have a pretty good sense of perspective on one's gun vs. one's life. It's possible for a judge to side with Mr. Bean and not be "rented" or even "love guns." It's even possible to be a gun dealer, and perhaps even to accidentally run afoul of some gun laws, and not be a "rotten" person. Why is that so often lost on journalists?

 
[Eugene Volokh, 6:37 PM]
FANTASTIC PIECE ON THE NOBEL PEACE PRIZE BY MICHAEL KELLY. Much worth reading; here's my favorite part:

There are many thoughts that are unthinkable to the ideologically bankrupt establishment-left that the Nobellians exemplify. Paramount among these is that war — or, to be precise, war or the threat of war sponsored by the United States — has been the modern world’s great deliverer of peace. But there the truth sits.

Name, in the past hundred years, a single important triumph for peace and for liberal democracy that was purchased by the jaw-jawing the Nobellians so admire. No rush, take your time.

Now, look at what American war-war (and the threat of American war-war) won: the defeat of the fascist attempt to rule the world; the defeat of the communist attempt to rule the world; the consequent rebuilding of a Europe protected by American arms into a democratic and peaceful continent for the first time in history; the rebuilding of an American-protected Japan into a democratic and peaceful nation for the first time in history; the emergence of a world in which, for the first time in history, the peaceful values of liberal democracy are the ascendant norm.

No, no, it remains unthinkable. To imagine American force was a force for good, one would have to imagine America was a force for good. And this, the Bourbons of Oslo will never, never do.

UPDATE: See above for a rebuttal and a rejoinder.

 
[Eugene Volokh, 3:40 PM]
HOW SADDAM THINKS: Jonathan Zasloff, who first alerted me to the 100% result in the Iraqi elections, makes an excellent point:

And another, more serious point: this actually shows how the Iraqis really don't know what they are dealing with here. Any degree of sophistication would have told them to release figures showing, say, 85% victory for Saddam. I bet you that Fisk would have bought it, especially if it mirrored Bush's approval ratings in the wake of 9/11.

     The most serious point is that if they can't understand something as obvious as this, it also shows that Saddam is unlikely to understand signals from the west or other countries -- all of which puts in doubt the theory that he can be deterred by standard methods.

     Jonathan is right -- an 85-15 result, or something like it, would have provided a significant practical advantage for Saddam, especially since some in the anti-war camp would indeed have seized on it. And of course Saddam could have engineered this trivially. But he didn't.

     I suppose it's possible to imagine some circumstance in which Saddam is acting rationally here. But it seems to me more plausible that the 100% response has little to do with a rational expectation of how the West would react to various results, but rather with Saddam's desire for personal glory, with a complete failure to understand Western attitudes ("Hmm, 85-15 would be good, why 100-0 would be better yet!"), or a combination of both.

 
[Eugene Volokh, 3:27 PM]
BULLET "FINGERPRINT" DATABASES:

Automated computer matching systems do not provide conclusive results. Rather, a list of potential candidates are presented that must be manually reviewed. When applying this technology to the concept of mass sampling of manufactured firearms, a huge inventory of potential candidates will be generated for manual review. This study indicates that this number of candidate cases will be so large as to be impractical and will likely create logistic complications so great that they cannot be effectively addressed.

This isn't from the NRA; it's from what purports to be a legit copy of a Oct. 5, 2001 report by Frederic Tulleners, directory of the Sacramento and Santa Rosa Criminalistics Laboratories, Bureau of Forensic Services, California Department of Justice, Sacramento -- Clayton Cramer has a great post on the subject, which first alerted me to this, and which links to a Web copy of the report. (I cannot confirm the report's authenticity, but a LEXIS search reveals that the author exists, and holds the job that he's described as holding.)

     I'm not unalterably opposed in principle to national ballistic imaging databases. I think there are serious costs to them, especially the risk that nationwide gun registration (which they'll effectively involve) will lead to gun confiscation. But if they really could help one track down many criminals, then their benefits may exceed their costs.

     So the question is an empirical one -- and reports such as this one suggest that, at least given current technology, investing in a nationwide ballistics imaging database would be a serious misallocation of resources.

 
[Eugene Volokh, 2:55 PM]
11 MILLION TO 0: The AP reports that

Iraq declared Saddam Hussein the winner Wednesday -- by an 11 million-to-0 margin -- in a war-shadowed referendum on his two-decade military rule, sending celebratory gunfire crackling from the streets and rooftops of Baghdad.

The 100 percent turnout, 100 percent 'yes' vote shows all Iraqis are poised to defend Saddam against American forces, the country's No. 2 man [Izzat Ibrahim] said. . . .

Iraqis were asked to vote 'yes' or 'no' Tuesday on whether Saddam should remain in office, typical of presidential votes in a region largely ruled by dictators.

Ibrahim, announcing the vote, said all 11,445,638 eligible voters had cast ballots, and all for Saddam.

"Someone who does not know the Iraqi people will not believe this percentage, but it is real,'' Ibrahim said. "Whether it looks that way to someone or not. We don't have opposition in Iraq.''

Iraqi officials said popular outrage at the U.S. threats to Saddam's regime made the turnout and percentage even higher than in 1995, when Saddam received a 99.96 percent 'yes' vote.

(Note that I'm not faulting the AP for its story, which quotes people who point out that the election was a farce.)

 
[Eugene Volokh, 1:41 PM]
DOUBLE COUNTING: While I'm happy at the really high numbers on our hit counters the last several days, I'm afraid that Bravenet and Extreme Tracking might both be double-counting. In particular, I notice that my Bravenet counter only goes up by twos rather than ones, and looking at the rate of hits by checking the last 25 referrers (which includes referrals without any URLs) shows a rate that's considerably lower than the hit counter seems to record. On top of that, only the last 25 referrers seem valid; referrers number 26 to 50 on the "last 50 referrers" list seem to be from some time ago.

     Does anyone know of any problems with these counters, or any possible problems with our Web page (we don't have multiple copies of the counter code -- I checked for that) that might cause this? Again, we'd like to believe that we've been chugging along at over 4000 unique visitors per weekday over the last few weeks, but before I feel confident about that, I want to make sure that there isn't a glitch. Would love to hear people's input.

 
[Eugene Volokh, 12:43 PM]
WOW, NO KIDDING: I looked at the document that Juan mentioned below, and this is what it says (emphasis added):

DSA’s national electoral project this year is the Minnesota Senate Election. Together with YDS, DSA’s Youth Section, we are mobilizing to bring young people to Minnesota. Minnesota is one of the few states that allow same day voter registration. We will therefore focus our energy on registering young Minnesotans. Wellstone will need a high percentage of young people to register and vote for him if he is to stave off the campaign that Bush, the Republicans and the Greens are waging against him. He is the Right’s Number One electoral target.

I suppose this might be seen as saying that they want to bring young people to Minnesota to register other young people, who are legitimate Minnesotans. But this sure isn't what leaps out at you when you first read this -- the much more obvious interpretation is that they're bringing young people from outside Minnesota to Minnesota so they can then register as young Minnesotans. Pretty iffy stuff; I'm surprised that it hasn't gotten more attention. (The DSA, incidentally, is the Democratic Socialists of America, not the Direct Selling Association, whose site I inadvertently went to.)

UPDATE: Reader Adam Bonin (husband of Jennifer Weiner) writes:

From the Minnesota Secy of State's website. Fraud's going to be tough, because you still have to prove residency:

Can I register on election day?
If you miss pre-registering, you can still register on election day at your polling place. You will need proof of your identity and the address where you are living on election day. Use one of these for proof...

A current Minnesota Driver License, learner permit or identification card (or receipt for a new one) with your address

One of the above with a former address and a utility bill*

A U.S. passport or military ID card and a utility bill*

a "Notice of Ineffective Registration" card mailed to you by your county auditor (if you turned in a registration card late)

someone who is registered in the precinct where you live to vouch for you at the polling place

Reader Chris Galdieri echoes this, from personal experience. Hope that they're right that fraud will be tough, and it's quite possible that the DSA are just trying to get young people to register other young people; but they could have said it a bit more clearly.

FURTHER UPDATE: Three readers e-mailed me to suggest (partly based on personal experience) that the "voucher" option does create huge opportunities for fraud. On the other hand, Mark Kleiman suggests that the DSA's post cannot reasonably be read as anything other than a call for volunteers to help register genuine Minnesotans.

 
[Eugene Volokh, 9:27 AM]
MORE ON MCGRORY: Reader Melissa Davis captures well a point that had also occurred to me:

McGrory's bit about Condoleeza Rice being the first female national security adviser, and the implied disapproval of how she's conducting herself, made me cringe. This is a variation on the old argument that women are some sort of civilizing force, and that is why we should be more active in world affairs.

McGrory should get over her fanciful visions of mother-earth types soothing the testosterone-addled men who make our decisions. There is no evidence backing this theory up. I heard a bit on NPR this morning about how some are seeing women who are usually against the use of force backing pro-force candidates because they feel that they are threatened and their families are threatened. It's a sloppy analogy, but when you hit the woods, the first thing they say is leave the bear cubs alone. Mom is nearby and she's mad.

     Let me add that one key (and correct) tenet of the feminist movement has long been that our views and attitudes are not dictated by our gender. Even when there are some rather slight differences in aggregate opinion (generally at most 10-15%, and, I'm told, much less as to this war), for every man who holds a certain view you'll find a woman who thinks the same way, and vice versa.

     You can't have it both ways -- either you say "women can be just as good litigators as men, because they can be just as aggressive and combative as anyone," or you can say "women are fundamentally different from men, which means that sex discrimination generally makes lots of sense." I think the former is much closer to the truth.

 
[Eugene Volokh, 8:42 AM]
THE AMERICAN PROSPECT DEFENDS JERRY FALWELL: Yes, and quite persuasively, against charges by the Council on American-Islamic Relations. (Thanks to InstaPundit for the link.)

 
[Eugene Volokh, 7:19 AM]
NICE NEW NONCE-WORD -- "Barrelfisking," seemingly coined by Instapundit (a google search revealed no prior art, as they say in the patent biz). The context makes it clear: It's fisking an article that has so many flaws that criticizing it is like shooting fish in a barrel. (Digression: Given that barrels are traditionally made of wood, wouldn't shooting fish in a barrel risk punching holes in the barrel?) And I also like the little barrel-fish-fisk connection, which Norwegians should find particularly apt.

     "Nonce-word," by the way, is a nifty little term that means "a word coined for the nonce," which is to say "a word coined for one occasion."

 
[Eugene Volokh, 7:14 AM]
AVOID "PUNCH-DRUNK LOVE" AT ALL COSTS -- well, almost at all costs. My wife and I saw it Sunday and were highly disappointed. The main problem is that the characters are unappealing, and it's hard to understand why they do what they do; but on top of that, there's not much wit, or even interesting plotting. Just say no.

 
[Eugene Volokh, 7:20 PM]
GRADING PAPERS. Waaaah! But I don't want to grade papers! I just don't wanna! Mommy, make them stop!

 
[Eugene Volokh, 5:50 PM]
YES! Via reader Don-E Benovitz, and via slashdot, comes the news that Neal Stephenson's prequel/sequel/Xquel to Cryptonomicon will be out in January. As the slashdot post points out, there have been false starts before, but apparently this one is legit.

     Might as well mention that blogging will be light in the several days after I buy the book.

 
[Eugene Volokh, 2:45 PM]
WOW: Mary McGrory's Sunday column is so full of unsound argument that I just don't know where to start. Still, I can't go through the whole thing, so here's a particularly choice 2-1/2-paragraph-long stretch:

[O]ne of the White House warlords, Richard Perle, told a German publication that Schroeder should resign.

In the midst of it all, while Uncle Sam was bent on showing the world how cooperative and multilateral he is, a decree was issued in the name of the first female national security adviser, Condoleezza Rice -- remember how we longed for a woman at the top in Vietnam councils? It was a rugged document, proclaiming the policy of preemptive war. It smacked much more of Julius Caesar than of George Washington.

We could see that Bush was breaking all institutions in sight, like kindling over his knee. He threatened the United Nations with irrelevance; he made the European Union, the Democratic Party, the House and the Senate lie down and roll over.

Let's take a close look at this:

1. We begin with the unsubstantiated smear -- Richard Perle as "warlord." Unless I'm mistaken, while warlord might mean just a military commander (which, incidentally, Perle is not), it has generally referred to a local military despot who rules an area when the central government is to weak to do so. Sounds like a serious pejorative -- but with no explanation of why Perle merits such criticism.



2. Then, a bit more of the same, this time as to Rice. "Smacked much more of Julius Caesar than of George Washington." Caesar, too, is remembered chiefly for having become a more or less military dictator; any evidence of Rice actually wanting to do anything of the sort? Caesar's second claim to fame was as some who conquered territory for the Romans, not as a matter of preemption but as a matter of plain conquest for conquest's sake. If someone wants to make such a charge about the U.S. and Iraq, is it too much to ask that they substantiate it with some facts?



3. We now shift to pejorative and unsubstantiated mischaracterizations of actions, rather than people. "Breaking . . . institutions" by "[t]hreaten[ing] the United Nations with irrelevance" -- that would be an apt description of (1) Hussein, or (2) the U.N. itself; if the U.N. is irrelevant, it is irrelevant because its resolutions are constantly flouted, and the U.N. does nothing to stop it. To the extent that Bush is threatening the U.N., he is doing so merely in the sense of warning the U.N. about the situation in which it has put itself. Whatever is broken about the U.N. was not broken by Bush.



4. "[H]e made the European Union . . . lie down and roll over." A puzzling charge right after McGrory was talking about how Germany, a pretty important EU country, is actually not backing Bush's views; but to the extent that other countries are backing them, how exactly did Bush "ma[k]e" them do it? Did Bush threaten the EU with attack? With embargo? With anything? Is the EU so weak that, despite having generally comparable wealth and population with the U.S., it "lie[s] down and roll[s] over" because a U.S. president "ma[kes]" it do so? Or is there perhaps a slightly more accurate but less pejorativeterm for what he did, such as "persuade"?



5. Same as to the Democratic Party, the House, and the Senate, shaking before the might of Bush And His Caesars And Warlords. What exactly did Bush do reduce these seemingly powerful entities to such abject submission? Might it be that many Democrats, in the House and the Senate or outside it, support Bush's position because they agree with it? Or if they fear something, it's that they fear the voters, who agree with Bush? Is persuading the Congress to go along with your views properly called "breaking all institutions in sight, like kindling over his knee"?

I could go on -- but I can't, because I have to go teach and do other real work. But, boy, this piece is nonsense of the most nonsensical sort.

UPDATE: Also as to the U.N., our allies, and the war, see this post below.

FURTHER UPDATE: A reader makes another excellent point about McGrory problem.

 
[Eugene Volokh, 2:17 PM]
HOW MUCH EVIDENCE DO THEY NEED? According to Reuters, "The Sept. 11, 2001, attacks were blamed by Washington on Saudi-born militant Osama bin Laden's al Qaeda group." What next -- "The Dec. 7, 1941, attacks were blamed by Washington on the Empire of Japan"? (Thanks to AndrewSullivan.com for the pointer.)

 
[Eugene Volokh, 2:03 PM]
MORE ON WASHINGTON UNIVERSITY LAW SCHOOL INCIDENT: Radley Balko has posted what purport to be notes of the SBA meeting at which the pro-life group was finally granted recognition. I cannot vouch for its authenticity, but also have no reason to doubt the authenticity, so I'm passing along the link.

 
[Eugene Volokh, 12:17 PM]
OUR FIRST LINK, TO MY KNOWLEDGE, FROM A RUSSIAN-LANGUAGE WEB SITE: It's in a column about the Net on the site of the Russian Journal. Cool!

 
[Eugene Volokh, 10:19 AM]
UPDATE ON THE MANDATORY MULTILATERALISM POST BELOW: Just ran across the following quote from an Australian academic on Tim Blair's site:

We need to reassess our position on Iraq. It is no longer valid to argue that Australia will not compromise its stand on the Iraqi issue. Any position that runs the risk of disillusioning the majority of the Muslim world and of attracting negative responses from terrorists needs to be critically evaluated.

If Australia -- or more prominent potential veto countries, such as France or England -- decides to "compromise its stand" based on danger of "dissilusioning . . . Muslim[s]" (which I much hope it doesn't), then how can we allow our actions to turn on those countries' agreement?

 
[Eugene Volokh, 8:54 AM]
MANDATORY MULTILATERALISM + "AVOID PROVOKING DISCONTENT AND HATRED" = DISASTER, or How Reading Robert Fisk and Robert Wright Should Lead Us to Support Unilateralism: On the dovish side of the debate, both about Iraq and in an earlier day about Afghanistan, two arguments have been particularly prominent. (There've been others as well, but I focus here on these two.):

1. Mandatory Multilateralism: The U.S. should only act if it has the support of "the world community," which is to say the U.N. Security Council, some set of allies (whether European, Middle Eastern, or a mix), or both. This is sometimes put as a prudential argument and sometimes as a moral or international law argument. Let's use the term "potential veto countries" to mean those countries that can, under mandatory multilateralism, block our actions by withholding their support.
   
   Many versions of this theory admit of exceptions; for instance, some say that if the U.S. is actually attacked by a known enemy, it should be free to fight back even without the support of the world community. But the general principle is still that there are many things that the U.S. shouldn't do unless it has broad international support. I distinguish this from preferential multilateralism, which simply asserts (not very controversially) that if you do something, it's generally better to try to line up allies than go it alone.



2. "Avoid Provoking Discontent and Hatred": When a country decides what to do -- not just how to react to terrorism, but whether to place its armed forces in the Middle East, or to support Israel, or what have you -- it needs to consider whether its actions might provoke hatred that might then turn into violence. This is especially so today because in Robert Wright's words, "thanks to advancing munitions technology, a few well-organized terrorists can now do lots of damage," and "thanks to advancing information technology, intense anti-Americanism is more and more likely to become clusters of well-organized terrorists." Therefore, "The substance of policies should be subjected to a new kind of appraisal, one that explicitly accounts for the discontent and hatred the policies arouse." (I believe Wright was making this claim solely about the war on terrorism, but it seems to me to apply equally to many other decisions.) Most Americans who make this suggestion are talking about what America should do, but the same principle of course applies equally to other countries.

These are interesting claims, and each has plausible arguments to support it. But it seems to me that the interaction of these two theories can lead to disaster, especially if we adopt approach one (whether or not we also adopt approach two), while other countries adopt approach two (whether or not they also adopt approach one).

     Mandatory multilateralism is a plausible theory -- but it's plausible to the extent that one thinks the world community (or whatever chunk of it we're willing to defer to) is likely to get it "right." For our purposes, let's say that "right" means "likely to decide in ways that protect our safety, subject to the need to prevent undue harm to innocent third parties"; this definition recognizes both that we deserve to be protected against murderers, but also that there might be constraints in what we can do to protect ourselves -- for now, I don't think we need to go further into what exactly this means substantively.

     Now if we thought that the world community (or at least the potential veto countries) was run by a group of thoughtful, knowledgeable, fairminded people who always have the interests of justice at heart, and who are thus always "right," then deferring to them would be great: Their veto power might keep us from doing things in a moment of anger that we'd later regret, either on moral or pragmatic grounds.

     But even if we thought that the world community was right most of the time, deferring to them might still be good, since the costs of their being wrong (again, from our perspective, but from our perspective informed by principles of justice and not just raw self-preservation) would be outweighed by the benefits of their help when they get it right. Many sensible mandatorily multilateral organizations -- from partnerships to corporations to nations -- in fact operate fairly well because of this.

     But the more we doubt the likely rightness of the world community -- again, right from the perspective of helping us defend ourselves, subject to perhaps reasonable constraints on this power -- the less appealing it seems to defer to their judgment (which is what mandatory multilateralism would generally dictate). One reason we might have such doubts is if some of the potential veto countries are our enemies; that's why we weren't willing to be bound by the Security Council's judgments during the Cold War. Another reason might be if they have financial interests that heavily sway their judgment.

     And another reason is if some of the potential veto countries are influenced by the desire not to arouse discontent and hatred. After all, helping us defend ourselves -- however legitimate our defense may be in the abstract -- might cause terrorists to, say, try to kill those countries' citizens. In the words of Robert Fisk, writing after the Bali mass murder,

[Australian Prime Minister] John Howard has been among President Bush's toughest supporters. Australia lined up to join the "war on terror" within 24 hours of the attacks on New York and Washington last year. Australian special forces have been operating with American troops in the Afghan mountains against al-Qa'ida. It's a fair bet that yesterday's savagery was al-Qa'ida hitting back.

The French have already paid a price for their initial support for Mr Bush. The killing of 11 French submarine technicians in Karachi has been followed by the suicide attack on the French oil tanker Limburg off the coast of Yemen. Now, it seems, it is the turn of Australia. . . .

So who is next? When is Britain's turn? . . . Our support for the United States -- an infinitely closer alliance than any support from France -- makes Britain the most likely candidate for attack after the US. Then there are the small, more vulnerable nations that give quiet assistance to the American military; Belgium, which hosts Nato HQ; Canada, whose special forces have also been operating in Afghanistan; Ireland, which allows US military aircraft to refuel at Shannon.

And of course there's no reason why only military aid can lead to "discontent and hatred"; the French, after all, didn't provide a vast amount of military aid to the U.S. If the U.S. becomes more multilateralist, and the French fail to veto a U.N. resolution that ultimately enables the U.S. to attack Iraq, then surely the French would become understandable targets of pro-Iraqi forces' hatred and discontent.

     So to the extent that the potential veto countries "[subject t]he substance of [their] policies . . . to a new kind of appraisal, one that explicitly accounts for the discontent and hatred the policies arouse," a policy of only acting multilaterally spells disaster for our security -- because those countries will (surprise, surprise) exercise their effective veto with an eye towards what's safest for them, and with little regard to what's right or good to protect us. The more the potential veto countries worry about preventing retaliation from our enemies, the less likely they are to allow us to engage in legitimate defense against those enemies.

     Mandatory multilateralism works only if the potential veto countries (the Security Council vetoholders, our Western allies, or our Middle Eastern allies) resolve to abandon the "avoid provoking discontent and hatred" approach -- only if they adopt the "cowboy mentality" of "do your worst, because we'd rather try to destroy you if attack us than prevent the attacks by trying not to provoke you." And conversely, the more this pragmatic-seeming, peace-loving, eminently reasonable desire to prevent hatred and discontent pervades our potential allies' thinking, the more willing we must abandon mandatory multilateralism, and be willing to act unilaterally.

 
[Eugene Volokh, 8:15 AM]
PRO-LIFE GROUP RECOGNIZED AT WASHINGTON UNIVERSITY (ST. LOUIS) LAW SCHOOL, by a 26-6-4 vote of the student government. Report from The Corner.

 
[Eugene Volokh, 7:11 AM]
BRIEF FOLLOW-UP ON STUDENT GROUPS AND STUDENT GOVERNMENTS: Reader Seth Farber writes the following. I particularly like the last line.

Oh how nostalgic! This kind of reminds me of those halcyon days as Student Bar Association secretary at dear old mega-liberal NYU Law, when the Federalist Society chapter was formed, and we duly busted the representative's chops about the likely small inclusion of membership in the chapter (at that time, around, oh, 2; I'm not sure how much bigger it is now), and then gave them their charter; the complaint was why we gave the FS any inquiry at all, unlike most other clubs we approved. Those Federalist Society folks can be so touchy!

But the REAL event I'm thinking of at dear old NYU was a couple of years after graduating, when, with my wife and I taking a turn as moot court judges, a major controversy erupted over a moot court issue involving issues of gay adoption; the student body decided it was so OBVIOUS that gay people had an absolute right to adoption (not actually the case in ANY state at that time, as I recall), and that there could be no credible argument (even though such a position was actually inconsistent with... the law) against this proposition, and thus, the Moot Court Board had to come up with a different issue!

Its just tough to convince people who want to spend 3 years of their lives as Black Panthers before they kill each other for interviews at Gibson Dunn and Paul Weiss that... they... must... be... tolerant.

My eye doctor once told me that the myopia progresses rapidly in law school. He is a wise man.

 
[Eugene Volokh, 5:54 PM]
GIVING BLAME WHERE BLAME IS DUE: OpinionJournal writes:

Making the World Safe for Terrorism

If Arabs ever hijack another airplane in America, Judge Florence-Marie Cooper, Assem Bayaa and the American Civil Liberties Union will deserve part of the blame for their having gotten away with it. Cooper has ruled that Bayaa, an Arab-American and ACLU client, is free to sue United Airlines, which removed him from a flight "because the crew wasn't comfortable having him aboard," the Associated Press reports. "The lawsuit seeks an injunction barring United from discriminating against Arab-Americans."

Bayaa plainly is no terrorist, and it may be that he was the victim of invidious discrimination and nothing more. But the threat of lawsuits or injunctions against airlines creates a perverse incentive to subject Arabs to less scrutiny than other passengers -- hardly an effective way of preventing terrorist attacks. Bayaa probably has a legitimate grievance, but in this time of war, the patriotic thing to do would be to put it aside and drop the lawsuit.

The question of the proper role of racial profiling in fighting terrorism is an interesting and difficult one; so is the question of when people should stand on their legal rights and when they should shrug off the problem for the greater good.

     But if there's someone to fault here from the government, I don't think it's Judge Cooper. I couldn't find the text of Judge Cooper's decision -- I'm not sure that it's even online -- but the complaint in the case shows that Bayaa was suing partly based on 49 U.S.C. § 40127(a), which says that an “air carrier . . . may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.” It has no exceptions for emergencies, risks of terrorist attack, or what have you. It's a pretty simple and clear rule.

     And while potential litigants have the option of not suing, law firms have the option of not taking a case, and Congress has the option of not enacting a law or enacting an exception to the law, a judge is supposed to follow the law. Based on what I've seen about this case, that's all that Judge Cooper seems to have done.

 
[Eugene Volokh, 4:24 PM]
ERIK JAFFE: Just wanted to belatedly introduce our new coconspirator, Erik Jaffe. Erik is a solo appellate lawyer in D.C., specializing whenever possible in Cool Law. He clerked for Judge Douglas Ginsburg on the D.C. Circuit, and then for Justice Clarence Thomas. I've known Erik for nearly 10 years, and think the world of him (as I do of all of the Conspirators).

     During one conservation with Erik, I had an epiphany: "I know what you are," I told him. "You're an anarcho-contrarian!" Erik thought a moment, smiled, and acknowledged that this was a pretty sound description. This term had, as of this writing, never appeared in googlespace; but I think you can get a sense of what it means. I much look forward to more of Erik's contributions.

 
[Eugene Volokh, 4:15 PM]
FREE SPEECH, LIBERALS, AND CONSERVATIVES: Mark Kleiman agrees that the Washington University School of Law student government was wrong to deny recognition to the pro-life student group; but he asks the following:

Is there any organization of conservative stripe -- a group consistently identified with conservative causes, as the ACLU is consistently identified with liberal causes -- that also consistently speaks up for the free-speech rights of people with whom it disagrees?

This is certainly a reasonable question, but as with many questions of this sort, the implied comparison isn't quite as telling as it seems. A few items that lead me to this conclusion:

1. The ACLU isn't really quite as consistent on free speech issues as some might like. In the late 1980s and early 1990s, when the campus speech code debate was going strong (it has since been largely settled by court decisions, in favor of broad protection for student speech at government-run universities), the Southern California, Northern California, and San Diego ACLU supported speech codes, though the national ACLU opposed them. (See L.A. Times, 5/16/91.) In 1995, the ACLU filed a brief in Rosenberger v. Rector, a Supreme Court case, arguing that government-run universities should exclude religious newspapers (there a Christian newspaper) from funding programs. Now the ACLU or the ACLU chapters might well have had a principled reason to oppose the free speech claims there (equality, separation of church and state), and so on; but lots of groups that support some speech restrictions and oppose others have decent justifications for that. The important point is that today's ACLU doesn't "consistently speak up for the free-speech rights of people with whom it disagrees" quite as much as some might think.



2. I haven't followed this closely, but my guess is that the National Association of Scholars, the premier conservative academics' group, is pretty consistent (probably at least as much as the ACLU) in protecting free speech rights. For instance, the NAS's president, Bradford Wilson, spoke out against the University of South Florida firing Prof. Sami Al-Arian seemingly based on his seemingly pro-Islamofascist views. See Tampa Tribune, 12/21/01.



3. Mark Kleiman correctly points out that the Foundation for Individual Rights in Education, which is leading the criticism of the Washington University incident, is intentionally bipartisan -- but many of its leaders are conservatives (for instance, cofounder Alan Kors, Board of Advisors member Ricky Silberman, Board of Advisors member Christina Hoff Sommers, and others).



4. The Center for Individual Rights is probably the premier conservative public interest law firm that specializes in campus free speech issues (FIRE does less litigation and more advocacy, and is also newer and smaller). CIR has defended clients whose speech seemed to be vaguely on the right, but also both clients whose speech isn't terribly political -- for instance, in Silva v. University of New Hampshire and Cohen v. San Bernardino Valley College, their clients were professors who used sexually themed speech (hardly a traditional darling of the right) in the classroom -- and whose speech was liberal: In Scallett v. Rosenblum, their client was a professor who spoke up a great deal in favor of "diversity" (presumably of the racial and sex-based sort) in class, seemingly in rather abrasive ways.



5. More broadly, the conservative legal movement isn't organized in quite the same way as the liberal legal movement. There's no real equivalent of the ACLU. The Federalist Society has a broad membership, but it generally doesn't take any official positions on any specific controversies (though of course many of its members do). The other groups are necessarily lower-profile and focused on narrower areas; outsiders are less likely to know about them.

My sense is that both the liberal and conservative movements are full of people of all stripes. Some genuinely support a broad view of free speech, for speakers across ideological boundaries. Other genuinely support a narrower view, but one that's likewise evenhanded (for instance, that the government should have a free hand in deciding which groups to fund).

     Still others take the same views in principle, but decide that they should devote their scarce resources to taking care of those on their side, on the theory that there are plenty of people on the other side who can take care of their own. Still others sincerely believe their views about free speech are politically evenhanded, but have political blinders that keep them from seeing that they're applying their rules inconsistently. And some don't care at all about free speech as a principle, but simply want to protect their own side and silence the other side.

     It's far from clear to me that the liberal and conservative movements today break down differently into these subgroups. Perhaps they do, but I've seen no real evidence of that, among Justices, scholars, lawyers, activist groups, or members of the public.

 
[Eugene Volokh, 3:27 PM]
ONE REASON I'M SUSPICIOUS OF "INTERNATIONAL HUMAN RIGHTS LAW": Check out this AP wire story (thanks to reader Glenn Bowen for passing it along):

Britain should repeal a 142-year-old law giving parents the right to spank their children because it violates an international treaty, a United Nations . . . committee said Friday.

The U.N. Committee on the Rights of the Child, which oversees a 1989 accord protecting youngsters, said it welcomed British legislation abolishing corporal punishment in schools.

But it also called for the repeal of an 1860 law that allows parents to use "reasonable chastisement" to punish their children. . . .

The committee said it "deeply regrets that (Britain) persists in retaining the defense of 'reasonable chastisement' and has taken no significant action toward prohibiting all corporal punishment of children in the family." The committee had asked Britain to overturn the law in 1995.

Government proposals to limit -- but not abolish -- the provision do not comply with the 1989 convention and are a "serious violation of the dignity of the child," the committee said.

"Moreover, they suggest that some forms of corporal punishment are acceptable and therefore undermine educational measures to promote positive and non-violent discipline." . . .

Former President Clinton's administration signed the convention but never submitted it for Senate ratification because a number of groups argued it infringed on the rights of parents.

The United States is one of only two countries -- the other is Somalia -- that has not ratified the treaty.

I don't know what the right approach to childrearing is. I suspect it's occasional spanking for grave offenses, but very little (the was I was raised). I also suspect that parents should be given considerable latitude here, so the legal rule should be relatively tolerant of parents' choices, of course within certain boundaries.

     But I am pretty sure that this is decision that Americans should make for ourselves (preferably at the state level rather than the federal level, incidentally), and not one that should be decided by "the international community," which is to say by a small, unelected, and unrepresentative cadre of activists and international bureaucrats. Remember this story when people next complain about how outrageous it is for the U.S. to refuse to sign these sorts of treaties, and how "only the U.S. and Somalia" have failed to sign on.

     Incidentally, how many of the countries that do ban all spanking pursuant to the treaty are actually likely to enforce the ban (unless they already had the ban implemented as part of their own local culture)? How many of them were even intending to comply with the treaty when they originally signed it? Not all, I suspect -- probably not even a majority.

 
[Eugene Volokh, 12:15 PM]
SPANKING: A FoxNews columnist writes the following (seemingly endorsing it, though the article shifts at times from describing activists' arguments to describing the author's own):

Anti-spanking activists argue the entire premise -- that a parent is entitled to inflict some physical force upon his or her child -- is horrifically flawed. Children are the most vulnerable members of our society. They are completely defenseless and completely dependent, the easiest of targets. Why are they the only class of citizen that can be, under certain circumstances, legally assaulted?

If Madelyn Toogood delivered that same beating to anyone other than her own child, her actions would not be subject to debate or interpretation. The fact that the perpetrator gave birth to the victim should not open the door to justification. Society has recognized a wedding license is not a license to assault a spouse. Why don't children deserve the same protection from their parents as their parents have from each another? . . .

[T]he issue is only complex and delicate if it extends from the premise that there are non-criminal, acceptable forms of child abuse -- that giving birth to a human being gives you some inalienable right to physically assault that person within some sort of culturally acceptable parameters. . . .

If we were to decide as a culture that beating children is an immoral and unacceptable violent crime, as wrong and illegal as beating a spouse or a stranger -- that there is no legitimate reason for an adult to physically assault a child -- [then] the issue is really not so complex or delicate.

I'm not a defender of absolute parental rights, but this argument just doesn't fly. To see why, consider the following arguments:

1. "If [a mother locked] anyone other than her own child [in the child's room], her actions would not be subject to debate or interpretation. If we were to decide as a culture that [imprisoning] children is an immoral and unacceptable violent crime, as wrong as [imprisoning] a spouse or a stranger . . . [then] the issue is really not so complex or delicate."



2. "If [a parent called the police to complain about] anyone other than her own child [voluntarily leaving her home], her actions would not be subject to debate or interpretation." The police would tell her that anyone can leave home whenever they want to.



3. "If [a person threw out alcohol belonging to] anyone other than her own child . . ., her actions would not be subject to debate or interpretation. If we were to decide as a culture that [stealing from] children is an immoral and unacceptable [property] crime, as wrong as [stealing from] a spouse or a stranger . . . [then] the issue is really not so complex or delicate."

Of course we'd reject these arguments, because we realize that children aren't just small adults. Children lack the full intellectual faculties of adults, and therefore don't have the same set of rights (at least vis-a-vis their parents) that adults have.

     Now children surely have some rights vis-a-vis their parents; we don't let parents kill their children, or have sex with them, or beat them so severely that the beating causes serious damage. Likewise, we wouldn't let parents lock their children up for years on end, or take their property generally. Where to draw the line between permissible detention or taking of property and impermissible detention or taking of property is a hard question.

     Likewise with unwanted physical contact (which is what "assault" means in this context). Maybe some spanking should be allowed. Maybe no spanking should be allowed but physical constraint aimed at moving the child -- grabbing the child by the arm and forcibly taking the child from one place to another -- should be allowed. (Note that such grabbing would be assault if done to a nonconsenting and objecting adult.) Maybe a great deal of spanking should be allowed, short of that which causes serious or permanent physical injury. I'm not knowledgeable enough on the subject to state an opinion.

     But it is quite clear that the analysis can't be resolved just by saying "We don't let people do this to adults, so we shouldn't let people do this to their children."

 
[Eugene Volokh, 11:46 AM]
LATEST NONSENSE FROM NETWORK SOLUTIONS / VERISIGN: It looked like they were ready to take care of my simple hosting change request (I need to move five domain names from being hosted by an outside provider to being hosted here at UCLA); but now there's a snag -- they need to confirm that the UCLA School of Law address is legitimate. They'd asked me this before, so I sent them a copy of the address in the American Association of Law Schools Directory of Law Teachers. Not enough, they tell me: They need a utility bill.

     Yup, that's right, I'm supposed to find the place somewhere on campus that pays UCLA's electricity bills, and have them get me a copy. Do you suppose that even if the AALS Directory isn't good enough for them, Network Solutions might come up with some more sensible sort of proof? Or maybe even go to www.ucla.edu and check it out for themselves?

     Either they're incompetent, or they don't care at all about customers, or both.

 
[Eugene Volokh, 10:58 AM]
AN ENCOURAGING NEWSPAPER STORY (thanks to blarmed for passing it along):

A man shot by a woman early Thursday in Homewood has emerged as a suspect in a string of recent sex assaults in the East End.

Police said the suspect, a black man in his early 20s, pointed a rifle at the woman in two separate incidents. The second time, the woman, who is licensed to carry a gun, shot him. . . .

Although the man did not try to sexually assault the woman who shot him, police are trying to determine whether he is responsible for attacking five other women in East Liberty, Highland Park and Garfield since late September. . . .

In each of the attacks, a woman was approached from behind, just as the woman Thursday morning was. In three of the five incidents, the man mentioned a weapon or the victim saw it. Those attacks, however, occurred a few miles away from Thursday morning's incident. . . .

According to the police affidavit, at 4:04 Thursday morning a woman was walking on North Murtland Avenue when a man approached her from behind, pointed a rifle at her and told her to stand there while he shot her. The woman pleaded for her life, then ran and screamed for someone to call the police. The man fled.

About 90 minutes later, the woman was walking on Brushton Avenue and noticed two black men talking on a corner. As she walked up a hill, one of the men came up behind her. When he caught up with her, she realized he was the man who had threatened to shoot her.

She said to the man, "This hill gets to you," and the man agreed. At the top, he was out of breath and sat down. She continued walking, more quickly, and then heard someone running behind her. The man pulled a .22-caliber rifle out of his pants and pointed it at her.

The woman, who is licensed to carry a gun, pulled out a .357 revolver and shot the man, who collapsed near some steps. She yelled for someone to call police.

The debates about concealed carry laws, and about gun control generally, ought not, I think, be fought based on anecdotes, whether pro-gun-rights or pro-gun-control. One can only find out the merits of a policy by looking at aggregate data, plus whatever moral or constitutional logic that one thinks is relevant; in a nation of 280 million people, there are going to be isolated incidents that fit virtually any profile.

     Nonetheless, I've generally found that even logically and empirically sound arguments work best if they also include some specific incidents as illustrations -- that just seems to be the way the human mind works. There are indeed plenty of defensive gun uses each year; there's a hot controversy about how many there are (the estimates range from just under 100,000/year to 2.5 million/year), but there certainly are lots of them. And this case seems like a very good illustration of this phenomenon.

     And it's also just good to hear about, I think.

 
[Eugene Volokh, 9:00 AM]
OSAMA BIN LADEN, VACLAV HAVEL, ALEXANDER SOLZHENITSYN, WHATEVER: InstaPundit cites the UK Channel 5 story about Bin Laden supposedly praising the Bali murders and the Kuwait attack; both he and the story stress that there's no evidence that the statement was indeed from Bin Laden.

     The most striking item that I saw in the story, though, was that Bin Laden was called "the Saudi dissident." Now I had thought that dissidents were those who express dissent -- those who say things that criticize a dominant regime (whether a political regime or a religious movement), or sometimes cast votes that disagree with the regime's leaders (e.g., dissident shareholders in business corporations). A quick look into the New Shorter Oxford confirms this.

     I'd never heard this used before to refer to people who dissent by, well, murdering people. True, "actions speak louder than words," and therefore one could, I suppose, say that Timothy McVeigh was a "dissident," or for that matter that Hitler was a "dissident" against the then-dominant European ideology. One could even say that Jeffrey Dahmer was a dissident against the government's forcible insistence that you shouldn't kill people and eat them. But that wouldn't be quite in keeping with the connotations of the term, it seems to me. Likewise "Saudi dissident" Osama Bin Laden strikes me as an odd thing to say (unless conventional British usage is different from conventional American usage) -- perhaps not literally wrong, but quite inconsistent with the term's usual connotation.