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Saturday, January 25, 2003


CHECK OUT How Appealing's interview with Jerry E. Smith. Smith, an appellate judge on the Fifth Circuit, wrote Hopwood and opposes the law clerk hiring freeze.

Friday, January 24, 2003


"MAN BITES DOG"? OLD HAT! Try dog shoots man (well, kind of). Some accidental deaths are not tragedies, it turns out. (Thanks to reader and UCLA Law School student Chris Baker.)


FORGOTTEN NAMES: I knew I had read an excellent book about trends in baby names, but I couldn't remember the name of the book or the author until Ted Arrowsmith reminded me. It's Stanley Lieberson, A Matter of Taste: How Names, Fashions, and Culture Change (Yale University Press, 2000). Lieberson is a sociologist at Harvard. If you're about to have a son, "Stanley" would be a great name if you want a retro sound but don't want to use one of the same retro names everyone else is using. Stanley has been in decline for nearly a century. It was the 36th most common boy's name in the 1910s, but by 2001 it had dropped to number 513.


VIRGINIA POSTREL ON NAMES, including Madison (naturally, beating us to it). Much worth reading.


PSYWAR OPS? Sheep Free Zone claims the following:
Instapundit links to a BBC article about the Iraqis handing out chemical protective gear to select units. There's a discrete portion of the article that I am absolutely positive is part of a psychological warfare operation against Iraq.
It then backs it up with a pretty interesting analysis -- I'm no expert on the subject, but it struck me as worth considering.


WORLD WAR II INTERNMENT OF JAPANESE-AMERICANS: Eric Muller, a fellow lawprof and a new blogger, has some interesting thoughts about this subject that go beyond the normal cliche debating points. I hope he'll blog still more on this.


The French Jewish community is in an uproar over allegations that Reform Rabbi Gabriel Farhi, who was stabbed on January 3, may in fact have faked the stabbing.
The rabbi is sticking by his story, and faulting the police for mishandling the investigation; police sources, on the other hand, suggest that the rabbi may have been lying. One way or the other, someone is going to come out of this looking very bad. (Thanks to Mike Daley for the pointer.)


"TO BE HONEST": Reader Roger Smith (who was also a user of my old HP 3000 software, from way back), passes along the following objection:
The thing that I can't stand is when people say, "To be honest with you . . . ." To me that implies that they haven't been honest up to that point!
I think there's a lot to this objection. The phrase, like its shorter equivalent, "frankly," usually comes up in speech rather than in print, and it's obviously harder to edit what you say. Still, I've tried to avoid this locution, precisely because people who actually pay attention to the phrase might quite reasonably be put off -- either you're acknowledging that you might be dishonest in other contexts, or, more likely, you're trying to buttress your credibility in an unpersuasive way. What extra information does "To be honest with you" or "Frankly" really convey? Of course, most of the time people just ignore these phrases -- but if that's so, then there's no real reason to use them in any event.

UPDATE: An e-mail from reader Joe Hiegel reminded me that I need to distinguish these phrases from "To be blunt," which (if used properly, and not too often) can indeed be valuable.


BLOGGERS CORRECT PROBLEMS; STILL WAITING FOR MEDIA: Blogger Mike Ripplinger has taken down the McKinney misquote, in response to an e-mail of mine; as I'd mentioned earlier, so did The four old media sources that have made this mistake, and that I've tried to contact, have not done so yet, though one was kind enough to get back to me and say that they'll investigate the matter further.


  1. Southern states up to no good: "Axis of Weevils."

  2. A conspiracy of stuntment: "Axis of Evel."

  3. The likely new band name of Frank Zappa's musical heirs: "Axis of Dweezil."


THE NAME STUFF JUST KEEPS COMING: Also courtesy of Paul Edelman, a pointer to An online help for parents looking for that distinctive name that says "I'm a Utah Mormon!"


BOY NAMES AND GIRL NAMES: Paul Edelman points out a reason why there might be more variation among girls' names than boys' names:
One explanation might be the higher likelihood that boys will be a Jr. and hence get their father's name. This would naturally damp the variation from generation to generation.
Makes sense to me.


THE APPARENT MCKINNEY MISQUOTE SPREADS FURTHER: The Providence Journal runs a column that says, in part:
Most represented particular interests -- Al Sharpton's presidential campaign, Colombian narco-terrorists, Native Americans angry at the Bureau of Indian Affairs -- and others compared Washington unfavorably with Baghdad. "In no other country on the planet," said former Rep. Cynthia McKinney (D.-Ga.), "do so many people have so little as they do in this country."
As I've mentioned, the video reveals that McKinney actually said (emphasis added):
In no other rich democracy on this planet do so many people have so little . . . .
-- a very different point, and one that doesn't constitute "compar[ing] Washington unfavorably with Baghdad. As I've repeatedly said, it's possible that McKinney said both, at different times in the rally; I haven't watched the whole video. But it seems unlikely, and I haven't heard anyone point to any other such incident. I've sent an e-mail to the Providence Journal letters-to-the-editor address (it's the only address I saw), but I'm not sure whether it will make its way to the proper people.

     So it looks like one columnist -- perhaps David Horowitz, perhaps the Washington Times columnist -- made an error, and now it's being spread. Surprisingly, I haven't seen any liberals, either in newspapers or online (and I've done some quick searches), speak out against it; but I do think it's important that someone quickly publish a retraction, if a retraction is warranted, or else this myth will become firmly entrenched. And that's both bad for McKinney, who will be unfairly blamed for what she didn't say, and for those who repeat the story, whose credibility will be undermined by their falling for the error.

UPDATE: Reader Joe Hiegel, who I suspect has no more love for McKinney than I do, confirms my suspicion that McKinney did not also say what she was quoted as saying:
[I]n view of the fact that this has come up so often, I did view the whole of McKinney's speech, finding no such comment as that which is reported (no other construction of the "in no other . . ."), and it does not appear that she speaks elsewhere in the video. I did not watch the entire video, so I cannot be sure, but I did fast forward via Real Player and she does not appear in any screen captures throughout the rest of the video; these captures were about 1 min, 45 sec apart, so, unless she spoke again very briefly (which I doubt), we are correct that she is being widely misquoted. . . .


I NEED A WORD. The 'efficient capital market hypothesis' -- the idea that all publicly available information about a company is, pretty much instantaneously, incorporated into the company's share price [largely through the efforts of stock analysts who pore through such information] -- is an example of something that really needs a name. It has the following odd characteristic: the more people believe it to be true, the less true it becomes (because all of those analysts will realize that there's no point poring through all this info); conversely, the more people believe it to be false, i.e. the more people that believe that you can "beat the market," the less false it becomes. Or to put it another way: it becomes true when people believe it is false, and vice versa. I've called these 'self-unfulfilling prophecies,' but that's a lousy phrase, I know: too clunky, and its not really a 'prophecy,' anyway. If you have a good moniker for this phenomenon (or other examples!) and feel like passing 'em along to me (, I'd appreciate it.


FORMER STATE GOP DIRECTOR INDICTED FOR EAVESDROPPING-- BUT IS WHAT HE DID REALLY A CRIME? The Washington Post has this report today about yesterday’s indictment in Richmond, Virginia of the former executive director of the Virginia Republican party, Edmund A. Matricardi III, on federal wiretapping charges. Matricardi is accused of secretly joining a conference call held by several dozen Democratic party strategists, taping the conversation, and then disclosing the transcript to others. State charges had been brought against Matricardi about 10 months ago (you can read about them here), but they were dropped in anticipation of the federal charges under the federal Wiretapping Act, and in particular 18 U.S.C. 2511. The federal indictment came yesterday.

     Assuming that the facts alleged in the indictment are true, Matricardi has committed a highly disturbing and plainly unethical act. He certainly deserves some kind of punishment. But was his alleged misconduct actually a violation of the Wiretap Act? This turns out to be far from clear. The government’s case is based on an aggressive interpretation of the Wiretap Act that the courts could reject. This case will likely be a precedent-setting case either way, exploring a murky area of law that promises to have significant future importance.

     Here’s the issue. The Wiretap Act was designed to criminalize the use of an interception device such as a bug or a wiretap to listen in on communications between two or more parties to a phone conversation. So if Eugene is on the phone talking with Sasha, it’s a crime for Stuart to install a monitoring device that listens in. However, the statute has an exception, the so-called “consent” exception, which genera ly allows any “party to the communication” to listen in and record the conversation and disclose it. So in the Eugene/Sasha conversation, either Eugene or Sasha can record what they hear and tell the world about it, even without the permission of the other. Here is the statutory language from 18 U.S.C. 2511(2)(c)-(d):
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
Back to the Matricardi case. Matricardi will presumably argue that this exception allows his conduct. To obtain a conviction, the government must convince the court that either 1) Matricardi was not a “party” to the conference call and therefore cannot rely on the exception, or 2) if he was a party, then he was not acting “under color of law” and that he intercepted the communications “for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”

     Let’s look at the first question first: was Matricardi a “party” to the communication? The general rule is that anyone is party to a communication if he is an "actual participant" in the call. The cases don't seem to require that the person actually speaks, but that's not entirely clear. The fact that the participant was a political opponent secretly taping the call doesn’t have tremendous importance for cases involving the “wiretapping” of wireless networks, though. Wireless networks raise very similar questions of who is a party to the communication, so the Matricardi case may establish an early precedent that proves important down the oad.

     The other major issue is whether Matricardi intercepted the communications “for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” What exactly this statutory language means is unclear. The Eighth Circuit has relied on the legislative history of the provision to conclude that it means “with intent to injure the other party,” such as might occur with recordings “made for the purpose of blackmailing the other party, threatening him, or publicly embarrassing him.” United States v. Phillips, 540 F.2d 319, 325 (8th Cir. 1976). Under that standard, Matricardi may be in trouble, although it’s not really clear. At least one court has suggested that the “tortious” nature of the act cannot be based on a state invasion of privacy claim, and noted that the claim cannot rely solely on “mere intent to surreptitiously record.” Roberts v. Americable Intl., 883 F. Supp. 503 (E.D. Cal. 1995).

     My guess is that the government will win this case, but it will be close. The government wins if either Matricardi is not a party to the communication or if the court deems his interception to be for a tortious purpose. I think the government can win at least one (if not both) of these arguments. But it’s not a slam dunk, which might explain why the government has taken so long to bring the indictment. Stay tuned.


GOVERNMENT AGENTS BUYING UP NEWSPAPERS: My friend and fellow lawprof Tom Bell passes along a somewhat jocular law-and-economics view of the newspaper buy-up case:
Gee, Eugene, seems to me the court should have affirmed the right of government actors to buy up papers for this reason: It would create a powerful incentive for newspapers to publish news critical of government agents. It's all about incentives, you know.
The degree to which most papers rely on advertising income might affect this analysis, I'm afraid, but I like the perspective!


WINSTON CHURCHILL DIED on this day in 1965. As my former colleague Michael Krauss at George Mason said, "May we see more like him."


Some Folly Road business owners concerned about crime were taken aback Thursday night when Charleston Police Chief Reuben Greenberg appeared to suggest that an effective crime deterrent would be for them to arm themselves.

Others nodded in agreement.

About two dozen frustrated James Island business owners met with Greenberg and several Charleston police officers and Charleston County sheriff's deputies to discuss protection against a rash of robberies and burglaries along a stretch of Folly Road.

Greenberg told them that robberies, burglaries and rapes are a fact of life for communities across the country.

"There is never going to be zero crime. We can only work to reduce those that happen," he said.

He said one particular downtown business in a high-crime area hasn't been held up in 20 years because the owner and employees, including the guy mopping the floor, are armed.

Mary Jane Keathley, meeting organizer and co-owner of a restaurant, asked Greenberg if he was joking. "Are you telling us we should arm ourselves?" she said.

"That's a decision you have to make for yourself," Greenberg said.

"I find that completely unacceptable," she said.

"I can't believe that's the only way," one man said.

"That's the kind of world you live in," Greenberg replied. . . .
Incidentally, an odd (and pleasant) factoid: The chief of police of Charleston, South Carolina is a Jewish man named Reuben Greenberg. A black Jewish man named Reuben Greenberg.

     (Thanks to fellow lawprof Joe Olson for passing along the story.)


NO, PHILIPPE, it only works if you want the nomination. Don't tempt the Gods!

In other news, I've been listening to a CD called Ni Kantu en Esperanto (Let's Sing in Esperanto), where the first song, La Lingvo por Ni (The Language for Us), is sung to the tune of My Bonnie's in Trouble with OSHA (And Also the EEOC). The version on the web site is slightly changed from the "standard" version, which is on the CD (the first paragraph explains the changes) -- the most significant change is that the web site gives the second stanza as:

In the dense African jungle, the good friends of ours
Have already solved the language problem: through the tom-tom resounds the cry:
Esperanto is the language for me, for you!
Esperanto is the language for us!

"The good friends of ours"? That sounds so pasted-in! The "original" version, written in a very different time, has "sovagaj nigruloj sen Di" (the first g has a circumflex on it so it's pronounced like a j; the letter j is pronounced like a y), meaning "savage, godless black people." Good thing this CD is in Esperanto and pretty much no one's going to understand it. Another web site replaces the offending terms with "nigruloj sen teknologi'" -- "blacks without technology," which is better. (The rest of the song is about how hunting Indians speak Esperanto, and Eskimoes at the North Pole living in snowy ice speak Esperanto, and everyone on the whole earth speaks Esperanto, instead of about as many people as live in Latvia.)

In still other news, Jules Verne complains, in The Castle of the Carpathians, that the Jews are being too usurious at the expense of the indebted Transylvanian peasants, and if it kept up this way, soon the Jews would have established their Promised Land in Romania. This book was written in the 1890s -- my advice is that you not read anything written by Jules Verne after 1880. (Everything well-known, including the Twenty Thousand Leagues Under the Sea / The Children of Captain Grant / The Mysterious Island trilogy, was written in the 1860s and 1870s anyway.)


PHRASES I LOATHE, CHAPTER 324: "A large number of." The word is "many."

     "At this point in time." It should be "now," or "currently," or sometimes (rarely) "at this point."

     "In point of fact." How about "in fact," or omitted altogether?

     No, I'm not saying these are wrong. They are quite grammatical and semantically right. They're just needlessly wordy, pompous, and ugly. They're on my List of Forbidden Terms (OK, that's not what I call it, I actually say "Clumsy Words and Phrases") in the Appendix to my forthcoming advanced legal writing book. Some of the items on that list are judgment calls -- occasionally, you need to say "purchase" as a verb instead of "buy," or "demonstrate" instead of "show." But the three phrases above, and many like them, are grade-A certifiable guaranteed clunkers. I never want to see them again, but I'm sure I will. Worse still, I might even inadvertently use them. I shudder at the thought.

Thursday, January 23, 2003


SORRY, AL. I was fascinated to see that (as Juan points out below) the day after I discussed the possibility of Al Gonzales being nominated to the Supreme Court, Robert Novak wrote a column saying that Gonzales's prospects were fading because he helped dilute the administration's brief in the Grutter case. I realize this may be premature, but the whole episode causes me to wonder if I might have the power to curse potential nominees by discussing them in this space. I've always been interested in curses, hexes, and the like, and would be excited to discover that I have this capability, though of course it would also amount to a considerable responsibility.

UPDATE. They say that Stephen Reinhardt of the Ninth Circuit is emerging as a possible dark horse candidate; it would be a way for Bush to show a measure of bipartisanship and win some Democratic support for his foreign policy agenda. (Just checking.)


MORE OF THE LIKELY MCKINNEY MISQUOTE: In an article in yesterday's The Hill:
Occasionally, the free speech of those in attendance sunk to nauseating levels. "Bush = Hitler" signs appeared in abundance. Former Rep. Cynthia McKinney (D-Ga.) said from the dais, "In no other country on the planet do so many people have so little as they do in this country." A three-hour flight from Atlanta to Haiti would quickly disprove that claim.
Again, I might be wrong; perhaps Rep. McKinney said both this statement and what I heard on the C-SPAN video, which is "In no other rich democracy on this planet do so many people have so little . . ." (emphasis added). But if McKinney said only the latter and not the former, then we're seeing again how an urban myth -- and this one highly unfair to the subject (whom, incidentally, I quite dislike) -- seems to be being spread.


EVERYONE'S NAMED MADISON: I've heard the historian Lawrence Friedman point out that trends in baby names are a perfect example of how individuals can perceive that they are making their own choices, even while those choices are clearly influenced by social forces they don't see. Every day, lots of parents all over the country think "gee, Madison is a nice name." No one is forcing them to name their daughters Madison. They are choosing it for themselves, so far as they can tell. Madison was the 2nd most popular girl's name in the US in 2001. In 1990 it was number 216. It can't be a coincidence that Madison began sounding better to so many parents simultaneously. There must have been some reason for it -- maybe the popularity of the late-80s TV show "Moonlighting," which featured a character named Maddie. (I doubt it was a renewed interest in James Madison spurred by the rise of originalism in constitutional interpretation.) But I would bet that few parents consciously think of the TV show or any other cultural influences when they choose their daughter's name. They think of themselves as free agents, exercising their own free will to choose the name that sounds best to them.

     UPDATE: Several readers nominated Daryl Hannah's character in the 1984 film "Splash" as the origin of Madison's popularity. (The mermaid played by Hannah takes the name from a street sign for Madison Avenue, which I think was named for James Madison, so James Madison turns out to be responsible after all!) Again, though, I doubt many parents think of Daryl Hannah when they choose a name -- even the name Hannah, which rose from number 31 to number 2 between 1990 and 1998. They're unaware of how their set of choices is shaped by the culture in which they live.


MORE ON NAMES: Reader (and writer!) Steven Kurtz writes:
I've been doing research on American names recently and I think I can add a few things to what you've already said. First, it should be noted that variations on names are considered separately on most lists. For instance, "Steven" may only be 18th with .78%, but add in "Stephen" (.54%) and "Steve" (.246%) and suddenly you've got a name at 1.566% and in the top ten.

Just as interesting is the change in name popularity through the years. (It's been noted this is an example of how fashions can change without advertising.)

Sites I've looked at which have year-by-year information include:

Considering the immense and consistent popularity of "Michael" in the past 50 years (#1 in 1953, 1955-1959, 1962 and 1964-1998!), I'm shocked it's not higher on your list. Of course, it is true when "John," "Robert" and "James" were popular, they were more popular than "Michael" in its lengthy heyday.

Also note that popular girls' names are not as popular as popular boys' names, on top of which, fashion in girls' names seems to change faster. Occasionally, the rise of a name can be accounted for by something in the popular culture. For instance, "Jennifer" was reasonably popular in the 60s, but was then number one every year from 1970 to 1984. This is probably due in large part to the popularity of Love Story, a huge hit film (and book) in 1970, with a heroine named Jenny.
Very amusing, especially the pages showing the shifts over time. The bad news (or is it good news?): Among names chosen for boys born in 2001, Eugene was #530, with a whopping 0.02%. Yow.


LATIN NAMES: Reader John Brewer e-mails this interesting theory, though with an important disclaimer in the first line. Seems to me worth passing along, especially for the lovely tidbit about Lamar:
I would advance the following hypothesis (without, however, having done any actual research to back it up):

1. The only Latin personal names which remained in common use through the Middle Ages in Western Europe were those which happened also to be the names of Christian saints.

2. The process by which the bearers of some common Latin names became saints whereas bearers of others did not was (as to the names, rather than the beliefs and actions of their bearers) fairly random, with Marcus being pretty much the only praenomen to be preserved this way. (There was, however, apparently a St. Lucius, who was much more obscure than St. Luke, but may have helped preserve that name from total oblivion.)

3. Beginning with the Renaissance, some names of prominent Roman figures which were not also names of saints came back into use.

4. However, by that time, as at present, no one used praenomina to identify prominent Romans, because they were so common as to be virtually useless in distinguishing one famous Gaius from the next. There's a reason Shakespeare didn't write a play called "Gaius Julius Caesar," and even writing "G. Julius Caesar" seems unduly pedantic in most contexts. Thus, people would tend to name their sons "Julius" or "Caesar" but not "Gaius."

Consider, however, the Hon. Lucius Quintus Cincinnatus Lamar, who may have been one of the coolest-named Justices in Supreme Court history even if his jurisprudential contributions are little-remembered today.


MORE ON GOVERNMENT OFFICIALS BUYING UP ALL COPIES OF A NEWSPAPER THAT CRITICIZED THEM: Yesterday, I pointed out that the U.S. Court of Appeals for the Fourth Circuit has just held that the First Amendment prohibits government officials from buying up (in order to destroy) all copies of a newspaper that criticized them, even when the officials pay the stated price. I said: "The question is not, in my view, open-and-shut, and the opinion doesn't consider the counterarguments as much as it might have; but the result is interesting, and should help prevent such behavior in future cases (like the one in California, where a mayor did something similar to a free newspaper)."

     Reader Kevin St. John sent an interesting e-mail that, I think, helps explain why I thought this is a difficult question. You might read it alongside the court decision and see which you find more persuasive:
It seems to me that "taking" free newspapers and purchasing papers are not analogous situations as far as liberty interests are concerned.

In the case of free papers, I think that the background assumption is that people can only take one. Like when Eclipse gum is roaming around the city handing out samples, I think that there is an understanding that you won't get very far by arguing with the promotions grunt that you would like all of the gum, and since they are free, you are entitled to it. The reason is obvious. Eclipse is seeking broad dissemination of its product. The same is true with a free paper. Taking a bunch of free papers is stealing and purchasing papers is, well, purchasing papers.

The background rule for papers-for-sale-to-the-public must be that the publisher intends to, well, sell the paper to whomever will buy it at that price. If the publishers interest is different--for example to sell to a particular quantity or type of purchaser--then the publisher merely has to impose conditions on the sale of its products to distributors--limit to one copy per purchaser (or something similar).

Now, I am not oblivious to the fact that both free and priced papers have commercial interests in having their papers widely distributed (that's how they sell ads). And I am generally very skeptical of assigning different speech protections to things that are free vs. things that are not free. But I am also extremely wary of finding the First Amendment violated where the aggrieved party's interest was entirely protectable regardless of the government's actions--as I hope I have shown that the Defendants' harms were entirely avoidable by merely making manifesting his desire for broad dissemination. I am also not oblivious to the fact that we should cautiously impose obligations on persons engaged in free speech. But we should be able to construct simple background assumptions to regulate the commercial/speech interface--one such rule is that if a paper is held out for sale, buying it shouldn't constitute a First Amendment violation. Its a funny world where a legal commercial transaction undertaken by the government or its agents becomes a First Amendment violation. And it makes for difficult line drawing. E.g., what if the sheriff is aware that his opponent has purchased the last tv ad spot for Friday night and then he decides to induce the station from running the ad by simply offering the station twice as much to run his ad? (Of course, I won't bother with the whole question of whether it was the government abridging speech in the 4th Circuit case).


FREQUENCY OF NAMES: My friend and fellow academic blogger Glen Whitman passed along a URL that I found just vastly cool (though what does that say about me?): The census's name distribution frequency page, which points to the distribution of last names (top 5: Smith, Johnson, Williams, Jones, Brown), women's first names (Mary, Patricia, Linda, Barbara, Elizabeth), and men's first names (James, John, Robert, Michael, William). This is apparently 1990 data, but as a data junkie I'm still wild about it.

     Eugene is #80, between Howard and Carlos. We're 0.23% of the male population, which these days means 290 million times roughly 50% times 0.23% = roughly one third of a million Eugenes. Woo hoo!

UPDATE: Glen Whitman has a good point about using this sort of data.


MORE ON THE BLACK RUSSIAN CAKE: Reader Brent Krupp writes:
[W]hile the cake is wonderful, the vodka may not be doing much. My mother-in-law has a rum cake recipe I've made many times that is basically identical, but with rum instead of Kahlua and vodka (and vanilla instead of chocolate pudding). Funny thing is, it tastes almost the same as your Black Russian Cake. Both cakes are great (I just made one of yours), but the exact identity of the alcohol seems to get lost in all the other ingredients.
In a subsequent e-mail, he reaffirmed that not just the nature of the alcohol, but even the flavor of the pudding makes little difference -- "I was very surprised myself -- I expected the black russian cake to taste very different. The black russian cake is definitely a bit chocolatey, in comparison to the rum cake, but the dominant flavor is sugary, alcoholic goodness, similar in both cakes." Sugary, alcoholic goodness -- yum. Makes me sorry that I'm at the office right now.

     In any case, some interesting feedback about the mysteries of cooking -- and since Dr. Krupp's e-mail address is at "," I'm not disposed to quibble with him about booze.


UPDATE ON HILLARY CLINTON QUOTE DISCUSSION: See below; it appears that there's some controversy about what exactly Hillary Clinton said about race, character, and the famous Martin Luther King, Jr. quote, though the differences between the versions are not that great, in my view.


FULL FAITH AND CREDIT, AND LICENSES: Reader Drew Kelley asks: If someone gets a license to carry a concealed weapon in one state, why don't other states have an obligation to respect it, under the Full Faith and Credit Clause?

     I'm not an expert on full faith and credit, but I do know the general picture here. States generally have an obligation to enforce money judgments awarded in other states, and abide by other judicial decrees issued by other states (such as divorce decrees). But states can generally set their own rules as to what people can do in the state -- they can control who can drive, who can practice law, who can practice medicine, who can engage in other businesses, who can carry a gun, who (if anyone) can buy alcohol, and so on. That's part of the state's sovereign power. (Let's assume for now that there's no federal constitutional right to carry a gun, since if there was one, the question would be resolved by that right, and not by full faith and credit.)

     So as a result, states need not honor all sorts of licenses issued by other states. In practice, there's a good deal of "comity" -- voluntary accommodation of other states' decisions. I believe that this is why states honor out-of-state driver's licenses; they don't have a constitutional obligation to do this, but they do, for good pragmatic reasons. (Congress may also mandate that states honor certain out-of-state licenses, but I don't think it does so for driver's licenses.) Some states make it easy for members of out-of-state bars to become a lawyer, but not all do; California, as I understand it, makes it quite hard. But as a general matter, one state may not export its lawyer licensing policy, physician licensing policy, gun carry licensing policy, and so on to other states unless the other states acquiesce. If it were otherwise, then no state could prohibit, say, gambling, prostitution, and such; after all, California would have to respect Nevadan licenses to gamble and to be a prostitute. As a libertarian matter, perhaps that would be good -- but it's not a Constitutional command.

     Naturally, the situation is more complex than the general pattern that I describe; but I hope this general picture helps put the concealed carry license question into perspective.


WHERE HAVE ALL THE PUBLIUSES (PUBLII?) GONE? Lots of Marks around, here and in Western Europe and that makes sense -- Marcus was a common Roman praenomen (essentially the equivalent of a first name), and the Romans had very few such common names. Likewise, I assume that Luke or Lucas comes from Lucius, and Guy (common in France, less so here) from Gaius, though I can't be sure; and one occasionally hears of a Titus. True, Mark and Luke were made more popular because of their appearance in the New Testament, but I suspect that the names would have made it into Western European culture (and certainly into the Romance language cultures) in any event, just as the Roman nomens (nomina?) Julius, Claudius, Cornelius, and others have, both in masculine and feminine forms.

     But when was the last time you met, in America, England, France, Spain, Italy, or wherever else, a Publius? Gnaeus? Sextus? These were common names, some of them names of great Romans (Pompey was a Gnaeus). And yet they're virtually unheard of in modern America. I'm not complaining -- I'm just wondering why some Roman names (many of the nomens, a few of the praenomens) have gotten so popular in Western Europe and America, while others have been completely forgotten. Any theories?

UPDATE: Reader John Brewer points to evidence that Guy isn't from Gaius, but rather from Guido. But that just makes it more mysterious -- Caesar, after all, was a Gaius. Lots of Juliuses out there, in English-speaking countries and in others; why not Gaiuses?


TEA LEAF UPDATE: Phillippe's leaks notwithstanding, it appears that the prospects for Al Gonzales to become the next Chief Justice of the Supreme Court are diminishing -- at least that's gist of Bob Novak's latest column.

Wednesday, January 22, 2003


TEA LEAF ROUNDUP. The latest leaks have Bush nominating Al Gonzales to replace Rehnquist this summer. The leaks also mention Miguel Estrada as another possibility. My guess is that these leaks are, among other things, a message to the Democrats of the following sort: "We're probably going to nominate Al Gonzales. The boss likes him, and he's Hispanic. If you give him any trouble, we'll nominate Estrada instead, who is younger and farther to the right. So be nice." The Democrats should follow the implied advice, since Gonzales appears to be as moderate -- or as likely to be moderate (it's hard to say quite what his views are) -- as anybody the Democrats reasonably can expect to get from the Bush administration.

     If the leaks are reliable and prove to be accurate, then by the same token I also interpret them as Bush's (or Rove's) way of saying that they would rather spend their political capital on things other than fighting over Supreme Court nominations. They could probably ram through Mike Luttig or Edith Jones with enough work, but it would take time and energy away from their domestic and foreign policy agendas, and might not help in 2004. Nominating one of those latter two might help bring out the base, but they would also scare the suburbanites. Gonzales won't be scary to anyone and will attract some minorities. If he ends up being disappointingly moderate, that probably won't become clear until after November of 2004, which is what Karl Rove worries about.

     The other issue is whether Gonzales (or whoever Bush nominates) will be put into the Chief Justice's slot or whether Bush will instead promote someone from inside the Court to that job. I expect him to nominate his pick directly as Chief. There just aren't any great internal people for the purpose. Scalia or Thomas would require a big fight that probably wouldn't be worth it, since it doesn't much matter who the Chief Justice is. Why bother? Kennedy and O'Connor just aren't that well-liked by conservatives. O'Connor has the additional disadvantage of being likely to retire before too much longer -- as may Scalia, who is about to turn 67. But with so little hanging on the decision it is hard to predict; I didn't expect Rehnquist to be promoted in 1986, so my track record is nothing to crow about.




AN ODD SORT OF LOGIC: Mickey Kaus rightly derides Hillary Clinton's statement as quoted in the New York Sun:
“We are reminded once again by the events of the last year that there are those who don’t understand Dr. King’s dream and legacy,” Mrs. Clinton said. “Yes, we want to be judged by the content of our character and not the color of our skin. But what makes up character?” she said, quoting from Dr. King’s “I Have a Dream” speech. “If we don’t take race as part of our character, then we are kidding ourselves.”
So let's see if I understand this: The King quote is "I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their characters." But according to Hillary Clinton, "the content of [their] characters" must include race as part of "character." Therefore, the quote really means "I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their characters, including the color of their skin, which it is proper to consider as part of our character." A pretty modest dream, it seems to me.

     Now I'm not speaking here about what King would have thought about race preferences, or what he would have thought about race preferences as they are are practiced today, or even whether the dream should be a guide to what we should do to achieve this dream -- because Hillary Clinton wasn't speaking about this. I'm speaking about the King quote itself, one of the most evocative quotes of the civil rights movement, which I had at least read as an aspiration for a focus on character to the exclusion of race, a dream of a time when race wouldn't matter in people's judgments. Hillary Clinton, on the other hand, seems to be calling for a judgment that our race is inherently a part of "what makes up character." Not the world I'm dreaming of, and I doubt that it's the one King was. (Thanks to InstaPundit for the pointer.)

UPDATE: Just One Minute suggests that Hillary Clinton might have been misquoted, though he's not sure (and neither am I). The alternate quote that he saw -- which might be a more accurate version of what the Sun is reporting, a less accurate version, or possibly a different quote (Mickey Kaus says that "It seems to have been from a second, different event (in Harlem, not in the Bronx)") -- is "But what is character? The sum total of who you are. The color of your skin and how you deal with it is part of your character."

     This is somewhat more defensible than the quote discussed above, but in my view not much: The "and how you deal with it" might be a part of the vision of character discussed in King's quote; but the "color of your skin" clause seems to me precisely what King's quote was trying to exclude. (Note, incidentally, that modern race preference programs focus on the color of your skin part, not the "how you deal with it" part -- the University of Michigan gave people 20 points for certain skin colors, regardless of how pwople dealt with them.) As Mickey says, "I don't think it gets her off the hook." But I'd love to hear any further evidence on what exactly Hillary Clinton said, since obviously the criticism should be of what she said, not what she didn't say.


NEW JERSEY CONSTITUTION DOESN'T APPLY FREE SPEECH PRINCIPLES TO SERVICE PROVIDERS: The First Amendment has long been seen as restricting only government action, but some state courts -- especially California and New Jersey -- have applied their state constitutions' free speech provisions to restrict at least some private actors, especially those that own large chunks of land that's open to the public.

     Commentators have debated for several years whether these provisions should also be read as limiting service providers' power to restrict speech on their property by their users. My general view is that they shouldn't be read this way, but others have disagreed. The case mentioned in the post below (Green v. AOL, 3rd Cir., Jan. 16) is to my knowledge the first case to consider the matter; it holds that service providers such as AOL are not bound by the New Jersey Constitution's free speech guarantee, even though some real estate owners are.


COURT OF APPEALS REAFFIRMS SERVICE PROVIDERS' IMMUNITY FOR ACTIONS OF THEIR USERS: The U.S. Court of Appeals for the Third Circuit reaffirmed last week (Green v. AOL, Jan. 16, 2003, No. 01-1120, not on findlaw yet) that service providers are generally immune under 47 U.S.C. sec. 230 for the misconduct of their users (setting aside copyright infringement, which is governed by other statutes). The court held this as to allegedly libelous communications and -- a more novel issue -- computer programs sent by other users to maliciously damage another user's computer.


GOVERNMENT OFFICIALS BUYING UP ALL COPIES OF A NEWSPAPER THAT CRITICIZED THEM: The U.S. Court of Appeals for the Fourth Circuit has just held that this violates the First Amendment, even though the officials paid the stated price. The question is not, in my view, open-and-shut, and the opinion doesn't consider the counterarguments as much as it might have; but the result is interesting, and should help prevent such behavior in future cases (like the one in California, where a mayor did something similar to a free newspaper).


SCHWARZENEGGER SUES: An amusing little lawsuit, likely a sure winner for Schwarzenegger, though perhaps in the grand scheme of things he should have shrugged it off. And this time they used a quote from me that I actually like: "My guess is, this advertiser just hadn't really thought about the legal issues and thought it would be a joke. It's probably going to turn out to be a very expensive joke."


MICHAEL KELLY IN THE WASHINGTON POST ON THE LEFT: A great commentary on the Left in America today -- not on liberalism, but on the hard Left. Here's a longish excerpt, though the whole piece is much worth reading:
. . . The left has hardened itself around the core value of a furious, permanent, reactionary opposition to the devil-state America, which stands as the paramount evil of the world and the paramount threat to the world, and whose aims must be thwarted even at the cost of supporting fascists and tyrants. Those who could not stomach this have left the left -- a few publicly, as did Hitchens and Rosenbaum, and many more, I am sure, in the privacy of their consciences.

Last weekend, the left held large antiwar marches in Washington, San Francisco and elsewhere. . . . This was "A Stirring in the Nation," in the words of an approving New York Times editorial, "impressive for the obvious mainstream roots of the marchers."

There is, increasingly, much that happens in the world that the Times feels its readers should be sheltered from knowing. The marches in Washington and San Francisco were chiefly sponsored, as was last October's antiwar march in Washington, by a group the Times chose to call in its only passing reference "the activist group International Answer."

International ANSWER (Act Now to Stop War and End Racism) is a front group for the communist Workers World Party. The Workers World Party is, literally, a Stalinist organization. . . .

This is whom the left now marches with. The left marches with the Stalinists. The left marches with those who would maintain in power the leading oppressors of humanity in the world. It marches with, stands with and cheers on people like the speaker at the Washington rally who declared that "the real terrorists have always been the United Snakes of America." . . .

The Times' "mainstream" Americans marched last weekend with people who held signs comparing the president and vice president of their country to Hitler, and declaring, "The difference between Bush and Saddam is that Saddam was elected," and this one: "I want you to die for Israel. Israel sings Onward Christian Soldiers."

March on.


Thanks for posting that recipe on your weblog. I baked it over the weekend. My wife and I enjoyed it very much despite much prior misgivings about putting vodka in the cake.
Abandon your misgivings, baking masses! We Russkies know what to do with our vodka. (Granted, we usually just drink it straight, but when we don't, you know that we must be putting it to good use.)


BLOGBERRY: Reader Ethan Hahn writes, about our get-blog-posts-by-e-mail service,
I very much like this service -- I have it delivered to my Blackberry, so it's a portable blog for me.


Should Roe v. Wade be overturned?
Yes, the nation has become more conservative.
No, little has changed in 30 years.
These hardly seem like the most common justifications for either overturning Roe or preserving it, and they certainly leave many people with no good answer -- how about people who think that Roe should be overturned even though the nation has become more liberal on abortion (which to my knowledge is the case)? Or that Roe shouldn't be overturned because though much has changed in 30 years, the decision is still right? Pretty silly. (Thanks to reader Dave Ragsdale for alerting me to this.)


. . . The report to the Security Council due Monday by the chief weapons inspector, Hans Blix, could well touch off an acrimonious debate about whether Iraq has or has not complied with the council's last order for disarmament -- particularly as Mr. Blix, who sees his mission as heading off a war at any cost, is likely to duck the central issue. That question is relatively simple: Has Iraq agreed to immediately and voluntarily disclose and dismantle its weapons of mass destruction, and to allow inspectors to verify those actions? The answer is equally plain: It has not. In fact, it has denied that it has any weapons to dismantle, submitted a declaration to the council that even Mr. Blix had to concede was manifestly false, and done its best to prevent the inspectors from uncovering its lies, in part by bottling up its scientists. Meanwhile, evidence is leaking out anyway: Undeclared chemical warheads have been found, illegal imports of missile parts discovered, explosives that could be used in nuclear warheads gone missing. The only way to avoid the conclusion that Iraq is again refusing to disarm, and that action must thus be taken, is to ignore all these facts or recast the U.N. mission. . . .
(Thanks to for the pointer.)


EVERYONE HAS ALREADY LINKED TO IT, but I feel I have to as well: Lileks has a characteristically excellent piece on Communism, anti-Communism, and people's reaction to the two. A couple of my favorite paragraphs:
You really want to lose the argument with these people? Point out that the peace-rally organizers are Communists. I’ve noted this odd phenomenon for years; you can be indifferent to Communism, you can be an actual Communist, and no one will really care, but opposition to Communism will really make some people suspicious.

It’s not that they support Communism - oh, heavens, no - but they’re suspicious of anyone who seemed particularly interested in confronting the Red Menace. Communism is like, well, chiropractic medicine. They might not believe in it, but they have a friend who did, and all in all what’s the harm, and besides, the doctors want to suppress it, and the doctors are a special-interest group interested in their own turf, so what are they trying to hide? I mean I knew this doctor who complained all the time about malpractice insurance costs, and you should have seen his house. Like he was hurting.


ANOTHER PUZZLING BUSHISM OF THE DAY: Slate's Bushism of the Day for yesterday was this:
"Many of the punditry—of course, not you (laughter)—but other punditry were quick to say, no one is going to follow the United States of America."—Washington, D.C., Jan. 21, 2003.
Now the errors in these Bushisms are supposed to be obvious -- look at this silly inarticulate President of ours mangling the English language -- but it's not perfectly clear to me what exactly the mistake here really is (unless it's just "other punditry" instead of "others of the punditry," a fairly banal slip).

     I suppose the claim must be that "punditry" can refer only to what the pundits are saying, rather than to the pundit class generally; but if that's the claim, it doesn't seem right. A quick LEXIS search found several instances where "punditry" is used the way Bush is using it -- The New York Times's Maureen Dowd ("The punditry got all steamed about that . . ."), CNN's John King ("In the media, especially among the punditry . . ."), columnist Paul Greenberg ("It's all part of a familiar pattern among the punditry . . ."), The American Prospect's Nicholas Confessore ("Among the punditry, reports The Washington Post's Howard Kurtz, "learned analysis of Gore's situation . . . can be summed up thusly . . ."), Chris Mooney, then also at the Prospect, and others.

     More broadly, "-ry" is a suffix that often refers to the class of all people who possess a certain property: cavalry, infantry, yeomanry, tenantry. "Punditry" is a logical application of that rule; and it's to be expected that, especially with voguish words like "pundit," people would apply existing rules to create new terms. Perhaps they shouldn't do so here, because it may create ambiguity (letting punditry mean either what pundits say or pundits themselves as a group). But it's not a Bushism -- it's an -ism shared by English speakers generally.

     What's left, then, is this: Bush probably starts out to say "Many of the punditry were quick to say, no one is going to follow the United States of America" (just my guess here, but it seems a sensible one). Four words into the sentence, he realizes that this is potentially a little socially uncomfortable, since he's talking to reporters, so he drops in a socially lubricating joke -- "of course, not you" -- and then when he returns to his point, he inserts an unplanned reference to other pundits, and mistakenly says "other punditry" instead of "others of the punditry."

     It's pretty common to make this sort of error when one says something extemporaneously; as I've said before, just read some transcripts some time. Here's one from ABC News, June 30, 2002: "Well, there's another point here, which goes to the politics of the issue, which is, if you do create a lot of choices, those--it's going to include suburban public schools." Here's another from CNN, Nov. 6, 2001: "I think Bill Clinton is still a very popular in New York City and, in particular, he's very popular with African-American voters, and I think the issue of African-American turnout and particularly being key to Mark Green -- I've asked the same question." Both are quotes from the author of Bushisms of the Day; and both are just as newsworthy and just as humorous as Bush's "other punditry" slip, which is to say not newsworthy or humorous at all.


ROE v. WADE. Today is the 30th anniversary of Roe v. Wade. I am one of those people who believes both (a) that the State has absolutely no business whatsoever interfering with a woman’s decision about whether or not to have an abortion, and (b) that the Roe v. Wade decision was a near-total disaster, even for the adherents of view (a).

It drives me nuts when people describe Roe v. Wade as the Supreme Court decision that “legalized abortion”; I heard Nina Totenberg do so several months ago on NPR and I nearly drove off the road, I was so mad. [And a quick Google search for “Roe v. Wade legalized abortion” turned up lots of examples of that usage, see here, and here, and here, for example] It did no such thing, of course – abortion was already legal in a number of states in 1973 (and the trend, such as it was, appeared to favor increasing legalization throughout the country, roughly paralleling the liberalization of divorce law that was in progress at around the same time; in just the preceding 6 years prior to the decision, four states - Alaska, Hawaii, New York, and Washington – had completely repealed their abortion bans, and 13 others had enacted substantial, but more limited, reforms).

No, what Roe did was to say that there was a “right” (and, therefore, by necessary implication, a “wrong”) answer to the abortion question, that abortion was no longer a subject on which reasonable people could, or would be allowed, to disagree. And sure enough, the debate has become completely unreasonable, on both sides, with otherwise sensible and decent people heaping contempt and hate upon those on the other side. The public debate on this question is ugly and gets uglier all the time, and I think the Supreme Court bears at least partial responsibility for that ugliness. Federalism – letting the debate proceed at its own pace in each of the 50 states – can be a beautiful thing, defusing the kind of nasty polarization we see surrounding the abortion issue precisely because it defines issues as local, and not national, issues. Think “civil union,” an equally contentious issue that is quite properly (and relatively civilly) playing out at the local level, popping up in different places from time to time – Vermont here, Hawaii there – never standing still long enough in one place for it to become the subject of intense national gaze. Heaven help us if the Court decides that same-sex unions must, or must not, be recognized as a matter of constitutional law, for either way that issue becomes the sort of nightmare that the abortion issue has become in our national life.


FURTHER UPDATE: I e-mailed about their use of the McKinney misquote, and within 5 minutes got a response from John Hawkins, which I think is very much to his credit:
Since there is some question about how authentic the quote is, I'm going to pull it from the article. Thanks for pointing that out to me . . . .


MCKINNEY MISQUOTE SPREADING: The McKinney misquote (if it was a misquote, but it seems quite likely to me that it was) seems to be spreading through the Web; I've also found it in a David Horowitz column on, and I've e-mailed them about this as well. It would be good if this could be nipped quickly, before it turns into an urban myth that ultimately hurts not just McKinney but also any of her conservative critics who fall for the error and then lose credibility because of it.

     Incidentally, I realize that I forgot to provide some context from the Washington Times article in which the misquote appears. The sentences around the alleged McKinney statement read thus:
The Democratic Party's most prominent theologians, the Revs. Al Sharpton and Jesse Jackson, were there applauding Cynthia McKinney, until November a member of Congress, who told the crowd: "In no other country on the planet do so many people have so little as they do in this country." (Small, chubby children in the crowd, dreaming dreamy dreams of the supermarket abundance in North Korea, Upper Volta and Lower Slobbovia, tugged at their mamas' skirts and cried piteously for more of the hot dogs, pizza, chicken wings and chocolate-covered Krispy Kremes hawked to the crowd.)
If I'm right, and the McKinney statement was actually (emphasis added)
In no other rich democracy on this planet do so many people have so little . . . .
then this quite substantially undermines the writer's point -- North Korea and Upper Volta become quite irrelevant (I can't speak for Lower Slobbovia). Unfortunately, I haven't yet heard anything back from the Times in response to my e-mail, nor have I yet seen a correction on the Web or NEXIS version of the story. Hope they do indeed correct it promptly (again, assuming that my analysis is correct).


MONITORING SYSTEM FOR BIOWARFARE ATTACKS: Phil Carter, who's a former Army officer as well as a student of mine, has some interesting thoughts on this news story. I'm not knowledgeable enough on the subject to evaluate them myself, but they seemed much worth passing along.


FOLLOW-UP ON PINTER: Some readers suggest that Pinter (see the next post) might have been referring to the first Gulf War. I'm pretty skeptical of that -- it was hardly the American detour and frolic he seems to be describing, and it was hardly a joyful-ballad-chanting world-galloping sort of thing; too small an affair, really, for that. But if he is talking about that, then again how can he be condemning it? We freed a small country from a heinous invading regime. Come to think of it, kind of like we freed (or protected) other countries from heinous invading regimes in the other incidents I described . . . . (As to the possibility that he's talking about the Vietnam War, see my comments on the Cold War, of which Vietnam, Korea, and the military defense of Europe were all part.)

Tuesday, January 21, 2003


HERE THEY GO AGAIN: Andrew Sullivan quotes a disgusting anti-American poem by British writer Harold Pinter. I don't want to reproduce the piece in its entirety, but I was struck by the opening stanza:
Here they go again,
The Yanks in their armoured parade
Chanting their ballads of joy
As they gallop across the big world
Praising America's God.
     Here they go again. Again. Apparently the Yanks did their galloping before in praise of America's God before -- I wonder when? Maybe it was the Cold War; but wait a sec, weren't Americans, well, rather in the right on that one? Say what one will about particular engagements of that long war, but American might seems to have saved many millions of people (including perhaps the British) from a nation even more oppressive than America, if you can believe that.

     Oh, but maybe he means the time before; but wasn't that against the Nazis? If the Yanks in their armoured parade chanting their ballds of joy hadn't galloped across the big world praising America's God then, where exactly would Harold Pinter, a British Jew, be today?

     Gratitude? I don't expect gratitude. But I do expect a bit more honesty about what really happened in the not so distant past. And perhaps such honesty, with one's audience and oneself, might better illuminate what is really happening today, as opposed to what is happening in the fevered delusions of their anti-American imaginations.


MORE CALLS FOR CAMPUS SPEECH SUPPRESSION: Erin O'Connor has the scoop on the latest, at Texas A & M. The university is of course entitled to speak up itself to condemn speech that it finds offensive (there, "ghetto parties" that involve students dressed in blackface), and it may often have a moral obligation to do so. But the university seems to be talking about punishing the students involved, and that's clearly unconstitutional.

     According to the campus newspaper, by the way, one professor (Marco Portales, a professor of English) suggested "that A&M expel students involved in ghetto parties or similar events because it damages the university," and theorized thus:
"Diverse viewpoints ought to prevail,” he said. “Although, if a viewpoint is maligning without provocation, I don’t think that is constitutionally protected. You are, in effect, assaulting people. You are misrepresenting them. You are making fun of people.”
Well, actually, maligning is constitutionally protected, "with[] provocation" or without (check out Hustler v. Falwell, for instance). "Misrepresenting" groups in the sense of spreading unfavorable and possibly unfair opinions about them is constitutionally protected. "[M]aking fun of people" is constitutionally protected. It may be offensive; it may be rude; it may be reprehensible; but the Constitution protects even offensive, rude, reprehensible speech. Pretty basic First Amendment law.


NATIONAL INCOMES PER CAPITA: By the way, the World Bank table cited in the following post is interesting in its own right -- it gives national income, including per capita income, information for most countries.


MEASURING GDP: Reacting to my earlier post on the world's largest economies, a Census Bureau economist writes:
. . . [T]he difference between the CIA's numbers and LAEDC's isn't really so mysterious.

The reason the CIA figures differ from the LAEDC's, is that the CIA is converting from foreign currency to dollars using a "Purchasing Power Parity" (PPP) index, while the LAEDC is using exchange rates. That's also the reason why the LAEDC and the CIA report the same numbers for the U.S.: because there's no need to convert U.S. GDP from a foreign currency into dollars.

For most purposes, the PPP numbers are preferable, so the CIA is reporting better numbers. Two problems with exchange rates are that they are set by government fiat in some countries, and that they only reflect the price of tradeable goods. But most of GDP isn't tradeable, for example, housing and cardiac surgery. PPP numbers are an attempt to calculate the price of all goods in a country relative to U.S. prices. If your goal is to use GDP per capita to compare the standard of living in different countries, the PPP numbers are the ones to use. The exchange rate GDP numbers tell you how much the country could import (assuming the exchange rate is set by the market, anyway), but that's not a figure that I see any particular use for.

If you want to see the PPP and exchange rate numbers side by side on the same page, the World Bank has a table on the web.


SUV'S: I'm mostly a noncombatant in the SUV wars (my lovely wife drives one, but I have no emotional attachment to it), and I can't claim any expertise on the subject; but this piece by my friend and fellow lawprof Jonathan Adler is quite interesting, and I've found Jonathan's work to be trustworthy. (Thanks to How Appealing for the pointer.)


LOCAL TV HERE IN L.A.: I'll be on KCET, the Los Angeles public television station (channel 28) today at 7 pm. I'll be part of a panel on Life & Times talking about race preferences.


TYPES OF PEOPLE: From the Jan. 17, 2003 Times (London), attributed to Jeremy Paxman:
There are 10 types of people in the country: those who understand binary and those who don't.
There's even a T-shirt. (Thanks to my friends Haym Hirsh for the article pointer, and Gil Milbauer for the T-shirt pointer.)


E-MAIL TO THE WASHINGTON TIMES: I just e-mailed the following item to the Washington Times (, echoing my post below. If you agree with my understanding of the video, you might want to e-mail the Times as well; if I'm right, then they should indeed promptly and prominently correct their editor's allegation:
Dear Madam or Sir: I wonder whether Mr. Pruden may have made a possibly serious error in his column today (, when he quoted the former Rep. Cynthia McKinney as saying "In no other country on the planet do so many people have so little as they do in this country."

At shortly after 1:31:20 in the CSPAN video (available at, click on "U.S. Policy Towards Iraq" on the left and then "Anti-War Rally in Washington" in the upper center), Rep. McKinney can be heard to say "In no other rich democracy on this planet do so many people have so little." This, though, is a *very* different claim than the one quoted in your column. I don't think I fully agree with the claim she made, but it's at least plausible; the claim that she was quoted as making was nonsensical.

Now I have not listened to the whole CSPAN video, so perhaps she did make the quoted statement elsewhere in the video; can you tell me whether that might be so? I have no fondness for Rep. McKinney, who has indeed said many foolish things in the past, but I wonder this particular claim about her statements might be mistaken.

Sincerely Yours,

Eugene Volokh
Professor of Law
UCLA School of Law


THE COOLEST THING ABOUT OUR PLACE IN THE UNIVERSE. I've been pondering this for many years, and you will be delighted to know that I have finally figured it out. The coolest thing about our place in the universe is this: the moon and the sun are, when viewed from earth, exactly the same size. [Which is why solar eclipses happen the way they do -- when the moon is between the earth and the sun, it fits precisely over the sun's disk] There is, as far as we know, absolutely no reason this should be so -- nothing about the physics of solar system formation, interstellar scaling, satellite and planet formation, gravity, etc. accounts for this. It is, completely and deliciously, a coincidence. What are the odds the two dominant components of the evening sky would happen to be exactly equal in (apparent) size? How many other planets out there can say that about their view of the sky?


MCKINNEY QUOTE: According to a Washington Times column by editor-in-chief Wesley Pruden (which has been picked up by and is now making the rounds on the Net), Rep. Cynthia McKinney -- speaking at a Saturday antiwar protest that aired on C-SPAN -- said:
In no other country on the planet do so many people have so little as they do in this country.
Now this is remarkably nonsensical, even by the standards of some of the things that Rep. McKinney has said in the past; but it's so nonsensical that it sets my myth detector antennae buzzing. The quote may well be genuine, but I just want to be sure. Does anyone have any pointer to an official transcript that contains this, or personal recollection of seeing this on C-SPAN? Please let me know at volokh at

UPDATE: My myth detector antennae may in fact be working well. Reader Joseph Hiegel was kind enough to e-mail a link to the CSPAN video (click on "Anti-War Rally in Washington"), and the starting time of the likely comment -- a bit past 1:31:20 into the talk. I listened to the comment, and here's what McKinney actually said:
In no other rich democracy on this planet do so many people have so little . . . .
Not "in no other country" -- "in no other rich democracy," a critical difference. One can certainly challenge the statement McKinney made, but it's much more defensible than the statement that she's alleged to have made.

     I did not listen to the whole speech, so perhaps McKinney elsewhere makes the statement that the Washington Times and say she made; if that's so, I'd be delighted if people could e-mail me about it. But if the allegations refer to the point in the talk that I heard, then it seems to me that the allegations are inaccurate, and highly unfair to McKinney.


THE CONSPIRACY LIVES: As Howard notes, we here at the Volokh Conspiracy celebrate today's Supreme Court opinion in United States v. Recio, which held that a conspiracy does not end when the government frustrates the conspiracy's objective. The Court's unanimous opinion doesn't come as much of a surprise-- it's a good rule of thumb that when a case asks the Supreme Court to choose between the nearly-universal rule adopted by state and federal courts and that of the Ninth Circuit, the Ninth Circuit will lose.

     The arrival of Recio offers a good opportunity to answer another conspiracy law question that readers may have asked themselves -- if several of the Volokh co-conspirators write under a pseudonym, and only Eugene knows who every one is, is there one Volokh Conspiracy, or are there really a bunch of different conspiracies, each with Eugene? I think Model Penal Code Section 5.03(2) offers the best answer:
If a person guilty of conspiracy . . . knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime
    In other words, we're all one happy Conspiracy here. At least, according to the Model Penal Code.


MORE ON SUPREME COURT NAMING NORMS: An anonymous but highly reliable source tells me the following:
A tid-bit (potentially) relevant to your "clerkerati" post: At Chief reunions, the "divide" is between those who call him "the boss" (pre '86) and those who call him "chief." Interesting, the two groups appear to have very different images of him (the "Lone Ranger" of the 1970's dissents, vs. the Chief of the spare opinion). But, it appears, no one ever used "the Justice."
"The boss," a somewhat casual term, is quite consistent with what little I know of the Chief, who I understand is a relatively informal person in private.


DEGREES R US: No, really, that is the name; and though their Web site says "Avoid Phony Diplomas and Fake Degrees," the General Accounting Office has apparently found that phony diplomas and fake degrees are indeed at least one thing that they sell. The report is short, readable, and seemingly quite damning. (Thanks to fellow lawprof Ed Richards, who passed this along to a lawprof discussion list that I'm on.)


MORE ON MARTIN LUTHER KING, JR.'S BIRTHDAY: Mark Kleiman has some very interesting thoughts, partly agreeing and partly disagreeing with my earlier post on the subject.


INTELLECTUAL PROPERTY AND TECHNOLOGY LAW STUDENT COMPETITIONS: Lawprof Michael Madison has a list of these; if you're a law student interested in these subjects, you should check this out. There are even some nice monetary prizes for the winners.


42 IS THE ANSWER: One of my Free Speech Law students asked when we'd be discussing a particular First Amendment policy argument (the argument that there are effective alternatives to suppressing speech) -- and the answer, it turned out, was p. 42! I, and a very small subset of my students, found this vastly amusing.


TECHNICALLY CORRECT PHRASES THAT YOU PROBABLY SHOULDN'T USE, part 4913: Introducing a federal court of appeals judge, or a federal district court judge, as "This is So-and-So, who's a judge of an inferior court here in town."


REPUBLICANS AND ABORTION: Stuart Buck disagrees with the claim that "Republicans don't really want to overturn Roe, because it would harm their electoral chances":
[T]he people who make this argument never explain just why it is that "Wall Streeters and suburbanites" would 1) currently be willing to compromise and vote for Republicans despite a platform that calls for the repeal of Roe, but at the same time 2) be so enraged over the success of the platform that they already vote for that they would switch parties. Especially when the repeal of Roe, as I have already said, would have no effect whatsoever on the lives of the vast majority of these "Wall Streeters and suburbanites," since any restrictions on abortion would have to come from the state legislatures in which they are probably disproportionately represented.

The contradiction is this: If abortion is so popular that massive numbers of people would theoretically exact revenge on the Republicans for overturning Roe, then the very fact that abortion is popular would make the overturning of Roe essentially meaningless (because people would still vote to keep it legal), and there would then be no reason to take out vengeance on the Republicans. On the flip side, if abortion is so unpopular that state legislatures would pass any sort of meaningful restrictions absent Roe, then that very unpopularity should cause people to support Republicans. Either way, the argument as currently stated is self-contradictory.
I don't think this analysis quite works, for two reasons:
  1. People understandably pay more attention to platform planks that seem likely to make a real-world difference than to ones that seem to be merely rhetoric. A pro-choice voter may be happy to vote Republican precisely because given Roe (or, more precisely, Casey), a Republican Party pro-life position is unlikely to make a difference. But if it seems likely that the Court will reverse course and reject abortion rights, then pro-choice voters' political calculations will naturally change.

  2. People who see the right to an abortion as a fundamental right don't just want it for themselves -- they think all Americans should have it. Pro-choice voters in California thus aren't content with the near certainty that abortions will still be legal in California even without federal constitutional protection; they want to make sure that they remain legal in Alabama and Utah as well. That's the flip side, by the way, of the view on gun rights: It's unlikely, for instance, that handguns will be banned on the federal level, or banned in many pro-gun states -- but pro-gun voters in Texas want to make sure that all Americans, including those in Chicago, Washington, D.C., and New York have the right to own guns, too.
Now I'm not sure whether the Court's rejecting a constitutional right to abortion will in fact hurt Republicans; I find the theory plausible, but I can imagine plausible counterarguments, too. But it seems to me that the theory cannot be dismissed quite as quickly as Stuart suggests.


THE WORLD'S LARGEST ECONOMIES, SORTED BY SIZE: Impearls has a really cool table, drawn from multiple sources; I can't vouch for the accuracy, but it seems right, and very interesting. It also points out some interesting controversies about the actual sizes of various economies, especially China's and India's -- the CIA Factbook seems to give a different result from the one that Impearls says is generally accepted by economists.

     Oh, and according to one source that Impearls cites as being quite reliable, Los Angeles County's GDP is right above the 16th largest national GDP -- which is Russia, the main heir of the nation from which my family moved to L.A. County.

UPDATE: A reader responds about the GDP measurement question.


SOME BLOGGING HELPS PRODUCE RESIGNATIONS BY SENATE MAJORITY LEADERS -- OURS PRODUCES CAKES: Reader Cher Rineer writes, apropos the Black Russian cake recipe that I posted last week,
Although I rarely bake (I even had to buy a bundt pan), I had to try the Black Russian Cake recipe you posted. It was fabulous. I cut it into quarters and shared it with friends.
Another reader, on the other hand, writes:
By the way, that "Black Russian" cake of yours is the single scariest recipe I've ever seen. And I've read Lileks' Gallery of Regrettable Food.
Further cross-examination revealed that the reader found the concept of vodka in a cake to be odd. Well, scary is as scary tastes -- and both Ms. Rineer and I can highly recommend the cake, vodka and all.


The State of Maryland has denied a physically disabled citizen a permit to carry a concealed handgun because he does not have a "good and substantial reason" to be armed.

Dan Sullivan worked as an emergency trauma nurse before muscular dystrophy severely limited the use of his legs. He can now walk only with the assistance of two canes.

What Sullivan calls his "visually obvious physical disability" makes him an attractive target for criminals, he believes. It also makes it almost impossible for him to flee or physically defend himself from an assault. Despite those facts, Sullivan was denied a concealed handgun permit by the Maryland State Police. . . .
Demosthenes, Andrea Harris, and Kim du Toit condemn the Maryland decision on this, but this seems to me to be just a small example of a far broader problem. Most obviously, women's visually obvious gender -- coupled with many women's visually apparent relative weakness -- makes them an attractive target for rapists. And yet in some jurisdictions (I don't know whether Maryland is one, but see here, describing the current practice in one place, and here, describing a recently superseded practice in another), walking around with large quantities of cash that some people might want to steal is treated as a fairly good reason to get a permit to carry a concealed gun; but walking around with a body that some people might want to rape is not.

     Very rich women, of course, can defend themselves by hiring bodyguards, as can very rich men, whether handicapped or not. Women, handicapped men, and non-handicapped men of moderate means lack this ability; they can either be their own bodyguards, or remain relatively unprotected.

Monday, January 20, 2003


ARE X-MEN HUMAN? Here's the court decision that resolves this question; thanks to Daniel Wiener for the URL.

     How did the issue come to court, you might be asking (if you haven't seen the news coverage)? Well, see, Wolverine was arrested for shouting at the anti-war demonstrators . . . . No, actually the question was whether action figures representing these characters qualified as "dolls representing only human beings" under U.S. tariff schedules -- or as the lower-tariff "Toys representing animals or non-human creatures (for example, robots and monsters)." Here's the key analysis:
Whatever the degree is to which they resemble human beings, the court finds that these action figures do not represent human beings and are therefore not properly classifiable as “dolls” under HTSUS heading 9502. The court bases its finding on at least three observations. First, most of the figures at issue exhibit at least one non-human characteristic. The court does not agree with Customs that the few non-human characteristics the figures possess, such as claws or robotic eyes, “fall far short of transforming [these figures] into something other than the human beings which they represent” because the issue under the HTSUS is not a straight headcount of the human features a figure may possess, rather the issue is whether the figure as a whole and in a wider context represents a human being. . . . Moreover, under the more restrictive “dolls” provision of the HTSUS, even one non-human feature the figure possesses prohibits its classification as a “doll.”

Second, these Marvel characters are known in popular culture as “mutants.” That fact further informs their classification. Cf., e.g., HQ 950200 (Dec. 18, 1991) (Customs recognizing that some knowledge from popular culture is necessary to identify certain figures, such as angels, devils, monsters, as “non-human”). They are more than (or different than) humans. These fabulous characters use their extraordinary and unnatural physical and psychic powers on the side of either good or evil. The figures’ shapes and features, as well as their costumes and accessories, are designed to communicate such powers. . . .

Third, the “X-Men” figures are marketed and packaged as “mutants” or “people born with ‘x-tra’ power.” That they are denoted as such by the manufacturer or the importer lends further credence to the assertion that they represent creatures other than (or more than) human beings. . . . For all the foregoing reasons, the “X-Men” and “X-Force” figures considered are not properly classifiable as “dolls” under HTSUS heading 9502. If these figures are not “dolls” under HTSUS heading 9502, then they must fall into the category of “other toys” under HTSUS heading 9503.
Such a mundane context for deciding such weighty matters! And I love Weiner's bottom line:
The most incredible aspect of this whole sordid affair is that the U.S. Government defended the X-Men's humanity, while Marvel stabbed them in their non-human backs.


SEEKING FREE MARKETING ADVICE: Foundation Press and I are now starting to think about how we can best promote my forthcoming book on Academic Legal Writing: Student Notes and Seminar Papers. We naturally have some ideas, but we'd love to get some recommendations from others. So,
  • If you are a law professor, what could we say or do that would persuade you to recommend the book to (1) students whom you are advising on their independent writing projects (including law review Notes), (2) students who have to write term papers for seminars that you teach, and (3) the editors of law journals for which you act as an advisor -- or even to require them to order it?

  • If you are a law review editor or staffer, what could we say or do that would persuade you to recommend the book to incoming members, or even require it of them?

  • If you are a law student, what could we say or do that would persuade you to buy the book?

  • If you are a young lawyer who is interested in writing a law review article while you're practicing, what could we say or do that would persuade you to buy the book?
  •      If you have some ideas on this, please e-mail me at volokh at . Thanks in advance for your help!


CUTE MESSAGE: Teresa Nielsen Hayden's blog is apparently set up to display the following if accessed with a certain browser (I saw this in the source code, so I can't vouch that this actually works, but it sounds like she knows what she's doing:
Hi there. Looks like you're using barfy ol' Netscape 4.x.

I don't want to seem unkind or rejecting, but it's a real pain to design a web page that'll work with Netscape 4. No other web browser has anything like its level of problems. This isn't just another case of computers not working. It's because Netscape 4 has ignored the web standards that everyone else uses. Its designers are at fault.

Fortunately, almost any other modern web browser will solve this problem for you. For instance, recent versions of Internet Explorer (for both Windows and the Macintosh), of Mozilla and its several variants, of Opera, and for that matter Netscape 6.x should work fine.

In the meantime, this raw-text version of my weblog should be accessible to just about everyone. It won't be pretty, but it should be readable.

Sorry about that. Do please see about getting yourself another web browser.
Don't know whether the criticism of Netscape 4 is sound, but it's certainly amusing.


THE RHETORIC OF COPYRIGHT DEBATES: Doc Searls has an interesting point about how the copyright debates are being framed by the language that both sides (and especially the copyright expansionists) are using.


A California man has been arrested on federal child pornography charges for allegedly posing as a terminally ill teen-ager to persuade sympathetic young girls to send him nude photos of themselves.
(Thanks to Fark for the pointer.)


"10 WAYS TO TELL IF YOUR CO-WORKER IS AN EXTRATERRESTRIAL!," from the Weekly World News. Thanks to Fark for the pointer.




THE TROUBLE WITH TALKING TO THE MEDIA: Charles Lane, in Friday's Washington Post, quotes me as follows:
Legal analysts say O'Connor's vote will probably decide the Michigan cases, too, because of all the justices she appears the least committed to a foreseeable view of the issue of race-conscious admissions in higher education. The administration's briefs cite her rulings on race-conscious policies and embrace an incremental approach similar to her own, but these analysts say her past opinions offer words that both sides could interpret as encouraging.

"When you have so little data, and what she has said is so contradictory, people's predictions depend on their pessimism -- or their wishful thinking," said Eugene Volokh, a UCLA law professor who once served as O'Connor's law clerk.
This is actually wrong -- Justice O'Connor hasn't said anything contradictory as such; rather, she's said things that either side can interpret as favoring them. The statements (race preferences are generally unconstitutional, but on the other hand there needs to be some zone in which they're permitted) are quite consistent with each other, so there's no contradiction there.

     Now I wish I could blame this on the reporter, but I can't. In my experience, Charles Lane has been a careful and accurate journalist, and it's certainly quite possible that I said "contradictory" when talking to him on the phone; perhaps I spoke imprecisely, something that's quite easy to do. When you're writing, you can look closely at what you write, and edit it to make it more accurate. Not so in a telephone conversation, especially a longish one. This sort of subtle inaccuracy -- and sometimes even far less subtle ones -- is inevitable, I've found, when talking to people. Something to keep in mind whenever one reads and prepares to heavily criticize any quote from an unrehearsed conversation. (Quotes from written documents or prepared speeches, such as NAACP chairman Julian Bond's repeated references to affirmative actions as the "just spoils of a righteous war", are a different matter.)


MARTIN LUTHER KING, JR.'S BIRTHDAY: Most American holidays (and, I suspect, most holidays in other nations) are either relatively nonideological cultural or religious affairs (e.g., Thanksgiving, New Year's Day, Christmas, Easter), or are unalloyed celebrations or glorifications of the nation or its people (July 4, Presidents' Day, Memorial Day, Veterans' Day). Martin Luther King, Jr. Day -- and possibly to a lesser extent Labor Day, when it was first created, though I can't be sure about that -- is different: It celebrates a great man and a great success in American life, but the greatness of both comes from their fight against a great American failing. The message of July 4 is "What a great country!" The message of Martin Luther King Jr.'s Birthday is at least in large part "What great crimes our country has committed, but what a great thing it is that we have largely overcome them."

     I think that it's not bad for the nation to have at least few holidays that are occasion for self-criticism or even self-doubt, mixed with confidence in a better future. Self-congratulations are important, too, but they should be mixed with some official and repeated acknowledgements of past wrongs. But it's important to recognize that Martin Luther King, Jr.'s Birthday is a different sort of holiday, which is supposed to create a different mood and contribute something different to the national psyche than other holidays do.


MAKING IT LOOK EASY: Judges tend to write opinions so as to make the hard cases seem easy. It's a rare opinion that says "This is a close case; there are good arguments on both sides; on balance we choose side #1 for the following reasons, but we acknowledge that reasonable people might disagree." The normal style is to affect a false certitude about the result, and to disparage the arguments on the other side. Lawyers have to write this way, of course, and it's understandable that judges would find it hard to drop that tone when they become judges. But writing honestly about the hard cases isn't impossible. That's one of the things I like about Justices Souter and Ginsburg -- when a case is hard, they'll often acknowledge the strength of the arguments against their positions. I wish more judges were like that.


FISKING: I was thrilled to see that according to google, our definition of "fisking" is the first item that comes up on a google search. Next goal: Become the official #1 google definition for "truth," "justice," and "the American way."


AN INNOCENT PEEK INSIDE THE SOCIOLOGY OF SUPREME COURT CLERKS: An e-mail reminded me of one of the odd habits of the clerkerati -- how people talk about the Justices. Naturally, as with many casual observations of social norms, this one is necessarily incomplete, and biased by my perceptions, my memory, and the particular subcircle of clerks in which I travel. Moreover, as with social norms generally, the causes and effects of these norms are complex; do they come from the preferences of the Justices, the desire for social bonding, the desire to subtly assert one's self-importance, accidental developments that are repeated because of the tendency of newcomers to mirror the practices of existing members, or some mix of the above? I take no position of any of this; I don't make the rules, I just report on them.

     (1) The Justice for whom one clerks or clerked is often "The Justice" (unless there's some need to resolve the ambiguity). Chief Justice Rehnquist, however, is "The Chief." (Lower court judges are likewise often "The Judge.")

     (2) When one is talking to the Justice, one generally calls him or her "Justice"; I don't know what the rule is as to the Chief. "Your Honor" is almost never used outside the courtroom, at least in the circles in which I travel, whether one is talking to one's boss or to some other judge.

     (3) Justice O'Connor is often referred to in the third person as "SO'C" or "SOC" (pronounced "sock"), and Justice Kennedy as "AMK," I take it because they sign some memos this way. I do not know to what extent such initials are used as to other Justices, but I suspect that it's pretty common for most of them.

     (4) Justice Scalia is sometimes referred to in the third person as "Nino," at least by clerks or ex-clerks with a somewhat casual manner. (I don't do so myself, but that's just me.) Other Justices are not, to my knowledge, generally referred to by their first names, but by their last names, possibly prefixed with "Justice." I've almost never heard Justice O'Connor referred to as "Sandra" by any of the clerks (though I'm sure that her colleagues and social friends call her that). I give you three guesses as to whether "Sandy" would ever be appropriate for her (or, for that matter, say, "Dave" for Justice Souter).

     I'd naturally be glad to supplement this list with information from other clerks.


INFERNAL SECRETS OF THE LAW-PROF BROTHERHOOD: I'm editing the "How to Publish" section of my forthcoming Academic Legal Writing: Student Notes and Seminar Papers book; I'm advising law students how they can get their student articles published, but the process (with few exceptions) closely tracks what law professors do.

     "People who love laws, sausages, and law review articles," Bismark once said, "shouldn't watch how they are made." No, wait -- no-one loves law review articles. But in any event, this is how it's done, just in case you folks in the real world, or in other disciplines, are interested:

How to Publish

     Here's what you do.

     1. Write a one-page cover letter that briefly, clearly, and effectively shows that your article is novel, nonobvious, and useful. You're trying to get law review editors to think, "This is a thoughtful, well-written article on an important topic, and if we publish it, many people will read it and cite it. We should be the ones who snag it, rather than letting it go to our rival journals." (Of course, be more subtle and more concrete than that!) This may sound like mere salesmanship rather than Serious, Dignified Scholarship. But much of life is good salesmanship; and if you have a good idea, you should invest some effort into making sure that people see how good it is.

     2. Give the article one more proofreading pass, to make sure that it looks as polished as possible. In the process, make sure that the footnotes are in Bluebook format. Rightly or wrongly, many law review editors see good Bluebooking as a sign of professionalism; accommodate their prejudices. Not all law reviews follow the Bluebook, but the great majority do, so it makes sense to follow the dominant convention. And I suspect that journals that don't follow the Bluebook get 90% of their pieces in Bluebook form anyway, so they won't resent you for being part of that 90%.

     3. Print a neat, readable copy of your article. Format it to look like an already published law review piece: use a proportionally spaced font, nicely formatted footnotes, single spacing, running page heads, a nicely aligned right margin, hyphenation, and so on. This makes your work more readable and more professional-looking. Some law reviews claim that they want submissions in other formats -- for instance, double-spaced -- but I've never gotten any complaints about my method, and I suspect that most editors prefer articles formatted the way I describe.

     4. Do not say that you're a student in your cover letter or in the article, though of course do not lie or say things that mislead about your position. Many law reviews will still realize you're a law student, but no need to rub their noses in this fact.

     5. Get the list of law review addresses from

     6. The best time to send out your article is March (especially starting mid-March), though April is also good, as are mid- to late August, September, and early October. May through early August are not as good, and late October through February are particularly bad.

     Most journals' editorial boards serve from March to March, and many well-regarded journals fill up for the year by mid-October, which is why you should avoid late October through February. And most journals operate more slowly during the summer, and sometimes don't operate at all, which is why May through early August aren't very good.

     On the other hand, if the article is especially time-sensitive, send it out as soon as possible. Ask your faculty adviser for guidance on this.

     7. Find any specialty journals (for instance, the UCLA Entertainment Law Review or the Harvard Journal of Law & Public Policy, which tends to focus on constitutional law) that focus on your area, and send your article and cover letter to them. To find out which specialty journals are best for you, check the list mentioned in item 5, and also ask your faculty adviser.

     Most specialty journals are student-edited, but some are faculty-edited, and many faculty-edited journals insist that you not submit to anyone else while they're considering your work; call them to check whether this is so. You should generally avoid journals that don't allow simultaneous submissions, since they might not get back to you for months, and during those months you won't be able to send the article anywhere else. On the other hand, sometimes you might have the time to wait (for instance, if you finish the article in December, when many student journals aren't accepting submissions); then you should submit to faculty-edited journals, which are often quite prestigious -- but politely ask them how quickly they'll give you an answer.

     8. Look up the latest U.S. News & World Report law schools rankings; this list is not a great indicator of schools' quality, but it does give a good sense of their reputations, which is what matters to you here. Send your article to the main law reviews at all the top 50 schools; if you have to save postage and trim your mailing list, send to the bottom 30 of that list, since the top 20 are indeed not easy to get into. This whole process may sound tackily class-conscious, but there's a pecking order out there, and ignoring it is costly.

     Then, a couple of weeks later, you might also send out your article to, say, schools 51-100. If you want to save on postage and effort, you might wait until several weeks after the first wave, in the hopes that someone from the first wave will give you an offer during those weeks. But don't just wait until all the journals in your first wave reject you -- many of the journals won't get back to you with a rejection for many months, and some will never get back to you.

     9. Wait for an offer.

     10. If you get an offer, ask how long you have to decide whether to accept it. The journals usually give you from twenty-four hours to two weeks, though they'll sometimes give even more. Don't accept the offer on the spot, unless it sounds like the offer is a use-it-or-lose-it (to my knowledge, that almost never happens), and it's from a good enough journal that you doubt that you'll do much better.

     11. Listen closely to the offer to hear if they're offering you publication as a student note, as opposed to as a full-fledged article. Such student note offers are not as good, though they're better than nothing. If the offer is just for publication as a student note, call other journals to see if you can get an article offer from a comparably ranked or even slightly lower-ranked journal.

     12. Call all the journals that are substantially higher-ranked on your list, and tell them that you have an offer from the first journal and that you'd like an expedited review. This can often get you an offer from a more prestigious place; it's considered ethical, it's expected (though of course not relished) by the journals, and it's done all the time. Again, it seems a little tacky, but that's life in the jungle.

     Unless your original offer was merely for publication as a student note (see point 11 above) or has a very short deadline, call only those schools that are indeed substantially higher-ranked; there's no real difference between school 30 on the list and school 25, so if #30 gives you an offer first, reward the editors' good taste. On the other hand, there probably is a real difference in reputation between #30 and #15. For advice on where to draw the line, talk to your faculty adviser.

     Don't feel embarrassed about trying to shop an offer from a #75 journal to a #1. True, it would be more impressive to the #1 if you were calling to shop up an offer from #10 -- but any offer is a positive signal of the article's quality, and in any event there's no real harm to you if the #1 people aren't impressed by your call.

     13. Do not renege once you've accepted an offer: It's unethical and bad for your reputation, and with the Net, word can get around quickly. "Bust a deal," Auntie Entity tells us, "face the wheel" -- all the contract law you need to know. [footnote: MAD MAX 3: BEYOND THUNDERDOME. The civil procedure aspects of the Thunderdome judicial system -- especially the trial by combat, where the mantra is "Two men enter, one man leaves" -- are more controversial.]

     Once you've accepted an offer, call, write, or e-mail the other journals to withdraw your piece from them; that's the kind thing to do, because it saves them the substantial effort of considering your article further. There's an incomplete but still helpful list of journal e-mail addresses at I wouldn't advise submitting your articles electronically to these addresses, but they should be adequate for e-mailing the withdrawals.

     14. If you get no offer, go back over your article and give it a few good editing passes. You'll be amazed how many improvements you can make after a few months away from the piece. Send the revised version to the next twenty or thirty lower-ranked journals.

     If you're resubmitting in the next editorial board year (editorial board years usually run March to February), also send the revised version to the same journals to which you sent it earlier -- sometimes a new editorial board will be willing to publish an article that it at first rejected. (It's rare, but all it costs you is postage and copying.) Repeat until you have an offer. There are over 400 law reviews in the U.S.; if your article is at all worthwhile, you'll get it published somewhere.

     Finally, a word about an inevitable part of this process -- rejection. Even experienced law professors at top schools generally get rejections (or silence) from over 90% of the journals to which they submit. I know; I've written over 30 law review articles, half of which were published in top 20 journals, but my submissions still get rejected by the great majority of the places to which I send them.

     Rejection is part of the process, and the only way to deal with it is to try to ignore it. Remember that all you need is one acceptance. Remember also that rejections happen for many reasons, and might have nothing to do with the merit of your piece -- for instance, the articles editors might prefer other topics, or might be prejudiced against student-written work.

     The worst thing you can do is let your fear of rejection keep you from circulating the article as widely as possible, or recirculating it if it wasn't picked up the first time around. Remember: It's not personal. It's not about you. It happens to your professors all the time. And no-one will know.


"NOTHING IS EVER WRITTEN, IT IS REWRITTEN": Working on what is likely between the sixth and the tenth draft of my Academic Legal Writing: Student Notes and Seminar Papers book; and I also did several drafts of the Writing a Student Article article on which the book is based. I'll be sending this version in to the publisher at the end of the month, but there'll doubtless be at least two more drafts until the book is actually out. (By draft, I mean a complete edit and proofread, including restructuring the piece and adding or deleting substantial material if necessary.) "Nothing is ever written, it is rewritten" is a line that I was taught by my high school journalism teacher (named G.K. Chesterton, no joking), but it was Judge Kozinski who actually made me live by this phrase when clerking, and I've kept with it since then.

     Needless to say, one can't afford to do this many drafts in most fields (such as the actual practice of law). Still, I'm glad that I can do this; it's really amazing how much each draft improves the piece. Even now, many drafts into the book, I'm finding errors, ambiguities, and clumsiness -- and of course these would be especially bad in a book that purports to teach good writing.

     The remarkable thing is that people used to do this before word processors and even before typewriters. Balzac, in his day, supposedly went through 27 drafts of one book (or so says Deirdre McCloskey in her Economical Writing p. 31 (2nd ed. 2000)); my mother tells me that Tolstoy went through dozens of drafts of War and Peace -- which were supposedly rewritten by his long-suffering wife. I somehow don't think that my lovely wife, despite her many stellar traits, would do the same for me! Fortunately, modern technology avoids that potential source of family friction.


ORIN'S N.Y. TIMES "TOTAL INFORMATION AWARENESS" DROUGHT IS FINALLY OVER: Back in November and December, when the New York Times was waging a campaign against Total Information Awareness, my colleague Orin regularly posted his concerns about excesses in the Times' coverage. Then over three weeks went by without a single story in the N.Y. Times about TIA, and without any worries expressed by Orin here on this site. Nothing. Nada. Fortunately, the drought is over. The Times has published two recent stories about TIA, and Orin has a fresh post about it below -- bringing to at least six the number of such posts he has made (e.g., here and here and here and here and here and here.).

      Well, I'm just teasing Orin a little; I always enjoy his posts, especially at the Times' expense, though I am skeptical about his skepticism about their skepticism. Orin's views have the potential to be especially valuable because he is an expert on the intersection between computers and law enforcement. Yet both of the new stories Orin flags seemed to me to be interesting and informative, and I should think he would join me in welcoming legislation that would suspend funding for the Total Information Awareness project until Congress has had a chance to review it. Are there any available arguments that this is a bad idea?

Sunday, January 19, 2003


THE N.Y. TIMES "TOTAL INFORMATION AWARENESS" DROUGHT IS FINALLY OVER: Back in December, I posted about the campaign the N.Y. Times was waging against Total Information Awareness. For a period back in December, the Times managed to publish a story that mentioned TIA almost daily. Then something really weird happened: over three weeks went by without a single news story in the N.Y. Times about TIA. Nothing. Nada.

     Fortunately, the drought is over. The last few days have featured two stories about TIA: Planned Databank on Citizens Spurs Opposition in Congress by John Schwartz, which appeared last Thursday, and Poindexter's Still a Technocrat, Still a Lightning Rod by John Markoff, which appears in this Monday's paper.

     Now that's more like it.



     Have you ever noticed, in movies about the 50s, how the cars are all in mint condition? I just saw Far From Heaven last night -- every car in the film would fetch about $100K or so, I'd guess, every one waxed to the nines and in perfect shape. This was a particularly stylized version of the 50s, so maybe it was intentional -- but I've noticed it before, in other films. I assume there's a simple explanation, viz. that the companies supplying these cars to the production companies have taken very good care of their stock and don't care to see their valuable property beaten up with dents and scuffs and the rest. But it gives the most peculiar air to the films ... as though the concept of the 'used car' had not yet been invented, or something ...



     Though I was disappointed in the Court's decision in Eldred v. Ashcroft, upholding the constitutionality of the 1998 copyright term extension - I had signed onto an amicus brief asking the Court to strike down the statute - I am not convinced that the decision is quite the disaster for the public domain that some have been suggesting.

     Don't get me wrong - I think the 1998 statute is a disgrace, the triumph of simple private greed over the public interest, rent-seeking at its most egregious. And it is always tempting, faced with legislative monstrosities like this, to ask the Court to step in and sweep the offending statute aside; the world would indeed, I think, be a better place if this statute were to disappear from the books.

     But that, of course, was not the question before the Court. The question before the Court was: why should we intervene here? What makes questions about copyright duration the kind of questions where the views of the 9 Supreme Court Justices should trump the views of the peoples' elected representatives?

     There is an answer to that, of course - a good one. The answer is: the politics of copyright is deeply, profoundly, screwed up. The peoples' elected representatives are hopelessly, systematically, compromised. Copyright politics is all push and no push-back. The big copyright industries buy their way into the back rooms through political contributions and through their general economic muscle, and, once they get there, they say: We Want More. Congress gives them more because the 'public' is not in that room and doesn't really give a damn about the matter, anyway.

     It has, in fact, always gone pretty much like that. But is that enough to give the Court grounds to step in? The majority, basically, said 'No,' and I must say I'm not entirely convinced they were wrong. The problem is that there's no limiting principle on a theory that the Court should strike down legislation whenever Congress is giving preferential treatment to a particular private interest at the expense of the broader public interest; that's a theory that knows no bounds at all, that can justify intervention pretty much across-the-board. And I'm not sure that's a price we should pay in order to strike down this statute.

     Nor am I convinced that this decision sounds the death knell for the public domain. The politics of intellectual property may be changing - helped along by the public attention to the issue(s) brought about by this very case. Copyright is now on the radar screen as an issue that people should give a damn about -- that's never really been true before. There are - slowly, but surely - interests forming opposed to the copyright extension gang - the hardware and software manufacturers, for one, the biomedical and academic research community, for another. They have real clout. They, too, have the big bucks - in fact, they dwarf Hollywood as far as economic muscle goes. They're going to start pushing back, because they are starting to realize, for the first time, that copyright imposes huge costs on them.

     Plus, I think 'the people' are (probably for the first time in our history) starting to think about this stuff. Talk to my kids and their friends about copyright if you don't believe that ...

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