Friday, May 07, 2004

 
[Eugene Volokh, 5/7/2004 05:30:56 PM]
Switched blogging software: We've switched from Blogger to the new PowerBlogs software, which we anticipate will be much more reliable and more usable. You should still be able to get to our blog by going to volokh.com, so please make sure that you bookmark that page, rather than the old http://volokh.com/index.htm (which is what you're reading now). If for whatever reason volokh.com doesn't get you to the right place, go to http://volokh.com/index.shtml. See you there!

 
[Randy Barnett, 5/7/2004 01:48:33 PM]
Should Conservatives Be Confused? I have received some thoughtful replies to my response to Professor Bainbridge's post, Should Conservatives Be Cheerful? including this Reply to Barnett by Professor Bainbridge, and his endorsement of Legislative Tyranny versus Judicial Tyranny by Owen at Southern Appeal. I believe that these post reflect some basic misunderstanding of the position (mine) with which they disagree.

(1) Owen writes:

Barnett's answer is remarkably unsatisfying, because it simply argues in favor of one tyranny over another. Under his standards, American society would effectively be ruled by the courts, who would be vested with the authority to judge which moral standards are legitimate and illegitimate, presumably using the old libertarian standard of the "harm principle."

This statement is mistaken on two counts. First, I do not advocate the "harm principle." Because we are entitled to "harm" others in many ways, this principle is simply too indefinite to distinguish rightful from wrongful conduct. Rather, in my book I argue, as did Thomas Cooley and Christopher Tiedeman, that the proper exercise of the police power of states extends only to protecting the equal rights of others. (NB: Their treatment of "morals" legislation differ.) If a prohibition cannot be justified as means to protect the rights that everyone has from violation then it is improper. Distinguishing rightful from wrongful conduct is the subject of specific doctrines developed in the private law subjects of property, contracts and torts. These doctrines are developed at the state level. There may be many difficulties with my proposal, and I address these difficulties elsewhere, but this and not the "harm principle" is what I favor. This confusion arises because I have written favorably of Justice Kennedy's opinion in Lawrence and he does invoke the harm principle. This is defensible in extreme (and rare) cases in which there is no harm to others whatsoever, in which case a law is problematic. But, as I said, as we have a right to cause all sorts of harms (or negative externalities) on others, the harm principle is insufficient.

Second, it is simply a mistake, but an all-too-common one, to equate legislative power over the citizenry with judicial power over legislatures. Therefore, it is a simple conceptual confusion to equate so-called legislative tyranny with judicial tyranny as if these two phenomena are a symmetrical pair. This error results from unrealistically equating a majority of a legislature with the people themselves, an error the framers of the constitution were careful to avoid. A principal object of the Constitution was to protect the people from legislative majorities, indeed from popular majorities, when motivated by passion or of interest adverse to the rights of their fellow citizens (paraphrasing Madison in Federalist 10). Judicial nullification was thought to be one check among others. The only concern expressed during framing and ratification debates about this check is that it would be too weak, as indeed it has been.

(2) Professor Bainbridge writes:

Contrary to what Barnett seems to believe, I doubt very much that the founders anticipated the sort of expansive claims of judicial supremacy that underlie recent decisions like Lawrence. Certainly, in the generations immediately after the founders the executive branch resisted expansive judicial supremacy.

He then quotes the following from Andrew Jackson:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

In my book I address the distinction between judicial "nullification," which the founders strongly endorsed, from judicial "supremacy"--i.e. judicial control over coordinate branches--which they said little if anything about. If you reread Jackson's statement carefully, you will see he is saying that the other branches should not blindly follow or defer to the judiciary with respect making assessments of the constitutionality of what they do. It does NOT say that the judiciary should blindly defer to the other two branches of government when the constitutionality of laws comes before them in a case or controversy. In other words, Jackson does not in any way advocate legislative supremacy, which many of today's judicial conservative favor in the name of democratic majoritarianism. On this issue, I strongly recommend David Mayer's excellent study, The Constitutional Thought of Thomas Jefferson.

(3) Finally, Professor Bainbridge writes:

Confining myself to the blogosphere, however, I would note that Barnett's arguments have not gone uncontested. Barnett asks, for example: "Is discovering and enforcing the original meaning of the Ninth Amendment activism?" Calblog, for one, thinks so: "We ought to respect it, but we can't come to the court to enforce the 9th amendment. Rightfully so, its interpretation belongs in the Congress and statehouses."

If anything is statement of conservative "judicial activism," this is. Calblog speculates about what the Ninth Amendment might have meant. I presented evidence about what it did mean (though other scholars disagree). Essentially the Ninth Amendment stands for the proposition that (as against the federal government) unenumerated liberties are entitled to the same protection as enumerated liberties. Recall for 2 years there was no First Amendment. Freedom of speech, press and assembly were all unenumerated rights. NO ONE contended that the enactment of the First Amendment changed anything with respect to the preenactment status of the rights it enumerated, e.g. claiming that the First Amendment would create legal protections that previously did not exist. Textually, from 1789-1791, any law violating the freedom of speech would have been improper under the Necessary and Proper Clause. Enumerating the right of freedom of speech neither enhanced its previous protection nor derogated the protection afforded other liberties not enumerated. As to the latter, so saith the Ninth Amendment.

If I am correct about this, and about the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, then it is judicial activism to say that unenumerated rights are entitled to no protection from legislative infringement because they are unenumerated. Calblog's assertion of this position is itself "activism" of the exact same species that I identified in my earlier post: conservative judicial activists disgarding text that does not satisfy their conception of "the rule of law." As Calblog puts it: "The fear is I think is that if you want the P&I clause to incorporate already vague 9th amendment issues against the states . . . that's a real stretch. Hitchhiking on an already vague provision." Exactly! He does not like this provision because he thinks it is too "vague," so out it goes from the text. There is no difference between him and activists on the left who don't like, for example that Congress has only a limited power over "commerce . . . among the several states."

I am sure there will be more to say--in particular the alleged prevalence and enforcement of "antisodomy laws," but this post is already too long as it is. Those who are interested in the historical practice should look at this. And then there is this lengthy post by Clayton Cramer. Ahh. So much confusion, so little time.

 
[Randy Barnett, 5/7/2004 06:11:03 AM]
Should Conservatives Be Uninformed? Professor Stephen Bainbridge, of whom I have a very high regard, posts the following curious entry on his blog entitled, Should Conservative Be Cheerful?

Insofar as one may draw inferences from his letter to the editor in today's WSJ ($), Robert Bork still thinks we're Slouching Towards Gomorrah, and he knows where to lay the blame:

The barbarians are no longer at the gate but inside and there is no end in sight to the damage they are inflicting. ... American courts, state and federal, having enlisted in the culture war on the side of the elites, are leading the procession to the moral anarchy of radical personal autonomy. ... As Justice Scalia put it in one dissent, "Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize."

Yep. This is why I find the sort of judicial activism advocated by libertarians like Randy Barnett no less threatening to democratic values than the sort advocated by left-liberals like Larry Tribe or Erwin Chemerinsky.

This comes after another post entitled Libertarian Judicial Activism, which says:

I find libertarian judicial activism of the sort Randy Barnett espouses no less offensive than the left-liberal judicial activism that we usually see.

Both posts beg the question: what exactly IS judicial activism? Unfortunately, apart from his reference to "democratic values," Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in his infamous confirmation testimony?

Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in the Tempting of America?

Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

Is it activism to construct a doctrine to define the wholly unenumerated "police power" of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

Surely Professor Bainbridge would not encourage conservatives to remain as uniformed of the meaning of all these crucial provisions as Robert Bork proved to be in the last book in which he opined on the Constitution. Or do they all just happen to have no discernible meaning, and no constitutional purpose, despite what they apparently say?

Judicial "activism," as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error. Without a conception of "activism," we just do not know exactly why Professor Bainbridge is offended. No doubt he has a sophisticated view of this issue or he would not be casting stones, but merely invoking "democratic values" will hardly suffice.

Either striking down ANY properly enacted statute is "activism" because it thwarts the "will" of a majority of legislators, in which case all judicial review is activism, notwithstanding the original meaning of "the Judicial Power" in Article III. Or before hurling the charge of activism, we must first decide whether a statute violates the original meaning of the text. This is something that requires evidence and effort, and many use the epithet "activism" to avoid messy issues like determining the meaning of the Constitution. Far easier is it to accuse judges of practicing, or law professors of favoring, some sort of vague "process" impropriety called activism.

But for some modern judicial conservatives (not to be equated with all political conservatives), activism does mean something rather specific that they do not always articulate clearly: Activism is any deviation from the judicial philosophy of the Roosevelt New Deal judiciary, as enunciated in the first sentence of Footnote Four of U.S. v. Carolene Products that reads:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

In other words, enforce only some of the rights enumerated in the Bill of Rights--judicial conservatives often seem unsympathetic to enforcing the Fourth and Fifth Amendments--while generally ignoring the enumerated powers scheme (though judicial conservatives are divided on this). Above all, ignore the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

In short, today's judicial conservatives are simply unreconstructed Roosevelt New Deal jurisprudes. Indeed, it was the political Progressives who first coined the term "activism" to describe the Supreme Court that tried to enforce, however imperfectly and incompletely, the textual limits imposed on federal and state power by the written Constitution. I mean no offense by this comparison. But Roosevelt New Deal jurisprudence is hardly derived from a commitment to or evidence of original meaning. Nor is it a risk free approach to a Constitution that was put in writing not only to empower a federal government, but also to limit its powers, and a Fourteenth Amendment whose sole purpose was to limit previously undefined and broad state powers. At crunch time, judicial conservatives choose Roosevelt over Madison.

If one must use the epithet, the only sensible and neutral definition of "judicial activism" is when judges for whatever reason choose to ignore the written Constitution, whether to uphold or strike down legislation. Just as some modern progressives would have the courts ignore those passages of the Constitution that conflict with their conception of "justice," modern judicial conservatives would have courts ignore those passages of the Constitution that conflict with their conception of "the rule of law" because they are not specific enough for their tastes.

No meaning of any constitutional provision can be established in a blog, which is why I wrote Restoring the Lost Constitution: The Presumption of Liberty. If I am right about the original meaning of the clauses that I have examined, however, then my "activism" derives from the framers and ratifiers of the original Constitution--who as I show in my book were no fans of democratic majoritarianism--and those who drafted the Fourteenth Amendment, who were no fans of unlimited state power. Ultimately, what offends Professor Bainbridge is their words, not mine.

 
[Eugene Volokh, 5/7/2004 04:43:47 AM]
Taking responsibility: People have recently suggested that various officials (the Secretary of Defense, the head of the CIA, and others) should resign as a sign that they take responsibility for their policy errors, or for their failure to properly monitor their misbehaving underlings. I think that in general there's a good deal to be said for such acceptance of responsibility, though of course much will depend on the particular circumstances of each case.

     But I'm wondering: How often has this sort of behavior happened in the recent past? Since, say, 1960, which Cabinet-level officials (or the Director of Central Intelligence, who's pretty high up there) resigned because (1) they admit that they have failed in some task, or (2) their subordinates (direct or indirect) have failed and the officials want to take responsibility for the subordinates' failure (and perhaps their own failure to monitor the subordinates)? I'm excluding (A) firings of such officials, and (B) resignations prompted by personal scandal, unpopular comments, or general unpopularity. I'm looking for resignations of the "My policies have proven to be wrong, and I'm resigning to take responsibility for them" variety.

     Naturally, even if such resignations have been scarce in the past, it doesn't mean that they shouldn't happen now -- but their presence or absence may indicate whether the problem is unusual shamelessness on the part of these particular officials, or a broadly shared (even if harmful) aspect of our political culture. Also, if there are such prominent past cases, perhaps they can be used as examples that we should prod officials to emulate.

     If you have such examples, please e-mail me (at volokh at law.ucla.edu),

1. the person's name, office, and rough tenure of service,



2. the circumstances under which they resigned, and



3. most important, a pointer to some online source that documents this, or at least a quote from and a citation to some print source that documents this.

I hate to be so demanding and so lazy, but I'm afraid that I won't have much time to invest in research and corroboration; I'm hoping you folks will be kind enough to do it for me.

 
[Eugene Volokh, 5/7/2004 03:32:52 AM]
Oh, can I answer that, teacher? Can I? Can I? Reader Michael Greenspan passes along this item that David Frum at National Review Online wrote a few months ago. I'm not a conflicts of law scholar (that's the field that deals with these issues); I'm also not Andrew Sullivan, to whom the questions are addressed (and who dealt with them briefly here). But I know a bit about the subject, and thought I'd put my two cents in, and give the answer as a matter of current law.

     Basic summary: These are interesting issues, but not that different from other issues that the legal system has had to deal with before, and not tremendously hard to resolve. The existence of the issues doesn't show that somehow Massachusetts law would interfere with the public policy of other states, nor does it show that somehow the resulting system would be unworkable. To the extent that it disserves anyone, it would disserve the Massachusetts same-sex couples -- but it wouldn't make them any worse off than they are now, without any marriage rights at all.

     Here are Frum's questions, interspersed with my answers (which assume Andrew Sullivan's quite plausible premise, which is that other states and the federal government will have no constitutional obligation to respect Massachusetts law):

FEB. 27, 2004: EIGHT QUESTIONS FOR ANDREW SULLIVAN

On his website today, Andrew Sullivan proclaims his support for the concept that a same-sex marriage license issued in Massachusetts could be void in the other 49 states. That would be a welcome compromise, especially if the Massachusetts courts ever managed to persuade the voters of Massachusetts to approve their judicially imposed social experiment -- but let?s first test Andrew with some practical questions that follow from his idea.

1) A Massachusetts man buys a condo in Miami. He marries another Massachusetts man. The condo purchaser dies before he can write a new will. Who inherits the condo?

Unless I'm mistaken, the disposition of real estate is governed by the law of the state in which it's located (here, Florida), and in fact you may have to go to court in that state in order to get the property turned over. So the man's next-of-kin (children, parents, and the like) will inherit the condo, unless Florida courts decide to respect Massachusetts law on this, as a matter of common law rather than constitutional law (which they probably wouldn't, if the state has a Defense of Marriage Act-like law). The only question is whether the Massachusetts courts will somehow try to compensate the same-sex spouse by upping his share of the rest of the property, something that I doubt they will do; but in any case, that's up to Massachusetts courts to decide, and other states won't be affected.

     The issue already comes up in other situations, for instance when the state in which an opposite-sex couple lives is a separate property state but the couple owns land in a community property state, or vice versa. There are, after all, other differences in the law surrounding marriage. So not a new problem, and not much of a problem at all. At most, it makes life less good for the Massachusetts same-sex couples than it would be if all states recognized their unions -- but I take it that this isn't Frum's objection.

(2) Two Massachusetts women marry. One of them becomes pregnant. The couple split up, and the woman who bore the child moves to Connecticut. The other woman sues for visitation rights. What should the Connecticut courts do?

Again, not a new problem. Under Connecticut law, the other woman would probably not be a parent of the child (again, unless Connecticut courts just decide, as a matter of common law, and trumpable by the state legislature). So the question is whether she might still get rights based on her having helped rear the child -- precisely the issue that arises when Mother marries Stepfather, Stepfather helps raise the child for years (without formally adopting the child), Mother and Stepfather divorce, and Stepfather asks for custody. Some states recognize the "psychological parent" doctrine, under which such parents can get custody based on their close relationship with the child, on the (plausible) theory that such custody is in the best interests of the child, and that the child's best interests should be the guide. Other states don't. In any event, courts would presumably apply the same rules for same-sex couples as they do for opposite-sex couples where the petitioner isn't an official parent.

     Again, not a perfect situation for the same-sex couple, but no worse than if they couldn't get married at all. And it's not any worse for anyone else, or for the public policy of the state of Connecticut.

3) A Massachusetts man is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC's questions. May the SEC compel him to answer anyway?

Yes, absolutely. Under the Federal Rules of Evidence, the federal law of testimonial privileges governs in cases involving federal claims. Because of the federal Defense of Marriage Act, the federal law of testimonial privileges doesn't recognize same-sex marriages. Again, nothing terribly new here; federal courts routinely ignore state law of privileges, and apply the federal law of privileges, in cases involving federal claims.

4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?

No, because Texas law doesn't recognize the original marriage, so according to Texas law, the woman is unmarried. Again, no public policy of Texas is interfered with by Massachusetts' own decisions.

5) Two married Massachusetts men are vacationing in another state. One of them has a stroke. The hospital concludes he will never recover. Local law requires the hospital to ask the next of kin whether to continue treatment. Whom should it ask?

The state's courts might decide, especially if there's no state Defense of Marriage Act to the contrary, to respect Massachusetts law on this, on the theory that this better mirrors the parties' expectations, and that it's no skin off the state's nose (since the people were just vacationing there). But if the state legislature, or the state courts as a matter of state common law, want to insist on refusing to recognize any aspect of same-sex marriages, then they would be free to do so.

6) A Massachusetts man marries a foreign visitor to the United States. Should the foreigner be entitled to US residency?

No, because under the federal Defense of Marriage Act the federal government doesn't recognize same-sex marriages.

7) A Delaware family set up a trust for their son. The son moves to Massachusetts, marries a man, and then gets divorced. The trust is the son's only financial asset. Should the Massachusetts take the trust into account while dividing up the couple's possessions? If yes, what happens when the Delaware trustees refuse to comply?

I don't know enough about trusts law to give a firm answer. Still, two thoughts: (A) Under California community property law, as I understand it, the ex-husband generally wouldn't have a claim against the trust in any event, since the trust is the son's separate (pre-marriage) property; my guess is that though Massachusetts isn't a community property state, it would have a similar rule. (B) Otherwise, I suspect we'd have a similar situation to the one in item 1.

8) A Massachusetts woman married to another woman wins a lawsuit against a California corporation. She dies before she can collect her debt. Her closest blood relative demands that the corporation pay the relative, not the surviving spouse. Who should get the money?

Personal property, unlike real property, is generally governed by the law of the state where the owner died. Again, I'm not an expert on this, but I suspect that a money judgment will be treated as personal property, and would be owned by the woman's heirs (i.e., beneficiaries under intestate succession) or legatees (i.e., beneficiaries under a will) under Massachusetts law. In any case, I suspect that the law on this is pretty clear, because the matter already comes up in other cases, too. David Frum finishes:

If a couple gets married in Massachusetts and that marriage goes truly unrecognized by any entity outside the state -- well then the Massachusetts wedding ceremony is just a form of words, as meaningless as the illegal weddings now being performed in San Francisco. If you?re not married outside Massachusetts, then you are not really married inside Massachusetts either.

I ask these questions to drive home this point: Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.

Somehow I cannot imagine Andrew and those who think like him reconciling themselves to that outcome. I suspect that "letting the states decide" will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues. That is why it is necessary and proper to settle this issue on a national basis. And since the proponents of same-sex marriage have chosen 2004 as the year in which to bring matters to a head, they have no fair complaint if the opponents of same-sex marriage choose make their reply in that same year.

I don't think that's so. My predictions may not be entirely accurate, because as I said I am not an expert on the subject -- I'd welcome correction from any trusts, estates, or property lawyers who know this stuff better than I do.

     Still I suspect that the bottom line would remain the same: These problems aren't tremendously novel, hard to solve, or likely to cause undue burdens on other states who disapprove of same-sex marriage. There may be some litigation over them, though a lot less litigation in states that have Defense of Marriage Acts, which set forth clear rules against recognizing out-of-state marriages. And it would be a tiny fraction of the overall level of family-law/wills-and-trusts-law-related litigation that we endure all the time (litigation spawned chiefly by the institution of opposite-sex divorce, though also by the even older institution of family members fighting).

Thursday, May 06, 2004

 
[Eugene Volokh, 5/6/2004 10:36:41 PM]
"A Rather Fundamental Difference": Clayton Cramer responds well to the National Review Online article that argues:

Why are we shocked by these images from Abu Ghraib, but when the victims are women (or gay men) the images are called pornography or "adult entertainment"? Why can we easily see the violations of human beings in one set of images, but miss it in others? What if the Iraqi men had been forced to smile, could we be convinced that there was a newly formed "publishing and film production" company in Baghdad instead of sexual abuse and humiliation being perpetrated?

Cramer (no fan of constitutional protection for pornography) quite sensibly points out that there's a little difference of consent here. See his post for more details.

 
[Eugene Volokh, 5/6/2004 06:09:20 PM]
Remarkable arrogance, even for a politician: Clayton Cramer has the scoop. Chicago politicians about Chicago ordinary citizens: If they're afraid of crime, they aren't even allowed a handgun to defend yourself. Chicago politician about herself: If she's afraid of crime, she's "entitled to have a squad car parked outside her home on weekends because she was the victim of two recent burglaries."

 
[Eugene Volokh, 5/6/2004 05:28:02 PM]
My friend Jonathan Rauch fielding reader questions on gay marriage: An excellent online chat, on the Washington Post site. (Rauch is the author of Gay Marriage : Why It Is Good for Gays, Good for Straights, and Good for America. I've always very much liked reading Rauch's work, largely because he's thoughtful and sensible enough to acknowledge the strong points on the other side while still making eloquent and persuasive arguments on his own. In fact, his arguments are more persuasive precisely because he doesn't feel obligated to disagree with the other side on everything.

     He is right to acknowledge that "[gay marriage] redefines the boundaries of marriage. It's foolish to pretend otherwise. Marriage has been exclusively man-woman throughout 3000+ years of western civilization." If he is correct that "[t]here's a fair amount of research [on whether same-sex couples are likely to be as good parents as opposite-sex couples], but it's a long way from definitive" -- and I have no reason to doubt his knowledge on the subject -- then he is right to acknowledge this. He is also right, I think, to suggest that this matter should be resolved state by state, rather than by the federal courts. And I think that acknowledging these points makes his arguments in favor of allowing same-sex marriage even stronger.

 
[Eugene Volokh, 5/6/2004 04:58:19 PM]
Prisoner abuse and the Guantanamo / Padilla / Hamdi cases: A couple of readers e-mailed to suggest that the prisoner abuse scandal might influence the Court's judgment in the Guantanamo detainees case and the military detention cases (Padilla and Hamdi), because it might make the Court feel that the Executive Branch can't be trusted. I think it's certainly possible, but I doubt that it would happen, and here's why.

     I think that to the Justices the question in the Guantanamo, Padilla, and Hamdi cases is not whether detention of people who aren't really enemy soldiers or terrorists is bad -- most people agree that it is -- or whether abuses are likely to happen -- obviously they will. Rather, the question is whether the right solution (with an eye both towards correcting abuses and not unduly interfering with fighting a war) is to get the civilian judiciary involved in correcting the abuses.

     The government's argument in these cases is that the proper remedy for the abuses is through the political branches, and the military that they control. The military makes its decisions. The Defense Department and ultimately the President can review them. Congress can step in, through its investigative power, its funding power, and its legislative power. All these officials will be accountable to the public. And foreign governments can also step in on behalf of their citizens (as I understand they have been doing with regard to at least some of the Guantanamo detainees).

     This sort of supervisory process has in fact been the traditional means of preventing abuse and wrongful detention of enemy captives. The civilian courts, to my knowledge, have never gotten seriously involved in this process in the past. The government argues that they ought not get involved now.

     In this respect, the recent prisoner abuse scandal, shocking as it may be, in considerable measure supports the government's argument. The abuse was investigated by the military. The press got its hand on it. The Executive Branch seems to be willing to try to correct it, and the public and Congress seem to be pressuring the Executive to do so. Among other things, this is happening precisely because prisoner abuse is so broadly condemned, and seen as so unnecessary (at least in situations such as this one) to military success.

     So the traditional review process seems to be working. It's working far, far from perfectly, and certainly quite slowly. But I doubt that the Justices will think that it would have worked better had civilian courts gotten involved.

     Civilian judges would be understandably reluctant to try to subpoena people who are working in Iraqi prisons, or to bring detainees to the U.S. for court hearings, or to look through confidential military documents. The Justices know and if civilian judges would be too active, they may interfere too much with military effectiveness, especially since they know that if they intervene in the cases of genuine abuse they'll also be called to intervene in many times more cases of alleged abuse. And if they're too passive (or even if they're just active enough), they may actually deflect responsibility from traditional military investigations: They'll make it too easy for the Executive to make excuses such as "Sorry, we can't talk about it, there's litigation going on." Finally, remember just how painfully slow the civil justice process really is -- much slower than the military review process (for all its flaws) has been.

     So to the Justices, I think this will be a matter of comparative institutional effectiveness: The question wouldn't be whether the military / executive / congressional / public pressure remedies are perfect or even very good, but rather whether the Justices think adding the civilian judicial remedies would make things better. I suspect the Justices would say, even (or perhaps especially) in a case like this one -- or in the Guantanamo detentions, where the concern is chiefly detention of the wrong people rather than abuse of the detainees -- that it's better for the civilian courts to stay out. (My guess is also that even those Justices who endorse judicial control over the conditions of confinement in civilian prisons aren't terribly thrilled by the way that control process works. While they wouldn't abandon it, its track record isn't going to make them excited about extending the process into a zone where it has never been applied.)

     Similar considerations may well influence the Court in Padilla and Hamdi. Still, I think (as I've mentioned before) that there are some important distinctions that will likely lead the Court to assert more of a role at least in Padilla.

     There is a tradition of courts reviewing executive detention of U.S. citizens; and this tradition isn't just aimed at correcting injustice or inhumanity in individual cases, but at preserving American democracy by checking the government's power to suppress domestic dissent. That's why I think that in Padilla, the Court will indeed provide at least some civilian review of the military's decision that Padilla is indeed an enemy combatant. The Court wouldn't be willing to let the government detain an American citizen who is seized in America just because the government says he's a soldier for the enemy, since that rationale could be used to detain any dissenter. Some of the weaknesses of civilian review that I identify above will still be present. But, unlike in the Guantanamo case, there's more of a felt necessity (social protection of American democracy and not just protection of individual detainees) for civilian intervention, and more of a tradition supporting it.

     With Hamdi, who was caught on the battlefield, the Court might be willing to give the government free rein, since those circumstances do more strongly support the judgment that he's an enemy combatant -- and since they provide a limiting principle that would keep the detention power from becoming available as a tool for broadly suppressing domestic opposition. But in Padilla, I think the Court will think that adding an extra level of judicial review will indeed make things better. This is not because recent abuses of prisoners show that abuse can happen, since the Court has all along been fully aware that abuse can happen (one doesn't need graphic examples, especially from somewhat different contexts, to know that military detention of U.S. citizens can be quite dangerous). Rather, it's because the Justices are likely to think that in this situation civilian judicial participation is more necessary to stem abuse (since the abuse is potentially much more harmful), and more traditionally recognized as a necessary and effective means of stemming abuse.

     But who knows? As should be clear from the above discussion, the arguments are founded on pretty contestable empirical claims; I'm guessing that this is how the Justices will think, but I can't be at all sure. My track record in predicting the Justices' decisions is awfully weak; and perhaps some of the swing Justices might view things quite differently than how I predict. I guess we'll know in a couple of months.

 
[Eugene Volokh, 5/6/2004 04:26:16 PM]
Role-playing: Apropos the Berkeley "racist" role-playing incident, reader Bob Woolley writes:

A patient was once telling me about her recent visit to the ER. She waited a long time, then left without being seen. She was angry at the long wait. The hospital was in a part of town with a large population of Hmong immigrants. My patient said she was mad and left because she couldn't stand sitting in a waiting room full of "gooks."

I was completely taken aback, because this came out of nowhere. Although it didn't directly bear on the medical problem, it was a pertinent piece of information, because (1) it suggested that her problem wasn't terribly serious, if she could be dissuaded from seeking immediate help by such a petty concern, and (2) it told me worlds about her personality, her general level of anger at the world, etc.

I had no idea how to deal with this -- it was in my first year of practice. I wish that something like that had been the subject of a role-play during medical school.

But if it had been, would the instructor have been subject to recrimination for violating a racial harassment policy? More importantly, I wonder if such things were not role played because of an instructor's fear -- justified or not -- of such recriminations.

 
[Eugene Volokh, 5/6/2004 02:56:34 PM]
Prisoner abuse story: Thus Blogged Anderson points to Jacob's post on the subject, and says that "The indifference of the Conspiracy to the news from Abu Ghraib has been unsettling."

     I don't think that anyone ought to be unsettled by our silence about the story -- or to interpret it as indifference. I don't see my role as posting on every subject that comes up, or even on every subject on which I have a visceral opinion. I see my role as posting on those subjects on which I have something original or at least helpful to add. Having nothing new to add here (which should be unsurprising, since this isn't really my core field), I said nearly nothing (when InstaPundit first blogged something quite good about it, I did post something endorsing Glenn's views).

     I suspect that my cobloggers take a similar view. And it seems to be a sensible way to give our readers maximum value for the time that they invest in reading our site.

UPDATE: Josh Chafetz at OxBlog makes a similar point: "We don't aim to be a comprehensive source of news or commentary (and God help you if you use OxBlog that way), so I don't really feel any need to issue pro forma denunciations of things that lots of other people are doing perfectly good jobs denouncing."

 
[Tyler Cowen, 5/6/2004 12:18:36 PM]
New law and economics journal: Andrew Chamberlain writes:

"Todd J. Zywicki of GMU’s School of Law (on leave) announces the launch of a new journal, the Journal of Law, Economics, and Policy. From the email release:

"We are pleased to announce that George Mason University School of Law is launching a new law journal, the Journal of Law, Economics, and Policy. JLEP is both student-edited and peer-reviewed, which will ensure that published articles are of the highest quality. Our goal is to provide interesting, creative, and thought-provoking articles on law and economics in two annual issues. One issue each year is devoted to specialized symposia, and the second is a peer-reviewed compendium of articles submitted by individual authors.

Our focus is on the legal side of law and economics, an approach that we hope will de-emphasize technical mathematics, while providing our readers greater access to economic insights about legal and policy issues.

Please address submissions, questions, and comments to [email protected].

Looks promising. The board of advisors is packed with scholars like Lisa Bernstein, James Buchanan, Guido Calabresi, Robert Ellickson, Richard A. Epstein, Richard Posner, Gordon Tullock, and many others.""

I know Todd well, and I am sure this will be an excellent product.

 
[Jacob Levy, 5/6/2004 06:22:21 AM]
A sorry state of affairs: What on earth is this?

President Bush on Wednesday chastised his defense secretary, Donald H. Rumsfeld, for Mr. Rumsfeld's handling of a scandal over the American abuse of Iraqis held at a notorious prison in Baghdad, White House officials said. The disclosures by the White House officials, under authorization from Mr. Bush, were an extraordinary display of finger-pointing in an administration led by a man who puts a high premium on order and loyalty. The officials said the president had expressed his displeasure to Mr. Rumsfeld in an Oval Office meeting because of Mr. Rumsfeld's failure to tell Mr. Bush about photographs of the abuse, which have enraged the Arab world.

If Bush genuinely thinks Rumsfeld failed him and failed to fulfill his own responsibilities, then surely the time has finally come to demand Rumsfeld's resignation. If not, then an authorized public humiliation is unjustified. This looks like Bush attempting to deflect responsbility away from himself-- "The buck stops with that guy"-- while simultaneously refusing to demand that Rumsfeld take responsibility. It's petulant and childish.

As Chris Strohm notes, my piece on responsibility and apologies was written before news about Abu Ghraib became public. It included the following:

he White House has lost credibility in Iraq as well as with the American public about its seriousness in the project of stabilizing the occupied country. That loss of credibility is now spiraling. Iraqis don't want to work with, be seen to support, or stake their futures on the success of the American project. And their unwillingness to commit makes our project more difficult every day. The U.S. needs to reverse that spiral. And it can't do so with mere words, because no one believes our words anymore. An announcement of a big increase in troop deployment accompanied by Rumsfeld's resignation letter might start the process of convincing Iraqis that the U.S. really doesn't mean to cut and run. Of course, that would violate the administration's no-accountability policy for its officials.

Even so I've been astonished at the (morally and politically) botched job that has been done of responding to Abu Ghraib. (See Spencer Ackerman, Fred Kaplan, and the Chris Strohm story linked to above.) The President's non-apology yesterday, and the non-responsible attribution of responsibility to Rumsfeld today, are amazing and appalling.

WHatever credibility Rumsfeld had left has now been fatally undermined. It's time to demand that he take responsibility and resign; he can no longer do his job anyways. The failure of the White House to understand that seems to be tied to a sense that, while Bush can judge Rumsfeld, no one else has any business doing so. Utterly obtuse.

Wednesday, May 05, 2004

 
[Eugene Volokh, 5/5/2004 10:44:06 PM]
Some thoughts about the UC Berkeley law school (Boalt Hall) incident, assuming my correspondent's account is correct:

1. As I mentioned earlier, I'm quite troubled by the administration's statement that:

   [T]he handbook that we will provide to Lecturers when we hire them to teach a course . . . will make our policy on this issue clear. We will not tolerate an instructor's use of racist, sexist or homophobic expressions in the classroom.

   If the vague phrase "racist, sexist or homophobic expressions" is defined as anything beyond slurs or utterly irrelevant asides, I mentioned, such a prohibition could seriously interfere with free and open class discussion. And if the speech here -- the speech that is prompting the policy -- is an example of the kind of "racist . . . expressions" that they're trying to suppress, then my fears seem in danger of being realized.
   
        How can one, for instance, have a thorough policy discussion in an immigration law class if people are barred from saying that "illegal Mexican immigrant labor" is "inferior"? Maybe it is inferior, and maybe it isn't. Maybe it's no worse than illegal immigrant labor from any other country, or maybe it is worse. Maybe America would be better off with more immigration, or less immigration, or more immigration from European countries and less from Mexico. Maybe we should allow immigration without regard to whether it makes us better off, or without regard to the country from which the people are arriving. I don't know the right answer to this. But I do know that just prohibiting any discussion of the possibility that illegal immigrant labor is inferior, or that illegal immigration from some countries is worse than illegal immigration from other countries, makes it impossible to have a serious debate on the matter. (And of course if the remark is a "racist . . . expression[]" that "will not [be] tolerate[d]" in negotiation class, it would be no less a prohibited "racist expression" in the immigration law class.)



2. But beyond this, it sounds like the teacher was role-playing -- expressing the views of a hypothetical difficult client, and not her own. That's not racist conduct, any more than a professor's hypothetical "Imagine that John Doe calls someone a kike -- is that constitutionally unprotected fighting words?" is anti-Semitic. It could be eminently valuable pedagogy, for instance to teach students how to keep their cool when dealing with such comments, or just to remind students that many clients won't be operating under the social conventions of UC Berkeley.
   
        It could also have been a misfire, with students not getting the message, in which case the teacher should have clarified matters for the students when it became clear that the students didn't get it. Getting students angry is usually not good pedagogy, which is why when there's a risk of students getting angry, even because of a misunderstanding, a good teacher should watch carefully for signals that the students indeed misunderstood. But in any event, I see no evidence of any racism on the teacher's part. At most, there might have been a lapse of attention, for which the solution is an explanation to the students and some advice to the teacher, not public characterization of this as "a guest lecturer [making] racist remarks during a class," a statement that, even if technically true (which is unclear), is at the very least highly misleading without the context that this was a lecturer playing a character.



3. Finally, as I understand it from other sources at the law school, the details of the incident are apparently not being made clear to students (or at least weren't as of yesterday); all that many students know for sure about the incident is what the administration e-mail reported. So if my correspondent is right, the administration's actions portray a law school instructor as being racist even though that isn't so. That's hardly fair to the instructor, whose identity has likely leaked out, but it's also not good for minority students. If the administration's goal is to make "Boalt . . . be a place where all people feel themselves to be a part of the community," then exaggerated accounts that allege racism where there is none undermine the administration's own goals. So for the sake of transparency, for the sake of clarifying the impetus behind a proposed speech code, and for the sake of preventing minority students from feeling needlessly embattled, it seems to me that the administration should be disclosing the details of the incident, not withholding them.

     Again, I stress that this is based on one correspondent's account (though it matches in considerable measure information that I heard indirectly from a couple of other sources), and if that account is incorrect and incomplete, then some of these criticisms might not apply. But if it is substantially correct, then the UC Berkeley law school's reactions seem rather misguided, and their proposed speech code seems to pose a serious danger to academic freedom and quality higher education.

 
[Eugene Volokh, 5/5/2004 09:07:54 PM]
First-hand account of allegedly "racist" UC Berkeley law school incident: This is the incident that has led the law school administration to promise a new speech code for lecturers. Paul Nunez, a law student, provides a first-hand account:

A friend of mine . . . told me that you were looking for someone with a first-hand account of the supposed utterance of a "racist" comment during a class at Boalt. Well, I happened to have witnessed the event first-hand and in fact, the instructor was specifically speaking to me when she made the comment. So I'd say I probably have the best possible understanding of the context of the comment. Here's what happened:

It was NOT the sort of useless racism that one hears from people like neo-nazis and some of the more radical members of Mecha. The class was, in large part, supposed to be a role-playing sort of class whereby we, acting as attorneys, would have to learn to deal with clients and opposing parties (played by the instructors) while trying to formulate and execute a strategy for dealing with the client's problem. One of the things we had to learn to deal with were crabby, irritable, and imperfect clients. Thus, during one role-playing scenario (in fact, she made the supposedly racist comment while role-playing a negotiation with me in particular), our instructor, acting as the no-nonsense CFO of a small mid-western construction company, commented on the high quality of the company's product by saying that they didn't employ inferior illegal Mexican immigrant labor. That was it. Seriously. . . .

If anyone else has a different recollection of this -- or the same one -- please pass it along.

 
[Eugene Volokh, 5/5/2004 06:15:51 PM]
Who are those zany conspirators, and how did they get here? I realize that many Conspiracy blog readers are new, and weren't around as most of the conspirators joined up. Let me then briefly mention a bit about each of the conspirators (plus those who are off the blog due to government service) and how we came to be blogging together. Here's the list in rough chronological order.

     Former (but I hope only temporarily former) conspirator Sasha and I met through our parents. He worked for several years as a think-tanker, for the Competitive Enterprise Institute and the Reason Foundation, and is just about to finish up a 6-year J.D./Ph.D. (economics) program at Harvard, and to start clerking for my former boss, Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit).

     Michelle Boardman is a lawprof at George Mason University School of Law; I met her back in the mid-1990s, when she was externing for Kozinski during law school (she went on to clerk after law school for Judge Frank Easterbrook). Her superpower (I set aside her being the best-looking of the Conspirators, since that's a very low bar, though she exceeds it by a very great margin): She actually enjoys insurance law.

     Former (but again I hope only temporarily former) conspirator Todd Zywicki also externed for Kozinski, though a few years before I clerked. He's also a lawprof at George Mason, specializing mostly in bankruptcy law but also other stuff, but is now on leave directing the Federal Trade Commission's Office of Policy Planning.

     Juan Non-Volokh and Philippe de Croy are international persons of mystery. The only thing I reveal about them is that neither of them is a pseudonym for any of the other cobloggers.

     Erik Jaffe is a solo appellate lawyer in D.C., and a former clerk for Judge Douglas Ginsburg and, several years later, Justice Thomas. I met him back in 1994, through my friend Rob Wick, who had clerked for Judge Reinhardt when I was clerking for Judge Kozinski.

     Former (but yet again I hope only temporarily former) conspirator Orin Kerr worked for three years as a federal computer crime prosecutor, then taught at George Washington University Law School, where he specialized in criminal law and cyberspace law, among other things. He's now on leave from GW, clerking for Justice Kennedy. I have no recollection exactly how I met him -- it was one of the multiply intersecting D.C. Lawyer Cliques that I hang out with. In any case, I've known him for years.

     David Post is a lawprof at Temple University Law School, where he specializes in cyberspace law. He's a former anthropology professor who then went to law school, clerked for then-Judge Ruth Bader Ginsburg, worked for several years as a lawyer, and then clerked for Justice Ginsburg when she was elevated -- I met him when we were both clerking at the Court.

     David Bernstein is yet another George Mason lawprof, who writes about free speech law, equal protection law, civil rights laws, torts, evidence, and lots of other things. I forget where we met, but it must have been through the Very Small Libertarian Lawprof Conspiracy; I've known him for about eight years, I suspect. I've always liked his work, and when I saw that he started blogging, I invited him to be assimilated to the borg -- er, blog.

     I have never met Jacob Levy, who's a political science professor at Chicago; I don't think we've ever even talked on the phone. But I thought his blog was great, and also invited him to join us.

     Randy Barnett is a lawprof at Boston University School of Law, and I think one of the two leading libertarian constitutional law scholars in the country (Richard Epstein is the other). I know him much the same way I know David.

     Russell Korobkin is a colleague of mine at UCLA; his main specialties are negotiation and law and behavioral science. Probably the furthest left Conspirator, which probably puts him pretty much in the middle of the American road.

     Tyler Cowen teaches economics at George Mason; he specializes in cultural economics, and also in eating tasty ethnic food. I took great advantage of his ethnic dining guide when I was visiting Mason in Fall 2001. I know him through Michelle, with whom he's close friends. Special bonus: He's married to a Russian woman, which I heartily approve of, because we Russkies need love too.

     Stuart Benjamin is a lawprof at Duke, where he does mostly free speech law and communications law. He clerked for Justice Souter a while ago, but I think I met him at an American Association of Law Schools conference several years back. His superpower, which I much envy: He can eat an utterly amazing amount and not gain a pound.

     Benjamin Volokh is the smartest one of the lot, and too smart to waste his time posting much just now.

 
[Eugene Volokh, 5/5/2004 05:43:15 PM]
But, in hexadecimal, Jacob is only 21!

 
[Jacob Levy, 5/5/2004 04:28:24 PM]
The geekiest thing I care to admit to this week: I turned 33 yesterday. I've been moderately grouchy about it for some time now-- grouchy as the birthday approached, grouchy as it actually descended upon me.

The first thing to genuinely cheer me up was the realization that, in hobbit years, I have only just now "come of age."

UPDATE: I leave it to the reader to decide whether Eugene's comment immediately above is geekier than my original post...

 
[Eugene Volokh, 5/5/2004 03:24:06 PM]
Europe or Asia? Apropos my question about this a few days ago, reader Jesse Lansner writes:

There's a pretty good explanation on the historical boundaries between Europe, Asia and Africa [here]. The original distinction came from the Greeks, who gave names to the regions base on their direction from Greece (Europe to the north, Asia to the East and Africa to the South). I don't think Greek knowledge of the world ever reached the point that they had to draw a line between Europe and Asia. There's never been any need for people to agree on a boundary between Europe and Asia, and there is no official body that I know of that can settle the issue.

However, the Ural Mountains are generally accepted a border, as are the Bosporus and Dardanelles. The undefined border is between the southern end of the Urals and the Black Sea. I've found a number of references to the Caucasus Mountains as a dividing line, although none clarify exactly where the line is drawn or which countries fall into which continent. Most people would consider Kazakhstan to be wholly in Asia, which means the dividing line starts with the Urals, curves along the Russia/Kazakhstan border (which appears to be a fairly arbitrary line, although it occasionally follows some natural boundaries) to the Caspian Sea, and then cuts across the Caucasus (possibly along the Russian border, but maybe along the Turkish border) to the Black Sea, and through there to the Bosporus. All the Greek Islands are in Europe, despite the fact that many of them are much closer to the Asian part of Turkey than they are to anything else in Europe.

The U.S. government would seem to agree with this to some extent, as the CIA World Factbook puts Georgia, Armenia and Azerbaijan in Southwestern Asia and Kazakhstan in Central Asia. On the other hand, the Council of Europe includes Georgia, Armenia and Azerbaijan.

I'm not sure how the UN's regional groups break down, but both the UN Economic Commission for Europe and the UN Economic and Social Commission for Asia and the Pacific include all four nations -- plus Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. . . .

None of this solves the problem of where the European Union should end. Wherever the line is, Cyprus should be in Asia but it's now part of the European Union. Likewise, most of Turkey is in Asia, but almost nobody is the EU has suggested rejecting Turkey outright.

Nor should it solve the problem, of course: The EU will naturally decide its proper scope based on politics and economics, not theoretical geographical lines.

 
[Eugene Volokh, 5/5/2004 03:21:14 PM]
"Fools for Communism: Still apologists after all those years" -- a review essay in Reason discusses and condemns modern historians who are trying to whitewash Communist history. I don't know the field enough to have a truly informed opinion, but I can say that the essay is eminently readable, and seems thoughtful and incisive.

 
[Eugene Volokh, 5/5/2004 01:30:12 PM]
Conditions on foundation grants to universities: According to yesterday's Wall Street Journal (sorry, I don't have a link that provides free access to this piece),

Nine elite universities . . . -- Harvard, Yale, Princeton, Cornell, Columbia, Stanford, the University of Pennsylvania, Massachusetts Institute of Technology and the University of Chicago -- are challenging antiterrorism language that the Ford and Rockefeller foundations recently added to their standard grant agreements.

The Ford Foundation's new provision states that the foundation would withdraw its funding if any of a university's expenditures promoted "violence, terrorism, bigotry or the destruction of any state," no matter what the source of the funds. Rockefeller's language states that a grantee shall not "directly or indirectly engage in, promote or support other organizations or individuals who engage in or promote terrorist activity." . . .

Ford adopted its language following an investigative series last fall by the Jewish Telegraphic Agency, an international news service in New York. The series revealed that Ford funded a number of Palestinian groups that had orchestrated anti-Israel resolutions and activities at a United Nations conference in Durban, South Africa, in 2001. The U.S. delegation walked out of that conference in protest.

In response to the series, Ford acknowledged that grantees "may have taken part in unacceptable behavior in Durban" and terminated its support for one organization, the Palestinian Society for the Protection of Human Rights, to which it had given $1.3 million between 1997 and 2001. . . .

Jewish leaders who advised Ford on its new policy criticized the [university] provosts' stance. David Harris, executive director of the American Jewish Committee, said the language is "eminently reasonable. I would like to think that with or without Ford's language, America's universities would not in any way want to associate themselves with the promotion of violence, terrorism or bigotry." . . .

     Foundations are certainly entirely free to attach whatever strings they like to their grants. At the same time, universities are right to be cautious about such strings, especially if they're so broad. I'm all in favor of destruction of certain states -- I think that North Korea should be destroyed as a political entity, and probably (if the South Koreans don't mind, though I'm not sure they'd really like it) merged into a democratic united Korea. I'm delighted that the Soviet Union has been destroyed. I support many kinds of violence -- defensive violence, violence in a just war, and the like -- and think universities ought to have speakers and programs where this view is endorsed. As to "bigotry," I guess it all depends on how you define it.

     I'm not sure what the proper reaction for universities would be. One possibility might be to accept grants that have the strings, so long as the strings don't affect the university's ability to spend its own money on those things that the grant doesn't cover: The university might then fund a conference on what to do in the Far East by spending Ford money on everything but the speaker who thinks the state of North Korea should be destroyed as a political entity, and then use its own money to fund that other speaker. Another possibility might be to point out to the foundations that the language they're proposing is likely broader than what the foundations themselves should want.

 
[Jacob Levy, 5/5/2004 12:42:17 PM]
Guernsey continued: During a dispute over Parliament's authority to legislate over Guernsey and Jersey, it was once asserted that the islands "had as good, if not a better right, originally to legislate for Great Britatin then, than Great Britain had to legislate for them." (Hansard'sv:629, 1805, cited in Charles Howard McIlwain, The American Revolution: A Constitutional Interpretation, p. 85.)

As Guernsey is legally continuous with the Duchy of Normandy of which it was once a part, and as the Duchy of Normandy conquered England (not the other way around) in 1066, the Channel Islanders suggested that perhaps they ought to be in charge. In any event, it was found that they are attached directly to the monarch as the heir of the Duke of Normandy, and were never assimilated into the Duke's new lands on the far side of the Channel. They remain "crown dependencies;" they are among the "other realms and territories" referred to in the royal title:

“Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.”

I think that I once saw a reference to a claim that Islanders referred to the British monarch as Duke or Duchess rather than King or Queen, because it is in his or her role as Duke/Duchess of Normandy that he or she rules them; but I haven't been able to remember where I saw that, and might have imagined it.

But I've always loved the image of the Guernseyan advocate standing in the House of Lords and asserting that Guernsey had better right to rule England than the other way around...

 
[Eugene Volokh, 5/5/2004 12:18:25 PM]
"Guernsey, it's not just for cows": Reader and fellow lawprof James Leonard writes:

While you were proceeding to decry free speech violations at GSU (a worthy endeavor), I investigated the more pressing issue of the status of the Channel Islands. It turns out the that the Bailiwick of Guernsery is a remnant of the Duchy of Normandy and consists of Guernsey itself, plus the islands of Alderney, Herm, Sark (and a few others).

By far, Sark has the coolest laws. An example from their website:

Clameur de Haro: Under Norman custom a person can obtain immediate cessation of any action he considers to be an infringement of his rights. At the scene he must, in front of witnesses, recite the Lord's prayer in French and cry out "Haro, Haro, Haro! A mon aide mon Prince, on me fait tort!" The Clameur must be registered at the Greffe Office, and a deposit (£7.50) made. All actions must cease until the matter is heard by the Court and if, after investigation, the complaint is disallowed, the deposit is forfeited, and the complainant can be liable to a claim for damages.

Now, if only fraternity brothers could speak Norman French . . . .

 
[Eugene Volokh, 5/5/2004 11:53:13 AM]
More speech suppression at Georgia State: After unconstitutionally punishing a fraternity for allowing blackface at one of its parties -- expressive conduct that is protected by the First Amendment, see Iota Xi v. George Mason Univ. (4th Cir. 1993) -- GSU seems to be unconstitutionally punishing the fraternity's critics:

Georgia State University suspended a black student organization Thursday after finding it [discriminatorily] harassed a member of a fraternity that had hosted a party where two students appeared in blackface.

The Black Student Alliance, an umbrella organization of black student groups, also violated university policy by distributing an intentionally misleading flier on campus that told students about the party, the university found.

The blackface incident at a party thrown by the nearly all-white Pi Kappa Alpha chapter spurred campus protests and public forums at one of Georgia's most diverse state universities. Almost one-third of the 28,000 students at Georgia State are African-American.

At one of those forums, an African-American student who is a member of Pi Kappa Alpha said he was called derogatory names by members of the Black Student Alliance. The student, Rick Burt, later filed a complaint saying the alliance fliers had depicted his fraternity as racist, stirred up outrage, and subjected him to harassment. . . . The senior, who said he is the only black active member of his fraternity, said he was called a "Sambo" and an "Uncle Tom."

The fliers included a photo taken from the Internet, reportedly of students from another university, in blackface and white hooded robes. It read: "Happy Black History Month from your Friends of Pi Kappa Alpha." . . .

The Black Student Alliance will be suspended through Dec. 19. . . . Its members must perform at least 200 hours of community service, and its executive leaders have to complete a diversity education program.

Last week, the university suspended the fraternity Pi Kappa Alpha through Dec. 19 for the blackface incident. . . . [Pi Kappa Alpha] has to participate in community service and apologize in writing to the predominantly African-American fraternity Phi Beta Sigma, which filed the complaint about the party.

     A university may punish groups for knowingly false statements (just as the government may generally punish people for such statements), but the punishment for merely "misleading" speech strikes me as quite troubling, especially if the fliers were likely to be seen as hyperbole rather than a factual allegation that PKA actually wore blackface and white hooded robes (see Hustler v. Falwell). If a university thinks statements are actually knowingly false, and likely to be perceived by readers as factual allegations, then it should punish the group on those grounds. Attempts to suppress "misleading" speech are much more troublesome, given how vague the term "misleading" is, and how much speech is claimed to by misleading by those who disagree with it.

     Likewise, while I think that calling people racial insults is contemptible, it seems to me that the black students are entitled to remonstrate, even in contemptible ways, with fellow blacks whom they see (however misguidedly) as being insufficiently loyal to their race. If Burt was physically threatened with harm, the matter would be different; but the story suggests the accusation was simply of name-calling, not of threats.

     Of course, this is also an illustration of a broader point: It is not in the interest of minorities for the authorities to get more power to suppress speech. Even if the power is at first used in a way that seems to be in the minorities' interest (for instance, to suppress supposedly racist speech by whites), it's very likely that it will ultimately be turned against the minorities, probably even more often than against the majority.

     Free speech has been an important tool -- quite likely the most important tool -- that nonwhites, women, and homosexuals have used in the civil rights, women's rights, and gay rights movements. It's both a moral mistake and a pragmatic mistake for leaders of those groups to now turn against free speech, and try to erode its protections.

 
[Eugene Volokh, 5/5/2004 11:09:23 AM]
Not my bailiwick: The official name of Guernsey, in the Channel Islands, is the Bailiwick of Guernsey.

 
[Eugene Volokh, 5/5/2004 10:03:11 AM]
Pennsylvania legislator apparently endorses conspiracy nut Lyndon LaRouche: From an opinion piece in the Philadelphia Inquirer,

State Rep. Harold James (D., Phila.) does not appear to be the kind of guy who would believe that the world is secretly governed by a conspiracy of Zionist bankers and the Queen of England. But he has chosen to back a crowd that does. And that raises questions about James' judgment. He has endorsed Lyndon LaRouche for president of the United States. . . .

When I asked James about supporting LaRouche, he acknowledged that he "doesn't consider him to be a mainstream Democrat."

LaRouche is a conspiracy theorist of the first magnitude. Though it's difficult to condense his beliefs into a coherent whole, suffice it to say that he believes that Jewish bankers, in conjunction with England's royal family, run the world with money from drug cartels. He also is a felon, having spent five years in federal prison for securities fraud and income tax evasion.

James indicated that he chose to endorse LaRouche to "send a message" and to "address the concerns of African American voters." He believes that the Democratic Party, whether regarding minority voters or labor, "has been taking our votes for granted."

In the fall, James will not back LaRouche. He said his goal was to get LaRouche delegates elected to the Democratic National Convention in Boston this summer. Then, he'll support John Kerry in the fall.

James insisted that he would not be "lining up with someone racist and anti-Semitic." Of allegations that LaRouche is both, he said, "People tend to want to discredit you because you are outspoken." . . .

More from the article's author here. Rep. James's response here, where he (1) plays the race card, and (2) makes clear that he does like LaRouche:

I find the tone of Sommers' commentary to be quite offensive, if not racist. Am I, as an African-American man and political leader, supposed to be too ignorant or uninformed to see through the many lies and slanders that have been circulated about LaRouche?

 
[Eugene Volokh, 5/5/2004 09:49:51 AM]
More on interracial marriage: Reader Mostafa Sabet points out a possible partial explanation for the data about black men marrying white women more often than black women marry white men, and Asian women marrying white men more often than Asian men marry white women: Women tend to prefer men who are taller than they are; blacks are on average taller than whites, who tend to be taller than Asians; that alone will cause at least some disparity of the sort that we observe (though of course it's impossible to tell without more research how much of the disparity it causes).

     I couldn't get statistics on average American height by race -- if any of you have any pointers to real data on this, I'd love to see them. But my sense is that indeed blacks are on average taller than whites, who are taller than Asians.

UPDATE: Hmm; reader David Bitkower points to the data available via this page, which suggests that American black men may be on average a little bit shorter than American white men. If that's so, then that of course undermines the theory mentioned above as to blacks and whites.

 
[Eugene Volokh, 5/5/2004 09:35:54 AM]
Terminology: The San Francisco Chronicle reports:

The woman who has accused Kobe Bryant of sexual assault should be referred to in court by her name or as "the complaining witness," because calling her "the victim" implies the NBA star is guilty, his lawyers said in a court filing released Tuesday.

Judge Terry Ruckriegle gave prosecutors five days to respond.

State sexual assault law uses "victim" to describe a person who was allegedly attacked, but defense attorney Hal Haddon said that does not require judges or prosecutors to use the term.

"In a sexual assault case where the defendant asserts consent, the core dispute is whether a crime occurred at all, and therefore whether the complaining witness is a 'victim' or not," Haddon said.

Bryant, 25, says he had consensual sex with the woman at the Vail-area resort where she worked. . . .

Seems sensible to me; I think the legal system should be very harsh to sex offenders, but when the question is whether someone is a sex offender -- and whether an offense has even taken place -- prosecutors and especially judges shouldn't use in front of the jury terms that prejudge the question. Thanks to Dan Gifford for the pointer.

Tuesday, May 04, 2004

 
[Eugene Volokh, 5/4/2004 05:03:52 PM]
Incoming student newspaper editor accused of anti-Semitic comments on Web diary: The Las Vegas Review-Journal reports:

More than 100 petitioners are seeking the removal of the incoming editor of UNLV’s student newspaper, alleging he posted anti-Semitic comments on a Web diary last year. . . . [The editor, Justin Chomintra] apologized to anyone he offended, but he maintained the statements published on his Web log, a kind of diary accessible to the public, were not anti-Semitic.

“I was venting,” he said. “I use strong rhetoric. I understand how some people could have been sensitive to the language, but I never, never, never intended to be anti-Semitic. It was completely personal.” . . .

     The abstract question of when a newspaper editor-in-chief should be rejected because of his outside comments is complex. The editor-in-chief is in many respects the public face of the newspaper, and his public image and the quality of his judgment may well be legitimate bases for selecting him. What troubles me, though, is the labeling of his statements as anti-Semitic; it's far from clear to me that at least those statements that the newspaper quotes are indeed anti-Semitic:

The comments that prompted the request were published by Chomintra on a personal Web page in September about a former girlfriend.

In his comments, which were included as part of the petition, Chomintra said "being Jewish isn't what you are, it's who you are. . . . It doesn't determine anything. And if it does determine how you shape your life you're a sad, pathetic, weak organism."

He also criticized a Jewish student for "not wanting Jews to associate or date non-Jews," and for "blindly celebrating being Jewish." . . .

The comments also included several obscene words. . . .

Likewise, here's what the petition, which I assume includes the worst of Chomintra's statements, focuses on:

September 8th, 2003
"He no better than Hitler for thinking jews are anything less or more than anyone else. Burn in hell, you fucking ignorant pussy...being Jewish isn't what you are it's who you are, you stupid motherfucker. It doesn't determine anything. And if it does determine how you shape your life you're a sad, pathetic, weak organism. Forger your own identity and value system and stop being such a parasitic, spineless pussy"

September 9th, 2003
"The last post was completely and utterly how I feel. I don't regret or take back anything...but I'm not sorry for voicing my opinion...Fuck those Fuckers"

     It seems to me perfectly proper to condemn ethnic groups -- Jews or not -- for being too focused on their ethnicity, and even for discriminating (albeit in perfectly legal ways) in their social and romantic decisions. Of course, if Chomintra condemns only Jews for that but thinks that it's just fine when other groups do that, that seems an anti-Semitic double standard; and if his point was that "you're a sad, pathetic, weak organism" if being Jewish "determine[s] how you shape your life," but you're just fine if being Irish or Hispanic shapes your life, that too suggests hostility to Jews. But absent such evidence, this seems to be a slam against perceived excessive focus on one's ethnic identity, not an expression of hatred or hostility to Jews as such. In fact, Chomintra equally condemns (though rather less politely than I would have preferred) people who think that Jews are "anything less or anything more than anyone else" (emphasis mine) -- more consistent with "people shouldn't care about ethnic identity" than "Jews are evil."

     One can of course disagree with Chomintra on the merits, and conclude that it's right for people to be focused on their ethnic identity (or in the case of some but not all Jews who focus a great deal on their Jewishness, on their religious identity). And it does sound like Chomintra put things a bit too pugnaciously, though remember that this is a Web diary of a college student, and that Chomintra is being faulted for the viewpoint he supposedly expressed, and not on the grounds that someone who is so willing to stoop to insult and vulgarity (even in Weblogs) is likely to be a bad editor-in-chief.

     Still, absent more evidence, I'd be quite hesitant to simply condemn this as anti-Semitism, "highly discriminatory" (in the words of the local Hillel president), "blatantly hateful" (in the words of another critic), or "hate speech" (in the words of the petition). And I'm rather troubled that such condemnation is taking place.

UPDATE: A correspondent asked me: If Chomintra wasn't anti-Semitic, why did he say these things about Jews specifically? (As I said above, if Chomintra is outraged by what he sees as Jewish tribalism, but has no problem with similar actions on the part of other groups, he can indeed be accused of special hostility to Jews -- we have no evidence of what he thinks of people of other groups who focus a great deal on their ethnicity, but absent such evidence it would be good to have some sense of his motive.)

     It's hard to tell without seeing more of the context, but Rkayn Knowledge has a sensible conjecture, which is consistent with other snippets in the Review-Journal story:

1. He was dating a Jewish girl.
2. She broke up with him.
3. He believed (rightly or wrongly) that this was due to his not being Jewish.
4. He also believed that a friend of hers had talked her into the break-up, also on the grounds of his not being Jewish.

That would explain why (1) he's annoyed at what he sees as some Jews' excessive focus on Jewishness, and (2) he's saying this about Jews and not about other groups. It's also, as Rkayn Knowledge points out, not consistent with anti-Semitism, but is consistent with thinking that it's wrong to "think[] jews are anything less or more than anyone else." (Rkayn has more.)

     But this is sheer speculation, of course, though consistent with the facts. If others have further actual evidence about this incident, I'd love to hear it.

 
[Eugene Volokh, 5/4/2004 04:47:26 PM]
"Armed and Fabulous": More about the Pink Pistols (who draw their name from a column by my friend Jonathan Rauch), "the first national gun club for the gay, lesbian, bisexual, and transgendered community."

 
[Eugene Volokh, 5/4/2004 03:59:25 PM]
Interesting statistics about interracial marriages: Michael Williams has them, quoting a UPI story from last year:

African-American men had white wives 2.65 times more often than black women had white husbands. In other words, in 73 percent of black-white couples, the husband was black. For every 1,000 black women who were married, there were 1,059 black married men.

Asian women had white husbands 3.08 times more often than Asian men had white wives. That means just over 75 percent of white-Asian couples featured a white husband and Asian wife. For every 1,000 Asian women with husbands, only 860 Asian men had wives.

I haven't checked myself whether the story is accurate, but if it is, it seems noteworthy.

 
[Eugene Volokh, 5/4/2004 03:49:32 PM]
Blogroll: I had yet another Blogger glitch yesterday, and had to recover my template; unfortunately, some people were unintentionally lost from the blogroll. We'll probably be switching to new blogging software within a week or so, and the blogroll will be fixed then.

 
[Eugene Volokh, 5/4/2004 01:40:11 PM]
Bobble-heads: A few doctrinal items about Schwarzenegger and bobble-heads:

1. Contrary to what some have said, Schwarzenegger's claim isn't a federal copyright claim; it's a state law "right of publicity" claim. Copyright law protects people's creative expression, such as their writings, recordings, and the like. Right of publicity law protects their names and likenesses, at least against certain uses (which likely do include bobble-heads, though I think the First Amendment should preempt that sort of claim).



2. Generally speaking, all people have a right of publicity -- private people, famous actors, sports figures, and others, and government officials. (Private people's names and likenesses are used more rarely than those of famous people, but the private people do have a legal right to control such use.) Schwarzenegger did not forfeit his right of publicity simply because he was elected Governor. In practice, few government officials have threatened to sue on these grounds, perhaps because they think it would be bad publicity. (Jesse Ventura, though, apparently threatened to sue some makers of Ventura action figures after he became governor, but that's the only such incident of which I am aware.) But they are legally entitled to sue. I think (for reasons I mentioned in my original post) that the right of publicity is a bad idea genearlly; I do not suggest that the rule should be different for government officials, political leaders who aren't government officials (such as Martin Luther King, Jr.), and movie stars.

I hope to blog some more about the broader policy reasons for my dislike of the right of publicity; but for now I thought I'd mention the doctrinal points.

 
[Juan Non-Volokh, 5/4/2004 12:11:54 PM]
Gorelick Must Go (Now More than Ever): The disclosures about 9/11 Commissioner Jamie Gorelick's role in policy decisions to maintain, if not erect, the "wall" between domestic law enforcement and anti-terror efforts continue. As reported last week in the Washington Times and noted yesterday by the WSJ editorial page, newly released memos suggest Gorelick played a key role in maintaining limitations on the ability of U.S. Attorney's offices to communicate with the FBI -- limitations that, according to one memo by U.S. Attorney Mary Jo White, were "not legally required."

As I have posted before (see also here), the issue is not whether Ms. Gorelick made reasonable decisions as a Justice Department official. I have no interest in seeing the 9/11 Commission's work devolve into partisan finger-pointing about which administration is most at fault. Many people, in multiple administrations, made decisions that -- it can be seen in hindsight -- were in error. These people should be testifying before the 9/11 Commission, not participating on it. For this reason, and this reason along, Ms. Gorelick has no place on the Commission. Unless the Commissioners recognize this fact, the Commission will not fulfill its mandate of producing a neutral and credible report on the policy failures that led to 9/11.

 
[Juan Non-Volokh, 5/4/2004 09:21:38 AM]
NYT Errors in the Air: Today's New York Times provides more evidence that newspapers should be careful assigning writers to cover subjects about which they know very little. The article, under the misleading headline "Court Rulings on Emissions Sharply Split Two Groups" (emphasis added), contains a mistaken central premise and a major omission. As a result, it provides an incomplete and misleading picture of the Supreme Court's handling of environmental cases.

The article's central error (repeated in the headline) occurs in the very fist sentence:

The Supreme Court on Monday, for the second time in a week, issued a decision on emission standards for power plants that cheered industry groups while upsetting environmentalists.

This is simply false. The Supreme Court did not issue a "decision" relating to emission standards on Monday. Rather, the Court denied a petition for certiorari in the case of Leavitt v. Tennessee Valley Authority (see SCOTUSBlog commentary here). This is not the same thing. The Court did not "decide" the case; it refused to hear it. The Court did not hear oral argument or otherwise review the merits of the case, and the Court's denial of certiorari has no precedential value. This is elementary stuff, and not the sort of mistake one expects in the purported paper of record.

The article's opening is also highly misleading because the other case to which it refers -- Engine Manufacturers Ass'n v. South Coast Air Quality Management District (SCAQMD) -- while arising under the Clean Air Act (CAA) has nothing to do with "emission standards for power plants." Rather, the case addressed the extent to which the CAA preempts local efforts to force fleet owners to purchase low emission vehicles. In that case, the Court ruled 8-1 that such rules are preempted insofar as they operate as de facto vehicle emission standards.

There is another recent Supreme Court decision dealing with the control of power plant emissions under the CAA, Alaska Department of Environmental Conservation v. EPA. The problem here, however, is that in this case the Court upheld the EPA's effort to force Alaska's environmental agency to impose more stringent pollution controls on a local facility.

The presence of this case is fatal to the article's underlying premise that the Court?s handling of CAA cases this year somehow "reflect[s] a certain hostility . . . toward aggressive steps intended to reduce air pollution." "The common denominator is that their attitude presents a serious threat to clean air," the article quotes one environmental activist as saying. For "balance," the article also quotes an industry lawyer claiming the issue in both cases (TVA and SCAQMD) is really the means used to achieve pollution reductions, not the end of cleaner air, but then returns to its central theme, citing "environmental lawyers" who say "the impact of both decisions is poor air quality in regions of the country struggling with air pollution." (There's that mistake again!)

If one looks at the Court's two actual CAA decisions this year, one does find a common denominator: Support for federal preemption of local decision-making in environmental matters. In one case the locals wanted more stringent controls; in the other they wanted less stringent controls. In both cases, these local decisions got preempted by the Feds. [It is also worth noting that in both cases the Court upheld the position of the Bush Administration.]

And what about the TVA case? Doesn't that cut the other way? Not at all. First, the case does not present the same federal-state split as the Alaska and SCAQMD cases. Moreover, as noted above, the Supreme Court did not decide the case. It is elementary appellate practice that the Court's decision not to take a case does not reflect any judgment as to the merits. Given the complexity of the issues raised, it is quite possibles the Justices would prefer to see additional lower courts wrestle with the subject before taking up the case. Should the Court eventually address this issue, it's quite possible that it will side with environmentalists. In the meantime, the NYT should be more careful in its Supreme Court coverage, and avoid misleading stories implying the Court's record on CAA issues is somehow anti-environmental.

 
[Eugene Volokh, 5/4/2004 08:48:02 AM]
Coming speech code for teachers at UC Berkeley law school? Someone forwarded to me this e-mail, which was sent to all students by the administration at Boalt Hall, the UC Berkeley law school:

Folks:

This semester we had an incident in which a guest lecturer made racist remarks during a class. The incident caused a great deal of hurt and anger in the students who are acquainted with it. I have met with a number of students to discuss the incident and what to do concerning it. While the responsible party was not a member of the faculty or even an appointed lecturer, she stood in the position of an instructor when she made the remarks. The Lecturer in charge of the class did not take steps to address the matter and things grew worse. In an attempt to prevent a recurrence of such an event [an administration official] is working with students to draft language that will go into the handbook that we will provide to Lecturers when we hire them to teach a course. The language will make our policy on this issue clear. We will not tolerate an instructor's use of racist, sexist or homophobic expressions in the classroom. Boalt has to be a place where all people feel themselves to be a part of the community. We will do our best to make everyone aware of this fact in the fall. I am sorry for the distress caused by what happened this semester.

As to this year's incident, I will work with the Associate Dean to deal with the personnel issues involved and we will resolve them once exam period is completed. . . .

     Naturally, it's hard to evaluate a policy until we see some specific text. Perhaps "racist, sexist or homophobic expressions" simply means racist, sexist, or homophobic insults (setting aside those used in quotes or hypotheticals), such as "nigger," "Uncle Tom" (used to suggest that certain attitudes, while permissible from whites, are not allowed to blacks), possibly "bitch" and "son-of-a-bitch," "faggot," and the like. I agree that those ought not be used in class, though I'm not sure why the prohibition is limited to those insults and not others. Such slurs are so likely to both interfere with effective teaching and be hard to justify as being necessary to express ideas, again except for quotes and hypotheticals, that it may be consistent with academic freedom for a university department to prohibit them as a matter of sound pedagogy (I think both the conditions are necessary for such a prohibition to be legitimate).

     On the other hand, read literally "racist, sexist or homophobic expressions" seems to cover any expressions of opinion that convey a racist, sexist or homophobic message, potentially including, for instance:

1. Asking whether some or all of the underrepresentation of men or women in certain fields might be caused not by sex discrimination, but rather by biological differences between the sexes that make men's and women's temperaments, intellectual capacities, and performance different.



2. Discussing in class on the book The Bell Curve, and suggesting that the authors might have been right in their conclusion that there are race-based differences in intelligence.



3. Suggesting in class (whether on constitutional law, family law, or sexual orientation and the law) that one possible argument against allowing same-sex marriage is that opposite-sex couples are better parents than same-sex couples.

If the policy would include such statements, that seems to be quite troubling: The statements may be right or wrong, or good or bad, but it seems to me that they are eminently legitimate issues to raise in class (whether they're raised by mere "Lecturers," which seems to refer to non-tenure-track adjunct professors, or by the tenure-track faculty). Any prohibition on such speech would be a severe blow to free and open discussions of ideas in class. UC Berkeley should be trying to foster free and open discussion, and to train students to deal with it even when the discussion makes them "feel" bad, rather than trying to suppress it.

     Note that I treat including "will not tolerate" in a teacher's handbook as a prohibition. Technically, I suppose the school can say that it "will not tolerate" some speech and simply mean that it will not let it go unrebutted, and will criticize the speech when it happens. But in the context of an employee handbook, especially one issued to untenured teachers, I strongly suspect that the "will not tolerate" rule will be understood (by the teachers, by the administration, and by the students) as a ban.

     I should mention that I'm not sure such a policy would be unconstitutional. When people are hired by the government to speak -- to teach some subject matter, for instance -- the government may be entitled to dictate to the employees what to say while speaking on the government's behalf. I think that as a matter of policy, it makes more sense to leave university teachers with a very great deal of discretion, and control them, when control is necessary, by moral suasion and social norms rather than by formal prohibitions. But my tentative view is that the Constitution does not demand that universities adopt such an approach, sound as the approach might be. (I think control over scholarship is quite different, because there the faculty member isn't speaking on behalf of the university; as to teaching, the traditional view is somewhat more complex, and in any event I think the university can say that it's shifting to more of a teacher-speaks-for-the-university model.)

     Nonetheless, the constitutional question isn't open-and-shut -- some people disagree with the analysis I just gave, and some courts have indeed struck down faculty speech policies on vagueness grounds, which might well be applicable to a broad ban on "racist, sexist, or homophobic expressions," though I note again that it's hard to judge the policy until one sees some precise language. And in any event, regardless of whether there's a First Amendment violation, I think there would be a very serious academic freedom issue here, if indeed the policy is broader than just prohibiting slurs.

     I've asked the administration precisely what its intentions are on this, but it seems that they aren't yet clear: I was told that the goal was to prohibit "racist remarks" (and, presumably, sexist and homophobic ones as well), but the specifics hadn't yet been decided. Unfortunately, "racist remarks" is of course as ambiguous as "racist, sexist or homophobic expressions." The potential breadth and vagueness of the phrase worries me, and leads me to hope that defenders of academic freedom will watch the matter closely, and will fight hard any overly broad policy that might be suggested.

     In the meantime, if anyone knows the specifics of the incident to which the quoted e-mail refers, I'd love to hear them. The policy should, I think, be judged on its own, but knowing about the incident might provide some useful background.

Monday, May 03, 2004

 
[Eugene Volokh, 5/3/2004 04:53:25 PM]
Access via SBC, Yahoo, and others: Several readers complained that they couldn't access the Conspiracy over the last week or two. It turns out that there was a problem with SBC and its subsidiaries -- which, I'm told, include yahoo, pacbell, and norlight; for some reason, they weren't allowing access to at least certain UCLA servers. SBC has apparently fixed the problem. My apologies to those who were inconvenienced.

 
[Eugene Volokh, 5/3/2004 04:35:55 PM]
Thou: A reader suggested that my "thou" / "you" distinction was backwards, and "'thee', 'thou', 'thy' are the formal uses, while 'you' is the informal."

     Nope: Thou, thee, and thy (the grammatical equivalents of I, me, and my, though used for the second-person informal singular) were the informal versions. They may sound formal because they seem (1) archaic, and the past seems like a more formal time than the present, and (2) related to the Bible ("Thou shalt not . . ."), which seems like a more formal document than modern documents. But that's not so: "You," "you," and "your" (the nominative and the objective are of course the same for "you," though they differ with "thou" and "thee," as they do for "I" and "me") are the formal.

     I'm not an expert on why the religious works used "thou," but I suspect that it was a mixture of (1) the notion that the God-man relationship should be intimate and (2) the notion that when God speaks to man, he is speaking as superior to inferior, which cuts in favor of using the informal. (Item 2 isn't the only explanation, because sometimes "thou" is used when man speaks to God, e.g., "Nearer, My God, to Thee," but I suspect that in the "Thou shalt not"s, both are in some measure in play.) Quakers also use or once used "thee" (though for some reason they use it instead of "thou" as the nominative as well as in the objective, essentially the equivalent of using "me" both for "I" and "me") amongst themselves instead of "you"; there the justification, I think was the we-are-all-Friends thing.

     So, no, calling people "thou," even as a little bit of a joke, isn't a good way to sound fancier or more dignified. If the word is understood literally (as opposed to "I'm trying to sound fancier or more dignified"), it will be either as a slight (I'm your superior) or as an unwanted familiarity (I'm using a salutation that's more intimate than what you use with your lover). If you get slapped, you deserve it.

     Of course, if you scream this in the throes of passion (remembering always that, unless you're a Quaker, you must say "thou" to refer to the other person when saying what he or she is doing, but "thee" to refer to the other person when saying what you are doing to him or her), you'll be entirely grammatically correct.

 
[Eugene Volokh, 5/3/2004 04:22:46 PM]
My once-and-future coblogger -- and once-and-present brother -- Sasha is now officially engaged to the lovely food-and-cat-blogger Hanah Metchis, of Quare ("The blog that doesn't rhyme with 'square'"). No, they didn't meet through blogging. Best wishes to the happy couple!

 
[Eugene Volokh, 5/3/2004 04:20:39 PM]
Fraud scandal hits Volokh Conspiracy: I am embarrassed to admit this, but following in the footsteps of recent newspaper scandals, we here at The Volokh Conspiracy have done comprehensive background checks on all our bloggers and discovered that . . . Sasha Volokh is not really my brother. Yes, that's right, it turns out that his brother credentials had been forged -- our parents bought off -- photographs changed and memories hypnotically implanted -- and we therefore must remove him from the blog.

     Well, actually, we must remove him from the blog because he is about to enter the No-Blog Zone of Judicial Clerking (for Judge Alex Kozinski), much like the one that our own Orin Kerr is currently lost in (he's clerking for Justice Kennedy). But I thought the fraud scandal would make for a more dramatic story.

     (There's no firm no blogging rule for judicial clerks, but it's probably a good idea for clerks to keep a low public profile while they're clerking -- especially when they're blogging on fairly prominent law-related blogs -- so the No-Blog Zone is the safer route.)

 
[Eugene Volokh, 5/3/2004 10:46:47 AM]
Witches: Several people noted, taking varying degrees of umbrage, that "witches" is also the term used by people who belong to neo-pagan (I think that's right) religious groups that are sometimes also known as Wicca. I'm aware of that; but as I think my posts made pretty clear, I'm talking about "witches" in the traditional sense of people said to be in league with the dark forces and to have magical powers. That's the way the term is used in the phrase "witch hunt," which triggered my posts. It's also, to my knowledge, the more common modern use of the term.

     People who belong to these groups are of course free to call themselves "witches," and I have nothing against them. But they ought to realize -- as I suspect most of them do -- that when people talk about witches these days, it's usually not about them.

 
[Eugene Volokh, 5/3/2004 10:39:12 AM]
"He looked surprised":

Their eyes locked.

Then Barbara Holland saw the barrel of the gun.

She lay on the floor in her house after an intruder had knocked her down while pushing through her side door. While on her back, she drew a 9mm handgun from a holster on her waist.

Her assailant's glare suddenly changed.

"He looked surprised," Holland said.

Then she pulled the trigger.

Holland, a 38-year-old Detroit business owner and mother, remembers firing three shots. Detroit police told her she fired six.

Either way, she killed the 42-year-old man, Clabe Hunt -- who had shoved into her home on Troester, near Hayes, on Detroit's east side at 8:10 p.m. April 13.

He was an ex-con with five children and was armed with a loaded, nickel-plated semiautomatic handgun that was not registered to him. Autopsy reports indicate he was shot in the head multiple times. He never fired his weapon.

Police officers said Holland's gun was licensed, and they determined the shooting to be self-defense. . . .

[Holland] is slowly coming to terms with the fact that she took a life. Sometimes she has tinges of remorse. Mostly she feels as though she had to protect herself and her 15-year-old daughter, who was home that night, hiding in the living room after the shots. . . .

Hunt's five children range in age from 27 to 2, his sister said. . . .

Before going to prison in 1985 for armed robbery, he had attended the now-closed Northeastern High School in Detroit but never graduated.

He was released on parole in 1996, went back in a year later for violating parole and spent 1999 through 2002 in a halfway house . . . .

Thanks to Dan Gifford for the pointer.

 
[Eugene Volokh, 5/3/2004 09:43:50 AM]
Russians and friendship: English has two main words for people one knows -- acquaintance and friend. Russian has three: znakomyy, which has the same root as acquaintance, droog, which is generally translated as friend, and priyatel', the root of which is the same as the root of the Russian word for "pleasant"; priyatel' thus means something like "someone with whom it's pleasant to be," and means something between znakomyy and droog. People one knows are thus conveniently sortable into three categories, rather than just two. (You can also say "close friend" -- "blizkiy droog" -- just as you can in English.)

     I have no reason to think that this extra distinction either makes or reflects a real difference between the Russian culture and the Anglophone cultures. But I have always quite liked it.

     Of course, in Russian (like in other languages) there are also two singular "you"'s -- the informal "ty" and the formal "vy." In English, the distinction once existed ("thou" was the informal, "you" the formal) but is now largely dead. In some other languages, as I understand it, it's also vanishing, with "you" being used even for close friends. But in Russian, it's alive and well.

     Because of it, you have to know for each of your acquaintances whether you're on "ty" terms or "vy" terms with them, just as you have to know in English whether you're on a first-name basis. And it's not safe just to assume one or the other when in doubt: If someone has offered to be on informal terms with you ("switched to ty"), then it's considered something of a slight to use vy with them, just as it's considered a slight to use ty with someone to whom you should use vy.

     Worse still, because there are different verb endings for each pronoun, you can't fudge it just by omitting the pronoun -- as you can fudge things in America by just not using a person's name when speaking to them, if you're not sure whether to use the first name or Mr./Ms. last-name. Rather annoying, I've found (though maybe that's because I'm unusually forgetful.)

UPDATE: A reader asks "So what's tovarishch"? Tovarishch literally means comrade, though it sometimes has the connotation of buddy. (I'm not quite sure what the most common connotation is in today's Russia, but I've heard it both in a Communist or mock-Communist context, and apolitically as buddy, especially when used in the third person.)

 
[Eugene Volokh, 5/3/2004 09:29:17 AM]
Supposedly a real mailbox in Texas: Thanks to Dan Gifford and Fred Kong for passing this along.

 
[Eugene Volokh, 5/3/2004 09:22:00 AM]
More on witches, from Mark Kleiman. We academics can analyze anything! (Some say, overanalyze, but I don't view it that way -- Mark actually makes some very interesting points about the subject.)

 
[Juan Non-Volokh, 5/3/2004 06:36:27 AM]
Sunday Song Lyric (On Monday): This lyric's a bit late as yesterday was a bit hectic. In that vein, I thought it was about time to post a song by The Police. Not a Sting song, mind you -- there'll be a time for that another Sunday -- but a Stewart Copeland riff on a crazy day: On Any Other Day. My day was hectic, mind you, but nothing like this:

There's a house on my street
And it looks real neat
I'm the chap who lives in it
There's a tree on the sidewalk
There's a car by the door
I'll go for a drive in it
And when the wombat comes
He will find me gone
He'll look for a place to sit

My wife has burned the scrambled eggs
The dog just bit my leg
My teenage daughter ran away
My fine young son has turned out gay

Cut off my fingers in the door of my car
How could I do it?
My wife is proud to tell me
Of her love affairs
How could she do this to me?

My wife has burned the scrambled eggs
The dog just bit my leg
My teenage daughter ran away
My fine young son has turned out gay
And it would be O.K. on any other day
And it would be O.K. on any other day

Throw down the morning papers
And spill my tea
I don't know what's wrong with me
The cups and plates are in a conspiracy
I'm covered in misery

My wife has burned the scrambled eggs
The dog just bit my leg
My teenage daughter ran away
My fine young son has turned out gay
And it would be O.K. on any other day
And it would be O.K. on any other day
And it would be O.K. on any other day
And it would be O.K. on any other day

A few readers have taken me to task for omitting one source of the above song's irony: During the final chorus, children's voices can be heard singing Happy Birthday to their daddy. It was a significant omission, especially for those not familiar with the song.