[Eugene Volokh, 11:26 PM]
NOT THE MOST EVENHANDED SORT OF POLL QUESTION: Here it is, from a Washington Post poll:

15. As you may know, Bush has proposed a 726 billion dollar tax cut over the next 10 years. The Senate has voted to reduce that to 350 billion dollars in order to help pay for the war, reduce the deficit and shore up the Social Security fund. Do you support or oppose this reduction in Bush's proposed tax cut?

The result was 65% support and 29% oppose -- but might this have been influenced by the fact that the question provided the argument for the reduction -- complete with three appealing-sounding subarguments -- but didn't provide the argument against it? After all, the tax cut's backers must have some reasons why the reduction should take place as planned; might it have been worth mentioning those reasons, given that the Post seemed to think it was worth mentioning the reasons for the other side?

     Incidentally, here's how the Post story itself characterized the poll:

The survey found that 65 percent of the public favors the Senate-passed plan to reduce Bush's $726 billion tax cut by more than half in order to pay for the war, shore up Social Security and reduce the deficit -- a view shared equally by Republicans as well as by Democrats and political independents.

Now a highly skeptical reader might have read this and inferred that the respondents were prompted with the possible reasons to support the reduction. But I suspect that many readers wouldn't have drawn this inference; they would probably have thought that the question simply asked "do you favor the Senate-passed plan to reduce Bush's $726 billion tax cut by more than half?" or some such, and the "in order to . . ." clause was the Post's way of explaining to readers (not to the poll's respondents) why the Senators supported such a reduction. And I strongly suspect that the great majority of readers did not think that the question only gave the reasons for the reduction and not the reasons to oppose the reduction. Fortunately, on the Web people can click on the small link labeled "Complete Poll Results" on the right-hand side of the screen and see the text of the questions; but I doubt that readers of the print edition saw the question text reported anywhere.

     Is this the way that supposedly impartial media organizations ought to conduct and report on polls?

     (Thanks to lawprof David Bernstein for spotting this and passing it along.)

 
[Eugene Volokh, 11:00 PM]
ONE REASON MANY IRAQIS SEEM PRO-SADDAM: This is from the Arab News, not exactly a mouthpiece of the Bush Administration:

When we finally made it to Safwan, Iraq, what we saw was utter chaos. Iraqi men, women and children were playing it up for the TV cameras, chanting: “With our blood, with our souls, we will die for you Saddam.”

I took a young Iraqi man, 19, away from the cameras and asked him why they were all chanting that particular slogan, especially when humanitarian aid trucks marked with the insignia of the Kuwaiti Red Crescent Society, were distributing some much-needed food.

His answer shouldn’t have surprised me, but it did.

He said: “There are people from Baath here reporting everything that goes on. There are cameras here recording our faces. If the Americans were to withdraw and everything were to return to the way it was before, we want to make sure that we survive the massacre that would follow as Baath go house to house killing anyone who voiced opposition to Saddam. In public, we always pledge our allegiance to Saddam, but in our hearts we feel something else.”

Different versions of that very quote, but with a common theme, I would come to hear several times over the next three days I spent in Iraq.

The people of Iraq are terrified of Saddam Hussein. . . .

(Thanks to Kathryn Lopez at NRO's The Corner for the pointer.)

 
[Eugene Volokh, 7:42 AM]
SLIDESHOW OF PHOTOS OF OUR KILLED IN ACTION / MISSING IN ACTION SOLDIERS: The Spokesman-Review (Spokane and Couer d'Alene) put it together.

 
[Eugene Volokh, 6:15 PM]
WE SHOULD BE SLOW TO COMPARE PEOPLE TO HITLER, but when they do it themselves, it seems fair to quote them:

At the state funeral of one of his cabinet ministers, [President Robert Mugabe of Zimbabwe] said: "I am still the Hitler of the time. This Hitler has only one objective, justice for his own people, sovereignty for his people, recognition of the independence of his people, and their right to their resources.

"If that is Hitler, then let me be a Hitler tenfold. Ten times, that is what we stand for."

Hours later members of the Zimbabwe National Army, including Mr Mugabe's elite force, the Presidential Guard, began a pre-dawn rampage in revenge for the opposition general strike last week.

The attacks left more than 250 people injured, scores of them seriously, but victims remained defiant yesterday. Patricia Mukonda, 27, a secretary at the head office of the opposition Movement for Democratic Change, needed hospital treatment.

Up to 60 members of the Guard and other soldiers . . . attacked under cover of darkness. . . .

"They beat me all over," she said, adding that she was sexually assaulted with a baton while her six-year-old son was forced to watch. . . .

Yup, sounds like Mugabe is a man with a role model. Also check out Doris Lessing's article about Mugabe. (Thanks to Jesse Walker at Reason's Hit & Run for the pointer to the Hitler piece, and InstaPundit for the pointer to the Lessing piece.)

 
[Eugene Volokh, 4:37 PM]
MIGHT HELP EXPLAIN WHY FEWER PEOPLE ARE CHEERING US THAN WE EXPECTED: It's hard to tell for sure whether this is true -- but it's certainly quite plausible, and it should be a reminder that we can't right now accurately gauge many things, from the true Iraqi attitudes today to the likely Iraqi attitudes when we win to the likely European or American attitudes when we win:

Civilians who greet US and British troops are being executed on President Saddam Hussein's orders, according to a former chief scientist of the Iraqi Atomic Energy Commission, Dr Hussein Shahristani.

The most recent outrage was carried out in the small town of Khidr, between Nasiriyah and Samawa, where some families were accused of cheering the US soldiers who drove through their locality, Dr Shahristani who is now chairman of the Iraq Refugee Aid Council, told rediff.com

Their executions started as soon as the US soldiers left, the scientist, who is now based in Kuwait, said.

"These [coalition] troops pass through local towns and villages and do not stop for long enough to clean up Saddam's terror apparatus.

"When they depart, the civilian families are left to the mercy of Ba'ath party officials and the thugs in charge of Saddam's fidayeen militia.

"Those Iraqis who refuse to serve on the frontline are also being shot," he said.

Dr Shahristani said he had been informed of the killing of a tribal leader, Rahim Karim, who was late by five minutes for a meeting with Saddam's cousin and local governor, Aly Hasan Al Majeed.

Karim had come to discuss how members of his tribe could be mobilised for frontline duty, but Majeed lost his temper and had him shot.

Perhaps, the execution of Karim and others goes some way in explaining British army reports of a civilian uprising against Saddam in the city of Basra.

The reports are yet to be confirmed.

Earlier this week, civilians were reported to be coming out of Basra to inform coalition forces about the whereabouts of Saddam's supporters and assist in directing air and artillery strikes against their own city.

British military officers said the locals are telling them about the movements of the paramilitaries local to the regime.

This is proving crucial in identifying targets for British and American warplanes carrying out sorties.

One British official said, "Most of it [information] is coming from Iraqi people who are fed up with the regime and who are sneaking out across the bridges to tell us what is going on in the city.

"It is very risky, but the fact that so many people are prepared to do this indicates the level of opposition that there is to Saddam within Basra."

Thanks to The Command Post for the pointer.

 
[Eugene Volokh, 2:49 PM]
TIMING: From Victor David Hanson in National Review Online:

We should recall that in the first Gulf War we bombed for over 44 days. Critics in 1991 by day 10 were complaining because after the first few nights’ pyrotechnics, Saddam’s army had not crumbled. In turn, earlier swaggering air-advocates had promised victory in three weeks -- only to be unjustly slandered that they had failed to end the war in six. Gulf War I is considered a great victory; it required 48 days of air and ground attacks by an enormous coalition to expel the Iraqi army from Kuwait. Our present attempt, with half the force, seeks to end Saddam Hussein altogether -- and on day 7 already had him cut off, trapped, and besieged.

 
[Eugene Volokh, 2:33 PM]
A POEM ABOUT THE WAR From Cathy Seipp, an echo of Westron Wind:

Westron wind, when wilt thou blow?
The smart bombs down do rain
Inshallah, that my love were in my arms
And Michael Moore in Saddam Hussein's

 
[Eugene Volokh, 2:18 PM]
FROM THE ONION:

Sheryl Crow Unsuccessful; War On Iraq Begins

WASHINGTON, DC -- In spite of recording artist Sheryl Crow's strong protestations, including the wearing of a "No War" guitar strap, the U.S. went to war with Iraq last week. "Making the decision to go to war is never easy, but it's that much harder when you know Sheryl Crow disapproves," White House press secretary Ari Fleischer said at a press conference Monday. "It is this administration's sincerest hope that it can one day regain the support and trust of the woman behind such hits as 'All I Wanna Do' and 'Soak Up The Sun.'" Fleischer issued similar apologies to Martin Sheen, Janeane Garofalo, and Nelly.

Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 12:22 PM]
A HIT-STORM AT ANOTHER SITE: Phil Carter, whom I'm fortunate enough to have as a student in my free speech law class this semester, has had 11,000 visits this morning alone. I saw that there was a surprising number of users coming to the Conspiracy from his site's blogroll link to us, and decided to check the trackers. Very impressive; if you haven't yet checked Phil's site, you should -- he's a former Army officer who writes calmly and thoughtfully about many issues related to the war.

 
[Eugene Volokh, 12:19 PM]
DENMARK DEPLOYS TROOPS AGAINST IRAQ: "It's Now Official -- We're at War." Thanks to the Command Post for the pointer.

 
[Eugene Volokh, 12:08 PM]
"A" STUDENTS, "C" STUDENTS, AMERICAN PROFESSORS CALLING FOR THE DEATHS OF AMERICAN SOLDIERS, AND MORE: From Newsday (thanks to The Corner for the pointer):

At an anti-war "teach-in" this week, a Columbia University professor called for the defeat of American forces in Iraq and said he would like to see "a million Mogadishus" -- a reference to the Somali city where American soldiers were ambushed, with 18 killed, in 1993.

"The only true heroes are those who find ways that help defeat the U.S. military," Nicholas De Genova, assistant professor of anthropology at Columbia University told the audience at Low Library Wednesday night. "I personally would like to see a million Mogadishus."

The crowd was largely silent at the remark. They loudly applauded De Genova later when he said, "If we really believe that this war is criminal . . . then we have to believe in the victory of the Iraqi people and the defeat of the U.S. war machine."

De Genova also said (I quote here from the Columbia Spectator):

U.S. patriotism is inseparable from imperial warfare and white supremacy.

Tell that to the patriotic black, Hispanic, Asian, and American Indian soldiers who are fighting and dying in the war alongside their white comrades. Oh, no, wait, I understand -- they must all be fools who don't really understand the deeper wisdom that you have arrived at (unless their grades are good enough):

Many of the professors explicitly discussed the responsibilities of academics to act against the war. Kevorkian Professor of Iranian Studies Hamid Dabashi called them "'A' students," in contrast to the "'C' students" who he says are running the government . . . .

"Tonight," [Dabashi said,] "we think for ourselves.

Revenge of the nerdy 'A' students against the stupid 'C' students with their stupid fingers on the trigger."

Fortunately,

At least two of the speakers who followed De Genova distanced themselves from his comments. One of them was teach-in organizer Eric Foner, a history professor, who disagreed with De Genova's assertion that Americans who called themselves "patriots" also were white supremacists.

In a telephone interview Thursday, Foner went further in his criticism, calling De Genova's statements "idiotic."

"I thought that was completely uncalled for," Foner said, referring to De Genova's allusion to the Mogadishu ambush and firefight, portrayed in the film "Black Hawk Down" and known for the graphic image of a slain American soldier being dragged through the streets. "We do not desire the deaths of American soldiers."

Here are some thoughts from the Columbia Spectator editorial about the event:

The goal of the event, presumably, was to spark intellectual, scholarly discussion about the war in Iraq. But last night's event was not a serious debate. It was a forum where professors could express their views unopposed.

Even if the event was designed for the very legitimate purpose of advocating only an anti-war perspective -- and not, as Professor Ira Katznelson suggested at the beginning of the evening, "to teach" -- one of the surprising things about the teach-in was the assumption on the part of several speakers that no one in favor of the war (or even anyone ambivalent) was present. Professor Jack Snyder said he felt comfortable speaking at Low last night because he knew there would be little opposition. The speakers were not out to change anyone's mind about the war; instead, they reveled in an atmosphere of intellectual conformity. . . .

Even when some professors distanced themselves from the more emotionally charged opinions, such as when Professor Eric Foner explicitly stated his disagreement with DeGenova, the overall intellectual atmosphere remained ideologically uniform. There was little explicit acknowledgement that advocates of the war were anything other than "stupid" or "shameless liars and hypocrites."

While Professor Alan Brinkley claimed he respected those who disagreed with him, he still only referred to his opponents as a vague political "Right" in the service of "corporate interests" when talking about the origins of the U.S. government's current stance.

The audience at the forum seemed equally unwilling to entertain the idea of reasonable dissent. When Professor Todd Gitlin told students the energy of protest must eventually be used in more pragmatic ways, like working to ensure that President Bush is not reelected, he was greeted with some hisses. By contrast, even the most stridently radical claims of previous speakers, like DeGenova, were met only with cheers.

Billed as a change of pace from the anti-war rally that occurred just hours earlier near the sundial, the teach-in should have been a tremendous opportunity for Columbia students to learn about the war, and good reasons for opposing it, from experts from widely varied disciplines. While some professors did present articulate and sophisticated reasons for disagreeing with the war, the possibility of disagreement was never taken seriously; no "teaching" took place. Too many students left the teach-in feeling intimidated not by the overwhelming opposition to the war, but to the way an academic forum became a fervid presentation of an exclusive viewpoint. In the future, the University should be wary of advertising a "critical" forum that is so uncritical of its own perspective.

A quick search also revealed similarly interesting statements from some professors at a different event last year:

Professor of Middle Eastern Languages and Cultures Joseph Massad decried Israel as "a Jewish supremacist and racist state," and stated that "every racist state should be threatened."

"The heritage of the victims of the Holocaust belongs to the Palestinian people. The state of Israel has no claim to the heritage of the Holocaust," claimed Professor of Latino Studies Nicholas De Genova.

(A later letter to the editor by him stresses that he also said "The heritage of the oppressed belongs to the oppressed -- not the oppressor.") Apparently, though Iraq, despite its racist slaughter of the Kurds -- or for that matter other Middle Eastern states who had attacked their Jewish (or other) minorities -- "should [not] be threatened"; nor have I seen a discussion of whether the gassed Kurds have any claim to the heritage of the Holocaust. Oh, and Prof. Dabashi makes an appearance in that article there, too:

Others, like Professor of Middle Eastern Languages and Cultures Hamad Dabashi, canceled their late morning and afternoon classes altogether, which caused concern among students planning to attend class as usual.

One of Dabashi's students opposed having class cancelled because, in his opinion, such action encourages overpoliticization of Middle Eastern culture courses.

No, really?

     Finally, for whatever it's worth, here's the paragraph blurb about De Genova from when he was teaching at Stanford:

Nicholas De Genova’s doctoral dissertation, entitled Working the Boundaries, Making the Difference: Race and Space in Mexican Chicago, explores socio-cultural processes implicated in the mutually constitutive productions of racialized difference and urban space in the experiences of Mexican migrant factory workers in Chicago. De Genova’s research posits a Mexican Chicago as a standpoint of critique from which to interrogate the U.S. nation-state, political economy, racialized citizenship, and immigration law. . . .

 
[Eugene Volokh, 11:32 AM]
COST-BENEFIT RANKINGS OF LAW SCHOOLS: Reader Joe Socher pointed me to a ranking of law schools by financial cost and likely return on investment (taking into account the cost of living). I'm not sure this framework is entirely sound, for various reasons; but I thought I'd pass it along.

 
[Eugene Volokh, 11:07 AM]
POEMS: I thought I'd mention again the Shards: Poems from the War project that I started up a while back. We've only published a few poems, but that's the beauty of putting stuff out for free -- you can publish only what you like, and at your own pace. Here are the submission guidelines:

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

1. Poetry is a tremendously subjective field; the material here is chosen solely based on our subjective and often erroneous judgment.



2. Because of our quirky tastes, please submit only formal verse, which generally means at least metered, and preferably both metered and rhymed. Free verse can be wonderful -- but it's just not our cup of tea.



3. We prefer poems that are 20 lines or shorter. We may make exceptions, but shorter is better (even in the under-20-line zone).



4. We generally like poems that are subtle but not opaque, that are neither over-the-top nor passionless, and that use language that is elegant but simple. How's that for precise guidelines?



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



6. 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.



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



8. If we find that we lack the taste or the heart to uncover enough gems in what we're sent -- or, for that matter, if we're not sent anything at all -- we reserve the right to quit having published nothing.

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, 10:49 AM]
50,000 UNIQUE VISITS PER DAY: The Command Post hit counters show that it's been getting roughly 50,000 unique visits per day over the last several days -- on a money budget of, I suspect, next to nothing. (The time budget, on the other hand, is doubtless huge.) Those airy platitudes about the glories of the market, viral marketing, flexibility and dynamism, and the Internet seem to be absolutely true here.

 
[Eugene Volokh, 10:41 AM]
"TOWN BANS WAR TRIBUTES ON PUBLIC PROPERTY": The AP reports that:

Yellow ribbons and all other war memorials have been banned from public property here . . . .

The Fieldsboro Borough Council approved the ban last week, but Mayor Edward "Buddy" Tyler said it does not prohibit residents from placing memorials on their own property. He said that while town officials "certainly recommend" that residents show their support for the troops, there were other concerns that must be recognized.

"Where would you draw a line if you started allowing the use of public property to exhibit whatever cause anyone wanted?" Tyler told The Trentonian of Trenton for Friday's editions. "Suppose someone wants to tie pink ribbons, or black flags, or a Confederate flag or a Nazi flag on public property?"

This is a very plausible concern, especially given court decisions such as this one from the Ninth Circuit, which hold -- again, quite plausibly -- that once the government opens up public property to patriotic private speech (such as flags, in that case), it must open it up to other viewpoints, including ones that many might find offensive.

     In general, there's a lot to be said for the courts' position on such cases, a position that is probably dictated by the Supreme Court's caselaw. Once the government opens up public property to private speech, there's good reason to require that the government be evenhanded in the sorts of speech that it allows there. It may be appealing to say "it's the government's property, so the government has full control over what's said there"; but when the government controls 35% of the GNP, and therefore controls a vast range of property (tangible and otherwise), letting the government have unlimited say about the sorts of private speech that are allowed on its property would give it tremendous control over public debate.

     At the same time, the government does have nearly unlimited power to express its own views on its own property (setting aside the constraints that the Establishment Clause imposes on religious speech by the government). As the Ninth Circuit flag decision recognized, if the government chooses to speak itself -- whether in favor of patriotism, racial equality, abstinence from drugs, or what have you -- it may do so without providing an equal forum to others.

     So here then is the puzzling consequence: Fieldsboro could put up American flags and yellow ribbons itself on city property, and exclude private speech from it (government agencies routinely do put up American flags on government property, after all, and this doesn't require them to also allow Iraqi flags on the same property); but it probably can't leave it up to citizens to put up their own flags and ribbons on city property. That might be a sensible distinction; or it might be an odd result of a distinction that's sensible more broadly, even if it reaches strange results in particular cases (many legal rules work well in most cases but yield surprising results in some situations); or it might show that the broader distinction is indeed mistaken, and that either the government should be severely constrained in its own speech, or the government should be free to open up property to some privately expressed viewpoints and not others. But in any event, I thought I'd point it out.

     Thanks to the Command Post for the pointer to the AP story.

 
[Eugene Volokh, 10:24 AM]
IRAQIS THREATENING THEIR OWN SOLDIERS: A message from a reader reminds me that it's important to make clear the significance of points such as this one:

[Eugene Volokh, 10:56 AM]
. . . ONE REASON WHY THE IRAQIS ARE FIGHTING: They or their children may get shot by the regime if they don't.

In part, I was saying this to illustrate the brutality of the regime, which is willing to threaten to kill children in order to coerce their parents. But I don't want to claim that the same argument entirely holds for threatening to kill the soldiers themselves -- threatening to kill soldiers (volunteers or draftees) for failing to fight the enemy (the general military justice term, I think, is "cowardice," though sometimes it might just be good sense) is, unfortunately, more defensible. It may still be cruel, especially if the fighting seems pointless; and the moral questions involved here are nontrivial. But I'm not willing to rest much of an argument on the assertion "Look how evil the Iraqis are -- they're threatening their soldiers with death if they fail to obey orders."

     Rather, the point there is quite different: Many people are saying "Look, the Iraqi soldiers are fighting us, rather than surrendering to us -- this means that average Iraqis really do hate us for invading." Reports such as the one I cite provide an alternate explanation: Maybe the soldiers, or at least many of them, really would like to surrender, but they fear instant death from their own discipline enforcers if they try. So we shouldn't draw much of an inference about average Iraqi attitudes from the actions of likely coerced soldiers.

     This, I think, is an important point, because the views of average Iraqis towards the invasion are indeed significant, since they will influence what happens after Saddam is removed. But I agree that we shouldn't draw too much from the evidence of coercion -- and in particular that we shouldn't suggest that coercion of the soldiers themselves (even with threat of death) is uncommonly or shockingly brutal.

 
[Eugene Volokh, 9:04 AM]
UPDATE: Yesterday, I asked, quoting an unknown author:

If Saddam loses a leg, but survives the U.S. bombing, how upset will his body doubles be?

Reader Jerry Huling replies:

Why, they'd be hopping mad!

 
[Eugene Volokh, 8:11 AM]
THE LOGIC OF THE EXTREME SELF-DEFENSE-ONLY ARGUMENT: Many people, such as my correspondent a couple of posts done below, argue that of course war is sometimes justified -- when it's fought in self-defense against a foe that "directly attack[s]/inavde[s] us," and that this shows that they would have indeed been in favor of America fighting the Nazis in World War II, though not most other wars. War in self-defense, they reason, is justified, though unfortunate; but if there's no self-defense justification, then it's wrong to kill innocent civilians and trespass on other nations' sovereignty. What's more, they generally reason, the government must explore all possible alternatives to war, and use war just as a last resort.

     The trouble, though, is that the Nazis didn't actually attack or invade us in World War II. They did declare war on us, pursuant to their treaty with Japan; but unless I'm mistaken, there were comparatively few military confrontations between the Germans and the Americans (mostly fairly small scale submarine warfare, largely aimed at our supplying the British and the Russians) until the U.S. actually attacked in the European theater in late 1942.

     Roosevelt did announce in 1943 that the U.S. intended to fight until an unconditional German surrender; but he didn't have to. If he really thought war was only permissible in self-defense, and as a last resort, he could have told the Nazis in Dec. 1941, shortly after they declared war, that America had no quarrel with Nazi Germany, and the Germans should have no quarrel with us. We wouldn't help the British or the Russians, the Germans wouldn't really help the Japanese -- think of it as an immediate ceasefire. And by the time the tide turned in mid-1942 in favor of the U.S. in the Pacific, the Germans would probably have been quite happy to make peace with the likely winner, especially if they would still have been having real trouble on the Eastern Front. After all, the Germans hadn't really attacked Americans. There really was no need for self-defense. There was surely no need for Americans to kill innocent German civilians, which any American war against the Germans would have necessarily led to. And of course the Roosevelt Administration had an obligation to exhaust all possible alternatives before going to war. Surely the ceasefire with the Nazis would have been a perfectly sound alternative from the pure self-defense perspective.

     Of course, this only rebuts the pure self-defense-only argument; perhaps some other versions of the argument might be more defensible. Perhaps Roosevelt's decision to fight the Nazis was justified on the grounds that had the Nazis won in Europe, they would be a serious threat to us, which might explain why Roosevelt did feel that fighting the Nazis was indeed our business -- but that's the very anticipatory self-defense theory that the anti-war forces generally condemn. Perhaps Roosevelt's decision is justified because we're also entitled to go to war to defend others, though that would justify a great many wars (my correspondent wrote that only three wars that the U.S. fought had fit the self-defense criterion, which means the correspondent was not accepting the defense-of-others rationale). Or perhaps there's some mixed theory: one may not enter a war first until the other side attacks or declares war, but once they declare war, then one can continue the war even when the need for immediate self-defense vanishes, or when other alternatives (such as a separate peace) arise. The rationale here would be that the other side has irrevocably waived its right not to be attacked by declaring war, though it's hard to see why (under the broad antiwar logic) this waiver should apply to the rights of innocent German citizens, who were no threat to the U.S. in late 1942, and who never voted to declare war.

     But while some such arguments might work -- as I've stressed repeatedly, there certainly are plausible arguments against this war -- they can't try to trade on the moral purity of the "[only] if the U.S. was directly attacked/invaded" / self-defense-only / no-war-unless-all-diplomatic-alternatives-are-exhausted argument. And if one does accept this argument, then I think the conclusion is that the U.S. should have fought it out with Japan (though only until Japan promised not to touch Hawaii or the Philippines again) but have promptly concluded a separate peace with Germany. If one accepts that conclusion, then that's fine; but those who don't accept it must therefore reject the pure self-defense-only view.

 
[Eugene Volokh, 10:41 PM]
GOERING QUOTE: A reader writes:

I think you have missed the boat here with your comments on the anti-war activists use of the Goering quote. There is a critical distinction between Germany and the Allies in WWII -- the Allies acted in self defense.

The moral equivalance alluded to by the anti-war crowd is one of offensive military action that is not taken in self-defense. The great majority of them would support a war if the US was directly attacked/invaded as was the case in WWII. But [this is not so here] . . . . Therein lies the rub, and this is why I believe your logic fails.

All of this is a plausible argument, though one I disagree with. (Among other things, imagine Hitler had not declared war on the U.S. following Pearl Harbor; if the "anti-war crowd" really take the view that attacking Hitler would have been wrong then, that illustrates their error.)

     All plausible except for the use of the Goering quote, because the "critical distinction" that my correspondent points to is precisely the distinction that Goering was denying. Goering is saying that all decisions to go to war are frauds perpetrated by conniving politicians on a gullible public -- the German decision to start the war and the Russian, British, and American decisions to fight it. Goering is equating the Allies acting in self-defense to the Nazis' actions, not distinguishing the two.

     So if the antiwar activists want to make the argument that the war against Iraq is improper because it's not in self-defense -- or even that the government is deluding the complacent public into believing that it's proper, something that wouldn't be so in a defensive war but is so here -- that's fine. But the Goering quote offers no support for this supposedly "critical distinction." As might be expected, Herman Goering proves not to be a font of moral or political wisdom.

 
[Eugene Volokh, 9:57 PM]
MARK STEYN'S LATEST ON THE WAR is excellent -- definitely worth reading. Thanks to Tim Blair for the pointer.

 
[Eugene Volokh, 5:38 PM]
BENIGNI ALERT: From Bob from Accounting, by way of Planet Proctor:

Terror Alert: New Wave of Roberto Benigni Movies on U.S. Soil "Inevitable"

by Tyler Reisinger


Washington, DC - Newly appointed Homeland Security Director Tom Ridge told a Senate Subcommittee today that a new wave of Roberto Benigni movies in the United States was "inevitable."

"For a long time Roberto Benigni movies were a far away problem," Ridge testified."They occurred in distant European theatres, only affecting the Italians. But now the threat of future Benigni films on the homefront is very real."

Already a huge star in Europe, Benigni was recently allowed to release a live-action version of the classic story "Pinocchio in the U.S, causing fear and anxiety among a nation of already jittery American children. . . .

Ridge answered questions posed by members the Subcommittee on the possible European backlash over the new alert. Ridge dismissed the entire continent and their filmmaking skills as "irrelevant," saying we must focus on finding the sources of these films and freeze their funds immediately.

"Sometimes we have to protect America at great cost, but as long as there are pushy foreign distributors who don't even speak English, we will be vulnerable."

Ridge has offered to create a new coded system to gauge the threat of future U.S. released Benigni movies -- low level threat occurs when Benigni is safely making non-subtitled movies in Italy, a mid-level threat occurs when American studio executives meet or discuss future projects with Benigni's agent over lunch. In the rare case that an English-language Benigni movie be complete with a domestic movie release date set, "we immediately go to DEFCON 1. But let's pray it never comes to that." . . .

 
[Eugene Volokh, 4:57 PM]
DEEP THOUGHT OF THE DAY:

If Saddam loses a leg, but survives the U.S. bombing, how upset will his body doubles be?

(Author unknown.) Unfortunately, we can't be sure that it's just a joke.

 
[Eugene Volokh, 4:51 PM]
BE CAREFUL WHEN RELYING ON HERMAN GOERING: I recently saw on an antiwar colleague's door this quote -- purportedly from Herman Goering at the Nuremberg Trials -- and then a couple of days later a reader passed it along as well; a google search found dozens of references. According to snopes.com it's essentially genuine, though Goering said it to an interviewer during the trial, and not at the trial itself:

Of course the people don't want war. But after all, it's the leaders of the country who determine the policy, and it's always a simple matter to drag the people along whether it's a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.

Here, though, is the snopes.com of a broader excerpt from the interviewer's book:

We got around to the subject of war again and I said that, contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.

"Why, of course, the people don't want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don't want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

"There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars."

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

This broader passage, I think, provides some important context, though one can see it in the original version, too: Goering is trying to justify what happened -- what the regime he ran did -- by suggesting that all the regimes are the same. England, America, Russia, Germany; democracy, Parliament, fascism, communism; it's all the same; all war is just regimes manipulating their foolish citizens. The German decision to start World War II, by this logic, is the same as the British and American decisions to resist the Germans.

     So that, I think, is the problem facing those who use the quote: Their proposed moral equivalence between Goering's Nazi Germany and America only works if they are also willing to accept Goering's moral equivalence of Nazi Germany and Roosevelt's America and Churchill's England. And if they are, like I am, repelled by the latter moral equivalence -- if they think that Americans really did deliberately endorse a war against Germany, or that, even if they were influenced by their elected representatives, their elected representatives were properly doing their job by exercising such leadership -- then what's the point of citing as authority a man (a monster) who was asserting it?

 
[Eugene Volokh, 3:16 PM]
LAW SCHOOL FACULTY RANKINGS: Here's another list of law rankings, this one of law school faculties -- I just got an e-mail about it a few minutes ago. Take it with the usual grains of salt, as you would other subjective ranking schemes.

 
[Eugene Volokh, 2:21 PM]
CITATION COUNTS FOR LAW JOURNALS: There's a list here -- potentially useful if you're trying to infer how influential a journal is, and what sort of reputation it has.

     For law schools' general interest journals (e.g., the UCLA Law Review), the citation counts seem to end up being not that different from U.S. News & World Report rankings, though there are some differences; but in any event, with the general-interest journals the reputation of the school may actually be more relevant (for instance, if you're choosing which journal to publish in) than the actual citation count of the journal. But it's long been quite hard to estimate the reputations of specialty journals -- this list might help. Thanks to fellow lawprof David Bernstein for alerting me to it, though I suppose I should have known about it long ago!

 
[Eugene Volokh, 12:29 PM]
"WHEN JOHNNY APPLE SAYS WE'RE THWARTED, WE MUST BE ON THE VERGE OF WINNING": Jack Shafer, in Slate's Pressbox points out some recurring errors of war coverage. Johnny Apple, incidentally, is the author of "Military Quagmire Remembered: Afghanistan as Vietnam," N.Y. Times, Oct. 31, 2001 (the headline, of course, isn't his, but it summarizes his piece nicely), and now of "Iraqis Learn the Lessons of How U.S. Fights Wars," N.Y. Times, today.

 
[Eugene Volokh, 12:18 PM]
"UNCLE SAM'S JIHADISTS": Deanne Stillman, writing in Slate, has what seems to me to be a sober and balanced view of this troubling problem. The overwhelming majority of Muslims in the military are doubtless extremely loyal, and they ought not be punished because of their religion. But some are disloyal -- and while there are some bad folks of all religions in the military, those whose evil flows from a religious and political belief system (Islamofascism) that sides with our enemies are particularly threatening. The tough part, of course, is figuring out what to do about this without being unfair to the many loyal Muslim soldiers, and without causing all sorts of practical problems for America inside the military, in American society, and in the world at large. But it seems to me that we can't ignore that this is indeed a potential problem, though its precise magnitude is not yet known, and might end up being relatively small.

     And just to preempt people trying to raise this objection, of course I'd say the same if, heaven forbid, the U.S. ever got into a war against Israel and there was evidence that some Jewish soldiers were on the Israeli side. Religious, political, and even ethnic loyalties are a reality; we shouldn't overreact to them, and we should be conscious of the danger of overreacting to them -- but we shouldn't pretend they don't exist, either.

 
[Eugene Volokh, 12:10 PM]
MICKEY KAUS ON SENATOR MOYNIHAN: A fine tribute, unusually substantive for obituaries, but particularly effective as a result.

 
[Eugene Volokh, 12:05 PM]
BLIX ON LIMITS OF WEAPONS INSPECTORS: From Radio Australia:

The United Nation's chief weapons inspector has defended his team over suggestions they failed to do their job in Iraq.

US officials have found thousands of chemical protection suits at an Iraqi military base in Nasiriya, along with a chest full of the nerve gas antidote atropine.

Chief weapons inspector Dr Hans Blix says the coalition forces are at an advantage compared to weapons inspectors in Iraq:

"The Americans have one advantage over UNMOVIC, in discovering things and that is as they go around the country and more areas are under their control it seems likely that people scientists engineers military will be more ready to speak to the Americans, than they were to us because when we were there they still had the formidable police apparatus that would scare them from saying the truth, if the truth was any different from what the government said."

Uh, yeah. Thanks to The Command Post for the pointer.

 
[Eugene Volokh, 11:45 AM]
be looked at on the face value of what it is, and it really does very little.”).

[1.] The State asserts that [the goal of promoting child rearing in a setting that provides both male and female role models] . . . could support a legislative decision to exclude same-sex partners from the statutory benefits and protections of marriage. . . It is conceivable that the Legislature could conclude that opposite-sex partners offer advantages in this area, although we note that . . . the answer is decidedly uncertain.

The argument, however, contains a more fundamental flaw, and that is the Legislature’s endorsement of a policy diametrically at odds with the State’s claim. In 1996, the [Legislature removed] all prior legal barriers to the adoption of children by same-sex couples. At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their “domestic relationship.”

In light of these express policy choices, the State’s arguments that Vermont public policy favors opposite-sex over same-sex parents or disfavors the use of artificial reproductive technologies, are patently without substance.[169] . . .

[2. W]hatever claim [based on history and tradition] may be made in light of the undeniable fact that federal and state statutes --including those in Vermont -- have historically disfavored same-sex relationships, more recent legislation plainly undermines the contention. [In 1977, Vermont repealed a former statute that criminalized fellatio.] In 1991, Vermont was one of the first states to enact statewide legislation prohibiting discrimination in employment, housing, and other services based on sexual orientation. Sexual orientation is among the categories specifically protected against hate-motivated crimes in Vermont. Furthermore, as noted earlier, recent enactments of the General Assembly have removed barriers to adoption by same-sex couples, and have extended legal rights and protections to such couples who dissolve their “domestic relationship.

Thus, viewed in the light of history, logic, and experience, we conclude that none of the interests asserted by the State provides a reasonable and just basis for the continued exclusion of same-sex couples from the benefits incident to a civil marriage license . . . .

1. I think criminalization of gay sex is very bad,
2. I think gay marriage would probably be good, though my views on this are more tentative, and
3. I think that the slippery slope effect here, while possible, isn't very likely -- decriminalizing gay sex may increase the likelihood that gay marriage will be recognized, but not by much.

 
[Eugene Volokh, 10:56 AM]
DAN DREZNER ON ONE REASON WHY THE IRAQIS ARE FIGHTING: They or their children may get shot by the regime if they don't.

 
[Eugene Volokh, 10:38 AM]
MAGIC: Three related items:

1. Check out The Flash Mind Reader.



2. Contemplate Arthur C. Clarke's Third Law: "Any sufficiently advanced technology is indistinguishable from magic."



3. Observe: To some people (and, in my experience, to many lawyers), algebra constitutes such a "sufficiently advanced technology."

UPDATE: Just to make it clear, yes, I know the trick . . . . Oh, no, wait, it's not a trick -- it's magic!

 
[Eugene Volokh, 10:06 AM]
NATURALNESS Reader Michael Williams writes:

Good post on unnaturalness. It's a purposely vague argument generally used to appeal to pseudo-religious or -emotional feelings that the speaker believes he shares with the listener. It allows them to agree on these feelings without having to actually deal with the details behind the feelings, on which they may disagree (different religious backgrounds, or whatever).

I think that similar arguments can be made in another realm: environmentalism. It's not "unnatural" to eat animals, or cut down trees, or dig oil and metal out of the ground.

Quite right. In both fields, other arguments other than unnaturalness can of course be made -- I don't really buy them as to homosexuality, and I buy some but not others as to environmental questions (though I leave the details to Sasha and Juan), but at least they're plausible. But arguments about whether something is "natural" or not just hide the true questions.

 
[Eugene Volokh, 9:27 AM]
CRIMES AGAINST NATURE: I realize this is a pretty banal point by now, but one argument that I've never understood against homosexuality is that it's "unnatural," and therefore "wrong." What exactly does "unnatural" mean, and why does it tell us anything about what is proper?

     1. "Unnatural" might mean "not found in nature." Well, that's a bit odd, because humans are a part of nature. I suppose "unnatural" might mean "found only in humans," but even if that's true, then homosexuality isn't unnatural: bonobo chimpanzees, who I doubt have been influenced by any alleged homosexual propaganda, do it, too (I almost wrote "do it as well" but that would have been ambiguous).

     2. "Unnatural" might mean "flowing from conscious design rather than human's physiological nature." That, though, would be pretty odd, too. First, the Bonobos are relevant even to this; but, second, millions of people do it, and they seem to have the same sort of emotional and physical drive towards it as heterosexuals do towards heterosexual sex. I haven't seen the studies, but I'm quite sure that homosexual stimuli yield physical reactions -- arousal, hormonal flow, and so on -- in homosexuals just as heterosexual stimuli yield them in heterosexuals. If heterosexual lust is "natural" in the sense that it's part of the nature of heterosexuals, I've seen no reason to doubt that homosexual lust is natural, too.

     3. "Unnatural" might mean "not done by most humans in the state of nature," which is to say before civilization and the imposition of large-scale social structures which may have led people to deviate from the practices in which they engaged for tens of thousands of years. This is the way "unnatural" seems to be often used in some discussions of natural lifestyles, though rarely focused on sex. But even if the "most humans" proviso makes homosexuality unnatural, then it's unnatural in the same sense that bathing, toothbrushing, and representative government are unnatural. Under this definition, "unnatural" has little to do with "morally proper." We don't measure the morality of most of our other practices by what most humans did in the state of nature -- why should we measure sexual practices that way?

     4. "Unnatural" might mean "not done by most humans today, which suggests that it isn't consistent with human nature." This, though, assumes that human nature is monolithic: If most people don't have some trait, then it's not part of human nature. Are redheads, then, unnatural? Or people with blue eyes? Or, shifting away from the clearly genetically linked (for purposes of this discussion, I don't need to enter the debate over whether homosexuality is genetically linked, though my understanding is that separated-at-birth twin studies do support such a link), is being a religious Jew unnatural? How about liking to run 26 miles at a stretch? Either these aren't unnatural -- because human nature might consist of different groups of people with different traits -- which disposes of another reason why homosexuality might be "unnatural"; or they are unnatural, in which case there's nothing wrong with being unnatural.

     5. "Unnatural" might mean "not contributing to the propagation of the natural phenomenon of a reproducing species." Heterosexual genital intercourse contributes to the propagation of the species, but homosexual genital intercourse doesn't. (Heterosexual oral intercourse, which I believe most Americans engage in at one time or another, isn't reproductive, but, the theory goes, "one thing leads to another.") But that's a strange definition of unnatural, and a stranger still definition of "unnatural and therefore wrong." First, human beings in society seem to appreciate art and music (of at least some sorts); that seems to be part of human nature, and though it doesn't directly lead to the propagation of the species (except insofar as artists and musicians tend to get a lot of, er, attention), we don't find it unnatural. And, second, if we do conclude that art, music, abstract mathematics, and so on are all unnatural in this sense, no-one would say that they're therefore bad.

     6. "Unnatural" means "contrary to the nature of the sexual act." Wait, someone might say, the argument in the previous paragraph is irrelevant, because art and music aren't supposed to reproduce the species. Sex is supposed to reproduce the species -- in the sense that this is its chief biological function -- so while nonprocreative art is fine, nonprocreative sex is unnatural and therefore wrong. This theory really would mostly condemn heterosexual nongenital intercourse, and heterosexual intercourse among the infertile and those who use birth control; but, the theory would go, those things are more likely to indirectly lead to reproduction, either by the couple or by others who follow their social example.

     But do we really think that our conduct should follow the chief biological function of the items, traits, or organs involved? The chief biological function of food is nutrition. Does it follow that it's not only unnatural but wrong to eat food for the sake of enjoyment, when you're not hungry? (I'm not talking about eating to excess, but about any eating that goes beyond the biological function of food.)

     The chief biological function of wood is to maintain a tree. Does it follow that it's unnatural and therefore wrong to build houses or furniture out of trees, or to burn them for warmth? The chief biological function of hair is -- well, I'm told that it's complicated, but surely the function is not served by braiding hair or dying hair. Perhaps braiding and dying serves a secondary biological function of hair, which is to make the person sexually attractive. But once we accept secondary biological functions, surely one can accept that sex is chock full of them as well, such as giving pleasure and fostering social relationships (and social relationships are very much a part of human nature, and for that matter of bonobo nature). Homosexual sex fits those secondary functions.

     7. "Unnatural" means "contrary to the will of God as expressed in nature." That, it seems to me, doesn't work well for most of the reasons given above. Nature contains homosexual desire just like it contains red hair and blue eyes.

     8. "Unnatural" means "contrary to the will of God, who created nature, as expressed in certain authoritative religious works." Now with that I can't argue -- theologians debate about how various religious works should be interpreted on this score, and people also debate, of course, about which works are the correct ones. I have no expertise in those debates, and not much interest.

     But it seems to me that this argument really has next to nothing to do with nature as such. Killing, stealing, and adultery seem natural under virtually any definition of nature; the religious objection to them may turn on them being contrary to the will of God, but I don't think it really has anything to do with naturalness. Likewise for homosexuality.

     And this is an important point, because when people say "homosexuality is wrong because it's unnatural," it seems to me that they are trying to assert more than just "homosexuality is wrong because it's contrary to my contested interpretation of contested religious texts" -- they are trying to call on a more objectively defined, uncontroversial authority called "nature," which is why they say "unnatural" rather than "ungodly." (Some do say "ungodly," but that's not the argument I'm confronting here.) The trouble is that this call fails: Whatever one's definition of natural, either homosexuality is natural, or it's unnaturalness says nothing at all about its propriety.

 
[Eugene Volokh, 8:28 AM]
ANOTHER NEW YORK TIMES CORRECTION: From March 11, 1975: "In yesterday's issue, The New York Times did not report on riots in Milan and the subsequent murder of the lay religious reformer Erlembald. These events took place in 1075, the year given in the dateline under the nameplate on Page 1. The Times regrets both incidents."

 
[Eugene Volokh, 8:24 AM]
LAW BLOGS AGGREGATOR: Check out the Daily Whirl, an aggregator for RSS feeds coming out of various law blogs.

     When you read that, did you read it as "a framastatologist for bletchitysmacks coming out of various law blogs"? It's too hard to explain -- though it basically lets you see the subject lines from a whole bunch of blogs at once -- but just visit the site and you'll see.

 
[Eugene Volokh, 6:48 PM]
NICE DIG: From the ever-sharp Cathy Seipp, writing about the Oscars and the lack of real expressions of support for the troops:

The New York Daily News's Rush & Molloy did report that Brittany Murphy, who co-starred with Eminem in "8 Mile" and is the wonderfully dopey voice of sexy Luanne on Fox's "King of the Hill," said "Thank you to the troops and their families. . . . Semper Fi!" at one of the post-Oscars parties. But that was a long way from the podium.

A more typical festive celebrity moment came when Tim Robbins, who along with mate Susan Sarandon is prominently against the war in Iraq, gave The Washington Post's Lloyd Grove what for after the Academy Awards ceremony.

The actor was angry that Grove had dared to interview Sarandon's mother, who in contrast to her daughter is a conservative Republican. "If you ever write about my family again . . . I will (bleeping) hurt you!" Grove reported Robbins yelling. Hey, Tim, give peace a chance!

Sweet. The rest of the piece is also much worth reading.

 
[Eugene Volokh, 6:27 PM]
D.C. METRO BLOGGER MAP: Pretty cool idea, and well-implemented. Realspace meets cyberspace.

 
[Eugene Volokh, 5:20 PM]
WHY THE FRENCH, GERMANS, AND RUSSIANS OPPOSE THE WAR, according to Egyptian economist Khalil Al-'Anani, on Al-Jazeera (source is MEMRI, thanks to The Command Post for the pointer):

France's opposition to the war in Iraq, rather than being based on political considerations, its historical ties with the Arab world, or an attempt to challenge America's role as superpower, is motivated by pure economic interests. Despite France's attempts to portray its stance against the war as a political one, it is difficult not to imagine the economic benefits to France if the war had not occurred. The consequences of war on the weak French economy will be palpable primarily in the oil and commercial sectors. . . .

The German economy is going through difficult times with a GDP growth in 2002 of 0.2% and unemployment of 11.3% which translates into 4.06 million unemployed workers. The reduction in taxes collected, coupled with rising unemployment benefits, could drive German deficits above the 3% ceiling established by the European Union, which would invite punitive measures. The war in Iraq could result in two immediate negative consequences for the German economy: first, a decline in German exports which is the main engine for German economic growth; and second, higher oil prices could intensify the German economic slow-down. . . .

Not unlike the case of France, it is difficult to overlook the extent and depth of the economic relations between Russia and Iraq which extend over 40 years. Here, again, economic considerations drive the Russian position vis-ŕ-vis the war on Iraq. . . .

I obviously can't personally speak to whether this is accurate, but given al-Jazeera's normal slant against the war, it seems noteworthy. Of course, it's also possible that this is just a manifestation of a broader cynicism that takes the view that everyone, whether American, English, French, German, Russian, or Arab, only cares about more or less direct financial benefit.

 
[Eugene Volokh, 3:36 PM]
FOREIGNERS SEEM TO LIKE BAD PUNS AS MUCH AS WE DO: Check out Swe-Dish Satellite Systems.

 
[Eugene Volokh, 3:32 PM]
SPEAKING OF SHORT JOKES: My two favorite limericks:

1. There once was a man from Peru
   Whose limerick stopped at line two.



2. There once was a man from Verdun.

 
[Eugene Volokh, 3:31 PM]
MY NEW LAW JOURNAL ARTICLE: The Journal of Legal Education agreed to take it; I'm particularly proud of it because, setting aside the title and the author, it's nine lines long. (It's a joke piece, as you might imagine -- the JLE often runs such in its "etc." section -- and shorter is usually funnier.)

 
[Eugene Volokh, 1:09 PM]
MATTHEW YGLESIAS ASKS, I ANSWER: Responding to my post about the Oregon "life for trespassing" bill, Matthew Yglesias writes:

[T]he bill as written will almost certainly fail. But that seems to be dodging the bigger question: What if the bill is amended so as to be more narrowly-tailored to the purpose of targeting anti-war demonstrators? Isn’t it pretty likely that, given the current climate of anti-anti-war sentiment being whipped-up, a law like that could pass? Would he support a law like that? . . .

First, I think a law of the sort I’m envisioning could pass constitutional muster. There’s no constitutional right to block traffic (indeed, it’s already illegal) and I don’t see why the constitution would prohibit handing out punishments differentially on the basis of what motivated the traffic-blocking. Indeed, punishments are handed out differentially on this basis all the time.

Second, I’m pretty sure that Prof. Volokh would oppose the sort of law I’m talking about, but I’d like to [hear] him say it. It’s all well and good for folks like Atrios to criticize this, but what actually makes a difference is when principled, pro-war, conservative folk speak up.

A few quick responses:

1. I'm of course very flattered by the last sentence.



2. I don't see any real basis for assuming that a law imposing life imprisonment for blocking traffic in order to protest the war, or interfere with the war effort, or what have you, would indeed be enacted. Sure, if one assumes that the majority of Americans utterly loathe antiwar demonstrators and want to punish them more than, say, rapists or armed robbers -- which means that the majority of Americans are both radically intolerant of dissenters and utterly lack moral proportion -- then one could infer that such a law would be passed. But I just don't make that assumption, and I wonder what foundation there is for making it.



3. I would of course oppose any law that imposed life imprisonment for people who blocked traffic in order to interfere with government, education, commerce, or assembly in an anti-war cause. I'm pretty sure that nearly all other "pro-war, conservative folk" would take the same view, just as I'm pretty sure that (for instance) nearly all "pro-choice, liberal folk" would oppose life imprisonment for people who block abortion clinics in order to interfere with abortions.



4. However, if such a proposal is made -- or for that matter if someone proposes even mild increases in penalty for illegal traffic blocking aimed at interfering with the war effort -- a big part of the defense of the proposal would be by analogy to hate crimes laws, which often turn misdemeanors (including, for instance, "disorderly conduct," defined among other things as the doing of "any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace," see Illinois stats. ch. 720 sec. 5/12-7.1) into felonies when they're done for reasons that the legislature finds particularly heinous. I think these laws are constitutional, but I think they're bad ideas for many reasons. One of the reasons is that they do in part run the risk of interfering with constitutionally protected (albeit morally contemptible) political speech by threatening very serious penalties if the speaker steps even slightly out of line.

 
[Eugene Volokh, 12:39 PM]
"DAY OF PRAYER AND FASTING": The House of Representatives is considering this resolution asking the President to declare a day of "prayer and fasting." (I've heard it said that they're planning to vote on it today, but I've seen no confirmation.) I think such a resolution would be constitutional, even under the Court's current caselaw, precisely because of the tradition that the resolution cites; it does endorse religion, but such endorsement was seen as permissible by the Framers and the generations that followed, and I'm willing to say (given Marsh v. Chambers (1983), which upheld legislative prayer on these grounds) that it therefore doesn't violate the Establishment Clause.

     But I don't like it; it seems to me that these resolutions are neither good government nor good religion. First, I think the American people are themselves perfectly good judges of what they should pray about and when, and they don't need the President to instruct them in this. Moreover, while in a former time these resolutions might have helped bring the nation together, I don't think this is actually likely today (though I do think that more personalized religious symbolism in a President's own speeches given in time of crisis may still have that effect, for complex reasons).

     Second, the very details of this resolution demonstrate how government involvement in these matters ends up verging on the ridiculous. The Congress urging the President to urge the people "to seek guidance from God to achieve a greater understanding of our own failings and to learn how we can do better in our everyday activities"? "Do better in our everyday activities"? This is what we need a Presidential proclamation for? That this is the prayer that politicians are trying to write for us just shows how bad politicians are at writing prayers, especially by committee.

     Moreover, a day of prayer and fasting? Yes, I know that this is part of the historical tradition to which the House is appealing, but unless I'm mistaken very few Americans today, even the most devout, actually see fasting as the proper response to national crisis. Many people do fast on certain days (such as Yom Kippur, Lent, or Ramadan) dictated by religious tradition; but I think very few fast outside these traditions, even in times that call for prayer and reflection. I doubt that President Bush, or the majority of the House of Representatives, would actually fast (though they may well pray) in response to this resolution, even if they vote for it.

     The suggested "recogni[tion of] the public need for fasting and prayer" is therefore not, I think, an actual recognition of public need for fasting and prayer -- rather, it's a sort of dramatic gesture aimed at symbolically tying us to a centuries-old American tradition (which I take it originated in a time when people did take fasting seriously in this situation). These dramatic gestures may be fine in politics, but I don't think they're right in religion: If you call for a sacred observance, it seems to me that you should really seriously want the sacred observance to take place.

     The standards of sincerity ought to be higher in religion than in political gestures. But such high standards are hard to maintain when Congress gets involved in religion, even symbolically.

     Again, I don't think this is unconstitutional, or some sort of travesty. But I also think that the text of this very resolution demonstrates the flaws in resolutions of this sort.

     Here's the resolution itself:

H. RES. 153

Recognizing the public need for fasting and prayer in order to secure the blessings and protection of Providence for the people of the United States and our Armed Forces during the conflict in Iraq and under the threat of terrorism at home. . . .

March 20, 2003
Mr. AKIN (for himself, Mr. GOODE, Mr. BARTLETT of Maryland, Mr. JONES of North Carolina, Mr. KING of Iowa, Mr. HAYES, Mrs. JO ANN DAVIS of Virginia, Mr. BEAUPREZ, Ms. CORRINE BROWN of Florida, Mr. MANZULLO, Mr. ADERHOLT, Mr. TIAHRT, Mr. PITTS, Mr. RYUN of Kansas, Mrs. MYRICK, Mr. WELDON of Florida, Mr. BISHOP of Utah, Mr. BARRETT of South Carolina, Mr. MILLER of Florida, Ms. ROS-LEHTINEN, Mr. GINGREY, Mr. TERRY, and Mr. SOUDER) submitted the following resolution; which was referred to the Committee on Government Reform

--------------------------------------------------------------------------------

RESOLUTION

Recognizing the public need for fasting and prayer in order to secure the blessings and protection of Providence for the people of the United States and our Armed Forces during the conflict in Iraq and under the threat of terrorism at home.

Whereas the United States is currently engaged in a war on terrorism in response to the attacks of September 11, 2001;

Whereas the Armed Forces of the United States are currently engaged in a campaign to disarm the regime of Saddam Hussein and liberate the people of Iraq;

Whereas, on June 1, 1774, the Virginia House of Burgesses called for a day of fasting and prayer as an expression of solidarity with the people of Boston who were under siege by the enemy;

Whereas, on March 16, 1776, the Continental Congress, recognizing that the `Liberties of America are imminently endangered' and the need `to acknowledge the overruling Providence of God', called for a day of `Humiliation, Fasting and Prayer';

Whereas, on June 28, 1787, during the debate of the Constitutional Convention, Benjamin Franklin, convinced of God's intimate involvement in human affairs, implored the Congress to seek the assistance of Heaven in all its dealings;

Whereas, on March 30, 1863, in the midst of the Civil War, Abraham Lincoln, at the bequest of the Senate, and himself recognizing the need of the Nation to humble itself before God in repentance for its national sins, proclaimed a day of fasting, prayer and humiliation;

Whereas all of the various faiths of the people of the United States have recognized, in our religious traditions, the need for fasting and humble supplication before Providence;

Whereas humility, fasting, and prayer in times of danger have long been rooted in our essential national convictions and have been a means of producing unity and solidarity among all the diverse people of this Nation as well as procuring the enduring grace and benevolence of God;

Whereas, through prayer, fasting, and self-reflection, we may better recognize our own faults and shortcomings and submit to the wisdom and love of God in order that we may have guidance and strength in those daily actions and decisions we must take; and

Whereas dangers and threats to our Nation persist and, in this time of peril, it is appropriate that the people of the United States, leaders and citizens alike, seek guidance, strength, and resolve through prayer and fasting: Now, therefore, be it

Resolved, That it is the sense of the House of Representatives that the President should issue a proclamation--

(1) designating a day for humility, prayer, and fasting for all people of the United States; and

(2) calling on all people of the United States--

(A) to observe the day as a time of prayer and fasting;

(B) to seek guidance from God to achieve a greater understanding of our own failings and to learn how we can do better in our everyday activities; and

(C) to gain resolve in meeting the challenges that confront our Nation.

UPDATE: There apparently was some debate about this in the House today (see here for the evidence, though not the text), and "further proceedings on the motion [were] postponed."

 
[Eugene Volokh, 10:20 AM]
ANOTHER NEW YORK TIMES CORRECTION: Nov. 14, 2001, at H36, quoting a correction published July 17, 1969 (remember what was happening right around then):

On Jan. 13, 1920, "Topics of the Times," an editorial-page feature of The New York Times, dismissed the notion that a rocket could function in a vacuum and commented on the ideas of Robert H. Goddard, the rocket pioneer, as follows:

"That Professor Goddard, with his 'chair' in Clark College and the countenancing of the Smithsonian Institution, does not know the relation of action to reaction, and of the need to have something better than a vacuum against which to react -- to say that would be absurd. Of course he only seems to lack the knowledge ladled out daily in high schools."

Further investigation and experimentation have confirmed the findings of Isaac Newton in the 17th century and it is now definitely established that a rocket can function in a vacuum as well as in an atmosphere. The Times regrets the error.

 
[Eugene Volokh, 10:16 AM]
VAST OVERREACTION IN OREGON LEGISLATIVE PROPOSAL: This is such a clearly wrongheaded move that I'm pretty sure it'll be promptly defeated, but it's still worth watching out for. It's from the Oregon Legislature site (PDF here, text here; thanks to reader Shorge Sato for the pointer):

Senate Bill 742

Sponsored by Senator MINNIS

Be It Enacted by the People of the State of Oregon: . . .

(1) A person commits the crime of terrorism if the person knowingly plans, participates in or carries out any act that is intended, by at least one of its participants, to disrupt:
(a) The free and orderly assembly of the inhabitants of the State of Oregon;
(b) Commerce or the transportation systems of the State of Oregon; or
(c) The educational or governmental institutions of the State of Oregon or its inhabitants.

(2) A person commits the crime of terrorism if the person conspires to do any of the activities described in subsection (1)
of this section.

(3) A person may not be convicted of terrorism except upon the testimony of two witnesses to the same overt act or upon
confession in open court.

(4)(a) A person convicted of terrorism shall be punished by imprisonment for life.
(b) When a person is convicted of terrorism under this section, the court shall order that the person be confined for a minimum
of 25 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary
leave or employment at a forest or work camp.
(c) [Describes procedures for possible release after the term provided in (b).] . . .

Any act aimed at disrupting assembly, commerce, transportation, education, or government would lead to life imprisonment. Even if you set aside constitutionally protected speech, this would cover any constitutionally unprotected conduct (blocking traffic, blocking the entrances to abortion clinics or government buildings, violating anti-noise ordinances, trespassing, the pettiest of vandalism, and so on) in the context of most picketing and protesting, which after all is often aimed at mildly disrupting various institutions.

     This, incidentally, helps explain why I'm sure the law will be defeated: First, I think that few people would want to impose such draconian penalties even on those who are seen as demonstrating in favor of bad causes (and I'm not even sure that this is why it was proposed, since it was introduced on Feb. 27, before the San Francisco-style protests started happening). Second, it will likely be opposed by a broad and politically powerful coalition including labor unions, the pro-life movement, and a wide variety of other organizations that routinely employ public protests and civil disobedience would strongly oppose it. Again, not much to worry about as a practical matter; but Sen. Minnis's office ought to be told that this is not good legislative draftsmanship.

 
[Eugene Volokh, 9:17 AM]
GOOD QUESTION: Josh Chafetz at OxBlog asks:

CAN SOMEONE EXPLAIN THIS TO ME? A sizeable chunk of Republican Guard troops are apparently heading south, towards US troops. Are they that dumb? Open fields are where our technological advantage is strongest -- our weapons are more accurate from a longer distance than theirs are, and we can bomb them from the air in the middle of the desert. Why aren't they retreating into Baghdad, instead, where our technological advantage is reduced by our desire to minimize civilian casualties?

Do they have something up their sleeves? Or are they just profoundly incompetent?

(Links available at OxBlog.)

UPDATE: Several people suggested that the Republican Guard is hoping for cover from the sandstorm. That's probably the likeliest explanation, but I'm skeptical that this will help them much.

FURTHER UPDATE: Maybe I'm mistaken; see the ABCNews story.

STILL FURTHER UPDATE: On the fourth hand, maybe the Republican Guard miscalculated:

It is thought Iraqi commanders decided sandstorms around Baghdad would provide cover for the elite troops to journey to the area of the heaviest fighting of the war so far.

They may have believed the appalling weather conditions would protect their troops from being decimated by allied air power, much of which has been grounded by sand-storms.

But military intelligence had spotted 3,000 Republican Guard moving from the capital to the city of Al Kut, and a further 2,000 were seen to the south of Al Kut.

And as a result, "Harriers and Tornados flying out of Kuwait attacked the armoured convoys." Let's hope so.

 
[Eugene Volokh, 8:51 AM]
RUMSFELD AND UPRISINGS: Christopher Lansdown has some thoughts on Rumsfeld's recent comments realted to the riskiness of civilian uprisings against the Baathists.

 
[Eugene Volokh, 8:00 AM]
INHABITED PLACES THAT HAD NEVER BEEN RULED BY A EUROPEAN NATION: I asked last Friday what inhabited places had never been ruled by a European nation, and I got nearly 50 responses over the last few days; some of the answers were pretty easy, and many people got them -- some were hard, and I specially note those who got the very hardest ones. Here they are, by area:

1. Asia. This is where the Europeans ruled least. Some people, incidentally, asked whether the Russians (either Czarist or Soviet) count as European; absolutely -- what we call Asian Russia today (Russia east of the Urals) is just a part of territory conquered by a culture that first flourished in Europe, west of the Urals. The Soviet Union was likewise really the Russian empire. Here are the places which weren't ruled by the Russians or any other European power:
   • Japan. The Americans, of course, did rule it after World War II, but while America is in many ways a European culture, it isn't a European country.
   • China (including Tibet), outside some of the areas (mostly on the coast) that were ruled by the Europeans.
   • South Korea. North Korea was controlled by the Russians for several years following World War II.
   • Thailand.
   • Nepal. The British ruled India, but not Nepal.
   • Bhutan, in part; part was controlled by the British. Only ten people got this one. UPDATE: A message from reader Eric Stone leads me to elaborate a bit further: Bhutan did permit England to manage its foreign affairs -- which made it a British protectorate, under one definition of protectorate -- but it did this in exchange for cash, which makes it sound like less of a surrender of sovereignty (though that's a judgment call, of course), and which is why I included it on the list.Saudi Arabia.
   • Northern Yemen (what was called North Yemen until it was united with the rest of Yemen).
   • Possibly Qatar, more or less, though the British exercised some control, though not other parts of the Arabian Peninsula, which were generally ruled by the British, or were at least British protectorates -- yes, I realize that it depends on what "rules" means, but I get to make the rules. Christopher Cha and Robin West got Qatar, but I deduct points for their getting various other places that had been even more heavily controlled by the British.
   • Possibly Mongolia, though various Russian regimes -- Czarist, White Russian, and Soviet -- were involved in ways that suggest something less than total Mongolian independence.
   • Not Taiwan, which was ruled by the Dutch in the early to mid-1600s; I did not know that, but my coblogger Jacob Levy did.
   • Not Turkey, though some suggested it -- it was ruled by Alexander the Great and the Romans. Some people suggested that the ancient cultures don't qualify as Europeans, but I don't see why not. I realize there might be some ambiguity as to "nation" when we're talking about Alexander the Great's transitory conquests, but not as to the Roman conquests.
   • Not Iran, which was very briefly conquered by Alexander, though query whether the conquest was long enough or pervasive enough to constitute Macedonian rule.
   • Not Afghanistan, which was ruled -- more or less -- by the Russians in the 1980s.
   • Not Sikkim, which was a British protectorate for a while.


2. Oceania.
   • Hawaii. UPDATE: Reader Chris Lawrence passes along this link, which says that the British ruled Hawaii for a few months in 1843, with some noises being made even earlier, in 1794; if that's so, then Hawaii would be off the list.
   • American Samoa. Eric Stone, Mark Kleiman, H. Koenig, and Duncan Frissell got this (and I hadn't thought of it).
   • Easter Island. Points to Andrew Lloyd for being the only one to find this (again, I hadn't thought of it, or of the next one).
   • Galapagos Islands. Likewise, Andrew Lloyd got it. I suspect there might be a few other islands now run by some of the Latin American countries that had never been governed by the Spanish.
   • Some people suggested Tonga, but it was a British protectorate for much of the 20th century, albeit one that apparently enjoyed considerable self-government.


3. Africa.
   • Liberia. It was founded by freed American slaves in the early 1800s, and wasn't snapped up in the scramble for Africa in the late 1800s. A tough one; only nine people got it.
   • Not Ethiopia or Eritrea, which were ruled by Italians (Ethiopia under Mussolini, Eritrea since the late 1800s).


4. Atlantic Ocean.
   • Not Iceland, even if you don't view it as itself being a European nation; it was formally united with Norway and Denmark for much of the last millennium, and, as best I can tell, in some measure ruled by Denmark for part of that time.


5. North America.
   • Much of the Louisiana purchase, Oregon, Washington, and Idaho, and neighboring areas -- these may have been claimed by the Spanish and French, or, in the case of Oregon, Washington, and Idaho, ostensibly jointly controlled by the British and the U.S. from 1818 to 1846, but they weren't really meaningfully ruled by those governments. The same may well be said of some parts of the British zone of what is now the U.S., and some of the Spanish Southwest, which wasn't meaningfully ruled by non-Indian people until after the U.S. and Mexico took over. Also, under this definition, the same might be said as to some parts of the rest of the world, though fewer, since Europeans ostensibly controlled them into the 1900s, by which time European technology enabled realistic rule over a much larger part of the hinterland.


6. South America.
   • Patagonia, which wasn't really taken over from the indigenous peoples until the late 1800s, when Argentina and Chile rather than Spain ruled the area. The same might, I suspect, be said in some measure of some of Amazonia. Karl Narveson was the only one (besides me) to get it.

So there it is. If you think I'm wrong on any of these -- not just that things could be interpreted differently, but that I was provably wrong -- please e-mail me URLs of sources that support your theory.

 
[Eugene Volokh, 7:42 AM]
RSS FEEDS: Reader reports suggest that the Blogger RSS feed is highly unreliable, but so far I've heard nothing but good stuff about David Janes' RSS scraper, also available behind the second "XML" box on the upper left-hand side of this page, or here. Thanks again to Janes for all his work on this, and on other blogosphere tech projects.

 
[Eugene Volokh, 7:38 AM]
"BECAUSE OF THE NAME I CARRY": Reader Sean Cox writes:

Mr. Akbar's mother's protest reminds me of an old joke:

Q: Who was the greatest German General of WW II?

A: Eisenhower.

It's not who you are -- it's what you are.

Indeed.

 
[Eugene Volokh, 5:09 PM]
BOOKMARK LAW: It turns out that over 100 articles published in law reviews since 1998 contain the text "Bookmark not defined." (And all you people at name-brand law schools, quit sneering; the most recent entry on the list is from the Yale Law Journal.) I never knew that legal academics were that interested in writing about the law of bookmarks . . . .

UPDATE: Actually, this might well be a WESTLAW/LEXIS glitch, at least in many instances, though it's still something that journals should be looking into and trying to get fixed, since many readers read just the WESTLAW/LEXIS version. But I have seen in print items such as "[CC: NEED CITE]" (top 10 law review, 1985), "Need cite" (top 20 law review, 1990), "[Author: please verify degrees, dates, and institutions]" (top 10 law review, 1997), "Source not in yet -- needs cite-checking" (1994), "author -- check source" (1990), and more. I even have one such item (though a bit more subtle) in a recent article of my own, to my shame (both the editors and the authors are responsible for this sort of thing).

 
[Eugene Volokh, 3:30 PM]
"JUST 38 PERCENT [OF AMERICANS] SAID THE CONFLICT WAS GOING WELL ON MONDAY," says the first paragraph of an Associated Press story, citing a Pew poll. Uh, no. As the story says about ten paragraphs down, that's the fraction who said the conflict was going very well.

     The Pew summary of the poll seems to say that 41% said it was going fairly well; there's a bit of ambiguity in how the summary describes this, but I think that's what they're saying. Thus, about 80% think it's going well -- in the sense of fairly well to very well -- and "[o]nly 8% went as far as to say the war effort was not going well." Surprisingly, none of this made its way into the AP story. (Thanks to the Command Post for pointing to the story.)

 
[Eugene Volokh, 3:18 PM]
"SADDAM'S PARAMILITARY SEWS MORE CONFUSION": Yup, that's the AP headline (on the Newsday site, but my contacts tell me that the AP wrote it). Fortunately, as Saddam's paramilitary sew, so shall they rip.

 
[Eugene Volokh, 2:51 PM]
ACADEMIC LEGAL WRITING PROOFREADING DONE: Sending them to the publisher today; there'll be one last round of final proofs, and then it will be published, I'm told some time in mid-April. It'll be great to finally have it out.

 
[Eugene Volokh, 2:29 PM]
ALCOHOL MANUFACTURERS IN TROUBLE: (I posted this Sunday morning, but it somehow inexplicably vanished; someone asked me about it, so I thought I'd repost it.)

     Apparently there are some industry insiders who will testify that alcohol manufacturers were actually aware that some of their products end up in the hands of drunk drivers and others who criminally abuse alcohol, contributing to the 10-15,000 deaths of innocent bystanders caused by alcohol each year in the U.S. (from drunk driving and alcohol-involved murders), and to an even great amount of nonfatal injury.

     What's more, alcohol manufacturers have reason to know that alcohol sold by some dealers -- for instance, those in college towns -- ends up being disproportionately bought illegally, for instance through "straw purchases" by underage consumers. And yet despite this, alcohol manufacturers continue to sell in college towns, even though they could easily stop all shipments to dealers in those locales, or at least cooperate with one another to reduce sales to those towns to the levels that seem necessary to satisfy only lawful demand. Even more nefariously, alcohol manufacturers do not stop selling (directly or indirectly) to liquor stores even after a liquor store has been found to violate liquor sales laws; the manufacturers appear to negligently leave enforcement of those laws entirely to law enforcement.

     OK, actually this isn't really quite right -- no-one is suing alcohol manufacturers over this, yet. (I have, however, seen a law review article urging product liability lawsuits against alcohol manufacturers.) But these are the theories being promoted in the lawsuits against gun manufacturers; and if you think they're wrong as to alcohol -- as I think they are -- they are equally wrong against guns. Alcohol and guns are dual-use products; manufacturers surely know that some of the products that they make are going to be used illegally, though most will be used lawfully. They also know that in some particular areas, the proportion of illegal use is higher than in others. But that, it seems to me, doesn't justify imposing this sort of liability, as to alcohol, guns, cars (after all, 10-15,000 innocent bystanders die yearly in car accidents, and car manufacturers recklessly keep selling fast cars, and utterly fail to police whether their distributors sell cars to people who seem likely to be reckless), or other products.

     In any event, though, I think this provides a useful check on gun liability arguments: Replace "gun" in each claim with "alcohol," and see whether the anti-gun-manufacturer argument makes sense. Generally, I think you'll find that it doesn't.

UPDATE: Walter Olson's excellent overlawyered.com has many links on this, and a bit of commentary.

 
[Eugene Volokh, 1:50 PM]
HOW TO AVOID EMBARASSMENT: Before forwarding friendly warnings to all your friends, colleagues, and acquaintances -- warnings about viruses, about cell phones starting gas station fires, and so on -- google some of the key terms, either by themselves or together with the words "myth" or "hoax." You'll often find that the original e-mail you got is a hoax; and you'll thus spare yourself a bit of mortification, and your friends a bit of annoyance.

UPDATE: A couple of people e-mailed me to point out that snopes.com does a great job of checking for hoaxes, and I agree; but in my experience, google will find more stuff than snopes, in part because it usually finds snopes pages. And while I think it would be great if people checked several sources before forwarding "warnings," my sense is that we're lucky if people just check one source; google is probably the best candidate for that one.

 
[Eugene Volokh, 1:16 PM]
NEW YORK TIMES CORRECTION: It's from 150 years ago (July 18, 1859), but I just ran across it (quoted in the Nov. 14, 2001 edition of the paper) while cite-checking my book draft, and thought I'd pass it along:

By a confusion of manuscripts, sent up at a late hour on Friday night, our leading article of Saturday on the Austrian Defensive Square was rendered perfectly unintelligible. As our extremely ridiculous blunder afforded matter for much legitimate and good-natured merriment to our contemporaries of the Sunday press, and a happy occasion for airing a little envy, malice and uncharitableness to the less respectable among the daily journals, the newspaper world is indebted to us for making it, and our apology is addressed to the world of readers alone.

 
[Eugene Volokh, 11:43 AM]
PRETTY LONG LIST OF U.S. MILITARY OPERATIONS, WITH NAMES AND DETAILS: It's here, and some of the names are doozies. I like "Operation Intense Look" and "Operation Nimrod Dancer." (Thanks to the Command Post for the pointer.)

 
[Eugene Volokh, 10:33 AM]
WAR MONKEYS: Read the Command Post on this.

 
[Eugene Volokh, 10:04 AM]
"UK TROOPS BACK 'BASRA UPRISING'": From the BBC (with thanks to the indispensable Command Post for the pointer):

UK troops 'back Basra uprising'

British troops are firing in support of what they believe is a civilian uprising in the southern Iraqi city of Basra, it is reported.

Artillery fire was being used to knock out loyalist Iraqi mortar positions which were attacking civilians, ITV news reported, quoting intelligence officers with the Scots Dragoon Guards.

The size of the insurrection is currently unknown, said GMTV reporter Richard Gaisford. Loud explosions have been heard coming from the city.

There has been confusion over whether many civilians in Basra and the Shia south welcome the arrival of coalition forces, but still fear pro-Saddam troops and agents.

British forces spokesman Colonel Chris Vernon said there were estimated to be about 1,000 Fedayeen irregulars in the city, with Iraqi regular army strength unknown.

UK troops had indicated they were changing their tactics as they preyed on Iraqi forces in the southern city of Basra. . . .

 
[Eugene Volokh, 9:48 AM]
FIG UPDATE: For those interested in that rude Russian gesture -- which also at least used to be a more common European gesture -- here's a photo (thanks to reader Glenn Bowen). Also, reader Melissa Davis writes that this gesture "is called a 'figa' in some Latin American countries (I think particularly in Brazil)" -- so far, consistent with the other things we've mentioned about it -- but it has a different meaning there:

It's a good luck sign, according to my aunt who was born in Brazil. My Peruvian grandmother had a large wooden wrist and hand in this position as a doorknocker for years, and I have a small one made of stone that I use as a pendant.

She even provides further evidence. Go figa.

 
[Eugene Volokh, 9:37 AM]
ANTI-ROTC SENTIMENT: InstaPundit writes, quite correctly in my view:

SOMEBODY VANDALIZED THE ROTC OFFICE at the University of Iowa. But the response seems to me exactly wrong:

An act of vandalism against a symbol of the U.S. military on the UI campus over Spring Break prompted leaders Monday to stop requiring cadets to wear uniforms to class.

Authorities are looking for a person who smashed two glass doors at the Reserve Officer Training Corps office in the South Quadrangle building and spray-painted such slogans as "Stop U.S. military research" and "Fuck all wars" on four other UI buildings between March 20 and 21, UI police records show.

"I am not concerned for the safety of the cadets, but I worry that their uniforms may provoke attention from a person who is looking to aim his antiwar sentiments at someone," said Lt. Col. Carol St. John, a professor of military science.

I think they should wear their uniforms every day. It's funny to me that a University that would never respond to racist speech by asking minority students to "try not to be so noticeable" would respond to this kind of behavior in such a meek fashion.

 
[Eugene Volokh, 8:09 AM]
THIS IS SO COOL: You can now search through census data for censuses from 1790 to 1960. Want to know the population in 1790? Or maybe the number of slaveholding families? Or maybe the number of slaveholding families who are themselves black? Or of Jews? By state? And by county? Or maybe literacy rates (self-reported, of course) in various states in 1900? Or the number of people born in China, or in Russia? Want to see the states sorted by the percentage of the 1900 population that was foreign-born males? Just go to the United States Historical Census Data Browser -- just mind-blowing (OK, for those data junkies whose minds get blown by this sort of thing, but I'm one of them).

     The questions varied from census to census, so information that's available for one decade may not be available for others. Also, always remember GIGO -- garbage in, garbage out. There may well be a variety of problems with the original data, and unless you're an expert in the field you might not even realize what they are. (If you're interested in some sense of what these problems might be, check out Clayton Cramer's Black Demographic Data, 1790-1860: A Sourcebook, especially chapter 1, "Limitations of Census Data," available here.) Still, that's always the risk with historical data; and it really is incredible that all of us can now have all this information at our fingertips. Wow.

 
[Eugene Volokh, 6:42 PM]
RUSSIAN TECHNOLOGY: The Command Post quotes this Australian Broadcasting Corporation story:

The Pentagon says it has seen no indications that Russian-made anti-satellite equipment is having a negative effect on US operations on the ground in Iraq. . . .

Pentagon spokesman Major General Stanley McChrystal says there is no evidence the satellite jammers are affecting US operations.

"What we found is through testing and actual practice now, that they are not having a negative effect on the air campaign at this point," Major General McChrystal said. . . .

Oh, how many Soviet jokes does this remind me of? (I'd hope that more modern Russian technology is better than the Soviet, but perhaps not by that much.) My favorite is actually partly an Arab joke and partly a Soviet joke -- in 1967, Nasser writes to Brezhnev: "Stop giving us surface-to-air missiles; give us surface-to-aircraft missiles."

 
[Eugene Volokh, 5:55 PM]
SHE MAY BE A STALINIST, BUT SHE SURE BRINGS IN THE HITS: Thanks to Andrew Sullivan, InstaPundit, Mickey Kaus, and The Corner (K-Lo) -- all to "Frida and Stalin" -- we're already up over 10,000 unique visits today, and we'll quite likely set a new record. (Our usual traffic has been at about 5000-5500 per weekday.) Woo-hoo!

UPDATE: The total count for this day was a titch over 13,000 unique visits.

 
[Eugene Volokh, 5:35 PM]
FRENCH'S ISN'T FRENCH, AND THEY WANT YOU TO KNOW THAT: Thanks to reader David Kaufman for passing along this press release:

THE ONLY THING FRENCH ABOUT FRENCH’S MUSTARD IS THE NAME!

ROBERT T. FRENCH’S ALL AMERICAN DREAM LIVES ON

FOR IMMEDIATE RELEASE

Recently there has been some confusion as to the origin of French’s mustard. For the record, French’s would like to say, there is nothing more American than French’s mustard.

Born in New York by the R. T. French company, French’s Cream Salad Mustard made it’s debut in 1904 at the St. Louis World’s Fair along with it’s side kick, the hot dog. Both were an instant success! By 1915 the French’s pennant became the brand’s official logo, symbolizing French’s affiliation with baseball and American celebration.

Throughout the years consumers have professed their lifelong love of America’s number one mustard. “For many Americans, French’s mustard IS Americana. It’s all about baseball, hot dogs, family and fun,” says Elliot Penner, president of French’s mustard. . . .

For the record, I love French food, and will continue to eat it, whatever the name, no matter how the French government (or even the French public) behaves. Nonetheless, I thought I'd pass this along.

UPDATE: But wait! I forgot to quote something hidden conveniently near the bottom of the press release:

The Seed Story: French’s uses only the highest quality mustard seeds. The milder white mustard seed is used for its Classic Yellow and honey mustard and the smaller, more assertive brown seeds for its Bold ‘n Spicy and Napa Valley style Dijon varieties.

"Dijon," eh? Not so not so French after all, it seems . . . .

 
[Eugene Volokh, 5:18 PM]
NOW THAT IS A GREAT STRATEGY FOR KEEPING YOUR FINGER ON THE PULSE OF AMERICAN LIFE: From the L.A. Times (thanks to Matt Welch for the pointer):

[Eric Alterman] acknowledged that "most big-city journalists are liberal. I personally don't know . . . well, I don't have to my house for dinner anyone who's not pro-choice, pro-gun control . . . pro-campaign finance reform."

On the other hand, according to Orville Schell's review of Alterman's book in the New York Times this month (Mar. 20, 2003):

Liberals, on the other hand, do not tend to see themselves as representatives for any ideological movement. Rather than emphasizing discipline, organization and uniformity of message, Mr. Alterman suggests, they favor self-criticism, diversity and fairness, which makes them weaker competitors, especially on the kind of sound-bitten yelling contests that increasingly characterize radio and television.

You don't suppose that people might also become "weaker competitors" when they never have to engage in personal conversation with friends whom they like and respect, but whose views they disagree with?

 
[Eugene Volokh, 4:06 PM]
USE OF HUMAN SHIELDS AS TERRORISM: William Saletan writes about this, with this conclusion:

The killers of Sept. 11 exploited the fact that they were willing to shed the blood of civilians and we weren't. The killers of Basra, An Nasiriyah, and Baghdad are exploiting the same difference. While ruthlessness in attack is worse than ruthlessness in defense, the logic of asymmetry binds them together. I don't know whether Saddam's henchmen should go to The Hague for sponsoring terrorism. But they certainly ought to go there for using human shields.

 
[Eugene Volokh, 2:49 PM]
TIME COLUMNIST ON MOORE'S SPEECH: James Poniewozik gets it right (thanks to the Howard Owens's excellent war news blog, InsideVC's War Blog):

Michael Moore had not only every right but every legitimate qualification to make an antiwar speech . . . Agree with him or not, he is, unlike Susan Sarandon, nothing if he is not a professional commentator; and thus it was not inherently stupid for him to make his speech.

No. His speech was stupid for entirely different reasons.

The first is that -- and this is a characteristic flaw of Moore's movies -- it was a shrill harangue that would make a person ashamed even for agreeing with it. By starting off his screed by attacking the legitimacy of George W. Bush's election, he committed the same mistake as too many leaders of the antiwar movement, such as the leaders of ANSWER: he couldn't resist the temptation to lump his antiwar stance in with the rest of his portfolio of grievances. As a result, he made a speech guaranteed to alienate even many people who are also against the war.

If Moore really wants to end the war -- and not just boost the spirits of his Upper West Side neighbors -- then mightn't he also want to win over people who oppose the war and yet don't believe that Bush is an illegimate president swept into office by skullduggery? . . .

That's the really annoying thing about Moore's speech. Moore often casts himself as a populist, and sometimes he's even convincing. . . . But Moore's own clubby, we-all-know-Bush-is-a-liar attitude suggests that he's not interested in a broad-based antiwar movement. . . .

[And] there's a special reason to resent a political speech at the Oscars -- and it's not just bias against Hollywood liberals. . . . [A] proselytizing celeb like Moore is essentially hijacking our attention, saying that if you want to find out who won Best Director, you're damn well going to sit there and hear me out on world affairs. All the more reason for him to be, if not apolitical, reasonable and respectful of people who disagree with him, or agree with him only, say, 60%. . . .

Great piece, worth reading in its entirety.

 
[Eugene Volokh, 2:06 PM]
MORE ON THUMBS UP: Reader Mostafa Sabet writes:

I'm an Egyptian-American immigrant (moved here when I was 1, but still semi in the know) and I've heard nothing about the thumbs up sign. I figured if there was an issue with it, I would've gotten it during one of my many, "This stuff is ok at home, but you'd better not do it here," speeches that my parents gave my siblings and I before one of our biannual trips back to Egypt. At the very least, they should recognize it as the American signal of "all good", a la the "Ok USA" guy in Bloodsport. Hand signals may vary from culture to culture, but you can always read facial/body expressions. Those people don't look like they're giving us, the equivalent of, the finger. Of course, I wouldn't take this as gospel, since my cultural ties are pretty loose nowadays, but it seems not to be something that we need to be too concerned about.

Interesting point, and further evidence that we can't infer too much from the thumbs alone. (Though since we're sharing cultural data, let me just advise people who go to Russia not to make a fist with the thumb sticking out between the index and middle fingers. This probably isn't necessary advice, since Americans don't normally do that -- except, as reader Dan Shmikler pointed out, when stealing children's noses -- but I pass it along just in case.)

UPDATE: Reader Michelle Dulak points out that the gesture has a long history in Europe; it's mentioned in Dante and Shakespeare, where it's called a "fig" or "figo," which is still its name in Russia.

FURTHER UPDATE: Pejman provides Persian perspective. (If you don't get the right post, it's because of a Blogger bug; go here and find the "THUMBS IN YOUR EYE" post.)

 
[Eugene Volokh, 1:49 PM]
WHAT WOULD STALIN THINK: Matthew Yglesias writes:

Good point from Slate:

The Frida contingent said that Frida Kahlo herself would have opposed the war. Folks, Frida was a Stalinist, whose famous line about painting her reality and not her dreams was partly a sop to reassure the Communists that she wasn't a gulag-worthy Surrealist.

Nevertheless, she was a hell of an artist. I do kind of wonder what Stalin would think about the world today.

"That wimp Gorbachev -- what an idiot. The Chinese at least looked for a while like they knew how to handle this, but even they're making the same mistake, though more slowly. There was nothing wrong with the Soviet Union that a couple more million killed in the gulag wouldn't cure." Seriously, isn't that about the only thing that would be on Stalin's mind -- the ruin of his life's work? What would he care about the U.S. fighting Iraq?

 
[Eugene Volokh, 12:32 PM]
"THEY ARE GOING TO ARREST ME JUST BECAUSE OF THE NAME THAT I HAVE CARRIED":

The mother of Hasan Akbar, the Army sergeant who is being held in connection with an attack ing on soldiers in Kuwait, expressed disbelief at reports implicating her son.

Quran Bilal said Sunday that no one in the military had informed her of the accusations against her son. In a phone interview from her home in Baton Rouge, La., she said she thinks her son has been accused simply because he is a Muslim.

''He's not like that,'' she said. ''He said the only thing he was going out there to do was blow up the bridges. He was never like that.''

Akbar, whose first name has been spelled Asan by the military, is being held as a suspect in the grenade attack that killed one 101st Airborne Division soldier and wounded more than a dozen others early Sunday morning in Kuwait. The dead soldier was identified as Capt. Christopher Scott Seifert, 27. . . .

[Akbar] expressed his concerns about being a Muslim in the Army to his mother in the past.

''He said, 'Mama, when I get over there, I have the feeling they are going to arrest me just because of the name that I have carried.'"

Akbar did not participate in the first Persian Gulf War because his religion created a ''conflict of interest,'' she said. . . .

Well, if Akbar is indeed the killer, then here's the striking thing: Not only was he not arrested "just because of the name that [he] carried" -- but if he had been arrested just because of his name (or even just discharged, or perhaps just not stationed in the Middle East, though that's harder to tell), Capt. Seifert would probably be alive today.

     I think that we are right to accept Muslim soldiers in a war that does indeed, as a practical matter, array us in large measure against the world Muslim mainstream. It is a sign of our strength and our principles, and I think it will ultimately help us both at home and abroad.

     But there is a cost to this tolerance, as well as a benefit. And that cost isn't just paid by abstractions such as "society" or "military efficiency" -- sometimes it's paid by particular people, such as Christopher Scott Seifert.

 
[Eugene Volokh, 12:10 PM]
"FRIDA AND STALIN":

     From the Politburo, who, judging by their name, ought to know about such things:

[W]e would like to guide your attention to an overlooked quote from Mexican actor Garcia Bernal, star of Y Tu Mama Tambien.

"The necessity for peace in this world is not a dream but a reality. And we are not alone. If Frida (Kahlo) was alive, she would be on our side against war." . . .

[A]llow us to quote from a Washington Monthly article on the real Frida Kahlo . . . [:]

". . . Kahlo turned on Trotsky because she had become a devout Stalinist. Kahlo continued to worship Stalin even after it had become common knowledge that he was responsible for the deaths of millions of people, not to mention Trotsky himself. One of Kahlo's last paintings was called "Stalin and I," and her diary is full of her adolescent scribblings ("Viva Stalin!") about Stalin and her desire to meet him."

     A quick google search seemingly corroborates the Washington Monthly assertion -- see, for instance, this article in a Socialist publication, and this piece on the World Socialist Web site. As the World Socialist article says, "In one of her last paintings (Frida and Stalin, c 1954), Kahlo depicts herself seated contemplatively beneath an enormous portrait of a benign and fatherly Stalin. As a political testament it speaks volumes." (I found the painting, which I include above, here.)

     So remind me: Why exactly should we care which side Frida would be on (unless we want to be on the opposite side, an admittedly imperfect heuristic)? Even if one somehow concludes that Kahlo was ignorant of Stalin's crimes (in the early 1950s, mind you), and was thus merely foolish as opposed to morally corrupt, is a "What Would Frida Do?" approach really very wise?

 
[Eugene Volokh, 11:55 AM]
24 HINDUS KILLED IN KASHMIR, APPARENTLY BY MUSLIM TERRORISTS: From the Bangkok Post, via the Command Post:

Suspected Islamic militants dressed in army uniforms gunned down 24 Hindus in Indian-administered Kashmir, police said yesterday, as the troubled region reeled from a new upsurge in violence. . . .

The gunmen rounded up the villagers before spraying them with automatic weapons and fleeing into nearby forests, he said. Among the dead were 11 women and two children. . . .

The massacre is the latest in a series of mass killings in the disputed state in the past year. The most serious incident, the killing of Indian soldiers and their families in Kaluchak on May 14, brought India and Pakistan to the brink of war. . . .

The violence has intensified since the onset of spring, with police saying routes used by militants to infiltrate Indian Kashmir from the Pakistani zone of the divided state which had been snowbound were now opening up again. . . .

Some 200,000 Hindus fled Kashmir in 1990, soon after the insurgency began. India says more than 37,500 people have been killed in the unrest since 1989.

 
[Eugene Volokh, 11:49 AM]
FLAGS IN CITY OFFICES: The Richmond Times-Dispatch reports the following:

[Gary Burton] and a friend hung his 5-foot by 8-foot American flag in their [City Hall] office this morning. . . .

But Burton's boss, Claude G. Cooper, ordered him to take it down about eight hours later. Three coworkers in the Bureau of Permits and Inspections complained to Cooper throughout the day, saying the flag amounted to an endorsement of the war. . . .

"The gist of [their complaints] is the flag is an attempt to make a political statement in support of the war. And they were opposed to the war," said Cooper, the city's building commissioner. "Emotions are running strong on both sides of the fence right now."

While ordering Burton to take it down, Cooper pointed to a city regulation that prohibits the "solicitation of city officers and employees for any unauthorized purpose, including but not limited to the sale or purchase of property, goods or services, contributions, membership, dues check off, political contributions or support . . . "

The regulation does not refer to flags of any kind. . . . Cooper said the flag will remain until [the City Attorney's] office makes a decision tomorrow.

John Jenkins e-mailed me to ask whether the city's attempt to take down the flag is constitutionally permissible. As a general matter, government employers may not restrict their employees' speech on matters of public concern unless the speech causes -- or seems likely to cause -- some disruption that outweighs the value of the speech (the so-called Pickering test). That means the government acting as employer has much greater authority over its employees' speech than does the government acting as sovereign, but the authority is not complete.

     Furthermore, the government acting as proprietor has a pretty broad hand in restricting speech on government property (outside government-owned public fora such as parks, sidewalks, and places that the government has voluntarily opened up for speech purposes), whether that speech is by employees or by others. Such restrictions must be viewpoint-neutral, but they may be content-based. (Restrictions by the government as employer may be viewpoint-based, when certain viewpoints create enough disruption; when the government is acting both as employer and as proprietor, as it is here, it can claim the extra authority that it has under either theory.)

     So if the flag indeed seemed likely to cause disruption, it might be restrictable, depending on how the notoriously vague Pickering balance comes out; and if the city's policy has generally been understood to prohibit the posting of prominent materials that have a political message, then the flag may be properly covered by this policy. (Naturally, the city has doubtless posted speech of its own on city property, but it's entitled to say that only the city's own messages may be posted on office walls, and that individual employees may not post their own political messages.) On the other hand, both the facts and the law seem vague enough here that it's impossible to tell for sure. And quite likely, this case will never come to court, but will be resolved politically -- either through the employee concluding that it's better internal politics not to insist on a right to put up the flag, or through management concluding that it's better external politics not to insist on the power to take it down.

 
[Eugene Volokh, 10:47 AM]
THUMBS UP: The Agonist reports that the "thumbs up" gesture is actually an insult in Arabic, and that Arabs giving American soldiers the "thumbs up" is therefore not what we might think it is. A seemingly official military site -- apparently aimed at introducing American soldiers to possible peacetime misunderstandings caused by cultural differences -- confirms this, saying:

Hand Gestures: By and large Bahrain is cosmopolitan enough that most of its inhabitants have been exposed to Western ways. Still, there are several hand gestures used in the U.S. which could have a different meaning if used in the Middle East. There are the "thumbs up", "peace (or victory), and the "okay" signs.

Thumbs up, meaning "everything is great" or "I’m Okay" to the West can be equated to the "middle finger" by Middle Easterners. Of note, hitch-hikers do not "thumb a ride", rather they hold their hand horizontal to the road and wave it up and down as though telling motorists to "reduce speed".

Peace or the victory sign is generally understood when the pads of the fingers are pointed away form the person making the sign (in other words, palm out.) When the sign is made with the knuckles facing away from the person making the sign (palm in) the sign may be taken for a "devil sign" or "the middle finger extended."

Okay, the circle made with the thumb and index finger, the other three fingers extended can be misunderstood to be the sign of "the evil eye"

Now this doesn't tell us for certain what the thumbs-up Iraqis mean. They may well be aware that the thumbs-up signal is seen as positive by Westerners (Western TV makes that clear enough), and might thus be practicing some cultural understanding of their own. They may be trying to say "fuck you," either not realizing that westerners will misunderstand it, or not caring, because they're just doing it for their own sake or the sake of their Arab friends who don't like the allies. Or they may just be enjoying the mild absurdity of the mismatch in meanings; these things can be a bit funny to some people, just like some people enjoy saying foreign words that sound dirty in English but are perfectly normal in other languages. But in any case, it is probably worth remembering that the gesture may have multiple meanings, and its likely meaning may be hard to figure out without considering the other cues that one is seeing -- e.g., are the people cheering, smiling, or the like? -- though of course some of those cues can be unreliable in certain ways as well.

 
[Eugene Volokh, 7:55 AM]
THE DEATH PENALTY: A review in the New York Review of Books, cowritten by the very prominent historian Edmund Morgan, describes The Death Penalty: An American History as a "remarkable book," "narrate[d] with extraordinary objectivity and insight"; the author "sticks to the facts and takes no sides."

     The author, I'm happy to report, is my own UCLA Law School colleague, coblogger, and fellow Kozinski/O'Connor alumnus Stuart Banner. Though the New York Review of Books review is quite clearly anti-death-penalty, the book itself is indeed scrupulously objective, and extremely readable and interesting to boot. Buy it! (Thanks to How Appealing for the pointer to the review, since Stuart was too modest to mention it himself.)

 
[Eugene Volokh, 11:43 PM]
CRUISE MISSILES: I'm not sure whether these were among the banned weapons that the inspectors were searching for, but it sounds like they might be. From The Guardian:

British troops mopping up Iraqi opposition outside Basra have discovered cruise missiles hidden in bunkers abandoned by Saddam Hussein's disintegrating southern army. . . .

[T]he most disturbing find was two Russian-made Harith cruise missiles, each six metres (20ft) long, and nine warheads hidden in two enormous, reinforced-concrete bunkers.

Another missile, as yet unidentified, was found still in its crate.

The scale and possible implications of the weapons find took British forces by surprise and raised fresh questions about the extent of the Iraqi war machine and the ability of weapons inspectors to cope with the task of scouring such a vast country for prohibited ordnance. . . .

Thanks to Yeechang Lee at The Command Post.

 
[Eugene Volokh, 10:33 PM]
DANNY DEEVER: Rudyard Kipling, as is so often the case, has something apropos. (Thanks to John Derbyshire on National Review's The Corner for the pointer; I'm not sure if his reaction to the poem is quite the same as mine, but he's right to point us to it.)

"What are the bugles blowin' for?" said Files-on-Parade.
"To turn you out, to turn you out", the Colour-Sergeant said.
"What makes you look so white, so white?" said Files-on-Parade.
"I'm dreadin' what I've got to watch", the Colour-Sergeant said.
     For they're hangin' Danny Deever, you can hear the Dead March play,
     The regiment's in 'ollow square -- they're hangin' him to-day;
     They've taken of his buttons off an' cut his stripes away,
     An' they're hangin' Danny Deever in the mornin'.

"What makes the rear-rank breathe so 'ard?" said Files-on-Parade.
"It's bitter cold, it's bitter cold", the Colour-Sergeant said.
"What makes that front-rank man fall down?" said Files-on-Parade.
"A touch o' sun, a touch o' sun", the Colour-Sergeant said.
     They are hangin' Danny Deever, they are marchin' of 'im round,
     They 'ave 'alted Danny Deever by 'is coffin on the ground;
     An' 'e'll swing in 'arf a minute for a sneakin' shootin' hound --
     O they're hangin' Danny Deever in the mornin'!

"'Is cot was right-'and cot to mine", said Files-on-Parade.
"'E's sleepin' out an' far to-night", the Colour-Sergeant said.
"I've drunk 'is beer a score o' times", said Files-on-Parade.
"'E's drinkin' bitter beer alone", the Colour-Sergeant said.
     They are hangin' Danny Deever, you must mark 'im to 'is place,
     For 'e shot a comrade sleepin' -- you must look 'im in the face;
     Nine 'undred of 'is county an' the regiment's disgrace,
     While they're hangin' Danny Deever in the mornin'.

"What's that so black agin' the sun?" said Files-on-Parade.
"It's Danny fightin' 'ard for life", the Colour-Sergeant said.
"What's that that whimpers over'ead?" said Files-on-Parade.
"It's Danny's soul that's passin' now", the Colour-Sergeant said.
     For they're done with Danny Deever, you can 'ear the quickstep play,
     The regiment's in column, an' they're marchin' us away;
     Ho! the young recruits are shakin', an' they'll want their beer to-day,
     After hangin' Danny Deever in the mornin'.

 
[Eugene Volokh, 10:11 PM]
READ LILEKS.

 
[Eugene Volokh, 10:10 PM]
NEW YORK TIMES VS. BOWLING FOR COLUMBINE: Ken Layne pointed to this New York Times review of Bowling for Columbine that I haven't seen mentioned much, even though it's been out for several months. Layne also links to many other criticisms, but for obvious reasons the Times review should be particularly persuasive. It doesn't have a lot on the specific inaccuracies in Bowling (David Hardy has collected plenty), but it does aptly condemn the general reasoning, and the location makes it especially credible. (Thanks to reader Gerald Dearing for the pointer to Layne's piece.)

 
[Eugene Volokh, 7:45 PM]
THE COMMAND POST, an excellent war-news blog, has now moved to http://www.command-post.org.

 
[Eugene Volokh, 12:05 PM]
UNITY AND DIVERSITY: The International Herald Tribune ran this cartoon:

Uh, folks, remember all that stifling of dissent by the U.S. government? It turns out that it never actually happened. Remember all the people praising diversity? It turns out that American democracy does indeed protect diversity of opinion. That means the minority is free to protest. But it also means that the majority -- and the majority of Americans does support the Administration's actions -- is entitled to go ahead without waiting for a "united nation," since our toleration of dissent and diversity makes a truly united nation quite unlikely. (Thanks to The Politburo.)

 
[Eugene Volokh, 11:51 AM]
ALCOHOL MANUFACTURERS IN TROUBLE: Apparently there are some industry insiders who will testify that alcohol manufacturers were actually aware that some of their products end up in the hands of drunk drivers and others who criminally abuse alcohol, contributing to the 10-15,000 deaths of innocent bystanders caused by alcohol each year in the U.S. (from drunk driving and alcohol-involved murders), and to an even great amount of nonfatal injury.

     What's more, alcohol manufacturers have reason to know that alcohol sold by some dealers -- for instance, those in college towns -- ends up being disproportionately bought illegally, for instance through "straw purchases" by underage consumers. And yet despite this, alcohol manufacturers continue to sell in college towns, even though they could easily stop all shipments to dealers in those locales, or at least cooperate with one another to reduce sales to those towns to the levels that seem necessary to satisfy only lawful demand. Even more nefariously, alcohol manufacturers do not stop selling (directly or indirectly) to liquor stores even after a liquor store has been found to violate liquor sales laws; the manufacturers appear to negligently leave enforcement of those laws entirely to law enforcement.

     OK, actually this isn't really quite right -- no-one is suing alcohol manufacturers over this, yet. (I have, however, seen a law review article urging product liability lawsuits against alcohol manufacturers.) But these are the theories being promoted in the lawsuits against gun manufacturers; and if you think they're wrong as to alcohol -- as I think they are -- they are equally wrong against guns. Alcohol and guns are dual-use products; manufacturers surely know that some of the products that they make are going to be used illegally, though most will be used lawfully. They also know that in some particular areas, the proportion of illegal use is higher than in others. But that, it seems to me, doesn't justify imposing this sort of liability, as to alcohol, guns, cars (after all, 10-15,000 innocent bystanders die yearly in car accidents, and car manufacturers recklessly keep selling fast cars, and utterly fail to police whether their distributors sell cars to people who seem likely to be reckless), or other products.

     In any event, though, I think this provides a useful check on gun liability arguments: Replace "gun" in each claim with "alcohol," and see whether the anti-gun-manufacturer argument makes sense. Generally, I think you'll find that it doesn't.

 
[Eugene Volokh, 10:35 AM]
CREATIVE DIFFERENCES: It really isn't my way to air the reasons for these sorts of things publicly, but it does seem that there are enough differences in style and approach between Clayton and us that we ought to amicably part. (I assure readers that this is not because of anyone's support for Focus on the Family, opposition to some antidiscrimination laws, or views on child molestation, but again I don't think it would be helpful to publicly go into the subtle evaluations of style and substance that go into subjective judgments about what it takes to be effective coauthors.) I much appreciate Clayton's posts this past week, and I hope you have as well; if you have, please check out his excellent personal blog -- I know that I certainly will continue to read it myself. Likewise, I hope that those of Clayton's readers who have visited this blog this past week have liked what the other contributors have to offer.

     As I mentioned in the past, this sort of thing is an experiment -- like the blog itself is an experiment. Sometimes the experiments work out great: For instance, I'm delighted that Jacob Levy has joined us, and I hope that he is as well; and I'm likewise very happy with the input of the other cobloggers (though since I personally know all the other nonanonymous cobloggers, other than Jacob and Clayton, our deciding to work together was less experimental). Sometimes it turns out that people end up being incompatible in certain ways, so things don't work out as well. But I'm glad I tried this, and I hope to conduct similar experiments in the future. My apologies for troubling all of you with these nonsubstantive internal details; now, back to our regularly scheduled programming . . . .