Reader Michael Lorton pointed me to The Chaser, by John Collier, which had apparently been made into a Twilight Zone episode. I liked it — short, readable, ingenious, and cruel.

Also, this gives me another chance to mention my favorite short story about love charms, by one of my favorite short story writers, Rudyard Kipling: The Bisara of Pooree. "[T]o work properly, the Bisara of Pooree must be stolen — with bloodshed if possible, but, at any rate, stolen."

UPDATE: OK, I can't help myself; I have to quote some more, which might help illustrate why I so love Kipling's style:

All kinds of magic are out of date and done away with, except in India, where nothing changes in spite of the shiny, top-scum stuff that people call `civilisation.' Any man who knows about the Bisara of Pooree will tell you what its powers are -- always supposing that it has been honestly stolen. It is the only regularly working, trustworthy love-charm in the country, with one exception. [The other charm is in the hands of a trooper of the Nizam's Horse, at a place called Tuprani, due north of Hyderabad.] This can be depended upon for a fact. Some one else may explain it.

If the Bisara be not stolen, but given or bought or found, it turns against its owner in three years, and leads to ruin or death. This is another fact which you may explain when you have time. Meanwhile, you can laugh at it.

I haven't closely followed the debate about whether Lincoln was gay, but this Slate piece suggests that people should view the claim with a grain of salt.

INCLUDING "THE PASSION OF THE CHRIST": The Foundation for Individual Rights in Education has the story.

The college's justification is that apparently some high school students also go to the college part-time, but that seems a pretty poor reason to limit student groups from showing movies on-campus to adult students -- likely the great majority of the audience. (If necessary, the college could insist that the groups card all attendees to make sure they're 17 or over.) Check out the response of the college's lawyer, which disagrees with some of FIRE's allegation but concedes that the college has a no-R-rated-movie policy.

I suspect the policy is constitutional: The college may limit student groups' use of its facilities in viewpoint-neutral ways and the ban on R-rated movies would probably be treated as viewpoint-neutral (though I realize that one could argue the contrary). The ratings aren't legally binding; a theater that lets kids in to R-rated movies couldn't be prosecuted for that. But a college may choose not to open up its classrooms after class hours to such movies.

Also, that the school allowed a seemingly sexually related skit to be performed at a college theater doesn't really undermine the policy's validity. A school can legitimately conclude that R-rated movies are going to be more appealing to underage kids than skits would be, plus the college may feel that it's cost-effective to rely on movie ratings, but too difficult (and too prone to viewpoint discrimination) for the college to make its own judgments about unrated material such as skits.

But that doesn't make the policy sensible or proper for an educational institution. The college may not have aspirations to being a Harvard, but it is a college, in which most of the students are adults.

Community colleges and not just Ivy League schools ought to want to broaden their students' intellectual lives, and to treat their students as grown-ups rather than children. The college's lawyer complains that if the college allowed a broader range of speech, "[o]ne could only imagine the bizarre clubs and activities that would be formed." Heaven forbid that bizarre clubs and bizarre speech be present on college campuses.

Check out the directions that Microsoft's MapPoint gives for going from Haugesund, Norway to Trondheim, Norway. The "quickest" option yields the most amusing result, but "shortest" is good, too.

Thanks to James Tyre (who credits David Flint) for the catch.

The Institute for Humane Studies — which both Sasha and I have been involved in, and which I much like — passes this along:

The Institute for Humane Studies is sponsoring its first essay contest this spring with $5,000 in prizes. . . . The contest is open to all full-time students or anyone 25 years old or younger. Essays must be submitted online by March 1, 2005 and address the following question:

In "The Creative Powers of a Free Civilization," Nobel Prize winner F.A. Hayek posits that only in a truly free society can the creative powers of individuals be maximized. In an essay of 2,500 words or less, please answer the following question:

To what degree are the creative powers of individuals influenced by the structure of the society in which they live? What legal, social, cultural, or educational conditions would be needed to fully realize their creative powers?

Visit www.TheIHS.org/essays for more information and to submit an essay. . . .

who was Attorney General under FDR and whom Roosevelt appointed to the U.S. Supreme Court:

I . . . have been highly desirous of preserving the federalist form and keeping vitality in it. . . . [A]t Nuremberg, it became apparent that until Hitler had broken down the powers of the separate German states and established a completely centralized police administration, he wasn't able to bring about the dictatorship. I think that the philosophy of the Tenth Amendment reserving the undelegated powers to the people or the states ought to be regarded as an essential part of our Bill of Rights, in the sense that our rights are secured and made not merely by the separation of pwoers in the federal government, but by a division of powers between state and federal government.

The decided drift is in favor of a strengthened federal government. I think we should draw a line between the necessity for central regulation of commerce, in the sense of finance and trade, and the necessity for diffused control of such things as affect civil liberties. Because while the federal government occasionally may make a great advance in the direction of civil liberties that the state governments would not make -- at least in some states -- for many years to come, they can also make a very disastrous reversal and do more harm to civil liberties in one administration than a state government could do in a generation . . . . I think the potentialities of a federal, centralized police system for ultimate subversion of our system of free government is very great.

Philip B. Kurland, Robert H. Jackson, in 4 The Justices of the Supreme Court of the United States, 1789-1969 (L. Friedman and F. Israel eds. 1969), at 2543, 2565 (quoting taped interviews with Jackson prepared for Columbia University's Oral History Project). Many thanks to George Liebmann, who quoted these in an American Conservative Union newsletter, for the pointer.

That Justice Jackson said this, of course, hardly makes it right. Moreover, many modern supporters of constitutional restraints on the federal government may disagree with some of what he said (for instance, his support for "central regulation of commerce," if that phrase is understood broadly). Still, it seems noteworthy that even in the heyday of federal power after the New Deal, one highly prominent New Dealer thought that federalism -- in the sense of constitutional constraints on federal power -- was still very important.

Justice Jackson also wrote, in a majority opinion for the Supreme Court (Eisentrager v. Johnson (1950), overruled on other grounds by Rasul v. Bush (2004)) that the Constitution didn't apply to aliens overseas, reasoning that

If the Fifth Amendment confers its rights on all the world . . ., the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. . . .

It thus seems pretty clear that he took an individual-rights view of the Second Amendment (albeit, of course, in an offhanded aside); if he had seen the Second Amendment as securing only the right of states, or the right of members of state-run National Guard units, then his argument as to the right to bear arms, and his analogy to the First, Fourth, Fifth, and Sixth Amendments, would have been absurd: The Second Amendment would simply be a radically different provision than those, and even if the Constitution did apply to aliens overseas, the Second Amendment would have still been inapplicable by its own nature.

Newsday reports:

. . . The Electronic Frontier Foundation said yesterday it would defend bloggers' right to protect anonymous sources who disclosed that Apple would release a product code-named "Asteroid."

A lawyer for the group said it's one of the first cases nationwide, if not the first case, that would address whether Web loggers, or bloggers, can protect confidential sources. Apple filed the suit last week in California.

The conflict began after two bloggers disclosed on their Web sites in November that Apple would release the so-called "Asteroid," an add-on that would supposedly allow musicians to hook up analog musical instruments to Macintosh computers. Apple then sued the "John Does" for violating trade secret laws by disclosing the information to the bloggers, and the computer maker issued subpoenas to the bloggers to find out the identities of the John Does.

The bloggers shouldn't have to disclose the anonymous sources, said Kurt Opsahl, staff attorney for the foundation.

"In this case, they're very clearly journalists," he said. . . .

EFF, I suspect, will be claiming a privilege under the First Amendment, but such a privilege is "qualified" rather than absolute -- it's unavailable if a judge finds that the information is really necessary to an important case, and there are no other ways of getting it. Also, whether such a privilege even exists under the First Amendment is hotly disputed. I think the Supreme Court rejected it in 1972. Since then, though, many federal court of appeals decisions, including some in the Ninth Circuit, have accepted it (based on what I think is a misreading of the Court's opinion), and the Court hasn't stepped in to overrule them; on the other hand, two other federal courts of appeals have rejected the privilege, as has one decision in the Ninth Circuit. So the federal privilege claim has problems.

But EFF will also be claiming a privilege under article 1, section 2(b) of the California Constitution, which is quite explicit:

b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication . . . .

So if a blog is considered a "periodical publication" -- which most blogs are (the exact "period" in the sense of interval between posts isn't fixed, as it is for a newspaper, but they are "periodical" in the sense that they publish repeatedly, and are usually expected to have new material at least as often as many standard periodicals) -- then it sounds like they have an open-and-shut case. We don't even have to ask whether bloggers are "journalists"; so long as they are "person[s] connected with . . . [a] periodical publication," they are entitled to disregard subpoenas that call on them "to disclose the source of any information procured while so connected . . . for publication in . . . [a] periodical publication."

Kim Scarborough points to this post from a newly minted Political Science Ph.D. (the poster had just gotten the Ph.D. in the mail the day before):

I don't think there is a tent big enough to hold me and one of the chief architects of the present war in Iraq [Condoleezza Rice]. And I have to wonder about our collective pretensions to positive social science when someone can hold onto her political science credentials while acting as one of the most persistent defenders of that "weapons of mass destruction" trope.

So I've been thinking: shouldn't political science have its equivalent to disbarment or excommunication? After all, if we want the term "political scientist" to mean something, then a doctorate shouldn't be a one-way ticket. When political scientists promulgate ideas or institute policies that violate even the most generous interpretations of our collective wisdom, they are not only disregarding their own academic training, but devaluing the intellectual authority and standards of our field. So shouldn't there be some threshold — it can be a generous one — beyond which one loses the right to practice political science?

Ah well. Any field that still claims Henry Kissinger as one of its own can certainly survive Condoleeza Rice.

A few questions: (1) What exactly does it mean to "lose[] the right to practice political science"? You lose the right to do the things that political scientists do — publish papers, teach classes, and so on? You lose the right to cite as a credential (since, after all, the whole point is so that you wouldn't be allowed to "hold onto [your] political science credentials") the Ph.D. you hold, the jobs you've had, and the field you're knowledgeable in?

(2) Say the political science profession indeed isn't a big enough tent to hold both a newly minted Ph.D. and the incoming U.S. Secretary of State (who also happens to be the former Provost at Stanford). Which is more likely (not just today, given the current political makeup of the academy, but in the future) — that (A) junior Ph.D.s will get to push out high government officials for "promulgat[ing] ideas" that depart too far from "conventional wisdom," or (B) vice versa? The poster is apparently "an expert on electronic democracy and electronic government"; what does our knowledge about democracy and government suggest as the answer to the previous question?

(3) I had thought that academics had a pretty standard response for dealing with people who promulgate ideas that academics think are unwise: It's called "criticism" via "persuasion." Why isn't that good enough for the good Doctor?

Yes, I know that I'm probably taking the poster's arguments a bit too literally here. My guess is that this is just hyperbole and fulmination on her part. Presumably, the poster is just using exaggerated language simply to suggest that lots of political scientists should condemn Dr. Rice.

Still, isn't an exaggerated post that, on its face, runs against basic principles of academic freedom — I assume those principles are similar in Canada, where the poster is from, as they are here — and that operates through hyperbole rather than reasoned substantive argument, an inauspicious way to begin one's life as a Ph.D.? Let's hope it's not characteristic of this person's future commentary.

Finally, what one says in moments of rhetorical excess might not fully reflect what one thinks most of the time — but then again it might. In Vino Veritas; perhaps In Hyperbole Veritas. And, as Scarborough writes about the poster,

She undoubtedly has a bright future ahead of her. Won't it be nice when she's not just dreaming of banishing the powerful from her exclusive club and actually grading papers and judging dissertations of talented students whom she may not agree with? It sure is encouraging that her gut instinct upon encountering disagreeable opinions is banishment. Certainly the attitude I like to see in higher ed, how about you?

A Slate article by Jesse Sheidlower, editor-at-large of the Oxford English Dictionary reports this about a meeting of linguists:

The suffix -based, as in faith-based or reality-based, was widely disliked. "It's its own opposite," said Bill Kretzschmar, editor of the Linguistic Atlas of America. "If it's reality-based, it's not real."

A. As I understand it, "faith-based" is most commonly used to discuss "faith-based initiatives" which really refer to faith-based social service programs and groups. A faith-based program for recovering alcoholics is something that's aimed at using religion to help people overcome alcoholism: The technique is based on faith, though its goal is to achieve a good result (and a result that has important secular effects). Likewise for faith-based programs for fighting unwed pregnancy and the like. We might also talk of "faith-based decisionmaking," which would be decisionmaking that's based in important ways on your religious commitments.

We wouldn't say "If it's faith-based, it's not faith," partly because "faith-based" is an adjective and "faith" is a noun. We wouldn't say "If it's faith-based, it's not about faith," because that would be wrong. And we wouldn't say "If it's faith-based, it's not religious worship," because that's beside the point: Faith-based programs aren't supposed to be religious worship for its own sake, but programs that use participants' faith as a means to achieve goals that are also the goals of other secular programs.

B. "Reality-based," as I understand it, has three meanings. Meaning 1 is in the phrase "reality-based [television] programming" or "reality-based shows," such as Survivor and the like. Here, it's true that "reality-based" isn't quite "real," but it's also beside the point. "Reality-based" conveys well the fact that these shows are unscripted and involve participants' own real reactions to certain stimuli (not just what the writers told actors to say); but at the same time the stimuli are indeed crafted by the producers of the show, so the program really isn't real.

Meaning 2, which emerged in late 2004, is exemplified by the term "reality-based community," which people usually (though not always) use to refer to themselves and their allies as people whose thinking is rooted in reality (usually as opposed to faith, or to folly); and meaning 3, which emerged at the same time, means "based on an unimaginative, static view of reality."

Here are the earliest uses of these meanings that I could find on NEXIS, both from Ron Suskind, author of The Price of Loyalty: George W. Bush, the White House and the Education of Paul O'Neill.:

1. CNN, Oct. 15, 2004: "What we found, and what I found over, really, years of investigating and reporting on George Bush, is a steady progression. He has retreated step by step from the kind of critical analysis upon which presidents have always relied, and ever more embraced faith at the core of his decision-making process. This is something that--I talked to Republicans in this story, and some of them are quite mightily concerned about: Is the president dealing with reality-based issues or is he ever more guided by the faith-based certainties? . . . [T]here will be a civil war in the Republican Party on November 3rd if George Bush wins between the reality-based community and the faith-based community."
2. N.Y. Times, Oct. 17, 2004: "In the summer of 2002, after I had written an article in Esquire that the White House didn't like about Bush's former communications director, Karen Hughes, I had a meeting with a senior adviser to Bush. He expressed the White House's displeasure, and then he told me something that at the time I didn't fully comprehend — but which I now believe gets to the very heart of the Bush presidency.

   "The aide said that guys like me were 'in what we call the reality-based community,' which he defined as people who 'believe that solutions emerge from your judicious study of discernible reality.' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. 'That's not the way the world really works anymore,' he continued. 'We're an empire now, and when we act, we create our own reality. And while you're studying that reality — judiciously, as you will — we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'"

Now maybe I'm missing something here — but if I'm right, then this suggests that the criticism of "faith-based" is certainly misplaced, and of "reality-based" is mostly misplaced. Thanks to InstaPundit for the pointer.

to some posts (linked to at the end of this one) that criticize his work in light of the National Academy of Science report on gun control laws:

Last month, the National Academy of Sciences issued a 328-page report on gun control laws. The big news that has been ignored on all the blog sites is that the academy's panel couldn't identify any benefits of the decades-long effort to reduce crime and injury by restricting gun ownership. The only conclusion it could draw was: Let's study the question some more.

The panel has left us with two choices: Either academia and the government have wasted tens of millions of dollars and countless man-hours on useless research (and the panel would like us to spend more in the same worthless pursuit), or the National Academy is so completely unable to separate politics from its analyses that it simply can't accept the results for what they are.

Based on 253 journal articles, 99 books, 43 government publications, and some of its own empirical work, the panel couldn't identify a single gun control regulation that reduced violent crime, suicide or accidents.

From the assault weapons ban to the Brady Act to one-gun-a-month restrictions to gun locks, nothing worked. (Something that I have been the first person to investigate empirically for many of these laws, and I also had been unable to find evidence that they reduced violent crime.)

The study was not the work of gun-control opponents. The panel was set up during the Clinton administration, and of its members whose views on guns were publicly known before their appointments all but one had favored gun control. Something that I wrote up about the panel three years ago is still relevant.

While the panel dealt with a broad range of gun control issues, only one issue has received attention on different blogs: right-to-carry laws. In fact, the panel apparently originated with the desire from some to respond to the debate on that issue and to respond specifically to my research that concludes that allowing law abiding citizens to carry concealed weapons reduces crime. I originally overheard Phil Cook and Dan Nagin discussing the need for a panel to "deal with" me in the same way that an earlier panel had "dealt with Isaac" Ehrlich's work showing that the death penalty deterred murder. They agreed and Nagin said that he would talk to Al Blumstein about setting up such a panel. Needless to say, that is what ended up happening.

1) James Q. Wilson's very unusual dissent is very interesting (only two out of the last 236 reports over the last 10 years have carried a dissent). Wilson states that all the research provided "confirmation of the findings that shall-issue laws drive down the murder rate . . . " Wilson has been on four of these panels and never previously thought that it was necessary to write a dissent, including the previous panel that attacked Isaac Ehrlich's work showing that the death penalty represented a deterrent.

Wilson said that that panel's conclusion raises concerns given that "virtually every reanalysis done by the committee" confirmed right-to-carry laws reduced crime. He found the committee's only results that didn't confirm the drop in crime "quite puzzling." They accounted for "no control variables" - nothing on any of the social, demographic, and public policies that might affect crime. Furthermore, he didn't understand how evidence that was not publishabled in a peer-reviewed journal would be given such weight.

The non-results are basically due to dropping all the control variables (particularly the arrest rate which is not defined when the crime rate is zero). When that happens a lot of observations with zero crime rates are introduced. The problem with using OLS when you have all these zero crime rates is that if a crime rate is already zero, no matter how good the law is, it can't lower the crime rate any further. There is thus a positive bias in these results. Plassmann's two papers (his piece in the Journal of Law and Economics with Nic Tideman and his paper with Whitley in the Stanford Law Review) show how you can address this as a count data problem. Although his research consistently shows statistically significant results that shall issue laws reduce crime, the National Academy report ignores the research.

The panel's discussion of Duggan's results focuses on the regressions without any control variables and that use the OLS estimates when they have a large number of zero values for the crime rates.

2) As an interesting aside, there are a number of factual mistakes in the NAS report and those mistakes work against my findings. For example, Figure 6.1 makes a mistake where it shows the increase in violent crime of 7 percent in year one, when the amount is 5 percent (7-2, where 2 is from the trend). (Of course, the overall problem with the hybrid approach is discussed below.) There are significant drops in crime in Table 6-3 that are statistically significant, but they are not properly marked to indicate that is so. Even something trivial as the number of states currently with right-to-carry laws is wrong, 36 (not 34) (and if Minnesota is included the number is 37).

3) Last year there was a debate over the use of clustering between Ayres and Donohue and me, but the statements of the NAS panel corresponds extremely closely to what was written in my original paper with David Mustard.

4) p. 127: "We focus on the conflicting results . . ." No attempt is made to give readers an idea of the frequency or importance of unusual results. Take the results in Table 6-3. For Plassmann and Whitley, the panel doesn't mention that Plassmann and Whitley say that there are "major problems" with the particular regressions that the panel decides to report and more importantly that the effects in those regressions are biased towards zero (see point 2 above). For Moody's results, they show only two specifications of all the results that he reports and don't mention that the one weird result that he got was from a specification that he flagged as problematic and not controlling for other factors.

Even with the very selective sample of regressions that they pick, there is not one statistically significant bad effect of right-to-carry laws on murder. Only one case for robbery and that is one problematic specification from Ayres and Donohue.

5) Hybrid model. The so-called hybrid model used by Ayres and Donohue finds that the law dummy variable is positive while the trend variable indicates that crime rates decline over time. While Plassmann and Whitley do a good job explaining why the "hybrid" model produces misleading results and the panel never discusses their critique (looking at the crime rates on a year by year basis show no initial increase in crime), it still would have been useful for the panel to at least say whether the "hybrid" results produced a statistically significant temporary bad effect. The problem with determining statistical significance is that when both the dummy and trend variables are on at the same time, we are concerned about the net effect not just the dummy variable by itself as Ayres and Donohue argue. The answer for all those results in the panel's Table 6-4 is "no."

6) Reset tests. Professor Horowitz's discussion of the reset tests seem too strong since I provided the panel with the reset tests done for a wide range of estimates. Even accepting that the Reset test is appropriate (and no one else on the panel also uses this test in their work), there are many estimates where the results pass this test and he should thus conclude that those indicate a drop in violent crime.

7) Using too many control variables. Bartley and Cohen and I report all possible combinations of the control variables and show a great deal of consistency in the results. The only difference between these and those discussed in the NAS report is that these regressions included the arrest rate because of the zero crime rate problem.

8) Process. While the NAS is in name an academic organization, the process was hardly an academic one. Members of the panel were forbidden to talk to me about the issues being examined by the panel. Despite promises to get my input on the panels' review as it went forward, that never occurred. In particular, Charles Wellford promised me that I would be able to look at the tables and figures in the report. If I had been involved, I could have helped catch some of their mistakes. When the report was finally released to the public, I was promised that I would get a copy at the beginning of the presentation and that I would be allowed to ask questions. I was told that they preferred that I not attend the presentation, but there would be no problem with me asking questions. Instead even though the presentation ended a half hour earlier than scheduled because there were supposedly no more questions, my questions were never asked. (I had one main question: Professor Wellford mentions all the research that has been done on right-to-carry laws, but if he is correct that right-to-carry laws are just as likely to increase as decrease crime, can he point to one refereed journal article that claims to find a bad effect from the law?) Despite promises to the contrary, I did not receive a copy of the study until well into the afternoon and then only after a reporter from USA Today sent me a copy.

Minor notes: Despite claims to the contrary, I responded to the Ayres and Donohue study in January of 2004. (Simultaneously, it goes unnoticed that Ayres and Donohue themselves ignored virtually all of Plassmann and Whitley's points.)

In commenting on the report, others have raised additional issues that the NAS study did not find relevant. As to the claims raised again in these posts reguarding Jim Lindgren's investigation of the "phantom survey," many are apparently unaware that David Gross, David Mustard, and I have said that Lindgren has grossly mischaracterized what we said to him. For comments by Gross and Mustard, please see statements 3 and 4 in this link.

For a general response to the charges on the survey and other issues you raise see this link. False claims have been made with regard to these issues and the pseudonym.

Claims have also been made by Jim Lindgren regarding the demographic control variables, but he fails to note that it is only for the state level regressions and not the county level regressions where some of the significant results are affected. Given all the combinations of control variables that have been examined, even in that case, one wants some theory for why you selectively include what appears to be a weird combination of demographic controls. I think that Lindgren is a biased observer. He was upset after a critical piece that I published on his work in 2003 and his attacks started shortly after that. Further his attacks are untrue.

Final comments.

It is hard to look through the NAS panel's tables on right-to-carry laws and not find overwhelming evidence that right-to-carry laws reduce violent crime. The results that don't are based upon the inclusion of zero values noted in point 1 above. Overall, the panel's own evidence from the latest data up through 2000 shows significant benefits and no costs from these laws.

My impression is that Gary Kleck also has a very similar reaction to the panels' findings regarding surveys on self defense.

I express no opinion on this debate, but I thought I'd pass along John Lott's reactions.

Reader Marco Parillo passes along a pointer to this op-ed (registration required).

A few months after I published my short story (The Love Charm) in Legal Affairs, a screenwriter who had been reading the magazine bought a one-year option, thinking he might turn it into a screenplay (or, more likely, a treatment) that he could try to sell. The option has expired -- that's Hollywood for you -- and I thought that I'd just note this in case any readers might be interested in taking the baton. I was pleasantly surprised by the writer's call a year ago; I thought that perhaps I might get pleasantly surprised again.

Also, if you're interested, there's an alternate ending to the story here (it's the ending I originally wrote, but the editors preferred the one that was ultimately published).

A friend of mine writes:

Consider the following quote from Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2356 (2004):

In contrast, in Robinson v. Sappington, 351 F.3d 317 (CA7 2003), after the plaintiff complained that she was sexually harassed by the judge for whom she worked, the presiding judge decided to transfer her to another judge, but told her that "her first six months [in the new post] probably would be 'hell,'" and that it was in her "'best interest to resign.'" Id., at 324.

One day, I will cite that case, or the 7th Circuit case, or something like it, remove the quotation marks around "hell," and add: "(infernal quotation marks omitted)."

Newsday reports:

The line leading into First District Court in Hempstead Monday morning was long and frustrating, but it was the punch line in a lawyer joke that got two rabble-rousing comedians arrested.

"How do you tell when a lawyer is lying?" Harvey Kash, 69, of Bethpage, said to Carl Lanzisera, 65, of Huntington, as the queue wound into the court. "His lips are moving," they said in unison, completing one of what may be thousands of standard lawyer jokes.

But while that rib and several others on barristers got some giggles from the crowd, the attorney standing in line about five people ahead wasn't laughing.

"'Shut up,' the man shouted," Lanzisera said. "'I'm a lawyer.'"

The attorney reported Kash and Lanzisera to court personnel, who arrested the men and charged them with engaging in disorderly conduct, a misdemeanor. . . .

Dan Bagnuola, a spokesman for the Nassau courts, said the men were causing a stir and that their exercise of their First Amendment rights to free speech was impeding the rights of others at the court.

"They were being abusive and they were causing a disturbance," Bagnuola said. "They were making general comments to the people on line, referring to them as 'peasants,' and they were causing a disturbance. And they were asked on several occasions to act in an orderly manner, not to interfere with the operation of the court." . . .

Kash said he and Lanzisera were merely saying out loud that the public was being treated like peons or peasants while attorneys, who wave their security passes to court officers and don't have to stand on line, are treated like kings. . . .

A courthouse is a "nonpublic forum," which is to say a piece of property that's owned by the government, and that hasn't been opened as a place for people to speak to the public. The government may restrict speech in such fora, but only if the restriction is reasonable and viewpoint-neutral.

Thus, the government can certainly ban picketing or demonstrations inside a courthouse. It may even ban all profanity, or impose other viewpoint-neutral restrictions. (Those who want to respond by citing Cohen v. California might want to read this page.) But it can't impose viewpoint-based restrictions, even on speech that offends people.

So if Kash and Lanzisera were just talking to each other at a normal tone of voice in line, and were punished because the stuff they were saying was critical of lawyers, the matter would be simple: The government action would be unconstitutionally viewpoint-based. If they were talking to the rest of the line -- standing nearby and orating to strangers, especially in a loud voice -- and there were a clear courthouse rule prohibiting such behavior, then their violation of this rule (even after having been told about it) would likely be constitutionally punishable as disorderly conduct. (It would interfere with the operation of the courthouse, because it's a political demonstration in the courthouse and not because of the particular viewpoint the demonstration expresses.)

This case is somewhere in between, I suspect: It sounds like Kash and Lanzisera were indeed trying to speak to a broad group of strangers, but at the same time it sounds like there probably isn't such a clear rule here.

If these factual assumptions are correct, then Kash and Lanzisera's argument wouldn't be open-and-shut. But I think it would still be pretty strong: Even if the government could restrict public orations in the courthouse, it couldn't do it through a general "disorderly conduct" rule that vests officials with unbridled discretion that the officials could easily use in viewpoint-discriminatory ways. The prohibition on unbridled discretion to restrict speech is at its strongest in traditional public fora, such as sidewalks and parks. But I suspect it would apply even in nonpublic fora, such as courthouses. Cf. Board of Airport Com'rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987).

In any case, I expect that if Kash and Lanzisera are indeed prosecuted, they'll fight the case on First Amendment grounds, and we'll learn more both about the factual details and the applicable legal rule.

Hofstra was kind nough to invite me to be a visiting scholar; I like to do these sorts of things, and I'll also be doing one at Creighton in Nebraska next month, and at Tulane in New Orleans in early March. I'll be giving several talks and guest-teaching a couple of classes, and one of the talks — on The Mechanisms of the Slippery Slope will be open to the public. I'm told that it's on Wednesday, January 26, at 11:10 am in the Siben & Siben Moot Courtroom, in the Law School on the Hofstra campus in Hempstead, New York. There's apparently no street address, but I'm sure our intelligent, tech-savvy readers can find it. Hope to see some of you there!

UPDATE: Reader David Torrente points to a Hofstra site containing directions and maps.

A correspondent faulted me for using "data" with a singular verb, as "the data suggests." I follow the view of Webster's Dictionary of English Usage and The American Heritage Dictionary that "data" can be used in either the plural and singular, and "[b]oth constructions are fully standard at any level of formality" (Webster's, p. 318).

In Latin, "data" may be the plural of "datum"; in English, it's often a singular term that's synonymous with "information." I usually use it as singular, because (1) I see it as a "mass noun" -- a noun that refers to a collective, but as a single item -- so that the singular strikes me as more logical, (2) the singular seems more colloquial and English, while the plural strikes me as more fusty and Latinate (in spirit, not just etymology), and (3) I grew up as a computer programmer, and "data" is routinely used as singular in that field. But that's just my preference; I don't fault those who use data as plural.

I should note that there is some controversy about this): The New Fowler's Modern English Usage (3d ed. 1996) -- a British source -- insists on the plural, except in "computing and allied disciplines"; Bryan Garner's A Dictionary of Modern English Usage also prefers the plural, though it acknowledges that the singular has been gaining ground. But I generally prefer the Webster's and Heritage approach.

I've just finished an early draft of this new article of mine (forthcoming in the California Law Review), and promptly popped it up on the Web — I'd love to hear people's comments or corrections. Special appearances: Ashcroft's "aiding the enemy," Clinton's "safe house for terrorists," George Orwell's "objectively pro-Fascist," the Dixie Chicks, Susan Sarandon, Danny Glover, Anita Bryant, Bill Maher, Ted Rall, Jimmy "The Greek" Snyder, Michael Savage, John Rocker, Marge Schott, subpoenas of library and bookstore records, and more.

The Foundation for Individual Rights in Education, a group whose work I've much admired, has just released its new Guide to Free Speech on Campus. In FIRE's words, "the Guide provides students, professors, and parents with a summary of their First Amendment rights and provides real-world, practical advice for combating speech codes and other oppressive campus policies." Check it out here.

There'll be a debate between Justices Scalia and Breyer on the use of foreign law in U.S. courts at American University Law School in Washington, D.C., this Thursday, Jan. 13, 4-5:30 pm EST. . . .

You should be able to find a button under videoconferencing here, which when the event begins will take you directly into CSPAN's live feed (CSPAN will be broadcasting the event).

The event will also be archived on video, and a transcript will be published in PDF, on the school's website. For more on the issues, see here.

A post on an election law discussion list by Richard Winger led me to this little historical tidbit:

The closest United States Senate election in history occurred in New Hampshire in 1974. A contest between John A. Durkin, Manchester and Louis C. Wyman, Manchester was recounted several times by the State of New Hampshire and by the US Senate with differing results. [In one of the recounts, Wyman won by 2 votes.] The Senate was unable to decide the election, and the seat was declared vacant as of August 8, 1975 so a special election was held on September 16, 1975. The final results were: Durkin.....140,778 votes, Wyman....113,007 votes. The turnout for that special election was greater than in the original election.

I did not know that.

Here's today's item:

"We need to apply 21st-century information technology to the health care field. We need to have our medical records put on the I.T."—Collinsville, Ill., Jan. 5, 2005

Here's the link that Slate provides to the President's full speech, so readers can get some context:

Oh, wait, Slate, one of the leading online journals, doesn't actually provide links to the full speech, even when it's on the Web, and even when curious readers might want to know how the quote looks in context. But we at the Conspiracy deliver what Slate doesn't; here's the link.

In any case, what exactly is "Bushistic" about the quote? "I.T." stands for "information technology," in this case presumably computers, networking, and the like — a subset of one definition of "technology," which is "Electronic or digital products and systems considered as a group." I can't say that "We need to have our medical records put on the [information technology]" is the most eloquent phrase in the English language. Maybe it's something of a slip — "put on the technology" is not quite idiomatic, though it's clearly understandable, and probably technically correct given the definition I quoted. And in context, it seems to be an ordinary, if bland, part of an ordinary if bland political speech:

To improve health care in America, we need to expand the use of health savings accounts. (Applause.) It's a product that lets you save tax-free for routine medical care while keeping affordable coverage against major illness. Small businesses must be allowed to join together, to pool risk, so they can buy insurance for their employees at the same discounts that big businesses are able to do. (Applause.)

To address the cost of medical care, we need to apply 21st century information technology to the health care field. We need to have our medical records put on the IT. We need to make sure that we speed up the delivery and arrival of cheaper generic drugs to help control costs. We want to make sure our Medicare system still allows seniors to have choice in the system.

Look, I've got to admit: Some Bushisms (e.g., "misunderestimated") are funny and somewhat unusual malapropisms. But "We need to apply 21st-century information technology to the health care field. We need to have our medical records put on the I.T."? Is that funny? To the extent that it's misspeaking, is it particularly uncommon and noteworthy? (As I've mentioned before, I hate to read transcripts of my own presentations, because they often have grammatical and word choice lapses — and I think that's true for the overwhelming majority of all people, including the educated and intelligent.)

And, to get back on my hobbyhorse, when Slate is trying to make a big deal out of a quote, why not include a link back to the quote so that readers can see it and its context for themselves?

I don't have time to say much more about this, so I thought I'd repeat my original post on the subject:

Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.

Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt. But the Supreme Court has often held that even when the government is distributing a strictly optional benefit, the Constitution often (though not always) prohibits the government from discriminating based on the exercise of a constitutional right.

For instance, I suspect the law generally may not bar adoptions by people who have expressed certain political beliefs, who practice certain religions, or who own guns (either if the Second Amendment is interpreted as protecting an individual right, or if the state involved is one of the many states [including Florida] whose constitutions clearly secure an individual right). The government generally may not use a person's exercise of his First or Second Amendment rights as a justification for denying them the benefit of an adoption.

The government may have some power to consider a person's constitutionally protected conduct in making this decision — in government employment decisions, for instance, the Court has held that the government has consider power to consider an employee's speech when the speech risks interfering with the efficiency of the government employer. But courts demand more than just a bare "rational basis" for such government decisions; they generally require some pretty substantial evidence that the person's exercise of his constitutional rights is substantially relevant to the government's decision.

If Lawrence does recognize a constitutional right to sexual autonomy that's akin to the freedom of speech, the free exercise of religion, and the like — which is what "fundamental constitutional right" generally means — then the government would have to show that allowing adoptions by practicing homosexuals really would pose some pretty serious problems. But if it doesn't recognize such a right, but only holds that criminal prohibitions are illegitimate (perhaps because they fail even rational basis scrutiny), then it could defend its no-gays adoption policy under a simple rational basis test.

Note, incidentally, that the Florida Constitution specifically secures a right to privacy, and Florida courts have interpreted it as protecting sexual autonomy. Given this, I think the Florida courts' earlier decision upholding the no gay adoptions statute is unsound (Dep't of Health & Rehabilitative Servs. v. Cox, 627 So.2d 1210 (Fla. App. 1993), aff'd as to the right to privacy, 656 So.2d 902 (Fla. 1995)). The courts erroneously assumed that, just because an adoption is a government-provided benefit, the government is free to deny this benefit based on a person's exercise of his right to privacy. That, I think, is wrong, just as it's wrong to say "government employment is a benefit, so the government is free to deny it to pacifists / Catholics / gun owners."

UPDATE: Here's Larry Ribstein's different take on this case.

A cool picture. Thanks to my former coworker Neil Reinhardt for the pointer.

UPDATE: Reader Eric McErlain suggests that people check out North Korea on the map. Compare it to South Korea or even to China.

The Institute for Justice — a group that I like very much — does a lot of economic liberty cases; and though the cases are very hard to win, IJ wins them a surprising amount of the time.

Their most recent high-profile case is especially interesting; it deals with a state-backed casket cartel in Oklahoma. They lost at the court of appeals, but they're asking the Supreme Court to hear the case; their theory is that the statute is justified by nothing more than a desire to enrich one group (licensed funeral directors) at the expense of another, and consumers be damned. As IJ points out, "Oklahoma requires anyone selling a casket to become a State-licensed funeral director even though casket retailers do not handle dead bodies or arrange funeral service, but instead merely sell what one federal court aptly described as 'a glorified box.' Obtaining an Oklahoma funeral director's license requires at least two years of full-time college course work, a one-year apprenticeship that requires the embalming of 25 bodies, and two exams." Not the best way to help consumers.

In fact, the court of appeals held that, under its view of the Constitution, naked economic favoritism is quite permissible: "We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." I'm surprised the issue hasn't gotten more attention. I'm not sure that the Constitution should be interpreted as providing broad economic liberty protections. I support economic liberty as a policy matter, but while the Constitution does clearly block some interferences with such liberty (consider the Takings Clause, the Contracts Clause, and the part of the Due Process Clause that prevents the deprivation of property without due process), it leaves the government with lots of room to regulate. I'm not sure how much room it leaves — I haven't done serious research on the subject — but I suspect that it leaves enough even for legislation that simply tries to favor one business group over another.

I know, though, that my friend and coblogger Randy Barnett takes a different view; and in any event, this is a very interesting subject. And even if it turns out that the Tenth Circuit is right and that naked economic favoritism for one industry is constitutional, it's still a pretty bad idea, and I wish that the media did more to cover how these laws harm consumers as well as competitors.

UPDATE: Todd Zywicki reminded me that he posted about this case as well several months ago; check out his thoughts.

For his first birthday, my brother Sasha gave Ben a booklet of his (Sasha's) favorite poems (naturally, in five different languages). I was leafing through it a few days ago and ran across this gem that I'd always found very amusing, from Hilaire Belloc's Moral Alphabet:

B stands for Bear. When Bears are seen
Appproaching in the distance,
Make up your mind at once between
Retreat and Armed Resistance.

A Gentleman remained to fight.
With what result for him?
The Bear, with unconcealed delight,
Devoured him limb by limb.

Another Person turned and ran.
He ran extremely hard.
The Bear was faster than the Man,
And beat him by a yard.

MORAL

Decisive Action in the hour of need
Denotes the Hero (but does not succeed).

I'm pleased to say that my wife is pregnant again, with another boy who is due April 30 (Ben's first-a-half birthday, as it happens). I say this chiefly to set the background for a response I've been giving recently when people ask how many children I have. "That's a controversial political question," I say.

Here's what DeLay said at a congressional prayer breakfast that seemed to heavily focus on the tsunami; from what I've been told, this is pretty much all he said:

A reading of the Gospel, in Matthew 7:21 through 27.

Not every one who says to me, "Lord, Lord," will enter the kingdom of heaven; but only the one who does the will of my Father in heaven.

Many will say to me on that day, "Lord, Lord, did we not prophesy in your name? Did we not drive out demons in your name? Did we not do mighty deeds in your name?"

Then I will declare to them solemnly, "I never knew you: depart from me, you evil doers."

Everyone who listens to these words of mine, and acts on them, will be like a wise man, who built his house on a rock:

The rain fell, the floods came, and the winds blew, and buffeted the house, but it did not collapse; it has been set solidly on rock.

And everyone who listens to these words of mine, but does not act on them, will be like a fool who built his house on sand:

The rain fell, the floods came, and the winds blew, and buffeted the house, and it collapsed and was completely ruined.

Alan Colmes on Hannity & Colmes pointed this out last week, and the DemWatch blog did the same (thanks to Justin Sadowsky for the pointer).

I certainly have nothing against Congressmen quoting the Bible as such. Still, I wonder whether this verse was particularly suited to the occasion. It sounds to me — and perhaps I'm missing something — like blaming the innocent victims: If only they listened to Jesus's words, their house (literal and metaphorical) wouldn't have collapsed. In other contexts, quoting the verse (perhaps as an allegory, for instance when a person does suffer because of his own moral error) might make perfect sense. In this context, this seems quite troubling. Either DeLay's view is that indeed the tsunami victims were injured partly because they hadn't listened to Jesus's words; or if that's not his view, then he didn't seem to choose particularly apt words for the occasion.

Of course, DeLay might have been reminding his fellow Christians of the importance of listening to Jesus's words — let this event be a lesson to us, he might be saying, about the need to rely on God for protection. But wouldn't that still be blaming the victim? After all, if Christians can learn a lesson from this, the lesson presumably would be that they could avoid disaster by doing something that the disaster victims didn't do (accepting Jesus's words).

Now I realize that some people do sincerely believe either that (1) God exacts retribution against those who don't accept Jesus's words, or (2) the world is a dangerous place, and God gives special protection (including from natural disasters, though they are presumably at least indirectly God's doing) to those who accept Jesus's words. But people who don't share this view (like me) may look askance at political leaders who do blame the innocent victims of disasters this way.

UPDATE: Several readers suggested an alternative explanation; here's a good sample, from reader Mike McBride:

As someone who spent a good 10 years teaching bible study to students, and learning to interpret Biblical passages I don't think Delay was trying to blame the victims. The parable he quotes, as with many of the parables from the Gospels, is symbolic in nature. When Jesus talks about building a house on sand he's referring back to the first part of the quoted text. What he means is that trying to "work in His name" without knowing him and having faith in him is building your house on sand. Without that faith, it will not stand the test. But putting your faith in him, and following Him is building your house with a strong foundation. It is a metaphor He uses quite often, many parables include references to the foundation of your building and standing the test of the end-times. He is not speaking of a literal house or a literal flood.

I think DeLay's point was that we should have faith in God and nothing that happens on this Earth can take away the relationship we have with God, but he might have picked a better parable, that's for certain. :)

That surely is a plausible reading of the parable in many situations. Yet when it's said following an actual flood that actually destroyed people's houses, it sounds a bit more literal. After all, the problem of the tsunami victims -- and the breakfast was focused on the tsunami -- isn't that they were "trying to 'work in His name' without knowing him and having faith in him," and therefore failed in their works. They were just trying to live their lives, and along comes this flood that kills them or washes away their homes and livelihoods. And now DeLay seems to suggest that this is because they didn't listen to Jesus's words.

On the other hand, perhaps I wasn't paying enough attention to the introductory phrases. After all, the tsunami victims weren't prophesying in God's name, or driving out demons in His name, or doing mighty deeds in His name -- that introduction does seem to refer to people who are nominally believers in God as Jews and Christians understand him, but who do not actually heed God's words (unless there's some complex theological reference here to Muslims who claim to follow the God of the Old Testament but don't adhere to Christian teachings about how that is to be done). So perhaps in that context the material is indeed targeted to those who think of themselves as Christians but don't heed Jesus's words -- as reader Davis King suggests, using "a well-known passage frequently used in religious circles as a call to action and a condemnation of hypocrisy" -- rather than to those who aren't Christians and don't follow Jesus because of that.

Here's an e-mail I got not long ago:

Prof. Volokh,

I ordered Academic Legal Writing over the summer and, yes, it really did increase my penis length by 3 inches . . .

Uh, whoops, that's not right. Look, it didn't even increase my penis length, no matter how many times I re-proofread it. Ah, here's the right e-mail:

Prof. Volokh,

I ordered Academic Legal Writing over the summer and read it twice just before starting my 1L year at the University of South Carolina. Our legal writing grades were posted this morning; I received an A. There is absolutely no doubt in my mind that your book is what made the difference. Thanks!

Todd Kincannon

These are the e-mails authors love to see, and to brag about. Actually, I must confess that the book isn't aimed mainly at helping people with their first-year legal writing papers. The main value that it adds — the fields in which it's most novel and nonobvious, to borrow a couple of criteria from the book itself — comes in advising people how to write student articles, how to succeed in law review write-on competitions, and how to write seminar papers. The "Writing" chapter of my book applies to a wide range of legal writing, but quite a few other legal writing books have lots of good writing tips.

Nonetheless, it sounds like my correspondent — who is not tied to me by bonds of blood, preexisting affection, or kickback — did get something useful out of the book. He probably got similar advice from the book assigned for his first-year writing class, but sometimes reading something in two places, presented in two different ways, can open one's eyes in a way that reading it in one place won't. In any case, I'm delighted that he found it helpful, and I hope that others can, too. Again, the Second Edition of the book is now available from amazon.com and from me.

Incidentally, while all authors like royalties, these surely aren't a major source of income for me. Young Benjamin won't be going too college on the royalties from this book.

My main reason for relentlessly plugging this isn't the money, but the time: I spent many months writing the book, editing it, proofreading it, and thinking about it. I put in a lot of ideas that I hope are good and useful ones. I'd like to see as many people as possible read and use those ideas. Someone once asked me whether writing is hard. Not terribly hard, I said — the really hard part is getting people to read. That's why I figure I need to spend time promoting my works (whether sold for money or distributed for free) as well as producing them. Hope I haven't gotten on my readers' nerves too much . . . .