[Eugene Volokh, 5:45 PM]
Apology in the Duvshani matter: A reader pointed me to this Little Green Footballs item:

When Israeli Amit Duvshani applied to Oxford for a doctoral position, he received the following reply from Andrew Wilkie, Nuffield Professor of Pathology at the Weatherall Institute of Molecular Medicine (Hat tip: Naomi Ragen):

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

From: "Andrew Wilkie" . . .
To: "Amit Duvshani"
Sent: Monday, June 23, 2003 9:58 AM
Subject: Re: PhD application

Dear Amit Duvshani,

Thank you for contacting me, but I don't think this would work. I have a huge problem with the way that the Israelis take the moral high ground from their appalling treatment in the Holocaust, and then inflict gross human rights abuses on the Palestinians because they (the Palestinians) wish to live in their own country.

I am sure that you are perfectly nice at a personal level, but no way would I take on somebody who had served in the Israeli army. As you may be aware, I am not the only UK scientist with these views but I'm sure you will find another suitable lab if you look around.

Yours sincerely,
Andrew Wilkie
. . .

The heading was "Antisemitism at Oxford," and while I'm not sure that it was quite anti-semitism, but it certainly seemed like bigotry, hatred of people (Israelis even if not Jews) because of what their government does. Moreover, it seemed like an odd way for a university official to make decisions about what his department should do.

     I e-mailed Dr. Wilkie to confirm that his e-mail was indeed correct, and he promptly replied, saying "I am sorry and I apologise for these remarks," and enclosing the text of an Oxford statement:

27 June 2003

Comments by Professor Andrew Wilkie

A spokesperson for the University of Oxford said:

"Our staff may hold strongly felt personal opinions. Freedom of expression is a fundamental tenet of University life, but under no circumstances are we prepared to accept or condone conduct that appears to, or does, discriminate against anyone on grounds of ethnicity or nationality, whether directly or indirectly. This candidate is entitled to submit an application and to have it dealt with fairly according to our normal criteria.

"Professor Wilkie has issued a personal apology regarding remarks he made by e mail to an applicant for a research degree in Oxford. An immediate and thorough investigation of this matter is now being carried out in accordance with the University's procedures and a report will be presented to the Vice-Chancellor next week"

Note to editors:

The full text of Professor Wilkie's apology is:

"I recognise and apologise for any distress caused by my email of 23 June and the wholly inappropriate expression of my personal opinions in that document. I was not speaking on behalf of Oxford University or any of its constituent parts. I entirely accept the University of Oxford's Equal Opportunities and Race Equality policies"

In any case, make of this affair what you will -- just thought I'd pass along the information.

 
[Eugene Volokh, 5:10 PM]
"Politics . . . is Hollywood for ugly people" (told to me by my friend and former Hill staffer Victoria Ayer, original author unknown).

 
[Eugene Volokh, 4:44 PM]
Good copyright-skeptical piece on Slate, which argues that nonliteral copying of books should generally be permitted, at least internationally (that's an oversimplification, but I think I'm doing the theory justice). Not so good if you think authors have a moral right to control works that build on their own, but pretty plausible if you primarily think of copyright as a means of stimulating the creation of new works. I'm not sure that I fully endorse the theory in its maximum breadth -- for instance, if you apply it to domestic copying (and its logic does apply there), would it follow that authors could no longer own the movie rights in their books? That might indeed substantially diminish the incentive to create, in at least some situations. But the general proposal seems worth considering, though it will be politically very hard to implement.

 
[Eugene Volokh, 3:52 PM]
Justice Thomas: Here's an e-mail that I got from a reader, in response to my piece defending Justice Thomas:

Your article was a very informative one and one I mostly agree with however there still is this nagging question which I do not understand regarding Judge Thomas. Why doesn't he start making decisions on his own? Instead he follows Scalia's decisions around like a puppy dog. Thomas is really setting himself up for a fall here. His respect level is low I think because of that fact more than anything else. He's got this great platform to make decisions and affect people and what does he do? Well usually he does not write an opinion. Instead he just votes and lets Scalia do it. He deserves what he gets in my opinion. He's got to start stepping up to the plate like the other justices and start earning his money. Whether I agree with his decisions or not is irrelevent- he has got to start thinking on his own and do some work. Why doesn't somebody start making an issue about that instead of his race?

I mention this in part because I've heard this before.

     What I'm curious about is what possible evidence the reader has for his assertion that Justice Thomas isn't "Making decisions on his own," "thinking on his own," "do[ing] some work," or "earning his money," but "[i]nstead . . . follows Scalia's decisions around like a puppy dog."

     If the evidence is that Thomas "usually does not write an opinion," that's simply false. I just did a LEXIS query starting with the 1997 Term (just to give the man a full 5 terms in which to get used to the job), and found that Thomas wrote 99 separate concurrences and dissents (I searched for CONCURBY(THOMAS) OR DISSENTBY(THOMAS)), and Scalia wrote 117. By way of further comparison, Kennedy wrote 57, but maybe that's because he was in the majority more often. (I didn't count majority opinions because they are generally assigned by the most senior Justice in the majority [with the Chief Justice always having seniority], not voluntarily chosen.) Naturally my correspondent probably didn't have access to this research tool, and thus couldn't see his claim was wrong -- but he apparently heard something about this, enough to be willing to just assume that Thomas "usually does not write an opinion."

     Some people, I suppose, will say "Well, Justice Thomas doesn't ask any questions at oral argument." And the rule that all smart, hardworking Justices must ask questions at oral argument is written exactly where?

     So I continue to be puzzled: Exactly why do some critics of Justice Thomas simply assume that Justice Scalia is somehow leading him around by the nose? Might it not be the case that Justice Thomas writes what he writes and believes what he believes because, well, he's thought this through and come to his own conclusions (though of course after reading the briefs and his colleagues' opinions)? Or is there some obvious reason why that can't possibly be so?

 
[Eugene Volokh, 11:39 AM]
Supreme Court refuses to hear Nuremberg Files case: I predicted that if that happened, there would be a published dissent from this decision by Justices Scalia, Thomas, or Kennedy. These Justices have in the past complained that the courts were applying harsher rules to anti-abortion speech than to other speech; I didn't think this complaint was solidly proven in past cases, but I do think it could quite properly be made here. Still, I was mistaken yet again (it hasn't been a good year for me and Supreme Court predictions). I still stick by my earlier substantive analysis -- the case is hard to meaningfully distinguish from NAACP v. Claiborne Hardware (1982) -- but either the Justices disagreed with me, or they thought that for some other reason the case wasn't worth their time.

 
[Eugene Volokh, 11:26 AM]
"Today's Missing Palindromic Headline": "Strom Morts," suggests reader Jonathan Falk. ("OK, it's not quite English, but it's damn close.")

 
[Eugene Volokh, 11:25 AM]
Clarence Thomas and race preferences: I'm guest blogging at Glenn Reynolds's MSNBC blog (not instapundit) today and a couple of times next week. Here's the start of my first post, from this Morning:

Lots of people have criticized Justice Clarence Thomas’ anti-race-preferences opinion (from Monday’s Grutter v. Bollinger decision concerning the University of Michigan Law School’s admissions policy), on the grounds that there’s reason to think that he has benefited from some such preferences. Maureen Dowd in The New York Times has a particularly intemperate expression of this view: “It’s impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.”

The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking.

But beyond this, I wonder how far these critics would take their criticism. In the 1970s, the Supreme Court held that sex discrimination was unconstitutional. The justices who voted for this position had spent their lives in a nation in which women were largely excluded from the legal profession. Those men may well have benefited from this exclusion — when half the population is out of the competition, the competition is easier. Maybe if men hadn’t gotten preferences, some of those justices wouldn’t have made it onto the high court.

Should Justices Brennan, Marshall, and the others have said “Oh, we benefited from sex discrimination, so it would be ungrateful for us to now hold that sex discrimination is unconstitutional”? Or should they have resigned en masse, in shame at having gotten this benefit that they realized was improper? Should people have berated them for having gotten the advantage of preferences for males, and then denying future generations of men the same advantage (“pull[ing] up the ladder after [themselves]”)? . . .

It goes on, with more examples and some broader conclusions -- just go here to read the rest. By the way, I noticed after writing the post that Dowdslayer Josh Chafetz (OxBlog) had made a similar point yesterday morning, though using a different example.

 
[Eugene Volokh, 10:22 AM]
More on sets (see post below): UCLA Law School student Nick Morgan points out:

The last one to get ahold of the set of all sets that are not self-members was, I believe, Meinong (the metaphysician who thought non-existent things existed, like square circles). What happened? My theory: he belonged to the set of all wacky metaphysicians who think non-existent things can exist (which is not a self-member set), and by virtue of his membership in Russell's paradoxical set, ceased to exist. At least it was a less painful demise than other philosophers, like Socrates, must have suffered.

But hey, definitely let us know if you find a square circle on Amazon or something.

 
[Eugene Volokh, 7:54 AM]
Uninformative statistics: Bloomberg.com has the following headline:

Prosecutor Misconduct Is Found in 18% of Appeals, Study Says

Sounds pretty bad; fortunately, the opening paragraph makes a more modest claim:

State and local prosecutors are cited by judges for misconduct in 18 percent of criminal cases in which such charges are made by defendants, a study says.

Now that's much better -- presumably this represents much less than 18% of all appeals, which is what the headline might suggest. And it's really not that big a deal that the headline is a bit misleading; headlines are necessarily incomplete, since you can't really do justice to most things in 10 words.

     No, the problem here isn't with the headline: It's with the percentage itself, which measures something that's just not very interesting. After all, the fraction of prosecutorial misconduct allegations that result in a judicial finding of misconduct tells us little about the behavior of prosecutors, and much more about the behavior of defense lawyers: The key variable here is the willingness of defense lawyers to make these allegations. If defense lawyers become more selective in the allegations they make, the number will go up, and if they become less selective, the number will go down, all with no change in the amount of actual prosecutorial misconduct.

     The really interesting number would be the fraction of all prosecutions that involve some prosecutorial misconduct, but unfortunately the study's design (for understandable reasons) doesn't yield that. So we've got the 18% figure, which may sound high or may sound low, but which really doesn't much capture the problem. The more relevant number is probably the absolute count, which is 2000 convictions reversed since 1970, or a bit over 60 per year nationwide, though that doubtless substantially understates the problem since not all prosecutorial misconduct is appealed or even unearthed by the defendants, and not all decisions finding such misconduct would have been accessible to the researchers.

     By the way, the Bloomberg.com account also doesn't quite capture the study's findings: The 18% covers misconduct that actually led to reversed convictions, and doesn't count misconduct that was dismissed as harmless error (the study says, quite plausibly, that "In thousands more [cases], judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called 'harmless error'").

     Thanks to How Appealing for the pointer.

 
[Eugene Volokh, 6:31 AM]
Sets: Thanks to all the readers who suggested chemistry sets, in response to my recent post. This leads me to ask: Can anyone suggest any cool optics sets? I'm just making up the term, and I'm not sure they exist as separate products, but I assume they must -- I'm thinking a prism, a laser pointer, stuff to show interference and diffraction and this and that, plus a cool guide book. Yes, I know, one can do it oneself, if one knows what one is doing; but I don't really know, so if there's a prepackaged optics set that's good for this, I'd love to hear it.

     Oh, and while we're on sets, I'd love to get my hands on the set of all sets that do not contain themselves. I hear that's really cool, and also has lots of really cool stuff inside it (though it's apparently not clear whether one particularly interesting item is included -- maybe you have to pay extra for it).

 
[Eugene Volokh, 3:32 PM]
Retirement: Kathryn Lopez at National Review Online passes along the following:

NRDC intern James Justin Wilson was hanging around the Court this morning. After the five decisions of the day were issued, Chief Justice Rehnquist paused and said (paraphrasing): I'd like to announce the retirement . . . [SILENCE FILLS THE CROWD] of the Court librarian.

Nice.

 
[Eugene Volokh, 2:44 PM]
Gays in the military: Phil Carter has a good brief analysis of what Lawrence may mean for the restriction on gays in the military.

 
[Eugene Volokh, 2:36 PM]
Interesting possible fallout of the Lawrence case: King Tower (his real name) writes:

As it happens, I have a current court case that may quickly test the applicability of the reasoning in Lawrence to both Virginia's adultery and lewd and lascivious cohabitation statutes.

First, some background: In the mid-1990's, the Virginia Supreme Court extended the tort of wrongful discharge in violation of Virginia's public policy to all of the employment discrimination bases set forth in the Virginia Human Rights Act (race, sex, age, etc.) The General Assembly reacted by statutorily abrogating common law claims based upon the VHRA's public policies. Subsequently, a creative plaintiff's attorney, whose client had allegedly been discharged after refusing to have sex with her boss, filed a wrongful discharge claim based, not upon the VHRA, but upon the public policies underlying Virginia's fornication and lewd and lascivious cohabitation statutes (i.e., the plaintiff was dicharged for refusing to engage in such criminal conduct). The Virginia Supreme Court allowed this -- the case is Mitchem v. Counts.

When I recently received a complaint alleging a Mitchem-style claim against my client, I filed a Demurrer (our name for a motion to dismiss) asserting that the two statutes cited by the plaintiff as the basis for her public policy claim -- adultery and lewd and lascivious cohabitation -- were unconstitutional. Believe it or not, the hearing was scheduled for tomorrow. The plaintiff''s attorney (who, of course, cited Bowers v. Hardwick as the law of the land in her brief) and I have now agreed to postpone the hearing to brief the effect of Lawrence. Even with the delay, we should have a ruling in the next month or two.

As for the merits, it seems clear that criminal penalties for lewd and lascivious cohabitation (basically, living together) are directly prohibited by Lawrence. So the question is whether, to the point you make, there is anything about adultery that is distinguishable. For my part, I think the state could still regulate marriage and impose civil consequences for adultery, but imprisoning someone (theoretically, of course, as the statute is never enforced) for a private consensual sexual act seems to cross the new line. In any event, we may know sooner than you expected, at least in Virginia.

Needless to say, this case isn't by any means directly dictated by Lawrence -- but the lawyer's job is to argue by analogy even when the analogy is imperfect. It will be interesting to see if Lawrence carries any weight here.

 
[Eugene Volokh, 2:21 PM]
Justice Scalia on gay marriage: In today's Lawrence decision, Justice O'Connor refuses a general right to sexual autonomy, but concludes that banning only homosexual sodomy violates the Equal Protection Clause -- there's just no rational basis for such discrimination besides "a . . . desire to harm a politically unpopular group," she says. What about gay marriage, one might ask her? She anticipates this, by suggesting that "preserving the traditional institution of marriage" is a "legitimate state interest." "Unlike the moral disapproval of same-sex relations -- the asserted state interest in this case -- other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

     Justice Scalia derides this -- "[Justice O'Connor's reasoning] leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples," because "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples" (emphasis in original). But wait: Isn't that the usual argument of those who criticize the heterosexual-only marriage rule?

     After all, if that's the only reason for disallowing gay marriages (and Justice Scalia's argument rests on this indeed being the only reason), then presumably people who don't much mind homosexuality should gladly vote for allowing gay marriages. Likewise, once a state provides domestic partnership for gay couples, which presumably reflects at least moral neutrality, rather than moral disapproval, then there'd be no logical reason against going on to allowing gay marriage.

     That's why many defenders of traditional marriage stress that one can support "the traditional institution of marriage" for reasons other than moral disapproval of same-sex couples. "Even if you don't disapprove of homosexuality as such -- even if some of your friends, whom you hold in high esteem, are homosexual -- you should still support this traditional institution," they say. "The heterosexual-only marriage rule is based on a Burkean desire not to rashly modify the nature of our most fundamental institutions, or the need to maintain marriage as an institution that's consistent with our society's religious heritage, or the desire to label heterosexual marriage as something of which we specially approve, even if we don't disapprove of alternatives (whether homosexuality or singlehood)."

     If people really accept Justice Scalia's view -- that if you don't morally disapprove of gay couples, there's just no rational basis for you to support heterosexual-only marriage -- then the pro-gay-marriage movement should become a lot more popular.

     (Note, incidentally, that unlike with some other posts below, I'm not saying that this decision suggests that gay marriage is a constitutional right -- it doesn't. I'm only commenting on Justice Scalia's claim that the only foundation for supporting heterosexual-only marriage is moral disapproval of same-sex couples.)

 
[Eugene Volokh, 12:08 PM]
Obscenity laws: Some have argued that pornography shouldn't be really treated as "speech" for First Amendment purposes, but as a sexual aid. I don't quite agree, because I think pornographic pictures, like other pictures, should be treated as "speech" -- but certainly pornography is also a sexual aid. What's more, pornography is something that people use not just for masturbation, but also as part of their sexual relationships with their partners.

     Given that Lawrence v. Texas recognizes a constitutional right to choose with whom one wants to have sex, and how one wants to do it (e.g., I take it that a ban on anal sex would be forbidden by Lawrence, even though people could still have sex in other ways), would it also include the right to have sex using obscene pornography (which the Court has held isn't protected by the First Amendment) as well as with sex toys? It seems to me the answer might well be yes; and the supposed indirect long-term "moral rot" sorts of harms that obscenity and sex toys (I set aside child pornography, where the harms are more direct) seem to me not to be adequate, under the Court's decision, to justify these laws.

     I do think some distinctions are possible. First, one might say that private use of obscenity and sex toys should be protected, but distribution should not be; but I'm not sure that works, any more than it would work to say that people can use contraceptives and get abortions, but people can't distribute contraceptives or perform abortions. (The Court has held that the First Amendment protects private possession of obscenity but not distribution -- and for that matter not even private transportation of the obscenity while one is traveling -- but that's really something of an accident of First Amendment history.)

     Second, and much more plausibly, one could say that sexual conduct among two humans is protected because of its potential to foster a richer interpersonal relationship, and that though sex toys and obscene pornography can be used by two people, (a) they're usually used solo, and (b) they're not central to the interpersonal relationship the same way that more direct sexual practices are. I think a court might well take this view (this, incidentally, is what would distinguish bestiality); but I'm not sure. Among other things, these things may not be central to your or my relationships with our respective spouses or lovers, but what if for some people they are so central, because they find them to be physically or psychologically necessary? (After all, anal sex isn't central to most heterosexuals' sex lives, but for some percentage of the population -- gays, and perhaps even some straights -- it might indeed be so.)

     As with consensual adult incest, I don't think that even obscene pornography should be banned (I actually think that it should be protected under the First Amendment, at least because any definition of such material will be vague enough to deter some protected speech, at least if obscenity laws were seriously enforced), and I don't think that sex toys should be banned, as they are in some states. I'm just observing the possible scope of Lawrence, not condemning it.

 
[Eugene Volokh, 11:52 AM]
Parades of horribles: A thought apropos Justice Scalia's dissent in Lawrence v. Texas: When constructing a parade of horribles, the possibility that "state laws against . . . masturbation" (pp. 5-6 of Scalia's dissent) would be "called into question" isn't a terribly persuasive float.

 
[Eugene Volokh, 10:59 AM]
Consensual adult incest and homosexuality: Tyler is of course correct that consensual adult incest is different from consensual adult homosexuality in certain ways; and Philippe is correct that the Supreme Court might distinguish them in the future.

     Nonetheless, I stick by my point that I don't think the Court is likely to distinguish them in the future. The Court had an opportunity to distinguish them today, as it distinguished prostitution, statutory rape, and so on; it didn't. And the reasoning that it gave was quite broad, broadly focused on people's liberty to engage in sexual activity with whomever and however they thought was right. Like many rights (free speech, criminal procedure rights, right to have children, and so on), this is a right that may well apply -- and I think likely will apply -- even when it may potentially cause some nontrivial externalities. Certainly the right to have children, which the Court has long recognized under the same rubric that it uses here, has huge effects on society, but it's protected nonetheless. I doubt that the Court will buy arguments for criminalizing fully consensual incest, bigamy, polygamy, and adultery based just on these sorts of general and indirect (even if plausible) harms.

     Of course, we won't know for sure until the courts confront this; and it may be quite a while before they do, because prosecutions for such behavior are extremely rare. Nonetheless, if I were a betting man, I'd bet in favor of the Court treating consensual adult incest (especially if it's brother-sister rather than parent-child) identically to consensual adult homosexual conduct, citing the broad sexual rights language of Lawrence while doing so. Again, I don't think that's particularly bad -- though I agree with Tyler's point, I don't think that it justifies criminal punishment. But good or bad, it seems to me to be pretty likely.

 
[Eugene Volokh, 10:51 AM]
Whoops: I just realized that the link to the New Hampshire Supreme Court decision in my National Review Online piece on "hostile public accommodation environment harassment" in clubs is incorrect; the proper link is this. Kathryn Lopez kindly agreed to have it changed, but I thought I'd mention this in the meantime, in case people are interested in reading the case. (Actually, the Commission decision -- which the piece does properly link to -- is somewhat more enlightening, because it gives more facts and more directly discusses the sexual harassment theory.)

 
[Eugene Volokh, 9:12 AM]
Jack Balkin on the sexual rights case: Yale law professor Jack Balkin has a detailed analysis.

 
[Eugene Volokh, 8:52 AM]
Cool site: I just noticed that nationalreview.com lists us as its "Cool Site" today. We're very flattered.

 
[Eugene Volokh, 8:21 AM]
Sexual rights case: The Supreme Court has just held that adults have a constitutional right to have noncommercial sex in private. There's a lot to be said as a matter of constitutional theory both in favor and against this, and I'll probably leave it to others. I think such a right is good policy; I'm not sure the Constitution protects such a right, but I realize there are good arguments both ways.

     I do, however, want to make one point -- by no means the most important point, just one that I think some might miss. In April, Sen. Rick Santorum famously said:

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.

Many faulted him for his comments, and I certainly don't endorse all that he said. But on this sentence, I think he's been proven close to right.

     The language of the opinion -- "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (p. 11) -- applies equally to incestuous relationships among consenting adults (perhaps with the exception of parent-child incest, though even that's not clear), and to fully consensual (i.e., with the consent of all the parties, including the original spouse) bigamy, polygamy, and "open marriage" adultery (though the government would have no obligation to recognize the bigamous or polygamous relationship as a marriage). The list of exceptions on pp. 17-18 -- minors, coercion, "relationships where consent might not easily be refused" (that might be what might possibly provide an exception for adult parent-child incest), "public conduct or prostitution," and "formal recognition" -- conspicuously excludes adult incest and multiple-partner relationships. And the logic of the opinion, which stresses that sex is important to people's lives because it builds the foundation for their relationships, and involves private conduct in private places, applies equally to those practices, too. (One possible argument distinguishing bigamy and polygamy is that it also involves a publicly celebrated event and a publicly visible shared household, but I don't think that flies: Sharing households among many people isn't a crime; I don't think that the government can criminalize sexual activity simply because it's been preceded by a public exchange of vows that the government thinks are impermissible; and in any event, the logic of the opinion suggests that maintaining a homosexual household and publicly celebrated partnership is protected as well as the purely private conduct.)

     Now I actually welcome the decriminalization of these practices: Whether or not these practices are harmful to society (I think they generally aren't particularly harmful, though there are plausible arguments that they might be), I don't think they should be matters for the legal system, and especially not for criminal punishment. If society wants to send a message condemning these practices, it should send it through other means.

     But the Court's decision shows that decisions on one subject can have lots of consequences for related subjects, and that we should be hesitant to accept assurances that "Don't worry about future controversies, the courts/legislatures/voters can draw the line between this case and future cases." Yes, they can draw it -- but sometimes the logic of the arguments leads them not to draw it. The Supreme Court hasn't drawn the line between homosexual conduct and the other forms of conduct here; and I see no indication that it will draw such a line in the future.

 
[Eugene Volokh, 6:56 AM]
Law School Admission Council letter to judges: Some judges have apparently been getting this letter (I have it in front of me):

June 2003

Dear Judge:

This is a brief letter on what I hope you will agree is a very important topic -- the selection process for judicial clerks.

The Law School Admission Council, sponsor of the Law School Admission Test, has learned that some judges are asking clerkship applicants to supply LSAT scores with their applications. These judges presumably are using LSAT scores as a substantive part of their selection processes to greater or lesser degrees. Our essential message to you is that any use of the LSAT for clerkship or other employment purposes is unfounded and inappropriate.

The LSAT is designed for use in the law school admission process, in part to determine who has the verbal-reasoning skills necessary for success in law schools. It is just one of many factors that law schools consider in making admission decisions. Clerkship applicants have actual law school experience and grades. It is this actual law school performance that is relevant to the clerkship application process, not the LSAT's estimation of that performance. Once grades have been earned, the LSAT should be irrelevant. Moreover, the LSAT is validated only for admission purposes, not for use in employment decision-making. LSAC's own test-user guidelines prohibit the use of the test for employment purposes.

Thank you for your attention to this important matter. If you have any questions, please do not hesitate to contact either of us.

Sincerely,

. . .

[signed by the Chair, LSAC Board of Trustees and the LSAC President]

     Obviously the LSAC is entitled to argue whatever it wants to, but this argument doesn't make much sense to me. First, I highly doubt that judges are putting a great deal of weight on the LSAT, precisely for the reasons the LSAC gives. Just as the LSAT "is just one of many factors that law schools consider," so the LSAT is just one of many factors that some judges consider; and I suspect that they don't give it that much weight -- if the grades are highly informative, then the LSAT (which comes from an exam that was further in the past than the law school exams, and which doesn't directly measure any legal reasoning) will naturally not carry that much weight.

     But, second, some transcripts just don't have a tremendous amount of information. Yale Law School is the extreme example, but since many clerk applicants come from Yale, it's an important one. Yale releases no grades at all for the first semester of the first year, and all subsequent grades are (with very rare exceptions at the bottom of each course) either Hs (generally about 30% of each course, I'm told) or Ps. What's more, after the first year, and (if I recall correctly) as to one class in the second semester in the first year, students choose their own classes, and often choose classes that aren't very focused on legal doctrine. Rightly or wrongly, many people feel that performance in some of these classes may not be a very good proxy for the quality of one's legal thinking. Judges also have no way of knowing whether some of these classes (or even purely doctrinal electives) are just much easier (or much harder) than the classes that other applicants took.

     These days, most federal judges hire students near the start of their third year of law school. At that point, Yale applicants have three semesters' worth of grades, which usually means 12 grades (though I suspect that sometimes it might be fewer, for instance if they had externships or if some of the grades are for written papers that aren't complete), of which many might not be in doctrinal classes. Each of the grades is an H or a P. A judge might thus get a bunch of Yale resumes with, say, 7 Hs and 5 Ps.

     At that point, the LSAT may become a pretty sensible thing to consider as part of the whole mix. It's at least as sensible as favoring someone with 8 Hs and 4 Ps over someone with 7 Hs and 5 Ps, or as considering often inflated recommendations from professors, or even the writing sample, which is important but which is necessarily hard to evaluate and to compare against other writing samples.

     This is all a long way of saying that sound decisionmaking often involves a whole bunch of different inputs. Each has its flaws, but each has its advantages. (The LSAT was taken longer ago, doesn't involve legal analysis, and is aimed at just being a helpful predictor of law school grades, but it doesn't suffer from the same problems of subjectivity, puffery, or incommensurability from which the other inputs suffer.) It seems to me simply wrong to say that it's "unfounded and inappropriate" to consider such a factor, or that the LSAT's estimation of future performance is not "relevant." And as to the LSAT's being validated -- well, I suspect that letters of recommendation from professors who (not always, but often) puff their students aren't exactly validated, either.

     More broadly, I think this illustrates a common fallacy of those who criticize decisionmaking for relying on imperfect proxies. Employment decisions always rely on imperfect predictors of future performance; the goal is to consider enough of the predictors that, one hopes, the biases in each cancel out. But the flaws in one such predictor (whether it's the LSAT, or undergraduate grades, or the ability to project one's intelligence in an interview) don't necessarily make it unsound, so long as one gives it the proper weight in the analysis. (Naturally, if one thinks the attribute is illegitimate for other reasons -- for instance, if one thinks that considering an applicant's race, religion, sex, or sexual orientation is impermissible -- then the situation is different, but I see no reason why the LSAT should be treated like those attributes.)

     As to the "LSAC's own test-user guidelines prohibit[ing] the use of the test for employment purposes" -- well, it's pretty hard to prohibit federal judges from doing whatever they please.

 
[Eugene Volokh, 6:21 PM]
Chemistry sets: Can anyone recommend a good chemistry set? I'm going on a family vacation in a month, and I'd like to show some of the kids some cool experiments. The children range in age from 7 to 13; I think they're open to something like this, but I suspect they'd be easily bored by stuff that seems too esoteric. Any recommendations? Please e-mail me at volokh at law.ucla.edu. Thanks!

 
[Eugene Volokh, 4:50 PM]
People-ism of the day: Here's today's Bushism of the Day:

"I urge the leaders in Europe and around the world to take swift, decisive action against terror groups such as Hamas, to cut off their funding, and to support -- cut funding and support, as the United States has done." -- Washington, D.C., June 25, 2003

Let's see: Bush erroneously inserted a word ("to"). He quickly realized that this would change his meaning. He then immediately corrected himself.

     Who among us hasn't done this today? How about, who among us hasn't done this in the very last conversation we've had? This is the way normal people talk: They occasionally misspeak, and then correct themselves. A "Bushism" is something that's characteristically Bush -- this is something that's characteristic of all people, a "People-ism."

     I realize, by the way, that the author of the Bushisms often stresses that they're just supposed to be light-hearted humor. Now it seems to me that even humorous campaigns of identifying errors in political figures' speech may still be condemned as unfair, for instance if they fault the people for errors that everyone makes, or (as is sometimes the case with the Bushisms) if the alleged errors aren't errors at all. But even if I'm mistaken, where exactly is the humor in this item?

 
[Eugene Volokh, 4:14 PM]
Correction: The post below on the visa denial to an Irish civil rights lawyer was mistaken; the person whose message I quoted has e-mailed me to tell me that he was wrong. (Fortunately, the most serious allegation in the post -- that Francis Mackey was linked to the IRA -- appears to be correct; it's just that the newspaper article that the post was deriding was seemingly referring to another lawyer.) I'm very sorry for the error.

 
[Eugene Volokh, 2:10 PM]
Another quote problem from Maureen Dowd: Reader Marc Greendorfer points out that Maureen Dowd has yet again mischaracterized a quote. Her column today says

Justice Thomas scorns affirmative action as "a faddish slogan of the cognoscenti."

But Thomas didn't say affirmative action was a faddish slogan of the cognoscenti. The sentence in which the quote appears,

The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti.

doesn't specifically explain what the slogan is; but it's pretty clear from Thomas's opinion that the slogan he's condemning is either "diversity" as a justification for race discrimination or specifically "critical mass" as the measure of the needed race preference. As Greendorfer writes,

While Thomas' dissent does not present a clear explanation on its face of what the "faddish slogan" is, it becomes clear that he is referring to either the phrase "critical mass" (which Chief Justice [Rehnquist] refers to as a "sham" in his dissent) or the way that the majority uses the phrase "diversity" to justify its decision. . . . [I]n footnote 3 to Thomas' dissent, Justice Thomas calls diversity a "fashionable catchphrase." Since a slogan and a catchphrase are similar things, it is likely that Thomas was referring to "diversity" as a faddish slogan.

(The first sentence of footnote 3 is "'[D]iversity,' for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue.")

     Dowd's error here is less grave than her "They're not a problem anymore" misquote, because Thomas's statement is somewhat ambiguous. But it seems to me that it is indeed an error.

 
[Eugene Volokh, 11:39 AM]
Gephardt's own defense: A reliable source e-mailed me the text of a FoxNews interview with Gephardt about his "When I am president, we'll do executive orders to overcome any wrong things the Supreme Court does tomorrow or any other day" statement. (I assume that the questions are slightly paraphrased by the transcriber, but the answers appear to be verbatim. The numbers, I take it, are time stamps within the broadcast.)

q- clarify statement made at forum?
1608 It was a basic statement you would make about anything. You would always try to use an executive order to try to overcome things that you think have been done wrong. It may not be possible to use an executive order to overcome a Supreme Court decision if the decision had gone the other way, but there are times in the past where a presidents have done important things through executive order that were legal. Harry Truman integrated the military through an executive order and he didn't get a law passed, he did it because he could do it legally with an executive order. 1643

q- To what extent does a president have the right to exercise that kind of power over a SCOTUS ruling? 1702 It's rare. Usually the courts decisions stand and we have separation of powers and you can't overcome everything that you might want to. So you have got to follow the law, you have got to follow the precedence. But there are cases in the past where presidents have been able to use executive orders to get things done and I would use the executive orders in a proper and legal way. 1728

q- Had the U of M case gone another way, as president what would you do to try to overcome the ruling? 1740 You could maybe try to pass a law that would be constitutional, you could try to find a formula for a diversity program that the court might look on favorably. So that's something you could look at, you could try to do with the Congress. And that's often done, we often have Supreme Court decisions where the Congress and a president will try to pass a law to solve the problem in a way that a court in the future would say is the right way. That's the best way to do it. 1808

q- In what ways as president would you try to effect makeup of Supreme Court so that decisions like affirmative action are dealt with in the way you feel appropriate? 1850 Generally I try to pick judges that are intelligent and balanced, fair people who are basically trying to enforce the precedents of the court. I would not try to put on people who would try to dig new ideological ground and would take the court in new ideological directions in any direction and really use it like a legislative body. I have always felt it should be interpreting fact situations according to the precedents that are out there. I would want judges to keep the precedents the court has stood for in the past. 1928

q- In sum, if a Supreme Court misinterprets a decision is it within the bounds of a president to overcome that, where possible? 1942 You have to do it in a legal way, you have to pass a law or do an executive order that would be legal under our system. We have a system of laws, separations of powers, and precedence obtained and presidents and congresses can try to pass new laws, they can try to do executive orders but ultimately the test of whether or not that's constitutional rests with the Supreme Court. 2007

So here's what it looks like to me:

1. At the Jesse Jackson forum, Gephardt is asked what he'd do if the Supreme Court strikes down race preferences at the University of Michigan. He tells the audience: "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."



2. However, there's virtually nothing that Gephardt can do with a lawful executive order that would indeed "overcome" the Court's decision; Gephardt can order various policies within the Executive Branch, but he can't just order a state university to do things. (That's why this sounds on its face like he's suggesting that he'd just try to overturn a federal court decision with an executive order -- because there's little else that he could have reasonably meant that would have "overcome" the decision.)



3. In this interview, Gephardt pretty much admits that he can't do what he said he'd do with an executive order. Rather, he suggests that "You could maybe try to pass a law," "you could try to do with the Congress." He's still not specific about what sort of federal law would have "overcome" a Supreme Court decision saying that race preferences are unconstitutional; but at least he's specific about the means -- not an executive order, after all, but a request to Congress to enact something.

     So,

What was originally said	What is now being said
"When I am president, we'll do executive orders . . ."	"you could try to do with the Congress"
". . . to overcome any wrong things the Supreme Court does tomorrow or any other day"	"[Q: To what extent does a president have the right to exercise that kind of power over a SCOTUS ruling?] It's rare. Usually the courts decisions stand and we have separation of powers and you can't overcome everything that you might want to."
Summary: I'll engage in forceful, unilateral action that I could undertake on my own so long as I'm elected President (even without help from a possibly hostile, Republican-run Congress).	Summary: I'll do something that has nothing to do with an executive order -- I'd ask (the possibly hostile) Congress to enact a law that I'd then sign.

I don't want to overstate the importance of this: Other politicians have done similar things, and that's the way Presidential races go. But when these things happen, people should point them out, and should point out when the candidate's defense is ultimately not terribly persuasive. Doubtless some people may still like Gephardt's politics and character enough to conclude that he's the best candidate -- but I think that this sort of overpromising (whether done deliberately, or on the spur of the moment in a "me-too" gesture following Dennis Kucinich's similar statement) does cast at least a bit of doubt on the candidate's qualities.

 
[Eugene Volokh, 11:15 AM]
A bit more on "Do Not Spam" lists as "Please Spam Me" lists: Top cyberjournalist Declan McCullagh has two points about this problem; reader Mike Rose also pointed out the first to me:

1. Even if the list is one-way-hashed, so that spammers can't directly harvest it for e-mail addresses, spammers will still be able to use it to quickly check whether e-mail addresses that they've guessed (and, as I understand it, there are technologies that do let them guess a large set of plausible e-mail addresses) or that they've gotten elsewhere are correct and thus worth spamming. From Declan's Politech:

   Even if [the Do Not Spam list is] more intelligently designed, say with an interface that asks for a hash of the email address, malicious spammers could still use it to verify which of their addresses are live. In other words, for the spam-recipients who need it the most, the list will have the least utility.
   
   For the most part, spam doesn't come from legitimate Fortune 100 businesses -- it comes from people who won't follow the rules. Any "do-not-spam-me" list that's useful enough to allow legit firms to purge their lists will be useful enough to help spammers even more.



2. While the Schumer anti-spam bill at least seems to contemplate some security measures, some other bills mandate public disclosure of the "Do Not Spam" list, which really would make it a "Please Spam Me" list. See, for instance, sec. 5(c) of S.563, introduced by Rep. Drayton:

   SEC. 5. PROTECTION FROM UNSOLICITED MARKETING E-MAIL.
   
   (a) IN GENERAL- The Federal Trade Commission shall establish a registry in which any person or entity that does not seek to receive unsolicited marketing e-mail (commonly referred to as `spam') to a computer may register the e-mail address or addresses of such computer for that purpose.
   
   (b) REGISTRATION- The Commission shall permit the registration, including registration by e-mail, of any computer on the registry established under subsection (a).
   
   (c) AVAILABILITY OF REGISTRY TO PUBLIC- The Commission shall make available to the public the information on the registry established under subsection (a).
   
   (d) PROHIBITION ON UNSOLICITED MARKETING E-MAIL TO REGISTERED COMPUTERS- Except as otherwise authorized by the Commission in regulations prescribed under this section, no person or entity may send or otherwise submit to any computer whose e-mail address is registered on the registry established under subsection (a) unsolicited marketing e-mail.

   I move to amend the honorable gentleman's bill to include scare quotes around the word "PROTECTION."

 
[Eugene Volokh, 10:58 AM]
More speech suppression suggested in Europe: My friend and fellow law professor David Bernstein, who specializes in (among other things) studying how civil rights laws have in some measure diminished First Amendment protection in the U.S., has a great post on how much worse things are in Europe. Here's an excerpt; details and links are on David's site:

According to an article in the Guardian, a draft proposal for the EU states "that while freedom of expression must be respected, sex discrimination and affronts to human dignity should be banned from media and advertising."

"'The purpose is to avoid throughout all forms of mass media all stereotypical portrayals of women and men, as well as any projection of unacceptable images affecting human dignity and decency in advertisements,' an internal commission document says."

 
[Eugene Volokh, 10:33 AM]
CORRECTION: My source tells me that he was mistaken, and that the San Francisco Chronicle article actually refers to another lawyer:

Oh man, when I blow it, I blow it. Sorry. The Ingrate-American was not referring to Francis Mackey.

Upon reflection, I was troubled by the discrepency in the date of the submission by Mackey, which was for the 57th Session of the Commission. This year's session was the 59th.

I did more research and found out that the Irish civil rights lawyer must have been either Reggie Shuford of the American Civil Liberties Union or Steven Watts of the American Civil Liberties UnionCenter for Constitutional Rights. They spoke at an NGO forum on Post-9-11 treatment of aliens (not however, to the UN Commission itself). It may even be true that their
visa(s) (whichever person it is)

see
http://www.hrlawgroup.org/initiatives/war_on_terrorism.asp
http://www.room17.org/terrorism_and_human_rights_2

Guess that's the end of my 15 minutes. I think a correction and removal of the post is needed. Again, sorry.

I apologize as well, and will also blog a note above, so people who have already read this post will be more likely to see it.

     Reader Laurence Rothenberg writes:

Best of the Web yesterday reported an article by an "ingrate-American" who became a US citizen while hating America.

She mentions in her article, "At the annual meeting of the U.N. Commission on Human Rights this spring, one panelist, an Irish human rights lawyer working in the United States, said that the government had tried to prevent him from renewing his visa because of his legal work here."

And who was this person?

Apparently, one Francis Mackey.

See, http://www.geocities.com/thirtytwocounty/57th.html

"I wish to draw particular attention to the fact that since 1998, we have been denied entry to the United Nations, New York, by a policy of Visa denial to our members implemented by the United States Government."

And who is Mackey?

The BBC identifies Mackey as "a leading member of the republican 32-County Sovereignty Committee, whose son was arrested" for participating in a bombing. "The 32-County Sovereignty Committee is one of three republican splinter organisations that remain implacably opposed to the Good Friday Agreement. It is thought to be the political wing of the Real IRA, which is suspected of the attack."

In other words, THIS GUY IS A TERRORIST. The US refused to give him a visa, just as it would refuse, one hopes and expects, to give a visa to a member of the "political wing" of Hamas.

Interesting how the Ingrate-American didn't reveal who exactly she was talking about or what his "human rights" work consists of.

Furthermore, why is the UN Commission on Human Rights taking his testimony?

I'm not sure how solidly proven the charges against Mackey are -- and I realize that there's a possibility of some mistake, though I did check the links that the reader sent, and they do seem to be talking about the same Mackey. Still, even the substantial suspicion that he's a terrorist might help explain why the U.S. isn't giving a visa to this "human rights lawyer."

 
[Eugene Volokh, 10:23 AM]
Spin and the affirmative action decisions: Tech Central Station has an interesting piece both on how the affirmative action decisions are being spun by both sides, and on what they're really likely to mean (assuming it's possible to say that without some degree of spin). I'm not as optimistic as the author; I'm worried that universities will push the vague boundaries of permissible race preferences as far as they can, and that the courts will let them. But the piece makes some very good points; much worth reading.

 
[Eugene Volokh, 8:32 AM]
Legally mandated speech codes at private clubs: I have a National Review Online op-ed discussing this. Here's the introduction:

"Watch what you say, or be ready to pay," a newspaper headline said about workplace harassment law some years ago. Well, now you should watch what you say in private clubs, as well as workplaces. Clubs are the new stop for the campaign to legally eradicate speech that offends based on race, religion, sex, sexual orientation, and so on. . . .

 
[Eugene Volokh, 6:04 AM]
Pretty safe to drive in America: The National Safety Council's International Accident Facts reports that in 1996, the U.S. had 1.7 deaths per 100 million vehicle miles. Of the over 15 other countries that were listed, only Sweden (1.2), the U.K. (1.4), and Finland (1.5) had fewer. Austria (1991 data) had 5.1, France had 2.8, Germany 2.5, Italy 2.2., the Netherlands 1.8, and Norway (1994 data) 2.0. South Korea and Turkey were in the lead (in a sense) with 35.8 and 21.3. (The South Korean results look so high that they seem wrong, perhaps the result of badly gathered vehicle mile data; but even if one focuses just on deaths per passenger car in the country -- both numbers that are probably reliably measured -- it turns out that South Korea motor vehicle deaths were 29% of our level, though they had only 5% as many cars as we do.)

     Of course, this actually doesn't tell us whether we Americans are particularly good drivers -- we might drive on safer roads (e.g., more miles on relatively vacant highways than on relatively crowded ones), we might drive safer cars (heavier cars, for instance, are all things being equal considerably safer than lighter ones), we might be more likely to use seat belts and have air bags, and so on. Still, our roads aren't as dangerous as they might seem, all things considered.

UPDATE: Prof. Stefan Krieger passes along more data on this subject. This set is from 2001, and shows a few more countries as having lower per-vehicle-kilometer death rates than we do; but the overall result is still the same -- we're safer than most, and not far from the very safest, which is the U.K. (Maybe the rankings are different because they're using those darned kilometers instead of true blue miles? OK, maybe not.) Only the U.K. (7.5 deaths per 1 billion vehicle-kilometers), Sweden and Norway (8.3), and the Netherlands (8.9) are more than 5% below our total (9.5). The Koreans and the Turks are still way up there, though so are the Czechs and the Slovaks. (No word on my fellow Russkies.)

     Mind you, lots of people do get killed on the road -- over 40,000 per year in the U.S. It's just that this seems to happen pretty much everywhere, and in some places a lot more than here.

 
[Eugene Volokh, 6:08 PM]
More on Israel and Hamas: My colleague Jonathan Zasloff writes:

It's now becoming pretty obvious that the combined pressure on Hamas -- military, political, diplomatic, economic -- is beginning to have at least some effect. The fears of those who thought that Israel's targeted killings policy made a cease-fire less likely are not being born out. It's not just targeted killings, of course -- it's international pressure, continued closures, etc. But the military component is important. Hamas is feeling the squeeze.

Consider this report from CNN's Sheila Macvicar, who is often condemned by supporters of Israel for what they consider to be her pro-Palestinian bias.

BLITZER: Sheila, the Israelis when I was there with you last week, they kept saying to me that if Hamas agrees to the cease-fire, it's because of the enormous military pressure the Israelis are putting on them, assassinating their leaders, arresting them, going after their targets. What are the Hamas people in Gaza you're speaking to saying? Why would they accept the cease-fire?

MACVICAR: There are many reasons. Certainly the military pressure is one, but there is also tremendous social and public pressure here in Gaza, and on the West Bank. The economies are dreadful. People have been locked up in their homes.
And in Gaza, after the experiences over the last couple of weeks, where, again, you had Israeli Apache helicopters in action over the city streets, people are simply frightened and they are fed up.

All of those things are coming to play, plus it has to be said, there has been an enormous amount of external pressure from the Americans, the Egyptians and others.

Note that even though Macvicar seeks to downplay the military aspects, she also acknowledges that the Apache raids are taking their toll.

This also points to an interesting subtext--it's not clear how important at this stage. The point is this: the Palestinian public is not that stupid. They know very well why they are getting Apache raids in their neighborhoods. They know very well why there are closures. And they know that the reason is Hamas. Advocates for "restraint" have argued that Israel must be restrained, because the Palestinian public will blame it if it responds. This is essentially saying that Palestinians are so stupid that they cannot recognize what is going on around them. But they can. I don't want to make too much of this at this stage, because the indications are minimal. But it's an encouraging sign.

Thus, three quick points:

1) Now is NOT the time to let up. Hamas cannot get away with half-measures. Continued severe military and diplomatic pressure must be exerted in all possible ways until Hamas agrees to a complete and permanent cease-fire.

2) Hamas officials themselves MUST be the ones to make the announcement. They will attempt to get the Egyptians or Abu Mazen to do so, to make it seem that they themselves are not actually making concessions. This must be rejected forcefully. This somewhat resembles the situation of Germany in the 1920's: the military there persuaded the German public that the soldiers had been "stabbed in the back" by the politicians. The Army falsely claimed that it was winning the war against the Allies, and that if the politicians had not signed the Armistice, then Germany would have triumphed. Hitler and the German right used this argument to great effect in destabilizing and discrediting the Weimar regime. Hamas must itself, publicly, clearly proclaim the cease-fire. Anything less is unacceptable, and should be met with a new round of targeted killings of Hamas political figures.

3) For its part, Israel must continue to take vigorous action against settlers and thoroughly root out all unauthorized settlements. This action should be public and uncompromising. It will have two possible effects. First, it will demonstrate to the international community (and maybe even some Palestinians) that Israel is serious about fulfilling its commitments. Second and more important, it will serve for the next phase of the process: massive pressure on Abu Mazen and PA security boss Mohammed Dahlan to crack down severely on Hamas and remove their weapons. If they do not do this, then the road map is a dead letter.

 
[Eugene Volokh, 3:57 PM]
Harry Truman's history with executive orders and the Supreme Court: Phil Carter points this out, apropos the Gephardt spokesman's reference to the subject.

 
[Eugene Volokh, 2:00 PM]
Eric Muller has a question about the book business (in the context of his book about the World War II internment), at IsThatLegal. I don't know the answer, but I thought some readers might.

 
[Eugene Volokh, 1:58 PM]
Jeff Cooper on Gephardt: A generally very good post, though I think one comparison in the last paragraph isn't quite apt:

Gephardt's statement no more disqualifies him for office than does Bush's musing, in the wake of the 2000 Florida recount decision, that a dictatorship wouldn't be so bad, as long as he were the dictator.

Here's the ABC News blurb on that, from Dec. 19, 2000:

Earlier, Mr. Bush met with Federal Reserve Chairman, Alan Greenspan. The fed chief has been publicly skeptical of the Bush tax cut plan. But president-elect pushed that plan in meetings with leaders of both parties on Capitol Hill. He promised to try to work out differences with them on taxes and other matters, but also suggested there could be a little arm twisting. The atmosphere was definitely good-humored.

Mr. GEORGE W. BUSH (Republican, President-elect): I told all four that there were going to be some -- some times where we don't agree with each other, but that's OK, if this were a dictatorship it'd be a heck of a lot easier, just so long as I'm the dictator.

Doesn't quite sound like musing that a dictatorship wouldn't be so bad -- sounds like a bit of a joke ("the atmosphere was definitely good-humored") that a dictatorship would be a lot easier for a President than having to deal with Congress (an attitude that I'm sure lots of Presidents have shared). A quick search of news accounts reporting this -- CNN, the AP, the Atlanta Journal & Constitution, the Boston Globe, the Hartford Courant, the New York Post, the Cox News Service, the San Francisco Chronicle, even Geraldo Rivera -- all report that this was a joke. I heard Gephardt's line, and it didn't sound like a joke to me.

 
[Eugene Volokh, 1:27 PM]
Good news for discussion list moderators: The Ninth Circuit has just held (more or less) that under 47 U.S.C. sec. 230, discussion group moderators are immune from defamation liability for messages posted to their groups, if those messages were originally written by other people (whether group members or not) and then sent to the moderator to be forwarded to the group. This is true even if the moderators manually let those messages go through, or even if they manually posted them; and it's true even if the moderators are quite selective in deciding which messages to post. Under traditional defamation law, the moderators would be legally liable; but 47 U.S.C. sec. 230 limits online defamation liability in certain circumstances, and the Ninth Circuit held that this is one of those circumstances.

     What about bloggers? As I read the case, bloggers would likewise have immunity from libel law when they post messages that readers sent to them (so long as the reader intended for the message to be posted). I can't be completely sure of this, and recall that this is just a Ninth Circuit decision, and other courts may disagree; but this is what the opinion seems to suggest, since a blogger who posts messages from readers is not materially different from a list moderator who posts messages from readers. (Of course, the blogger would still be liable for any of his own commentary.)

     Thanks to How Appealing for the pointer to the opinion. Incidentally, the winning side (or, rather, the side that won almost completely) was represented by my friend Stephen Newman, now of Stroock & Stroock & Lavan.

 
[Eugene Volokh, 12:03 PM]
Equal criticism: A law professor e-mails InstaPundit the following:

On Gephardt, the better comparison is not Trent Lott, but John Ashcroft.

If you care about civil liberties, you criticize both Gephardt and Ashcroft (as you do).

For those lefty bloggers who refuse to criticize Gephardt, I'll just have to remember that when they criticize John Ashcroft, they wouldn't be doing so if Ashcroft were a Democrat -- that their own political bias is one of the things determining whom they consider OK to criticize.

     I sympathize with this point at some level. It's certainly good when people are fair-minded and clear-headed enough to criticize people on their side, and we do especially respect people who act this way. I certainly try to criticize conservatives and libertarians when I think such criticism is warranted.

     But I think it's a mistake to demand that bloggers be evenhanded in their criticism. Blogging is something that people do for fun. It has to compete with other things -- family, work, reading, sleep.

     And usually it's more fun to criticize your adversaries than to criticize your friends. I wish this weren't so, but I think that (at least for most people) it is. Sometimes one might do it out of a sense of duty, a feeling that people in each movement should police their own: That was one reason I complained (fruitlessly) about the Cynthia McKinney misquotes coming from conservative commentators. But the more one blogs out of duty, the more likely it is that one will just lose the desire to blog.

     So, yes, people's own political bias is one of the things determining whom they choose to spend their scarce time criticizing. (I take it the post above was imprecise in saying "consider OK to criticize"; if some left-wing bloggers choose not to criticize Gephardt, they probably think it's just fine to criticize him -- they just don't choose to do it themselves.)

     I praise people who overcome that bias, and do upbraid those on their own side when they need upbrading; and posts like that, I think, increase those people's credibility. Sometimes I'll even call on people to do that, and express regret that people aren't.

     But if someone decides that he'd rather be posting about something else, or for that matter doing something other than blogging, simply because criticizing someone on his own side isn't really that enjoyable, I wouldn't condemn him much on that score. Blogging about something -- taking time out of one's day to write something for free -- shouldn't be seen as an obligation. (There may be some exceptions, for instance, if the blogger had erred, he may be obligated to set the record straight, but they should be quite rare.) And while I expect each post to be accurate and fair to its subject, I don't expect bloggers to be evenhanded in their choices of which subjects to harp on.

 
[Eugene Volokh, 11:26 AM]
The Lost Maxims of Equity, with Latin versions: Gary O'Connor translates my Lost Maxims.

 
[Eugene Volokh, 9:41 AM]
Visitors yesterday: I think we set a new record for our blog, with eXTReMe Tracking reporting over 15,000 unique visitors. (BraveNet was down for part of the day, so its count is off.)

 
[Eugene Volokh, 9:03 AM]
Gephardt's office responds: ABC's The Note writes:

Some of the more reputable libertarian/law professor blogs are questioning a statement by Congressman Gephardt during Sunday's Rainbow Coalition forum in Chicago. "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day," is what he said.

Here's what Prof. Glenn Reynolds, a.k.a instapundit.com, said in response: "Either (1) Gephardt, despite all his years in Congress, has still failed to learn that you can't overturn a Constitutional decision by the Supreme Court with an executive order; or (2) Gephardt was in Full Pander Mode and hoped his audience wouldn't know better. Neither speaks very well for him."

The ball was nudged by UCLA's Eugene Volokh: LINK "Do we really want a President who thinks that the president has the power to overcome 'any wrong thing the Supreme Court does' using an Executive order? I know lots of people think various actions of the Bush Administration are unconstitutional; I too disagree with some of the administration's positions, for instance on the alleged power to detain all unlawful combatants (including U.S. citizens captured on U.S. soil) with no judicial review. I hope the Supreme Court agrees, and decides against the administration. But I'm pretty confident that if the Supreme Court does so decide, this Administration will comply with the Supreme Court's order." "Gephardt and Kucinich are promising that they'll flout those orders. Seems to me that they should be taken to task for this, and severely."

We asked the Gephardt campaign for a response.

"The fact that this question comes from libertarian law professors should speak for itself," spokesman Erik Smith wrote in an e-mail. "Dick Gephardt knows the law. The president can not overturn a Supreme Court decision. That's not what he said. He was simply expressing his commitment to diversity and his willingness to use the tools of his office to promote affirmative action programs to the fullest extent possible. It's important to remember that Harry Truman used an executive order to integrate the military."

     I'm flattered, but I don't think I'm quite persuaded. Harry Truman's executive order was very important -- but it had nothing to do with an attempt to overcome a contrary Supreme Court decision. It's hard to see how it's evidence that a President can successfully "overcome" Supreme Court decisions that prohibit things that he thinks are good. (The Court had ruled, 50 years earlier, that segregation was permissible, but it certainly didn't say it was mandated, and Truman's court order wasn't remotely a response to that decision. In fact, by the date of Truman's order, the Court had begun its path towards desegregation, see, e.g., Missouri ex rel. Gaines v. Canada (1938) and Sipuel v. Oklahoma (1948), so Truman's decision was actually quite consistent with the trend of Supreme Court decisions.)

     Furthermore, Gephardt was speaking about the University of Michigan affirmative action case -- a case involving a state university's admissions policy. What Presidential executive order could have possibly "overcome" a decision upholding the policy?

     More broadly, Gephardt said he'd "do executive orders to overcome any wrong thing the Supreme Court does." I'm not trying to stick him with a too literal interpretation of the "any," but I assume that he was at least saying he'd fight via executive order a broad range of the sorts of decisions that Democratic audiences would disfavor. So if the Court holds there's no constitutional right to an abortion, he'd issue an executive order to -- do what exactly? How would he overcome that "wrong thing the Supreme Court does" with an executive order? Or if the Court reverses Miranda, what precisely would he order? (He could of course order federal officials to follow the old rule, but federal law enforcement is a tiny fraction of all law enforcement.)

     So it seems that, given the Gephardt office response, Gephardt's statement was still wrong, though perhaps in a more traditional way: He was promising the audience something that he must have known he couldn't possibly deliver (an "overcoming" by Presidential executive order, addressed to federal employees, of a hypothetical Supreme Court decision that held unconstitutional a state university policy).

 
[Eugene Volokh, 6:17 AM]
Let's not get too clever: Rand Simberg offers an alternative explanation for Dick Gephardt's statement:

Dick Gephardt apparently did an oral-podiatral maneuver today, when he said (and according to C-SPAN, it's not out of context), "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

Instapundit says:

That's absolutely pathetic. Either (1) Gephardt, despite all his years in Congress, has still failed to learn that you can't overturn a Constitutional decision by the Supreme Court with an executive order; or (2) Gephardt was in Full Pander Mode and hoped his audience wouldn't know better. Neither speaks very well for him.

There's actually a third possibility, perhaps unthinkable for law professors. Perhaps he simply doesn't accept Marbury vs. Madison . . . .

What does he mean!? ask the blog readers.

Simply put, the precedent set by MvM has been accepted, but only by common consent. It's never really been seriously challenged. There is no doubt that such a challenge would constitute a constitutional crisis of the highest order, and would have the potential to result in the fall of the republic as we know it. But that doesn't mean that a president couldn't issue it. . . .

I got some e-mail from some readers making a similar point. (Rand may have been intentionally slightly fanciful in his conjecture -- I'm not sure -- but I think some of my readers were being serious.)

     This is an interesting theoretical argument for something that some hypothetical political candidate can at some point suggest. (My vague recollection is that Abraham Lincoln suggested something similar, though actually more modest, in response to the Dred Scott decision.) But it just doesn't fit these particular facts.

     First, remember that they were talking about the University of Michigan case -- a state case. A governor or some other state official might challenge Marbury (and Cooper v. Aaron and other such cases) by refusing to comply with a Supreme Court order in that case. But Presidential executive orders, which are orders to officials in the federal executive branch, have nothing to do with that (unless Gephardt meant that he'd issue executive orders to the federal marshals to refuse to any enforce any federal court order, in which case he chose some mighty odd words to express his meaning).

     Second, I'd think that if a presidential candidate were really arguing in favor of rejecting Marbury -- perhaps the most important decision in American constitutional law -- he'd have an obligation to do so a bit more clearly. Among other things, since both the Democrats and the Republicans these days seem to accept judicial review at least in principle (even if they don't like particular instances of it), it's highly unlikely that his audience would have understood the meaning that, according to the It's About Reversing Marbury theory, he was trying to convey.

     Third, I haven't been closely following Gephardt's various speeches, but I highly doubt that he wouldn't accept Marbury v. Madison when it came to, say, Roe v. Wade -- and even if he did reject Marbury in that context, the voters that he's wooing probably wouldn't. So that's another reason why I doubt that he meant that he just doesn't accept Marbury, or that his audience was likely to understand him that way.

     But, hey, if Gephardt really does take the view that Supreme Court decisions about state laws should be reversible simply by the President issuing an Executive Order, that's fine -- I just think the voters really ought to hear about that.

 
[Eugene Volokh, 5:38 PM]
Time warp: Apparently our future-dated posts are coming up on our archive page already; for some people, they seem to be coming up on the main page, though not for me. I guess it's time for us to finally switch to some other blogging software, but I've been too swamped to do it. Hope to change over and cut down on the glitches in the next several weeks.

 
[Eugene Volokh, 4:55 PM]
Does the Children's Internet Protection Act leave libraries free to unblock any constitutionally protected site? (Warning: Pretty technical legal nitpicking ahead.) Justice Souter's dissent express doubts:

[The statute] allows unblocking only for a "bona fide research or other lawful purposes," 20 U. S. C. § 9134(f)(3); see 47 U. S. C. § 254(h)(6)(D), and if the "lawful purposes" criterion means anything that would not subsume and render the "bona fide research" criterion superfluous, it must impose some limit on eligibility for unblocking.

I think Justice Souter is mistaken, and that CIPA allows librarians to turn off any site that doesn't contain obscenity or child pornography (the two categories of prohibited material at issue here, since Justice Souter is talking about access by adults). I think that's the right interpretation for three reasons:

1. Accessing constitutionally protected speech is literally a lawful purpose.



2. The word "other" suggests that bona fide research is a "lawful purpose"; indeed, the "lawful purposes" criterion is intended to include "bona fide research," and bona fide research is mentioned simply to stress that it's protected. That's a not uncommon sort of statutory phrase: If you read a statute that said "No person shall drive a car, motorcycle, or other motor vehicle on a sidewalk," you'd neither be terribly surprised by the redundancy, nor would you doubt that "other motor vehicle" literally does include any other motor vehicle.



3. Congress drafted the statute to block access to obscenity and child pornography, and the statute only requires libraries to install filters aimed at blocking obscenity and child pornography. It thus makes sense to interpret the statute simply as requiring that obscenity and child pornography remain blocked -- and that if other, constitutionally protected, material is erroneously blocked, then it may be unblocked.

Some of Justice Souter's other points are considerably more persuasive; there's some complexity created by the requirement to block "harmful to minors" material for children but not for adults; and of course I'm not saying that the statute requires librarians to unblock constitutionally protected material, only that it doesn't prohibit them from doing so. My point simply goes to Justice Souter's interpretation of the "other lawful purposes" clause.

 
[Eugene Volokh, 2:55 PM]
More on Israel and the Palestinians: My colleague Jonathan Zasloff writes:

A thorough, excellent piece by Amira Hass in today's Ha'aretz should be required reading. Hass has been covering the territories for nearly a decade now: she often takes a pro-Palestinian position, which is why those (like myself) who tend to support the Israeli position should always read her articles. Her piece today details a large part of the cease-fire negotiations between the Palestinian Authority and Hamas. I may begin to sound like a broken record on this issue, but here is a money quote from the end of the piece about the negotiations:

Sufian Abu Zaida, a senior official in Fatah and the PA, who has developed many friendly ties with Israelis, says to the members of Hamas, in his attempts to convince them to accept the idea of a cease-fire: "You must recognize the fact that the situation has changed. The world, led by the United States, has given Israel a green light to act against us by any means. It is impossible to say 'things can't be worse,' because Israel has proved that each time, it crosses another red line, which in the past we
thought it wouldn't cross. Tomorrow Israel can bomb the house of [Hamas elder statesman] Sheikh Yassin, or shell a mosque, in order to hit a senior wanted man, and the world will allow Israel to do so -- in the context of the
war against terror." In the opinion of the Palestinians, U.S. Secretary of State Colin Powell's speech in Jericho only strengthens Abu Zaida's assessments.

Hamas is responding to pressure: continual and severe pressure against them must continue if they are going to stop their attacks. It won't necessarily work. But what deterrence won't do, incapacitation might: continual infliction of damage on Hamas weakens their ability to operate and will eventually make it easier for responsible Palestinian leadership to take control.

 
[Eugene Volokh, 1:24 PM]
"We'll do executive orders to overcome any wrong thing the Supreme Court does": Daniel Levine points to this remarkable quote from Rep. Dick Gephardt, one of the Democratic presidential candidates:

The [University of Michigan] case was a main topic of discussion Sunday at a candidate forum sponsored by Jesse Jackson's Rainbow/PUSH Coalition.

"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day," Gephardt said.

The quote is so shocking that I think he may have been misquoted, or quoted out of context -- it's surely happened before. But if he was quoted in context, then this thinking is a very good reason not to elect him. If anyone has more details on the quote, I'd love to hear them.

UPDATE: Reader Neil Klopfenstein has just e-mailed me a link to the C-SPAN video. At around 43:45, Dennis Kucinich, another Democratic presidential candidate makes a very similar statement. Then at 44:40, Gephardt's rather short speech starts, and at 45:40, he makes the statement that the AP quotes, agreeing with Kucinich. It's entirely in context.

     Do we really want a President who thinks that the President has the power to overcome "any wrong thing the Supreme Court does" using an Executive order? I know lots of people think various actions of the Bush Administration are unconstitutional; I too disagree with some of the Administration's positions, for instance on the alleged power to detain all unlawful combatants (including U.S. citizens captured on U.S. soil) with no judicial review. I hope the Supreme Court agrees, and decides against the Administration. But I'm pretty confident that if the Supreme Court does so decide, this Administration will comply with the Supreme Court's order.

     Gephardt and Kucinich are promising that they'll flout those orders. Seems to me that they should be taken to task for this, and severely.

FURTHER UPDATE: Gephardt's office responded, and I respond in turn.

 
[Eugene Volokh, 1:10 PM]
May libraries filter adult access to the Internet? The American Library Association case doesn't really resolve this question (a question that has itself led to ligitation). ALA upheld the validity of a federal statute that essentially required libraries to use filters, but the decision rested on the assumption -- to quote Justice Kennedy's concurrence in the judgment -- that "on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay." This may or may not be an accurate assumption, but Justice Kennedy's and Justice Breyer's votes, which were necessary for upholding the statute (without them, there would have been only four votes for that), rested on it.

     But what happens if a library chooses, entirely on its own, to filter Internet access, and not to unblock filtered material or disable the filter? What if the library decides, for instance, that it wants to keep filtering nonobscene but pornographic material, or that it just doesn't have the time to bother with unblocking requests?

     Justice Kennedy and Justice Breyer would, it appears, be open to the possibility that this was unconstitutional. But Justice Stevens -- who dissented, and would have struck down the federal statute -- apparently wouldn't take this view. He specifically says that local libraries should have the option to engage in filtering, seemingly with no requirement that sites be promptly unblocked for adults:

[I]t is neither inappropriate nor unconstitutional for a local library to experiment with filtering software as a means of curtailing children’s access to Internet Web sites displaying sexually explicit images. I also agree with the plurality that the 7% of public libraries that decided to use such software on all of their Internet terminals in 2000 did not act unlawfully.

His quarrel is just with "the Congress of the United States [imposing] that requirement on the other 93%."

     So here's the breakdown:

Rehnquist, O'Connor, Scalia, Thomas	Uphold federal requirement	Would probably say that blocking by libraries would be constitutional even if they didn't have an "instant unblock for adults" policy, but this isn't completely clear
Kennedy	Upholds federal requirement	Open to possibility that blocking by libraries with no instant-unblock may be unconstitutional
Breyer	Upholds federal requirement	Similar to Kennedy
Stevens	Would strike down federal requirement	Apparently thinks blocking by libraries with no instant-unblock is constitutional
Souter, Ginsburg	Would strike down federal requirement	Think blocking by libraries with no instant-unblock is unconstitutional

That's why the decision is not much of a precedent as to whether individual libraries may install filters on their own, with no instant unblocking.

 
[Eugene Volokh, 11:10 AM]
Board of Education v. Pico: I expect that some commentary about the American Library Association case will rely on Board of Education v. Pico (1982), a case that held that even school libraries may not remove books because of political disagreement with their content, though they might decline to buy books on that ground.

     The problem with such an argument is that Pico actually didn't hold this. A 4-Justice plurality in Pico took more or less this view. Four Justices dissented. The vote that agreed with the plurality on the bottom line disposition -- to remand the case to the lower court -- was Justice White's, and Justice White specifically refused to express any viewpoint on the issue. Thus, there wasn't a majority to hold the exclusion unconstitutional; exactly as many Justices thought it was constitutional as the number that thought it was unconstitutional. Pico thus isn't a binding precedent for anything.

     For those interested, here's Justice White's opinion (some citations omitted):

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board's removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

"We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

"Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions."

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: "In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred."

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

 
[Eugene Volokh, 10:56 AM]
It's not balancing, it's flexibility: (Warning: This is likely to be not terribly helpful or interesting to people who haven't read the United States v. American Library Association opinion or who are unfamiliar with the Court's First Amendment caselaw.) Justice Breyer's concurrence in the judgment says that strict scrutiny should be inapplicable to subsidies such as the one at issue here, even when the subsidies require the recipient to restrict speech; instead, the inquiry should be "whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives." He then goes on to say:

This approach does not substitute a form of "balancing" for less flexible, though more speech-protective, forms of "strict scrutiny." Rather, it supplements the latter with an approach that is more flexible but nonetheless provides the legislature with less than ordinary leeway in light of the fact that constitutionally protected expression is at issue.

It seems to me that those two sentences don't really make much sense. Whether or not "balancing" is good, Justice Breyer's proposal is precisely the sort of proposal that is commonly thought of as "balancing."

 
[Eugene Volokh, 10:43 AM]
I'm done blogging about the race preferences cases for now, and I'm about to start reading the case upholding the Child Internet Protection Act, which requires federally funded libraries to filter Internet access.

 
[Eugene Volokh, 10:34 AM]
Candor: Chief Justice Rehnquist's majority opinion in Gratz writes:

Justice Ginsburg in her dissent observes that “[o]ne can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment . . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue.” She goes on to say that “[i]f honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” These observations are remarkable for two reasons. First, they suggest that universities -- to whose academic judgment we are told in Grutter v. Bollinger, we should defer -- will pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities. "

Both the Chief and Justice Ginsburg have a point here. I think the Chief's view on this is ultimately more sound, but I do think that the Gratz/Grutter combo will mean both more cheating and less transparency in the design of race preferences -- which may lead to less political accountability, since voters will find it harder to identify the true magnitude of race preferences, and more of the political acrimony caused by allegations of cheating and disingenuousness.

 
[Eugene Volokh, 10:30 AM]
Small schools vs. large schools: Today's decisions are good news for supporters of race preferences at small institutions (such as most graduate schools), but not so good news for supporters of race preferences at large institutions (such as many undergraduate colleges, especially public ones).

     Small institutions can afford to have relatively flexible preference systems, where each file is closely read and race is used in the context of that individualized determination. But large institutions have to screen many more applicants: If they can't set up a relatively mechanical process -- such as University of Michigan's 20-point bonus, or UCLA's pre-Prop. 209 (and pre-Regents Resolution) undergraduate system -- that sets up different tracks for different racial groups, or gives numerical bonuses to people of certain races, they'd need to invest much more time, effort, and money to get the racial mix that they want. Many universities will, I think, make that investment, because the support for race preferences runs very deep among many educational administrators. But it'll be much more work for them.

 
[Eugene Volokh, 10:22 AM]
California and Washington State anti-race-preferences policies remain unaffected: The Grutter v. Bollinger decision has held that the U.S. Constitution and federal law do not prohibit race preferences; but it certainly didn't say that such preferences are required. The Court specifically mentioned those policies as examples of permissible "experimentation" by states:

In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”).

Even without this mention, though, the conclusion would still have been the same: The Court was speaking only of the limits of the federal protection against race preferences; states may, if they choose, provide more protection.

     The California and Washington State anti-race-preference rules, embodied in the California Constitution and Washington statutes, therefore still prohibit race preferences by California and Washington universities. (I assume the same is so for Florida, but I'm not up on the details of Florida law, and I'm not sure how completely in prohibits race preferences.)

 
[Eugene Volokh, 10:18 AM]
Private university race preference programs are just as vulnerable as public university programs: The Supreme Court has confirmed that Title VI bars race discrimination by private universities that take federal funds (which means virtually all leading private universities) to the same extent as the Equal Protection Clause bars such discrimination by public universities. Therefore, private universities that use numerical point bonuses like the one struck down today in Gratz v. Bollinger are acting illegally. (Likewise, those that use more flexible systems like the one upheld today in Grutter v. Bollinger are not violating federal law.)

 
[Eugene Volokh, 10:09 AM]
Legacy preferences: Justice Thomas has a pretty forthright response to the "legacy preferences justify race preferences" argument:

Putting aside the absence of any legal support for the majority’s reflexive deference, there is much to be said for the view that the use of tests and other measures to “predict” academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to “merit.” For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called “legacy” preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a “true” meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation’s universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.

 
[Eugene Volokh, 10:06 AM]
Jack Balkin (whose views on race preferences are very different from mine) is also blogging about the Grutter and Gratz cases.

 
[Eugene Volokh, 10:03 AM]
The shame of it all! Just as Justice O'Connor deservedly praises the University of Michigan Law School as "one of the Nation's top law schools" (see several posts down), Justice Thomas says "Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School." And what's UCLA, chopped liver? True, we don't have the same exalted Top 10 status as Michigan, but U.S. News routinely ranks us only a spot or two down from Texas (the 2003 report put Texas at #15 and us at #16). Surely it's a virtual tie. I petition for rehearing, asking Justice Thomas to shift his threshold from top 15 to the obviously much fairer top 17.

UPDATE: Note also that in Brian Leiter's survey, we're tied for #14-16. (I must confess that the schools that Justice Thomas praises are all in the top 10, but Justice Thomas says top 15, and we'll hold him to that.) Naturally, this means that Brian Leiter's survey is much more accurate than the U.S. News survey.

 
[Eugene Volokh, 9:53 AM]
6-3 on the question of allowing some race discrimination in admissions: Much as I hate to say it, 6 Justices, and not just 5, would allow universities to treat some people differently from others based on race. Justice Kennedy's dissent makes it clear that he agrees with the majority on this general principle, though he would allow only a much smaller degree of this discrimination. "There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity."

     Incidentally, though some defenders of race preferences dislike the use of the term "discrimination" in this context, that's exactly what it is. As the Supreme Court has held, City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (opinion of Justice Stevens, joined by, among others, Justice Marshall), the "simple test" for what "constitutes discrimination" is whether a program "treats a person in a manner which but for that person's sex would be different" (in the context of sex discrimination), and the same, it seems to me, is equally true for race, religion, national origin, and so on. And "considering race as" even "one modest factor" in decisionmaking necessarily treats some people "in a manner which but for that person's [race] would be different."

 
[Eugene Volokh, 9:46 AM]
"Critical mass": It seems to me that Chief Justice Rehnquist's dissent in Grutter v. Bollinger is absolutely right on at least one point: Though the Court defended the law school policy on the grounds that it sought a "critical mass" of students of various racial groups in order to get "the educational benefits that diversity is designed to produce" -- rather than a "patently unconstitutional" attempt "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin" (what the Court called "racial balancing") -- it's hard to see how the policy was tailored to this "critical mass" goal.

     The law school was pretty clearly trying to get some (small) number of American Indian students, a different (larger) number of Hispanic students, and a still different (considerably larger) number of black students -- hard to explain if it really wanted "critical mass" of each group, which presumably would be pretty similar for those groups. The supposedly "compelling" benefit of diversity, after all, is that it "promotes 'cross-racial understanding,' helps to break down racial stereotypes, and 'enables [students] to better understand persons of different races,'" and the "critical mass" of each group is supposed to foster that. To accomplish that goal, you'd presumably need similar numbers of representatives of the various racial groups, not widely different numbers.

     Moreover, the numbers of students that the school was after were almost always very close to the fractions of each group in the admissions pool. So it seems that the law school really was after racial balancing, or at the very least that the policy is very closely tailored to the "patently unconstitutional" goal of racial balancing and not well tailored at all to the supposedly "compelling" goal of getting "critical mass" for "diversity" purposes.

 
[Eugene Volokh, 9:35 AM]
I'm reading the Court's opinions in the race preferences cases. One item stands out -- early reports suggested that the Court was setting up a 25-year limit on the duration of race preferences. (UPDATE: Justice Thomas's mostly dissenting opinion explicitly says so: "I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.") I don't think that's quite right. The majority opinion does say (citations omitted),

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.”

In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.

The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.”

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

(The Ginsburg/Breyer concurrence echoes this.) But this is hardly a legal command that the policies must cease in 2028. The 25-year time frame is an "expect[ation]" of when the "use of racial preferences will no longer be necessary" (under the majority's definition of necessity) to "further the interest" in educational diversity. But if 25 years from now universities want to continue their race preferences -- or defend new ones -- they can just say that, no, the use of racial preferences is still necessary, because things weren't quite as the Court has expected. The question will simply be what the Supreme Court in 2028 will think about that argument; and the Grutter "25 years" line won't really have much precedential weight in that situation.

 
[Eugene Volokh, 9:23 AM]
Another important victory for University of Michigan Law School: It has been officially -- and accurately -- called by the Supreme Court "one of the Nation's top law schools" (see today's Grutter v. Bollinger). The imprimatur ranks right up there with Creedence Clearwater Revival being officially labeled by Chief Justice Rehnquist as "one of the greatest American rock and roll groups of all time" (Fogerty v. Fantasy, Inc. (1994)).

 
[Eugene Volokh, 6:22 AM]
Officials who you think don't respect individual rights enough = mass murderers? Victor Rostoff disagrees with my Robespierre post:

VC, joins up on the French-bashing [links feel screwy, scroll down to "Role Models"], lamenting the fact that the French seem to celebrate Robespierre for his nondemocratic and otherwise problematic social ideals.

VC is one of my favorite blogs, and sometimes it evokes a powerful emotional reaction that stops me in my tracks---in this case it interrupted the Sunday AM gardening activities [yes, it's great to be a landowner in this wonderful country of ours]. Why is this French-bashing so problematic?

[1.] People who live in glass houses should not throw stones (or something like that). Segments of our country, including state governments, fly the confederate flag, an acknowledged symbol of slavery and resistance to the ideals of integration, equality and freedom. More importantly, we should not forget that according to some Americans, Robespierre bears a resemblance to a certain modern figure.....our very own Attorney General. We've definitely got some kinks to work out in the whole secrecy, due process, individual rights area [this is obviously subject to debate but the fact that a debate is going on is itself telling].

I much appreciate the poster's kind words about our blog, but here's a tip: That a government official doesn't, in your view, sufficiently respect civil rights doesn't make him tantamount to a mass murderer and the organizer of one of the prototypical modern state-sponsored terror slaughters. It doesn't even make him "bear[] a resemblance to him." (Incidentally, "the fact that a debate is going on is itself telling" of the fact that, no, Ashcroft is not like Robespierre.) Bill Clinton is not like Lenin, even though he supports more redistribution of the wealth than I'd prefer. John Ashcroft is not like Robespierre, even though he supports more government power than I'd prefer. When this sort of demonization (see Jane's Law below) starts, I think useful political analysis stops.

     As to the confederate flag, I am on the record opposing the display of the Confederate flag (see also this post); I don't think American government bodies should display the Confederate flag, and I think private people and organizations shouldn't display it, either, though I think the latter have a constitutional right to do so. Why did the poster assume that I supported the display of the Confederate flag? Or is the claim simply that no Americans are entitled to complain about French misdeeds, because some American government bodies engage in similar misdeeds? If that's so, then it doesn't make much sense to me.

 
[Eugene Volokh, 5:27 AM]
Sex in Australia: So I was looking at the pictures in the “Sex in Australia” issue of this magazine . . . . Well, OK, it wasn’t exactly a magazine; it was the Australian and New Zealand Journal of Public Health. And it wasn’t exactly pictures; it was really more tables. But all the articles did begin with “Sex in Australia:.” And two of the articles (de Visser et al., “Sex in Australia: Heterosexual experience and recent heterosexual encounters among a representative sample of adults,” vol. 27 (2003), p. 146, and Grulich et al., “Sex in Australia: Homosexual experience and recent homosexual encounters,” vol. 27, p. 155) support the claim that I’ve been blogging about over the last couple of months:

     The Hyper-Promiscuous Median Gay Male Theory -- the claim that most gay men have hundreds or even thousands of sexual partners, a claim that is often made in political arguments about gays in the military, gay marriage, and the like, and one that is also echoed by seemingly nonideological commentators (such as an early 1990s Masters, Johnson & Kolodny college textbook) -- is a myth.

     Of course, Australia is not the U.S., and there may well be cultural differences between Australian gay culture and U.S. gay culture. Still, the data (drawn from a random sample of 20,000 Australians age 16 to 59) seems interesting, and reinforces data I’ve discussed earlier:

	Median lifetime sexual partners	Median sexual partners in the last 5 years	Median sexual partners in the last year
Straight men	8	1	1
Bisexual men	11 female + 10 male	2 female + 3 male	1 female + 0 male
Gay men	32 male + 1 female	7	2
Straight women	3	1	1
Bisexual women	10 male + 2 female	2 male + 1 female	1 male + 0 female
Lesbian women	6 female + 4 male	1	1

     This is pretty close to the pattern that other randomly selected studies (the only ones that are potentially generalizable to the gay population) show: (1) Most gay men do have somewhat more sexual partners than straight men. (2) The ratio is in the 1.5-4 range (this study shows 4, two other studies that I’ve found that used random samples show a bit over 1.5 (GSS) and 1.5 to 3 (Laumann et al.)), and not in the 20-100 range that some people have claimed, and the absolute numbers are in the 10-35 range and not in the 250+ range. (3) There is a significant minority of gay men who have very many sexual partners; for instance, 5.7% of the Australian sample of gay men report 50+ partners in the last year (unfortunately, the articles don’t break it down beyond the 50+ range, so I can’t give more details), while the fraction for straight men is 0.1%.

     The study shows numbers that are higher than the other two studies; the GSS, for instance, reported that the median sex partner count for American gays was only 1/3 the median number reported in this Australian study, and Laumann et al. (which gave only averages, not medians) reported that the average sex partner count for American gays was only roughly 1/3 the average number reported in the Australian study. Perhaps Australian gay culture is indeed different from American gay culture, or perhaps one or more of the studies suffer from some measurement errors. Nonetheless, these scientifically conducted studies are much more consistent with each other than they are with reports of medians that are over 250, 1,160, or something similarly huge -- and note that all these much high numbers come from studies that are based on self-selected samples or worse (e.g., samples of gay men who were going to sexually transmitted disease clinics), from which one cannot properly generalize to the gay population generally.

     Why does this matter? Well, maybe it shouldn’t. But people do routinely cite the “male homosexuals have hundreds of sex partners” claim in political debates, so some people do think this is significant. And as I’ve said before,

Claims that "Male homosexuals have . . ." or "Most male homosexuals have . . ." or "The median male homosexual has . . ." are much more politically effective at justifying different treatment for homosexuals than claims that "Some male homosexuals . . . ." Many voters are open to the idea of treating a whole group based on what most of its members do; fewer are open to treating the group based on what a minority of the group does. Also, statements about mild differences in median sexual partners aren't terribly striking, but claims that, say, the median gay man has over 250 sexual partners in a lifetime makes gays seem in a way freakish and deviant, and makes it much harder for people to see gay sexual relationships as emotionally comparable to straight sexual relationships.

 
[Eugene Volokh, 4:24 PM]
The #1 conspiracy: A google search for "conspiracy" lists us as the first result.

UPDATE: Reader Michael Paranzino writes:

[W]hen I search “conspiracy” you come in at #6. Someone told me once that Google actually checks your cookie before it returns your search result, and modifies its results based on your habits.

Since you (naturally) spend a lot of time at your site, it moves up your site’s listing in your search results; but for me, who obviously does not spend as much time on your site as you do, you come in at a strong #6, but not #1. . . .

Maybe the explanation I have been given is faulty, but something must explain why you are #6 for me . . . .

Interesting; I don't know how google does this, but I guess we might only be #1 in our own eyes!

FURTHER UPDATE: Reader Harry Williams suggests an alternative explanation -- there are apparently at least three google databases, which are not completely in sync; one shows us as #1, and the other two as #6. This site conveniently shows the difference; just go there and enter "Conspiracy." This is the first time I've heard of this, and I don't know how google decides which database to use.

 
[Eugene Volokh, 10:26 AM]
If you want someone to read something on your Web page, it helps to copy and paste the text as well as including the specific URL. People often read their e-mail on relatively slow connections, so the time it takes to click on the link and load up the page can be a significant barrier, especially given that each e-mail has to compete for time and attention with others (and many people these days get literally hundreds of messages daily).

     Likewise, if you want someone to read a newspaper article, please include at least a key paragraph or two (or include the whole thing, if the site permits you to do that -- for instance, via an "e-mail article to a friend" button -- which would alleviate any possible copyright concerns). Just a suggestion for maximizing your messages' effectiveness.

 
[Eugene Volokh, 10:20 AM]
How outsiders and new statistical analyses are changing baseball: Matt Welch reports. I don't know much about this field, so I can't vouch for the accuracy or completeness of the account; but it's a fascinating read, and a reminder that (1) businesses that close their eyes to new information leave open huge opportunities for new competitors and that (2) these days, new information is easier than ever to gather, correlate, and disseminate.

 
[Eugene Volokh, 10:06 AM]
The urge to demonize: Megan McArdle has a great piece on this, and how it happened to some Republicans and Clinton, and now some Democrats and Bush. (Thanks to InstaPundit for the pointer.) The best summary is her line which she calls "Jane's Law" (hey, why not "Megan's Law")?

Jane's Law: The devotees of the party in power are smug and arrogant. The devotees of the party out of power are insane.

 
[Eugene Volokh, 12:52 AM]
Role models: InstaPundit blogs about McDonald's, but I'm more worried about Robespierre:

MCDONALD'S -- a force for good, even in France:

In order to counter the strike by its school canteen staff, the management of the Robespierre middle school in Epinay-sur-Seine ordered 160 meals from McDonalds to feed its students taken hostage (nutritionally speaking) by the strikers. The manoeuvre stunned the strikers who were counting on hungry protestations of the students to amplify their demands. One student declared, 'When can we do that again?'. The strike was called off this Friday.

Some teachers tried to block delivery of the meals. That'll win friends. The French strikes in general seem to be fizzling, which suggests that good sense may be breaking out.

Robespierre -- wasn't he the guy who ran the Terror? Or maybe this encyclopedia entry explains this:

A successful lawyer in Arras (1781–89), he was elected to the National Assembly (1789), where he became notorious as an outspoken radical in favor of individual rights. He became a leading member of the Montagnards in the National Convention. After calling for the death of Louis XVI, he led the Jacobins (see Jacobin Club) and the Committee of Public Safety (1793) in establishing the Reign of Terror, during which, as virtual dictator of France, he had former friends such as Georges J. Danton executed. Despite earlier support from the people of Paris, who called him "the Incorruptible," he lost his dominating authority and was overthrown and guillotined in the Thermidorian Reaction. Often regarded as a bloodthirsty dictator, he was later valued for his social ideals of reducing inequality and ensuring work for all.Though he "led the Jacobins in establishing the Reign of Terror," was the "virtual dictator of France," "had former friends . . . executed," and was "regarded" -- quite correctly, to the best of my knowledge -- "as a bloodthirsty dictator," apparently he's still valued for his social ideals. Okay then.