Saturday, March 06, 2004

 
[Sasha Volokh, 3/6/2004 02:01:51 PM]
Searching for Bobby Fischer: And freedom of chess. (Via Will Baude of Crescat.)

Friday, March 05, 2004

 
[Juan Non-Volokh, 3/5/2004 04:22:08 PM]
MemoGate(Less) Report: The Sergeant-at-Arms report is now out. I have not read it yet, so I do not know whether I should modify the views I expressed here and here. Here's the Washington Post story, and an op-ed by Melanie Kirkpatrick with a decidedly different spin. Howard Bashman also has links to the report and related material.

 
[Eugene Volokh, 3/5/2004 03:29:45 PM]
Economic history: Cool site for data junkies like me -- What Was the GDP Then?, which gives you U.S. data on U.S. nominal GDP, real GDP, and more for 1789 to 2002 (though of course keep in mind the usual caveats about the limitations of such data).

UPDATE: Clayton Cramer points to this Inflation Calculator, another nifty resource.

 
[Eugene Volokh, 3/5/2004 03:27:50 PM]
More on "jetsetting": Duncan Frissell writes, apropos my jetsetting post from this morning:

Just to put things in context.... My wife wanted to go to Europe in 1963. Pan Am's 707 service out of Idlewild (IDL) to London cost about $625 (one way). She went Third Class on the Queen Mary for $125 instead.

To add a bit more context: According to this site, the per capita GDP in 1963 -- an admittedly very rough proxy for average personal income, but the best I could find on the spur of the moment -- was $3629; in 2002, it was $37,390. The $625 (one-way!) ticket was thus the equivalent of roughly $6500 today.

 
[Eugene Volokh, 3/5/2004 01:39:22 PM]
Martha Stewart convicted, on four charges.

 
[Eugene Volokh, 3/5/2004 10:19:47 AM]
Newspapers and potential criminal sentences: A reader rightly objects to a common weakness of newspaper reporting (I haven't checked the details myself, but the general point is certainly right):

I know you like to point out where the press poorly reports on legal issues, and, at the risk of bringing a low-brow topic to your attention, I think major newspapers have done a lousy job of describing Martha Stewart's potential sentence.

The LA Times tells us Ms. Stewart faces up to 20 years in prison. The Washington Post and New York Times make the same point by saying she faces up to 5 years on each of the four remaining counts against her.

It is true that there is a statutory maximum of five years for each of the counts, see 18 U.S.C. sections 1001 and 1505, but under the federal sentencing guidelines, she likely would not serve much more than a year in prison. Even if she is convicted of all four counts, she is probably in the 10-16 month range of the Guidelines, corresponding to Offense Level 12 for the most severe charge, obstruction of justice under Guideline 2J1.2. This calculation assumes that she has no prior criminal history, and that all four counts would be "grouped" -- a reasonable assumption because the counts are probably "connected by a common criminal objective or constitut[e] part of a common scheme or plan" under Guideline 3D1.2(b). If she is acquitted of the obstruction counts but convicted of making false statements, she would be in the 0-6 month range and might not spend any time in prison. . . .

By the way, the base level offense for a conspiracy is the same as the underlying substantive offense, so, depending on what you all are conspiring towards, you could be facing a long federal prison sentence.

The Guidelines ranges are presumptive; it's possible that a court might sentence her above (or below) the range, or other factors might come out at sentencing that may increase the range. Still, the estimated Guidelines range probably gives readers a much better sense of the likely sentence than does the "up to 20 years in prison" statutory maximum.

UPDATE: The New York Times story (from Reuters) at the URL given above now reports a sentencing guidelines estimate, but it's a new (post-verdict) story, not the one my correspondent was referring to. Reader Eddie Sutton points out that this New York Times (non-Reuters, post-verdict) story likewise mentions the Guidelines. So some newspaper articles do indeed properly report the likely sentence under the guidelines, and not just the huge permissible statutory sentencing range ("up to 20 years") -- it's just too bad that many others don't.

 
[Eugene Volokh, 3/5/2004 10:05:25 AM]
Sentencing judge urges people to watch The Passion of the Christ: The Lansing State-Journal reports:

District Judge Thomas Brennan Jr. isn't exactly sentencing his drug court offenders to watch what might be the most controversial movie ever, but he's strongly recommending it.

Brennan saw "The Passion of the Christ" last week with a group of fellow Catholics. The film, he said, "completely moved" him. And it seemed clear to Brennan that the people around him in the theater also were profoundly moved by the film.

Two days later, as he was presiding over drug court, Brennan was struck by the idea that if "The Passion of the Christ" could do all that heavy lifting, maybe the movie also could nudge four substance abusers in a more promising direction.

"I didn't make it a condition of probation," Brennan said. "It was not a requirement. I simply suggested that as part of their spiritual development, they should see the movie." . . .

Asked if an arm of government should be promoting Christian spirituality, Brennan pointed out that Alcoholics Anonymous' 12-step program -- which IS a condition of probation in drug court -- includes a reliance on a "higher power."

For that reason, some courts . . . no longer force defendants to participate in Alcoholics Anonymous. [Volokh notes: Several courts have actually held that such a condition would violate the Establishment Clause, precisely because it coerces religious conduct.] But there is no such squeamishness [in] this jurisdiction, Brennan said. . . .

The judge said "The Passion of the Christ" might encourage substance-abuse offenders -- he preferred to call them "participants" -- to "connect to raw beliefs they once had" and perhaps use those beliefs to overcome their addictions.

Brennan said he saw no reason not to expand his "must-see" list. He said he might consider, for example, recommending "Days of Wine and Roses" -- a movie about alcoholism -- to offenders with drinking problems. . . .

 
[Randy Barnett, 3/5/2004 09:36:32 AM]
Boomer Bashing: As you may recall from prior posts, my boomer generation, especially those a few years older than me, are a pet peeve of mine. For a nice rant on the boomers--and it is a rant--check out How The Left Lost Younger Voters by Captain Ed. (Check out the comments too.) Here is a sample:

the preceding generation -- the Boomers -- have to be the most self-involved, self-referential generation this country has ever produced. For the boomers, the Me Generation has never changed; they hold onto the Vietnam War as a touchstone from which they draw their power, seemingly oblivious to the fact that it's been over for thirty years and the resultant massacres proved them terribly wrong. This presidential campaign gives us great examples of this dynamic at work. Howard Dean, for instance, once described the 1960s as a period of unprecedented national unity that he wanted to recreate as President. Boomer-fed groups such as International ANSWER create protests with tired, retreaded slogans from the 1960s complete with the music of the day.

This relentless focus on their own youth as a mythical Golden Age, combined with their greedy, ever-increasing grasp on public resources in the form of expanding retirement entitlements must strike the younger generation as ridiculous and tiresome. Even younger boomers such as myself wonder when my ge-ge-ge-generation will finally realize that they are not the center of the universe. In this environment, the Beatles and Tipper Gore are irrelevant, except as reminders of how narcissistic boomers remain. It may not be enough, on its own, to mold their political philosophy, but it's certainly enough for them to open their minds to other possibilities.

Gen X and Y should be informed that the 60s were an amazingly awful time. Carnage on TV. Body bags. Spitting on American soldiers and calling them murderers. Assassinations and riots on a regular basis. The real threat of nuclear annihilation. The nation deeply divided. (But the "sound track" was excellent!)

That boomers like Howard Dean would be nostalgic for that era says a lot about the world view of young liberal and left-wing boomers in those days. They were insufferably arrogant then towards the "silent majority" who disagreed with them, and largely remain so to this day. BTW, the "silent majority" as it was called were silent because mainstream liberals (or whatever label you prefer) who had sympathy for the "idealistic" youth in the streets had a monopoly grip on the media. One reason for the anger we witness today is the loss of this control that leads Dean to wax nostalgic about the "unity" of the 60s. No, but there was only one voice heard in those days. Today, thanks to talk radio, the internet, and now FoxNews, there is a genuine contest.

 
[David Bernstein, 3/5/2004 09:26:19 AM]
New Blog: Attorney Nate Oman has started a new blog, which you can find here. His former blog, A Good Oman, was well worth reading, and I'm sure this one will be, too. Little known fact about Mr. Oman: many years ago,when he was still an undergraduate at BYU, he served as my RA for the Summer, courtesy of the Institute for Humane Studies, and worked on what became You Can't Say That!

 
[Eugene Volokh, 3/5/2004 07:23:06 AM]
Jetsetting: I was just thinking about this word, and how much things have changed. Once upon a time, flying a lot on airplanes -- no, not just airplanes, but jets! -- was expensive and thus exclusive and glamorous; hence the word. Nowadays, being in the literal "jet set" is not something most of us would want . . . .

 
[Randy Barnett, 3/5/2004 01:00:41 AM]
Point/Counterpoint on Bush: I have been saying for a while that the biggest risk to the President's reelection is the disaffection by "smaller government" elements of the Republican base. A nice summary of that sentiment is Don't Underestimate Conservative Discontent by Tara Ross:

Conservatives feel that the President has betrayed small government principles. They are upset about the creation of multiple new bureaucracies and entitlements during his term. They disagreed with the President's (recently repealed) steel tariffs. They are still fuming over the campaign finance bill that gave the government massive new control over free speech of Americans. Most of all, they are furious over the quickly escalating rate of federal discretionary spending.

Each of these presidential actions has caused conservatives to become more and more alarmed. Already, some conservatives wonder behind closed doors if it would be better to have a Democratic President and a Republican Congress. Maybe the friction between the two would lead to better policy and less spending. Maybe Republicans would start acting like Republicans again. In some cases, it is only the need to win the War on Terror that causes people to still hesitate at the thought of a President Kerry.

For a counterpoint emphasizing the overriding importance of the war against Islamic terrorists, read James Lilleks' Guess Which Candidate Our Enemies Want to Lose in 2004?:

Let's just be blunt: The North Koreans would love to see John Kerry win the election. The mullahs of Iran would love it. The Syrian Ba'athists would sigh with relief. Every enemy of America would take great satisfaction if the electorate rejects the Bush doctrine and scuttles back to hide under the U.N. Security Council's table. It's a hard question, but the right one: Which candidate does our enemy want to lose? George W. Bush.

And some conservatives will be happy to help, it seems.

Woe and gloom have befallen some on the right. Bush has failed to act according to The Reagan Ideal.

The actual Reagan may have issued an amnesty for illegals, but the Ideal Reagan would have done no such thing. So unless Bush packs freight cars full of gardeners and dishwashers and dumps them off at the Mexican border, some voters will just sit this one out.

The Ideal Reagan would have eliminated the National Endowment for the Arts; the actual Reagan proposed a $1 million increase in his final budget. But Bush increased NEA funding -- perhaps an attempt to placate people who wouldn't vote for him if he showed up in performance with Karen Finley and a can of Hershey's syrup. So angry conservatives might just sit this one out.

And if a Democrat takes office, and the Michael Moores and Rob Reiners and Martin Sheens crowd the airwaves on Nov. 3 to shout their howls of vindication? If the inevitable renaissance of Iraq happens on Kerry's watch, and the economy truly picks up steam in the first few years before the business cycle and Kerry's tax hikes kick in? If emboldened Islamist terrorists smell blood and strike again? Fine. Maybe the next Republican president will do everything they want.

Oh, sure, Bush is fine on the foreign affairs stuff, and yes, there's a partial-birth abortion law, and the tax cuts were nice, and come to think of it, Sept. 11 wasn't followed by blow after blow after blow, for some reason. The nation endures, at least at press time. But that's hardly enough. Where's that bill requiring 60-foot Ten Commandments monuments in every capitol rotunda? Let Kerry win. Teach the GOP a lesson, it will.

(Thanks to Rod Dreher for the pointers)

UPDATE: Victor Davis Hanson adds to the counterpoint in favor of reelection in Do We Want to Go Back? What to remember come November:

More likely, if President Bush loses, the war against terror will return, as promised, to the status of a police matter � subpoenas and court trials the more appropriate response to the mass murder of 3,000 at the "crime scene" of the crater in New York. Europe will be assured that our troops will stay while we apologize for the usual litany of purported unilateral sins. North Korea will get more blackmail cash, while pampered South Korean leftists resume their "sunshine" mirage. Iraq will be turned over to the U.N. as we abruptly leave, and could dissolve into something like the Balkans between 1991 and 1998. Iran and Syria will let out a big sigh of relief � as American diplomats once more sit out on the tarmac in vain hopes of an "audience" with despots. The Saudis will smile that smile. Arafat will be assured that he is now once again a legitimate interlocutor. And strangest of all, the American Left will feel that the United States has just barely begun to return to its "moral" bearings � even as its laxity and relativism encourage some pretty immoral things to come.

If White House politicos figured that many who were angered about out-of-control federal spending and immigration proposals would grumble, but not abandon Mr. Bush � given the global stakes involved after September 11, and the specter of a new alternative foreign policy far to the left of that of a Warren Christopher and Madeline Albright � then they were absolutely right.

Thursday, March 04, 2004

 
[Sasha Volokh, 3/4/2004 10:40:17 AM]
The traditional Greek drinking song: I've just been listening to the CD of We're All Dead, a show I saw in New York in December on the recommendation of my friend Todd Seavey. One of the good songs in the show is "The Traditional Greek Drinking Song," which begins:

Dress me up in a tunic, boys,
Dress me up in some sandals,
Dress me up in a toga 'till
Our country's sacked by the Vandals,

Let's make fun of some Stoics, boys,
Spell my name with a theta,
Kill a few scholars with hemlock, boys,
Because there's nothing greater,

Except for girls,
And teenage boys,
There's nothing greater except for girls and teenage boys.

The show is a retelling of the Oedipus story, Kafka's "The Metamorphosis," and Hamlet. One of the other songs is called "I'm a Giant Bug / Are You Really a Giant Bug? / I Lost My Job Because I'm a Giant Bug."

 
[Tyler Cowen, 3/4/2004 10:12:14 AM]
Food in Orlando: I'll be several days in Orlando, at a Reason Foundation event, for one thing this will cut into blogging. But if you know of any good ethnic food there, please let me know. Don't recommend anyplace that would show up in a guidebook or is owned by a corporation. Spicy is good, Cuban and Haitian are good too. Dirty is fine. Any responses after Friday night I probably won't get to see in time.

 
[Eugene Volokh, 3/4/2004 10:09:42 AM]
Blackmun Papers and vote switches: SCOTUSBlog mentions a couple of interesting incidents, and also points to Nina Totenberg's NPR scripts on the papers, which are posted on the Web even in advance of being aired. Very interesting reading.

 
[David Post, 3/4/2004 09:29:04 AM]
Higher Education, Con't.: Thanks to Michael Mayans for sending me the link to the full version of Jim Harrick's Basketball exam that I mentioned in an earlier post.

 
[Tyler Cowen, 3/4/2004 08:58:10 AM]
Rewards for private asteroid tracking:

"Amateur astronomers could receive awards of $3,000 for discovering and tracking near-Earth asteroids under legislation approved by the House of Representatives on Wednesday.

"Given the vast number of asteroids and comets that inhabits Earth's neighborhood, greater efforts for tracking and monitoring these objects are critical," said Rep. Dana Rohrabacher, sponsor of the legislation that passed 404-1.

Astronomers estimate there are between 900 and 1,100 near-Earth asteroids with a diameter of at least one kilometer -- about six-tenths of a mile -- or larger. Of those, nearly 700 already have been discovered and cataloged. Asteroids capable of inflicting damage on a global scale hit the Earth roughly every million years.

The bill, which still needs Senate action, directs the NASA administrator to make the awards, based on recommendations by the Smithsonian Minor Planet Center.

One award is to be issued annually to the amateur astronomer or group of amateurs who in the previous year discovered the intrinsically brightest, near-Earth asteroid. Another award would go to the amateur who makes the greatest contribution to the Minor Planet Center's mission of cataloguing near-Earth asteroids."

Here is the story, though the excerpt gives you the bottom line. More importantly, read Gregg Easterbrook on why this is an important project.

 
[Juan Non-Volokh, 3/4/2004 08:31:16 AM]
Memo-Gateless: Democratic computer security specialist Ira Winkler is disgusted over the Senate Judiciary Committee memo controversy -- not with Republicans, but with his own party. As he explains, there was no "hacking" or stealth effort to access the files. They were left open for all to see: "This is not the electronic equivalent of physical breaking and entering, as it was portrayed by many senators and newspapers. What happened in the Senate Judiciary Committee was the electronic equivalent of leaving the files in the Capitol rotunda."

Winkler argues Senate Democrats were extremely negligent in failing to protect their allegedly confidential files, even though federal law requires private companies to take affirmative steps to protect confidential material.

Not surprisingly, Congress has adopted laws for the private sector that it now ignores when concerning itself. The Economic Espionage Act requires information to be protected to the same extent that one seeks to classify it as a secret or claim legal protection. Given the outrage expressed by senators, it is clear they wanted the information to be secret. But if information is left as unprotected in public or healthcare-related businesses as it was by the Democrats, corporate executives could be heavily fined or go to jail under HIPAA (Health Insurance Portability and Accountability Act), Sarbanes-Oxley, or GLBA (Gramm-Leach-Bliley Act) regulations.

While concern over political ethics in the Senate is important, it is a non-issue compared to this poster child for gross negligence in computer-security. Senators want to shun basic responsibilities that they impose on the private sector by making scapegoats over borderline ethical issues, instead of taking responsibility for the negligence this story tells. The public should be outraged that the Senate has spent hundreds of hours and countless dollars deflecting blame when inexpensive measures could have been easily taken. This story isn't Memogate. This is Memo-gateless.

UPDATE: A D.C. Lawyer writes:

So I drop my wallet in the Capitol Rotunda. Or I take it out on purpose, set it down there on a table, and forget about it and walk away. It's fair game? Yes, I'm stupid for losing it and have to share blame for its loss or theft - but you really agree that someone swiping it is a "non-issue" compared to my losing it?The Dems' outrage about this is a little excessive, sure, but let's keep in mind what the actual culpable as opposed to stupid conduct was.

I appreciate the point, but I don't think the analogy captures what is alleged to have occurred in this case. Nothing was stolen here. It's not as if someone dropped their wallet. It is more as if an attorney left papers, perhaps concerning a confidential attorney-client matter, in the rotunda, and then someone else came along and read the documents without removing them. Is it wrong to read the documents knowing they are confidential? Yes. Is the attorney negligent for leaving the papers in the rotunda, thereby risking the exposure of confidential information about your client? Yes. Indeed, the attorney has violated the ethical obligation to safeguard client confidentiality and is quite "cuplable" for the lapse.

The Ciceronian Review also quarrels with the rotunda analogy, and asserts "the evidence suggests that the Democrats did not know the files were open." This is not true. At least one GOP staffer informed the Democratic systems administrator in charge of the network drives in question that network documents were unsecured and it remained unfixed for months. Winkler notes this, as did I back in January.

UPDATE: Byron York reports on two new Democratic memos, and what happened when Democratic staffers accidenally obtained confidential Republican memoranda.

ANOTHER UPDATE: See here.

 
[David Post, 3/4/2004 08:09:16 AM]
Another Washington Post story today reports that apparently Arnold Schwarzenegger's not such a bad governor after all! The story has this great nugget:

Last fall, Sen. Dianne Feinstein, California's Democratic eminence, denounced the recall vote that led to Schwarzenegger's election as a grave threat to democracy. A few days ago, she stood beside the governor at a campaign rally and lavished praise on him, saying that he "has brought a very strong breath of fresh air to this state."

 
[David Post, 3/4/2004 07:59:25 AM]
Higher Education: A story in today's Washington Post reports on the final exam given by Jim Harrick, Jr., the former assistant basketball coach at the University of Georgia (and son of Head Coach Jim Harrick, Sr.) in his class on Principles and Strategies of Basketball in 2001. [The print edition of today's Post also has the actual exam itself -- though that doesn't seem to be available online] Questions included the following:

"How many goals does a basketball court have?" [Ans: 2]
"How many halves are there in a basketball game?" [Ans: 2]
"How many points is a 3-point goal worth?" [Ans: 3]

     It would be pretty funny if it weren't so pathetic.

Wednesday, March 03, 2004

 
[Sasha Volokh, 3/3/2004 05:55:22 PM]
On Milton Friedman: Brian Weatherson has a good discussion of Friedman and positivism at Crooked Timber. Also, John Quiggin on why Borda counts are fatally defective.

 
[Eugene Volokh, 3/3/2004 05:09:47 PM]
Shouldn't public radio stations be a bit less timid? Cathy Seipp reports:

KCRW [a local public radio station] just sent out a weirdly dainty inhouse memo/press release saying that "she uttered a certain banned word that could have cost us our license with the FCC." Therefore the fateful, f-word Feb. 29 "Loh Life" was the last one for KCRW. . . .

I have the whole story -- or at least the whole story so far -- in my media column for tomorrow's (Thursday's) L.A. CityBeat. The only info I'm going to put here from that piece is that the "fuck" on the air was an accident: the engineer forgot to bleep it out from the prerecorded spot, which both he and Sandra had certainly meant to do.

I'll tell you what I think about this, and I'm not scooping my own column because I didn't have room there to go into analysis, but I think the problem is not really the FCC, but broadcasters overreacting to the FCC. . . .

[KCRW says] "we have received many complaints as a result" of Sandra accidentally saying "fuck" on the air. Actually, she says they told her they got zero complaints the first time her spot aired -- at 7:35am Sunday morning, because who's listening then? -- and then a few complaints after it repeated at 9:35am.

But how likely is it that the FCC would have yanked KCRW's license, or even fined them, for an accidental "fuck," uttered by someone who's not exactly a shock jock? . . .

I think Cathy is quite right; though I'm not an expert on all the details of the FCC's rather complex stand on broadcast "indecency", the FCC's summary seems to suggest that an isolated "fuck" in the usual TsingLohvian monologue (I've heard her many times, and like her work, which is generally not aimed at titillation or shock value) would probably not be punishable:

The principal factors that have proved significant in our decisions to date are: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value. In assessing all of the factors, and particularly the third factor, the overall context of the broadcast in which the disputed material appeared is critical. . . .

Check out, for instance, these examples given by the FCC on pp. 10-11:

WYBB(FM), Folly Beach, SC "The Morning Show"
The hell I did, I drove mother-fucker, oh. Oh.
Not Indecent. L.M. Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd 1595
(MMB 1992). The "broadcast contained only a fleeting and isolated utterance which, within the context of live and spontaneous programming, does not warrant a Commission sanction." 7 FCC Rcd at 1595.

KPRL(AM)/KDDB(FM), Paso Robles, CA News Announcer Comment
Oops, fucked that one up.
Not Indecent. Lincoln Dellar, Renewal of License for Stations KPRL(AM) and KDDB(FM), 8 FCC Rcd 2582, 2585 (ASD, MMB 1993). The "news announcer's use of single expletive" does not "warrant further Commission consideration in light of the isolated and accidental nature of the broadcast."

(Note, though, that "In contrast, even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness. Examples of such factors illustrated by the following cases include broadcasting references to sexual activities with children and airing material that, although fleeting, is graphic or explicit." For details, which I doubt would be remotely analogous to the Tsing Loh piece, see the FCC document.)

     I realize that some think the FCC will crack down harder after WardrobeMalfunctionGate. I also realize that these sorts of vague rules do tend to pressure risk-averse broadcasters into dropping any material that's on the borderline, even if ultimately, after litigation, the material would have been found to be legally permissible -- that's the famous chilling effect.

     But it seems to me that broadcasters, especially those that see themselves as mainly aimed at providing an alternative voice in the service of the public (such as public broadcasters like KCRW), shouldn't be that risk-averse: They should take a stand on behalf of their talent, as Pacifica did in FCC v. Pacifica Foundation, even if that means some risk of public criticism or even a (small) risk of an FCC fine. (I think the chances of KCRW losing its license over something like this are virtually nil.)

     KCRW is certainly constitutionally entitled to act as it did, and to have a general no profanity policy. But given the quality of Loh's work, and the smallness of her transgression, it seems to me that KCRW was mistaken.

UPDATE: Marty Lederman points to the FCC decision refusing to impose liability based on Bono's "fucking brilliant" comments at the Golden Globes. The decision partly rests on the word's being unrelated to sex, so it isn't squarely on point for Tsing Loh, since the word is related to sex in the Tsing Loh monologue; I just read the relevant excerpt from the monologue, which incidentally confirms my initial guess that the context for the remark is really quite mild, and neither titillating nor shocking. But the decision also rests on the principle that "fleeting and isolated remarks of this nature do not warrant Commission action" -- and this does equally apply to Tsing Loh's words.

FURTHER UPDATE: Here's Cathy Seipp's City Beat column on this, which also provides the relevant excerpt from the monologue.

 
[Eugene Volokh, 3/3/2004 02:36:42 PM]
What law students really like to think about: Apparently it's The O.C., at least at Boalt. Michele Woodruff points to this story, though there've also been others. An excerpt:

[John] Kim's so Seth.

Wearing his Members Only black jacket, white shirt and black tie, the University of California, Berkeley, law student rocks with his band Orange Crush.

The original tunes, played by fellow bandmembers Anne "Anna" Wood and Ilona "Summer" Turner, include "You're Sending me to a Mental Institution in San Diego" and "Summer Come Over."

It's Wednesday afternoon, and about 30 Boalt Hall School of Law students have gathered for the official kickoff of "The O.C. at Boalt" fanzine, which is packed with facts about the students' favorite show, Fox's "The O.C."

Kim, a third-year law student, created The O.C. at Boalt group to watch and critique the series between their studies. . . .

The Berkeley connection

The Sandy character, and to a lesser extent Kirsten, provide the UC Berkeley link. According to the show's back story, Sandy is a graduate of Boalt Hall, and he met Kirsten at Berkeley. . . .

[T]his actual law school group has established The Sandy Cohen Fellowship, a summer grant for students seeking opportunities to work in Orange County as a public defender. . . .

"Our scholarship target is to give $1,000. Most law school groups give about $3,000 in a scholarship, but no way will we get that far," Kim says of the fundraising efforts that included a charity "Totally Awesome Prom" event Friday.

Never watched the show myself, but I can bet that it beats Civ Pro. Though it doesn't, of course, beat discussing Supreme Court original jurisdiction cases in which the Justices end up equally divided. Nothing beats that.

 
[Eugene Volokh, 3/3/2004 01:49:45 PM]
Cathy Seipp criticizes Naomi Wolf. I don't know enough about the controversy to have an informed opinion, but Cathy's work is always fun to read (and my uninformed guess is that here Cathy is probably quite right).

 
[Jacob Levy, 3/3/2004 12:13:57 PM]
Oregon gay marriage: A county attorney in Oregon-- a state without a mini-Defense of Marriage Act and with a state-level prohibition against discrimination on the grounds of sexual orientation-- has expressed his judgement that it is unconstitutional to restrict marriage licenses to opposite-sex couples, and his county has accordingly begun issuing marriage licenses to gay couples.

This might prove to be the most interesting case yet. The judgment comes from an executive official, probably an elected one (county attorneys are usually elected, though I don't know that they are in Oregon), not a judicial body. And Oregon's lack of a DOMA combined with its nondiscrimination rules make his reading of Oregon law more compelling than Mayor Newsom's reading of California law. (Even if one thinks the California constitution forbids enacting a DOMA, surely one an agree that the legal situation would more clearly favor gay marriage without a DOMA.) The charge of judicial imperialism levelled against the Massachusetts court would be out of place here, as would the charge of lawlessness levelled against the San Francisco government.

I suspect we're not too far from the moment when a state legislature and governor agree on gay marriage, decisively shifting the focus away from the judicial-legislative question and onto the underlying marriage-or-not question.

 
[Jacob Levy, 3/3/2004 11:59:46 AM]
Buggery, buggery, buggery: The classy John Derbyshire strikes again.

Eugene has configured the Volokh Conpiracy so that readers can view posts only by selected authors. I'd love to see the Corner do so, so that I could read Ponnuru, Goldberg, Adler, Barnett, etc without getting interrupted with this stuff...

 
[Juan Non-Volokh, 3/3/2004 10:57:42 AM]
Political Science: Ronald Bailey provides the evidence in support of David's claim that government science inevitably becomes political science. In addition to some of the examples Bailey cites, some other examples of Democrats politicizing science include: then-Senator Al Gore threatening a witness at a hearing with the termination of federal support for the research institute at which the testifying scientist was based because he did not like the gist of the testimony and the Clinton White House delaying an agency report on wetland losses for months because the numbers were insufficiently apocalyptic. The point is not that Democrats are any worse than Republicans on this score. Rather, as David suggests, when government decisions rest on scientific determinations, and government agencies are overseeing the science, it is inevitable that such scientific determinations will become politicized to some degree.

 
[Eugene Volokh, 3/3/2004 09:44:46 AM]
Common misunderstanding about the Supreme Court: A reader writes, apropos the equally divided court issue:

1. All laws passed by Congress are presumed to be constitutional. 2. The burden is on the party making the challenge to a law. 3. A tie court vote implies that the challenge has not been met. QED The law is constitutional.

Well, it turns out that this is not the rule in the closest analogous situation -- if a lower court strikes down a federal statute, a 4-4 vote on the Supreme Court will affirm the lower court decision, not reverse it. But in any event, I think the message shows a broader misunderstanding about the Court: the assumption that most of the Court's cases involve determining the constitutionality of Congressional acts.

     Actually, only a tiny fraction of Supreme Court cases require the Court to decide whether a Congressional act is unconstitutional. Even if you broaden this to deciding whether any federal or state statute is unconstitutional, that still describes only a minority of the Court's cases, and I believe the same is true even if you include decisions about whether federal or state executive officials' conduct was unconstitutional. These cases get a disproportionate share of media and public attention, but they aren't the majority of the Court's cases.

     Most of the Court's cases involve statutory interpretation, or application of federal judge-made law. This is especially true, I believe, of the Court's original jurisdiction cases, which are mostly disputes between states that turn on federal judge-made law, not on federal statutes that are challenged as unconstitutional. Just because you hear a lot whenever the Court strikes down a federal statute doesn't mean that this is the Court's daily business.

 
[Eugene Volokh, 3/3/2004 09:36:02 AM]
Original jurisdiction and equally divided court: The answer is posted as an UPDATE several posts below; just scroll down.

 
[Juan Non-Volokh, 3/3/2004 09:32:19 AM]
Cave Species and Commerce: On Monday, the Supreme Court denied cert in Rancho Viejo v. Norton, an unsuccessful commerce clause challenge to regulation of activities allegedly harmful to the Arroyo toad under the Endangered Species Act (ESA) brought in the U.S. Court of Appeals for the D.C. Circuit. The next such case to go up for cert will be GDF Realty v. Norton, a challenge to ESA regulations protecting several subterranean insect species (�Cave Species�) found only in several caves near Austin, Texas.

A three judge panel of the U.S. Court of Appeals unanimously rejected the commerce clause challenge last summer. This past week, the Fifth Circuit voted to deny rehearing en banc. Six judges dissented, led by Judge Edith H. Jones who wrote the dissent. Judge Jones ably dissects the panel�s opinion, demonstrating not only that the Fifth Circuit�s application of the commerce clause to the ESA is internally inconsistent, but also that the various rationales adopted by the various Circuit Court�s in rejecting commerce clause challenges to the ESA are analytically incompatible. The opinion was joined by Judges Jolly, Smith, Demoss, Clement, and Pickering.

The opinion is not yet available on the Fifth Circuit�s website, but should be posted shortly. In the meantime, here are some excerpts:

The panel holds that because �takes� of the Cave Species ultimately threaten the �interdependent web� of all species, their habitat is subject to federal regulation by the Endangered Species Act. Such unsubstantiated reasoning offers but a remote, speculative, attenuated, indeed more than improbable connection to interstate commerce. Chief Justice Marshall stated in Cohens v. Virginia, 19 U.S. 264 (1821), that Congress has no general right to punish murder or felonies generally. Surely, though, there is more force to an �interdependence� analysis concerning humans, and thus a more obvious series of links to interstate commerce, than there is to �species.� Yet the panel�s �interdependent web� analysis of the Endangered Species Act gives these subterranean bugs federal protection that was denied the school children in Lopez and the rape victim in Morrison. . . .

In the end, the panel is unable to refute the attenuation concern of Lopez and Morrison because its analysis rests on the false implication that all takes of all species necessarily relate to an ecosystem, which by its very grandiosity must at some point be �economic� in actuality or effect. This is precisely the reasoning rejected by the Supreme Court. Not all crime is �economic� for commerce clause purposes, in actuality or effect, even though any or all of its human victims may be become impoverished. Not all crimes against women are �economic� in practicality or effect, despite the same possible consequences. The Commerce Clause does not regulate crime, sexual inequity, or ecosystems as such � it regulates commerce. Thus, I reiterate: many applications of the ESA may be constitutional, but this one simply goes too far. To be faithful to the Supreme Court�s principles in Lopez and Morrison and this court�s Commerce Clause decisions, we should rehear this case en banc.

Rancho Viejo also prompted dissents from denial of rehearing en banc. Those opinions are available here.

UPDATE: Howard Bashman has posted a PDF of the dissent here.

 
[Eugene Volokh, 3/3/2004 09:23:24 AM]
Clinton as VP? Readers Barry Jacobs and Charlie Martin point to this op-ed by Prof. Stephens Gillers (NYU) that argues that Bill Clinton can be elected Vice President:

The first objection, the constitutional one, can be disposed of easily. The Constitution does not prevent Mr. Clinton from running for vice president. The 22nd Amendment, which became effective in 1951, begins: "No person shall be elected to the office of the president more than twice."

No problem. Bill Clinton would be running for vice president, not president. Scholars and judges can debate how loosely constitutional language should be interpreted, but one need not be a strict constructionist to find this language clear beyond dispute. Bill Clinton cannot be elected president, but nothing stops him from being elected vice president.

True, if Mr. Clinton were vice president he would be in line for the presidency. But Mr. Clinton would succeed Mr. Kerry not by election, which the amendment forbids, but through Article II, Section 1 of the Constitution, which provides that if a president dies, resigns or is removed from office, his powers "shall devolve on the vice president." The 22nd Amendment would not prevent this succession.

So much for the constitutional obstacles. . . .

I'm pretty skeptical, though: The 12th Amendment, after all, says (among other things) that

[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The 22nd Amendment prevents Clinton from being President, so therefore under the 12th he can't be Vice-President.

     Not so, says Jacobs: The 22nd Amendment says that "No person shall be elected to the office of the President more than twice," so it means Clinton isn't ineligible to the office of President, only to be elected President. (Article II, which sets forth the other qualifications for President, uses the phrase "eligible to the office of," not "eligible to be elected," so those qualifications would apply to the Vice President under the 12th Amendment.) But I don't think that defense of Gillers' point is quite right: I think that as a matter of common usage, "eligible" in the 12th Amendment should be interpreted as meaning "eligible in the ordinary course of things," not "eligible in a small subset of cases, though ineligible in the ordinary course of things."

     On the other hand, Gillers is a very smart and well-regarded professor -- perhaps he is correct on this, though at this point my tentative judgment (tentative largely because of my regard for him) is the contrary.

UPDATE: I e-mailed Prof. Gillers on this, and he was kind enough to promptly respond (even though he's just swamped, being a Vice Dean as well as a professor, and likely doesn't have time to deal with much such e-mail):

I admit that I should have addressed the 12th Am. point but I do not think it changes the argument.

The 12th Am. says: "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

Its mention of eligibility is a reference to Article 2, which say a person is "eligible" to be president only if he or she is 35, a natural born citizen, and living 14 years in the U.S. Clinton is eligible under this test.

Under the later 22nd Am., Clinton is only constitutionally unable to be "elected" president. He is not ineligible to be president for these Article 2 reasons. If the drafters of the amendment wanted to block succession as a path to the presidency, they could have added the words "or vice-president" to the 22nd Am. or used some other exclusionary language.

I confess that I'd still come to the opposite conclusion, but obviously reasonable minds can and do differ on this.

FURTHER UPDATE: Reader Mark Eckenwiler writes:

Re "eligible," note that it is in fact synonymous with "electable": the two terms are derived from the same Latin verb. Lexicography confirms this sense, as in the 1913 Webster's definition: "1. That may be selected; proper or qualified to be chosen; legally qualified to be elected and to hold office."

So [in my humble opinion], Stephen Gillers . . . is incorrect when he asserts that Clinton is "eligible" to the office of VP.

This isn't an open-and-shut argument: The real original meaning question is how the word was actually used in legal sources around 1804, when the amendment was enacted, and dictionary definitions, especially from 1913, are only a first cut at this. Still, I do think that this evidence supports the Clinton-isn't-eligible view; and I suspect that in 1804 legal parlance, "eligible" really did mean pretty much what it does in that definition. But I leave it to others to do more exhaustive research.

ANOTHER UPDATE: Everything old is new again! Reader David Tenner quotes a similar debate in 1964, when there was talk of a Goldwater-Eisenhower ticket.

YET ONE MORE UPDATE: Marty Lederman reports that there's a whole law review article that deals with this, Peabody & Gant, The Twice and Future President, 83 Minn. L. Rev. 565 (1999), and that concludes that a two-term President may indeed then become Vice-President. If fully understanding this question requires me to read yet another law review article, I'll opt for not fully understanding it -- but people who are really interested should look it up.

 
[David Bernstein, 3/3/2004 08:53:46 AM]
Catholic Charities Required To Provide Employees With Contraceptives Coverage: On Monday, the California Supreme Court, in a 6-1 ruling, held that Catholic Charities does not have a constitutional right to an exemption from a state law requiring employers to provide health insurance coverage for contraceptives. Use of contraceptives is, of course, against Catholic teachings. Justice Janice Brown, whose nomination to the D.C. Circuit has been stalled by Senate Democrats, wrote an excellent dissent. I discuss the case, focusing on Justice Brown's dissent, in National Review Online today. Notre Dame law professor Rick Garnett has additional analysis at NRO.

Tuesday, March 02, 2004

 
[Eugene Volokh, 3/2/2004 08:35:13 PM]
For law geeks only: Betsy Newmark asks, on behalf of one of her high school students -- what happens when (1) the Supreme Court hears a case within its original, rather than appellate, jurisdiction, (2) one of the Justices is recused (yes, unlikely in an original jurisdiction case, but possible), and (3) the Justices split 4-4? In an appellate jurisdiction case where the Court is equally divided, the result is an affirmance of the decision below; but in original jurisdiction cases, there is no decision below.

     I am rationally ignorant of the answer to that question -- but if one of our readers saves me the work of having to research it, then I will become rationally knowledgeable (and so will Betsy and her student, and the rest of you).

UPDATE: The only accurate answer seems to be "What would happen in the event of an evenly divided court in a case within the Supreme Court's original jurisdiction is unknown," quoted from John V. Orth, How Many Judges Does it Take to Make a Supreme Court, 19 CONST. COMMENT. 681, 686 n.27 (2002). Thanks to Shawn Chapman and Robert MacNamara for the pointers.

     This means that all that's left is sheer speculation, and here's mine: First, the Justices will think again about the matter, and see if some compromise can attract a majority, or if some Justice is willing to change his vote (for instance, if he was on the fence already); that occasionally happens when the Justices feel a square majority is necessary. Second, if it's still 4-4, the case will be dismissed with no relief granted to the person seeking it. Ties, the theory would go, are resolved against the person asking for legal relief; that's reflected in the burden of proof rules at trial, when the standard is preponderance of the evidence, and one might adapt this here.

     On this second point, I'm pleased to say that readers Richard Guilford, Robert MacNamara, and Colin Rushing join in this opinion, as do Unnamed High-Placed Parties That Ought To Know (no, not that high-placed), though the always knowledgeable Marty Lederman appears to be dubitante. (Mark Eckenwiler concurs in the first part of my analysis, suggesting that rehearing might be held.)

     Possible but unlikely: Rock, paper, scissors. See also here.

 
[Sasha Volokh, 3/2/2004 07:50:35 PM]
Ad art as it should be: The Advertising Artwork of Dr. Seuss. (Hat tip: Jeremy Blachman at Crescat Sententia.) Other ideas for Seuss-inspired works: a poem about the general election called "One State, Two State, Red State, Blue State." ("Why are they keen and Green and mean? I do not know. Ask Howard Dean.")

UPDATE: Reader Jim Thomason points out that the site also contains Dr. Seuss's World War II political cartoons, where it may be shocking to see his caricatures of the "Japs." Jim also points out this picture, though it's too small for me to make out much on it.

UPDATE 2: Ouch. (Thanks to reader Mark Eckenwiler.)

 
[Eugene Volokh, 3/2/2004 04:45:12 PM]
Eric Muller blogging David Bernstein's talk on David's "You Can't Say That!" book. I think he's doing it live, and will be posting more as the talk goes on.

 
[Eugene Volokh, 3/2/2004 04:41:50 PM]
Prof. Michael Madison's review of Academic Legal Writing: It's out now in the University of Pittsburgh Law Review, and available here. It's a law review essay that goes quite a bit beyond just describing, evaluating, and critiquing the book; it also compares it to Elizabeth Fajans' & Mary Falk's Scholarly Writing for Law Students: Seminar Papers, Law Review Notes and Law Review Competition Papers (which it rightly praises), and makes some excellent points about, among other things, the role of legal scholarship in legal education. Here's the opening paragraph:

Law professors love to talk about themselves. Rarely is this more evident than when they have a student audience. It is surprising, therefore, that only now has a full-time legal scholar, dedicated primarily to matters other than the topic of writing itself, produced an entire book of advice for the student scholar. In Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers, Eugene Volokh, who teaches the law of the First Amendment, copyright law, and firearms regulation policy at the UCLA School of Law, has delivered an engaging, witty, and extremely useful book for the aspiring student note and article writer that is based, it clearly appears, on the model of scholarship that Volokh himself has so successfully pursued.

The review is much worth reading, even when it doesn't praise the book as much!

 
[Eugene Volokh, 3/2/2004 03:31:58 PM]
New York mayor being prosecuted for conducting gay marriages: According to FoxNews,

The village's mayor was charged Tuesday with 19 criminal counts for performing marriage ceremonies for gay couples.

Jason West was charged with solemnizing marriages for couples who had no licenses, a misdemeanor under the domestic relations law, according to Ulster County District Attorney Donald Williams.

Although West could face a maximum penalty of a year in jail, the prosecutor said a jail term wasn't being contemplated at this point.

The 26-year-old Green Party mayor said he will plead not guilty at his court hearing Wednesday and that he would still go through with his plans to marry as many as two dozen gay couples Saturday.

"I'm incredibly disappointed," West said. "Apparently, it's a crime to uphold the constitution of New York state." . . .

Thanks to reader Michael Zorn for the pointer. The relevant statute is N.Y. Domestic Relations Law sec. 17:

If any clergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided or with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article he shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine not less than fifty dollars nor more than five hundred dollars or by imprisonment for a term not exceeding one year.

 
[Eugene Volokh, 3/2/2004 03:12:13 PM]
Norwegians say "Kerry panders to the Jews": So reports Secular Blasphemy, citing this article in what he describes as Norway's largest newspaper. I don't know Norwegian, but I'm pretty sure that "joder" (with a slash through the "o") doesn't just mean "Israelis." Mr. Blasphemy has many more details on this.

 
[Eugene Volokh, 3/2/2004 02:23:10 PM]
Wanted: Free help from nuclear weapons experts. I'll even take help from nucular weapons experts. I'm writing a law review article that discusses, among other things, the 1979 Progressive case, in which the government temporarily prohibited a magazine from publishing an article about nuclear bomb design. The government eventually withdrew its objections after another newspaper published a different article about nuclear bomb design; the government's view is that the second piece irrevocably let the cat out of the bag.

     If any of our readers are knowledgeable about nuclear bomb design theory, and are for some incomprehensible reason inclined to read both articles for me (I think one is 10 pages and the other is 5), and (1) tell me what the overlap between the two is (since that will indicate what exactly the government thought were the most important secrets in the first article), and (2) give me some sense of just how nonobvious those items are (it would be better yet if he could give me a perspective on how nonobvious they were in 1979, but I realize that could be hard for most people to do today). What do you get out of this? Well, absolutely nothing, except my gratitude, a thank-you note in my law review article (and on the blog), and the knowledge that you have yet again Advanced The Cause Of Knowledge. Please e-mail at volokh at law.ucla.edu if you can be of help. (And, yes, I did try to find some UCLA grad student whom I could hire as a research assistant for this, but haven't had much success.)

 
[Eugene Volokh, 3/2/2004 02:13:55 PM]
Advice on writing, from another law professor: Prof. Christine Hurt, of Marquette University Law School, writes:

In preparation for sending out my own article on Friday, I was skimming through your book on writing law review articles. Two points that you make in your book instantly brought some examples to mind.

When advising readers on choosing titles carefully, you caution against titles that may be too silly or trite. Yesterday, I noticed a student article title in an email alert that was very jarring.

[Name omitted.] Comment. The third tower: the effect of the September 11th terrorist attacks on the American jury system. 55 Ala. L. Rev. 209-229 (2003).

I'm not a particular sensitive person and have no personal connection to any victim in the 9/11 attacks, but I still felt that naming any collateral damage the "third tower" was a bad idea. The "third tower" would have to be sufficiently discrete and substantial to be considered as important a loss as the twin towers. To assign this weighty significance to any change in the American jury system is probably an exaggeration. I did not read the comment, so I'm not sure what [the author's] actual thesis is, but I can't imagine that whatever change he describes can be as devastating as change wrought by the destruction of the World Trade Center. I would have hoped that his Comment Editor would have caught that one.

Secondly, when choosing a title, I think it's important to make sure key words are in the title to make sure that electronic word searches will find your article. I know that when I'm looking for a secondary source, I sometimes (lazily) go to the "jlr" database and do a title search for key words.

The other point that you make in your book in another section is to cite to the primary source, not a secondary source. I once had a student turn in a seminar paper on NAFTA, and she never cited to the actual treaty. I find this practice very annoying when I am doing research. I might read in an article the proposition that "the SEC expressly prohibits this conduct," but the attached footnote is to a law review article, or worse, a casebook. I really just want the cite to the statute or the regulation. I think one point to make to student writers is that a citation is a map for your reader. Don't make it a treasure map with a lot of stops and suspense.

Excellent points, especially about the titles. Many people do judge an article by its title: For instance, when their WESTLAW query gives them 25 article titles, their decision on which ones to read or even skim will turn largely on what the title reveals. Remember that when selecting the title for your piece.

 
[Jacob Levy, 3/2/2004 12:45:17 PM]
The worm turns: The new worm going around poses as authentic e-mail much more persuasively than most of its predecessors. (And it seems to be doing clever things like harvesting all the e-mail addresses off a single webpage and sending spoofed e-mails posing as one person on the page to all the others. I'm getting it over and over again in e-mails apparently from my departmental colleagues, and they're getting it from each other and from me, even when we're not in each other's e-mail address books.)

But the one I just got is even more effective, and I'll bet it fools a lot of people.

From: [email protected]

Dear user of Uchicago.edu gateway e-mail server,

Your e-mail account has been temporary disabled because of unauthorized
access.

For details see the attachment.

In order to read the attachment you have to use the following password: 40075.

The Management,
The Uchicago.edu team http://www.uchicago.edu

And I'm then invited to open the attached file in order to regain access to my e-mail account. People will be looking for mass e-mails from their tech support departments as the worm overwhelms e-mail accounts; they'll be likely to believe this.

Be careful. Don't believe it.

 
[Eugene Volokh, 3/2/2004 12:34:30 PM]
Apparently grave violation of academic freedom: I haven't looked at this closely, but based on Eric Rasmusen's and Erin O'Connor's posts, it seems like there's a very serious problem here. Here's O'Connor's post:

Penn State president Graham Spanier has spoken: Nona Gerard, the Penn State Altoona theater professor whose outspokenness alienated her colleagues, has been fired. Spanier notified Gerard of the decision yesterday, and gave Gerard until the end of the day Wednesday to clear out her office and turn in her key. Substitutes will be found to teach Gerard's current courses and to take over the campus production of One Flew Over the Cuckoo's Nest that she had been directing.

By all accounts, it looks as if Gerard was fired for offending colleagues with her criticisms of their work and for openly questioning the viability of Penn State's new Integrative Arts major, which she found to be ill-conceived and which she believed could not be responsibly staffed. It's hard for me to comprehend how such draconian measures can be considered reasonable at a university that is not only dedicated to the principle of academic freedom, but also obligated to uphold the First Amendment rights of faculty. But perhaps the answer lies within this chilling statement issued by Penn State's Standing Joint Committee on Tenure after Gerard was tried in a kangaroo court last January: "the hostile communications of Professor Gerard go beyond what is permitted as free speech." Gerard never threatened anyone; she never libelled anyone; she never incited anyone to violence or violated reasonable restrictions on the time, place, and manner of expression. She simply voiced her strong personal opinion on matters of immediate professional concern. That Penn State administrators think Gerard's unwelcome speech is not protected speech shows a deplorable willingness to ignore their legal and moral obligations to the Bill of Rights. That Graham Spanier, who has received more than one forceful tutorial from FIRE about individual rights on campus, would agree with them is worse than deplorable: it's actionable. Gerard has made it clear from the beginning that if she is fired she will sue the university for violating her First Amendment rights. I hope she does.

Rasmusen has more.

UPDATE: Ralph Luker has some more, including pointers to some other posts on the subject, and his own evaluation.

 
[Jacob Levy, 3/2/2004 10:37:00 AM]
Strauss again: A few people have taken my post yesterday on the bioethics commission to be fanning the flames of Straussophobia. Such was certainly not my intent. I'm not a student of Strauss directly or indirectly, but I have both very fine colleagues and very fine students who are, and I have certainly learned important intellectual lessons from them. Strauss-influenced research projects in the history of political thought can be deeply illuminating.

Some people who have been influenced by Strauss and his students, in their basic understanding of politics and morality, are also highly qualified specialists in something besides the history of political thought. Paul Wolfowitz, for example, was a Wohlstetter-trained international relations scholar, not a political theorist at all. And he's surely on a reasonable list of people highly-qualified for high government service on international and military affairs, regardless of what one thinks of either Wohlstetter or Strauss.

But it's different when someone whose specialty is the history of political thought is asked to sit on a council that must judge highly complex and technical issues in both ethics and biomedical technology. Then, it seems to me reasonable to suspect that the criterion for selection was 'moral and ideological precommitments shared with the council's chairman.' That's nothing to do with the merits of Straussianism as an intellectual approach, or with any conspiracy. If, say, Brad Smith (whom I don't know) were to choose, say, me to sit on a panel assessing matters of electoral law, one would have pretty good reason to suspect that it had more to do with our both being libertarians and being part of a shared professional and intellectual network than it did with my qualifications. It'd be prima facie evidence that he was looking for a knee-jerk supporter of his views rather than a qualified independent voice.

I have no reason to suspect he'd do such a thing. But it looks rather like that's what's being done with the bioethics commission.

See also (including some dissenting views) : Will Baude, Ramesh Ponnuru, Sara Butler, Glenn Reynolds and again, John Coleman.

 
[Eugene Volokh, 3/2/2004 09:59:40 AM]
Refusals to recognize same-sex marriage and refusals to recognize interracial marriage: Many people argue that state no-gay-marriage rules are just as illegitimate and unconstitutional as state no-interracial-marriage rules. Though I tentatively support allowing gay marriage, I don't buy this argument (which is why my support for allowing gay marriage is only tentative, and which is why I oppose gay marriage being implemented by courts, as opposed to legislatures or voters). Here's a quick sketch of why.

     Moral and practical reasons: Let me set aside for a moment the constitutional doctrine (I'll get back to it below), and focus on moral and practical judgment.

     I oppose bans on interracial marriage because I think that race is literally only skin deep (with a very few exceptions, such as certain hereditary diseases that are more common in certain racial situations). A black-white couple is no different, morally or practically, from a white-white couple or a black-black couple. There is no inherent, either biological or very deeply rooted social, difference between a black parent and a white parent.

     This is why almost all the possible justifications for bans on interracial marriage have to do with claims of racial superiority, or the felt need to maintain racial purity, which is impossible to justify without some judgments of racial superiority. The one potentially decent justification for such bans is that children of interracial marriage might be ostracized or even attacked by racist outsiders. But fortunately, over time this effect has substantially diminished, and in any event I think that usually (with some narrow exceptions that I might blog about in another context) the way the law should deal with the risk of racist reaction is to fight against it, not to give in to it.

     But people's sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they're biological, too. Certainly given the current state of biological knowledge, the claim that there's a biological difference in men's and women's parenting styles is much more plausible than there's any such difference in blacks' and whites' parenting styles.

     This means that there's an eminently legitimate argument that society would be better off if male-female couples were set up as the preferred, most legally and socially sanctioned mode. It is plausible to think that future generations would be better raised by male-female couples than by same-sex couples. And it is plausible to think that on the margins the laws related to marriage may subtly shift some people, either through incentive effects or through the law's effects on social norms, towards male-female coupling and childrearing.

     Now as it happens I'm not persuaded that these arguments are actually correct. I suspect that a same-sex couple that has gone through substantial effort to have a child will probably be at least as good parents as the average male-female couple, which might have had the child with much less forethought, work, and desire for a child. [UPDATE: I accidentally omitted the following item from the original post.] Moreover, while it's plausible to argue that the main reason for giving special legal recognition to marriage is to promote childrearing, other benefits of marriage -- promoting stability of relationships, and promoting the happiness of the partners -- might counsel in favor of recognizing same-sex marriage even if such recognition might in some small measure harm the average quality of childrearing in society. [END UPDATE.] But the arguments against same-sex marriage mentioned above are not ridiculous arguments, nor arguments that can only be justified by irrational hostility or contempt. These are arguments that sensibly cautious and methodologically conservative people can reasonably make against proposed changes in a fundamental social institution.

     This is why my view on same-sex marriage is that of cautious and tentative support. I do think that it will probably be good for society to allow same-sex marriage; and I'm pretty sure it will be good for gays and lesbians. But the real differences between men and women (differences that aren't duplicated as to race) give me pause. So does the fact that the male-female marriage model has been broad, deep, and longstanding in our legal system in a way that bans of interracial marriage were not (see this post by Clayton Cramer; I often disagree strongly with him on issues related to homosexuality, but on the historical point I think he makes a lot of sense).

     Constitutional: But, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage? Loving held that a law which considers a partner's race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner's sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

     Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren't.

     To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case:

Racially segregated restrooms	Men's rooms and women's rooms
Racially segregated schools	Boys' schools and girls' schools
Whites-only basketball teams	Girls-only basketball teams

These are most certainly not the same -- and not just because the items in the second category are somehow supported by an exceedingly strong government interest. Most people's (and most judge's) first reaction to the sex examples, I suspect, is that there's much less of a presumptive constitutional problem there than in the race context. Sex discrimination just isn't quite the same as race discrimination, and that's especially so for "separate but equal" legislation or other legislation that treats men and women equally while still providing essentially similar benefits for them. (Note that government-run boys' and girls' schools might be unconstitutional, even if they provide equal education -- the caselaw is unclear -- and officially boys-only teams might be unconstitutional, too, which is why I stress the girls-only teams. But this would be because of a perception that those programs are indeed separate and unequal, not because separate but equal is inherently bad in the gender context.)

     And this flows from the point I mentioned in the first half of this post: Men and women are different. They are different in purely obviously biological ways (women get pregnant, men don't, women are shorter than men, especially at the right tail of the bell curve), and in social ways that likely flow from this biology or are at least very deeply rooted (men and women generally want privacy from the opposite sex in certain situations, boys and girls behave differently in mixed-sex settings than in same-sex settings, we think that being the best woman basketball player is a noteworthy achievement in a way that being the best under-6-foot basketball player or the best Vietnamese-American basketball player is not). The law recognizes that there is a difference here.

     What's more, though Loving did rest partly on the formal race-consciousness of bans on interracial marriage, it also stressed what was obvious to all the participants in the case: Bans on interracial marriage, like segregated restrooms or segregated schools, were part of an attempt to maintain white social and legal supremacy. Limitation of marriage to male-female couples is not an attempt to maintain the supremacy of any one sex. (Yes, I know that people have argued that it is, but I don't think that's right.) Such a limitation is, to be sure, an attempt to maintain the social and legal supremacy of heterosexuality over homosexuality -- but the Supreme Court has never held that sexual orientation discrimination is generally like race discrimination, nor should it (in part for the reasons given in the first half of this post).

     Thus, I just don't think that the Loving rationale of "if it mentions race, it's unconstitutional race discrimination" carries over to the sex discrimination context. Had the Court already declared sex discrimination presumptively unconstitutional by 1967 (actually, it didn't start doing so until the 1970s, and it had treated sex classifications as presumptively constitutional as late as the early 1960s), I suspect the Justices would have articulated this distinction in Loving itself, and make clear that Loving's logic rests on the special status of race, and the nature of even "separate but equal" racial rules as attempts to impose racial supremacy, something that doesn't apply equally to all sex classifications. As it is, I think that Loving has to be understood as limited to the context in which it was decided, which is race; and the analogy to sex should be rejected, for the reasons I mention above.

     Finally, let me mention again the point I mentioned above, which is even more relevant to constitutional analysis: The male-female marriage requirement is much more deeply historically rooted in American law than the ban on interracial marriage; and by 1967, only 16 states banned interracial marriage, while 49 states ban same-sex marriage, and the 50th state (Massachusetts) is shifting to allowing same-sex marriage only by judicial fiat, not judgment of its people. The Supreme Court should rightly be very cautious in overturning the nearly unanimous judgment of American lawmaking organs, past and present. Maybe sometimes it ought to do this -- but not when it faces such an absence of dispositive constitutional text, and when the doctrinal case for the overturning is so tenuous.

     Conclusion: Let me say it again: I tentatively support allowing same-sex marriage. I would vote for a proposed California law implementing allowing same-sex marriage. I think it's the fairer result, and the practically most useful one.

     But I also realize that I may well be wrong. Perhaps we shouldn't be tampering so quickly with an important aspect of a fundamental social institution. Perhaps -- and there is reason enough to think that this is a plausible claim, though not an obviously correct claim -- there is something in male-female relationships that is uniquely valuable for one of the most important tasks of any society, raising the next generation of its citizens, and perhaps the law should therefore officially sanction those relationships in a way that it doesn't sanction others. Perhaps it would be better if people are taught that children are best reared in male-female relationships and not male-male or female-female ones.

     These arguments aren't strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not be imposed on the whole country by unelected federal judges, or imposed on most states by the actions of one or two states.

 
[Tyler Cowen, 3/2/2004 08:05:34 AM]
The real importance of The Passion of Christ: I wish to sidestep all of the debates so far. Rather I am struck by the growing likelihood that future generations will achieve their major knowledge of religious figures through movies, television, and DVDs. To be sure, there are already many Christian movies. But I don't think they are culturally central in shaping how the religion is viewed. Mostly they are consumed by already-loyal Christians, or viewed without much religious meaning one way or the other. And the earlier religious movies, such as The Ten Commandments, were commonly seen by audiences that already had a significant introduction to Christianity.

Surely Hollywood will jump on the box office bandwagon with numerous prequels, or how about a "sequel" on the founding of the Church, or the Reformation? Will we next have Moses on the big screen, or perhaps even Job? Why not Luther? I, for one, would go see all of these, at least if I have any reason to suspect that they are well done.

I am struck by the fact that while Passion reigns at the box office, The da Vinci Code has been a runaway bestseller. The book concerns Christ, though it suggests he was not son of God and Mary Magdalene was in fact the Holy Grail (!). I have read that the story has caused many people to question their traditional understanding of Christianity, although of course the tale is totally fictional and does not pretend otherwise. (Imagine having your faith shaken by Dan Brown's story but not by Darwin's truths.)

If I were religious, I would be worried by current trends. The public images of religions may be increasingly defined by what is saleable in the DVD market. Many Christians approve of The Passion but of course this is only the first step in a forthcoming marketplace expansion. Given its violence and its subtitles, it is unlikely to prove the most popular cinematic introduction to Christianity in the long run. The market for fame has long been commercial, but now the market for religious fame has become more commercial as well. The bigger this phenomenon becomes, the more likely we will revisit the iconoclastic debates of earlier times.

I will note that I am greatly enamored of Peter Brooks's treatment of The Mahabarata. It runs about six hours but is fascinating throughout and can be viewed in three separate parts. I cannot vouch for whether it is a good introduction to the Hindu religion. If any of you know of good movies that deal directly with the core stories of Islam, from an Islamic point of view, please let me know.

 
[Sasha Volokh, 3/2/2004 07:37:37 AM]
More on the Saudis: Re Eugene's recent post on a Saudi gay marriage, at least the religious police there are called the Commission for the Promotion of Virtue and Prevention of Vice, which is a more holistic goal than just promoting virtue or preventing vice. They may want to consider, though, that any two goals may not always be compatible with each other (some projects may simultaneously promote some virtue and some vice, cf. pleasure-pain principle), so maybe they could rename themselves to the Commission for the Promotion of Net Virtue.

 
[Michelle Boardman, 3/2/2004 07:27:26 AM]
Telling the Story of War: Like Randy, I've recently been reading a number of books involving war, although I've been reading so-called war novels: "Catch-22," "A Separate Peace," "For Whom the Bell Tolls," "Cold Mountain," and "Slaughterhouse Five." It may be a senseless question to ask if a novel focuses more on the horrors of war or on the horrors of human life. Still, some books are placed in a war setting that could be replaced with other trying circumstances without fundamentally altering the book. "Catch-22" is described this way on occasion, although not by me.

My view -- that "Slaughterhouse Five" is such a book -- is heresy; the book is taken as one of the great anti-war novels in American history. And there is no denying that the book is at least nominally about the fire bombing of Dresden in World War II and was released during the Vietnam war.

My question: Am I the only one in the universe who reads "Slaughterhouse Five" this way?

 
[Randy Barnett, 3/2/2004 12:05:34 AM]
Kopel on "Cop Killer" Ammo: The debate over gun control is, it seems, invariably haunted by labels, epithets, slogans and misinformation designed solely to generate sympathetic political reactions to proposed restrictions on gun rights, despite the facts. This is one reason why it is so hard to debate so-called "reasonable regulations"--a type of law that would in principle be consistent with the Second Amendment. So few proposed regulations are even arguably "reasonable" that engaging in such a debate makes one appear to have adopted the stance that the right to keep and bear arms is more absolute than the right of freedom of speech. The object of these legislative initiatives is not the public safety benefits of the proposed regulation but to raise the cost of manufacturing, distributing, possessing, or using firearms--what in the abortion context is called an "undue burden"--so as to accomplish indirectly a prohibition that cannot be achieved legislatively, or simply to maintain legislative momentum towards eventual prohibition. In this field, an ounce of technical knowledge is often worth a pound of constitutional theory.

In The Return of a Legislative Legend, David Kopel takes on another such regulation--the so-called "cop-killer" bullet--which he contends is a deliberately manufactured myth. But you judge for yourself. Here's a taste:

"Cop-killer" bullets are sometimes called "Teflon bullets," but this name reflects a serious misunderstanding. For example, in the movie Lethal Weapon 3, a so-called "Teflon bullet" from a medium-power handgun was supposedly able to penetrate several inches of hardened steel on a bulldozer blade. In the real world, however, no bullet could possibly perform such a stunt.

Actually, a Teflon coating is applied to the outside of a wide variety of ordinary ammunition. Teflon reduces the lead abrasion caused by the bullet's movement down the barrel of the gun. Thus, the barrel is kept cleaner, and is protected from excessive wear. Also, reduced abrasion means that fewer tiny lead air particles are produced, so the air is cleaner — an especially important consideration at indoor shooting ranges.

In addition, a Teflon coating on a bullet also makes the bullet safer to use in a self-defense context. The Teflon helps the bullet "grab" a hard surface such as glass or metal, and thus significantly reduces the risk of a dangerous ricochet. Similarly, canes or walking sticks are often coated with Teflon, so that they will not slip on hard, smooth surfaces.

So in order to reduce ricochets, KTW bullets as well as many ordinary types of defensive ammunition use Teflon or similar substances.

Read it all, especially his discussion of proposals to restrict ammunition that can penetrate body armor.

Monday, March 01, 2004

 
[Eugene Volokh, 3/1/2004 09:24:56 PM]
Gay marriage: The wrong place to push the envelope on gay marriage. If, that is, that's what these people were trying to do -- which seems unlikely, since it's such a wrong place to push the envelope on gay marriage.

     (Thanks to reader Erica Sadun for the pointer.)

 
[David Bernstein, 3/1/2004 08:10:45 PM]
Why Aren't Libertarians More Upset At Bush's Politicizaton of Government Science? Every once in a while, I'll notice a liberal blogger querying why libertarian bloggers, who, after all, tend to be rationalistic, scientifically oriented, and not especially religious folks, aren't up in arms about the Bush Administration's politicization of science, generally on behalf of the Christian Right--everything from the rigged Kass bioethics panel to the delays in making the morning after pill available over-the-counter to insistence on "abstinence only" sex education programs regardless of the underlying evidence of their effectiveness. Of course, Conspirator Jacob has chimed in a few times (most recently here), as have Virginia Postrel and Glenn Reynolds, and some of the alleged politicization of science, particularly with regard to environmental issues, is a matter of dispute. Nevertheless, there is a limit to actual libertarian outrage for a simple reason: unlike liberals, who expect better from their government, libertarians expect this sort of nonsense as a result of government funding of science. Libertarians would, in fact, be surprised if government funding of science did not lead to its politicization, if not by Bush than by someone else; the sorts of thing the Bush administration has been doing, are, in fact, what libertarians have warned liberals who support government subsidies for scientific ventures about for years. To those who have supported massive government subsidies for science and social science, and are now tearing their hair out as government plays fast and loose with the scientific process and threatens scientific progress, I say, "Well, d'uh, what exactly did you expect?" Or, more productively, "How about starting a movement for the separation of science and state?" Scientific progress is likely to be the better for it.

 
[Eugene Volokh, 3/1/2004 05:14:51 PM]
Reboot: My father, who has worked with computers his whole life, called to wish me a happy birthday. I had just turned 36, and 36 is how old my father was when my parents, Sasha, and I emigrated from Russia to America. You're turning 36 the way people are supposed to, he told me: You're settled, established in your profession, everything's on track.

     When he was 36, he said, he was rebooting: He had to throw away everything he'd built up in Russia, and started from scratch in America. And true enough, he was as well set in Russia as most people could be; when we came here, he had to start again at minimum wage as a computer operator, taking two buses to get to work, and having to work two jobs for a while. He said this without rancor -- he's done very well for himself and his family (he and I are partners in the small software business we cofounded), and his decision to reboot has been proven sound many times over. But it was an interesting reflection on the difference between his life and mine. If only lives were as easy to reboot as computers.

 
[Jacob Levy, 3/1/2004 12:54:43 PM]
Speaking truth to Nader: Continuing the 'it's time to speak honestly abouy Nader's whole career' moment: Jonathan Chait.

 
[Jacob Levy, 3/1/2004 12:16:41 PM]
Oscar recap: I'm entirely delighted, of course-- though I did oddly badly in the prediction pool at our Oscar party but not picking LotR every time. (I figured that a spread-the-wealth impulse would take hold among voters who were committed to giving LotR the top two prizes, and so I didn't, for example, pick 'Into the West' for best song. I don't think it should've won, but I also didn't think it was going to.) Given that they weren't going to revoke the past Oscars to Beautiful Mind, Chicago, and Polanski in order to give them all to Peter Jackson, it was right and proper that they just piled awards onto LotR last night.

But if Clint Eastwood and Sofia Coppola (and maybe some of her dad's friends) went and beat up Ron Howard and each took one of the Beautiful Mind Oscars, reasoning that they should have gone to Fellowship leaving this year's awards free for Mystic River and Lost in Translation-- well, that would seem only fair.

On another note: during the acceptance speech for 'Barbarian Invasions,' I joked that only Quebecois filmmakers had to thank three governments from the podium. But Todd Seavey says the movie had a surprisingly free-market and pro-US political tone to it.

 
[Eugene Volokh, 3/1/2004 11:52:19 AM]
Anti-judicial-review poetry: I express no opinion on its sentiments or reasoning, or for that matter its poetic quality, but anti-judicial-review poetry is rare enough that it seemed worth quoting. It's from Poet's Corner, Kentucky Gazette, June 2, 1826, quoted in Theodore W. Ruger, "A Question Which Convulses a Nation": The Early Republic's Greatest Debate About the Judicial Review Power", 117 Harv. L. Rev. 826, 827 (2004) (emphasis omitted and spelling corrected):

What land is that where there are men,
With noble blood in every vein,
With heads most wise and noble mien,
Whose hearts all fraud and guile condemn,
Who charitably would explain
The Constitution unto men,
And spare the toil of thought to them?

 
[Eugene Volokh, 3/1/2004 10:51:27 AM]
FORTH: A bad memory from the past has resurfaced: In response to my post Friday about national security dangers from intentionally buggy source code, a reader suggested that the problem was in today's programming languages, such as C; FORTH, he argued, was a simpler language and therefore helps programmers make better systems. Well, FORTH sure is simpler in some ways, but I had to work in it for two and a half years, and it was pretty lousy. Maybe it's vastly improved now, but I highly doubt it.

     In fact, of all the languages that I know -- I worked as a programmer full-time or part-time for 12 years, made money working with BASIC, some C, a tiny bit of COBOL, FORTH, FORTRAN, LISP, PASCAL, and SPL (an HP 3000-only language), and also played some with APL -- I think C is probably my favorite. (I coded in C before C++ got big, so I can't speak about C++, but from what I hear of it, I think I'd like it, too.) C has plenty of problems: Just as PASCAL (or at least the 1980s versions that I used) is too rigidly typed and straitjackets the programmer too much, the 1980s versions of C were too loosely typed, and didn't give the programmer enough help with avoiding the errors that even the best programmers make. Still, it seems to have fewer problems than any of the other languages I've used.

     In any case, while I haven't really worked in the modern computer industry, I highly doubt that the potential security vulnerability caused by "software warfare" really stem from the computer languages people use. Choice of language can make a considerable difference -- I just don't think it's what's making the difference here.

UPDATE: Just to clarify, I'm speaking here of security problems caused by people intentionally planting bad code in various broadly used products, whether it's a programmer putting some backdoor or bomb into Windows, or a terrorist- or foreign-power-controlled company distributing its own products that have international problems in them.

     Accidental security holes that hackers can then exploit might indeed be caused in part by language problems -- some languages make it somewhat harder for certain bugs to accidentally happen, while others make it somewhat easier. C, for instance, is a language that generally doesn't do much type checking or bounds checking, which makes certain kinds of bugs (such as buffer overflows) more likely. (There may well be specific versions that don't suffer as much from it, but this is what standard C was like in the late 1980s, when I was exposed to it, and how I understand it still mostly is today.) FORTH, incidentally, is if anything actually worse than C in these respects. PASCAL and some other such languages do much more type-checking and bounds-checking -- way too much, in my book, because they also make it much harder for programmers to do correct and useful things. I suspect one reason that C prevailed over PASCAL is that PASCAL shackles people too much.

     My preference has always been for languages that do lots of type-checking, bounds-checking, and other such checking for constructs that may be evidence of bugs -- but that also make it easy for the programmer to waive, on a case by case basis, this checking (for instance, by providing a means of easily telling the compiler that an object of one type should actually be treated as having a different type). Unfortunately, my preferences have a way of hardly ever getting turned into industry standards, even when I'm quite positive that I am entirely right.

     In any case, though, this is a tangent (prompted by a helpful message from reading Andrew Myers' response to an earlier version of my post). My basic point was about vulnerability to intentional bombs or backdoors created by rogue programmers, often in code whose source code is never checked by anyone (or checked at most very lightly). And I do think that this concern is largely (though I'm sure not entirely) independent of the languages being used, precisely because the source code, in whatever language, is not checked.

 
[Eugene Volokh, 3/1/2004 09:32:55 AM]
Law requiring clergy to marry people regardless of race, religion, or national origin? Texas Family Code, Chapter 2 ("The Marriage Relationship"), Subchapter C ("Ceremony and Return of License") provides, in relevant part:

[sec.] 2.202. Persons Authorized to Conduct Ceremony

(a) The following persons are authorized to conduct a marriage ceremony:
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and
(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, or judge or magistrate of a federal court of this state. . . .

[sec.] 2.205. Discrimination in Conducting Marriage Prohibited

(a) A person authorized to conduct a marriage ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.

(b) On a finding by the State Commission on Judicial Conduct that a person has intentionally violated Subsection (a), the commission may recommend to the supreme court that the person be removed from office.

     Read literally, this would mean that even members of the clergy (who are authorized by this subchapter to conduct marriage ceremonies, see sec. 2.202(a)) may not discriminate based on race, religion, or national origin. Priests and rabbis would have to conduct interfaith marriages, even if they oppose them. Since Jewish ethnicity is generally seen as a "national origin" (and in some old statutes, a "race"), a rabbi who refuses to marry two people because one of them isn't ethnically Jewish would likewise be acting illegally. (As I understand it, many rabbis will marry even Jewish atheists to other Jews, but not non-Jewish atheists; they would thus be discriminating based on Jewish ethnicity/national origin/race, not based on religion as such.)

     I strongly suspect that sec. 2.205(a) was only intended to cover judges (see sec. 2.202(a)(4)) who are authorized to perform marriages, and sec. 2.205(b) supports that interpretation. Because of this, and because of a reluctance to interfere with religious activities by religious clergy -- an interference that would likely be an unconstitutional entanglement with religion or possibly an unconstitutional coercion of a religious act, and thus an Establishment Clause violation -- I doubt that Texas courts would interpret sec. 2.205(a) literally. Still, it's too bad that the statute is drafted so sloppily.

 
[Jacob Levy, 3/1/2004 09:24:52 AM]
More on administration science policy: The Bush administration has removed two members of the bioethics advisory council-- two who favored stem cell research.

The two were a medical ethicist and a biologist. They've been replaced by a neurosurgery specialist; a political theorist with a University of Chicago connection who writes about Montesquieu; and a political theorist who has started to do some work on biotechnology. Both of the political theorists have institutional affiliations that identify them as Straussian with a high degree of confidence, and both are established critics of biotech in general or stem cell research in particular-- giving us some ex ante reason to think they were chosen by Straussian Leon Kass, my colleague at Chicago and the chair of the council. I'm all in favor of political theorists with University of Chicago connections who write about Montesquieu, really I am. But these changes have the clear intent and effect of making the advisory council more intellectually homogenous and less likely to air any dissent from Kass' essentially religious and anti-science views.

The Straussian link to foreign policy is deeply overstated. That to the bioethics commission is much less widely-known-- other than to longtime readers of Virginia Postrel's blog-- but much more real. The President is at complete liberty to replace members of the council; there's no procedural irregularity here, no wrongdoing. Just a very bad idea, and one that illustrates the administration's approach to science and research questions. After Kass was appointed chair of the council, much was made of the overall intellectual balance of the group. With the spotlight gone, that balance is getting replaced with something else altogether.

 
[Eugene Volokh, 3/1/2004 08:57:10 AM]
Marriage amendments: Some e-mails I've gotten lead me to return to a couple of items I posted last September 11. First, I think it's wrong for the nation as a whole -- even if 38 states agree to it -- to block state voters and legislators from allowing same-sex marriage, just as it's wrong for the federal courts (or for the action of one state) to force state voters and legislators to allow same-sex marriage.

     Second, I think the following Amendment would be quite defensible:

No part of this Constitution shall be interpreted as requiring any state, or the federal government, to recognize or allow same-sex marriages.

This amendment would indeed protect states from national meddling, as opposed to the Federal Marriage Amendment, which will just replace one sort of national interference with another. I think the amendment may be premature, since I doubt that the judicial interpretations that it would prevent will actually happen. But I may be mistaken, and I can certainly see the argument for forestalling them now, rather than waiting until later, when the Amendment may be still harder to pass.

     This amendment will not stop state courts from imposing gay marriage under state constitutions. But I don't see why the nation as a whole should save state voters from this sort of overreaching by state judges; state voters and legislators can and should correct such problems themselves.

 
[David Bernstein, 3/1/2004 08:22:25 AM]
Good Dennis Prager Column on "The Passion": Prager:

For two hours, Christians watch their Savior tortured and killed. For the same two hours, Jews watch Jews arrange the killing and torture of the Christians' Savior....

Why does this bother Jews so much? Because for nearly 2,000 years, attacked as "Christ-killers," countless Jewish men, women and children were tortured and murdered in ways that often caused more suffering than even Jesus endured (e.g., not only tortured and murdered themselves, but also seeing their families and friends raped, tortured and murdered). For Jews to worry that a major movie made by one of the world's superstars depicts Jews as having Christ tortured and killed might arouse anti-Semitic passions is not paranoid. Even though Islam denies the crucifixion, it is difficult to imagine that this film will not be a hit in the virulently anti-Semitic Arab world.

It is essential that Christians understand this. Every Jew, secular, religious, assimilated, left-wing, right-wing, fears being killed because he is Jewish. This is the best-kept secret about Jews, who are widely perceived as inordinately secure and powerful. But it is the only universally held sentiment among Jews. After the Holocaust and with Islamic terrorists seeking to murder Jews today, this, too, is not paranoid.

Prager goes on to explain that "most American Christians watching this film do not see 'the Jews' as the villains in the passion story historically, let alone today," and that the defensive reaction of many Christians regarding the movie is a reaction to decades of declining respect for Christianity in popular culture. As they say, read the whole thing.

 
[Tyler Cowen, 3/1/2004 05:19:19 AM]
Blogs by Metro station: For the Washington, D.C. area, that is, here is the link. Move around your mouse for a fascinating study in economic and intellectual geography. We're on the Orange line, of course, on the Virginia side, check out the contrast on the eastern side of that same line.

Thanks to Andy Roth for the pointer.

Addendum: Thanks to David for this subway map of NYC.

 
[Randy Barnett, 3/1/2004 12:06:53 AM]
Book Tour Schedule for This Week: This week, I talk about Restoring the Constitution in Southern California. All events are open to the public. Be sure to let me know that you read the Volokh Conspiracy.

Monday 3/1:
Chapman law school (noon)
Tuesday 3/2:
UCLA law school (noon)
Pepperdine law school (4:00pm)
Wednesday 3/3:
USC law school (12:20pm)
Loyola-Marymount law school (5:00pm)
Thursday 3/4:
Univ. San Diego law school (Grace Courtroom, Noon)

Full tour schedule is here
Next week: Northern California (Hastings. Stanford, and Santa Clara)

Sunday, February 29, 2004

 
[Eugene Volokh, 2/29/2004 10:27:43 PM]
Only 48 years of piracy left for me.

 
[David Bernstein, 2/29/2004 01:28:54 PM]
Is the Volokh Conspiracy that Famous? This paper, which is discussed over at Crooked Timber, has the Volokh Conspiracy in its title [basic thrust: those on the left shouldn't read, for example, the Volokh Conspiracy, because we are not morally wise, and given their lack of expertise on the issues we are experts in, may lead them astray], but, oddly enough, never explains to the reader in the text what the Volokh Conspiracy is. I've spoken on behalf of the Federalist Society chapters at many law schools over the past several months, and even many of the chapter officers have never heard of the VC. Those of us in touch with the blogging world seem to sometimes forget that most people, at least most people over age 25, never look at blogs, and often don't know what they are.

 
[Juan Non-Volokh, 2/29/2004 12:08:21 PM]
Sunday Song Lyric: I doubt many Academy Award nominees have written songs defending capitalism. That makes composer Danny Elfman the exception. His original score for Big Fish is up for an Oscar tonight. Prior to becoming one of Hollywood�s hottest soundtrack men � his credits include Batman, Pee Wee�s Big Adventure, Good Will Hunting, Spiderman, and Men in Black � Elfman was the front man for Oingo Boingo, the LA-based cult rock band. In that role, Elfman penned occasional hits, such as Dead Man�s Party, as well as the aforementioned Capitalism.

In support of Elfman�s nomination � and because I�m still steamed about my car � I thought it appropriate to make today�s song lyric Oingo Boingo�s first hit, Only a Lad.

Johnny was bad, even as a child everybody could tell
Everyone said if you don't get straight
You'll surely go to hell
But Johnny didn't care
He was an outlaw by the time that he was ten years old
He didn't wanna do what he was told
Just a prankster, juvenile gangster

His teachers didn't understand
They kicked him out of school
At a tender early age
Just because he didn't want to learn things
(Had other interests)
He liked to burn things

The lady down the block
She had a radio that Johnny wanted oh so bad
So he took it the first chance he had
Then he shot her in the leg
And this is what she said
Only a lad - You really can't blame him
Only a lad - Society made him
Only a lad - He's our responsibility
Only a lad - He really couldn't help it
Only a lad - He didn't want to do it
Only a lad - He's underprivileged and abused
Perhaps a little bit confused

His parents gave up they couldn't influence his attitude
Nobody could help
The little man had no gratitude
And when he stole the care
Nobody dreamed that he would
Try to take it so far
He didn't mean to hit the poor man
Who had to go and die
It made the judge cry
Only a lad - He really couldn't help it
Only a lad - He didn't want to do it
Only a lad - He's underprivileged and abused
Perhaps a little bit confused

It's not his fault that he can't believe
It's not his fault that he can't behave
Society made him go astray
Perhaps if we're nice he'll go away
Perhaps he'll go away
He'll go away

Only a lad - He really couldn't help it
Only a lad - He didn't want to do it
Only a lad - He's underprivileged and abused
Perhaps a little bit confused

Hey there Johnny you really don't fool me
You get away with murder
And you think it's funny
You don't give a damn if we live or if we die
Hey there Johnny boy
I hope you fry!

 
[Eugene Volokh, 2/29/2004 10:28:30 AM]
Hey, why don't I get invited to the parties Randy gets invited to?

 
[Jacob Levy, 2/29/2004 07:38:50 AM]
In case you check blogs before you check the new this morning: Aristide resigned.

 
[David Bernstein, 2/29/2004 07:15:27 AM]
A nonapology apology by Rep. Corrine Brown: Rep. Corrine Brown, who assailed United States policy toward Haiti as a "racist" policy concocted by a "bunch of white men" and later told a Mexican-American Assistant Secretary of State that "you all (non-black people) look alike to me": "I sincerely did not mean to offend Secretary Noriega or anyone in the room. Rather, my comments, as they relate to 'white men,' were aimed at the policies of the Bush administration as they pertain to Haiti, which I do consider to be racist." Rep. Henry Bonilla has accepted this "apology" and withdrawn his call for Rep. Brown to resign. But where is the apology? Brown has played the old "I apologize if I offended anyone, but I'm not backing down" trick.

Aside: I find Rep. Brown's racial demagoguery on the Haiti issue offensive. I'm not so sure about the wisdom of Secretary Noriega's response that he resents being considered white. I'd preferred he criticized her on more general anti-racial demagoguery grounds. After all, outside the world of affirmative action categories, individuals of Mexican origin witha European appearance in the U.S. are generally considered, and consider themselves to be, "white", and they certainly are in Mexico, so there is something a little manufactured about Noriega's outrage at being lumped into the "white" category. How about a little outrage that Rep. Brown can't just say she finds the policy stupid, but needs to racialize her criticism?

 
[Randy Barnett, 2/29/2004 05:21:26 AM]
The Night Before: So while in LA for the Southern California leg of my book tour, my wife and I attended the Second Annual "Night Before Party" at the Beverly Hills Hotel. It was an amazing scene, and hard to believe that so many A-list celebrities ever attended the same event. The pool had been covered up, and a tent erected over it. Reebok was giving guests their choice of shoes, and Krispy Creme served donuts covered with ice cream or topped with strawberries and whipped cream. Cell phones and cameras were not permitted, but security only stopped you from bringing in cameras--or camera phones. I did not hear a single cell phone go off the whole night, and only noticed a few people furtively using theirs. The celebrities dressed casually with a noteworthy lack of affectation--except of course for Elton John who sat surrounded by younger men. No one wore sun glasses at this evening event. All the celebs were gone by midnight.

It turns out I am very bad at recognizing even very famous actors in a crowd, but fortunately my wife is excellent at spotting them. Were it not for her, I would have missed most of the following (don't write me about misspelling their names): Sylvester Stalone (a little waxy looking), Tim Robbins & Susan Sarandon, Martin Short, David Spade, Ben Kingsley, Ben Stiller, Courtney Cox & David Arquette, Steven Speilberg, Will Smith (with body guards), Rene Zellweger, Christian Slater, Angelina Jolie, Patricia Clarkson ("Pieces of April," Aunt Sarah on "6 Feet Under"), Michael Chiklis (The Shield, The Commish), Kristen Davis (Charlotte on "Sex and the City"), Bonnie Hunt, Antonio Banderas & Melanie Griffith, Luke Wilson, Tom Arnold, Roma Downey ("Touched by an Angel"), John Spencer ("The West Wing," "LA Law"), Leonardo DiCaprio, Alec Baldwin, Pierce Brosnan, Clint Eastwood, Kevin Spacey, Bruce Dern, standing nearby his daughter Laura Dern, Tom Hanks & Rita Wilson (the only one we noticed smoking), Kevin Spacey (in a Kangol-style cap), Jill Hennessee (Law & Order), Camryn Manheim ("The Practice"), Ted Turner and Donald Trump (hair looking a little more like normal hair in person). It was very crowded, especially at the beginning, and we must have missed a lot more who were there. We know Tom Cruise left just before we arrived, and we somehow managed not to see Michael Douglas with Katherine Zeta-Jones though we were told they had stood in the same spot for nearly an hour.

Most of the males actors are much smaller, not just shorter, than you expect--especially Banderas--except DiCaprio who you'd expect to be small, but is really normal size and height. Alex Baldwin is a bit bulky of course, and Pierce Brosnan is a remarkably big guy, who is not shy about wearing grey stubble. The tallest was probably Tim Robbins, but taller than you'd expect were Tom Hanks and Kevin Spacey. Not surprisingly on the tall side were Ted Turner, Donald Trump, Will Smith, Bruce Dern, and Clint Eastwood.

I asked Eastwood if he was a libertarian, and he replied that he agreed with the libertarian philosophy, but had not changed his registration from Republican, though his wife had. Besides, he noted, that used to be the philosophy of the Republicans. Though it seemed like he was warming to the subject, I did not get to ask him what made him think so because Jeffrey Katzenberg of Dreamworks and one of the hosts of the party (and another little guy), just then interrupted to thank Eastwood for coming, so we moved on.

It was a pretty awesome to see in one night, in one place, and very informally, more prominent actors and actresses than we will ever see in our whole lives--except for on the Red Carpet later today at the Oscars. But that's another story.