[Eugene Volokh, 12:44 PM]
HOW THE AMERICAN BAR ASSOCIATION IS "ENCOURAGING DEBATE": Check out How Appealing on the American Bar Association's complex attitudes on "encouraging debate." (As I've said before, private property owners should be legally free to exclude whatever speech they wish, and private organizations should be allowed to ask their private business partners to do so -- but private critics are equally free to criticize those decisions, not on First Amendment grounds but rather on grounds of tolerance and respect for intellectual diversity.)

 
[Eugene Volokh, 10:18 PM]
CHARLTON HESTON'S GUNS: I was very sorry to hear about Charlton Heston's illness -- surely one of the crueler fates that the world has to offer -- and I probably wouldn't have said much about it, except to express my regret and my best wishes. But since Slate's Explainer has taken on the question Will Charlton Heston Have To Give Up His Guns?, and since a reader has asked about it, I thought I'd briefly speak on the matter.

     Explainer asks "If he is diagnosed with full-blown Alzheimer's, will he have to give up his guns?," and answers "Yes," citing California Welfare & Institutions Code secs. 8100-8108:

California state law requires that anyone who represents a threat to others because of a mental disorder or illness can't own a firearm. The state also denies gun ownership to those suffering from any kind of grave illness. For Heston to lose his Second Amendment rights, a court would have to find that he has a grave illness or represents such a threat.

Here's how the process would work: If Heston's doctor suspects him to be unfit, California law compels the doctor to tell the local district attorney's office. The DA would then file a motion to revoke Heston's gun ownership rights. A judge would make the final call, after consulting with Heston's physician and, in most cases, another doctor of the judge's choosing.

Now I am not an expert on this area of the law, and I may well be mistaken, but I'm not quite sure that the law can really be read this way. Here's how I read it:

• Sec. 8100(a) bars people from possessing firearms while they're receiving inpatient care and are a threat to themselves (defined as showing some tendency towards suicide) or others (not clearly defined by the statute). Once the person is discharged (not just temporarily checked out, but discharged) from the inpatient facility, or if the person is not being treated as an inpatient, the section doesn't apply. I don't know much about Alzheimer's, but as I understand it, it doesn't generally call for being checked into an inpatient faciltiy.


• Sec. 8100(b) bars people from possessing firearms if they have communicate to a psychiatrist a serious threat of physical violence against an identifiable victim. Doesn't seem applicable here.


• Sec. 8102 provides for the temporary confiscation, which could be made permanent, of firearms from people who are "detained or apprehended for examination of his or her mental condition." (It also provides for similar procedures for people covered by secs. 8100 and 8103.) I know of no plans for the detention or apprehension of Heston for such an examination, nor do I see any reason why the police to do that.


• Sec. 8103(a) is limited to people who are adjudicated by a court to be dangers to themselves or others, or as sex offenders. I suspect that very few of the millions of people who suffer from Alzheimer's are brought into court for such adjudications, unless they actually do something that seems dangerous.


• Sec. 8103(b), (c), and (d) are limited to people who were found to be not guilty of some crime by reason of insanity, or found mentally incompetent to stand trial on some criminal charge.


• Sec. 8103(e) applies to people who are placed under a conservatorship by a court. I am not an expert on conservatorship law, but as I understand it this is one category that might cover quite a few Alzheimer's patients, since this category may often be triggered even when a person hasn't done anything that seems physically harmful to others; as I understand it, conservatorships commonly take place to protect the subject's property, ability to get proper medical care, and so on. Still, I doubt that most Alzheimer's patients are placed under conservatorships; my sense is that the family usually works this out without court help.


• Sec. 8103(f) applies to people who are taken into custody by the government or assessed by the government on the grounds that they are dangers to themselves or to others -- again, my sense is that this generally applies only to people who have committed some dangerous-seeming acts that trigger government attention. I realize that some might say that anyone who is sufficiently mentally incompetent and has guns around may thus be a danger to others -- but even if this is so as a factual matter, the test isn't whether the person is a danger to others, but rather whether he has been taken into custody or assessed on those grounds, something that I doubt routinely happens until the person engages in some positive act that seems potentially harmful.


• Sec. 8103(g) applies to people who have been certified for intensive treatment after being taken into custody on grounds that they are threats to themselves or others or are gravely disabled; again, though, it's limited to people who have been taken into custody on these grounds, which to my knowledge Alzheimer's patients generally aren't, at least until they engage in specific acts that suggest to the authorities that they are a danger.


• As I read the sections, a doctor is not obligated to report anything to the police except if the patient communicates to the doctor a serious threat of physical violence against an identifiable victim. See secs. 8101(b), 8105(c). Perhaps there are other statutes that require a doctor to report a patient's disability, but I'm unaware of them, and the Slate article didn't mention them.

     So the bottom line: Based on my reading of the statute that Slate cites, and other sections referred to by the statute, an Alzheimer's patient will generally not be stripped of his right to own a gun unless he (1) is placed under a conservatorship, (2) communicates to a psychotherapist a serious threat of physical violence against an identifiable victim, or is (3) taken into custody by the government or assessed by the government on the grounds that the person is a threat to others or is gravely disabled, something that typically (to my knowledge) doesn't happen unless the person commits some act that is seen by government authorities as potentially dangerous. If Heston can avoid fitting under these categories -- which seems quite likely, at least unless it is found necessary to place him under conservatorship for financial or medical care reasons -- then he won't have to give up his guns.

     All of this is a legal analysis, not a policy analysis. Whether people who are suffering from Alzheimer's should have their guns taken away is a different question; to evaluate it, I take it we should investigate, among other things, (1) how often such people harm others or inadvertently harm themselves with guns, (2) how likely people are to err in diagnozing sufficiently severe cases of Alzheimer's, and (3) more broadly, how concerned we are about ceding considerable legal power to the expert judgment of psychiatric professionals. The answer might be that people who are suffering from "full-blown Alzheimer's" should have their guns taken away; I just haven't investigated the matter closely enough to tell.

     But as a legal matter -- and stressing again that I am not an expert in this field -- my tentative view is that Slate's analysis, and especially its unqualified "Yes" answer to the question that it asks, is not quite sound. Charlton Heston has enough to worry about; I don't think he needs to worry that he will be officially stripped of a right that he believes to be quite valuable, and the loss of which might be greeted with some pleasure by some (though surely not all) of his political adversaries. I welcome correction, though, from others who are more knowledgeable on this statutory scheme than I am.

UPDATE: For more on whether Heston would likely have to be placed under conservatorship, see this post.

FURTHER UPDATE: See here and here for some reactions by Slate that are much to its credit. Perhaps we can soon get to the bottom of all this!

 
[Eugene Volokh, 5:03 PM]
FISKING: Three people asked what "group-Fisking" means in this post, which borrows the term from an InstaPundit post.

     The term refers to Robert Fisk, a journalist who wrote some rather foolish anti-war stuff, and who in particular wrote a story in which he (1) recounted how he was beaten by some anti-American Afghan refugees, and (2) thought they were morally right for doing so. Hence many pro-war blogs -- most famously, InstaPundit -- often use the term "Fisking" figuratively to mean a thorough and forceful verbal beating of an anti-war, possibly anti-American, commentator who has richly earned this figurative beating through his words. Good Fisking tends to be (or at least aim to be) quite logical, and often quotes the other article in detail, interspersing criticisms with the original article's text.

     If someone can send along a link to the earliest use of the term, I will gladly include it.

 
[Eugene Volokh, 1:54 PM]
LINGUA FRANCA: A great point from Making Light:

For many years now I've had a theory about the coming world language: In the future, everyone on the planet will speak a language they believe is English. Many of these versions of English will be mutually unintelligible.

 
[Eugene Volokh, 1:33 PM]
WHEN PEOPLE ASK THE GOVERNMENT TO TAX THEM MORE: A story in yesterday's L.A. Times begins "It's a rare day when people ask the government to tax them more, but that's exactly what dozens of California's wealthiest residents are urging state leaders to do as a battle heats up over a new state budget."

     Uh, not exactly: If dozens of California's wealthiest residents really just wanted the government to tax them more, they could save the legislature some work and simply send in the extra taxes they'd like to pay as a donation to the treasury. (True, that technically would be a voluntary donation and not a tax, but the financial effect would be pretty much the same.)

     To be exact, these people (Ed Asner and others) want the government to tax them and lots of other people more. A significant difference, it seems to me.

     I recall that this morning's NPR Morning Edition had a segment saying pretty much the same thing that the L.A. Times opening paragraph said, but I'm not positive.

 
[Eugene Volokh, 11:32 AM]
SELF-GENERATED DENIAL OF SERVICE ATTACKS: My friend and fellow lawprof Joe Olson writes, following an exchange related to some mysterious computer glitches:

Computers (and the 'net), recognizing me as an interloper to cyberspace, often conspire to self-generate denial of service attacks against me.

Happens to us all, often enough. "The Internet sometimes views humans as damage, and routes around them."

 
[Eugene Volokh, 11:12 AM]
A WOMAN'S RIGHT TO CHOOSE to defend herself.

UPDATE: Tim Lambert disagrees with Lott's assertion that "The probability of serious injury from a criminal confrontation is 2.5 times greater for women offering no resistance than resisting with a gun." I haven't had a chance to look closely at the details, but I thought I'd provide Lambert's response as well as Lott's original claim.

 
[Eugene Volokh, 9:37 AM]
KICKING MYSELF: Editing my Slippery Slopes draft, I ran across a bunch of claims that something "is a good thing." "Whether this heuristic is a good thing." "This can be a good thing." "Is actually a good thing."

     When did that start slipping into my writing? There's an English word that means "a good thing," and it's "good" -- as in "whether this heuristic is good," "this can be good," or "is actually good." Blecch. These things slip into one's usage, and then one uses three words instead of one without even thinking about it.

UPDATE: Reader Gregory Taylor points out that "It's a good thing" is a Martha Stewart tag line. I have very little Martha-Stewart-consciousness myself (perhaps as little as an urban American dweller can), so I don't think I picked it up directly from her stuff, but perhaps I was influenced indirectly, as the phrase has become more popular. (It's long been around, but Stewart may have popularized it.) If so, then I do hope that the feds are throwing the book at her -- I want her to fry for this!

 
[Eugene Volokh, 9:32 AM]
CURRENT D.C. MAYOR THROWN OFF THE NOVEMBER BALLOT: From Williams v. D.C. Bd. of Elections & Ethics, a decision by a 3-judge panel of the D.C. Court of Appeals, handed down Tuesday:

     Anthony Williams, the Mayor of the District of Columbia, petitions for review of a decision of the . . . Board of Elections and Ethics denying him a place on the ballot for the Democratic mayoral primary election scheduled for September 10, 2002.

     The Mayor’s principal argument before us is that the Board exceeded its authority in categorically excluding the signatures contained on nominating petitions allegedly circulated by three individuals, Scott Bishop, Sr., Scott Bishop, Jr., and Crystal Bishop. The Board’s disallowance of these signatures left Mayor Williams considerably below the 2000 signatures required for ballot access.

     The Mayor contends that the Board failed to “engage in the signature-by-signature review that would be necessary to sustain any challenge” to the signatures he offered, instead eliminating an entire class of signatures based upon suppositions of fraud and forgery in the circulation process, especially by the Bishops.

     We conclude that there is ample factual and legal support for the Board’s decision to disregard all of the signatures attributable to the Bishop petitions. The Board determined that there had been “widespread obstruction and pollution of the nominating process as it pertains to nominating petition sheets circulated by the Bishops.” In support of this conclusion, it explained that the Mayor had not even attempted to defend 214 of the 512 petition pages submitted in his petition, with 167 (or 78%) of the 214 attributable to the Bishops. Among that total of approximately 4,240 signatures, the Board found that many had been forged (the questionable pages, the Board said, were “replete with forgeries”), and the Board additionally had grave concerns about the veracity of circulator affidavits signed by the Bishops that accompanied their petitions.

     [Footnote: Even a cursory examination of petition sheets contained in the record reveals signatures casting doubt on the validity and accuracy of affidavits signed by the Mayor’s circulators, especially Scott Bishop, Jr., and Crystal Bishop, swearing to the validity of those signatures. Among the purported signatures are those of actors, television (or cartoon) characters, politicians, and sports figures -- including Robert De Niro, Wing Woo, Kelsey Grammer, Carroll O’Connor, Dudley Moore, Rosa Parks, George W., Tony Blair, Jack Kemp, Donald Rumsfeld, Kofi Annan, Martha Stewart, Stanley Marsh, George Allen, Brian Cox, Terre(a)nce Allen (listed twice), Ray Lewis, Joe Smith, and Reggie Lewis, to name just some. Also included are “Jahovas Witness” and “Saint Paul I.”

     Moreover, countless petitions signed by Scott Bishop, Jr., and Crystal Bishop appear to list names of petitioners in the same handwriting and bear signatures apparently made by the same person. At times, no address appears after the petitioner’s name, and occasionally the same name and address appear twice on the petition. One challenger alleged, without contradiction on the point, that Scott Bishop, Jr. had purportedly collected an improbable 540 signatures in one 24-hour period (i.e., one approximately every two minutes), implying that he had either forged some of the signatures or not personally circulated the petition. Other petition pages signed by Scott Bishop, Sr., contained the non-existent date of June 31.]

 
[Eugene Volokh, 7:37 AM]
HEAVYWEIGHT GROUP-FISKING: InstaPundit writes that "Responding to an earlier declaration against the war by a group of German intellectuals, a group of American academics and intellectuals (including Mary Ann Glendon, Jean Bethke Elshtain, David Gutmann, Elizabeth Fox Genovese, Samuel Huntington, James Q. Wilson, and a host of others) has written a response. There are also links to the earlier correspondence. Excerpt [omitted]. It's basically a heavyweight group-Fisking."

     The response really is excellent, and, I think, powerfully persuasive (though I confess that I didn't need much persuasion). It is also scrupulously polite, always erring on the side of understatement. Part of it, I think, is the nature of the speakers and the audience -- academics, opinion leaders, and would-be opinion leaders speaking to others like them must speak in academically measured tones to be effective. But I think that more generally, politeness is almost always more effective than rudeness, not just in persuading the other side (sometimes impossible) but also in swaying the great bulk of people in between.

     Perhaps this is what makes the group-Fisking "heavyweight" (though I'm not sure whether Glenn meant it this way) -- it's done by people who not only have heavyweight reputations, but also heavyweight skills and judgment in doing this sort of thing. If one sounds angry and contemptuous, listeners generally turn off. If one sounds polite (even supernaturally so), thoughtful, patient, and calm (which is not inconsistent with being deeply concerned and impassioned), listeners will pay closer attention.

UPDATE: Three readers ask: "What's a Fisking?" The Conspiracy answers.

 
[Eugene Volokh, 4:29 PM]
TAXES: I know very little about tax law, but reader Jim Erickson, who sounds like he knows more about it, writes the following:

Reader Silver Pelt Monkey wrote, in part "...combined government toll on my small business (10 employees) is 67% of all revenue and 76% on the last dollar of revenue...".

I am sure that the writer is making a mistake many of my clients make, which is to confuse the total amount of payroll taxes remitted to the government (including taxes) as if it was a tax on the business, as opposed to taxes withheld and remitted to the government on behalf of the employees. Although taxes are too high, they just cannot approach that percentage of gross revenues which he describes.

Sounds reasonable to me, but who am I to tell? I just pass it along FYI.

 
[Eugene Volokh, 3:19 PM]
ON THE DICK STAUB RADIO SHOW RIGHT NOW, talking about school choice and state and federal church-state provisions.

UPDATE: Dick Staub listeners -- to see a more detailed explanation of the debate about excluding religious schools, check out this post.

 
[Eugene Volokh, 3:02 PM]
WHY GUN OWNERS WORRY ABOUT THE SLIPPERY SLOPE: Check out this op-ed in the Detroit Free Press by two pro-control authors, which among other things praises "common-sense measures" such as "raising the age of ownership for firearms from 18 to 21; requiring that people under 25 seeking to purchase a gun pass a psychological examination; and banning pump-action guns."

     PUMP-ACTION GUNS: Last item first: banning pump-action guns. First, to my knowledge there's absolutely zero evidence that pump-action guns (largely shotguns and rifles) are particularly likely to be used in crimes, accidents, or any other misconduct. In fact, pump-action guns are no more lethal than bolt-action guns, semiautomatic guns, and so on. If pump-action guns were banned, people would simply substitute the other guns -- there's no plausible scenario that I can imagine under which this wouldn't happen.

     What are the chances that the pro-control advocates will then say "Oh, OK; it's true that there are as many gun-related deaths as before, since people are using other guns besides the pump-action ones, but our proposal was simply related to pump-action guns, and since we've won on that, we're just going to disband"? Pretty low -- the likely response will be "close the loophole by banning all these other guns that are functionally equivalent to pump-action guns." And, as it happens, all shotguns and rifles are functionally not that different from pump-action shotguns and rifles.

     In fact, for a while those who supported handgun bans stressed that of course they weren't trying to seize all guns -- only handguns. Well, then it was "assault weapons"; then some started to call for banning semiautomatics generally; now it's pump-action guns. Seems like those who thought the handgun bans were just the first proposed step towards a total ban on guns might have had a point . . . .

     AGE: How about raising the age of ownership for guns from 18 to 21? Well, this might seem less troublesome -- people already have to be to 21 to drink, and 21 at least seems like a traditionally recognized dividing age between more or less full adult rights and some level of minority.

     It's curious, though, that the proposal is spoken of in the same sentence as a requirement of a "psychological examination" for people under 25. So 21-to-25-year-olds will also be put in a zone of reduced rights -- they can get a gun, but only following a "psychological examination," with all the intrusiveness and subjectivity that's inherent in such processes.

     What's more, 18-to-25-year-olds, and even 18-to-21-year-olds, may be just as much in need of self-defense -- perhaps even more so -- as people over 25. Many of them live alone, without an older person who can defend them. And according to the Michigan Constitution's right to bear arms provision (and similar provisions in most of the other states, even setting aside for now the Second Amendment), "Every person has a right to keep and bear arms for the defense of himself and the state." It's not implausible, given traditional rules of constitutional interpretation, to read "every person" as "every adult" (or even every adult who's not a felon or eligible for commitment to a mental institution). But 18-to-21-year-olds, as well as 21-to-25-year-olds who don't impress a psychologist (perhaps a psychologist who might not think much of gun ownership generally), still seem entitled to this constitutional right.

     As I've mentioned elsewhere, lots of organizations, commentators, and politicians have overtly called for bans on handguns or (more rarely) even bans on all guns. But many of the supposedly "moderate" advocates who say they only call for limited "common-sense" restrictions make proposals that -- if adopted -- seem quite likely to lead to something very similar.

     If you think that total bans on handguns -- or limits that let people have guns only if the police or psychologists, in their discretion, choose to allow this -- are a good idea, then by all means support these "common-sense" "moderate" steps, since they're likely to take you to where you want to go. But if you think that law-abiding citizens generally should have the ability to defend themselves when the police aren't there to help, then be careful about these "common-sense" proposals: You might get more than you bargained for.

 
[Eugene Volokh, 1:26 PM]
WHY I AM AN OPTIMISTIC LIBERTARIAN: Reader Silver Pelt Monkey very kindly writes:

Please accept my heartfelt thanks for your principled work on personal liberty. . . . I have recently been perusing your weblog and found myself wondering, "How does he maintain such an optimistic, cheery attitude?" I am no legal scholar, but I can not reconcile what is happening in our country today with a bright future.

Our government no longer even pretends to be bound by the constitution. While I have no first-hand knowledge of Jose Padilla or Yaser Esam Hamdi, the sight of the government abducting and holding them without charges, access to legal counsel, or any other basic, constitutionally guaranteed protections is extremely disturbing. The only thing I find more disturbing is the lack of public outcry over this outrage. I am writing to you with this crude bit of anonymity (please do not attempt to compromise it) because of my very real fear that even moderate public discussion of this most dangerous behaviour could land me in the same military brig.

The list goes on, as I am sure you are aware.

The Supreme Court refuses, once again, to hear substantive Second Ammedment cases. We've endured 6 or more decades of wholesale violations by federal, state, and local governments and yet the Supremes still refuse to consider the issue. . . .

Our right to free travel and suspicionless searches and seizures has all but disappeared, the TSA announces plans to extend their extra-constitutional search powers to buses, trains, and no doubt private automobiles, and no one objects. If they are objecting, they are not being heard very well.

Our tax burden has grown to the point where it may accurately be described as slavery; I am by no means a wealthy individual but the combined government toll on my small business (10 employees) is 67% of all revenue and 76% on the last dollar of revenue. Most of the monies are put to uses that I find not only unauthorized by the constitution, but morally repugnant as well. I am put in the position of choosing to improve my wealth and lifestyle at the expense of financing a despotic, tyranical government, or lowering my standard of living. This is a far cry from "life, liberty, and pursuit of happiness."

I could go on, but I've been too verbose already. How do you do it?

     I appreciate some of the reader's substantive concerns, and I too am worried about the growth of government power and the erosion of liberty. But I think there are actually plenty of reasons to be optimistic, especially in the way things have changed in the past few decades. Each of us must balance the reasons for optimism and pessimism for himself, and I don't want to deny that there are some reasons for pessimism. But just to cheer up my libertarian friends, here are a few items:

1. FREE SPEECH. Free speech is generally much more strongly protected against government intrusion than it ever has been in American history. Yes, there are some dark spots, but many fewer than before. Anti-government advocacy is very strongly protected, even during wartime; people are criticizing the government, and are certainly not being thrown in a "military brig"; I've closely tracked reports of governmental speech restrictions since the start of the war, and have found extraordinarily few. Sexually themed speech is pretty strongly protected by historical standards. Commercial advertising is more constitutionally protected than ever. On balance, we're freer to speak than ever before.



2. SEXUAL RIGHTS. People have been freer since the 1960s/1970s to engage in noncommercial sexual activity with fellow consenting adults than at any time in American history. "Deviant" consensual sexual conduct is almost never punished; yes, there are still some laws on the books against it, the Supreme Court has held that those laws are constitutional, and on very rare occasions there are some prosecutions under those laws. But on balance the laws have fallen into disuse, and many state courts (including some in the South, an area that many see as still being restrictive of homosexual activity) have held the laws unconstitutional under state constitutions. There are of course other freedoms than sexual freedom, but sexual freedom is important to people's lives; and the legal restrictions on sexual freedom have in the past ruined many lives, especially the lives of homosexuals. It's good that these restrictions are largely gone.



3. FREEDOM OF WOMEN AND BLACKS. Until the 1960s, much of the country was living under legally enforced racial segregation, and blacks were excluded, by official government action, from a wide variety of opportunities. Until the late 1960s, states still had laws barring blacks and whites from marrying. Likewise, until that era, women were barred by government action and not just by private choice from a variety of jobs, both in the public and the private sectors. There are cogent arguments against some aspects of modern civil rights laws that interfere with private choice (arguments that are quite complex and that I will set aside for now) -- but surely the dramatic diminution in government discrimination, both as to benefits and as to basic rights, based on race and sex since 1964 is a great boon to liberty. Our daughters will have much more freedom than women who grew up several decades ago had.



4. GUN RIGHTS. There indeed have been more restrictions on private gun ownership -- and thus on the fundamental moral right of self-defense -- instituted since the 1960s. But even there things aren't entirely grim. Since the mid-1980s, the number of states in which pretty much any law-abiding adult has a right to get a permit to carry a concealed weapon has risen from 9 to 32; and note that restrictions on concealed carry are not a new thing, but date back to the early 1800s. Since 1970, 15 states have added a right to bear arms to their state constitutions, or broadened an existing right. It's far from certain that the Court will accept the individual rights of the Second Amendment, but my sense is that it's likelier than at any time in the last 70 years.



5. ECONOMIC RIGHTS. Economic rights are not as protected constitutionally as I would like them to be (though this is partly a problem with the constitutional text, and not just with court decisions); but I suspect that the political sentiment in favor of economic freedom is on balance much stronger than it was in 1970, or even 1960. The highest peace-time federal marginal individual income tax rate was 91%, around 1960; now, unless I'm mistaken, it's generally 38%. Rent controls have been largely (though unfortunately not entirely) eliminated. Both the Republicans and the Democrats are on balance much more pro-free-market than they were in 1960 and 1970. There have been some unwarranted new constraints imposed on economic rights -- but I think that on balance the picture is looking pretty good.



6. INTERNATIONAL FREEDOM, AND NATIONAL SECURITY. Communism, the greatest menace to liberty -- both our liberty and the liberty of others in the world -- since World War II is largely defeated (though of course China, Cuba, North Korea, and Vietnam are unfortunate exceptions, though it seems that at least China and Vietnam are moving in the right direction). Hundreds of millions of people who were once subject to totalitarian regimes are now considerably freer than before, both as to economic and noneconomic rights. East Asians and South Americans are, to my knowledge, generally freer of authoritarian regimes than they were in the 1960s and 1970s (again, setting aside China, North Korea, and Vietnam). And as a result, while we still face menaces to our lives and liberty from abroad, I think those risks are on balance smaller than before (though I recognize that technological advances may increase those risks).



7. CRIMINAL JUSTICE, SEARCHES AND SEIZURES, AND THE LIKE. The police do have considerable power today -- but I think such power is necessary to protect ourselves against those private individuals (foreign and domestic) who would deny us our life, liberty, and property. (In fact, the two areas in which I'm most pessimistic are crime and educational quality.) The Contsitution doesn't ban all searches and seizures, only unreasonable ones; and courts are right to recognize that many searches, such as airport searches, are reasonable. What's more, while abuses happen, they're hardly anything new -- police brutality and corruption have been with us ever since we've had police, and I know of no evidence that they've increased in the last several decades. Moreover, the Supreme Court has installed more federal constitutional constraints on the police since 1960 -- until the early 1960s, the Fourth Amendment wasn't even seen as applying to state officials. Military detention does indubitably pose potential risks to liberty, though as I've written before on this blog, there are also powerful justifications for it, in a narrow range of cases. But on balance even there, I don't think our liberty is more in jeopardy from the police and the military than it has been before.

I stress again: There are bad signs as well as good signs, and our optimism certainly shouldn't make us any less vigilant. But I think pessimism may be more of a threat to vigilance than optimism -- people who get too pessimistic might feel (wrongly) that things are already so bad that they can't get worse, and as a result fail to protect what liberty they do indeed possess but that they ignore in their excessive gloom. And extreme pessimism is, I think, factually unfounded.

     And more broadly, optimism is just more fun! We live in the freest country in an imperfect world. We are richer than we ever were. By any objective measurements, we are on balance healthier than we ever were. We are indeed very broadly free to say what we please, without serious risk of government suppression. There's real reason to rejoice -- though also, of course, to diligently protect what freedom we have, and to greedily seek more.

 
[Eugene Volokh, 9:26 AM]
RIGHTS: Reader Cowboy Joe asks: "I was thinking of rights the other day and how it seems that people constantly misuse the word (at least in a legal/governmental sense). I was wondering what you use as a legal definition for a right. The best definition I (a layman) have been able to come up with is: A right is an immunity from law, keeping it entirely negative in nature."

     I sympathize with Cowboy's concerns, because I agree that many claimed rights to government action, e.g., some supposed constitutional right to an education or welfare, shouldn't be recognized as rights. But I don't think these claims can be rejected just because they don't fit some legal definition of "right."

     In legal parlance, the word "right" means, and has long meant, many different things.

1. It could be an immunity from a government action -- for instance, my right to free speech bars the government from punishing me for speaking.



2. It could be an entitlement to a government action -- for instance, the Contracts Clause gives me a right (to some extent) to insist that the government enforce my contracts.



3. It could be an immunity from private action -- I have a right, protected both by the criminal law and tort law, to bodily integrity that generally prohibits you from punching me.



4. It could be an entitlement to a private action -- if you and I enter into a contract, I acquire a right to get from you what you promised to give me.

Some legal philosophers have tried to come up with different terms for each of these concepts, and perhaps in a perfect world the concepts would indeed be called different things. But, rightly or wrongly, our legal system does at least sometimes use the term "right" to refer to each of these.

 
[Eugene Volokh, 8:23 AM]
HISTORY OF GUNS IN ENGLAND: Glenn Reynolds has a very good review of Joyce Malcolm's new book on the history of gun ownership and gun crime in England. I haven't read the book yet, though I have a copy in my office, but it sounds very much worth reading.

 
[Eugene Volokh, 7:11 AM]
LIFE IMITATING SCIENCE FICTION: Over 30 years ago, science fiction writer Larry Niven hypothesized a world where the possibility of harvesting executed criminals’ organs for transplantation leads to a steady broadening of the death penalty, as law-abiding voters see their lives depending on the maintenance and expansion of executions (see his The Jigsaw Man).

     I think it's unlike that this will happen in a liberal democracy such as ours; but something like this might be happening in China, though it’s impossible to tell because the details of the program are kept deeply shrouded by the Chinese government.

     According to a Human Rights Watch/Asia report, the harvesting of executed convicts’ organs has been an important part of the execution process for some decades, even to the point of some “executions [being] deliberately mishandled to ensure that the prisoners are not yet dead when their organs are removed.” During the same era, the Chinese government implemented various crack-downs on crime, and “the list of crimes punishable by execution in China was expanded to include . . . corruption, embezzlement, and drug trafficking.” The organ transplant program also apparently disproportionately helps the very class—government officials—that has the power to make decisions about executions: “[G]overnment cadres . . . are reportedly given preferential status for organ pro-curement”; “[i]nstructions from the [Party] leadership say that medical departments should naturally expend every possible effort to meet the needs of loyal servants of the revolution, and so organs from condemned prisoners are first of all reserved for their use.” (“[H]igh-paying foreign or over-seas Chinese patients,” who presumably pay the money to government bodies, also get preferential treatment, in circumstances that “suggest that execution dates are scheduled to conform with patient transplantation needs.”)

     The report does not specifically allege that the decisions about which crimes should be made capital or kept capital are influenced by the interest of the government in maintaining a large supply of transplantable organs; but the picture it paints suggests that this might well be so. Old news to some, perhaps, but I hadn't heard of it until I started doing research for my slippery slopes piece late last year.

 
[Eugene Volokh, 5:26 AM]
ONE OF MY FAVORITE LOVE POEMS, from W.H. Auden (the second poem in Five Songs):

That night when joy began
Our narrowest veins to flush,
We waited for the flash
Of morning's levelled gun.
But morning let us pass,
And day by day relief
Outgrows his nervous laugh,
Grown credulous of peace,
As mile by mile is seen
No trespasser's reproach,
And love's best glasses reach
No fields but are his own.

 
[Eugene Volokh, 4:19 PM]
BUYS-BALLOT'S LAW: As I mentioned, reader Joel Norris gets the Volokh Conspiracy Profound Knowledge Award, for being the first to answer this; The Watchful Babbler gets the VCPKA Amateur Class, for being the first non-professional. (The oak-leaf clusters were withdrawn at the insistence of reader [and former Supreme Court co-clerk of my dean's, so I better treat him well] Joe Zengerle: "First, an oak-leaf cluster is awarded only after an original award of the same decoration has been made for an earlier activity meriting that level of recognition. Second, the event justifying the second award would be a discrete, unique experience, justifying a single cluster only. Award inflation is no better than grade inflation. Blog on; real veterans are watching.")

     The profession, of course, is meteorology: Buys-Ballot's Law is that "if an observer [stands with the wind at his back], the lower pressure will be to the left in the Northern Hemisphere, and to the right in the Southern Hemisphere." Buys-Ballot was Christoph H(endrick) D(iederick) Buys-Ballot, a 19th-century Dutch meteorologist. Many thanks to reader Jack White for accurately labeling my original inquiry a "Very deceptive question" (doubtless because of the election season red herrings) -- I'm flattered!

 
[Eugene Volokh, 10:02 AM]
SOME GOOD LINES FROM SCOTT ADAMS' DILBERT NEWSLETTER:

I haven't been ignoring you; I've been prioritizing you.

You're the best thing since sliced tea.

No, those pants don't make you look fatter. I mean, how could they?

When I think of all the people I respect the most, you're right there, serving them drinks.

I love you more today than tomorrow.

 
[Eugene Volokh, 8:54 AM]
BUYS-BALLOT'S LAW: With the elections coming up in a few months, it's worth asking -- what is Buys-Ballot's Law, and what penalties are there for violating it? The first person to answer these questions by e-mail (volokh at law.ucla.edu) from memory will be publicly acknowledged as getting the special Volokh Conspiracy Profound Knowledge Award. (You may use reference sources to confirm and make more precise your existing memory, but not to look the term up in the first place.)

UPDATE: Reader Joel Norris gets the award, but he's a professional in the field, so we'll also be awarding a Volokh Conspiracy Profound Knowledge Award Amateur Class (with oak-leaf clusters) to the first person who's not a professional in the field who answers the question. Remember -- Buys-Ballot's Law, just in time for the election season.

 
[Eugene Volokh, 8:45 AM]
ETHICS: A reader writes "How is using a pop-up ad stopper any [more] ethical than giving false identifying information in order to get a supermarket discount card? A website is providing you (presumably free-of-charge) information on the basis that you are exposed to a certain number of ads. By using an ad-blocker you depriving the website of revenue. How is this different than the bargain given by a supermarket discount card?"

     Hmm -- seems to me that the answer is simple: Lying on a supermarket discount card application is, well, lying. It is giving someone false information in order to get something of value. (Note that I do not claim that all lying is always wrong; we can all come up with hypotheticals where it's OK. But lying in order to get something of value, which I will just abbreviate as "lying" in the rest of the post, is generally not proper.)

     Using an ad blocker is, well, not lying. Nor is it, to my knowledge, copyright infringement (a charge that may sometimes be correctly leveled against some forms of ad blocking that involve copying a program and then skipping the ads; more about that later, maybe). It's not illegal. It's not fraudulent. It's not deceptive. It doesn't breach any contract: If the Web site asked users to click on a box saying "I agree not to use pop-up ad stoppers while accessing the site," and refused to allow access to people who didn't click, then I would certainly not click on that box so long as I used a pop-up ad stopper, and if I really wanted to access the site, I'd turn off the pop-up ad stopper temporarily. But I've never seen a site that required me to enter into such a contract.

     It may well not be what the Web site operators, or their advertisers, want -- but there's nothing inherently unethical in not giving people what they want. The unethical conduct comes in breaching contracts, lying, or infringing property rights (three separate items; lying and infringing property rights are generally unethical even in the absence of any promise not to lie or infringe).

     To give an analogy, say that movie theaters decide not to let people in after the commercials have started -- but make an exception for, say, pregnant women or the handicapped. (Not a very plausible hypo, but work with me here.) Is it ethical to say that you're pregnant or handicapped, even if you're not, in order to skip the commercials? No, it's not. Is it ethical to ignore the commercials, or close your eyes and wear earplugs when they're playing? Sure.

     Both situations involve your not doing what the theater wants you to do -- watch commercials. Both forms of conduct, if common enough, may deprive the theater of revenue. That by itself is not unethical. It's the lying that makes one unethical and one quite permissible.

 
[Eugene Volokh, 8:01 AM]
POP-UP AD STOPPER: Still using PanicWare's downloadable pop-up ad stopper both on my school computer and my new home one, and it seems to have been working great. A correspondent tells me that he's had bad experiences with the software blocking some windows that he wants, but I haven't seen that yet; and in any event, the software is supposed to give you a manual override for such situations. All in all, I'm pretty happy with it.

 
[Eugene Volokh, 7:59 AM]
ATOMICA: By the way, just installed Atomica on my new computer -- I used it on my old computer and really liked it. Once you install their downloadable program (which is free), you'll be able to ALT-right click on any word, name, or place name on your screen, and get a dictionary definition, biographical information, geographical information, and the like for that term. It's not perfect, but it generally gets very good results; I like it a lot.

 
[Eugene Volokh, 7:56 AM]
WORD OF THE DAY: Just ran across a word that I didn't know -- "floterial." It wasn't in my New Shorter Oxford, and I couldn't find it through dictionary.com or onelook.com. It's legalese, and it is used to refer to electoral districts -- "A legislative district that includes several separate districts or political subdivisions that independently would not be entitled to additional representation, but whose conglomerate population entitles the district to another seat in the legislative body being apportioned." I feel like a better person for knowing that . . . .

 
[Eugene Volokh, 7:46 AM]
SAUDI MEDIA: In response to my short post about the Saudi government's limited power to control the Saudi media, a reader writes the following. I have no personal knowledge on the subject, but thought I'd pass it along for its remarks on the Saudi media/government relationship. (There's unfortunately not much more on the Rand study, which the author disagrees with but doesn't discuss in depth.)

Let me introduce myself simply as an American who lives and works in Saudi Arabia and knows something about the issues first hand. I'm not an apologist, but am one who thinks that there are usually at least two perspectives to any story.

The Rand piece was a bit of rhetorical diatribe: lots of smoke and flame, but very little light being shed.

Your point on the USG's "telling the Saudis to stop anti-US/Israel stories" is exactly to the point. While not free in the sense of Western media, the Saudi media is not exactly captive either. First, it is not government owned or operated. No newspapers, with the exception of an equivalent of the Congressional Record which reports government actions and decrees, are owned or controlled by the government. All other newspapers are privately owned.

No prior restraint censorship exists on the part of the gov't. This culture--and its papers--exist in a complex of "red lines" beyond which wise people know not to pass, even editors and writers. Criticism of Islam will lead to public uproar, not limited to governmental bureaucrats. Criticism of an individual head of state (limited mostly to Arab states) is taboo. Criticism of named members of the ruling family is certainly a transgression. But if a paper decides to run an article like this, the odds are that it will actually hit the streets, with punishment coming after the fact. As I said, not free, but not exactly under the thumb, either.

Recently, an Editor of Al-Madina newspaper--published in that city--went to jail for permitting the publication of a poem that criticized Islamic judges. That wouldn't happen in the US, but that's only because we have a constitution to protect that type of speech. I'm not convinced that had something like it been done in current Russia the editor wouldn't have seen the inside of a cell. And not too many years ago, you'd be in the same pickle if you were in Ireland, Italy, Athens or New Delhi.

There are degrees of freedom of the press. The Middle East is right down near the bottom and Saudi Arabia even closer. But it's not like Soviet media during the Cold War, either. There is freedom to a large extent. In March, the media led a popular campaign to get girl's education moved out of the Ministry of Islamic Affairs into the Ministry of Education, for instance, a change that has been noted in the US media.

That instance, however, has provided a lot of rhetorical fuel itself. Eye witnesses differ on whether or not the religious police had a role in the deaths of young girls in a school fire. Newspaper investigated both claims and could come to no conclusion about whether or not it actually happened. What they could conclude was that the Ministry of Islamic Affairs was not competent to continue running girls' schools: the building was older than permitted by law, it was a poorly converted apartment block, it had not fire or smoke alarms and no fire escapes. On this basis alone (i.e., never mind any other possible crimes), they lost control of girls' education.

This, I might add, was not a universally welcomed decision. Thousands of people have protested because they feel that boys' education is too "secular" for the good of their girls. The gov't, though, stuck to its guns, responding to the public sentiment expressed in the print media.

Everything I've said about the print media is subject to easy verification if anybody'd like to do it. Note, too, that everytihng I've said about the print media does not, repeat, not pertain to broadcast media. TV consists of soccer games and prayers, with occasional sitcoms from anywhere in the world, including the Arab world. It is politically content-free. Radio is not much better.

 
[Eugene Volokh, 7:05 AM]
SOCRATIC METHOD: A footnote that I might have to cut from my Mechanisms of the Slippery Slope article, but I hope I can keep it:

Cf. Socrates in the Phaedrus dialogue:

Soc. . . . When will there be more chance of deception—when the difference is large or small?

Phaedr. When the difference is small.

Soc. And you will be less likely to be discovered in passing by degrees into the other extreme than when you go all at once?

Phaedr. Of course. . . .

Soc. And when men are deceived and their notions are at variance with realities, it is clear that the error slips in through resemblances?

Phaedr. Yes, that is the way.

Note that this is also an illustration of the authentic Socratic method, which, fortunately, law schools do not in fact use: The teacher gives the answers in the form of questions and the student responds “Yes, Socrates.” Or perhaps the even more authentic Socratic method is for someone to ask people tough questions, until they kill him.

 
[Eugene Volokh, 2:50 PM]
MORE ON HILLS AND BEANS: Reader Maureen Mullarkey also points out that the New York Press's Christopher Caldwell writes a column about Capitol Hill, called Hill of Beans. Good name!

 
[Eugene Volokh, 12:17 PM]
SUPERMARKET CARD MESSAGES: I've gotten about a dozen messages about supermarket cards; I hope to blog a few more items about them in the next few days, but I've been swamped and haven't gotten a chance to focus on that yet -- my apologies for not getting back to all of you.

 
[Eugene Volokh, 11:32 AM]
SCHOOL CHOICE AND STRINGS: Reader Ashlie Warnick writes:

I agree with your proposition that treating religious organizations the same as like-situated organizations does not establish religion and protects free exercise (a crude paraphrasing, I know). But, one argument against religious schools participating in a school choice program might be the strings that are attached to that participation. Those strings could be applied equally to all participating schools (religious, secular private, or public) but may hurt religious schools to such an extent that they do not participate in the program (not a constitutional argument, I know -- strings just may be part of the price of participating like higher prices at the supermarket for protecting information about your buying habits).

One such "string" that I'm writing my Law Review note on is the Title VII exemption for religious organizations when it comes to employment discrimination based on religious grounds. At first blush, I think it would fail your equal treatment test - secular private schools and public schools cannot discriminate based on religion, but religious schools can. I think the exemption can be justified within your "equal treatment" rationale by viewing the Title VII exemption as an example of allowing viewpoint discrimination in a particular context. A private, non-religious school could discriminate against a teaching applicant because the teacher did not share the school's teaching philosophy. I argue that the Title VII exemption for religious schools is essentially the same thing - it just entails one kind of viewpoint that is particular salient to a religious school's teaching - the teacher's religious beliefs/affiliation. So, while the burdens (prohibition on religious discrimination) may not be precisely the same for all schools, if one sees the Title VII exemption as permitting one kind of viewpoint discrimination (religious schools are not allowed to discriminate based on the other prohibited criteria in Title VII), I think my argument can survive the "equal treatment prevents establishment and protects free exercise"
argument. What do you think?

This is a very interesting and thoughtful message; and I agree both that (1) schools should worry about the strings, and (2) this may be a policy objection to some sorts of school choice programs, and not a constitutional objection to school choice generally. I discuss the issue in more detail in my "Equal Treatment Is Not Establishment" article; my main response is that:

[The] focus on the pressure caused by school choice programs . . . ignores the greater pressure exerted by the status quo. After all, just as religious schools might conceivably object on religious grounds to some strings that come with school choice funds, so today many religious parents object on religious grounds to many aspects of the curriculum and environment in government-run public schools. The offer of a free education in a government-run school puts these parents to the choice of (1) taking this government subsidy and compromising their religious objections to the curriculum or environment or (2) sticking by their beliefs but losing the subsidy -- and of course many of these parents feel pressure to choose option two.

     So . . . the supposed constitutional defect -- here, the risk of government pressure that leads some to abandon their religious obligations -- is as present under the existing system as under a school choice system. In fact, it may be greater under the existing system. School choice programs might come with a few strings, but a school choice system at least can take a mostly hands-off approach to the conduct of each private school, just as the tax deduction system attaches some strings to the charitable deduction, but not many. But the government obviously can't take such an approach to the conduct of government-run schools, and thus government-run schools necessarily impose a vast range of "strings" on their students: You must take classes that teach you this-and-such, and are structured in the following way; you must be around students who dress in ways you might think immodest (and thus spiritually harmful for you to look at), or use language you might think is blasphemous (and thus spiritually harmful for you to hear); and so on. This is inevitable for any school that the government itself not only indirectly funds, but directly runs.

As to my correspondent's second point, I agree; while it's usually easy to tell what's "equal treatment" and what isn't, sometimes the question is harder. Does exempting religious institutions from bans on religious discrimination give them a special benefit, or does it treat them the same as other ideological institutions, which are allowed to discriminate based on whether the would-be employee shares their ideology? I think the Warnick answer is probably right, but it's a tough and interesting question. (The Court in Corporation of Presiding Bishop v. Amos (1987) upheld a similar program, though not on equal protection grounds; I like the Warnick analysis better.)

 
[Eugene Volokh, 10:38 AM]
TAXING RELIGIOUS INSTITUTIONS: Reader Mitch Freedman asks:

When can we start taxing religious institutions in light of your arguments for vouchers and your saying that a state constitution that specifically separates church from state may be unconstitutional to the extent it doesn't allow sectarian schools to take part in a voucher program?

Gore Vidal has long called for taxing religious institutions, but I have always disagreed. One of my reasons is that religious institutions do not get the same benefits (outside of the basics of fire and safety) as non-religious institutions and therefore it is unfair to tax them at least as a matter of public policy (a mere opinion of course).

Now that you and so many others seem to support further entanglement of religious institutions into our government programs, I wonder whether Vidal might be on to something. Religious institutions may be soon getting too much of a free ride, don't ya think?

Well, my short answer is that nonprofit religious institutions should be taxed precisely as other nonprofit institutions -- schools, charitable organizations, fraternal organizations, advocacy groups that don't do direct political lobbying, art museums, etc. -- are taxed. To my knowledge, the overwhelming majority of all the tax exemptions from which churches benefit are also available to other nonprofits -- for instance, donations to churches are tax-exempt not under some special "religious tax exemption" but under the broader charitable tax exemption; churches are exempted from property tax, but I believe that nonprofits are generally exempted from property tax, too. (There are a few exceptions, which I think are improper, but only a few.) As I've said before, equal treatment is not establishment.

     The Supreme Court seems to generally agree: Walz v. New York (1970) held that it was constitutional for a state to exempt church property from property tax, but the law there exempted a wide range of nonprofits, not just churches, and Justice Harlan's concurrence stressed that this generality was constitutionally required. Justice Harlan's concurrence has proven quite influential, and in fact Texas Monthly v. Bullock (1989) in fact struck down a religion-only sales tax exemption for religious works, largely on these grounds. The Court's opinions on this issue have not been as clear as I'd like them to be, but they do mostly embody the rule that I think is right -- no special tax benefits for religion, and no special burdens -- and I think are likely to go even further in that direction.

     This equal treatment rule is, I think, much better than either special benefit for religion (which I do think establishes religion, and violates equal protection principles), special burdens for religion (which I think violate free exercise, and violate equal protection principles), or a "quid pro quo" theory under which religious institutions gets some benefits and some burdens. Among other things, one major problem with quid pro quo approaches is that the institutions that get the quid are often not the ones that are stuck with the quo -- many churches get tax exemptions even though they don't run schools and thus can't participate in school choice funding programs or other similar programs. Another problem is that if one compares nonprofit religious schools with nonprofit secular schools, the quid pro quo doesn't actually work out, unless you decide to start taxing the nonprofit secular schools (which to my knowledge isn't done): Secular schools get the same tax exemption benefits that the religious ones do, but under the state constitutional provisions that exclude religion, religious schools are singled out for exclusion from the funding programs.

     Now this of course leaves an important question: Should all nonprofits be taxed, whether they are religious or secular? I think the answer is no, but I can see why some would argue that the answer should be yes. But the issue should be tax all nonprofits (religious or secular) vs. don't tax nonprofits (religious or secular) and fund all nonprofit private schools (religious or secular) vs. don't fund any nonprofit private schools (religious or secular). In both taxes or funding, neither preference for nor discrimination against religious institutions should generally be allowed.

 
[Eugene Volokh, 8:01 AM]
SURVIVOR, TEXAS STYLE (forwarded to me by ex-Texan Steve Russell, author unknown):

Due to the popularity of the Survivor shows, Texas is planning to do its own, entitled Survivor - Texas Style.

The contestants will start in Dallas, travel to Waco, Austin, San Antonio, over to Houston and down to Brownsville. They will then proceed up to Del Rio, on to El Paso, then to Midland, Odessa, Lubbock and Amarillo. From there, they'll proceed to Abilene, Ft. Worth and finally back to Dallas.

Each will be driving a pink Volvo with a bumper sticker that reads: "I'm gay, I'm a vegetarian, I voted for Al Gore, George Strait Sucks, Hillary in 2004, and I'm here to confiscate your guns!" The first one to make it back to Dallas alive wins.

 
[Eugene Volokh, 7:13 AM]
DUKENFIELD'S LAW OF INCENTIVE MANAGEMENT: My friend Mark Kleiman (kleiman at sppsr.ucla.edu), who's a professor in the Public Policy school here at UCLA, and who is one of the nation's leading drug policy experts, passed the following along to an informal e-mail list that he runs, and I thought it worth sharing (with his permission of course):

A school superintendent allowing his staff to doctor students’ answers on a set of high-stakes standardized exams has something in common with a corporate CEO holding a bundle of stock options who practices “earnings management” via bogus asset sales. Each is responding to an intense incentive system by faking success rather than producing it.

One could formulate this as a general principle: any incentive to create a result also creates an incentive to simulate the same result. The corollary is obvious: the greater the incentive, the greater the temptation. Or, as W. C. Fields put it in You Can’t Cheat an Honest Man, “If a thing is worth winning, it’s worth cheating for.” Using Fields’s real name, I propose to name this generalization Dukenfield’s Law of Incentive Management. Designers of control systems ignore Dukenfield’s Law at their peril, and ours.

A second corollary follows directly from the first: holding the level of audit effort constant and other things equal, the reliability of a measure will decline as the importance attached to it grows. To put the same thing another way: to maintain a given level of reliability, the resources invested in verifying any performance measure need to rise roughly in proportion to the stakes involved.

Yet audit and other counter-simulation systems are typically treated as afterthoughts in the design of incentive management systems. The school accountablity movement is a good example here. There are many ways of cheating on standardized tests other than doctoring the answer keys or even using questions from the test in class exercises. Simulation strategies come in a wide range of subtleties, and no doubt all of them are being used.

Unless we’re literally training children to answer examinations, all school tests are merely proxies for things we really care about. It isn’t hard to find ways of producing proxy results instead of real ones, for example by drilling students in four-term verbal analogies [Apple is to pear is catfish is to: 1) cat 2) salmon 3) fish 4) seafood 5) none of the above.) The ability to solve such puzzles quickly (and not too quirkily) isn’t a bad proxy measure for a certain kind of reasoning and interpretive skill, but it’s hardly valuable enough to rate the hour a week it took out of my 11th-grade English class. The goal back then was to fool the SAT test to get students into good colleges rather than to fool the state to get raises for teachers, but the strategy was the same.

Test results at the level of the school can also be influenced by managing the population tested; if all the worst students transfer to other schools, the average score will surely go up. For better or worse, expulsion has been made difficult, but there are other ways -- incentive-based ways, many of them -- to induce the weak players to leave the game.

At the other extreme of subtlety, dropping art and music (or even reducing hours spent on science and history) and substituting more hours of reading can be thought of either as cheating (by degrading a set of valued characteristics that the tests don’t happen to measure) or as simply responding as intended to an incentive system designed to produce literacy at virtually all costs. In such cases, discussion of the simulation risks and counter-simulation strategies will require a discussion of just what it is that the incentive system is trying to produce, and therefore what it is that the tests are intended to measure.

Testing, and counter-simulation measures to back up testing, are, of course, overhead costs of education, as opposed to direct instructional costs. Many of those most enthusiastic about testing as a management tool in public education also advocate reducing spending on overhead items, and in particular central administration, to concentrate resources on direct instruction. Those two positions may not be in contradiction -- there are, obviously, other categories of overhead -- but they certainly are in tension.

My point is not that high-stakes standardized testing for educational management is good or bad, but rather that a discussion of that issue without a parallel discussion of simulation strategies and counter-simulation strategies is hopelessly inadequate. At minimum, each proposed measure has to pass the benefit-cost test of being worth more than the resources required to create and maintain a monitoring system good enough to keep result-simulation down to an acceptable level.

Criminalizing any form of cheating can increase the investigative resources available to detect it as well as the possible losses to cheaters if detected. But note criminalization is a two-edged sword: once someone has started to cheat, the penalty for getting caught is as much a part of the incentive for concealment as the reward of successful imposture.

As a result, the rule of proportionality between monitoring resources and the benefits of cheating applies in the criminal context as well as the civil one. Applications of this principle are sometimes easier to spot at a distance than they are up close.

For example, the absurdity of assigning Mexican policemen paid 2000 pesos a month to catch criminals moving billions of dollars’ a year worth of drugs is obvious to the typical U.S. Congressman. But that same Congressman sees no problem in assigning an SEC lawyer, FBI agent, or Assistant United States Attorney paid $70,000 a year to catch corporate malefactors who can walk away with $100 million from a few year’s successful practice of creative bookkeeping. The sources of weakness aren’t identical -- to my knowledge, there’s no evidence of significant corruption in Federal law enforcement -- but the principle that a monitoring system has to fight in its weight class remains valid.

People and organizations respond to incentives: imperfectly, it’s true, but still they respond. That makes incentive management central, rather than peripheral, to all policy and management problems. But since all incentive systems generate results-simulation, and more powerful incentive systems generate results-simulation more powerfully, counter-simulation strategy should be central, rather than peripheral, to incentive-system design. In general, we should expect the costs of monitoring to rise along with the stakes created by the incentive system.

It turns out that the maxim “If you can’t measure it, you can’t manage it” expresses only half the truth. To manage one must be able, not only to measure, but to measure in the face of active impression management among those measured. Any proposal for an incentive system without explicit consideration of the simulation problem and how to deal with it should be presumed non-serious. If it’s true that management without accountablity is just cheerleading, it’s also true that creating big incentives without preventing results-simulation is just asking to be cheated. “Trust your fellow man,” says the old adage, “but cut the cards.”

Yours suspiciously,

Mark

 
[Eugene Volokh, 10:58 PM]
STOP ALL STATEMENTS: Instapundit links to a very interesting Washington Post article about a Rand corporation report that says the Saudis are enemies of the U.S. I don't know enough about the subject to express a view on the broad question, but one item struck me:

Murawiec [the report's author] said in his briefing that the United States should demand that Riyadh stop funding fundamentalist Islamic outlets around the world, stop all anti-U.S. and anti-Israeli statements in the country, and "prosecute or isolate those involved in the terror chain, including in the Saudi intelligence services."

Is this an accurate summary of the report's views? If it is, then this makes me wonder about the report's wisdom: I'm quite certain that Riyadh simply cannot "stop all anti-U.S. and anti-Israeli statements in the country," nor am I sure that we should make it try. (Anti-U.S. and anti-Israel statements in Riyadh-funded media might be a different story, at least to some extent.) If it isn't accurate, then, well, it's a pretty important inaccuracy.

     I don't insist, by the way, that all foreign countries adopt U.S. rules regarding free speech -- and given that Saudi Arabia is surely no haven for free inquiry, not that much freedom would be lost if the Saudi government added yet another category to the speech that they suppress. But there are limits, both moral and, much more importantly, practical to the Saudi government's power here, and to our power to make demands on the Saudis. And "stop[ping] all anti-U.S. and anti-Israeli statements in the country" is well beyond those limits.

     This is a pretty obvious point, and it makes me think that the Murawiec briefing couldn't have quite meant exactly what the Post says -- but it would be nice to know for sure.

 
[Eugene Volokh, 3:57 PM]
WE'RE FLATTERED. Josh Claybourn of The Hoosier Review was kind enough to give us his "Blog of the Week" award. "Recipients display excellence in content, thoughtfulness and design. Ingenuity is a big plus. The content and message of the blog is of utmost importance and only those showing the highest efforts are recognized," writes Josh. We're thrilled -- much appreciate the kind words!

 
[Eugene Volokh, 1:59 PM]
EXCLUDING RELIGION: Two months ago, in Zelman v. Simmons-Harris, the Supreme Court held that the federal Establishment Clause doesn't require that religious schools be excluded from even-handed school choice programs. But as Juan Non-Volokh points out two posts below (sorry, the hot link doesn't work because of the blogger archive bug), some court decisions -- including a decision just this morning -- hold that state constitutional church-state provisions may require such exclusion. Are those state court decisions (and state legislative decisions to exclude religious schools from programs that are open to private secular schools) constitutionally permissible?

     Generally, state courts and legislatures may interpret state constitutions in a more rights-protective way than the federal constitution. Many state courts have done this to various rights provisions in their state constitutions, such as those governing free speech, search and seizure, and right to bear arms. There's no inherent conflict between the federal constitution imposing various constraints on both the federal and state governments, and a state constitution imposing still more constraints on the state government. That's part of the virtues of our federal system -- a state's citizens may enact protections against their state government beyond what the federal constitution provides.

     But a state may not secure supposed constitutional rights that themselves violate the rights of others. For instance, a state constitution cannot provide more protection of the right to free speech by giving one race extra speech rights beyond what another race has -- this might not violate the federal Free Speech Clause (since it gives more protection than the federal clause offers), but it does violate the Equal Protection Clause, which generally prohibits states from treating people differently based on race.

     That's why I think that state constitutional provisions (and state statutory provisions) that require the exclusion of religious schools from evenhanded choice programs do violate the federal constitution. It's not that there's anything wrong in principle with state citizens having extra protection against their state legislature -- but this "protection" cannot take forms that are themselves unconstitutionally discriminatory.

     Four constitutional provisions are potentially relevant here, and if exclusion of religious schools violates any one of them, then it’s unconstitutional.

     1. The Free Exercise Clause bars the government from “prohibiting the free exercise [of religion].” The Court has treated this as an antidiscrimination rule, under which the government may not “impose special disabilities on the basis of religious views or religious status.” For example, the Court has held that even if a city may ban killing of some animals, it can’t ban only religious killing.

     The strongest response is that the Free Exercise Clause bars only discriminatory “prohibit[ions],” and excluding religious schools from a school choice program isn’t the same as prohibiting them outright. But a Court plurality has suggested that the antidiscrimination rule requires equal access to benefits as well as equal freedom from prohibitions.

     2. The Free Speech Clause bars the government from “abridging the freedom of speech”; and selectively excluding certain sets of views from broad funding programs, the Court has held, is an unconstitutional abridgement. If a funding program is open to all speakers meeting certain objective criteria -- for instance, if a public university funds a wide range of student newspapers -- the program
can’t then exclude religious speakers.

     The strongest response is that funding student private educations isn’t really analogous to funding student newspapers, because it’s vastly more expensive. When that much money is being given out, the counterargument would go, the government should have more flexibility to choose which views it wants to subsidize. It’s hard to tell exactly how the Court would resolve this.

      3. The Establishment Clause says the government shall “make no law respecting an establishment of religion,” and the Court has repeatedly said that this bars the government from “advancing or inhibiting religion,” from “endors[ing] or disapprov[ing] of religion, or from showing favoritism or “hostil[ity] to religion”:“The First Amendment mandates governmental neutrality . . . between religion and nonreligion.” Just as discriminating in favor of religion is impermissible advancement, endorsement, and favoritism, so excluding religion would be impermissible inhibition, disapproval, or hostility.

     The Supreme Court has never struck down a program on these particular grounds, so courts might conclude that these quotes are just “dictum” -- offhanded remarks that weren’t really fully considered by the Court. But they’ve been repeated often enough (in dozens of cases) that the Justices seem to have been serious about them.

     4. The Equal Protection Clause bars states from “deny[ing] to any person . . . the equal protection of the laws.” The Court has interpreted this as barring both race discrimination and religious discrimination. It’s not clear, though, whether this would bar discrimination against all religious institutions, or only discrimination among religions. (“Person” in the Equal Protection Clause includes corporations.)

     Lower courts are split on the subject; in an article I wrote a few years ago, I cite various cases that strike down discriminatory exclusion of religion, and various cases that uphold it. For a good example of a very recent Ninth Circuit case that strikes down such a discriminatory exclusion, see Davey v. Locke; for an example of a Ninth Circuit case that upholds such a discriminatory exclusion, see K.D.M. v. Reedsport School District.

     My bottom line: If the government sets up a school choice program that's open to private secular schools, then I think it's unconstitutional for it to exclude private religious schools based on their religiosity. I'm not sure whether courts will ultimately rule that way, but I think that there are good precedential and normative reasons for them to do so. (Note that this doesn't make it unconstitutional for the government to fund only government-run schools -- there, the classification is based on whether the school is run by the government, not based on whether it's run by a private religious entity or a private secular secular entity.)

 
[Eugene Volokh, 1:32 PM]
SOLICITOR GENERAL: A generally very good New York Times piece (registration required) on Solicitor General Ted Olson. Whatever you think of his politics, Olson has a reputation as a first-rate lawyer; the Bush Administration is fortunate to have him.

 
[Eugene Volokh, 11:26 AM]
HILL OF BEANS: According to a FoxNews story, "Bush administration officials said Hammadi's offer [to let a Congressional delegation visit Iraq and inspect various sites itself] amounted to a hill of beans, since the president has made clear that rigorous inspections are they only way to avoid retribution."

     Note the absence of quotes around "hill of beans" -- were they inadvertently omitted, or is the phrase now the norm for paraphrases in news stories? Hey, if it is, fine by me, but I was a bit surprised to see it.

 
[Eugene Volokh, 11:09 AM]
GUN LOBBY: By the way, note also that the Washington Post article mentioned below mentioned the "gun lobby." I wonder: Would they have called NARAL and other groups on NARAL's side of the issue the "abortion lobby"? Would they have called the Reporters' Committee for Freedom of the Press the "press lobby"? Would they have called the NAACP the "black lobby"?

     I somehow doubt it; and if my doubts are right, then "gun lobby" seems like just another example of argument by pejorative -- an attempt to win the argument by calling your enemies names, such as "X lobby" rather than, say, "X rights advocacy group." (Here the name is not among the most pejorative, but it seems to me to be pretty negative, which is why we'd surprised to see NARAL and such called the "abortion lobby.")

 
[Eugene Volokh, 10:11 AM]
WASHINGTON POST ON GUNS: Instapundit is right to criticize a Washington Post editorial on Ashcroft and the Second Amendment, but I thought I'd add another criticism. Consider the following text:

Our point is simply that the government cannot both embrace an individual rights view of the [First] Amendment and prosecute people for [illegally communicating threats, child pornography, false advertising, and such]. The attorney general is complicating efforts to prosecute people such as Mr. Pearson by adopting arguments better left to the fringes of the defense bar. Unless Mr. Ashcroft backs off, his efforts to align himself with the [speech and press lobby] will only play into the hands of more criminal suspects.

Well, actually that's not exactly what the Post wrote; it said

Our point is simply that the government cannot both embrace an individual rights view of the Second Amendment and prosecute people for wielding guns. The attorney general is complicating efforts to prosecute people such as Mr. Pearson by adopting arguments better left to the fringes of the defense bar. Unless Mr. Ashcroft backs off, his efforts to align himself with the gun lobby will only play into the hands of more criminal suspects.

But both sorts of statements are equally unsound: People, most surely including the Washington Post editorial board, can and do embrace individual rights views of various Amendments, and still recognize that these rights can in some measure be restricted. That is surely Ashcroft's view with regard to the Second Amendment, just as I'm sure it's the Post's view with regard to the First.

     Now the Post is certainly free to conclude that the "right of the people" in the Second Amendment belongs not to you and me, but to the states, while the "right of the people" in the First and the Fourth Amendment belongs not to the states, but to you and me. I've argued elsewhere that this view is mistaken, but arguments can be made for it.

     But if it wants to make those arguments, it should make them, rather than relying on the very troubling notion -- a notion that the Post itself would surely reject as to other rights -- that it's somehow wrong for the Attorney General to recognize that the federal government is indeed bound by some constitutional restraints, even when such a recognition might make the prosecutors' job somewhat harder in some cases.

 
[Eugene Volokh, 9:50 AM]
TWO GREAT ITEMS BY MICKEY KAUS: A debunking of Washington Post's uncritical reporting about attitudes about hunger, and a criticism of Paul Krugman's erroneous reporting about Bush's Texas Rangers dealings -- and Krugman's failure to properly correct his errors. Quintessential Kaus: Incisive, substantive, and witty.

 
[Eugene Volokh, 9:15 AM]
UNSCIENTIFIC, INACCURATE, AND PATHETIC: A couple of people faxed me a copy of a "poll," which they got via spam fax, asking "Should 'under God' be removed from the pledge of allegiance?" The fax starts with three bulleted paragraphs summarizing the decision and the reactions; the reason people told me about it is that one paragraph says that "UCLA Law professor Eugene Volokh believe[s] the ruling to be a reasonable interpretation of the law. He explained that the pledge 'is supposed to endorse patriotism' and not endorse religious belief." No, I actually didn't say that.

     But going beyond the unscientific (remember, this is another one of those silly self-selected polls) and the inaccurate, here's the pathetic part:

To vote, simply check one of the boxes below and fax your vote back to us. . . .
[YES]: Fax to: 1-900-860-1550.

[NO]: Fax to: 1-900-884-1550.

[In tiny print:] Calls to these numbers cost $2.95 per minute, a small price for greater democracy
Calls take approx 2 mins in standard mode. Your views are important. We make sure that decision makers are hearing them!
[In larger, bold print:] Your votes will be presented to The Supreme Court, the 9th Circuit Court of Appeals and Senate Majority Leader Tom Daschle.

Oh, yeah, your $6 is really going to give you "greater democracy." The Supreme Court and the 9th Circuit Court of Appeals will care a lot about how this self-selected "voting" comes out. (I doubt that even Daschle will care much, given that he has access to much more reliable pollsters.) Forking $6 over to these schmoes is your patriotic duty.

     Just to make things clear, I don't think that this pitch is dishonest or fraudulent; these days, people know that 1-900 calls cost money. But pathetic I think it is.

 
[Eugene Volokh, 6:05 AM]
PRESCRIPTION BENEFITS: Michael Kinsley has a good, sensible column on this -- glad to hear these views are coming from at least some parts of the liberal center as well as from conservatives and libertarians.