[Eugene Volokh, 5:39 PM]
I'M OUT UNTIL WEDNESDAY MORNING: I'm off to a wedding, and won't be back until Wednesday morning; but I hope my cobloggers will be posting Monday and Tuesday.

 
[Eugene Volokh, 12:44 PM]
OIL: Great item by Lileks about the "oil-based economy." (Thanks to InstaPundit for the link.)

 
[Eugene Volokh, 11:45 AM]
PERSONAL BLOG WITH 50,000 UNIQUE VISITORS PER DAY: InstaPundit, of course, as this trend chart shows -- and the traffic seems to be slowly rising. The Internet is a remarkable medium.

 
[Eugene Volokh, 11:35 AM]
SORRY, YOU'RE "OF THE WRONG ETHNIC ORIGIN":

James M. Friery [is] . . . a physical education teacher at Van Nuys High School . . . . Friery sought to transfer to a vacant position, identical in pay to his current job, at Van Nuys Math/Science Magnet School, located on the same campus. Russ Thompson, who was then the principal of Van Nuys High, told Friery that he could not successfully transfer to the magnet school because he was “of the wrong ethnic origin.” Friery is white.

Sounds like discrimination, no? Perhaps well-intentioned, in the view of some people, but Prop. 209, the California Civil Rights Initiative, specifically bans discrimination based on race in public employment, with no exception for "well-intentioned" discrimination.

     The Ninth Circuit has just asked the California Supreme Court to interpret Prop. 209 (which is now art. I, sec. 31 of the California Constitution) on this matter (a perfectly reasonable step for the Ninth Circuit to take, since the California Supreme Court is the ultimate expositor of the California Constitution). It has specifically asked the following questions, which I am of course delighted to answer. Oh, wait, they weren't asking me. Still, here's my two cents' worth:

     The Ninth Circuit asks: "Does a school district 'discriminate . . . or grant preferential treatment . . . on the basis of race,' within the meaning of Article I, Section 31(a) of the California Constitution, when it implements a policy that forbids teachers from transferring between schools where such a transfer would push the ratio of white to nonwhite faculty at the destination school beyond a prescribed balance?"

     You bet -- as I pointed out in The California Civil Rights Initiative: An Interpretive Guide, 44 UCLA L. Rev. 1335 (1997), the Supreme Court has held that the "simple test" for what "constitutes discrimination" is generally whether a program "treats a person in a manner which but for that person's sex[, race, color, ethnicity, or national origin] would be different." If Friery was of a different "ethnic origin," he would have gotten his transfer; because he's white, he didn't get it; that's discrimination. The policy may of course disadvantage some nonwhites at the same time as it disadvantages whites (just as, for instance, laws banning interracial marriages burdened both whites and nonwhites) -- but the policy still treats certain people in certain situations differently because of their race.

     But what about the supposed need for "role models," or broader arguments that it's a good idea for nonwhites to be taught by at least some fraction of nonwhites? Well, there's no "good idea" exception to the CCRI for discrimination. The CCRI is clearly written to ban race discrimination in public employment, education, and contracting generally, rather than leaving room for this sort of vague exception.

     The Ninth Circuit asks: "(a) If the answer to Question 1 is 'yes,' is such a policy nonetheless permissible under Article I, Section 31(a) if the school district adopts it in furtherance of its affirmative duty under the California Constitution to remedy de facto segregation?"

     Nope. Of course, the CCRI, as a state constitutional amendment, couldn't trump the federal Constitution; but the federal Constitution doesn't require this sort of race-based assignment. But new constitutional amendments do trump old ones, when they are squarely in conflict. And if the state constitution used to require such race-based assignment, and the CCRI now prohibits it, the newer provision -- the CCRI -- prevails.

     The Ninth Circuit asks: "(b) If the answer to Question 1 is 'yes,' is such a policy nonetheless permissible under Article I, Section 31(a) if it gives a school district administrator discretion to depart from the racial balancing requirement for certain race-neutral reasons?"

     Not at all. A race-based policy that leaves an administrator some race-neutral discretion is still a race-based policy. Here, the administrator applied the policy in a race-based way ("Thompson . . . told Friery that he could not successfully transfer to the magnet school because he was 'of the wrong ethnic origin'") -- that's race discrimination.

     The Ninth Circuit asks: "2. Does a policy promulgated as part of a school district’s constitutionally mandated desegregation program fall within the 'court order' exception of Article I, Section 31(d) of the California Constitution if the pertinent court order (a) approves, with modifications, the overall desegregation program as compliant with the district’s constitutional duty; (b) does not mention the specific policy in question; and (c) otherwise terminates court supervision over the district’s desegregation efforts? If so, do subsequent amendments to such a policy also fall within the 'court order' exception if they are promulgated unilaterally, without court instruction, imprimatur, or involvement, and ratified or re-ratified after the effective date of Article I, Section 31?"

     The first of these questions is the only close call in this case, but even there, the answer is "no," and the answer to the second question is even more clearly "no." The CCRI specifically says "Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section," but that's limited to, well, court orders and consent decrees. If a race-based policy is part of a preexisting consent decree, it's preserved. If it's part of a court order, it's preserved. But if a court doesn't even mention the policy in its order, and then the policy is further amended by the school district without any court participation whatsoever -- facts that the Ninth Circuit's opinion sets forth in some detail -- that policy is fully covered by the CCRI. Court orders and consent decrees are exempted; but voluntary actions by the school district are not.

     "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting," the California Constitution now says. You may think this is a good law, or bad law, but it's the law.

 
[Eugene Volokh, 11:05 AM]
HOME SCHOOLING: California is apparently trying to crack down on home schooling unless the parent has a teaching credential. (According to a Washington Times news story,

"In California, 'home schooling' -- a situation where non-credentialed parents teach their own children, exclusively, at home whether using correspondence courses or other types of courses -- is not an authorized exemption from mandatory public school attendance," state Deputy Superintendent Joanne Mendoza wrote in the July 16 memo to all school employees.

I have little trouble with the government imposing certain output requirements on home schooling, for instance requiring the kids to get good results on periodic tests. (Failing to make sure that one's kids are adequately educated seems to me to be a form of child abuse, and I think the government is morally entitled to protect kids against this, though there are obvious pragmatic and public choice risks even with such requirements.)

     But this sort of input requirement strikes me as just plain silly -- is there any reason to think that a parent can't teach his own kids well without a teaching credential, or even that getting a teaching credential (which as I understand it requires a very considerable amount of time) will markedly improve a parent's teaching ability?

 
[Eugene Volokh, 10:55 AM]
FOREIGN INTELLIGENCE SURVEILLANCE COURT opinion criticizing the Administration is here, in full text. Haven't read it yet, but hope to soon.

 
[Eugene Volokh, 10:45 AM]
FACTS, PLEASE? Slate's Chris Suellentrop (whose work I generally much enjoy) has a readable and factually detailed profile of Richard Perle, one of the strongest advocates of attacking Iraq. The piece is mostly about Perle's unorthodox but successful approach to politics, and provides an interesting and generally balanced glimpse inside the Washington scene. Until, that is, the second-to-last paragraph, which says, in its entirety:

But Perle has also consistently fallen prey to the delusion that if only Saddam Hussein can be removed from Iraq, the seas will turn to chocolate, candy will rain down from the sky, and the international community will sing as America buys the world a Coke in celebration. It's the kind of simplistic, doe-eyed fantasizing that liberals sometimes bring to domestic issues. Visions of sugarplums aren't enough to justify a dangerous and deadly pre-emptive war.

Uh, OK. Thanks for the opinion! It may even be a completely accurate opinion -- but aren't there some bits of evidence that might justify it? Even a quote or two from Perle exemplifying this "delusion" would have been quite helpful; again, for all I know, maybe Perle does paint too rosy a picture of what will happen if Hussein is removed. But especially since the characterization of Perle's beliefs in this paragraph is clearly in some measure hyperbole, why not give some factual details supporting the characterization? In a factually rich article, why give no facts at all that support a serious charge against the subject (especially given that the Web eases some of the rigid word count limits of print)?

 
[Eugene Volokh, 10:31 AM]
FREE SPEECH IN CANADA: A Canadian newspaper reports that

The Canadian Human Rights Tribunal has ordered a Web site that equates gays with pedophiles, bestiality and sexual predation shut down, saying it violates federal anti-hate laws. . . .

The decision echoes one by the commission last January in which it ordered anti-Semite and holocaust-denier Ernst Zundel to shut down his Web site.

The latest case arose out of discrimination complaints by Mark Schnell, 34, of Vancouver, filed in 1999 and 2000.

Micka contended he was on a campaign to combat pedophilia, but the tribunal, which called on testimony from hate and Internet experts, said it is "directed to and target(s) the homosexual community.

"The Web site is not so much anti-pedophile as it is anti-homosexual," Sinclair wrote. "The homosexual lifestyle is persistently equated with sexual predation.

"The messages attribute to gay men uncontrollable sexual passion and aggression."

The order was issued Tuesday and publicized Wednesday. The Web site, which among other things contends gays have an agenda to legalize pedophilia, was still operating Wednesday.

     I have no sympathy with the site's anti-gay perspective, either in style or in substance; I don't believe there's anything inherently immoral about homosexual behavior, and while there are doubtless bad gays, there are lots of bad straights, too. But it does seem to me fundamentally important that in a democracy, people be able to debate religious, moral, and empirical questions related to sexual orientation. (Seriously, exactly where would you draw the line between punishing the sort of criticism described in the story and punishing people who distribute passages from the Bible or religious works that are even more focused on condemning homosexuality?)

     I'm not expert enough in Canadian law or Canadian culture to be able to tell with great confidence that this law is bad (though I suspect that it is) -- but I am very glad that American constitutional law would protect such speech, and keep the government from suppressing it in the name of "human rights." I repeatedly read American academics praising the supposedly more "balanced," "reasonable," and nuanced Canadian and European approach to free speech. Stories like this one remind us of the dangers of balancing away free speech rights.

UPDATE: Denis Magnusson, a lawprof who saw my post about this on another list, kindly passed along a link to the Tribunal's decision.

 
[Eugene Volokh, 10:16 AM]
STILL MORE ABOUT BELLESILES AND IMAGINATION: Check out the class description for Michael Bellesiles' History 190 Freshman Seminar at Emory in Spring 2001. The title is Historical Imagination, and here's how it's described (emphasis added):

Content: This course explores the construction and representation of history. We will examine the ways in which the past is imagined and shaped, paying special attention to the invention of tradition, the creation of an imagined past, and its presentation in a number of different forms. This class examines historical novels, museums, and films, comparing research with image. There will be a number of field trips to local sites as well as some mandatory viewing of selected films. Each student will be responsible for a creative evocation of the past.

I'm sure that this might normally be quite a reasonable class description, but in light of the scandal, the words inevitably take on a different connotation. I wonder what they do for lab work . . . .

 
[Eugene Volokh, 8:26 AM]
NATIONAL COALITION AGAINST CENSORSHIP FAILS TEST ON FIRST AMENDMENT: The National Coalition Against Censorship writes, under the headline "New York Regents Fail Test on First Amendment":

Q: The First Amendment
a) Does not apply in New York
b) Does not apply to Regents exams
c) Does not apply to literature
d) None of the above
Explain your answer in 25 words or less.

(For correct answer, see below.)

The revelation that literary selections on the New York English Language Arts Regents exams have been routinely censored -- without permission or acknowledgment -- has outraged authors, educators, librarians, publishers, parents, and many others. Richard Mills, New York Commissioner of Education, caved in to protests and the hoopla in the press and promised -- but failed to deliver -- immediate reform. The new June exams, which Mills touted as censorship-free, censored Isaac Asimov’s True Love, and David McCullough’s narration, Surviving the Dust Bowl (American Experience). . . .

The exams, required for high school graduation, ask students to analyze literary passages whose meanings have been obliterated or distorted. Passages by Annie Dillard were stripped of references to race, when that was the point of the story. References to Jews and Poles were deleted from Isaac Bashevis Singer’s works about Jews in Poland. Anton Chekhov’s story of servants strip-searched after a brooch was stolen was stripped of that critical information.

The alterations raise questions of intellectual honesty that go to the heart of education and intellectual freedom. . . . .

A: The correct answer is d. Ratified December 15, 1791, the 1st Amendment is the first codicil of the Bill of Rights. It applies nationwide to protect individuals from government censorship.

Actually, the most correct answer is "b," "The First Amendment . . . [d]oes not apply to Regents exams." Technically speaking, the First Amendment of course "applies" to all government action; but the Free Speech Clause does not constrain the government from putting whatever it wishes on its exams, and excluding whatever it wants to exclude. (The Establishment Clause does constrain government speech, but only when the speech endorses or disapproves of religion.) In the words of the Supreme Court, "when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes."

     The Regents' bowdlerizing authors' text without their permission may (or may not) be dishonest, politically correct, educationally unsound, or possibly even a copyright infringement. But it is not censorship, under any sensible definition of "censorship" with which I'm acquainted. And it most certainly is not a First Amendment violation.

 
[Eugene Volokh, 7:59 AM]
POEM: I took care of the details on the first submission earlier than I had expected, so here it is. Its permanent home will be on the Shards site

The Missing, by Gerard Van der Leun

Their silence keeps me sleepless for I know
Within the smoke their ash revolves as snow,
To settle on our skin as fading stars
Dissolve into pure dust at break of day.

At dawn a distant shudder in the earth
Disclosed the fold of fire into steel,
These rumbles not from subways underground,
But screams from out of towers sheathed in flame.

We stood upon the heights like men of straw
Transfixed by flames that started in the sky,
And watched them plunging down in death¹s ballet
To land among those dying deep below.

We breathed the smoke that bent and crept and crawled.
We learned to hate the smoke that lingered so.
We knew that blood could only answer blood,
And so we yearned to go and not to go.

By evening all their ash had settled so
That on the leaves outside my window glowed
Their souls in small bright stars until the rain
Cleaned us of what could not be clean again.

That last, lost summer faded into ash.
Their faces faded as the autumn flowed
Through chill and heat into the Persian sea,
Where angered warships prowled in search of stones.

Within their city, shrines were our resolve.
We placed them where they stood or where they lay.
And now upon our stones their faces loom
And gaze at us from times beyond repeal.

Their silence keeps me sleepless for I know.

          [boswell at americandigest.org]

 
[Eugene Volokh, 3:56 PM]
NOW THE BELLESILES STORY FINALLY MAKES SENSE: Aropos the latest in the Bellesiles saga, reader Ty Clevenger points to Michael Bellesiles' web page (emphasis Clevenger's):

As the founding director of Emory’s Violence Studies Program, I remain interested in an interdisciplinary understanding of the nature of violence in American society. I am currently working on a US history textbook, a history of American violence, and a study of forced sterilization in twentieth-century America. I teach courses on the American Revolution, legal history, criminal justice, violence in film and history, and historical imagination.

"Historical imagination" -- so that's what they're calling it these days . . . .

UPDATE: Still more on Bellesiles and imagination.

 
[Eugene Volokh, 2:37 PM]
JURY NULLIFICATION: Clay Conrad, the author of the book on jury nullification that I mentioned in my earlier post on this subject, has a thoughtful and interesting response on TalkLeft. I wish I had more time to react to it, but I'm swamped right now and have to regretfully pass; but I thought it was worth linking to.

 
[Eugene Volokh, 2:26 PM]
EXCUSES FOR RAPE: Mark Steyn reports on some appalling stories (thanks to InstaPundit for the link).

 
[Eugene Volokh, 10:44 AM]
A BIT MORE ON IRAQ: Kenneth Adelman writing on FoxNews.com points out this in response to Brent Scowcroft's "Don't Attack Saddam":

Scowcroft spots two situations when attacking Saddam would be warranted. First, if Saddam refused inspection of a facility in Iraq, once he agreed to U.N. inspectors returning (which he's adamantly refused for the past four years).

This, indeed, is a strange argument. Saddam's refusing to allow inspectors into one building in Iraq "could provide the persuasive casus belli," for Scowcroft, but his refusing to have any inspectors at all in Iraq somehow does not.

Come again?

Finally, Scowcroft says that "compelling evidence that Saddam had acquired nuclear-weapons capability" could warrant our attack.

Well, you needn't have been a national security advisor to wonder:

-- Is after Saddam flaunts having the bomb the best time to garner support from Turkey, Kuwait, Qatar, and the Europeans?

-- Is that the best time to send American soldiers into harm's way on his borders or into his territory?

-- Is that really the best time to liberate Iraq by ousting Saddam Hussein?

Adelman seems to have a much better argument than Scowcroft on these points.

 
[Eugene Volokh, 10:31 AM]
CONSTITUTIONAL INTERPRETATION BY PUBLIC OPINION POLL, very ably criticized by Howard Bashman in Slate.

 
[Eugene Volokh, 10:29 AM]
SHARDS: I'm delighted to say that we've gotten two first-rate poems for Shards: Poems of the War, which we'll probably be publishing next week and the week after. Please do submit more!

 
[Eugene Volokh, 9:40 AM]
AN ALTERNATIVE TO ATTACKING IRAQ: But wait a sec! Why am I talking about war against Iraq? Surely there are plenty of other alternative ways to get him to stop developing weapons of mass destruction. I know: Let's try diplomacy -- let's negotiate with Hussein, and threaten that if he doesn't, we'll impose trade sanctions! Much more humane, much more effective, much less aggressive and militaristic. Violence is never the answer.

 
[Eugene Volokh, 9:37 AM]
THE RISK OF ATTACKING IRAQ: Several readers point out that perhaps we are getting the benefits of deterrence now -- Iraq isn't using the weapons of mass destruction that it now has (which, as best I can tell, are probably just chemical) against us. But if we do attack now, then Hussein might feel he has nothing to lose, and will use the weapons. Don't back the other guy into a corner, the argument goes.

     There's no doubt that this is a serious argument, especially since it's possible that if we don't attack, and Iraq eventually builds much more dangerous weapons (nuclear or really nasty biological), it will still continue to be deterred from using the weapons against us. Attacking now might thus end up being worse than not attacking at all.

     But note that to our knowledge, Iraqi weapons of mass destruction today are limited to chemical weapons; Iraq doesn't now have nuclear bombs. Certainly that's what most of the opponents of attacking Iraq argue.

     So the balance of risk is the danger of a chemical attack if we attack soon -- perhaps even a high danger, if Hussein finds himself backed into a corner, though even there either he or his henchmen might realize that they do have something to lose -- or the danger of a nuclear attack, or perhaps a more sophisticated chemical or biological attack, in the future. Obviously, I'm vastly handicapped in my ability to measure these risks; most of us are, and even those who have the best intelligence information can only guess. But it seems to me better to risk Hussein retaliating against us on a fairly small scale today, rather than his attacking on a much larger scale five years from now.

 
[Eugene Volokh, 8:59 AM]
UNCLEAR ON THE CONCEPT. Max Power points to a New York Times article containing the following quote:

"I definitely have some feelings about any outside group exerting this kind of influence in a race, and I've been receiving angry calls from black voters all day, saying they should rally against Jewish candidates," said Representative Eddie Bernice Johnson, a Texas Democrat who is the chairwoman of the Congressional Black Caucus.

"To have non-African-Americans from around the country putting millions into a race to unseat one of our leaders for expressing her right of free speech is definitely a problem," Ms. Johnson said.

A funny definition of "free speech," Max points out (isn't free speech supposed to be a means by which the public gets to urge the election or defeat of politicians, and not a means by which politicians get to avoid being accountable to the public?) -- and also one that conveniently ignores the substantive opposition to McKinney among American blacks.

 
[Eugene Volokh, 8:52 AM]
E-MAIL: If you want to respond to one of the posts below, please look closely at who wrote it, and e-mail that person specifically (our coordinates are either listed on the left-hand side of this page, or deducible from links given on that side).

 
[Eugene Volokh, 8:50 AM]
WHAT IF THIS BRAZILIAN PEASANT WOULD HAVE PRODUCED THE MIRACLE DRUG? Some argue that it's vitally important to protect biodiversity -- and particularly various plant species -- because it's possible that the imperiled species may be important to medicine. "What if this dying species would have produced the miracle drug?" I am not an expert on biodiversity questions (though Juan is), but I've certainly heard the argument often enough, and it's certainly plausible. I've always seen it put as a matter of speculation; I haven't seen any statistics that purport to quantify this possibility. Surely, though, such speculation is not unreasonable.

     But the trouble is that, as Juan points out, protecting biodiversity isn't costless; it requires real economic sacrifices by real people. These sacrifices will leave some people poorer, and therefore on average less healthy and less educated (poverty tends to do that).

     So what if the child of a Brazilian peasant, who would have been better-educated (or would have survived a childhood disease) had his father been able to make money from clear-cutting a chunk of Brazilian forest, would have become a pharmacologist and would have invented a miracle drug, or a new cancer therapy, or some breakthrough in biological science? And what if our trying to protect biodiversity by saving plants left the child dead, sick, or uneducated, so that this great breakthrough would have been denied us?

     This is of course sheer speculation -- just like speculation that some hitherto unidentified endangered species would have produced a miracle drug. But it's plausible speculation -- certainly the genius of humans has proven helpful in producing new drugs or therapies or theories at least as often as the inherent attributes of plants has been helpful. And we know that poverty does generally inhibit education and thus people's ability to contribute to medical advances, just like killing species does inhibit the species' ability to contribute to medical advances. True, if this Brazilian peasant didn't invent the cure for cancer, someone else might have. But maybe they wouldn't have done so for years, and it isn't just one Brazilian peasant, but lots of people like him. And of course if this plant didn't yield the miracle drug, some other plant -- or some artificial process -- might have.

     Of course, one might well argue that this argument proves too much. Wouldn't it then be an argument against contraception (at least by those wealthy enough to raise educated children), since any unconceived child might have grown up to be an Einstein? On the other hand, maybe the child would have grown up to be a Hitler. That way lies madness, one can say -- one can't block otherwise valuable policies (such as protecting biodiversity) based on sheer speculation that maybe they would deny us some completely unknowable future advance.

     But if that's so, then where does that leave the pro-biodiversity argument, which urges us to block otherwise valuable policies (such as economic development by the harvesting of natural resources and turning forest into arable land, something that Europeans and Americans did plenty of, and that was certainly valuable to our advancement) based on sheer speculation that maybe they would deny us some completely unknowable future advance.

     So the bottom line, it seems to me, is that this particular argument for protecting biodiversity ("What if this dying species would have produced this miracle drug?") has some pretty distinct limits, especially when it demands real sacrifices that translate not just into poorer lives for people, but into less education and thus less advancement for the world as a whole. Precautionary principles sound like a good way of avoiding unknown risks, but the difficulty arises when there are unknown risks in both directions.

 
[Eugene Volokh, 8:32 AM]
THE LIMITS OF CONSISTENCY: Reader Henry Cohen responds to my pro-preempting-Iraq post by writing:

I see a flaw in your reasoning (posted Aug. 21, 9:02 a.m.) that there is an "alternative -- attacking now, before this sort of retaliation is required." It is that that argument could justify pre-emptively attacking anyone, as anyone could attack us. (I am reminded of Randy Newman's song, "Political Science," which advocates nuking the entire world because "they all hate us anyhow.")

     To justify attacking Iraq but not, say, England, requires us to demonstrate that the likelihood of a Iraq's attacking us is so great as to make a pre-emptive strike on our part the equivalent of an act of self-defense. But, given that Iraq has had the capacity to attack us for years and has not, we cannot demonstrate that.

Others have made similar arguments, suggesting that if we're justified in attacking Iraq, then India would be justified in attacking Pakistan (and vice versa), China would be justified in attacking us, and so on. Some have reasoned that we don't want to set a bad precedent here.

     But the answer to this, I think, is that no country whose behavior we'd like to control actually cares about precedents here. Why is India not attacking Pakistan, and vice versa? Is it because there's no precedent that allows it to launch such an attack? No way -- it's because both sides know that an attack would be a very high-cost proposition; likewise for all the other attacks one can hypothesize. That's the way it's been, that's the way it is, and that's probably the way it will be. Some argue that if we in the West only take the moral lead, we can point the world to a better way, where decisions as to whether to invade a country are done based on legal considerations and not pragmatic ones. I very much doubt it, and I don't want to throw away our ability to protect ourselves against horrible death in order to "set a precedent" (or avoid setting a precedent) that we have absolutely no reason to think anyone will follow.

     Now to return squarely to Henry's point: Even if we don't care about what "precedent" this sets (because in fact these decisions don't set precedents, because they don't in fact affect future parties' behavior), doesn't the England example show that we're morally unjustified in attacking Iraq? I just don't see how. We don't attack England because we have very good reason to believe that it is not a threat to us -- it doesn't seem remotely likely that the English government, or even rogue officials, would give terrorists one of England's many nuclear bombs. We would attack Iraq because we have some reason to believe that it is a threat to us, and that it will be still more of a threat if it has more weapons of mass destruction.

     If you want a legalistic distinction, you could point out, as my colleague Mark Kleiman did, that Iraq violated the terms of its post-Gulf-War agreements by kicking out the weapons inspectors that it promised to let in. As Mark put it, "Using military force to put an end to [Hussein's likely continued building of weapons of mass destruction] is 'preventive' in one sense, but in another it's merely a continuation of the legitimate response to his previous aggression."

     But ultimately I think that seeing this in terms of legalistic distinctions is a mistake, and one that handicaps those countries who are concerned about law while giving more power to those who don't care about law at all. Iraq is a potential threat to the lives of Americans in America. It has developed some weapons of mass destruction, and shows signs of working on more. It may soon be capable of helping bring about destruction that would make the World Trade Center tragedy look like a bad hair day. It has shown a great deal of interest in hurting America. We've tried other measures, such as sanctions, and they haven't worked (and might have in fact made matters worse).

     What rule of morality or practicality requires us to wait until our enemy is even more powerful, even more dangerous, before we act to protect ourselves?

 
[Eugene Volokh, 4:17 PM]
FIRST MEETING OF MY FIREARMS REGULATION SEMINAR: It starts 15 minutes from now, and I much look forward to it -- I always really enjoy the class, partly because the subject matter is so interesting, and partly because it's a small class (I've generally had between 12 and 20 students take it) that's focused more on discussion among the students rather than the teacher grilling one or two students about a problem.

     I hope the class will be relatively politically balanced; when I first taught it, it split pretty much evenly between pro-gun-control people, pro-gun-rights people, and middle-of-the-roaders, but the next two times it was mostly gun-rights folks -- not because they're the majority of law students, but because the class draws a self-selected group. Fortunately, if there are even 3 or 4 people on either side, the discussion can be very good; the class readings are pretty balanced; and if need be, I can and do argue whatever side needs help. But if the class is already a good mix politically, that would be better still.

     The first class session (which takes 2 50-minute hours) will be mostly some procedural explanation, then students introducing themselves, and then a discussion of the basics of gun deaths, gun crimes, gun ownership, and theories of gun control. In case you're interested, here's the first day's syllabus:

I. Gun Deaths, Gun Crimes, Gun Ownership, and Theories of Gun Control

The basic question in the gun control policy debate (setting aside for now the constitutional questions) is: Would a particular proposal make society better or worse? The answer to this ques-tion is an aggregate of the answers to the questions: How would a particular proposal affect the behavior of a particular segment of society? Unfortunately, this question is often hard to answer, because each law has many indirect and unintended consequences as well as the intended ones.
Today, we will familiarize ourselves with (1) the basic, uncontested facts about U.S. gun deaths, gun crime, and gun ownership, and (2) the basic terms of the debate.

A. Fatal accidents, homicides, and suicides: National Safety Council, Injury Facts (2000 ed.) 16-18, 28, 39, 117.
B. Raw data for 1999, by age, from the Centers for Disease Control WISQARS query sys-tem.
C. Death rates from firearms injury by age, race, and sex, from the National Vital Statistics Report.
D. Murder Victims, by weapon type, 1995-99, Uniform Crime Reports.
E. General picture of crime (other than homicide) in the U.S.: U.S. DoJ Bureau of Justice Stats., Criminal Victimization in United States, 1999 Statistical Tables tbls. 1-3, 6, 7, 9, 15-17, 20-21, 63, 66, 75, 91 (see tbl. 66 for information on gun crimes).
F. Nonfatal gun injuries: Philip J. Cook & Jens Ludwig, Gun Violence: The Real Costs 140 (2000).
G. Total gun stock, fraction of households owning guns, demographics of firearms owner-ship: TG 96-99, 101-02.
H. Theories of gun control:
  1. Carl Bogus, The Strong Case for Gun Control, American Prospect, Summer 1992, at 19-28.
  2. TG 9-18.
  3. James D. Wright, Ten Essential Observations on Guns In America, 32 Society No. 3, pp. 63-68 (1995).

For class, think about the possible effects of the following proposed laws:
* a total ban on private possession of handguns;
* a total ban on private possession of all guns;
* a regime allowing any adult who isn’t a felon or mentally incompetent to get a permit to carry a concealed handgun;
* a 14-day waiting period for the purchase of any handgun.
What will be the pluses of these laws? What will be the minuses?

 
[Eugene Volokh, 1:00 PM]
JUNK SCIENCE IN COUNCIL ON AMERICAN ISLAMIC RELATIONS POLL? Howard Fienberg offers what strike me as powerful criticisms of a CAIR poll that purports to show that "a majority (57 percent) of American Muslims say they experienced bias or discrimination since the 9/11 terrorist attacks." Fienberg points out that, among other things,

[T]he poll was conducted by fax, mail and e-mail. Surveys done in this fashion generally have low response rates. Those that do respond are self-selected, ruining any original efforts on the part of the pollster at a random sample. In the case of this survey, Muslims who feel most aggrieved would be the most likely to respond to the survey, dramatically skewing the sample.

And there are many more criticisms than that -- worth reading.

     This brings up an invitation to readers -- if you see the poll cited in the media as if it were authoritative (as opposed to the self-selected unscientific poll that it seems to be), please e-mail me links to such citations, so that fellow readers will see which media organizations were duped by it.

 
[Eugene Volokh, 12:35 PM]
MORE ABOUT DETERRENCE: Reader Jack Funchion writes a follow-up on the Internationalist Deterrence Advocates post:

If I were the Emir of Kuwait, the Supreme Ayatollah of Iran, or King Fahd, I would be working feverishly right now to unleash anthrax or a "dirty" nuke on an American city in such a way to make it at least plausible that Iraq had a hand in it. How hard could that be? My hope would be that the Internationalist Deterrence folks are right, and that the US would then eliminate my most implacable and strongest enemy. The stupid Americans would take all the blame, suffer all the consequences, and I would have my most serious security problem eliminated at little or no cost. That is the problem with the deterrence argument.

I certainly agree that this is yet another problem with the deterrence argument -- and more broadly, it further illustrates why the models of the Cold War might not work today. First, deterrence was the best we had in the Cold War; preemption, at least after the first few years, wasn't really an option. Second, at the time it was pretty clear that we'd be willing to follow up with the deterrent threat -- in this situation, it's not as clear. And third (returning here to Jack Funchion's point), in the Cold War we were pretty sure that we'd know whom to hit back; in this war, it may well be far less clear, which can make retaliation a much riskier strategy in various ways.

 
[Eugene Volokh, 12:30 PM]
FOLLOW-UP ON JEWS, ARABS, EUROPEANS, AND CHRISTIANS: My friend and colleague Steve Bainbridge quite reasonably points out that Europe today is largely not a religiously Christian society but a "post-Christian" one -- Christian in origin but no longer Christian in faith. The reference to "Christians" in Mark Kleiman's original post ("the role of the Jew in European mythos is to suffer nobly, giving the Christians both the pleasure of persecution and the more refined pleasure of regretting it") was, I think, meant to be more an ethnic designation rather than a religious one, including post-Christians as well as Christians. I would have probably written "non-Jews"; but in any event, it's surely true that many, perhaps most, of the most stridently pro-Arab and anti-Israeli forces in Europe, especially among European elites, are quite secular.

 
[Eugene Volokh, 10:28 AM]
FIRST DAY OF CLASS: My copyright class meets for the first time in less than an hour; our discussion will focus on the following problem:

Consider the following news story:

“Summer campers should pay for songs they sing the same way they pay for graham crackers, marshmallows and chocolate chips, say officials of the American Society of Composers, Authors and Publishers (ASCAP). . . .

“ASCAP has negotiated a blanket licensing agreement with the American Camping Association, under which individual camps pay a blanket performance royalty for use of music. The ACA represents large and small camps, for profit and not for profit camps.

“ASCAP officials contend that since Girl Scout and other summer camps collect fees from June to August, they too should compensate songwriters for the use of music [in campfire singing and more elaborate musical productions].” Jay Orr, Nashville Banner, Aug. 22, 1996, at D1.

(a) Do you agree that the Girl Scouts should be legally obligated to pay for the right to perform copyrighted compositions? (Incidentally, ASCAP has since reversed its position.)

(b) Let’s say that the Girl Scouts ran a Computer Camp, and wanted to be able not just to sing copyrighted songs for free, but also copy copyrighted software for free. Should they be allowed to do this?

In my experience, students tend to vote for the Girl Scouts on (a), and for the software owners on (b) -- the goal of this problem is to lead students to (1) think about why they think so, (2) think about whether their intuitions are right, and (3) recognize that our intuitions about copyright law, especially if captured in simple slogans like "don't steal others' intellectual property" or "information wants to be free" will only take us so far.

     As it happens, there's a decent though not open-and-shut argument that the statute in fact yields the results that fit the students' intuitions; but I want students to think this through for themselves, and apply the basic copyright policy arguments, both economic and noneconomic, to the analysis. Most of the semester will focus on what the law is, not what the law should be, since we're training people who are likely to become practicing lawyers, not legislators. But I think it's helpful for students to start by taking a bit of a broader policy perspective, before we get into cases and statutory provisions.

 
[Eugene Volokh, 10:12 AM]
DOING THE IGUANA: I'm trying to popularize a new euphemism that I've coined, based on a behavior pattern that I learned about when listening to Olivia Judson, author of Dr. Tatiana's Sex Advice to All Creation, on NPR's Fresh Air. The phrase is "doing the iguana," and you can learn more about it by going to this paper from the Physiological Ecology Laboratory at Princeton and skipping to the second to last sentence of the paragraph that starts "When walking among territories."

 
[Eugene Volokh, 10:02 AM]
DETERRENCE: Here's one common argument against attacking Iraq: Our European allies are against it; our Arab allies or semi-allies are against it; and it's not really that necessary, because even if Hussein develops more weapons of mass destruction, he won't use them against us, because he knows we'll retaliate in kind. If an Iraqi nuke blows up New Orleans, we'll blow up Baghdad; that, after all, is our general nuclear deterrence strategy, dating back from the Cold War.

     Let's call those people who make this argument (many of whom I generally quite respect) the Internationalist Deterrence Advocates:

1. they are internationalist because they think Americans shouldn't act without international support, and
2. they support deterrence because they say that we don't need unilateral action against Iraq since we can deter Iraqi attacks with weapons of mass destruction rather than preempting it.

     But let's think about this for a minute. Say a nuclear bomb does blow up New Orleans, or a smallpox plague breaks out somewhere in the U.S., and we think it's Iraqi in origin, but we don't have 100% proof that it's Hussein-authorized. (Hussein says it isn't Iraqi at all, and others suggest that maybe it leaked out through some rogue faction in the Hussein regime, or perhaps someone was bribed to sell it to terrorists.)

     According to the deterrence theory, this wouldn't happen because then we'd hurl a nuclear bomb at Baghdad or some other Iraqi city. But will we? After all, our European allies will surely oppose this for a variety of reasons, some of them quite understandable: There'd be vast amounts of civilian deaths, and ones that aren't just the minimal necessary collateral damage from an attack on a military installation -- and of course, there isn't 100% super-solid beyond-a-reasonable-doubt evidence that Iraq is really behind this.

     Our Arab allies will surely oppose this for a variety of reasons, some of them quite understandable -- they might themselves suffer a considerable amount of collateral damage, since there may be some nuclear fallout despite our attempts to minimize it, they may worry about huge streams of refugees, they may feel genuine kinship with the innocent Iraqis who'll be killed in the attack, there'll be more outrage aimed at them as allies of the U.S., and so on. And the "Arab street" will surely think we're at fault, because even if we have 100% super-solid beyond-a-reasonable-doubt evidence that Iraq is really behind this, the "street" may not believe us, and may in any event be outraged at innocent Iraqi civilians being intentionally killed as part of our deterrence strategy.

     Now one response from the Internationalist Deterrence Advocates may be "Who cares? When Americans are killed by weapons of mass destruction, we'll fight back against any government that's responsible, even if it means deliberately killing tens or hundreds of thousands of their civilians, no matter what the Europeans and Arabs say. So our deterrence threat will be credible after all."

     But wait a sec -- how can these people take this view? One foundation of their argument in favor of deterrence rather than preemption, after all, is that we shouldn't act without international support. But then how can we have a credible deterrent, if making good on the deterrent will arouse still more opposition?

     Now there's no doubt that the risk of massive retaliation will be some deterrent to Hussein -- but it seems to me that it's less deterrent than it might seem, and the more Internationalist we act, and the more we seem concerned about collateral civilian casualties (and during the Afghanistan campaign we were quite properly concerned about such casualties), the less the deterrence will be. Maybe even this lower level of deterrence will suffice against Hussein; but maybe it won't, or maybe it will now but not five or ten years from now when his political situation -- or for that matter his mental state -- will change. And maybe it won't suffice against some Islamist fanatic lieutenant of his who passes a nuclear bomb to his buddies.

     More broadly, this raises not just a practical point but a moral one. For deterrence to really work, we need to credibly say "If you attack us, we'll kill hundreds of thousands of Iraqi civilians simply because they are Iraqis -- not because they are unfortunately near some military installation that we'll bomb with pinpoint precision, but simply because we'll want to retaliate against you." And while we hope that saying it will keep us from having to do it, there's a chance that we will have to carry out our threat.

     Is that immoral? I don't think so, if there's no other alternative. But it's surely not morally wonderful, especially if we do have another alternative -- attacking now, before this sort of retaliation is required. The Internationalist Deterrence Advocates' position, it seems to me, misses both this moral point and the practical one that goes with it.

 
[Eugene Volokh, 9:11 AM]
THE LAWSUIT MACHINE.

 
[Eugene Volokh, 8:44 AM]
PSYCHOLOGICAL TEST: Fellow lawprof Myron Moskovitz sent me the following e-mail (author unknown):

This is a genuine psychological test. It is a story about a girl. While at the funeral of her own mother, she met this guy whom she did not know. She thought this guy was amazing, so much her dream guy she believed him to be, that she fell in love with him there. Then, a few days later, the girl killed her own sister.

Question: What is her motive in killing her sister?

Think of your answer, and then click here.

UPDATE: As reader Stacey Tappan points out, this shouldn't be taken seriously as a psychological test (as I think I suggested on the answers page). But so much that's worthwhile in the world shouldn't be taken seriously.

 
[Eugene Volokh, 8:35 AM]
THE JEWS DID IT: InstaPundit writes that CNN essentially said "It's the Jews' fault!" by saying that "In her loss, McKinney joined Rep. Earl Hilliard, Democrat of Alabama, as the second black lawmaker targeted by Jewish groups to lose a re-election bid in the post-September 11 era. Fueled by contributions from the Jewish community, Majette raised more money than the incumbent." He points out that many non-Jews were "pulling for Majette," and asks "Had McKinney won, would CNN have credited her victory to Arab money?"

     Well, it seems to me that American Jews did help defeat McKinney, and it's not unreasonable to point this out. We are indeed a pretty politically well-organized and, for our numbers, influential ethnic group. We don't operate through some Hidden Jewish Conspiracy -- among other things, we tend to disagree with each other too much for that -- but we do end up forming many organizations, both highly structured and loose, that defend interests that many of us think are important. And the fact is that for many of us (actually, for me less than for many others), having America support Israel has been a very important issue.

     It's not our fault that McKinney was defeated, largely because one shouldn't be faulted for helping do what is right. But it is in some measure to the credit of some American Jewish groups that they helped defeat McKinney.

     Now I agree that news organizations shouldn't act like Jews are the only ethnic group that does this; but in fact, many people, in blogging and outside it, have pointed out that Arab-Americans were trying to do the same in favor of McKinney. The CNN story itself says that "In their only debate, Majette criticized McKinney for accepting campaign contributions from Arab-Americans with possible ties to terrorist organizations, including several who were named in a lawsuit by families of September 11 victims," so Arab-American support for McKinney doesn't seem to be being hidden. Likewise, a story yesterday on cnn.com says that "McKinney, a vocal advocate of Arab causes, won strong backing from pro-Arab and Muslim causes and organizations, while Majette raised more money that the incumbent largely on the basis of out-of-state pro-Israel contributors."

     Exaggerated claims of Jewish power, coupled with generally false assertions that Jews are trying to use this power for harmful ends, have indeed harmed Jews immensely in the past. But the fact remains that American Jews do have power, both individually and acting through Jewish groups, both well-organized and more ad hoc ones. These groups take advantage of this power to accomplish ends that they think are important, just as other groups do. Acknowledging this, with a proper sense of proportion, seems to me quite sound.

 
[Eugene Volokh, 9:34 AM]
COOLNESS TEST. I'm told that it works every time -- certainly did for me.

 
[Eugene Volokh, 8:50 AM]
A VERY DIFFERENT SORT OF POEM: Just ran across it at the excellent Wondering Minstrels site:

Office Friendships

Eve is madly in love with Hugh
And Hugh is keen on Jim.
Charles is in love with very few
And few are in love with him.

Myra sits typing notes of love
With romantic pianist's fingers.
Dick turns his eyes to the heavens above
Where Fran's divine perfume lingers.

Nicky is rolling eyes and tits
And flaunting her wiggly walk
Everybody is thrilled to bits
By Clive's suggestive talk.

Sex suppressed will go berserk,
But it keeps us all alive.
It's a wonderful change from wives and work.
And it ends at half past five.

-- Gavin Ewart

 
[Eugene Volokh, 7:55 AM]
A SAD TALE OF PRIVACY LAW: Sonia Arrison's TechCentralStation.com column points out, among other things, that some surveillance technology can actually help detect and prevent police abuse: "In California's Orange County, where video cameras were installed in patrol cars to protect against false accusations of excessive force, the tapes have been used to prosecute abusive police officers." (I love the column's title, by the way -- "Watching the Detectives.") I found the column via a post on The Agitator, which pointed out that "the police brutality videotapes we've seen in the news are a good example of how civilians too can use surveilance to keep a check on power. When authorities start preventing us from accessing the same technology they're using, well, then it's time to start getting antsy."

     Well, here's a story for you: Many states have laws that ban people from taping conversations without the speakers' permission. Some of them prohibit only taping conversations in which the taper isn't involved (the classic eavesdropping situation); I have no problem with that.

     But others prohibit taping conversations unless all parties consent. I can see why this is done, but I can also see why it's troublesome: If you're being blackmailed or threatened, or if someone is saying something that acknowledges that he's guilty of some crime, it seems to me that you have a strong claim of entitlement to record this. The laws are justified by a desire to protect "privacy," but it's far from clear that we should value this privacy when it amounts to my right to deny later what I say now -- especially when what I say now might show that I'm trying to endanger you (or someone else).

     And here's an extreme scenario, which happened under a law that seems to be among the broadest in the nation. I quote from last year's decision by the Massachusetts Supreme Judicial Court in Commonwealth v. Hyde:

This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute . . . for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another . . . . We conclude that [the state interception law] strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.

. . . On October 26, 1998, just after 10:30 P.M., an Abington police officer stopped the defendant's white Porsche, because the automobile had an excessively loud exhaust system and an unlit rear registration plate light. Three other Abington police officers arrived shortly thereafter and the stop quickly became confrontational. During the course of the stop, which lasted approximately fifteen to twenty minutes, the defendant and his passenger, Daniel Hartesty, were ordered out of the automobile, and Hartesty was pat frisked.

One officer reached into the automobile, picked up a plastic shopping bag that lay on the floor by the passenger seat, and looked inside. (The bag contained compact discs.) At one point, the defendant stated that the stop was "a bunch of bullshit," and that he had been stopped because of his long hair. One officer responded, "Don't lay that shit on me." Later, another officer called the defendant "an asshole." The defendant was asked whether he had any "blow" (cocaine) in the car.

At the conclusion of the stop, the defendant and Hartesty were allowed to leave. No traffic citation was issued to the defendant, and the defendant was not charged with any crime. According to the testimony of one police officer, the defendant was "almost out of control" and the stop "had gone so sour," that it was deemed in everyone's interest simply to give the defendant a verbal warning. Unbeknownst to the officers, however, the defendant had activated a hand-held tape recorder at the inception of the stop and had recorded the entire encounter.

Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.

In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of [the state law].

So there you have the dark side of "privacy" -- the law aimed at protecting privacy ends up quite improperly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:

We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.

And this protection of "privacy" extends not just to allegedly misbehaving cops but also to . . . kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited . . . ."

     Now this incident isn't necessarily an indictment of all such laws; perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or with people who one reasonably believes are trying to extort something from you or threaten you. But it is a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.

 
[Eugene Volokh, 8:25 PM]
ANOTHER 5000-UNIQUE-VISITOR DAY; and I just learned that the Bravenet counter that we're using measures unique visitors (or whatever the Bravenet code decides are unique visitors), and not hits, so it really will be 5000. Why? Literally at least 2000 of the visitors, I've noticed, came through this one InstaPundit entry, which simply says:

THIS is a masterpiece of brevity and wit.

How can one possibly hope for a kinder, or a more productive, link? Thanks to Glenn, and of course to my colleague Mark Kleiman, who is the author of that masterpiece.

 
[Eugene Volokh, 2:51 PM]
ZINGER FROM RICH LOWRY AT THE CORNER:

Here’s a bit from a Chuck Hagel (R., France) interview . . . .

 
[Eugene Volokh, 2:44 PM]
MORE FROM MY COLLEAGUES: My colleague Jack Hirshleifer also asked:

Why is 'correct' opinion in Europe so determinedly in favor of the Arabs?

Mark Kleiman's answer:

One guess is that the role of the Jew in European mythos is to suffer nobly, giving the Christians both the pleasure of persecution and the more refined pleasure of regretting it. A Jew who fights back is, in Sartre's terms, "inauthentic."

 
[Eugene Volokh, 1:54 PM]
THE INSPIRATION: Incidentally, let me pass along a poem that I've found tremendously inspiring, which I've also borrowed as the first shard in Shards. It is, of course, a shard from the shattering of an earlier world, W.H. Auden's September 1, 1939. The poem was often noted after the September 11 attacks, and has become nearly a cliche, but things often become cliche precisely because they are so apt. It thus bears repeating:

September 1, 1939, by W.H. Auden

I sit in one of the dives
On Fifty-second Street
Uncertain and afraid
As the clever hopes expire
Of a low dishonest decade:
Waves of anger and fear
Circulate over the bright
And darkened lands of the earth,
Obsessing our private lives;
The unmentionable odour of death
Offends the September night.

Accurate scholarship can
Unearth the whole offence
From Luther until now
That has driven a culture mad,
Find what occurred at Linz,
What huge imago made
A psychopathic god:
I and the public know
What all schoolchildren learn,
Those to whom evil is done
Do evil in return.

Exiled Thucydides knew
All that a speech can say
About Democracy,
And what dictators do,
The elderly rubbish they talk
To an apathetic grave;
Analysed all in his book,
The enlightenment driven away,
The habit-forming pain,
Mismanagement and grief:
We must suffer them all again.

Into this neutral air
Where blind skyscrapers use
Their full height to proclaim
The strength of Collective Man,
Each language pours its vain
Competitive excuse:
But who can live for long
In an euphoric dream;
Out of the mirror they stare,
Imperialism's face
And the international wrong.

Faces along the bar
Cling to their average day:
The lights must never go out,
The music must always play,
All the conventions conspire
To make this fort assume
The furniture of home;
Lest we should see where we are,
Lost in a haunted wood,
Children afraid of the night
Who have never been happy or good.

The windiest militant trash
Important Persons shout
Is not so crude as our wish:
What mad Nijinsky wrote
About Diaghilev
Is true of the normal heart;
For the error bred in the bone
Of each woman and each man
Craves what it cannot have,
Not universal love
But to be loved alone.

From the conservative dark
Into the ethical life
The dense commuters come,
Repeating their morning vow;
"I will be true to the wife,
I'll concentrate more on my work,"
And helpless governors wake
To resume their compulsory game:
Who can release them now,
Who can reach the deaf,
Who can speak for the dumb?

All I have is a voice
To undo the folded lie,
The romantic lie in the brain
Of the sensual man-in-the-street
And the lie of Authority
Whose buildings grope the sky:
There is no such thing as the State
And no one exists alone;
Hunger allows no choice
To the citizen or the police;
We must love one another or die.

Defenceless under the night
Our world in stupor lies;
Yet, dotted everywhere,
Ironic points of light
Flash out wherever the Just
Exchange their messages:
May I, composed like them
Of Eros and of dust,
Beleaguered by the same
Negation and despair,
Show an affirming flame.

 
[Eugene Volokh, 1:51 PM]
SHARDS: Last September, the peace that we had grown used to shattered. In honor of the memory of that day, and the year that has passed, I thought I'd try to collect some poems that reflect on the first year of the war. The poems will be published both here and at Shards: Poems from the War.

     I realize that there is a ridiculous amount of hubris in setting oneself up as an editor, still more in setting oneself up as an editor of poetry, and still more in setting oneself up as an editor on a subject as monumental as this. But the good news is that anyone can do it, and I hope more people do; and if what is selected for Shards is junk, reality will properly reflect it. And if I find that I lack the taste or the heart to uncover enough gems in what is sent -- or, for that matter, if no-one sends anything at all -- I reserve the right to quit having published nothing.

     Please send submissions to volokh at law.ucla.edu . A few tips:

1. Please send only formal verse, which generally means at least verse that is metered, and preferably both metered and rhymed. That's not some objective law, just my preference.


2. Please send poems that are 20 lines or shorter; exceptions are possible, but shorter is better (even in the under-20-line zone).


3. I suggest, unhelpfully, that the poems be subtle but not opaque, be neither over-the-top nor passionless, and use language that is elegant but simple.


4. By submitting the poem, you are agreeing to let us distribute it indefinitely on the Shards site, and also on this site (The Volokh Conspiracy). You are also agreeing to let us include your name and e-mail address, unless you expressly tell us otherwise.


5. We are happy to republish work you've already published elsewhere. Please do not, however, send us work that you love but that was written by others; please ask them, if you know them, to submit it themselves.


6. We will try to respond within one week of your submission, and we will usually succeed.

Finally, something that is surely not news to most writers and readers: A poem is not (or at least not necessarily) a political slogan. It need not be a forthright declarative or imperative sentence. Its meaning ought not be cloaked in too much indirection, but neither does it require the straightforwardness of reportage or instruction. A phrase may reflect ambivalence as well as certainty. The narrator is not always to be trusted. Words of triumph can cloak despair, and vice versa.

 
[Eugene Volokh, 11:40 AM]
A QUESTION, from my colleague Jack Hirshleifer, a leading economist here at UCLA:

Here's a thought after reading Bernard Lewis's What Went Wrong: Why are the Moslems so crazy mad at the Jews? It's not at all the same thing as traditional Christian anti-Semitism.

     As explained by Lewis, the Moslems have a long-standing inferiority complex with regard to the West. Islam should be on top -- in terms of wealth, culture, technology, military power, you name it -- but evidently does not even come close. Still, over the last couple of centuries, the Moslem world has for the most part come to terms with and is able to bear this fact. But now they find themselves being licked, in every civilized dimension, not just by the Christians -- the West's "varsity", so to speak -- but even by the Jews, by the West's scorned second team. That cannot be tolerated.

UPDATE: Another reader, Razib K echoes this with the following:

Christians have been viewed by Muslims as enemies -- and capable ones at that. But Jews in the Muslim [world] were marginal and always existed at the sufferance of the Muslim elites. In the first 3 Israeli-Arab Wars, outnumbered and outgunned Jews soundly whipped Arab armies. Certain humiliations can't be rationalized, and one isn't psychologically prepared for [them].

 
[Eugene Volokh, 11:39 AM]
GREAT LINE: "If we desire respect for the law, . . . we must first make the law respectable," said by Justice Louis Brandeis.

     (Thanks to the Goodbye Cynthia McKinney site for alerting me to this, though I've checked the quote myself and it seems legit.)

 
[Eugene Volokh, 11:00 AM]
A BIT MORE ABOUT THE CRIMINAL HISTORY OF HOMICIDE DEFENDANTS: My earlier post on Do Most Killers Have a Criminal History? responded to a factual statement made in a pro-gun-control book -- the statement that the good guy / bad guy dichotomy bears "little relation to reality for most gun-related homicides." I responded that the evidence suggests that the overwhelming majority of killers had at least an arrest record (81% in the most comprehensive study I found), the great majority have a conviction record, and a bare majority have a felony conviction record.

     A couple of readers asked, though, what I thought the policy implications of this fact were; for instance, was I suggesting that all people with arrest records should be disarmed, and did I think that this would indeed solve the homicide problem? The answer is no and no -- first, surely people shouldn't lose any rights simply because they were arrested but not convicted, and, second, let's face it: Even if we do legally bar people from having guns, many of them will get them in any event. I do generally support banning felons from owning guns (one can come up with some counterexamples where the policy yields bad results and should perhaps be trimmed back in some measure, but on balance it's a good policy), but I can't pretend that it's doing much good.

     Rather, I think the policy implication is that general gun bans will do little to stop homicide. These bans, I think, will have very little effect on "bad guys," in the sense of those people who generally don't obey the law; it seems likely that the bans will have considerable effect on "good guys," people who have a clean record. If most homicide were committed by formerly good guys who go bad in one fit of passion, then gun control might help decrease homicide (though then one would have to think of countervailing effects, such as the lowered ability of good guys to defend themselves). But since most homicide is committed by the generally bad guys -- not necessarily those who are guaranteed to ignore gun control laws, but those who seem a lot less likely than the good guys to follow them -- disarming the good guys would do little good.

     If guns were outlawed, only outlaws would have guns -- and since it's the people who are most likely to be outlaws that tend to commit the overwhelming majority of murders, gun bans would interfere with lawful self-defense by law-abiding citizens, without much interfering with homicide (or, I suspect, other crimes).

 
[Eugene Volokh, 10:47 AM]
TRIAL NEARS IN CASTRATION OF TOWN'S BEER-SWILLING GOAT MAYOR.

 
[Eugene Volokh, 10:02 AM]
MIXING RELIGION AND GOVERNMENT: Jeff Cooper writes about a proposed law that would apparently allow churches -- but not other nonprofit organizations -- to use tax-exempt funds to endorse political candidates. He then opines that it's a bad idea, and quotes my friend Ann Salisbury as saying that "I like mixing religion and government about as much as I like mixing tuna fish and peanut butter. Some things just don't belong together."

     I don't think this analysis is quite right, at least if "mixing religion and government" means "having churches express views on political issues." Much of the anti-slavery movement and the civil rights movement, for instance, was organized within churches and by church leaders (the Reverend Martin Luther King, Jr., for instance). Is that as bad as "mixing tuna fish and peanut butter"? More broadly, if a church's theology leads it to think that some behavior in the world is evil -- whether it's slavery, or discrimination, or a war, or supposed oppression of labor by capital, or abortion -- then it seems to me quite proper for the church to urge its congregants to act on this moral imperative.

     The problem with the law, at least as it's described, isn't that it facilitates religious entities' being involved in politics. Rather, the problem is that it would give churches a special immunity that other nonprofit institutions don't enjoy. That, I think, is bad policy, and I think unconstitutional to boot (compare Texas Monthly v. Bullock (1989), which isn't completely dispositive, but does point strongly towards the view I espouse here). As I like to say, equal treatment is not establishment of religion, and allowing religious institutions to participate equally with other similar institutions in political life is good. But giving them special benefits that let them participate more effectively than other nonprofits can is not good.

     See also here and here, where this issue had come up before.

 
[Eugene Volokh, 9:25 AM]
"THIS IS TRULY A CRIME AGAINST NATURE": There are just too many weird hooks to this story: The Ecstasy connection. The "crime against nature" angle (recall that this euphemism has most often been used to refer to homosexuality, and to specific inter-human sexual practices). The restraining order: "Circuit Judge Jerry O. Terry ordered Brown to avoid contact with the horse" -- not just horses generally, but this particular one. There's a videotape, which "would have been used at trial." The owner first got suspicious when "[h]e often found buckets and stools out of place and once found the horse tied to a post." "[H]e first thought young people were trying to ride the chestnut mare."

     And the limerick possibilities are endless -- and appalling.

 
[Eugene Volokh, 8:58 AM]
JURY NULLIFICATION: InstaPundit and TalkLeft are praising jury nullification -- the jury's power "to refuse to convict (or, where grand juries are involved, to indict) even where the evidence is sufficient, if they feel that such a refusal is necessary to serve justice." Glenn, who makes the argument most explicitly, argues that juries should be seen as having the right to do this (not just the practical power to do it, which everyone agrees that they do have), and that judges and lawyers should be entitled to tell the juries about this right.

     I am not an expert on the subject, and I have not read the Clay Conrad book on jury nullification that Glenn and others have praised. (The only corner of the field that I have expert knowledge on is the question whether courts may order people not to stand outside courthouses handing out leaflets praising jury nullification, and urging that it take place in certain cases; I agree entirely with Glenn that such a restriction is unconstitutional.) I know I probably ought to read the book before I opine further on this, but, hey, there are a lot of books I should be reading during the time I spend blogging . . . . And I think Glenn makes an excellent point when he points out that police officers and prosecutors have the practical power not to apply the law in various cases when they think this furthers justice, and (at least as to prosecutors) are often praised for using this power. Given this, the possibility that juries may exercise the same power seems very reasonable; I'm embarrassed to say that I hadn't thought of this simple but powerful point before.

     Nonetheless, while I do see some quite powerful arguments in favor of jury nullification, and while I am not opposed to it, I do wonder whether there are some important practical difficulties with it:

     1. Imagine that juries were indeed instructed that they may refuse to convict when a law is unjust. For the trial to be fair, this means that the parties must be able to make arguments and introduce evidence on this question; after all, most jurors have not spent much time thinking about whether the particular law is just, or about the underlying facts needed to determine this question. Surely if, say a criminal defendant in a crack cocaine distribution case becomes entitled to have a jury consider the justice of the law, he must be entitled to explain his position to the jury, rather than just relying on the jury's hunches about whether the law is good or bad.

     Conversely, the prosecution would have to be able to introduce this evidence, too, explaining in each crack cocaine case or parental nonsupport case or statutory rape case why the law is a good idea. They'd bring in experts who'd talk about the thousands of lives ruined by this or that misbehavior, including both statistical analyses and concrete, graphic examples. The defense would also bring in experts making their own arguments. And this might well happen in each case, since presumably jury nullification would be potentially available in each case. (The one possible limitation might be that a defendant would be entitled to waive his right to jury nullification -- for instance, if he doesn't warn the prosecution to introduce evidence about why the law in general is a good idea -- and the court would then instruct the jury that "in this case, the defendant has waived his right to nullification, so here you must decide based solely on the facts"; but I'm not sure whether even this would be permissible under the arguments of the pro-nullification forces, since in theory nullification relates not just to the rights of the defendant but also to the rights of jurors to act as the conscience of the community.)

     Today, we largely avoid all this, because the theory is that the jury is only supposed to decide the facts of this case, and therefore evidence about the propriety of the law is generally found irrelevant. But if jury nullification is legitimized, the scope of each trial would grow to include the justice of the law as well as the facts in this particular case. One consequence will be much longer and more expensive trials; but another will be a shift in the focus of the trial from what happened in this case to what evils this sort of conduct generally causes. It's not clear that either of these effects will on balance help justice, or for that matter help defendants.

     2. Relatedly, today the theory is that the jury is only supposed to decide what the defendant did in this case, rather than focusing on whether the defendant is generally a bad guy. That's why evidence of a person's character is often excluded (though this rule is subject to many exceptions) -- it's just not seen as relevant enough to what happened in this case.

     But one reason that prosecutors choose to enforce certain laws against certain people is the belief that these people (a) are provably guilty of this particular crime, but also (b) are probably guilty of other crimes, but their guilt can't as easily be proven there. The classic example is Al Capone's prosecution for tax evasion; to the best of my knowledge, he was guilty of tax evasion (or at least I haven't heard evidence to the contrary), but the main reason he was prosecuted for this was the prosecutors' belief that he was a mob boss.

     Jury nullification, though, would legally allow the jury to conclude that this person doesn't really deserve to be punished for this crime, either because they just don't believe in tax evasion law (and recall that if even one juror holds out for acquittal, a retrial will be required, at least in those jurisdictions that require unanimous juries), or because they think it's unfair that this law is being applied to this particular guy. Anticipating this, prosecutors would have to be able to tell the jury why they chose to prosecute this guy for tax evasion, for statutory rape, for a minor weapon's offense, or some such; in all such trials, the defendant's character, and the prosecutors' suspicions about what else the person has done, will thus be part of the case from the start. Again, I'm not sure that this would be either good for justice or for defendants. (Of course, one possible response is that prosecutors shouldn't indict someone for some crime, even if they think he's guilty of it, when their real motive is to get him for other behavior; but I don't think that's right, and even if it is, this sort of prosecutorial conduct is currently allowed, and there's no reason to think that it's likely to change soon.)

     3. I take it that jurors would also be allowed to acquit someone because they think the sentence would be too harsh. If so, then again prosecutors will have to be allowed to explain to the jury why this particular guy is generally a bad guy and why he deserves the sentence that he's getting (since the traditional American rule has been that sentencing decisions should be based on the criminal's character, and not just his conduct in this case).

     4. Finally, and briefly shifting focus: Jury nullification advocates always focus on the jury's right to nullify in favor of the defendant. But once jurors are taught that they are the judges of law as well as fact, will they also be more likely to nullify defenses that the defendant may introduce, such as the diminished capacity defense, the insanity defense, the entrapment defense, the self-defense defense, and so on? And will they also be more likely to nullify claims and defenses in civil claims as well, and thus vote more based on whether this is "a bad corporation that deserves to pay money, even if they aren't legally guilty" or "a bad criminal defendant who should be locked up, even if the law requires him to get off on some technicality."

     True, I'm sure that jurors sometimes do in fact nullify defenses in criminal and in civil cases, and rule against those who are legally not guilty. But they also sometimes nullify the prosecution's case, too. The theory of jury nullification is that jurors who know they have the right to nullify will be more likely to nullify -- will it be easy to limit this to nullification of the prosecution's case?
* * *
     I stress again that I'm sure that some jury nullification advocates have some responses to these claims; if I recall correctly, for instance, Clay Conrad suggested -- at least as an option -- a more limited form of jury nullification that can be triggered only by the defendant and then would involve considerable sacrifice on the defendant's part. But many pro-nullification advocates generally don't go into the details, and suggest that simply instructing the jury about their power to nullify, and allowing the defense attorney to argue to the jury about this power, would yield all these great benefits. I'm certainly open to the possibility -- but I confess I still have some skepticism, not so much about the broad theory, but about how it would work in practice.

 
[Eugene Volokh, 7:24 AM]
PREEMPTIVE WAR: My friend Mark Kleiman, who teaches in the UCLA Public Policy school, send around the following, and then kindly agreed to have me post it to this blog. As some readers might gather, I don't agree with the first two paragraphs and the last one, but the whole thing strikes me as thoughtful and provocative:

The question seems to have shifted from whether GWB can hold together the Gulf War coalition for his pre-Election Day invasion of Iraq to whether he can hold together the Republican Party, or even his own family. Today's newspapers suggest that the Scowcroft bombshell actually represented part of an effort by Bush I to keep Sonny from getting in over his head.

As I've said before, I think invading Iraq is probably a bad idea, though my very limited knowledge of military and foreign affairs makes me tentative about that view. The fact that the current lineup on the pro-invasion side seems to consist mostly of people like Perle and Wolfowitz who thought it was a good idea for us to try to get a first-strike capacity against the Soviet Union, plus Jews so mad about the Second Intifada that they just want to kill some Arabs, worries me. On the other hand, the opposition seems to consist mostly of people who didn't want to fight the Gulf War plus the people who decided to leave Saddam in power when it would have been simple to get rid of him -- though less simple, of course, to deal with the consequences of his absence.

(For the record, I was ignorantly but unhesitatingly in favor of the Gulf War and of kicking Saddam when he was down; my favorite campaign buttom from 1992 says "Saddam Hussein still has his job: How about you?")

In the absence of any set of advisors with a good record on this area, it's entirely possible that the hawks are right and the foreign policy establishment wrong, or that the hawks are wrong but will luck into a good outcome anyway.

But I'm not surprised at the domestic and foreign opposition to the "On to Baghdad" movement. What amazes me is the moral opposition to fighting, based on the proposition that doing so would be "preventive war" and that preventive war is somehow a horrible idea. [Someone will have to explain to me in words of one syllable why economic sanctions, which under Iraqi conditions means starving poor people, are morally superior to open warfare, but that's another story.] It seems obvious to me that if a war has to be fought, and if time is working against us, then preventive war is likely to be the least bloody kind, at least for our side.

One version of the argument against preventive war rests on the fallibility of all prediction: how can we KNOW that a war is coming? Well, of course we can't, but so what? We can't KNOW that a war isn't coming, either. So I don't know what the argument is supposed to prove, except that it's easy to be wrong in foreign policy. Right! That's why I picked something simple to work on instead. But the necessity of choice remains.

A modified version of this argument seems to me much sounder in general, but inapplicable to the present case. Preventive war, it is said, is unjust; a just war must be defensive, and in the absence of either an attack or the clear preparation for an attack, the mere acquisition of military capacity by a possibly hostile nation doesn't constitute the sort of aggression to which war is an appropriate response. That's right, as far as it goes, though I'm not sure I'd be willing to make it a universal rule when it comes to nuclear and biological weapons.

But it's worth remembering that Iraq has already waged an aggressive war, against Kuwait in 1991. Part of the deal for ending that war in a way that left Saddam Hussein in power was his agreement to stop building chemical, biological, and nuclear capabilities, and to allow international inspections to verify his compliance. Since Hussein (with the other Hussein dead and therefore no risk of confusion, I see no reason to refer to this thug by his first name; I don't know him that well) has welsched on the inspections, it's only reasonable to think that he's welsching on the weapons of mass destruction as well. Using military force to put an end to that is "preventive" in one sense, but in another it's merely a continuation of the legitimate response to his previous aggression.

The common law holds that even what seems like a potentially vicious animal can't be destroyed unless it has actually attacked someone; the maxim is, "Every dog gets one free bite." An analogous rule, under the same name, is applied to a number of circumstances where human beings might be in a position to do something forbidden; in general, they can't be prevented from acquiring the (otherwise lawful) capacity to do so absent some evidence that they, individually, intend to use that capacity badly.

Well, Hussein has already had his bite. He took it out of Kuwait in 1991, and we made him spit it out. Now we're entitled to muzzle him. (Yes, I know that Iraq isn't a person and that Hussein isn't Iraq, and I know that the Iraqis who will die if we start a war. including conscript soldiers, mostly didn't do anything to deserve it. But those problems apply to any use of force in international affairs; abstractions fight, and human beings bleed. The Americans or Israelis or Kuwaitis or Iranians who will die when and if those weapons of mass destruction get used are also human, and also innocent. If you disapprove of killing some people so other people won't kill still other people, you ought to be a pacifist, which is a respectable viewpoint but not relevant to the question of whether a particular military action is or is not justified.)

One analogy that seems to me rather precise hasn't, to my knowledge, been drawn: the German occupation of the Rhineland in 1936. Everyone would now say that the failure to stop Hitler then represented the last clear chance to avoid a major war. But the Rhineland was undisputedly German territory, and under German control, so no question of aggression arose. The Germans had plans to conquer France, but no one outside Germany knew of them. (Hitler's lunatic ravings as a jailbird in the 1920s surely didn't count as statements of national policy.) At the time, the Germans lacked the military capacity to conquer France. So as far as I can see, then, forceful resistance by France to the German reoccupation would have failed the tests now being proposed for war against Iraq: showing that Iraq now has weapons of mass destruction and plans for using them. The demilitarization of the Rhineland was part of the deal that closed the last war the Germans had started, just as the weapons inspections were part of the deal that closed the Gulf War.

Of course there are points of disanalogy, but I don't see any of them as crucial. If anyone can make a distinction that would have justified the French in enforcing the Treaty of Versailles in 1936 but that wouldn't justify us in enforcing the Gulf War armistice today, I'd like to hear it. In fact, the Gulf War deal was substantially more equitable than the Versailles Treaty, 2002 is closer in time to 1991 than 1936 was to 1914, and Germany had changed regimes twice since Versailles while the same party and individual are still in power in Iraq. The fact that Germany could ultimately aim at conquest, while Iraq could at most inflict destruction, doesn't strike me as being of the essence of the problem.

One major difference is that, as we now know, French resistance to the German reoccupation of the Rhineland would have been virtually bloodless, while disposing of Hussein would cost huge numbers of Iraqi lives and probably not a small number of American ones. (Recall, though, that the French, and the rest of Europe, did not think the Germans would be a pushover then.) That seems to me like an excellent argument, but it's not an argument about the justice of preventive military action, but about its pragmatics in this particular situation.

I conclude that there may be good reasons for us not to go to war now with Iraq, but that the alleged immorality of preventive war is not among them.

 
[Eugene Volokh, 7:01 AM]
FRENCH: It's dangerous to quote poetry out of context -- it's even dangerous to quote poetry in context. Nonetheless, at the risk (certainty?) of completely missing the author's point, I quote Leonard Cohen's French and English (Stranger Music, p. 266):

I think you are fools to speak French
It is a language which invites the mind
to rebel against itself causing inflamed ideas
grotesque postures and a theoretical approach
to common body functions. It ordains the soul
in a tacky priesthood devoted to the salvation
of a failed erection. . . .
Between the rotten teeth of French are incubated
the pettiest notions of destiny and the shabbiest
versions of glory and the dreariest dogma of change
ever to pullute the simplicity of human action

Horribly unfair, I'm sure, but a good rant nonetheless. He then goes on to rag likewise on English, but I'm not going to quote that . . . .