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Saturday, June 07, 2003


WHY THE REPUBLICANS ARE LOSING THE WAR OVER JUDGES: Michael Greve has an excellent essay on NRO called The Right is Wrong on the Courts. Though I do not share all his views on judicial philosophy, I agree that appealing to the vacuous concepts of "activism," "restraint," and "strict construction" is not well-serving the Republicans. We need a genuine debate over what judges should and should not be doing on the bench -- a debate for which Republicans are obviously unprepared.

If one must use the term "judicial activism" -- which I usually avoid -- I agree with Michael's definition:
The most meaningful definition of judicial activism is "a departure from the text, structure, and logic of the Constitution." By that standard, the liberal posture — which couples hysterical denunciations of the Rehnquist Court's federalism with a continued insistence on Roe v. Wade as a judicial litmus test — is fundamentally incoherent. In a sense, liberals no longer know whose side they're on. Alas, that is also true of conservatives — except more so.
I have explained my views on "judicial activism" in Is The Rehnquist Court an 'Activist' Court, an essay that appears in an excellent and diverse symposium on Conservative Judicial Activism in the Colorado Law Review. Later this month I will be debating the issue at the annual meeting of the North Dakota State Bar Association.

Where I most strongly disagree with judicial conservatives is over their stance on unenumerated rights. If it is improper “judicial activism” to ignore the text, structure, and original meaning of the Constitution, then when assessing the proper scope of federal power it is improper to ignore the Ninth Amendment ,which says
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
And when addressing the proper scope of state power, it is improper to ignore the Privileges or Immunities Clause of the Fourteenth Amendment, which reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .
Judicial conservative deny and disparage both clauses because, in their view, this language provides insufficient guidance to judges to count as "law." Most readers are probably too young to remember conservative hero Robert Bork’s confirmation testimony to the Senate in which he notoriously stated:
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.
In his book, The Tempting of America, Bork switched this metaphor to the Privileges or Immunities Clause. (For the best account of the original meaning of this clause I recommend, Michael Kent Curtis's seminal book No State Shall Abridge.)

Unfortunately Justice Scalia has adopted this same skepticism towards unenumerated rights with a vengeance, a stance that skews his entire approach to the Constitution. In contrast, Justice Thomas supported, for example, the judicial protection of the unenumerated right of parents to raise their children, in his concurrence in Troxel v. Granville, while signaling that protection of fundamental rights from infringement by state governments should properly be grounded in the Privileges or Immunities Clause (rather than in the Due Process Clauses). Moreover, he contended that laws interfering with fundamental unenumerated rights should receive strict scrutiny. (Read it -- his concurrence is only 2 paragraphs plus a crucial footnote.) For this and many other reasons, Justice Thomas would have my enthusiastic support to succeed Chief Justice Rehnquist when he retires.

Now I am fully aware that judicial conservatives believe that, because unenumerated rights are supposedly so open-ended, allowing judges to protect them would lead to, in Raoul Berger’s famous phrase, "Government by Judiciary." I will respond to this criticism at length in my forthcoming book Restoring the Lost Constitution: The Presumption of Liberty. Until then, you can read a partial reply to conservative Ninth Amendment skeptics here.

For now, suffice it to say that, unlike limiting Congress to its enumerated powers which drives Democrats and leftists into a tizzy, discarding portions of the text (and its original meaning) because these provisions fail to meet your vision of the "Rule of Law" -- as judicial conservatives do both on and off the bench -- is something that may accurately be called “conservative judicial activism.” And it's no different than those on the left discarding the text because it fails to meet their vision of "Justice."

It’s a shame that many conservative Republicans do not understand all this because, if the protection of unenumerated liberties was added to their sometime support for limiting federal powers and their better-than-the-left enthusiasm for free speech, their views would not only be correct, they would resonate with the vast majority of Americans -- resulting in more and better judicial appointments.

Friday, June 06, 2003


New address for Eric Muller's blog IsThatLegal: I'm pleased to announce that I've moved IsThatLegal to a more stable server, and given it a new domain name. From now on, you'll be able to find me at Please make a note of it, and come on over for a visit sometime.

Thanks to Eugene and the rest of the Conspirators for the chance to do another little guest stint here. It's always fun.


Guns and churches: Lawprof Tom Berg -- a religion-and-the-law expert who now teaches in Minnesota -- passes along the latest:
A judge issued a temporary restraining order Friday that said churches don't have to comply with some requirements of the state's new concealed-carry gun law.

Edina Community Lutheran Church had filed suit to block parts of the law, claiming it's unconstitutional for the state to require churches that want to ban guns to post signs and tell parishioners.

Hennepin County District Judge Marilyn Brown Rosenbaum granted the church's request for a temporary restraining order against the signage and personal notification requirements. The church's attorney, David Lillehaug, said that means the numerous churches now involved in the lawsuit may notify people as they see fit. . . .
I can't track down the links to my earlier posts on the subject, but if you're interested, they should be in the last couple of weeks' worth of archives.


Martha Stewart: My colleague Stephen Bainbridge writes in the L.A. Times:
[H]ere's what Stewart appears to have done: She spoke with her broker, who told her that another of his clients, Samuel Waksal, the head of ImClone, was selling off stock in his own company. She decided to dump hers as well. . . .

Stewart was a friend of Waksal's, but it's pretty clear that she didn't know what Waksal knew: The Food and Drug Administration was going to hold up a new drug his company wanted to release.

In fact, according to the SEC itself, after selling her ImClone stock, Stewart called Waksal and left the following message: "Martha Stewart -- something is going on with ImClone and she wants to know what."

Although the SEC's civil complaint makes much of the Stewart-Waksal friendship, the SEC nowhere alleges that Stewart had any advance knowledge of the problem with the FDA.

In other words, Stewart got a hot tip and she acted on it. So what?

As a society, we care about insider trading because it is a form of theft. . . . But what information did Stewart steal and from whom? The SEC alleges that she stole it not from ImClone but from Merrill Lynch, where her broker worked. Is this theft as we know it?

Tellingly, the Justice Department did not charge Stewart with insider trading. Only the SEC's civil complaint does so. Instead, the Justice Department went after Stewart for conspiring to obstruct justice by engaging in the great American pastime of lying to the cops.

According to published reports, the U.S. attorney decided that going after Stewart would be an "unprecedented" expansion of insider trading law.

I don't particularly like Martha Stewart's public persona. Like a lot of people, I get a vicarious thrill out of seeing the high and mighty brought low. But charging her with insider trading stretches that crime beyond where it was ever meant to go. . . .

It won't be insider trading that brings down Martha Stewart. It will be the cover-up.
I know nothing about insider trading law, but this is Steve's field, so I thought I'd pass this along.


Veiled driver's license photo case: I haven't yet had a chance to read the opinion -- still on the road, and had only a few minutes to check in -- but Tom Berg, a fellow lawprof and a leading religious freedom scholar, mentions that the judge's ruling is available here and that the court summarized its conclusions thus:
1. Plaintiff holds a sincere religious belief that she should wear the niqab in front of all strangers and unrelated Muslim men.

2. Plaintiff has not, however, met her burden of showing that the photo requirement itself substantially burdens her right to free exercise of religion. [The judge said that some facts developed at trial "undermine Plaintiff's claims that in her family's practice of religion, all images of living things are banned. The Court finds that Plaintiff lacks credibility with this argument. Therefore, the Court finds that a ban on all image-making of living things is not a sincerely held religious belief of the Plaintiff."]

3. Plaintiff also has not met her burden of showing that DHSMV's request that she "momentarily" lift the veil in a private room in front of only one, female person, places a substantial burden on her exercise of religion.

4. Therefore, Plaintiff's claim under the Religious Freedom Restoration Act of 1998 must fail.

5. The State has met its burden of showing that it has a compelling interest in protecting the public from criminal activities and security threats, and that having access to photo image identification is essential to promote that interest.

6. The State's need to be able to immediately identify subjects of investigative traffic stops and criminal and intelligence investigations outweighs anyone's need to pose for a driver's license photo wearing any garb that cloaks all facial features except the eyes.

7. Therefore, the requirement that all potential drivers have their driver's license photos taken unveiled, uncloaked, and unmasked does not unconstitutionally burden the free exercise of religion.

8. The State has made a reasonable effort to satisfy its interest in safety and security in the least restrictive manner in this case.
I'll probably post more Monday or Tuesday, when I get a chance to read the opinion myself.


Points of reference: One of the interesting dynamics in debates over changes in the law post-9/11 concerns the use of different points of reference. Here's the question: when evaluating whether a change in the law is troublesome or went too far, should you compare the present law to the preexisting law, or should you compare the present law to first principles without reference to preexisting law? Consider the very controversial Section 215 power in the Patriot Act-- that's the one that the libraries are worked up about. You can describe the law from first principles and make it seem pretty scary: it gives the FBI the ability to easily obtain a court order compelling someone to disclose of any tangible record in a terrorism case. You can also describe the provision by reference to preexisting law, and make it seem fairly tame: it gives FBI terrorism investigators a subpoena power similar to the one that federal and state criminal prosecutors have long had.

     I think both points of reference are important. One without the other leaves out an important part of the equation. But let me make what I think is a modest point: using preexisting law as a point of reference is often pretty helpful. At first blush it may seem weird to use preexisting law as a point of reference. After all, if a law ends up giving too much power to the government, why should we care whether the government has had that power all along? I think there are a few reasons why preexisting law provides an important point of reference, however. First, most people tend to assume that if they're hearing about a new law on TV or reading about it in the paper, it must break with the status quo or else it wouldn't be newsworthy. In that sense, first principles comparisons can be misleading, at least in the context of a "news" report. (I've often wondered what the reaction would be if DOJ proposed that Congress pass the Fourth Amendment. It would no dou t be reported as a government power grab, the arrival of Big Brother, etc.; I imagine that the New York Times would declare it unconstitutional.) As a result, a first-principles point of reference falsely places responsibility for today's rules on whoever happens to be in office at the time. In other words, it can give credit and place blame in the wrong place. Another reason is vaguely Burkean: most people have some level of comfort with the status quo. If they haven't heard that there is something wrong with law X, then keeping law X is probably okay with them. "If it ain't broke, don't fix it." As a result, many people worry more about change than maintaining the status quo, and think in terms of departures from existing law rather than in terms of first principles.

      Of course, this doesn't mean that preexisting law should be the only point of reference. If the preexisting law is bad, then reaffirming preexisting law isn't good. The trick is to juggle both points of reference at the same time, which is of course easier said than done.


Oy: I have not, mind you, published a law review article on the definition of chutzpah. But if pressed to supply my own definition, I'd note this week's release of the DOJ Inspector General's critical report on post-9/11 detainees, and then point to this.


Major development in the Democratic presidential race: I'm kind of surprised that the Kerry campaign said this in public so soon. The impression of vast family wealth was one of the items propping up Kerry's appearance of strength, and thereby helping to attract money and support. The conclusion that Ms. Heinz Kerry's money isn't legally available for the race will, I think, weaken Kerry rather a lot. The Globe's more complete article both notes some of the important caveats to this conclusion and makes a point of quoting some of the occasions on which people have talked about the Heinz money as a source of Kerry's strength or aura of strength.

The use of vast quantities Heinz money to support Kerry's campaign also, however, had the potential to create a particularly high level of Republican animosity toward Kerry, out of a sense that Ms. Heinz Kerry had taken "rightfully" Republican Heinz money and transformed it into Democratic Kerry money. (Not that that animosity would have hurt him much strategically.)


Attorney ethics meet public relations: I understand that a criminal defense lawyer is obligated to defend his client zealously. This story raises an interesting question, though: to what extent does that obligation extend to settings outside the litigation? The story makes it sound as though Eric Rudolph's Jewish lawyer is on national television attempting to defeat the perception that his client is an anti-semite. (This effort is necessitated by, among other things, his client's practice of calling television "the electronic Jew" and denying that the Holocaust happened.) Indeed, the way the story is being spun, it looks as though the lawyer is specifically calling attention to the fact that he is Jewish and that Rudolph has no problem with that. The lawyer is obviously looking toward jury selection, and trying to begin crafting an image of his client that is more palatable than the prevalent one.

I think this lawyer is playing a dangerous and disrespectful game. The story makes clear that the lawyer is a practicing Jew; it even features a supportive interview with the rabbi of the lawyer's congregation. And as a Jew, I resent the lawyer's playing the card of his faith in this way in the service of his client's interests. The lawyer might respond with some ringing language about the obligations of zealous advocacy. But that's a valid response, it seems to me, only if those obligations extend to a public relations campaign on the Today show.

If Eric Rudolph's courtroom defense requires this Jewish lawyer to refute relevant and admissible evidence that his client is an anti-semite, I say "go to it; that's your duty." But on the Today show, I'd argue, the lawyer has moved outside the realm of duty and into the realm of choice. I think he's making a bad one.


The lure of analogy in the debate on civil liberties: Back home at IsThatLegal, I have occasionally criticized critics of the Bush Administration's post-9/11 antiterrorism efforts for too quickly trotting out the analogy to the Japanese American internment of World War II. But here's an analogy that falls over the brink of tenousness into the chasm of absurdity: Noah Leavitt argues at Findlaw that we must learn civil liberties lessons from the experience of Peru. Yes, Peru. The land of the desaparecidos. "On the whole," Leavitt argues (after noting that the Shining Path controlled about a third of Peruvian territory, that President Fujimori completely shut down the legislature and the judiciary with the backing of the military, and that paramilitary groups carried out domestic extrajudicial executions), "we can only hope the U.S. may be able to learn the lessons of experiences like Peru's, without having first to suffer them."

Sorry, but I don't see the use of invoking the example of Peru in our current debates about the balance between security and liberty.


Hints of Volokh Intrigue: Big brother Eugene disappears and then surfaces at a Kinko's in Santa Fe, while little brother Sasha posts cryptically that one of his twelve co-bloggers will betray him.

Is it any wonder this place is called the Volokh Conspiracy?

Thursday, June 05, 2003


HOWELL, WE HARDLEY KNEW YE: Is anyone besides me disappointed at Howell Raines' resignation from the Times? Now the paper can go back to posing as an objective arbiter of the truth rather than the spirited ideological publication it's always been. By taking the white gloves off the Grey Lady, Raines did truth in advertising a great service. Now he's gone and the Times gets to go back to pretending. 'Tis a pity.


Note to my co-bloggers: One of you will betray me.


Epilogue from Venice and Barcelona: I've been back from Venice and Barcelona for the past several days; I would have blogged all this earlier, but my computer shut off for no apparent reason (possibly overheating) just when I had finished a post, so I let reposting it slide for a couple of days.

In more recent news, though, I just graduated from Harvard Law School today.

Back to European trip stuff -- thanks to YalePundits, The Conservative Crust, and my friends Steven Jens and Tim Sandefur, for linking to my commentary along the way.

Let me comment, though, on Junius, who is, "frankly, shock[ed]" (given my avowed libertarian leanings) at crypto-Franquist leanings he detects in my post; he goes on to quote Anthony Beevor's The Spanish Civil War on just how repressive Franco really was.

Fortunately, it turns out that my post was not a paean to Franco. Recall just how far left Orwell actually is (despite his strong anti-Stalinism). He preferred the Anarchist version of the world, which, in 1936 Spain, actually collectivized factories and barber shops and the like and actually ran a putatively classless socialist society. (The basic difference between Anarchist communism and Communist (i.e., Soviet) communism, per Orwell, is, roughly, that Anarchism involves worker ownership of the means of production, while Communism involves government ownership.) Orwell explained how the Communists were actually more "conservative" than the Anarchists, in the sense that they were actually fighting against workers' revolution in Spain, so as to expand the anti-Franco coalition, and (Orwell says this is the real reason) to avoid destabilizing France, which was a military ally of the Soviet Union.

Orwell came to dislike the Communist line, first because of its dishonesty (since they never came out and said they were against socialist revolution in certain countries, including those allied with the Soviet Union), and second, because he felt that making the war into a fight for Revolution would have had a better chance of attracting lower-class and worker support in other Western democracies and in the areas of Spain already occupied by Franco.

So, I said, this revolutionary construction of the war -- basically, opposing the Communist agenda from a position even further left -- may have worked or it may have not, but what's for sure is that "with every revolutionary construction of the war, Franco becomes more and more palatable to people like me" because supporting revolution would mean "losing the support of any of the middle class or landowners and possibly even getting some of the Western democracies to intervene on Franco's side."

Does this endorse Franco? Not quite, but it does make the (supposedly uncontroversial?) point that the more Communist one side gets, holding Franco constant, the better Franco looks by comparison. At some point, make the Republicans bad enough and Franco even becomes preferable. Remember that when you have a war between side A and side B, side C (i.e., liberal democracy) is not a valid choice. If the anti-Franco side were completely dominated by a Soviet Union committed to all-out dictatorship of the proletariat, I would probably hold my nose and support Franco. In hindsight (and perhaps we could even guess at this beforehand), we know how Franco turned out (i.e., bad but no Stalin), and we know how Soviet Russia (and its post-World War II satellite states in Eastern Europe and elsewhere) turned out (i.e., Stalin and Stalin clones), and Franco seems like a better deal. (Plus, Franco transitioned bloodlessly into liberal democracy after less than 40 years, which just barely beats out, say, Czechoslovakia.)

As it turns out, though, supporting the Republicans in the Civil War did not come down to support a workers' revolution. Lots of liberals supported the Republicans, mainly because the Anarchists weren't the only game in town, the Communists downplayed social revolution, and Franco was no lover of capitalism himself. So in the real world, Orwell and the Communists were probably fighting on the side of the angels (though after the war, I'd want the angels to keep both of them safely out of power). But if Orwell had had his way (which, thankfully, he didn't), my view of the relative merits of the sides might be a lot different.


Santa Fe: I'm blogging from a Kinko's in lovely Santa Fe; I'm here for what promises to be a very interesting conference on intellectual property, put together by the University of Houston law school. Special bonus: I finally get to meet the great Judge Richard Posner -- oddly enough, I've never had the privilege before. I will therefore be even slower than usual in responding to e-mail until Monday, when I'll be returning to my office.


Not much "diversity" after all: Randy alerts me that my Jew-dar isn't working very well -- it turns out that he is Jewish (though others have apparently made the same mistake I did). I'm not sure why I was so confident; perhaps it was his last name, but those signs are notoriously unreliable. In any case, that leaves us at just one Gentile among the nonanonymous current coconspirators. Make of that what you will . . . .


E-mail from Baghdad: I recently received a group e-mail from a personal friend of mine in the Naval Reserves who was recalled to active duty in the Middle East back in February. He's now in Baghdad, and with his permission I have reprinted his e-mail below, with a very minimal amount of editing. It's a long letter, but worth reading, I think.
   I arrived safely in Baghdad on the 28th, after spending a night with the Air Force in Qatar. All travel around this area is with armed guard, I was lucky to have three during my drive to the Palace compound “the green zone” which is about 2 mile x 3 miles in size and houses the Office of Reconstruction and Humanitarian Affairs, whose name is changing (mostly because the humanitarian emergency we all anticipated never materialized). The new title is OCPA - the Office of the Civilian Provisional Authority. Ambassador Bremer is the CPA.
   My quarters are in the backyard of the palace - we call it the 4-headed palace, as there are 4 enormous heads on the roof (of whom I am not sure) - in a trailer park. There are four to a trailer with one head. Chow is served (by KBR - Kellogg, Brown & Root) in the palace dining hall to about 1500 per meal, which should give you an idea of the size of the 'headquarters" operation being housed here in Baghdad. It's a combination of Army personnel, State Dept, Pentagon people, contractors and local folks who are being employed in many capacities. People are sleeping everywhere -- in outlying permanent buildings, in the palace itself (with no a/c), in tents, in ballrooms and hallways. Every day it gets better, as security improves and power becomes functional in hotels. This past week the weather has been reasonable, and has not exceeded 100, but without a/c there's no way folks will sleep as temperatures rise. We can roam pretty freely in the green zone, which is well landscaped, albeit needing a good trimming and a strong powerwashing. I wen ICEF, Stevedoring Services of America, Skylink. There are also many subcontractors, many of them domestic. So far, I have been assisting the folks who are standing up the Labor & Social Affairs Ministry and the oversight of the Skylink contract. Skylink will manage and administer the airports. Iraq has not participated in the International flying business since the Gulf War, so there's a lot of work to do. Those of you who participated in OIF, not to mention Operation Southern Watch and Operation Northern Watch are very familiar with the status of the ATC capabilities. Nice work. Today, I picked up another assignment, to help administer $50 million in economic impact aid to get some key government-owned companies up and running.
   Let me tell you about the roadtrip a group of us took last weekend. The mission was a fact-finding tour for the Ministry of Labor up into Northern Iraq, the homeland of the Kurds. We set out in a 3 suburban convoy, with some support personnel, Army Civil Affairs officers, the former senior advisor to the minister of labor, and the newly-arrived advisor. Because of security requirements, and desire not to take too many people, I was issued an M-16 for the weekend (yes, a Navy guy with a gun, but I’ve actually been on a range in the past few months). We rolled out after lunch on Friday, took the main highways (v ry good roads, although not lit or lined, so I would not recommend nighttime driving). We passed through Tikrit and Kirkuk on the way to Irbil, the capital of the North and more particularly the capital of the KDP controlled area. Total driving distance was 410km, and it took us about 4.5 hours. Between Baghdad and Tikrit, the roadside was littered with burnt up hulks of Iraqi tanks, trucks and apvs. Some were in good condition, having simply been abandoned. US military presence was heavy. On the banks of the river (overlooking a rather dilapidated bridge thanks to coalition forces) in Tikrit was an enormous palace - hopefully someday a hotel. In Tikrit it appeared to be business as usual, with the exception of patrolling US forces.
   Beyond Tikrit, on the road to Kirkuk, is a wide expanse of desert, leading up to a range of hills about 1000' high that was dotted with lookout/gun emplacements all facing north.
   Agriculture thrives on the other side of those hills; grain threshers reaping wheat, trucks full of tomatoes, cucumbers and watermelons. Throughout the North, agriculture, agriculture, agriculture. It could have been Kansas, Wyoming or the Napa Valley. Visions of many states passed through our heads as we drove along to the tune of Johnny Cash, Beck, the Gypsy Kings, U2 and others.
   As we passed through towns, we were visibly American. We were in uniform, driving big GMC trucks. However, in addition to kids waving at us, adults smiled and waved. Here in Baghdad, kids wave, but up there, everyone was happy to see us: "American, OK, mister, hello, thank you" were the popular refrains.
   . . .
   The next morning we launched across the northern hills to Sulaimaniya. It’s very rural country-side, but again, waves and smiles. Poverty is still prevalent in those regions. We passed a lot of trucks loaded with USAID grain bags (which has served to depress the local grain market even while feeding many -- they have the apacity to feed the entire country), herds of sheep and goats, and the regional peshmerga troops guarding checkpoints along the way. In Sulaimaniya we were greeted with banners for GWB, Blair and Bremer who had visited the day before. We met with Talibani, the Social Minister and about 2-dozen NGO's over the next day, collecting information about how they run things, especially their Labor & Social Affairs ministry in the North. Their statements and actions reflect unity with coalition priorities. I'll leave it there. They are happy to see Saddam gone. The atrocities he carried out on the Kurds over the years are well known, and there's no love lost. They have made progress on many women's issues (honor crimes and polygamy have been outlawed), they have women's and children centers. The Prime Minister's mother is very much the activist, although I didn't get the feeling after meeting both of them that they talk very much or see eye to eye.
   The tension is high all around here [in Baghdad], but not necessarily because of the protests or potshots being taken at the Army patrols. Everyone wants to succeed and is working 24/7 to do it, but it doesn't always seem as the world understands the issue because of the limited view the press provides. There is a very talented team assembled, with not the greatest access to the usual resources (phones, computers, air conditioning, etc). They’re also going to need some good people to fill their shoes in a couple of months; i.e., the President of Michigan State needs to head back to school at summer’s end.
   I hold great hopes, and hope you do as well. Talking with the people working mass graves has assured me that if for no other reason, that was enough to make this effort worthwhile. We must sustain that effort.
   Sorry to have gone on for so long. Best to all!


Have Martha Stewart's Lawyers Already Registered Or is a waiver?


I forgot to mention: Randy Barnett's addition to the Conspiracy is particularly important because he adds diversity -- there are now a whole two current nonanonymous coconspirators who's aren't Jewish. We're very open-minded here, yes we are, no doubt about it. I mean, some of our best friends are goyim . . . .

     How Appealing correctly labels Randy "quite a catch," though I suspect not for the reason I mention above.


Chertoff in the news: My hat is off to my former boss Mike Chertoff, a nominee for a seat on the U.S. Court of Appeals for the Third Circuit, for not lying low while his judicial nomination is pending in the Senate. Chertoff himself argued the government's position in the Moussaoui case in the Fourth Circuit the other day--a task that, as Assistant Attorney General in charge of the Justice Department's Criminal Division, he could easily have fobbed off onto somebody else.

Chertoff is an astonishingly good oral advocate. Back in '93, in the Third Circuit, he argued a brief I'd written in the prosecution of a guy named Eddie Antar (for those of you from the New York area, this was the "Crazy Eddie" of those annoying TV and radio commercials). The issue on appeal was the post-verdict access of the media to jurors, and the district judge had really bullied the press into leaving the jurors alone, so our task on appeal was not easy. Chertoff just wiped the floor with the lawyer for the newspapers. He was amazing. I'd have to assume he did well in the Fourth Circuit the other day, on an issue at least equally as difficult.

I think it says a lot for Chertoff that he's willing to risk taking public heat on Moussaoui while his record is under heavy scrutiny in connection with his pending judicial nomination and while the Senate Judiciary Committee is investigating various allegations against him.

Of course, it may also be that Chertoff was eager to be in the headlines in a favorable light at a time when the Justice Department Inspector General's rather embarrassing report (a very big .pdf file) on the Department's handling of aliens detained in the wake of September 11, 2001, was also in the headlines. Chertoff does not come in for heavy criticism in that report, but the report does make clear that Chertoff was involved in the framing and implementation of the controversial "Hold Until Cleared" policy, under which the Department determined to hold aliens arrested after 9/11 on any possible basis until they could be cleared of involvement in terrorism. The report states that while Chertoff believed it would be possible to "clear" detainees within a few days of their arrest, the average time from arrest until clearance was eighty days. It also states that Chertoff knew of the delays.

Chertoff cleared the Judiciary Committee with a 13-0 vote. It will be interesting to see whether other Senate Democrats try to make something of the Inspector General's report. I hope they don't, because Chertoff is an outstanding nominee who promises to bring a stunning intellect and a fierce independence to the bench.


Fourth Amendment doesn't cover illegal aliens who were deported and then illegally reentered the country: That's what Judge Paul Cassell, a federal district court judge in Utah, just ruled, in United States v. Esparza-Mendoza, 2003 WL 21251963 (D. Utah May 29, 2003): Previously deported illegal aliens who have illegally reentered the country, Cassell wrote, don't qualify as part of "the people" that the Fourth Amendment protects.

     I'm not an expert on this subject, so I can't tell how sound this argument is; and I also don't know what other lower court cases have decided on this score. But Cassell was a leading criminal procedure scholar before he was appointed to the bench -- he was the architect behind the most recent attempts to entirely overturn Miranda v. Arizona, and though the majority of the Supreme Court wasn't persuaded, I think he did a very good job in arguing his case -- and his opinion does seem thorough and carefully reasoned. Recall that federal district court opinions aren't binding precedent, though they may be persuasive; it will be interesting to see what the Tenth Circuit does with the case on appeal.


Partial-birth abortion: Head over to the Corner to see Jonathan Adler sticking to his guns against lots of conservative hypocrisy about federalism; Adler continues to argue-- cogently and correctly-- that Congress has no authority to enact an abortion law.


Quite a couple of days: Josh Chafetz already noted that yesterday included stocks rising, Middle East progress (at least a no-bad-news day, and I'd say a good-as-far-as-it-goes news day) as well as assorted other bits and pieces. Today: A defeat of Taliban forces; the Conspiracy is joined by someone I much admire who had a pretty decisive intellectual influence on me as an undergrad; the Red Sox are back in first; Raines and Boyd resign (Dan Drezner and Kieran Healy have an excellent suggestion for the first set of changes to be made under the new regime); our favorite Harvard undergradgraduates (congrats!); I unexpectedly received in the mail advance copies of El multiculturalismo del miedo the Spanish translation of The Multiculturalism of Fear (I knew such a thing was in the works but hadn't even heard that a translator had been chosen, much less that the whole thing was done); and it's finally sunny and warm enough in Chicago to at least let me pretend that I don't still have a cold.

Anyway, welcome, Randy, and welcome back, Eric!


Record visits yesterday: Our Bravenet and Extreme Tracking hit counters show over 14,000 unique visits; the SiteMeter counter shows over 16,000.


Priorities at Public Universities I know it is very tiresome to hear public university employees kvetch about how little they make in comparison to the coaches of their schools' athletic teams. But it is really distressing that my university (UNC-Chapel Hill), trying to deal with serious state budget problems, is eliminating its $165,000-per-year health program for employees (aerobics classes, weight-loss programs, and the like) at the same time as it is paying its new men's basketball coach, Roy Williams, in excess of $1.2 million per year.

If I were Roy Williams, and wanted to generate some good will on campus, I'd write a check to cover the employee health program.


Eric Muller: My fellow constitutional law professor Eric Muller, of the IsThatLegal? blog will be guest-blogging again here today and Friday. I've e-known Eric for a long time through various online discussion lists, and have always liked his comments; and the quality of his blog -- as well as the quality of his posts in early April, when he last visited here -- has confirmed my respect for him.

     Eric is, I'd say, a moderate Democrat (which, I'm told, makes him seem like a raving right-winger in some educational institutions), so you may find that his views diverge in some measure from the views of most of the permanent Conspirators. But that itself should, I think, make his presence particularly interesting and helpful -- I think our readers will very much enjoy his contributions. Eric can be reached at isthatlegal at


Randy Barnett: We're delighted to welcome as one of our cobloggers Randy Barnett, who's the Austin Fletcher Professor of Law at Boston University School of Law. Randy is one of the leading libertarian constitutional scholars in the country; among other works, he has written Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, forthcoming 2004), The Structure of Liberty: Justice and the Rule of Law (Clarendon Press, Oxford 1998); The Rights Retained by the People: The History and Meaning of the Ninth Amendment (1989, 1993), and a contract textbook and guidebook. He is also litigating two medical marijuana cases; he has coauthored an amicus brief to the Supreme Court in Lawrence v. Texas, the currently pending sodomy case; and he is a senior fellow of the Cato Institute.

Wednesday, June 04, 2003


Slate's Bushism of the Day: Josh Chafetz soundly criticizes today's item.


Martha Stewart has been indicted.


Explaining tenth reunion regrets: In response to my earlier post about how my college classmates today wished they had taken better advantage of college, Dan Simon of "I could be wrong . . . " offers an interesting possibility:
  I am reminded of Nathaniel Hawthorne's classic short story, "Dr. Heidegger's Experiment", in which four elderly, dissipated souls are offered a (possibly illusionary) taste of the legendary fountain of youth. Although they all assert in advance that they will behave with the wisdom of their experience the second time around, the euphoria of recovered sprightliness in fact leads them into exactly the same follies that brought them such disaster in the past. The errors of youth, Hawthorne suggests, arise not from ignorance but from innate character flaws, and age only removes the ability to indulge them, not the urge to re-commit them.
  Considered in this light, Kerr's classmates' advice to their younger selves sounds less like, "I wish I'd done all these things I had the opportunity to do", than "I wish I'd been a more well-rounded, ambitious, experience-seeking person than I was--the kind of person who would have done all of these things I had the opportunity to do". After all, how many of the opportunities college affords really disappear completely after graduation? One can still take classes, go to wild parties, hear famous speakers, and try new things later in life; those who don't bother are probably at least partly using lack of time or opportunity as an excuse, to cover up for lack of initiative or even lack of inclination.


Online law school graduates pass the bar: An interesting story by Bob Sullivan.


"We cannot ask a man what he will do": In the debates about whether Senators -- or Presidents -- should ask a judicial nominee his views on future cases, people often quote the following line from Lincoln:
We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.
The full context, though, is somewhat difficult -- it's from George S. Boutwell's Reminiscences of 60 Years of Public Affairs, vol. 2, p. 29 (1902), who is quoting Lincoln (emphasis added):
[W]e wish for a Chief Justice who will sustain what has been done in regard to emancipation and the legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.
A somewhat different meaning, it seems to me. Oh, and one more twist: While Lincoln rightly estimated Chase's views on emancipation, Chase ultimately voted against Lincoln's expectations -- contrary to his supposedly "known" "opinions" -- to provide the swing vote striking down the legal tender legislation that Chase himself had helped create. (That decision was itself reversed within a year using the votes of two newly appointed Justices; some say they were themselves appointed because they were likely to uphold the legal tender law, and they, unlike Chase, complied with the expectations.)

     (Thanks to Mark Kleiman, who I recall was the first person to point this out to me, several months ago.)


Are blogs and SSRN changing legal scholarship?: It's likely that other people have said this before -- my apologies if so -- but sites like Larry Solum's outstanding Legal Theory Blog make me wonder about how blogs and websites like SSRN will change how ideas spread in the legal academy. The traditional model is that an author writes an article, sends it out to 40 or 50 law reviews, and then the prestige of the law review that accepts the piece for publication plays an important role in determining the audience for the author's ideas. Place an article in the Harvard Law Review, and the (legal academic) world will read it. Place it in the Podunk College Journal of Law and Dental Science, and the audience will be smaller and its influence less. In most cases, the placement determines the article's audience, and therefore its influence.

     Websites like SSRN have helped democratize the process by making all articles available without prescreening. But that creates a problem: journal placements can act as a rough proxy for quality. (I should emphasize rough-- but that's another post altogether.) Without journal placements, it can be harder to wade through articles trying to figure out what's good and what's not so good. Of course, many of the law-related articles on SSRN are also placed in law reviews, so you can see the placement when you view the abstract of the article. But to see that, you have to go looking, which takes at least a little time.

     Blogs seem to solve the screening problem, or at least to minimize it. The host of the blog acts as the screener. For example, if Larry Solum says that an article is a must-read, I figure it's probably worth reading. At the very least, I'll factor his recommendation into my level of interest in reading the article. And with other blogs out t ere that can link to the articles as well (with many more coming soon, no doubt), plus all of the discussion that can go into explaining why an article is good or bad, you end up with an increasingly active and deep discussion of what's good and what's no-so-good. In time that discussion may exert a considerable influence over how ideas spread within the legal academy. And even better, the format is equally open to people from outside the academy who want to read about the latest scholarship, blog about it, or even write it. It's not hard to imagine a future in which by the time an article is actually published in a law review, the article will have already run its course online thanks to blogs and SSRN.


More on public service versus government work: My rather flip comment at the end of my earlier post on the Brookings Institution survey about government service has generated a lot of mail, not to mention the suggestion Eugene links to below, that misconstrues what I had in mind. By way of explanation, I think that government service can be a terrific path to serving our country, and that we owe a tremendous debt to the many talented people who give up high private-sector salaries to work for the government out of a sense of public service. (Indeed, I have spent four of the six years since I graduated from law school as a federal government employee, and I will soon be leaving teaching to work for the federal government again. So there.) My comment was meant to be much narrower: in the social services area that is the focus of the survey, the students' attitudes about what it's like to work for the government are probably justified. I understand the Brookings survey to focus narrowly on student attitudes about what it's like to work for the government in that one area, and my comment was meant to be similarly narrow. My apologies for the confusion.


Our new slogan: With thanks to Matthew Yglesias for the inspiration, here it is:
"The Volokh Conspiracy -- Part of the Problem Since 2003."


Eric Alterman and the Sacramento Bee publish corrections of errors tied to Maureen Dowd's out-of-context Bush quote: I mentioned the Dowd error here. Dowd never explicitly corrected her statement, though in a later column she quoted the whole statement, without acknowledging her earlier error. The Sacramento Bee published this Friday:
The May 15 editorial "Crypto-government" quoted President Bush out of context regarding the threat posed by al-Qaida terrorists.

The quotation was taken from the president's May 5 remarks in Little Rock. The full text of his remarks follows: "That group of terrorists who attacked our country is slowly, but surely, being decimated. Right now, about half of all the top al-Qaida operatives are either jailed or dead. In either case, they're not a problem anymore."

The use of the partial quotation created the false impression that the president was dismissing the threat posed by al-Qaida as a whole rather than its members who had been killed or apprehended.
The National Debate, which apparently first broke the Dowd misquote story, believes that the Bee error came from the Dowd error. Eric Alterman likewise corrected his misquote of Dowd.


Oxford English Dictionary: Reader Luis Felipe Morales points out that any UCLA users -- which I think includes students, staff, and faculty -- have access to the online edition of the OED, at I suspect the same is true at many other universities.


Another coblogger photo, this one of Sasha:

OK, that was some time ago (25 years, actually).


My Chronicle of Higher Education colloquy on academic blogging is done, and it's here. I much enjoyed doing this -- some of the questions provided some very interesting ideas.


Cautionary Tales. There are two related controversies occurring right now involving different aspects of the “war on terror.” The first involves the absence of evidence of weapons of mass destruction in Iraq. The second involves the treatment of people rounded up after 9/11. (Orin has good links regarding the latter.)

     The controversies are linked because they both involve the government’s behavior in circumstances where the public was asked to take a certain amount on faith. Many of the details regarding who was being detained, and on what evidence, and how they were being treated were suppressed at the time on national security grounds. The details of much of the evidence of WMDs in Iraq also were suppressed on national security and other grounds. A lot of people concluded, perhaps reasonably, that if the government said it had great evidence, then surely it did; there was no need to insist on detailed proofs.

     Now it is starting to appear that the faith may have been misplaced. In some respects it is too early to draw that conclusion; maybe WMDs will eventually be found (I sure hope so), and perhaps there is room for disagreement about how to assess the detentions that occurred after 9/11. One should not be quick to draw inferences of bad faith; if the claims about Iraq’s programs were wrong, it might turn out to have been a case of good-faith, reasonable estimates that turned out to be incorrect, or estimates produced by some combination of pressure and wishful thinking. The latter would of course be worrisome and instructive and its own right, though distinct from bad faith.

     In any event, it is important to determine which if any of these was the case, for these two controversies can be viewed as data points in a similar important experiment. In the course of the struggle against terrorism we will be asked many times to take on faith claims from the government about what it needs to do, whether in the context of proposals for legislation; detentions, surveillance, and other intrusions at home; or additional adventures overseas. Details about the basis or likely results of these proposals will not always be available and thus will have to be filled in with assumptions: assumptions that the federal government has the cards to back up its claims, or assumptions to the contrary. These assumptions often provoke heated disagreements because it is so hard to find anyplace to look to settle them. They tend to arise from our priors and to be difficult to fill in with anything harder.

     The lesson of those debates is that harder evidence should be examined with great care when it does become available. Chances to see what cards a player actually had at the end of a hand are revealing and valuable. So too should these current episodes be watched. There may be disagreements about the lessons to be drawn from them, but they nevertheless will provide a source of case studies that can be pointed to next time the executive branch puts a well-meaning proposal on the table for new legislation or other action susceptible to abuse. There will be inevitable uncertainties about the needfulness of such measures and about the sort of behavior we can expect from those whose discretion will be enlarged by them. These case studies will make it easier to fill in those conversations with something other than our priors. For me – perhaps (alas) as a result of my skeptical priors – I find them both shaping up to be profound cautionary tales.


Vermont radio: I'll be on Laurie Morrow's "True North" radio show today from 11 am to noon Eastern; it's on WDEV 550 AM/96.1 FM Waterbury VT, which I'm told covers most of the state. I should be talking a bit about the lawsuits against gun manufacturers, a bit about privacy, and a bit about free speech (the three won't necessarily be related, but of course "all law is a seamless web," so there'll probably be connections).

     I always enjoy doing the show -- Morrow is very smart and thoughtful (a former professor, but please forgive her that!) -- but they tend to be a bit short on callers. But that's good for you if you want to call in!


Blog Maps: In response to my posting yesterday about TouchGraph's information maps, Alex Shapiro of TouchGraph pointed me to this interesting map of political blogs, with "conservative" blogs clustered towards the right, and liberal ones towards the left. [And the Conspiracy pretty much in the center! Make of that what you will]. You can construct your own map using other blogs here.


Google Rankings are Protected Speech: Google had been sued by SearchKing, a Web hosting and advertising network, for "tortious interference with contract" for having allegedly unfairly removed links to its site and those of its partners from its PageRank index. The district court in Oklahoma dismissed the suit, holding that the Google PageRanks are 'opinions' (inasmuch as they can never be shown to be "provably false" -- and protected by the First Amendment. [An eminently sensible call,it seems to me]. Story is here -- the only full-text version I've been able to find is here -- unfortunately requiring a password from BNA for access.

Tuesday, June 03, 2003


Perhaps college seniors are smarter than we think: A new study from the Brookings Institution reports the findings from a survey of 1,002 college seniors about their views of government employment. The survey found that today's humanities, social sciences, social work, and education students are skeptical about the ability of the government to help people. (You can read a .pdf copy of the paper here, and the Reuters story about the report here.) From the introduction to the report:
[S]eniors do not see government as the best place to go for helping people. When they hear the words “public service,” they think of the kind of work they see in the nonprofit sector. Nonprofits, not government or its contractors, are also seen as the best at spending money wisely, being fair in their decisions, and delivering services on the public’s behalf. Contrary to those who say that government must become more businesslike to compete, these seniors almost surely would recommend that government become more nonprofit-like, especially in reassuring potential recruits that they will be given a chance to help people.
     The report describes this attitude as "troubling." To me it sounds pretty smart.

    UPDATE: For a clarification of what I mean by smart, look here.


The search engine query of the day, from our referral logs, which means someone actually clicked on our site to try to find this: "Colin Farrel Porn."


Another court of appeals strikes down a ban on distributing violent video games to minors: My friend Gil Milbauer pointed me to this story about a court of appeals decision that was handed down today:
A federal appeals court ruled Tuesday that a St. Louis County law limiting children's access to violent or sexually explicit video games was unconstitutional. . . .

The ordinance, passed by the St. Louis County Council in 2000, would require children under 17 to have parental consent before they can buy violent or sexually explicit video games or play similar arcade games. The ordinance was never implemented pending the outcome of the lawsuit. . . .

[T]he appeals court ruled there was no justification for disqualifying video games from the right to free speech simply because they are considered interactive.

"Whether we believe the advent of violent video games adds anything to value of society is irrelevant; guided by the first amendment, we are obliged to recognize that 'they are as much entitled to the protection of free speech as the best of literature,'" Judge Morris S. Arnold wrote. . . .

"Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults," he wrote. . . .

St. Louis County modeled its ordinance after one in Indianapolis, that was invalidated by a federal appeals court in Chicago.
If you're interested in this subject, see this post about a recent Washington State violent video game ban; the post also quotes the Seventh Circuit decision by Judge Posner striking down the Indianapolois ban.


Why the left hates the working rich: Well, OK, I don't actually think the left (at least in the sense of all or most people who are left of center) hates the working rich -- it just thinks they ought to pay more in taxes. But if you buy this Slate article's argument that "the right hates the working poor" (because the right seems to oppose some aspects of the Earned Income Tax Credit, a sure sign of hatred) then it seems to me that you must equally buy the claim that "the left hates the working rich."

     (The "right hates" line is the subtitle, which isn't chosen by the author; but it seems to capture the piece's claims quite well, see, e.g., the suggestion that, for the article's targets, "dislike of welfare dependency [is] merely a cover for disliking poor people . . . .")


Solicitor General's brief in the Nuremberg Files case: It's here -- thanks to Goldstein & Howe for putting it up, and to Marty Lederman for alerting me to it.


Petition to broaden the public domain: Larry Lessig is putting this together. I have some quibbles with the specific proposal; I think that the forfeiture for nonpayment of the registration fee may constitute a taking of property, and may thus put the federal government on the hook for compensation, at least in some cases. Still, the general idea of broadening the public domain, especially with works that really aren't economically viable any more (so that the transaction costs of licensing exceed the value of the work), seems to me to be a good one.


Something visual: To take a break from our unrelieved textiness -- and on the possibility that, even in this cyber-world, it's good to see your correspondents once in a while -- I thought I'd post some photos of the coconspirators. We begin with Michelle Boardman, who, as you may recall, teaches contract and insurance law at George Mason University School of Law. (Our picture is better than the one on the Mason site, to which I've just linked.)


Reminder: Please change your blogrolls to point to instead of the old address. Thanks!


Beach reading? I see that my colleague Richard Epstein's new book, Skepticism and Freedom: A Modern Case for Classical Liberalism, is now out-- this is supposed to be the book that completes the Simple Rules for a Complex World and Principles for a Free Society trilogy, providing Epstein's defense of a libertarian order modified by utilitarian considerations. Haven't read it yet so I can't recommend it per se, but I'm sure many of our readers need no convincing about the interest and importance of a new Epstein theoretical book.


A request for technical help: Sorry to trouble all of you, but I'm wondering whether anyone might help us with a technical problem. Our tech people here at UCLA were kind enough to host this site on their Cobalt server, which is running LINUX Apache. Unfortunately, there seem to be problems with allowing both FTP access and FrontPage access to the server -- however it's configured, either FTP or FrontPage run into permissions problems. Any ideas for a workaround? If you have some, please e-mail them to me at volokh at Thanks!


Sorry that yesterday evening's and this morning's posts were held up: We ran into a temporary technical glitch, which we've just fixed.


Where are they now? Fellow lawprof Eric Freedman points to this article:
The president of the teachers' union in Miami-Dade County, Fla., is under federal investigation, union officials said on Friday, after reports that he had spent $350,000 in union money on a way of life that included $175 python-print pajamas from Neiman Marcus and a $49,715 three-week vacation to Australia, New Zealand and California.

The union official, Pat Tornillo, who has been president of United Teachers of Dade for more than two decades, took an unpaid leave of absence after the Federal Bureau of Investigation raided the union's office in late April. . . .
Not terribly significant, except for Supreme Court history buffs: This is the same Tornillo who was the loser in Miami Herald v. Tornillio (1974), a leading First Amendment case.


Illeist: The Larval Lawyer's tag line -- "A law school grad gives his thoughts on everything, as he prepares for the Virginia Bar and refers to himself in the third person" -- reminded me of one my favorite words (or at least would-be words): "Illeist," which means "someone who refers to himself in the third person."

     I'm not sure whether it's commonly enough used to qualify as a real word: Even we descriptivists have our standards, based on actual usage, and the LEXIS NEWS database notes only two uses, both in articles about words, which is a bit too self-conscious to demonstrate the word's actual existence as part of the living language. Still, I like it.

UPDATE: Reader Mark Brady tells me that "The [Oxford English Dictionary] has entries for illeism (1809-1810 et seq.) and illeist (1832)." (My OED is at home, so I didn't have a chance to check it before posting.)


Neither angel nor devil: I've argued, intermittently but for a long time now, that Daniel Pipes is a) to be commended for pressing unfashionable truths for a long time now but b) is woefully sloppy and careless (in just the way that his colleague Martin Kramer isn't). Campus Watch epitomizes both those trends: criticism of Middle Eastern Studies for its ideological blinders is much called for but the website itself and Pipes' public statements about it have been sloppy and foolish and counterproductive. This has left me profoundly uncomfortable with the company of Pipes' most vocal critics as well as with that of his knee-jerk defenders (cf: Stanley Kurtz).

Irfan Khawaja, whom I don't know quite well enough to call an "old friend" but whom I've known and thought well of for many years, has written a couple of appropriately judicious commentaries here and here that seem to me to hit just the right notes. (Pipes responds here.) Further disclosure: one of the points of contention between them concerns one of my old graduate school colleagues, Roxanne Euben.


Mapping Information: I have a particular fondness for "information visualization" techniques, and Touchgraph has some particularly interesting stuff. The PubMed Browser is especially neat. It does on-the-fly mapping of an area of medicine/biology, based on the text of the 12 million or so papers in the PubMed database. You can put in some terms (I tried "monkey evolution hominid" and "AIDS virus epidemic"), and you get a pretty interesting "map" of that area of medicine/biology -- The "Google Browser" maps -- which map connections between web sites based on their degree of "Google-relatedness" -- are pretty interesting as well. [The whole spin-off "Google" mini-industry is itself a fascinating subject, worthy of another post down the road].


Another interesting Ten Commandments case, though this time in a special context -- a court seal. The 11th Circuit has upheld the seal against an Establishment Clause challenge, for reasons too complex to summarize here. The decision, though, is actually pretty readable, and worth reading if you're interested in this field.


Justice Department suggests that the Court refuse to hear the Nuremberg Files case: So The Washington Post reports:
In a 19-page brief filed with the court on Friday and made public yesterday, Solicitor General Theodore B. Olson told the justices that a lower federal appeals court had correctly decided that the posters constituted not free speech but "true threats" to the doctors' physical safety.

"The court of appeals articulated a First Amendment standard that correctly distinguishes between protected advocacy and unprotected threats," Olson wrote.

Olson noted that the posters, unveiled by the American Coalition of Life Activists in January 1995, contained no explicitly threatening language but were similar to others that had carried the pictures, names and addresses of three doctors who had been murdered in 1993 and 1994. Also, the activists gave personal data on the doctors, which they called "the Nuremberg Files," to an antiabortion Web site, where they were posted beside the crossed-out names of the murdered doctors. In that context, a reasonable person would have concluded that his safety was in jeopardy, Olson added.
I look forward to reading the brief, but for now I stick by both my substantive view -- the Ninth Circuit's decision is inconsistent with the Court's decision in NAACP v. Claiborne Hardware (1982) -- and my earlier prediction: The Court will either grant certiorari, or at least one of the Justices will file a dissent from the denial of certiorari. I'll go further and say that if there's a dissent from such a denial, it will be endorsed by Justices Scalia, Kennedy, and Thomas.


A bit more about free speech and information privacy: The dispute over the Tucker Max injunction sounds very "cyberlaw," but of course the issue extends well beyond that. If the injunction is upheld, then judges would be equally able to enjoin the publication of autobiographies that discuss one's love affairs. I think such kiss-and-tell books are mighty rude, but I'd be pretty troubled by their being suppressed by the legal system.


More on Tucker Max, the antihero of the First Amendment / privacy story: An anonymous female reader writes:
Interesting post about Tucker Max. I've been following this for a little while, and have read a lot of his stories on his web page. Then, over Memorial Day weekend, I met a friend of his from law school. So, I've a bit of an obsession with this guy. He was doomed the second his case was assigned to a female judge. I'm not an easily offended woman, but Max is the worst kind of cad. He is every woman's worst nightmare come to life. However, I still agree that the judge's ruling was wrong. But, I thought I'd let you in on the female take on this guy. What really boggles the mind, though, is the question of why so many women submit applications to date him AFTER they know what he is. I suppose self-loathing knows no bounds.


Romance and political theory at Oxblog: Josh really needs to get some sleep, but instead he asks us all to act as enablers for his "slightly batty" procrastination technique: a contest for the worst political theory/ political philosophy pickup lines. Meanwhile Patrick and his wife spent a Saturday night at home together discussing Greek tragedy and the dirty hands problem. (A really great post results; read it.)

I think Kieran mistook the goal of the contest; it was for the worst and he picks some lines that, while pretty notoriously bad political theory, are at least in the same general universe as a plausible pickup line. I think Kevin is the winner with this groan-inducing bit of crudeness. When I think of good lines, I think of the Persian Letters, the Constant-de Stael correspondence, and Mill-Taylor exchanges. I guess the Persian Letters have some pretty awful ones, too-- "You owe the eunuch the same duties of obedience you owe me," that sort of thing-- but not down to the level of Kevin's.

But I won't be submitting an entry for worst; we need to encourage Josh to get away from Blogger and go to bed!!


"Behave yourself": And whom else should you be behaving? Where does that "yourself" come from, and why is it only "yourself"? I'm not saying this is wrong, mind you -- it's clearly fully standard usage. I just wonder why we have this idiom.

     But at least you can simply "behave" (or at least some of you can). You can't, though, just "perjure," nor can you perjure anyone other than yourself (in that respect, perjuring is like behaving and, I suppose, comporting). Mighty odd seeng, zees Eengleesh lengvedge of yours.


Blogging software: Given the number of blogger glitches I've run into recently, I'm thinking of switching to some other blogging software. I'm looking for something that:
  1. is easy for multiple bloggers, most of whom aren't techies, to use;

  2. supports the basic blogger features -- archives, e-mail distribution lists, and the like;

  3. is easy to convert to;

  4. is very easy to technically support;

  5. is inexpensive, including for licenses that allow minor commercial uses (such as hawking one's books through the blog);

  6. (preferably) provides links to archived posts in context, so when someone goes to the post, they can easily scroll up and down in the page.
I do not need hosting; UCLA is kind enough to provide that.

     If you have looked into the alternatives, and have figured out which products are better than others, please let me know at volokh at Also, if you've had bad experiences with products that you've generally heard good things about, please let me know about that, too. Thanks!


DOJ report on 9/11 detainees available: The Office of the Inspector General at the Justice Department has released its report on the treatment of detainees following 9/11. This is important stuff. You can read the entire 239 page .pdf document here, a press release about it in html format here, and the Washington Post's coverage of the report here. The purpose of the report was to study
the treatment of aliens who were held on federal immigration charges in connection with the September 11 investigation. We examined the reasons why many of the detainees experienced prolonged confinement. In addition, we examined the detainees’ conditions of confinement, including their access to counsel, access to medical care, and allegations of physical or verbal abuse by correctional officers.

Monday, June 02, 2003


Editing exercises: Here's the text of the editing exercises that I mention in the next post, just in case you want to test yourself -- or your students:
Practice these suggestions using two concrete examples. Both are paragraphs from real seminar papers written in response to the following assignment:
Your boss, Senator Elaine Mandel, is a member of the State Senate Committee on the Judiciary. The Committee will shortly consider the proposed Child Firearms Safety Act, which states that “Any person who lives in the same household as a minor and who possesses a handgun shall store the handgun unloaded and in a locked container.” Please write a short memo advising the Senator whether she should vote for the law.
Here are the opening paragraphs from the two papers:
The Child Firearms Safety Act as currently written is a well intentioned piece of legislation which will likely have little effect on the incidence of minors accidentally killed by handguns. However, with some critical modifications the act could play a significant role in lowering the number of minors lost to handgun accidents each year. These modifications should include: compelling either that the gun be kept in a locked container or unloaded; the inclusion of long guns in the Act; and making violation of the Act a felony offense.
The proposed Child Firearms Safety Act (the ‘bill’) is an inconsequential piece of legislation. Aside from the significant political impact of the bill, it carries little weight and makes little difference. Despite public misconceptions, the few benefits of the bill, notably the probable slight decrease in the number of childhood gun accidents, do not exceed the drawbacks, such as the inaccessibility of guns during a home invasion and loss of civil liberties. Therefore, unless some strong amendments are made to the bill, I recommend that you oppose the bill.
Try rewriting each to m ke it clearer and about 50% shorter.
I walk students through one possible set of edits in this PowerPoint presentation.


Law journals lectures based on the Academic Legal Writing book: Student-run law journals often give talks to their incoming staffers about writing, cite-checking, editing, and the like; and I've put up three PowerPoint presentations that can help law journals do this. Naturally, the three are keyed to my Academic Legal Writing book:
  1. Getting started on the article -- this presentation walks students through finding a topic, refining a claim, building a test suite, and other important early parts of the writing process.

  2. Editing -- this presentation takes students through the editing exercises in the book. I hope it can help train students to edit both their own work and that of others.

  3. Use of evidence -- this presentation takes students through the several exercises in the book that are related to the use of evidence. I hope that this too can be helpful to staffers both when they're writing their own articles and when they're cite-checking others' pieces.


"A Blogger Symposium On The Media & The Blogosphere": John Hawkins put together a chat among Susanna Cornett from Cut On The Bias, N.Z. Bear from The Truth Laid Bear, Juan Gato from The Shallow End, himself, and me on these subjects, and put it up here. Check it out.


Police questioning: I blogged yesterday about the case where the police questioned a high school student about what she knew about a possible hacking incident at the school. The student had blogged something that seemed to indicate that she might know something about the incident; and a classmate had alerted the school authorities to the blog. It ultimately turned out that there probably was no hacking -- the computer problems were apparently caused by something else.

     There was some concern in the story that the police were questioning the student in an improperly deceptive or intimidating way; and if that's so, then the police should indeed be admonished. But my general point was that the police are generally entitled to question people, when the police have reason to think that the people know something about a crime. Sure, this power can be abused; but it's a necessary power. The police need not be sure that the target knows about the crime, or to have "probable cause" or some such to question the person -- in fact, the reason the police question people is often precisely to get the "probable cause" needed to search or arrest someone else.

     A reader responds by pointing to three supposed problems. Here's the first:
I think the problems are: - (according to her) she just mentioned the supposed hack in passing; apparently she was reporting on gossip. If you write a blog post about a crime, should the cops then question you to see what you know about that crime?
The answer is "sure," if the blog post suggests that you might know something more than is publicly known. (Not proves that you do know, just suggests that you might.) That's how you can often track down the facts: Someone repeats gossip; you ask her where she heard it; she tells you; you ask that person; that person brings you closer to the source; and eventually you might find someone who knows more than gossip. Of course, that someone is reporting gossip isn't probable cause enough to arrest her, or to search her computer. But it's more than enough for the police to question the person in order to try to track down the source of the gossip.

- apparently, there was no hack attack, it was just a bug. Shouldn't they have figured that out first?
Well, no, at least if (as with many bugs) it took a while to figure out for sure what was happening. There's no legal or ethical requirement that the police should only question people as a last resort, when they're certain that a crime has been committed. Often, there's good reason to question people earlier, when they might remember more, rather than later.

- she's apparently an indymedia-type. Maybe that had something to do with it. If she had had a more conservative site, and had mentioned this "hacking" event in passing, would they have bothered?
I've come to be more than a bit skeptical of these sorts of general claims of bias, unsupported by any specific details. My sense is that the police usually have little interest in the supposedly leftist politics of 17-year-old high school girls, especially when they're inquiring into computer hacking cases. (Presumably if they're investigating anti-abortion vandalism or pro-animal-rights vandalism, they would consider people's politics in deciding whom to question, but computer hacking doesn't have that sort of conventionally assumed political spin.) If they hear that someone was saying something about hacking on her site, I doubt that they'd worry too much about whether she was "indymedia-type" or "more conservative." Now maybe I'm wrong, but it would take more than generalized "the police hate lefties" speculation to persuade me that this was really an issue here.

     So to return to the bottom line: Police officers do have substantial power to ask people questions, and they should have this power. In fact, some of the constraints on searches and arrests (such as the probable cause requirement) are often justified by pointing out that the constraints don't leave the police powerless -- they just require the police to investigate matters in order to get the probable cause they need. Questioning is a key part of that sort of investigation; and the fact that the questioning doesn't pan out, or even that the questioning only had a 5% chance of panning out in the first place, doesn't make it improper.


At the intersection of geek and political theory: I've clearly been letting my blogging comparative advantage slide when there's comic-book free-speech blogging here at the Conspiracy and I'm not the one doing it, while I have to find out from Josh Cherniss about a political theory panel at APSA on Lord of the Rings.


The First Amendment vs. information privacy: The New York Times reports:
Katy Johnson, who was Miss Vermont in 1999 and again in 2001, uses her [Web] site to promote what she calls her "platform of character education."

"She is founder of Say Nay Today and the Sobriety Society," the site says, "and her article `ABC's of Abstinence' was featured in Teen magazine."

Tucker Max's site promotes something like the opposite of character education. It contains a form through which women can apply for a date with him, pictures of his former girlfriends and reports on what Mr. Max calls his "belligerence and debauchery."

Until a Florida judge issued an unusual order last month, Mr. Max's site also contained a long account of his relationship with Ms. Johnson, whom he portrayed, according to court papers, as vapid, promiscuous and an unlikely candidate for membership in the Sobriety Society.

The order, entered by Judge Diana Lewis of Circuit Court in West Palm Beach, forbids Mr. Max to write about Ms. Johnson. It has alarmed experts in First Amendment law, who say that such orders prohibiting future publication, prior restraints, are essentially unknown in American law. Moreover, they say, claims like Ms. Johnson's, for invasion of privacy, have almost never been considered enough to justify prior restraints. . . .

Judge Lewis ruled on May 6, before Mr. Max was notified of the suit and without holding a hearing. She told Mr. Max that he could not use "Katy" on his site. Nor could he use Ms. Johnson's last name, full name or the words "Miss Vermont."

The judge also prohibited Mr. Max from "disclosing any stories, facts or information, notwithstanding its truth, about any intimate or sexual acts engaged in by" Ms. Johnson. That prohibition is not limited to his Web site. Finally, Judge Lewis ordered Mr. Max to sever the virtual remains of his relationship with Ms. Johnson. He is no longer allowed to link to her Web site. . . .
If you're interested in this general clash of the First Amendment and information privacy speech restrictions, you might check out my Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000).


Post-9/11 civil liberties fact and fiction: I recently came across this essay, "Your Rights: Use 'Em or Lose 'Em" by Rachel Neumann, which argues that post-9/11 changes in the law have taken away our civil liberties. There is lots of room for debate on whether that argument is correct. But I think that most of the statements the article makes about the law are misleading or (in some cases) simply wrong. Here are the factual statements the article makes, along with some commentary evaluating whether the author has the facts right:
Under current legislation, if you are "suspected" of terrorist activity, you can be picked up and held indefinitely, without charges and without access to a lawyer. If your loved ones call to find out where you are or if you are okay, they will be told nothing. After all, to disclose your whereabouts would infringe on your right to privacy. Don't bother clutching your passport to your chest; this law applies to all U.S. citizens.
Is this true? I don't know of any "current legislation" that allows this. I suspect the author is referring not to legislation, but rather to the ongoing litigation over the constitutional question of whether and when the President can declare a person an "enemy combatant." But I'm not sure.
Under PATRIOT II, if you attend a legal protest sponsored by an organization the government has listed as "terrorist," you may be deported and your citizenship revoked.
This is simply wrong, I believe. Patriot II did contain a proposal to amend the existing federal law on when the government can revoke the citizenship of a U.S. citizen, 8 U.S.C. 1481. Under existing law, citizenship can be revoked if a U.S. citizen joins a foreign army with intent to relinquish his citizenship. Patriot II proposed to add joining a terrorist organization with intent to relinquish citizenship to the list of triggers of the statute. I don't think it says anything about attending protests or being deported.
The USA PATRIOT Act creates a new crime of "domestic terrorism" – defined so broadly as to include civil disobedience and other nonviolent forms of resistance.
Wrong again. There is no crime of "domestic terrorism." Rather, federal law defines the term "domestic terrorism" in 18 U.S.C. 2331(5) and uses that term in other statutes. The Patriot Act defined the term as criminal acts "dangerous to human life" that appear to be intended to intimidate or coerce civilian populations, to influence governments by intimidation, mass destruction, assassination, or kidnapping. Some civil libertarians have feared that this might conceivably include civil disobedience, although the "dangerous to human life" requirement seems to make that quite a stretch. In any event, domestic terrorism is not a crime; it's a defined term.
The PATRIOT Act also . . . allow[s] for Internet and library surveillance and eliminating the need for warrants before searching video or music store records.
Mostly wrong again. Internet and library surveillance was allowed before the Patriot Act, although the Patriot Act did change some of the rules governing that surveillance. There was never a warrant requirement for video or music store records. And I don't think the Patriot Act amended the Video Privacy Protection Act, 18 U.S.C. 2710, which specifically protects video store records.
Total Information Awareness, recently renamed "Terrorist Information Awareness," which hopes to predict terrorist actions by analyzing such transactions as passport applications, visas, work permits, driver's licenses, car rentals, airline ticket purchases, arrests or reports of suspicious activities. TIA would make financial, education, medical and housing records, as well as biometric identification databases based on fingerprints, irises, facial shapes and even how a person walks available to U.S. agents.
Misl ading, I think. My understanding is that TIA is a proposal to see if it is feasible to create a technology that could make such a prediction possible. TIA would not actually "make information available" to U.S. agents; it is a proposed technology, not a machine or a change in existing law. On the other hand, the article is correct that TIA was recently renamed.
[Patriot II would grant] immunity from liability for law enforcement engaging in spying operations against the American people. . . [and] immunity from liability for businesses and employees that report "suspected terrorists" to the federal government, no matter how unfounded, racist, or malicious the tip may be.
I couldn't find this. I did a string search for "immunity" in the text of the proposed Patriot II, and couldn't find anything on this.
PATRIOT II explicitly allows the indefinite detention of citizens, incommunicado, without charges, and without releasing their names to their own family members.
I'm not sure where this is coming from. Patriot II does contain a clarification to the Freedom of Information Act saying that information about who is detained cannot be subject to FOIA, and I'm guessing that's what the second half of this statement refers to. But I don't see anything in Patriot II about indefinite detention incommunicado without charges-- or anything remotely close, for that matter.
And unlike PATRIOT Act 1, which expires in 2004 unless it passes another majority vote, PATRIOT Act II never expires and removes the expiration date on PATRIOT I.
Mostly wrong. True, the proposal known as Patriot II did not contain a sunset; on the other hand, it was just a leaked DOJ draft, so you wouldn't expect them to add a sunset to their own internal proposal. Patriot I does not sunset in 2004; about 2/3 of the provisions in one part of the Patriot Act (Title II) sunset, and they sunset in December 2005. I don't think that Patriot II has a provision removing the sunset from Patr ot, either. Rather, a few months ago Senator Hatch was pushing a proposal to remove the sunset. However, he has since backed down from this idea.

     Of course, these errors don't mean that the author's thesis is incorrect. But if most of the facts are wrong, it doesn't lend a great deal of credibility to the rest of the argument. (Oh, and if someone sees something that I'm missing, please let me know-- I'd be happy to post a correction or amendment.)

     UPDATE: Perhaps one explanation for this story is that the author is a creative writing instructor-- assuming I have the right Rachel Neumann. Creative writing, indeed.


Free speech trumps right of publicity: The California Supreme Court just issued its opinion in Winter v. DC comics, which unanimously held that when comic book authors create characters based on real people, that does not infringe the subjects' "right of publicity." That's the right decision, and I'm glad (and unsurprised) to see it. I was, however, surprised, even shocked, to see that the lower court held the other way by a 3-0 vote; it's very good that the California Supreme Court reversed that decision. Note that the First Amendment rules are the same for comic books, novels, and movies; had the Winter Brothers won this case, then novelists, filmmakers, and others likewise couldn't include in their works characters based on real people (unless the subjects gave permission). There'd have been no more Forrest Gump, Picasso at the Lapin Agile, and so on.

     This doesn't affect libel law -- if in context the use of real people implies false factual allegations about those people, that might be libel. But that really wasn't an issue in the obviously fictional tale in these comic books.


Scholars who blog: An article from the Chronicle of Higher Education about blogs and academia. If you read it, you may find yourself reading about what it's like to read the Volokh Conspiracy. Kinda weird, eh? Thanks to Instapundit for the link.


Chauvinism: A dinner conversation yesterday reminded me of this little etymological tidbit, which some of you doubtless know, but some don't: The term "chauvinism" actually comes from a person's name -- as my OED puts it,
from the surname of a veteran soldier of the First Republic and Empire, Nicolas Chauvin of Rochefort, whose demonstrative patriotism and loyalty were celebrated, and at length ridiculed, by his comrades. After the fall of Napoleon, applied in ridicule to old soldiers of the Empire, who professed a sort of idolatrous admiration for his [Napoleon's] person and acts. Especially popularized as the name of one of the characters in Cogniard's famous [not so famous these days!] vaudeville , La Cocarde Tricolore, 1831 . . .; and now applied to any one smitten with an absurd patriotism, and enthusiasm for national glory and military ascendancy.
Over time this morphed into what my Random House describes as "biased devotion to any group, attitude, or cause." The term "male chauvinism" was a further figurative development, referring to belief in female inferiority, at least in some areas, even if unaccompanied with any great "devotion" to men as a gender. This shows that "male chauvinism" is no redundancy -- there are lots of other kinds of chauvinism, though they are less commonly referred to using the word chauvinism. And it also shows that one can get posthumous fame (or posthumous infamy) in a variety of ways.


More on mutants: Marty Lederman (SCOTUSblog) points out:
The Court's unanimous opinion in Dastar holds, among other things, that the Lanham Act does not impose liability for a product manufacturer's failure to provide attribution to the author(s) of a creative work that the producer sells in identical or adulterated form: In the words of the Court, the Act does not create a cause of action "for, in effect, plagiarism" (slip op. 12). How appropriate, then, that at least two of the opinion's most felicitous turns of phrase -- the reference to a species "of mutant copyright law" (p.10) and the "tributaries of the Nile" metaphor (p.12) -- are taken right from the pages of Dastar's own brief -- in particular, pages 22 and 27, respectively. Congrats to Dastar counsel Stewart Baker and his "coauthors" for prompting this singular demonstration of the adage (which, incidentally, I did not originally coin) that imitation is the sincerest form of flattery.
Congratulations indeed to Stewart; though no need for anyone to be surprised (I know Marty isn't) that opinions lift stuff from the briefs. Law is among the most unoriginal of disciplines; as the old line goes, "Law is the only field in which 'Now that's an original idea' is a pejorative." I'm sure Stewart is very happy -- and his clients properly impressed -- that the Court so liked his gags that it lifted them outright.


More about the arrest of the Saudi student in Idaho: I've gotten a few responses to my blog post on this subject (which I also quote in relevant part below), and I'm afraid they leave me as troubled as I was before. One response is that Al-Hussayen violated the law by working for money while in the U.S.; and indeed he is apparently being deported for this, the evidence being a $200 check he got for his Web site work. But that's not what he's being prosecuted for, so it doesn't make me feel much happier about the prosecution. Another response is that it's OK for the government to prosecute people for technical violations of the law, even if the government is really after the people for something else -- the classic example is Al Capone being prosecuted for tax evasion rather than for his more serious crimes. But my objection isn't that the violations are technical; it's that Al-Hussayen's statements don't seem to be even illegal, because they aren't fraudulent: They're ambiguous, and possibly accurate, responses to ambiguous questions.

     To put it into perspective, remember that it's generally a felony (under 18 U.S.C. sec. 1001) to make knowingly false statements to the federal government -- whether on a visa application or elsewhere, whether you're a citizen or not, and whether under oath or not. So say that an FBI agent came to question you, and in the process asked you to name "professional, social, and charitable organizations" you had been affiliated with; and you failed to include (say) the NRA and the ACLU. "Off to prison with you," the government says; "your statement was fraudulent." I take it that you'd think that's wrong, because the NRA and the ACLU aren't clearly covered by the question, so your statement wasn't even technically fraudulent. The same, it seems to me, is true as to Al-Hussayen.

     Likewise, say that an FBI agent asked you "So, are you moving to Washington, D.C. solely to go to law school?" "Yes," you say. "Off to prison with you," the government says; "we happen to know you were also planning to join the Federalist Society, and maybe hoping to find a paid internship on the Hill over the summer, or to do volunteer work for an advocacy organization, which we know you've had an interest in." I take it that again you'd think that's wrong, because in this context "solely" is pretty ambiguous, and doesn't clearly mean "to the exclusion of everything else." (Maybe you should have realized that it means "to the exclusion of paid work, but not to the exclusion of volunteer work," or "to the exclusion of paid or volunteer work, but not to the exclusion of social or religious or political activity" -- but should you really to go to prison if you put the wrong interpretation on it?) The same, it seems to me, applies to Al-Hussayen.

     The government is certainly entitled to insist that people give it accurate information, and to punish people when they lie. But if the government wants to get this information, it should ask for it using precisely worded questions -- not pose vague, ambiguous queries, and then prosecute people (or, what is sometimes even more effective for the government's purposes, threaten to prosecute them) for interpreting the questions differently from how the government thinks they should have been interpreted. Such prosecutions are threats to all of us, citizens or otherwise.

     Here's the core of my original post:
     Sami Omar Al-Hussayen, a Ph.D. computer science student at the University of Idaho, raised funds ($300,000 over five years) and provided computer services for the Islamic Assembly of North America. IANA sites apparently contained various pro-jihad and pro-suicide-bombing items, though there has apparently been no allegation that Al-Hussayen actually provided this material; he seems to have just run the site. The federal government also claims that IANA funds were being funneled to terrorist organizations.

     But Al-Hussayen isn't being prosecuted for knowingly aiding a terrorist organization; rather, as best I can tell from reading the Journal article and the federal government's criminal complaint against the him (Sami Omar Al-Hussayen), the criminal charges are that:
  1. Al-Hussayen lied on his visa application, because he signed a document (form I-20) saying "I certify that I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study," and wrote on his form DS-156 that the purpose of his entry into the U.S. is "study." This, the government says, was a lie, because he was entering the U.S. not solely to study, but also to help IANA.

  2. Al-Hussayen fraudulently omitted IANA from form DS-157, where he was told to "[l]ist all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)."
     But is this conduct really criminal? First, "solely for the purpose of" can't literally mean "solely" in the sense of "I plan on doing nothing except studying." Students don't just study: They engage in hobbies, they participate in various organizations, they enjoy the beach, they goof off, they fall in love. Presumably the government can't prosecute someone saying "Aha! You said you came here solely to study, but your buddies will testify that you told them that you also wanted to find some American women to have sex with. You're going to prison for that." Why? Because people who are signing these forms will understand "solely for the purpose of . . . study" in its normal, commonly understood sense of being a student and doing the sorts of things that students do, such as trying to get sex, or seeing the sights, or engaging in political or religious activities in your spare time.

     Just imagine that you were given this form when you went to study in, say, England, and you were planning on studying, seeing friends, checking out the sites, maybe finding a girlfriend, putting up a Web log, and being involved in some American expatriate social and political activity. Would you think you were lying if you signed the form, with its use of the term "solely"?

     Second, the omission of IANA from the form is fraudulent only if Al-Hussayen treated IANA as a "professional, social [or] charitable organization[]." (Remember, the allegation is of fraud -- intentional wrongdoing -- and not just innocent error.) But IANA might well be seen as a political or religious organization instead; just check out its site. It's not unreasonable to call it a "social or charitable" group; but it's also not unreasonable to call it a "political or religious" group instead. Again, imagine that you were asked this question, and you had been involved with the NRA, the Anti-Defamation League of B'Nai Brith, and some Jewish education groups. Would you think you were lying if you concluded that they weren't "social" or "charitable" organizations, and thus didn't list them?

     Now my analysis here has nothing to do with whether Al-Hussayen (1) was trying to help terrorist groups, (2) should be deported (he has apparently been ordered deported because he did $200 worth of piad work for IANA, in violation of his visa terms), or (3) has a constitutional right to stay here even if he helps pro-terrorist groups spend their message. Rather, the question is whether what the government said he did is a crime, which may lead him to being convicted and imprisoned.


More unsound social science claims about gays and sexual partners: OK, I know I've blogged too much about this, but the library tracked down some more studies for me, and I just can't resist. You may recall that I briefly criticized Thomas E. Schmidt's Straight & Narrow, which repeated the hyper-promiscuous median gay male claim. Well, here's one item that really takes the cake. Endnote 37 on p. 199 says:
The combined result of two 1992 Dutch studies showed that 78 percent of 577 randomly selected male subjects reported more than five partners in the past year, 45 percent more than twenty partners.
It then cites one article, P.J. Veugelers et al.

     So I track down Veugelers (it's great to have a first-rate library at one's service), and what do I see? One of the studies, which involved 71 subjects, did involve randomly selected Amsterdam residents. That study found that only 47% of the randomly selected 71 subjects reported five or more partners (not "more than five") in the past year, and only 24% reported more than twenty partners. (Recall also that this is just 71 subjects, a pretty small number for a random survey.)

     The other study, which involved 506 subjects, yielded much higher results -- but how were these subjects selected? I had the library track down the article which described this (van Griensven et al.), and which was cited by the Veugelers study. This article did not involve a randomly selected samples; it involved "volunteer[s]" who agreed to participate in a Municipal Health Service of Amsterdam study -- and their volunteering "was possible because of the relation between the Municipal Health Service of the city of Amsterdam and the male homosexual community during several epidemiologic and prevention studies of sexually transmitted diseases." Already this suggests that this might be a sample self-selected for those whose behavior might leave them at higher risk of STDs -- consistent with the fact that the Veugelers study reports that 15% of the randomly selected subjects had a history of syphilis, while 33% of the nonrandomly selected Municipal Health Service study subjects had such a history.

     But beyond this, the Municipal Health Service study was limited to men who "were healthy and had had two or more male sexual partners in the preceding six months." Yes, that's right: 506 of the 577 supposedly "randomly selected male subjects" (Schmidt's characterization) weren't randomly selected at all -- they were (1) self-selected and (2) required to have had at least two male sexual partners in the preceding six months as a condition of participating in the study. Think about it -- the book is estimating the average number of sexual partners of gay males from a sample which is mostly intentionally selected (not by the book, but by another study) for having many sexual partners. This data is thus completely ungeneralizable to male homosexuals generally (even male homosexuals in the Netherlands, or male homosexuals in Amsterdam). But the author reports this as a study involving "randomly selected male subjects," which would make it generalizable.

     And while this item is just in the footnotes, this isn't the book's only error on this point. Schmidt relied on four studies for his assertions about the numbers of sexual partners of homosexuals. Every one of those studies was in fact not a sound measure of this matter -- they use self-selected samples, samples that are biased in the direction of gays who engage in high-risk practices (e.g., ones who are being treated for sexually transmitted diseases), or both.

     As I've mentioned, the Schmidt book was recommended to me by a very thoughtful and serious fellow academic, who pointed to it as an example of serious scholarship. And of course what reason did he have to doubt it? He had no occasion to go through and check the footnotes.

     But there's a lot of junk out there, much of it in seemingly serious books. (And not just in ideological books, such as Schmidt's -- as I mentioned in the first post on this subject, a mainstream college textbook that seemed quite open to homosexuality also made a similar error.) We obviously can't check all the assertions we read; but this is a reminder that unfortunately, without such checking, we really have very little reason to trust what even apparently credible sources say.


K.C. Johnson and the Brooklyn College tenure battle: I'd blogged about this several months ago; here's a piece from K.C. Johnson himself, describing the facts as he sees them. Jerome Sternstein, who used to teach at Brooklyn College before he retired, and who has followed the controversy closely -- though to the best of my knowledge he is a relatively impartial observer, and was originally somewhat skeptical of Johnson's claims -- seems to think that Johnson's account is credible.


Supreme Court says, "Stop the mutants!" Well, some sorts of mutants. Its decision this morning in Dastar v. Twentieth-Century Fox holds that trademark law can't be used in certain ways because to do so "would create a species of mutant copyright law that limits the public's 'federal right to 'copy and to use,'' expired copyrights."" The Court got this one right, I think; I can't pass along the details right now, but Justice Scalia's opinion is rather short and quite readable.

Sunday, June 01, 2003


on as of the day you graduated from college? Most people I spoke with seemed pretty satisfied with how things have turned out so far. There were all sorts of different answers, but a few themes emerged. Several people said that they were surprised that their careers had been focused in a very specific area that they even didn't know existed back when they graduated from college. Friends who had tried to make it big in music or in Hollywood mostly hadn't, at least yet (although note that I didn't query classmate Mark Feuerstein, who is starring in a new NBC sitcom this coming fall). Single classmates had mostly expected to be married by now. I suppose that the answers said more about our expectations when we graduated than anything else; some cla smates expected big things to happen and were a tad disappointed. Others didn't expect much and were pleasantly surprised.

     The second part of the question was this: If you could go back to the beginning of your freshman year of college and give yourself advice about how to go about college, what advice would you give yourself? These answers varied as well, but many classmates answered that they would have taken better advantage of all that college had to offer. People who partied a lot said that they should have taken their studies more seriously; people who spent all day at the library would have done more extracurricular activities. Classmates would have attended more lectures by famous speakers, tried more new things, and generally attempted to suck the marrow out of the college experience more than they did. I guess that college, like youth, is wasted on the young.


Uncompetitive: It's not a good thing for any liberal democracy to have no credible opposition party, no possibility of the government losing an election anytime in the forseeable future. That way lies pre-reform Mexico or Japan, at best.

The UK is already there. Canada's there at the federal level, though this is somewhat mitigated by competitive elections at the provincial level. Although John Howard was hardly guaranteed to win the last Australian election until he played the refugee card, it looks increasingly like Australia's headed the same way unless the ALP does something dramatic. Again, oddly the situation at the state level looks very different from the apparent Coalition lock on the federal government; and the Ozzie Senate is more or less guaranteed never to have any one party in the majority. That's not enough; the ALP is looking decreasingly credible as a party of (federal) government. UPDATE: Brian Weatherson thinks I'm unnecessarily worried, but that the ALP lock on state governments may become self-entrenching. Michael Jennings also thinks that the state-level strength of the ALP means I'm worried unnecessarily.

They're probably right. In other contexts I've discussed this as one of the great unrecognized benefits of federalism: it allows an opposition party to remain the govenment somewhere, thereby a) retaining or acquiring the skills of responsibility and moderation that a completely powerless party loses but that a governing party needs; b) being seen by the voters to have such skills and to remain a credible voting party; c) having the organizational and institutional base, including a patronage base, to remain strong enough to challenge the party that governs the center; and d) gaining an especially valuable way to generate leadership candidates (Bob Carr, in Michael's example). Michael's perfectly right, though, that state leaders have traditionally come to woe when trying to enter Australian federal politics in particular; Carmen Lawrence is the latest example of someone who was once hailed as the Great State Hope who failed to pull it off.


"My extremely personal teenage diary": Eric Muller links to a couple of stories about the police and a high school blogger. There was some trouble with a high school computer; there were rumors that the trouble was caused by hackers (though that now appears not to be likely); the student had posted something on her blog that seemed to refer to the alleged hacking; and the police (who apparently learned about this because another student reported the blog post to school officials) came to question the student.

     It looks like the police acted improperly, because they erroneously -- or at least prematurely -- claimed to be with an FBI task force; it appears that they were joining this task force, but the paperwork hadn't fully cleared, so they aren't yet members. It also seems like they might have been more verbally intimidating to the student than they should have been (it's hard to tell for sure, for obvious reasons). So they might well have misbehaved, though if they were indeed in the process of joining the task force, the misbehavior doesn't seem to be that monumental.

     But if the claim is that it's somehow wrong for the police to investigate people based on their blog posts, that seems to me to be a mistake. The police are entitled to ask people questions; in fact, if they have some reason to think that a crime has happened, it's their duty to ask questions of people who seem like they might have some information about the crime. And one way in which the police may learn that someone might have some information about the crime is from what that person says or writes. If you had reason to think that someone had hacked into your computer, and you had evidence that someone was saying things that suggested they knew something about it, you'd want the police to talk to that person -- and rightly so.

     Some of the time, the inquiry won't pan out; perhaps the police misinterpreted the person's original statements, and it turns out that the person being questioned doesn't really know anything about the matter. But that's part of the investigative process. You might have to ask dozens of people before you get a helpful answer.

     Again, the police should behave properly while doing this; they generally shouldn't lie or try to verbally intimidate people (though sometimes it is indeed proper for them to do so). It may be that the police went beyond the line here. But they are entitled to read people's blog posts, and to investigate based on them if the blog posts give them reason to believe that the blogger knows something relevant.

     And newspapers covering the matter shouldn't, I think, title their articles "'The FBI has been reading my diary,'" or ominously close the articles with quote such as:
"I know that the government now has forever my extremely personal teenage diary," Carter concluded. "Hell yes, I'm mad. I will no longer be posting in this diary."
For heaven's sake -- this is a site on the World Wide Web. It's available via google (the site is still in the cache). Even according to the author herself, the site was meant to be read by "10 or 15 friends" -- more than the typical "diary," I think -- but in any event, it was done through a medium that pretty clearly could be read by still more. I don't feel particularly sorry for people (even 17-year-olds) who put their "extremely personal teenage diar[ies]" on the Internet, and then complain that "the government now . . . forever [has]" them. I don't fault a 17-year-old student for complaining about this sort of thing; but I do fault the newspaper for treating the complaint as if it really made sense.


The NBA Coaching Carousel: The latest wire reports suggest that Philadelphia 76ers Coach Larry Brown is going to coach the Detroit Pistons, Detroit Pistons coach Rick Carlisle is going to coach the Portland Trailblazers, and Portland Trailblazers coach Maurice Cheeks is going to coach the Philadelphia 76ers. Got that?

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