The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Saturday, October 26, 2002


AL-QA'EDA / RUSSIAN TERRORISM LINK: According to Walter Olson's,
London's Telegraph reports that it "has learned that a number of Arab fighters, believed to be of Saudi Arabian and Yemeni origin, were among the group that seized control of the theatre. 'There were definitely Arab terrorists in the building with links to al-Qa'eda,' said a senior Western diplomat. . . . Russian officials said that the hostage-takers had made several calls to the United Arab Emirates during the siege." (Christina Lamb and Ben Aris, "Russians probe al-Qa'eda link as Moscow siege ends with 150 dead.")
(Links available at overlawyered.)


REMEMBER THE TIME CHANGE. As they say, spring up, fall down. Or is it spring left, fall right? Spring in, fall out? Something like that.


IT'S ALWAYS COOL TO PICK ON CHARLTON HESTON: In the middle of an otherwise quite good New York Times piece by Frank Rich, we see this:
In Washington, though, the threat level remains frozen at yellow. The Democrats have gone home to decry the economy. The president is off campaigning, too, outdoing even his predecessor in money raised and days devoted to sheer politics. Poor old Charlton Heston could be found waving his rifle to cheering crowds, defending his Second Amendment rights über alles, even as a man with a rifle was bagging human game in the capital. Neither the president nor Tom Daschle wanted to do more than ask for a study or "take a look" at the terrorism-fighting possibilities of ballistics fingerprinting.
Note first the use of "über alles," a slogan associated with the Nazis ("Deutschland über alles"). What possible relevance could this have, except as a gratuitous and unsupported slam against Heston? (There are lots of perfectly normal English ways of saying this, if you're not intentionally trying to get a cheap dig against the enemies.)

     Second, note the demonization of the device -- as if it is somehow evil per se to display a rifle. Rifles are, of course, used by our soldiers. Rifles were used by American revolutionaries (as best I can tell, the story that Rich is referring to involves Heston displaying a flintlock, which is mostly today a symbol of the Minuteman and the American revolution). There are likely about 100 million rifles today in America, the overwhelming majority owned by law-abiding Americans, and mostly used either for hunting or for target practice. I suspect that over 95% of all rifles will never be used in a crime. Most gun control advocates have long claimed that they're not really after people's rifles, but at most want to ban their handguns (though some have indeed said that they want to disarm people generally) -- so even they acknowledge that the rifle is a legitimate thing for people to own. And because someone is abusing one rifle, it's somehow bad to display another rifle?

     Third, note what exactly the President and Daschle are being faulted for -- doing "no more than ask[ing] for a study." Seems to me that even if one does think that ballistics registries might be a good idea, it would be good to study the matter a bit to figure this out, no? So far, they've only been tried in two states, and have apparently helped very little in solving crimes. There are plausible arguments that they aren't really going to be accurate, because as the barrel wears, the supposed "fingerprint" changes. Maybe all that's wrong, but wouldn't it be good to look into this a bit before spending hundreds of millions of dollars to set up a nationwide registry, if only to figure out what design for the registry would be the bast one? Or is Rich so knowledgeable in ballistics that he knows for sure that of course the ballistics registry is necessary, and that he knows just how it should be set up?

     Finally, note how the three items above tie together. Rich doesn't say exactly what the President and Daschle should be doing -- he leaves that quite vague, except to say that they should be doing more than studying the feasibility of ballistics registries. One possible interpretation is that he's calling for them to actually create a ballistics registry. But is that it? After all, he wasn't complaining about Heston being against such registries -- he thought there was something patently awful in Heston even displaying the rifle. Not only that, but it was awful enough to justify implicitly linking Heston with Nazis. Is Rich calling for broader restrictions? Bans on rifles, perhaps? Well, the funny thing is that Rich doesn't tell us. If he had, then readers could have evaluated his proposal, and considered the arguments that he would have had to give in favor of it. But he didn't. All he did do is impugn the character of those who disagree with him on this issue.


MALVO UPDATE: Today's Washington Times reports that John Lee Malvo probably was the gunman in at least some of the sniper killings in Washington, DC. Other evidence suggests that he was actively involved in crafting the threatening letters (the Jamaican five-stars signal, for instance) and placed several of the calls to the police (who have reported that the sniper spoke in an accent). In other words, it is clear that he was a full partner in the sniper scheme.

     Again, this sheds light on the debate over the Supreme Court's approach to the Stanford case earlier this week. Critics of the majority argued that the Constitution compels that no 17 year old should ever be eligible for the death penalty. This suggests that there is some inherent and unalterable distinction to be drawn between Malvo and his partner, even if they acted as full conspirators. Moreover, this disntiction is supposedly so clear and fundamental that it should be read into the Constitution itself. The majority's opinion leaves it to the discretion of voters and jurors to determine in any given case whether an individual demonstrates the understanding and culpability to warrant execution. In fact, Maryland voters have prohibited execution of Malvo if he is convicted; Virginia voters would permit it.

     If you oppose the death penalty in all cases, then obviously you oppose it here. Or if you draw a fundamental moral distinction between a 17 year old and 18 year old murderer, even a 17 year-old who is a full partner in the conspiracy, then so be it. But there is nothing in the Constitution that compels this distinction, for reasons that we have been reminded of dramatically this week.

Friday, October 25, 2002


North Korea proudly announced in 1994 that it had begun withdrawing plutonium-rich fuel rods from one of its nuclear reactors, which the world knew would enable the Stalinist government to build a half-dozen bombs. Coupled with its threat to turn South Korea's capital, Seoul, into "a sea of fire," this threat to the nonproliferation treaty deeply worried Bill Clinton's Pentagon.

Tough-minded negotiators were needed to head off the dictator Kim Il Sung's plan. Two senators steeped in arms control were selected to go to Pyongyang: Richard Lugar and Sam Nunn. They prepared to board a military transport plane, but the dictator refused them permission to enter his country; he had a different kind of intermediary in mind.

Enter Jimmy Carter. Within a month after the rejection of Lugar and Nunn, our former president was in the dictator's office, in front of CNN cameras, announcing — as only an unofficial emissary, of course — that he had personally worked out a deal to defuse the crisis. In return for suspending plutonium production, the Koreans would receive free oil, a light-water nuclear reactor said to be less dangerous, and the top-level diplomatic contacts it long sought.

"It was kind of like a miracle," breathed Jimmy Carter about his supposed conversion of the North Korean leader from lion to lamb on live TV.
This from a fine William Safire piece (thanks to Andrew Sullivan for the pointer).


MOSCOW HOSTAGE-TAKING / MURDER: Walter Olson's Overlawyered collects some very good links to coverage of the crisis, and to commentary about it.


GUN REGISTRATION, GUN CONFISCATION, AND A QUOTE FROM AN ACLU LOCAL DIRECTOR: Many of you know how many seemingly telling quotes from various figures end up being spurious, and for some reason the gun debate has had more than its share. It's gotten to where I'm skeptical of virtually every quote that I hear, and do some research (or have the excellent UCLA reference librarians do it for me) before repeating it.

     I just learned, though, that my skepticism as to one particular quote was unfounded, and I thought I'd pass along the information just in case others are interested. (If you've used the quote, you'll now have a precise citation, which can help other skeptical readers check it.) I don't want to overstate how telling it is -- among other things, the views of ACLU local directors are not those of the ACLU generally, and I'm unaware that this fellow was unusually noteworthy -- but here it is, for whatever it's worth. This is from the Testimony of Charles T. Morgan, Director, Washington Office, ACLU, Hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representations, 94th Cong., 1st Sess., on Firearms Legislation, serial No. 11, pt. 8; the dates are listed on the cover as being May 14, July 17, 23, 24, September 24, and October 1 and 9, 1975 -- the photocopy that I have isn't clear on precisely what day the testimony was given, but I'll try to check when I get back to the office Monday. The testimony starts on p. 2951, and the quote is from p. 2952:
What the administation's and Congressman McClory's bills . . . call for is a whole new set of Federal records. . . .

     I have not one doubt, even if I am in agreement with the National Rifle Association, that that kind of a record-keeping procedure is the first step to eventual confiscation under one administration or another.
And this even though Mr. Morgan made clear that "I am in favor of the abolition of handguns" (though he opposed the abolition of long guns).


NON-BALLISTIC FINGERPRINTING: As Juan mentioned below (sorry, I'm on the road with a slow connection, and hot-links are hard to do), mandatory ballistic recording of all new guns does not seem likely to work; as I mentioned in a post a week or so ago, I think that if it did work, it might be worth doing, even though it does somewhat increase the risk that the ballistics database may facilitate future gun confiscation. In my view, this is a matter for cost-benefit analysis. Right now, the benefits seem very small, so even a slight risk that the database can be abused is enough to reject it. But if the benefits become large enough, they may outweigh the slight risk. Yes, not a terribly satisfying form of analysis -- but a necessary one, I think.

     But the recent talk of ballistics databases came from the sniper case, and how was the sniper caught? In part (and, as I understand it, this was a necessary part), through an ordinary fingerprints database. Fortunately, Malvo's prints were recorded by the Immigration and Naturalization Service. And if Malvo had been born in the U.S., and never did anything that would have led him to be fingerprinted, the snipers (and again I'm working on the assumption that Mohammad and Malvo are indeed the snipers) might still be killing.

     Regular fingerprints are not easy to alter; they don't fade with time; they are left in many crimes that don't involve guns; though you can avoid leaving them by wearing gloves, you can also avoid being caught through a ballistics database by using an old gun, or a stolen one. And we know that though fingerprinting has been around for decades, many criminals do not wear gloves, and do leave prints. A nationwide, truly comprehensive, searchable fingerprint database could really help fight crime.

     So of course can a comprehensive nationwide DNA database, for clearing the many crimes where the criminal leaves enough bodily fluids (or bodily solids) at the scene of the crime. Such a database could dramatically increase the clearance rate for stranger rape, but also for many other crimes, for instance assaults, robberies, or murders where the victim fights back and gets some of the attacker's skin under her fingernails, or causes the robber to bleed.

     Now many people have made this argument before as part of a parade of horribles: we started with car registries, then fingerprint registries for some people, now we're talking about ballistics registries, soon it will be fingerprint registries for everyone, and then DNA registries for everyone. But that is not my claim; I'm being serious here. These sorts of databases -- including a ballistics registry, if it works (which I just think is unlikely, at least today) -- may indeed be tremendously useful law enforcement tools, which can help protect our lives, bodies, and property against crime (though of course not all crime).

     Some people respond that these databases are imperfect. Of course they are, and so is everything else. Eyewitness testimony is much more imperfect (both because there often isn't an eyewitness who saw things clearly enough, and because eyewitnesses are often mistaken), but we don't abandon it as a result; we use it as best we can.

     Others point out that criminals can change their behavior to avoid being caught -- for instance, I heard some people point out that rapists who are worried about being caught through DNA matches will use condoms. Well, first, if rapists switch to using condoms, that itself will be a net plus (assuming it won't increase the net amount of rapes above the pre-DNA-database levels, and I don't think it will); rape would remaine a heinous crime, but at least if the rapist uses a condom, the chances of the woman getting HIV (or getting some other sexually transmitted disases, or getting pregnant) will be less. Second, some rapists may not switch (lots of dumb criminals out there, or criminals who aren't good at thinking ahead), and we'll catch them. Third, even those rapists might be caught if, say, the victim scratches them in the struggle and gets some skin under her fingernails.

     So the benefits of these databases, I think, would be quite real, just like the more narrow fingerprint databases have real benefits today. The real argument against them, I think, must be the risk of government abuse.

     This is of course a serious argument; we shouldn't focus so much on protecting our lives, liberty, and property from criminals that we blind ourselves to the risk of losing our lives, liberty, and property to the government. But on the other hand, we shouldn't focus so much on protecting our lives, liberty, and property from the government that we blind ourselves to the risk of losing our lives, liberty, and property to criminals.

     The mere risk of abuse can't be enough to reject some proposed crime-fighting tool. Having police in the first place creates a risk of abuse (and police abuses have of course happened); but that doesn't mean we should disband the police. Arming police creates a risk of abuse, but that doesn't mean we should disarm the police. Letting the police search people's property, even with a probable cause and a warrant, creates a risk of abuse, but that doesn't mean we should categorically prohibit searches. Letting one police department communicate with others creates a risk of abuse, because it makes it harder for innocent people who are wrongly accused to flee and start a new life elsewhere; but that doesn't mean that we should prohibit such communication, and thus let guilty people who are rightly accused flee.

     Instead, to reject a particular crime-control proposal, we need to have a concrete argument that persuasively explains just how the proposal's costs are likely to outweigh the benefits. Part of the costs may be dignitary costs -- for instance, we might be bothered by the very fact that innocent people are being required to give DNA samples or fingerprints to the police. But dignitary costs, I think, go only so far; it may be proper to sacrifice this much of our dignity to minimize the chances that we'll be subjected to the far greater indignities of murder, rape, robbery, and assault.

     Another part may be the risk of abuse, the risk that these tools, which can be used for good as well as for ill, will indeed be used by the government to oppress us. And that risk might be enough for us to decide against having comprehensive DNA databases, or comprehensive fingerprint databases, or ballistics records, or even the modest fingerprint databases that we already have. But the risk can't be just asserted; there has to be a persuasive case to be made that the risk really is substantial, and outweighs the substantial potential benefits. So far I have not heard such a case made with regard to DNA databases or fingerprint databases. And while I would not support adopting such databases now -- I do think that this is an important enough step, and that the potential costs and benefits of the databases haven't yet been fully enough discussed -- it seems to me that these proposals need to be on the table, and that both their costs and benefits need to be taken seriously.


MICHAEL BELLESILES RESIGNS FROM EMORY FACULTY: Many of you have already heard about this, but here's a link to InstaPundit's coverage, which has links to the Emory report -- quite damning -- and to other commentaries, especially a quite apt one by Clayton Cramer.

     I know Lindgren in person, and Cramer by e-mail, and have always had high regard for their work, which was indispensable in bringing this matter to light, and helping correct the historical record. This is not an occasion to congratulate them; but it is one to thank them (and the others who researched the issue and helped publicize the research) for doing well a difficult, unpleasant, but important job.


WHO DESERVES THE DEATH PENALTY?: Just this week by a narrow 5-4 vote the Supreme Court refused to overturn the death-penality sentence of a 17 year murderer. 20 years ago 17-year old Kevin Nigel Stanford robbed, sodomized, and murdered a woman, for which he was sentenced to be executed. The four dissenters branded it a "shameful practice" to execute 16 and 17 year old juveniles that was inconsistent with our "evolving standards of decency."

     Needless to say, the Court's ruling was met with outrage in the media. In the words of The Washington Post: "The juvenile death penalty -- with its arrogant assumption that society can judge whether someone who is still a child will prove redeemable over the course of his life -- is one of the least defensible aspects of American capital punishment." And the reliably-outraged New York Times protested that the majority had an obligation to explain why the Constitution bars the execution of the retarded, but not juveniles.

     Now we have our explanation.

     John Lee Malvo, the 17 year old Washington sniper.

     Assuming that the crimes are proven against him, is there any doubt that if anyone deserves to be executed, Malvo does? Is there any doubt that this cold-blooded murderer is beyond redemption? Finally, is there any doubt that the majority opinion in Stanford was correct in recognizing the power of citizens and juries to execute depraved and irredeemable murderers, even if they happen to be below the level that that the Post, Times, and four dissenters on the Supreme Court think is the "right" age? Some 17 year olds deserve the death penalty, and the Supreme Court was right to trust to citizens and jurors, rather than the New York Times and Washington Post, to recognize it.


ONE MORE BRITISH LAWYER GAG: I heard this years ago, and don't remember the source, but it purports to be an actual incident in a British appellate court, many decades ago. The lawyer was arguing some point of law, on behalf of some poor tenant farmers who were suing someone on a tort theory, and one of the judges asked something on the order of
Counsel, are your clients familiar with the doctrine of res ipsa loquitur?
Literally a deeply silly question, but not unconventional, given the weird way in which the lawyer and the client are treated together in litigation. The lawyer replied:
In the barren fields in which my clients toil, talk is of little else.

Thursday, October 24, 2002


KNOW YOUR BLOGGER: Just a tip -- if you're responding to a blog post, please look closely at who wrote the post, and send the e-mail directly to the poster. To get the e-mail address, just go to the top of our page, and click on the appropriate name in the upper-left hand corner -- that will take you to the person's home page, or to the post that contains their introduction and their e-mail address.

     As you might gather, I'm posting this because a lot of people have been e-mailing me about posts, without realizing that I wasn't in fact the author.


WHEN SHE'S RIGHT, SHE'S RIGHT: Dahlia Lithwick discusses the execution of murderers who killed when they were under 18 -- a topic that has been highlighted both by (1) the Supreme Court's refusal on Monday to reconsider whether this should be constitutional (Justice Stevens wrote a dissenting opinion), and (2) the fact that one of the sniper team, Malvo, is 17 (though of course at this point any speculation about his eventual fate is just the sheerest of speculation, since we know so little of the circumstances) -- and I think her closing paragraph gets it exactly right:
To be sure, when Justice Stevens and the dissenters think about 17-year-old killers, they are imagining a psychosocial stew of hormones, playgrounds, shaming, and a lack of impulse control that usually characterizes teenage violence. This case -- with its meticulously planned acts of depravity and craven attempts at pecuniary gain -- doesn't fit very well with Stevens' social science. Perhaps that's why O'Connor and Kennedy voted as they did. In the wake of Columbine, and through the eyes of the blood-spattered, 17-year-old serial killers aren't always confused children with underdeveloped brains. Sometimes they're just evil.


BALLISTIC FINGERPRINTING - KOPEL V. KLEIMAN: I asked for serious arguments in favor of ballistic fingerprinting and Mark Kleiman was good enough to respond. I appreciate several of his points, but I am remain skeptical.

Dave Kopel made several compelling points against ballistic fingerprinting: 1) ballistic fingerprinting is not particularly accurate or reliable, particularly when used to analyze bullet samples; 2) creating a database of ballistic "fingerprints" will be difficult and expensive; and 3) creating such a database represents a substantial step toward mandatory gun registration. Much of Kleiman's post focuses on the third argument, and suggests a ballistic fingerprint tracking system could be created that would not be tantamount to registration. I am not so sure. It seems that for a database to work, the government would have to maintain information on who purchased which guns, and perhaps even include information on who owns those guns already purchased (for if the system only applied to new guns, it would be quite limited). That sort of database does seem to be a bit like a national registration system. Gun dealers may be required to keep information about gun sales, but the federal government is prohibited from keeping information on gun purchaser background checks. Nonetheless, I think Kleiman makes some reasonable arguments here -- not every gun-related proposal is a slippery slope.

I think Kopel's strongest arguments are the first two -- as they suggest ballistic fingerprinting doesn't really do what it is supposed to do -- and I think Kleiman has offered less substantial arguments here. First, he focuses on shell casings, where I believe the real issue is identifying the source of individual bullets or bullet fragments. Sure, linking shell casings to a given gun can be important, but it seems that it is more important to be able to link a recovered bullet to a gun (and that is the sort of thing that I've seen discussed most often in the press).

Kleiman also appears to focus on those cases in which the aim is to match two specific shell casings, such as one found at a crime scene and one obtained from a suspect's gun. This is certainly a valuable forensic technique, but it is hardly the sort of ballistic fingerprinting at issue. Rather, the question is whether authorities could compare a crime scene sample with a database with thousands, if not millions, of sample so as to enable investigators to identify the source of of the recovered bullet, and thereby trace the gun used in the crime. Kopel explains in some detail why such a scheme is unrealistic and impractical. Kleiman disputes these claims, but has yet to offer much support (though I would encourage him to do so). For instance, Kopel claims that the Maryland system is quite costly, and yet has failed to help solve a single crime. Kleiman claims this system "is not the proposed national system." This may be so, but without knowing how the proposed national system would be different, it is difficult to evaluate claims that it would be less expensive and more effective. Kleiman also does not address the inherent physical limitations of ballistic fingerprinting, such as the effect of wear of gun barrels over time, and how this could limit the effectiveness of the technique.

I am willing to believe that Kopel has overstated the case against ballistic fingerprinting -- he certainly is not averse to hyperbole (are any of us?) -- but I have yet to see much evidence that his fundamental claims are unsound. For this reason, I am still inclined to think a national ballistic fingerprinting database is a bad idea. That said, I am still quite willing to entertain arguments to the contrary.

UPDATE: A reader e-mails some information suggesting the futility of ballistic fingerprinting for bullets (which is dependent upon the marks left by the rifling of the barrel):
It only takes 5 minutes to change the barrel of a Colt Government model .45ACP or Barretta 9mm. It takes a little longer, about 30 minutes, for a gunsmith to change the barrel of an AR-15/M-16 or M-40 (Remington mfg. sniper rifle).
One counter-argument to this might be that it's easy for criminals to avoid leaving fingerprints too -- just wear gloves. (Indeed, Kleiman made this point in his post.) On the other hand, wearing gloves can make it difficult to perform certain tasks, and I doubt the same can be said for changing the barrel of a gun.

UPDATE: Kleiman has added a useful update to his prior post that makes clear that the proposed system he is defending is quite different (and far less threatening to gun-rights advocates) than the proposal Kopel criticized.

YET ANOTHER UPDATE: Kleiman has a question for Kopel (see link above); Kopel e-mails to say he hasn't used hyperbole in a thousand years; Glenn Reynolds gave this thread a link (thanks Glenn!); and Scott Danahy and Matt Rustler (a pseudonym, methinks) add their two cents.


BIG BROTHER CATCHES THE SNIPER!: I've been patching together news reports about how the police caught the man believed to be the sniper, and the answer seems to be this: the police caught the sniper by using massive government databases, citizen informants, and government information sharing. All apparently without any judicial review.

     Here's how it happened, at least as best I can tell based on the initial press reports. It seems that the police set up an information line asking citizens to inform the police about what they knew about the sniper, and someone called in to tell them to check out a murder in Montgomery, Alabama. The DC-area authorities then asked the Alabama authorities to share all of the information they had collected about the Alabama murder. The Alabama police disclosed all of their evidence to the DC-area authorities, apparently without any judicial review or court order. That information included a unique biometric form of identification: a fingerprint. The police then entered the unique biometric identifier into a massive government database of fingerprints (again, apparently without any judicial review), and were able to find a match that identified one suspect, John Lee Malvo.

     The police then interviewed people about Malvo, and learned that Malvo was with his father-in-law, John Allen Muhammad. It seems that these interviews were conducted "voluntarily," and without any court order. The police then entered Muhammad's information into another massive government database (this one maintained by a state agency known as the Department of Motor Vehicles), and learned the make and model of his car, as well as a unique identifying mark-- this one created and issued by the government-- known as a license plate. Apparently state law mandates that all drivers must have these government-issued identifiers openly visible at all times. The police then asked citizens in the DC area to act as informants and to look for the car and the license plate, and a citizen informant who spotted the car called in a government-run information line known as "911" to report the location of the car. The police swept in, and made an arrest.

     Sounds like Big Brother run amok, doesn't it? Or was it just good police work?


WELCOME TO A NEW CO-CONSPIRATOR: I'm delighted to introduce our new co-blogger Orin Kerr, who specializes in criminal law, Internet law, and patent law at George Washington University in D.C. (here's his list of publications). I've known Orin for several years now, and always much appreciate reading and hearing his thoughts.


FEINSTEIN AND THE FLAG: An earlier post on Sept. 18 reported the following, quoting the San Jose Mercury-News:
Sen. Dianne Feinstein, D-Calif., just back from Europe, said she detected growing opposition to the United States among America's allies. "The driver of a lot of this animus," she said, "is the Israeli-Palestinian conflict. To leave this unresolved and to attack an Arab country is going to be viewed as an attack on the Arab world."

She said the anti-American sentiment was so strong that she felt it personally.

"As an American, I have always been proud," Feinstein said. Referring to her U.S. flag pin, she said, "I was embarrassed to wear it."
I said that I e-mailed her office to check whether the quote was accurate, and would report back. I just got the following e-mail:
October 24, 2002
. . .
Dear Mr. Volokh:

Thank you for writing to me regarding my comments about wearing my American Flag pin. I appreciate hearing from you and I welcome the opportunity to respond.

I regret that a poor choice of words during a newspaper interview earlier this month did not accurately portray my views. I continue to wear my American flag lapel pin, fly American flags outside my homes in San Francisco and Washington, DC, and I am a proud cosponsor of the Constitutional Amendment to prohibit burning the flag. . . .
Well, there it is. I wish that Feinstein could love the flag and not try to ban people burning it (see this op-ed), but I guess that's just one of my many disagreements with her.


SAME-SEX CRUSHES, TELEVISION, MURDER, LAWSUITS, AND $29 MILLION: The Michigan Court of Appeals just decided this case
This case arises from [Jonathan Schmitz's] killing of Scott Amedure with a shotgun on March 9, 1995. Three days before the shooting, defendant appeared with Amedure and Donna Riley in Chicago for a taping of an episode of the Jenny Jones talk show, during which defendant was surprised by Amedure’s revelation that he had a secret crush on him. After the taping, defendant told many friends and acquaintances that he was quite embarrassed and humiliated by the experience and began a drinking binge.

On the morning of the shooting, defendant found a sexually suggestive note from Amedure on his front door. Defendant then drove to a local bank, withdrew money from his savings account, and purchased a 12-gauge pump action shotgun and some ammunition. Defendant then drove to Amedure’s trailer, where he confronted Amedure about the note. When Amedure just smiled at him, defendant walked out of the trailer, stating that he had to shut off his car. Instead, defendant retrieved the shotgun and returned to the trailer. Standing at the front door, defendant fired two shots into Amedure’s chest, leaving him with no chance for survival.

In the wrongful death action now before this Court, plaintiffs Patricia Graves and Frank Amedure, Sr., as personal representatives of the estate of Scott Amedure, alleged that Schmitz shot and killed Amedure as a direct and proximate result of the actions of the present defendants, the Jenny Jones Show . . ., its owner, Warner Bros., and its producer, Telepictures. Plaintiffs essentially contended that defendants “ambushed” Schmitz when they taped the episode of the show in question, intentionally withholding from Schmitz that the true topic of the show was same-sex crushes and never attempting to determine, before the show, the impact
the ambush might have on Schmitz.

Plaintiffs alleged that defendants knew or should have known that their actions would incite violence with the sole purpose of the show being the increase in television ratings, and that defendants had an affirmative duty to prevent or refrain from placing plaintiffs’ decedent in a position which would unnecessarily and unreasonably expose him to the risk of harm, albeit the criminal conduct of a third person. Plaintiffs maintained that the show breached its duty and foreseeably subjected plaintiffs’ decedent to an unreasonable risk of harm, ultimately resulting in his death.

Defendants’ motions for summary disposition and directed verdict were denied by the trial court, which opined that there were genuine issues of material fact regarding duty and foreseeability, negligence, and causation. Following extensive trial proceedings, a jury returned a verdict in plaintiffs’ favor, and a judgment was subsequently entered thereon awarding plaintiffs $29,332,686 in damages.
The panel reversed the verdict, on the grounds that under Michigan tort law, defendants generally "owe[] no legally cognizable duty to protect [people] from the [criminal] acts of a third party," and while there are important exceptions to this rule, none applied here. One judge dissented.

     Because the court reversed the judgment on tort law grounds, it didn't have to reach the interesting First Amendment issues that such liability would pose. I think such liability should generally be constitutionally precluded; the dissent's theory that "if defendants, for their own benefit, wish to produce 'ambush' shows that can conceivably create a volatile situation, they should bear the risk if a guest is psychologically unstable or criminally dangerous," and be liable for the guest's actions, seems to me inconsistent with the freedom of speech and the press. But as I mentioned, the court didn't get into this, since the majority concluded that Michigan tort law just didn't provide for liability in this situation.


TEACHER SUSPENDED: A colleague called my attention to a very interesting L.A. Times story:
A Pasadena high school teacher has been placed on administrative leave for disseminating a letter stating that, at his campus, most students who misbehave and are low academic achievers are African American.

Scott Phelps, a 12-year science teacher at John Muir High School, . . . said he was trying to predict that bad student behavior -- which, in this case, he said applies to many in Muir's large African American population -- will be responsible for the school's low Academic Performance Index scores next year.

The letter was also meant as a counterattack to the bad rap he said teachers in his district get from administrators about low student achievement.

"My intent was to get the district to stop blaming teachers or holding them solely responsible for performance," he said. "Different ethnicities are radically different. . . . I'm saying the behaviors are radically different, so we need to look at that. Nothing I said is false."

Phelps was put on administrative leave with pay and benefits, pending the results of an internal investigation, said Erik Nasarenko, a Pasadena Unified School District spokesman. . . .

The inquiry -- which the district aims to complete within a week -- will, among other things, consider whether the letter created an offensive and hostile environment for the students.

Phelps . . . first posted the letter in an Internet chat room where the school district is frequently criticized.

On Friday he also placed copies of it in his colleagues' boxes. . . .

"[O]verwhelmingly," part of the letter reads, "the students whose behavior makes the hallways deafening, who yell out for the teacher and demand immediate attention in class, who cannot seem to stop chatting and are fascinated by each other and relationships but not with academics, in short, whose behavior saps the strength and energy of us that are at the front lines, are African American." . . .

The letter also says many African American students, those whose parents are involved with school, are well-behaved. It says that because Muir is almost half African American, most of the badly behaved students are African American.

The district acted after some teachers who received the letter complained, Nasarenko said. . . .

"If you're an African American student in Mr. Phelps' class and you read this, are [you] going to go up or down?" asked Bert Voorhees, a civil rights attorney and past president of the NAACP's Pasadena chapter. "Mr. Phelps contributes with his racism to some of the problems he says he wants to tackle."
May the school district punish Phelps for his letter? The analysis turns out to be quite complex: The government acting as employer has some power to punish speech by its employees that is on matters of public concern but that risks disrupting relationships among coworkers, or relationships between the government and members of the public; but while the government has more power here than when it is acting as sovereign to punish private citizens' speech, this power is limited. The law calls for "balancing" the value of the speech against the disruption that it causes to the agency's mission, which sounds good until you realize that these things are unquantifiable, and incommensurable even if they are quantified. (See Connick v. Myers (1983) and Pickering v. Board of Ed. (1968) if you want to read more on this, but it won't be that helpful).

     I am, however, troubled by the appearance of the "whether the letter created an offensive and hostile environment for the students" language. This gets us back to hostile environment harassment law (here, focused on hostile educational environment harassment), and it raises the prospect that the government might be able to punish this speech even if it's acting as sovereign. Hostile educational environment harassment law, after all, may leave even private schools liable for massive money damages. (See Part III of this article for a discussion of this in the cyberspace context, but the law applies equally to non-cyberspace speech.)

     Say that this happened at a private school, and the private school chose not to punish the teacher for this. Say also that several similar letters were passed around by other teachers, and parents and students ended up learning about this. Under the logic of the "hostile environment" theory, a student could then sue, saying that "the letter[s] created an offensive and hostile environment for the students" -- and use the government's coercive power as sovereign (acting via its court system) to punish the school for tolerating such student speech. Very troubling, but quite plausible under the broad, vague, and constitutionally problematic theory of hostile environment law.

     But returning to the actual incident, where the government is acting as employer and thus rightly has more power, the situation is quite complex; I don't know what the right answer should be, and I'm just passing along the facts for your consideration.


SMART GUNS IN NEW JERSEY: Assemblyman Michael Carroll reports the following:
I don't know if you caught this, but we -- that is to say, a Committee of the vaunted New Jersey Legislature -- actually voted DOWN the "smart guns" bill. I voted no, my GOP colleague abstained, and the Chair (a pro-life, former FBI agent Middlesex County Democrat) abstained, too. Since a majority of the Committee (of six) is necessary to report a Bill, the proposal failed.

Not, mind you, that such stops it, but it certainly knocks one leg out from under the "movement."

I think that the major problems with the Bill are pragmatic and practical. First, I sincerely doubt that any such technology will ever be sufficiently reliable to warrant a mandate. Second, even if same comes into existence, and is relatively "cheap," it still may be such as to price firearms out of the hands of law abiding poor folks, who are disproportionately represented among the victim class. And the way the proposal was drafted, private sales of "dumb" guns were left unrestricted; only dealers were subject to the law. Which means that the entire supply of guns in NJ -- or across the nation -- would assertedly still be legal, but not through dealers.

Of course, THAT would spur a movement to close that "loophole" . . . .

It concerns me that some Elliot Spitzer-type, more politically ambitious than legally honest, and with the same respect for legislative language as our [state] Supreme Court, would seize on the proposal, declare "smart" guns available, and forbid all other sales. I would be a lot more comfortable with the proposal were the advocates of same not members of precisely the same crowd which would, at a moment's notice, happily ban ALL guns.

In any event, I guess this qualifies as "good news" from a state which is rarely the source of any.
The bill had passed in the state senate earlier this month, by a 29-3 vote.

Wednesday, October 23, 2002


THE TRUTH ABOUT CATS: P.G. Wodehouse, in The Story of Webster, writes the following. This is part of a dialogue in a bar parlor; the characters complaining about cats are named after the drinks they're drinking:

"What I've got against cats," said a Lemon Sour, speaking feelingly, as one brooding on a private grievance, "is their unreliability. They lack candor and are not square shooters. You get your cat and you call him Thomas or George, as the case may be. So far, so good. Then one morning you wake up and find six kittens in the hat-box and you have to reopen the whole matter, approaching it from an entirely different angle."


ATTITUDES TOWARDS GUNS SEEM NOT TO BE CHANGED BY SNIPER INCIDENT: So a Gallup poll seems to suggest -- one of course can't tell for sure, but if there are changes, they don't seem large enough to create a noticeable surge.
The ongoing sniper rampage outside of Washington D.C. has dominated news coverage across America since the first deadly shooting spree on Oct. 3, and has perhaps exposed the limits of law enforcement to the public in a stark new way. However, despite the frightful nature of these events, and the fact that the sniper (or snipers) remains at large, a Gallup Poll conducted Oct. 14-17, finds no evident change in public attitudes about gun ownership. . . .

The new Gallup survey finds that Americans are closely divided, as they were a year ago, over whether or not the laws covering the sale of firearms should be stricter. There has also been no change in the percentage of Americans claiming to purchase guns for their own security. What has changed is public confidence in the police. Although a majority of Americans continue to express high confidence in the police to protect them from violent crime, this figure is down somewhat compared to October 2001.
The statistics that I found most interesting, though, are the ones that are buried nearer the end of the piece. Here's one: In 1959, 60% of all respondents supported a more or less total handgun ban (except for "police and other authorized persons"). The number fell to 49% in 1965, and then has been hovering from 30%-43% from 1975 on, with the number today being 32% (though note that much of the fluctuation since 1975 might be due to the margin of error). The obvious explanation is, of course, that since the mid-1960s, increasing crime rates have led people to feel that people need guns to protect themselves.

     Thanks to InstaPundit for the link.


"SHOULD WE PAY OFF THE SNIPER?," asks Slate's Chatterbox. I don't entirely agree with the piece -- for instance, I don't think that "[t]he sniper is a devilishly skilled genius," which leads me to think that the risk of encouraging future such snipers would be very serious -- but it's worth reading, as Slate pieces usually are. Note also the link to Clayton Cramer, who deserves the recognition.


WRITE THE NATION ABOUT THEIR DEFENSE OF BELLESILES: Jesse Walker (who knows a lot about political opinion magazines) suggests this, and it strikes me as good advice; he explains why this might actually be helpful, and how this can best be done.


ANOTHER CLICHE LOGICALLY DEMOLISHED: Reader Matthew Evans points out the limitations of even an infinite number of monkeys:
While I was in your archives I noticed your post, "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."

I've always thought these sorts of statements rested on a logical fallacy. In truth, an infinite number of chimps painting an infinite number of canvases will never paint the Mona Lisa. Nor would an infinite number of chimps typing on an infinite number of typewriters write Hamlet. This is because chimps don't, in fact, paint or type randomly. And all of these examples rest on genuine randomness. But as all cryptographers know, many things that seem random (such as the brush and typing strokes of chimps) are not actually random. So even if an infinite number of rednecks shot at an infinite number of stop signs, they would only produce Shakespeare for the blind if their aim, and the distribution of shotgun pellets, were truly random.
I yield to the force of Mr. Evans' logic.

UPDATE: Jesse Walker writes:
I always wondered what the experimenters would do if their infinite number of primates produced the complete work of Marlowe. Would they keep the beasts working until they cooked up the right playwrite, or would they consider the point proven and send the monkeys home?
And, while I'm at it, this reminds me of one of my favorite cartoons -- a monkey is sitting at the typewriter, and you see the text that it's typed: "To be or not to be, that is the qqhop90e;f[ewfweqf . . . ." (Two readers e-mailed me to say that Bob Newhart used this gag in the 1960s.)

FURTHER UPDATE: Reader Chris Lansdown writes:
I have to disagree with the "logic" of Mr Evans.

Braile is composed of dents, not of holes, and thus the distance from the redneck to the stop sign is fairly significant. Even though the redneck will be aiming, at that distance the deterministic component will be dwarfed by the random components of his aim (muscle tremor, wind interference, solar flares, government mind-control lasers, etc.).

Moreover, who said that the redneck would be sober?


REVIEWER RETRACTS POSITIVE REVIEW OF ARMING AMERICA: The Federal Lawyer (the magazine of The Federal Bar Association) published a positive review in Jan. 2001 of Arming America, and the reviewer -- Michael Coblenz -- has just retracted it, see Oct. 2002 issue, p. 51 (sorry, not on the Web). The review begins, much to its credit, with:
Common sense can often be an effective tool for evaluating the truth of a claim, but sometimes, particularly when used with limited or inaccurate information, it can . . . create misunderstanding and errors. My review . . . of [Arming America] . . . is an example of such an error.
The review goes on to say that
Bellesiles' argument, which made sense on cursory review, has been shown by the foregoing analyses [Cramer's, Lindgren's, and Gloria Main's] to be wrong. As a result, it is in escapable that Bellesiles' book is fundamentally flawed.
     Oddly, the review makes a recurring point that quite puzzles me: "The National Rifle Association and other gun rights advocates have long claimed that in Colonial America every colonist owned a gun" (p. 51); "There is no way that every colonist owned a gun" (p. 51); "NRA claims of universal gun ownership" (p. 51); "the nonsensical NRA claims of universal ownership" (p. 51); "everyone did not own a gun (thus disproving the NRA's position)" (p. 53). I've never heard the NRA really claiming that everyone -- literally everyone -- owned a gun. Such a claim would be quite surprising, precisely because (as Coblenz points out), it defies "common sense," since some colonists "were just too poor to own a gun," and since some others might have objected to guns for moral reasons (though I'm not sure how many of the even pacifist colonists also abjured hunting).

     At most, I can imagine the NRA saying this as hyperbole, in the sense that some people today say "In America, everyone is armed" when they mean "My, there are a lot more guns in America than I thought there would be / should be / are in my country." See, e.g., L.A. Times, Oct. 25, 1993, at C14 ("It is also understandable for the rest of the world to think hard about vacationing in a country where, they believe, every American carries a gun and doesn't hesitate to use it.") -- did the author really mean that Europeans think that every American carries a gun (and doesn't just own one)? And given Coblenz's statement that "Here the evidence shows that everyone did not own a gun (thus disproving the NRA's position), but it does show that a significant percentage of the population did own guns, somewhere around two-thirds or three-fourths of the population, varying from colony to colony."

     But while I may disagree with the reviewer on this (at least until I see some evidence that the NRA has indeed seriously claimed that literally every American owned a gun in the late 1700s), his seeming opposition to the NRA if anything just strengthens the force (and the worthiness) of his retraction. I only wish that more reviewers were this forthright.

UPDATE: Mr. Coblenz has withdrawn his charges against the NRA; see this post.


A BIT MORE ON THE NATION'S DEFENSE OF BELLESILES: InstaPundit has been posting much more on this than I have, so I thought I'd free-ride off his efforts: Click here for an extensive discussion and here for some links. So far, it looks like the Nation really hasn't laid a glove on Bellesiles' critics.


ECONOMICS AND THE ENGLISH LANGUAGE: Here's a nice quote from Alfred Marshall (February 27, 1906):

I had a growing feeling in the later years of my work at the subject [economics] that a good mathematical theorem dealing with economic hypotheses was very unlikely to be good economics: and I went more and more on the rules -- (1) Use mathematics as a shorthand language, rather than as an engine of inquiry. (2) Keep to them till you have done. (3) Translate into English. (4) Then illustrate by examples that are important in real life. (5) Burn the mathematics. (6) If you can't succeed in 4, burn 3. This last I did often.

(Robert B. Ekelund, Jr. & Robert F. Hebert, A History of Economic Theory and Method 377 (3d ed. 1990) (quoting Memorials of Alfred Marshall 427 (A.C. Pigou ed., 1925).)

This somewhat mirrors the well-known George Orwell rules, from Politics and the English Language (1946):

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
2. Never use a long word where a short one will do.
3. If it is possible to cut a word out, always cut it out.
4. Never use the passive where you can use the active.
5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
6. Break any of these rules sooner than say anything outright barbarous.


BALLISTIC FINGERPRINTING BUST: Dave Kopel has a fairly devastating critique of "ballistic fingerprinting" on NRO. As I don't know much about the subject, I wonder if there are any serious counter-arguments.

Tuesday, October 22, 2002


GOOD FENCES MAKE GOOD NEIGHBORS: The Harvard Libertarian Society's new newsletter has come out, and they've seen fit to publish a parable I once wrote, called Good Fences Make Good Neighbors, in which I imagine a conversation between an Indian and a colonist who cares about property rights. You can read the unabridged version, with a little introduction on how the parable came to be, here.


40,000 COAT HANGERS: Jesse Walker passes along a link to story describing some interesting testimony in an English case. I have no idea whether it's true or not, but it's much worth a read. An excerpt won't do it justice; check it out yourself.
UPDATE: Reader Mark Brady reports that this is indeed a joke (as I thought might be the case). But it's a good one.


MORE ON ROMAN MARRIAGE: Eugene writes to me, after yesterday's message, "Details, man, details!" My friend Gary Leff also wants to know. But I held off until today because I wanted to check a detail that Garrett and I disagreed on. (Garrett was right.) So here goes:

The most traditional form of marriage in ancient Rome was called manus (as in "hand"). (This was the most common form at the time of the Twelve Tables in 450 B.C.; maybe half of marriages were with manus by Cicero's time; and almost no one did by the second century A.D.) If a woman was married with manus, she became the legal equivalent of her husband's daughter, as to inheritance and as to being in her husband's power. If a woman didn't get married with manus, she remained in her father's power and also inherited from him. There were three ways of getting a marriage with manus:

  • confarreatio -- this was a ceremony involving a cake made out of an obscure grain called spelt;

  • coemptio -- this was a ceremony where the husband symbolically "bought" the wife from her father (or guardian); and

  • usus -- where a woman who lived with her husband for a year became his wife by manus. Usus didn't create marriage for a cohabiting couple, so you couldn't get into a manus marriage by shacking up with your girlfriend. But it could make a marriage without manus into a marriage with manus, so that the wife's father's power was broken and the wife passed into the husband's power. The woman could avoid this by leaving her husband for three days in a year.

The interesting twist is that the usus theory, and the one-year period, is taken straight from Roman adverse possession doctrine (i.e., if you possess something long enough, it becomes legally yours -- we still have this in the U.S. today, though the periods are typically more like 10 years), which in Roman law is called usucapio (literally "use-taking"). So this is like a form of marriage that springs into being through adverse possession.

If you want to read more on Roman marriage (though I can't vouch for the accuracy of all the stuff there), you can check here (note: the first sentence of this source is wrong) and here.

UPDATE: My friend Elizabeth Kennedy tells me spelt isn't really an obscure grain; she has it in bread all the time.


OH, YEAH, THAT WILL IMPROVE FRANCE'S IMAGE AMONG AMERICANS: From an article on the Washington-area sniper:
The French defense ministry notified Interpol on Monday that a French army deserter and known marksman had gone missing while on vacation in North America.

Fox News learned Monday that the soldier, described as 25 years old and with the first name of Georges, went missing on Sept. 2 after making cash withdrawals on his credit card in the United States.

He had seen active duty as a peacekeeper in former Yugoslavia, and friends characterized him as a secretive, solitary type who had spent a previous vacation alone in the Corsican mountains.
Not that it should change France's image, even if it's so (and it quite likely isn't so) -- one bad guy does not a country represent. But I can't imagine that the French are terribly thrilled about this prospect.


WHY ASK WHY? has an interesting article on the failure of the gun-control movement. The piece strikes me as pretty pro-control; check out, for instance, the following paragraphs, the first written entirely in the writer's own voice:
You need a license to have a dog in most places in the United States. Any addition to an existing building usually requires a permit in most neighborhoods. Cars are licensed, taxed and registered. A blender has to be inspected and tested before it's placed on the market. But guns are different. Today, more than ever.

"Guns are the only unregulated consumer product in this country," Sugarmann says.
Yup, the "regulations" that the pro-control movement is calling for are just like those for blenders -- let's get serious here. (And, as I've mentioned before, the gun-car analogy is a red herring.) Still, on balance the article does cover both sides, quoting gun-rights forces as well as gun-control forces.

     But what the article completely misses is any sense for the main practical reasons that people oppose gun bans. "[N]o one wants to be called a gun control group these days," the article says -- but why? "Where 30 years ago, a president and Congress spoke openly of banning certain types of guns, of licensing and registration, today, that talk is political cyanide" -- why? The article says that this is the "greatest victory" of the "gun lobby" (though, to be fair, it also calls it the "gun rights movement") -- but why did they win this victory? You can say that it's because of the movement's political power, but that's begging the question: Why is the gun rights movement so powerful? The article does say that "the majority of Americans believe[] gun ownership [is] a constitutional right" -- but is that really all there is to it? Do the majority of Americans really say "Yes, I think private gun ownership is just as bad as the pro-control forces say, but I'm so committed to strict enforcement of the constitution that I say 'Let justice be done though the heavens fall'"?

     In the entire article, I saw not a word about people's desire to have the tools needed to defend themselves and their families; search the article for the text "defen" and see what you find. I saw not a word about people's skepticism that gun control can ever disarm criminals. There was no mention of John Lott's "More Guns, Less Crime" thesis, even merely as an acknowledgment that some people believe that an armed populace helps deter crime.

     Self-defense and crime have been at the crux of the gun control debate for decades. They were certainly part of the debate about Columbine -- and maybe the reason that, "[d]espite the attention the tragedy received, no major gun legislation was passed," is that many voters thought that gun control isn't really going to stop people who are bent on mass murder and suicide. Maybe the reason that "Banning handguns was off the table. Americans didn't want to hear about gun control." is that Americans think gun control will only disarm the good guys and not the bad guys. Maybe the reason that "a 1982 initiative in California that would have banned the sales of new handguns in the state . . . failed," leaving "the gun control forces look[ing] out of step" is that people think that handguns are necessary for their self-defense.

     Not a peep about this. Why not? Are the notions of guns being a self-defense tool, and of gun control being inadequate to fight crime, so alien that they don't even bear mentioning -- despite their centrality to the debate that the article is supposedly talking about?


PACIFIST-AGGRESSIVE: What do law professors do when they should be working? Other than blogging, of course.

     Well, some of us get into debates on lawprofs' discussion lists. Some such debates are actually useful to our scholarship, but others we get into just because someone says something that sets us off.

     Case in point: On one of these discussion lists, a crim law professor said that he was disappointed that the law lets people use deadly force to defend against rape, because even a rapist's life is valuable enough that the woman shouldn't be able to kill him. He acknowledged that if there's a serious risk that the rapist will kill the victim, she should be able to kill him in self-defense.

     But in a situation where she's being raped by an acquaintance who she knows will almost certainly not kill her -- the one plausible hypothetical that lets us in some measure (though not entirely) separate the harm inherent in rape itself from the risk of the rape turning into a murder -- she should be limited to nonlethal self-defense, even if that's futile. So far his is an isolated voice on the list, but he said that he polled his class on the subject, and the class was evenly split.

     Regular readers of this blog might expect that I would find this position utterly appalling, so I've spent more time than I should doing some research on the subject. Among other things, I argued that the right to use deadly force to defend against rape was traditionally recognized, and was met by the claim that historically, Anglo-American law forbade the use of deadly force against rape (absent a threat of some other serious injury). So I went off to do a bit of digging, which has so far led me to have even more confidence in my conclusion: The right of self-defense against rape is deeply, and to my knowledge nearly unanimously, embedded in Anglo-American law.

     I also pointed out to the discussion list (which contains a bunch of other law professors, so even though I'll almost certainly not persuade my opponent, at least I might persuade some others) that this is a fundamental cultural divide for many people, and perhaps part of why gun control debates are so impassioned. While many advocates of gun bans do not share the view I'm arguing against above -- they believe that lethal self-defense is generally morally proper, but think that it may have to be in some measure sacrificed to the greater good -- some do. And many gun rights advocates perceive this to be the case, and see the anti-gun movement as in large part a broader anti-self-defense movement.

     Pacifism is not my view of the world, but at least those who practice nonviolence in their own lives are just taking their own lives into their own hands. If they tell me (as some friends of mine have) that they don't think they could pull the trigger to kill someone who's trying to rape or even kill them, that's their choice. But the proposal on the list isn't just pacifism: This is an attempt to force nonviolence on others, by threatening to imprison them for exercising what I see as one of their most fundamental rights. Let's call it the pacifist-aggressive approach. I don't like it.
UPDATE: Clayton Cramer doesn't like it either, and has some interesting things to say about it.

Monday, October 21, 2002


MIXED NEWS ON THE MINNESOTA ELECTION AND THE DEMOCRATIC SOCIALISTS OF AMERICA: On the one hand, Mark Kleiman, in a characteristically gracious post, acknowledges that even some Democratic readers thought that the text of the DSA Web page was ambiguous (my original claim). On the other, a Minneapolis Star-Tribune article -- which Juan Non-Volokh linked to several days, but which I didn't read myself until Mark pointed me to Juan's link -- says that the person who first complained about the DSA page didn't really think the DSA was up to anything bad; "[m]y tongue was placed firmly in my cheek," he said.

     So where does that leave us? I guess I stick by my original statement, which is that the Web page itself looked like "pretty iffy stuff," though it had an innocent explanation as well as a not-so-innocent one. But I also add that people who send out press releases about alleged political misbehavior shouldn't do so with their "tongue . . . placed firmly in [their] cheek," their fingers crossed, their electrons jiggled, or whatever else.


SOMEONE WANTS TO clone me? (It's on account of this.)


IN ANCIENT ROME, a man used to be able to marry his wife by adverse possession.


AFFIRMATIVE ACTION: Slate's Chatterbox writes:
Affirmative action critics often complain when colleges accept a higher proportion of black applicants than of all applicants; it's taken as a sign that standards are being lowered. But why don't they complain now that Berkeley and UCLA, the two most prestigious universities in the University of California system, accept a lower proportion of black applicants than of all applicants?
Well, the affirmative action critics I've heard (myself included) believe that universities should judge people without regard to race. That means that if colleges accept a higher proportion of Asians than of all applicants, that's not a sign of misbehavior on the college's part if Asians are judged fairly, under the same standards as others. Likewise, if colleges accept a lower proportion of blacks than of all applicants, that's not a sign of misbehavior on the college's part if blacks are judged fairly, under the same standards as others. Exactly the same would apply if the numbers were reversed.

     Opponents of race-based affirmative action don't object to numbers as such; numbers may at most sometimes help show the magnitude of a race preference that the university has already freely admitted. Rather, they argue that the process should be race-neutral, even if that means that (for instance) WASPs or blacks are "underrepresented" relative to their share of the population and Asians or Jews are "overrepresented." That is the very essence of the anti-affirmative-action argument, and it seems to me that Chatterbox is not characterizing affirmative action opponents fairly.


A new poll of journalists worldwide reveals that writers and editors in news organizations are a lot smarter than presidents, prime ministers and military generals.

The survey, funded by the Center for Fostering a Higher Opinion of the Competence of Journalists (CFHCJ) , found that while national leaders often make mistakes, fail to comprehend the significance of their actions, and leap to decisions without careful forethought, journalists almost never do any of those things. . . .
Thanks to Common Sense and Wonder for the pointer.


DOCUMENTARY ABOUT GEORGE W ON THE CAMPAIGN TRAIL: The New York Post has an interesting review of an HBO documentary, airing next month, called "Journeys With George." The documentary (by Alexandra Pelosi, a reporter who is a "self-confessed liberal Democrat" and whose mother is Democratic House minority whip Nancy Pelosi) is apparently surprisingly positive.

UPDATE: Reader e.r.p. writes:
What do you think are the chances of Tom Delay's daughter getting an assignment to cover a Democrat candidate for president and having that person welcomed to the campaign trail?


DOES THE DMOZ OPEN DIRECTORY PROJECT MINIMIZE ARAB AND MUSLIM EXTREMISM? The Jewish Internet Association claims that it does, and that Netscape (which apparently owns and operates the Project) should be faulted for it. I'm not sure whether the claim is correct, but the examples that the JIA gives seem indicative of some skew; I've tested a few and compared the results to those yielded by yahoo and google, and there does seem to be something odd.

     I don't know enough about the DMOZ criteria to know for sure what's going on; for all I know, perhaps it's just that the directory is in its infancy, and hasn't gotten that many submissions. But the charges against DMOZ struck me as interesting enough -- and, on the surface, plausible enough in some measure -- to be worth passing along.

UPDATE: Reader Steven Ehrbar writes:
There is only a tiny paid staff, which has the job of overseeing volunteer editors. The Society: Issues: Terrorism category currently doesn't have any editors. Anybody who thinks they're biased has the opportunity to volunteer their own time to correct the bias.


TOO MUCH OF A GOOD THING: Many vices, it is often said, are virtues taken too far. A worthy love of one's country or one's culture can become blind love, without the willingness to acknowledge and respond to the country's or culture's flaws. This is a characteristic vice of the Right.

     The flip side, I think, is true about the Left. We are all taught, or at least should be taught, to resist uncritical acceptance of what one's country, culture, or religion does. That's a virtue. But many people take this to the point that all criticism of America and its allies is seen as noble and thoughtful, and all defense of America and its allies is seen as jingoistic or naive. This is tempting, but it's just as much a vice as excessive patriotism; in fact, it is blind patriotism's precise equivalent.

     This, I think, helps explain some modern liberal and leftist pathologies. Sure, part of why people criticize Israel -- and not countries that are much worse to their own citizens, their own minorities, or their neighbors -- might be anti-semitism, or resentment of the West's success. But part is that people just find it so much cooler and more appealing to criticize our friends and our fellows (here, fellow Westerners) than to criticize others.

     This is an explanation, not an excuse: Blind anti-patriotism or anti-Western sentiment is just as unsound as blind patriotism or pro-Western sentiment. But I think it does provide at least a partial explanation for why many otherwise smart and decent people on the Left fall into error -- and perhaps provides a way of fighting this pathology without falling into its opposite.


A STORY ABOUT PUMPKIN-FIRING CANNON; thanks to reader and former student Matthew Bower for the tip. This site discusses the activity of trying to propel pumpkins as far as possible, though apparently catapults are thought to be as good as cannons there (perhaps even better).

UPDATE: Here's a story with a cool picture. Thanks to Richard Horvath for the link.


AN INTERESTING PERSPECTIVE ON NORTH KOREA: My colleague Jonathan Zasloff passes along the following thoughts. I'm not sure whether I entirely agree with them (for instance, I'm pretty sure that the GOP doesn't hate multilateralism as such, only the doctrine that somehow justice and decency -- as opposed to, in some situations, prudence -- mandates multilateralism). Still, they seem to me much worth considering:
North Korea's recent acknowledgement of its nuclear arms program, in direct violation of a 1994 agreement with the United States, has led to chortling and recriminations from both the left and the right. Both sides are no busily saying that the announcement shows the other side's foolishness. But both arguments are ridiculous.

The Left argues that the North Korean acknowledgement shows that the Bush policy toward Iraq is bankrupt. The reasoning goes that unless the administration now wants to invade North Korea (which it clearly doesn't), the entire notion of pre-emption makes no sense. Why pick on Iraq and not on North Korea?

In fact, however, it shows that the Bushies are right on Iraq. America can't pre-empt nuclear development in North Korea mainly because Pyongyang is bordered by two other nuclear powers, Russia and China, who would regard American military action on the Korean peninsula as a threat to their vital interests. This shows that nuclear proliferation has an internal spiraling-up character: once one country acquires nuclear weapons, it makes it close to impossible to interdict nuclear development in its neighbors because they will regard such interdiction as interfering in their spheres of influence. In other words, if Iraq gets nuclear weapons, Syria gets that much more breathing room to develop nuclear weapons of its own: America will not be able to pre-empt Damascus' program because of Baghdad's nuclear threats. Iraq itself could pre-empt the Syrian program (and will surely try), but will be far less able to do so because of its internal weakness: there is no reason to think that Iraq's armed forces could remove the Syrian regime (if they could, they would have done so already, nukes or no nukes). All this means that interdiction of Iraq NOW is crucial in order to stop other nuclear programs in the future.

For its part, the Right uses the North Korean announcement to recite the tired line about the Clinton Administration being responsible for all the ills that plague humanity. Right-wing pundits are busy chortling over the Clintonians' (and the New York Times') 1993-94 proud announcements about stopping North Korean nukes. But they never say just exactly what Clinton's other option was, given Chinese opposition to the use of force. What precisely should the United States have done? Boycott Pyongyang? We already did that. Establish international sanctions and weapons inspections? Quite multilateralist for the Bushies, and in any event impossible because of Russian and Chinese vetoes. Invade North Korea and risk war with a nuclear China? Even Richard Perle might not go for that one. (Note that I said "might.")

The only possibility for containing North Korean nuclear weapons is to work closely with China and hope that the Chinese will see that another nuclear power in the neighborhood is not in its interest. But then of course that would foreclose the usual irresponsible rhetoric about China emanating from the right wing of the GOP--not to mention their hatred of multilateralism.

For myself, I'm not exactly sure of anything we can do now about North Korea, aside from what I just mentioned. But one thing that would surely help matters is if people on both sides would grow up.


ONE-SIDED DEBATE: The New York University law school chapter of the Federalist Society invited University of Chicago law professor Richard Epstein to debate whether law schools should permit military recruiters on campus, even though the military discriminates against open homosexuals. Over 100 members of the NYU faculty signed a letter in opposition to military recruiting on campus, yet as reported on The Last Best Hope not one was willing to debate Epstein on the topic. Eventually, as described here, Professor Geoffrey Miller agreed to play Devil's Advocate (he agrees with Epstein), but that's a poor substitute for a real debate. What does it say about our nation's law schools when law professors, of all people, are unwilling to debate their views?


THE SUPREME COURT THIS MORNING, AND CRIME-FACILITATING SPEECH: I've been trying to write an article on this subject for a couple of years now, and the question just gets more and more interesting (and harder and harder to solve!): When may the government restrict speech not because it might persuade people to commit crime (that's the "incitement" issue, which the Court largely resolved in favor of pretty broad speech protection in Brandenburg v. Ohio) but rather might facilitate crime or other harmful conduct, by informing people how the crime can be best committed. The question comes up in a lot of situations:
  1. A newspaper reveals the sailing dates of troopships.

  2. A Web site posts the home addresses and routes to work of abortion providers.

  3. A site posts people’s social security numbers or the passwords to computer systems.

  4. A site posts the URL of a third party's site that contains copyright-infringing material, or child pornography. See, e.g., Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 1290 (D. Utah 1999).

  5. A site posts information that discusses security holes in widely available software, and explains how to fix them but at the same time inevitably informs people how to exploit them until they're fixed.

  6. A publisher, online or offline, distributes material that informs people how to build bombs or grow drugs. See 18 U.S.C. § 842(p) (banning certain forms of online distribution of bomb-making material).

  7. A publisher, online or offline, distributes material that informs people how to be contract killers. See Rice v. Paladin Press (4th Cir. 1997).

  8. Someone who wants to rob a bank asks a more experienced friend to give him specific advice on how to do it.

  9. A lookout tells a criminal that the police are coming and it’s time to run.

  10. A driver flashes his lights to inform other drivers that there’s a speed trap up ahead. (Does it matter that this literally just informs people that they should stop committing the crime of speeding, though it ultimately helps them speed with impunity?)

  11. A Web site (free or for-pay) distributes old term papers that students can use in order to cheat at school.
You'd think that the Supreme Court would have addressed this question, and decided when crime-facilitating speech is protected and when it's not; but you'd be mistaken -- the Court has never squarely confronted the issue. This morning, in fact, it just denied certiorari in a case that raises this very question; here's Justice Stevens's opinion commenting on the refusal to hear the case (some paragraph breaks added):
An Arizona jury found respondent guilty of participating in a criminal syndicate, and the trial court sentenced him to a term of 15 years' imprisonment. After his conviction was affirmed by the Arizona Court of Appeals, the Federal District Court granted his petition for a writ of habeas corpus, and the Court of Appeals for the Ninth Circuit [Judge O'Scannlain, joined by Judge Kozinski and Judge Politz of the Fifth Circuit] affirmed the order releasing him from custody. The harsh sentence for a relatively minor offense provides a permissible justification for this Court's discretionary decision to deny the warden's petition for certiorari. Nevertheless, the issue raised by her petition has sufficient importance to merit comment.

The specific crime committed by respondent was giving advice to members of a street gang. In the words of the relevant Arizona statute, he was guilty of: "Furnishing advice or direction in the conduct, financing or management of a criminal syndicate's affairs with the intent to promote or further the criminal objectives of a criminal syndicate." The evidence showed that he had been a member of a street gang in California before moving to Arizona, and that at two social gatherings he gave several members of a Tucson gang specific advice on how to operate their gang. [footnote:]
Appellant moved to Tucson from California, where he had been a member of a gang since the 1980s. In Tucson, he became acquainted with his girlfriend's son and a number of his friends who belonged to a gang called the 'Bratz.' Several Bratz members testified that appellant was present at a barbecue at the son's house attended by a number of Bratz members and that he spoke to them about his experiences in the California gang. He advised them to formalize their gang by electing officers, collecting money to establish a bail fund for members, and spray painting more gang graffiti to make their presence known in their territory. He also advised them to 'jump in' more loyal members and 'jump out' those who were not loyal. There was testimony explaining that 'jumping' or 'courting' meant initiating a new member or removing a current member by means of a group beating in which a number of members participated in beating or kicking the person 'jumped' or 'courted.' Finally, he advised them to establish friendly relations with other gangs who would support them." State v. McCoy, 187 Ariz. 223, 224, 928 P. 2d 647, 648 (App.1996).
The state appellate court concluded that the evidence was sufficient to prove his knowledge of the Tucson gang's criminal activities and his intent to promote those activities. It also rejected respondent's contention that the statute violated the First Amendment because it prohibited constitutio ally protected speech.

The federal courts both concluded, however, that respondent's speech was protected by that Amendment. Relying primarily on Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and Hess v. Indiana, 414 U.S. 105 (1973) (per curiam), the Court of Appeals held that respondent's speech "was mere abstract advocacy" that was not constitutionally proscribable because it did not incite "imminent" lawless action. Given the specific character of respondent's advisory comments, that holding is surely debatable. But whether right or wrong, it raises a most important issue concerning the scope of our holding in Brandenburg, for our opinion expressly encompassed nothing more than "mere advocacy," 395 U. S., at 449.

The principle identified in our Brandenburg opinion is that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id., at 447. While the requirement that the consequence be "imminent" is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function.

As our cases have long identified, the First Amendment does not prevent restrictions on speech that have "clear support in public danger." Thomas v. Collins, 323 U.S. 516, 530 (1945). Long range planning of criminal enterprises -- which may include oral advice, training exercises, and perhaps the preparation of written materials -- involves speech that should not be glibly characterized as mere "advocacy" and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech. Our denial of certiorari in this case should not be taken as an endorsement of the reasoning of the Court of Appeals.


MORE TROUBLE WITH POETS LAUREATE: According to the Associated Press,
California has lost its first official poet laureate after he acknowledged lying on his resume about graduating from college.

The poet, Quincy Troupe, appointed on June 11 by Gov. Gray Davis, resigned on Friday, saying in a letter: "I deeply regret my ill-advised decision to include inaccurate information on my curriculum vitae. While I attended Grambling College, I never earned a college degree.". . .

In June, Mr. Davis picked Mr. Troupe, 62, for the position, which includes a $10,000 honorarium to give readings across the state.

Mr. Troupe, a New York native, is a professor of creative writing and American and Caribbean literature at the University of California at San Diego. He is author of 13 books, including six books of poetry.
Another version of the AP story reports that "Mr. Troupe said he looked forward to continuing to teach at the university."

     Between this and the Amiri Baraka incident, it's been a bad few months for poets. Maybe all the parents who warned their daughters not to date poets were right . . . .


"HARASSMENT CHARGES DROPPED AGAINST UNLV MAXIM FAN," says the U. Nevada-Las Vegas Rebel Yell (their Web site seems broken, so I couldn't find a URL for the article):
A University of Nevada-Las Vegas law student who was referred for disciplinary action when two female students objected to his looking at a sexually charged Web site during class will not face harassment charges, according to UNLV Judicial Affairs Officer Philip Burns.

The issue of a possible harassment investigation arose after an incident where Clarke Walton was asked by his law professor not to read from the Maxim Web site on his laptop. Two female classmates brought the issue to the professor's attention. . . .

"What happened was that the student, Mr. Walton . . . had on his computer screen in the classroom had some images of scantily clad women," said Law School Dean Richard Morgan. "Whether they were provocative or not, I'm not here to say. But in any event, there were students who did complain to the faculty member about those images." . . .

"I considered it to be the men's Cosmopolitan," Walton said. "It's a public medium in my opinion. There is no age restriction to buy it. I did tell my professor that I would no longer view this magazine on my computer screen."

Morgan commented, "Faculty members control their class and if they don't want people playing solitaire or reading the Wall Street Journal or looking at images on their computer screen during their class and would rather them pay attention in class, it is certainly in their purview to say stop that." . . .

Shortly after this incident, . . . Walton's accusers noticed that he posted a memo on the law school's Web site admonishing them in what seemed to be an act of spite.

"I wrote two statements. One regarding the Boyd Law School Honor Code and that it needed more speculation. In my second email I wrote that I was informally accused of sexual harassment, " Walton said. "It was a proactive measure. It certainly incited controversy. I received close to 50 to 100 responding emails."

That action in turn generated students to issue a complaint to UNLV's Vice-President of Diversity, Ann Casados-Mueller.

"Her email said, 'Clark, you're under investigation for sexual harassment,'" said Walton. "She essentially accosts me. She insists Maxim magazine is pornographic. By her definition it's soft porn. In my opinion, she made antagonistic comments. She showed me a picture of a women from Maxim magazine . . . and asks me 'how does this make you feel? Does this picture sexually arouse
you?' I said it doesn't sexually arouse me at all." Walton continued, "She said by her standards and her definition that Maxim was in no way Cosmo and in her opinion it was pornography. We butted heads."

According to Walton, he pointed out the code prevision that stated it had to be a repeat occurrence. Walton claims that Mueller and Burns, who accompanied Mueller in the meeting, stated that "in a court of law this may not be sexual harassment. But for the purposes of this investigation, we believe you sexually harassed these women and you are responsible."

While a formal complaint has yet to be generated in writing, according to Burns, Walton has already been asked to write an essay to the law students and RJ columnist Steve Sebelius apologizing for his actions and to attend a diversity seminar taught by Mueller. They also, according to Walton, "chastised" the fact that he cooperated with the press on this issue.

The Yell contacted Mueller for comment and she refused stating that this particular issue is no longer in her office.

"In my opinion, that is completely ridiculous," Walton said. "I never knew who my accusers were. They responded, 'It doesn't matter what your intent was, these women perceived this as offensive and we hold you responsible." . . .

"I'm absolutely not planning on attending a seminar. I'm absolutely not planning on writing a letter of responsibility. I may do it on my own volition, but I will not do it because school asked me to," said Walton.

Walton confirmed that he was contacted by Gary Peck of the ACLU and was pledged full support of the ACLU legal council [sic]. Walton stated that all correspondence regarding this issue with the university will go through his council at this point. . . .

Walton concluded, "I will admit that I was responsible for looking at Maxim magazine on my computer. I accept responsibility for looking at it. God bless it."

This page is powered by Blogger.