[Eugene Volokh, 9:53 AM]
Pay us more money, state judges order: Quite a remarkable story. Now it may well be the case that the state constitution does indeed entitle them to this salary increase, for complex reasons; but the procedure -- an order with apparently no notice, no hearing, no argument, no nothing -- and in a situation where the judges' own financial interests are stake, seems quite iffy. I realize that there may be exceptions to the conflict of interest rules where all or nearly all the potential authorized judges have the same conflict (the phrase "Rule of Necessity" bubbles up from the recesses of my brain), so maybe the conflict of interest isn't dispositive here. But put together all the striking aspects of the story, and it smells fishy.

     Oh, well, now I really am going.

 
[Eugene Volokh, 8:10 AM]
On vacation for several days, and then will be traveling for business for a few more: My posts will be light, though the guest-bloggers and my cobloggers will fill in. My responses to e-mail, though, will be nonexistent, and I'm afraid I might be so swamped when I return that I won't be able to respond to backlogged e-mail even then. My apologies for that.

 
[Eugene Volokh, 3:11 AM]
Guest-bloggers Dan Drezner and David Bernstein: I'm pleased to report that from today until next Thursday (the 31st), Dan Drezner (a political science professor at the University of Chicago, ddrezner -at- hotmail.com) and David Bernstein (a law professor at George Mason University, deliotb -at- aol.com) will be guest-blogging here. I think very highly of their work, and I hope that you will appreciate it as much as I do.

 
[Eugene Volokh, 8:21 PM]
Assassination and Executive Order 12,333: There's a memo on this subject (which I touched on yesterday) at here; it's by W. Hays Parks, who was then (1989) the Special Assistant for Law of War Matters to the Judge Advocate General of the Army. It's been cited as a leading authority by several articles on the subject, and strikes me as quite persuasive. The bottom line matches mine, though it provides far, far more analysis and argument for it: During wartime, killing enemy military leaders (and ostensibly civilian leaders who are involved in military command and control) is quite permissible under the Order, and is not treated as "assassination" (especially when it's done by soldiers acting in uniform).

 
[Eugene Volokh, 3:40 PM]
One last brief follow-up about IVF: A correspondent writes that, though IVF-born people are clearly fully human, "The prior question of what it means to be a human -- formerly only possible through the physical union of a man and a woman -- is deeply implicated by all assisted reproductive technologies."

     That just makes no sense to me; how could "what it means to be a human" possibly be affected by the location of the conception? First, as I understand it, it has always been possible to impregnate a woman by injecting sperm into her -- it doesn't require any advanced technology. I'm not sure whether a turkey baster would literally do the job, but I am pretty sure that it doesn't require vastly sophisticated tools.

     Second, what would we say about an argument criticizing Caesarean sections (not just their use in a particular case, but their availability more generally), as follows: "The prior question of what it means to be a human -- formerly only possible through vaginal delivery -- is deeply implicated by all assisted delivery technologies"?

     I take it our first reaction would be "No, it isn't, and why on earth would you say that it is?" Our second reaction would be "If your concern is that it's unnatural, I'd much rather take the unnatural life-saving technology over the natural death of the mother and the child." Our third, more detailed, argument would be "What it means to be a human depends on what people are like, how they act, what they think, and what their genetic endowment is, but not on whether they entered the world through a vagina or through an incision in the abdomen." Seems to me that nearly the same points (though with "natural death of the mother and the child" being replaced by "natural infertility of the mother") apply to changes in place of conception as to changes in means of delivery.

 
[Eugene Volokh, 3:30 PM]
IVF: I will have virtually no opportunity to blog further about this -- I'm absolutely swamped -- but I did want to follow up a bit, because some readers challenged me on my agreement (see a couple of posts down) that IVF hasn't changed our "idea of humanness and of our human life and the meaning of our embodiment and our relation to ancestors and descendants."

     I've seen a child who I know has been born via in vitro fertilization; and I'm sure I've seen dozens more as to whom I didn't know this. I suspect that all of you have done the same.

     No-one, to my knowledge, views these children as less than human, or differently human, or having a different relation to us than naturally born children. No-one, to my knowledge, views humanness any differently because IVF-born people exist. Next time you talk to someone, imagine that he was born by IVF. Would it remotely matter to your evaluation of his worth, his personality, or anything else that he was conceived in vitro rather than in utero? What possible difference could that make to how we should treat him? And if it makes no difference, then what possible difference does his existence make to our understanding of our humanness?

     I submit the answer is none. Some of my correspondents have urged that somehow IVF has somehow fostered, for instance, the sexual revolution, gay rights, lower childbirth rates in many European countries, or abortion. However, there is absolutely no evidence of this. The sexual revolution predated IVF, and I know of zero evidence that IVF has increased it.

     Likewise, I know of absolutely no evidence that IVF played any role at all in gay rights and lower European childbirth rates, and I know of no reason to think why a technology used overwhelmingly by married couples to have children (how much more pro-family-values can you get?) would have any effect on those movements. As I understand it, IVF generally does involve the culling of some fertilized eggs, so I can understand why people who oppose abortion would oppose IVF on those grounds, too; but abortion of course became constitutionally protected five years before IVF started, and I know of zero evidence that IVF at all accelerated the rate or social toleration of abortions.

     One correspondent pointed out that IVF has led to custody disputes about frozen embryos. I believe that this has indeed happened, in a very few cases. And the effect of those disputes on our "idea of humanness and of our human life and the meaning of our embodiment and our relation to ancestors and descendants" has been . . . . What exactly? To the best of my knowledge, utterly nil.

     So IVF hasn't really hurt people -- and I suspect that it has immeasurably enriched millions of lives. If two people having a child whom they want to have is wonderful, then how could it only be wonderful when the child is conceived in the womb, and not in vitro? If IVF did indeed cause some vast harms, then I can see why one might oppose it. But given that I have seen no evidence of such harms, it seems to me that we should applaud its existence.

     Some others have asked what I think of genetic enhancements, people breeding "super-humans," and so on. I don't have the time to go into this now, though my tendency is to think that many such genetic enhancements -- for instance, those that eliminate genetic disease, or increase disease resistance, or increase intelligence -- would be wonderful things, if of course they don't have unfortunate side effects (a big caveat, I realize). But there at least I can understand why people might think that intentionally changing the details of people's genes may in some measure change our idea of humanness (though I think that's a considerable overstatement). That possibility, though, would flow from the genetic modification, not from the location of the same old egg when it's fertilized by the same old sperm.

     Finally, some have pointed out that even if Kass was wrong as to IVF, he may now be correct as to cloning. Absolutely so; I think he's mistaken as to cloning, but his past errors certainly don't prove this. Nonetheless, I do think that the visible error of the past criticisms of IVF suggests that we should be skeptical about similar criticisms levied against other technologies today. This past error isn't by itself proof, but it is evidence, to be considered alongside the other evidence (some of which I've written about in the past on this blog).

 
[Eugene Volokh, 2:26 PM]
The latest smear: Slate has a quite remarkable column about Ann Coulter's Treason. Conservatives have been lambasting Coulter -- and, while I haven't read her book, people (including conservatives) whom I trust on this have said the lambasting is well-earned. But, according to the Slate piece (whose subtitle, remarkably, is "In her new book, Ann Coulter tells the unvarnished truth -- and makes the conservatives mad"), all this just shows how scummy conservatives are! The logic is perplexing, and I doubt that I can do it justice through the excerpts. But this seems to be the essence, from the last three paragraphs:

All Coulter has done is import this approach -- the flat-out accusatory style of hardball politics -- into the realm of serious political discourse, ignoring the preferred arts of indirection and innuendo. And that's why her critics are agitated. It all comes down to tact -- or tactics. It's OK to denounce a semi-fictional construct: a "Fifth Column" that opposes the Iraq War or "the axis of appeasement" or liberals who "hate" America and wish it ill. Or to imply, as William Safire did this week, that unnamed journalists pressing the WMD case are, "by their investigative and oppositionist nature," u handmaidens of Saddam.

But the indelicate Coulter has crossed the line, stating openly the message others push subliminally. Consider her notorious comment, following 9/11, that the solution to radical Islamists was for the United States to "invade their countries, kill their leaders, and convert them to Christianity." This met with an outcry that was, again, loudest from the right. Within days, National Review online dropped her column. (And Horowitz, to his credit, picked it up for FrontPage.) But no one, to my knowledge, has bothered to point out that her formulation was prescient -- right up to the eerie moment in April when Ari Fleischer was dodging questions about the evangelicals camped on the Iraqi border, poised to Christianize the Muslim infidels.

Ann Coulter may have committed "treason" against conservative good taste. But she's done the rest of us a favor. She has exposed the often empty semantic difference between the "responsible" right and its supposed "fringe."

     The heart of this smear against "the 'responsible' right," it seems to me, is the utter disregard of some deeply fundamental distinctions. Let's start with the last one, about "evangelicals camped on the Iraqi border, poised to Christianize." I well recall the furor about Coulter's column; I condemned the column myself in a conservative academic online forum. The chief criticism against her was that in context ("invade their countries, kill their leaders"), the phrase "convert them to Christianity" appeared to be a call for forcible conversion, a heinous act. Coulter defended herself by saying that she only called for voluntary conversion, but the tone of the paragraph:

We should invade their countries, kill their leaders and convert them to Christianity. We weren't punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. That's war. And this is war.

suggested something much harsher.

     The supposed link between the "responsible" right and the "fringe" here -- the indication of Coulter's "prescience" -- is that "Ari Fleischer was dodging questions about the evangelicals camped on the Iraqi border, poised to Christianize the Muslim infidels." I take it that these spooky evangelicals were trying to do what our tradition of religious freedom has long seen as a basic right: Urge people to voluntarily change religion. There are plausible arguments that the Administration should have strongly urged the evangelicals not to do this, as a matter of prudence and diplomacy; that's fine. But the tolerance for voluntary conversion and the call for something that sounded a lot like forcible conversion are utterly different. It is a smear to argue that they are fundamentally an "empty semantic difference."

     Likewise, there is a vast difference between saying that others are unintentionally helping the enemy and that they are committing treason, which is to say intentionally helping the enemy. The unfortunate fact is that some domestic dissent does help the enemy and hinder the war effort. It may on balance still be beneficial, as I've written in the past; and it is certainly constitutionally protected. But it's quite proper to point out that Saddam's forces, who are trying to kill our soldiers and reassert control over Iraq, will get bolder as war-related criticism of the Bush Administration gets stronger.

     What's improper -- and what conservatives accuse Coulter of doing -- is to paint sincere and well-intentioned differences of opinion (even when you think one side is wrong, and is unintentionally helping the enemy) as treason. Unintentional support for evil and intentional support for evil are very different charges. It's a basic part of decent debate that people ought not make the latter charge if the evidence only supports the former. But to the Slate author, this key moral principle somehow reduces to a matter of "tact or tactics."

     Likewise with the other items the Slate piece mentions. Charges of "appeasement," which amount to charges that someone is unwisely negotiating with evil regimes, are very different from charges of treason, which are that someone is intentionally taking the side of evil regimes. We condemn Neville Chamberlain for trying to appease Hitler, but we think him guilty of naivete and awful misjudgment, not treason. Charges of being a "Fifth Column" are charges of intentional betrayal -- but most conservatives on "the 'responsible' right" therefore save them for people who do seem to be taking Saddam's side. I note that the Slate piece actually gives no citations for such allegations. (As to charges that people "hate America," I do think they're thrown around too often by conservatives -- but again, I think "the 'responsible' right" doesn't apply them to "liberals" generally, and, again, the Slate piece gives no specific examples that one can evaluate more specifically.) And the other material from the Slate piece -- read it and judge for yourself -- likewise fails to support its concluding smear.

     To me and my friends on "the 'responsible' right," distinctions between voluntary and forcible conversion, and between accusations of inadvertent and unintended harm and intentional betrayal, are not just matters of "tact," "tactics," or "good taste." And when a writer implicitly admits that to him such distinctions are just ultimately "semantic," then it's hard to give much credit to the rest of his moral -- or logical -- judgment.

 
[Eugene Volokh, 11:39 AM]
In vitro fertilization, grave threat to human dignity: Science fiction writer and editor Ben Bova writes that:

[July] marks the 25th birthday of the first test-tube baby.

Louise Brown, the first human being to be conceived by in vitro fertilization, is a healthy, happy young woman who lives with her parents in England. Millions of babies have since been born by artificial insemination to couples (or even single women) who could not conceive normally.

It's hard to believe the uproar that the first test-tube baby caused. Pundits, religious leaders, politicians, and even some scientists warned that this was "playing God" and would lead to a moral breakdown of society.

Scientific American quoted Leon Kass, a biologist at the University of Chicago, who warned in 1978 that "the idea of humanness and of our human life and the meaning of our embodiment and our relation to ancestors and descendants" were at risk because of the first test-tube baby.

Fast forward to 2003. Test-tube babies are commonplace and the world hasn't self-destructed. But now people are pointing quaking fingers at the idea of cloning human beings.

"Cloning threatens the dignity of human procreation, giving one generation unprecedented genetic control over the next. It is the first step toward a eugenic world in which children become objects of manipulation and products of will." Who said that? The self-same Leon Kass.

The point is that every new capability in biology -- particularly a new capability that deals with the creation of children -- has been proclaimed to be wrong, evil or immoral by people who fear change. Yet today we live longer, healthier lives than any preceding generation of human beings.

Even the test-tube babies are getting along quite well, thank you.

Indeed. (Note: I haven't checked the original Kass quote myself; please let me know if there's evidence that the quote was misquoted, or taken out of context.) Thanks to Hit & Run for the pointer.

 
[Eugene Volokh, 11:10 AM]
D.C. tax lawsuit The Washington Post runs this story:

Attorneys representing 18 District residents, the D.C. Council and Mayor Anthony A. Williams (D), filed a lawsuit in federal court this morning in an unprecedented effort to overturn a ban on the city's ability to impose a commuter tax.

The suit argues that the ban is unconstitutional because all states have the right to impose a commuter tax, but that the District, whose residents have no representation in Congress, does not. Because the District cannot tax the income of non-residents who work in the city, the attorneys conten[d], D.C. residents are forced to pay higher taxes to support infrastructure used by all workers. . . .

"This is a discriminatory tax law without representation that violates the equal protection clause" in the Constitution, said Walter A. Smith Jr., executive director of the DC Appleseed Center, an advocacy group involved in the lawsuit.

Lois Williams, another attorney on the case, said that suburban and congressional leaders who have dismissed the suit out of hand "don't know anything about legal theories." . . .

     Well, I think I know a thing or two about legal theories, and it seems to me that the Constitution is quite clear: Yes, Congress has the power to govern the District (art. I, sec. 8), which includes the power to preempt any taxes imposed by the District government, which itself exercises only the power that Congress gave it. No, the District is not a State, and thus gets no representation in Congress. No, the Equal Protection Clause has never been understood, and ought not be understood, as eliminating this clear constitutional command.

     The current system is surely "discriminatory," and may or may not be unfair. But it's a discrimination that's created by the Constitution -- and thus cannot be unconstitutional. (Thanks to Capitol Hillblogger for the pointer.)

 
[Eugene Volokh, 10:45 AM]
California recall stuff: I know very little about this myself, but Rick Hasen, a law professor at Loyola of Los Angeles, knows this well, and has been blogging about it. He's generally anti-recall, I think, but his legal analysis seems quite objective.

 
[Eugene Volokh, 9:35 AM]
Reuters attaching people's bylines to politically incendiary stories they didn't write? That's journalist Deanna Wrenn's allegation, referring to this Reuters story, which carries her byline (here is what appears to be the original Reuters version that the journalist refers to below; that particular item doesn't include the byline, but it's entirely consistent with the journalist's story -- as I understand it, some papers include bylines with wire stories and others don't). Here's what the journalist writes in the Charleston Daily Mail:

This is from a story that Reuters news service ran this week with my byline:

"Jessica Lynch, the wounded Army private whose ordeal in Iraq was hyped into a media fiction of U.S. heroism, was set for an emotional homecoming on Tuesday . . . Media critics say the TV cameras will not show the return of an injured soldier so much as a reality-TV drama co-produced by U.S. government propaganda and credulous reporters."

Got problems with that?

I do, especially since I didn't write it.

Here's what I sent last week to Reuters, a British news agency that compiles news reports from all over the world:

"ELIZABETH -- In this small county seat with just 995 residents, the girl everyone calls Jessi is a true heroine -- even if reports vary about Pfc. Jessica Lynch and her ordeal in Iraq.

" 'I think there's a lot of false information about her story,' said Amber Spencer, a clerk at the town's convenience store.

"Palestine resident J.T. O'Rock was hanging an American flag and yellow ribbon on his storefront in Elizabeth in preparation for Lynch's return.

"Like many residents here, he considers Lynch a heroine, even if newspaper and TV reports say her story wasn't the same one that originally attracted movie and book deals."

What I typed and filed for Reuters last week goes on in that vein. They asked me if they could use my byline, which I had typed at the beginning of the story I sent, and I said that would be no problem. . . .

I hope the people of Wirt County have been too busy to notice the Reuters story, the beginning of which takes a tone I never would have used.

I'm not sure what reporter or editor actually wrote the story that has my byline attached.

Reuters did use one quote from the story I wrote last week in the final paragraphs of one of their earliest Lynch stories, which was sent out for publication early Tuesday morning.

By Tuesday afternoon, the quote was reduced to one sentence. Still, my byline appeared.

By Tuesday night, the quote was gone and Reuters was siphoning information from television reports. The beginning of the story was toned down. The part about "media fiction" was removed. But even then, my byline remained.

I understand that news wire services often edit, add, remove or write new leads for stories. What amazed me was that a story could have my byline on it when I contributed only a few sentences at the end -- and in later versions I didn't contribute anything at all. . . .

Apparently, when Reuters asked me last week if they could use my byline, they weren't talking about the story I wrote for them last week. They were talking about a story I never wrote.

That was the misunderstanding.

By the way, I asked Reuters to remove my byline. They didn't. . . .

If Ms. Wrenn is correct, then this is pretty shocking behavior for a news service, it seems to me -- basically, a blatant and knowing falsehood about the article's true authorship (and a libel of Ms. Wrenn, to boot, since it's making a false statement ["Deanna Wrenn wrote this"] that injures her reputation). Thanks to Chuck Simmins for the pointer.

 
[Eugene Volokh, 8:50 AM]
Treason: My friend and fellow lawprof Tom Bell has a very good TechCentralStation piece on the subject, describing the existing state of the law and speculating about how it may evolve in the coming years. Worth reading.

 
[Eugene Volokh, 3:35 PM]
Secret Service and the Ramirez editorial cartoon: Dan Simon defends the Secret Service investigation of the Ramirez editorial cartoon that I blogged about a day or two ago:

The Secret Service has an iron-clad policy of investigating all such depictions -- even those that common sense dictates are not serious threats. In this particular case, the cartoon was actually portraying the president in a sympathetic light, as a victim of a metaphorical assassination by political opponents. But the Secret Service launched a routine investigation anyway.

Why does the Service have such a rigid policy? Well, imagine if it were a matter of agent or managerial discretion within the service -- as Volokh evidently believes it should be -- to decide whether a given depiction of an assassination was plausibly a threat, and hence worth investigating. In no time flat, various political groups would start alleging that the Service's choices of which cases to investigate were politically biased against them (or against the nutbars allied with them). The Service would come under massive political pressure to "lay off" one type of threat after another, until the entire policy was in tatters, and routine investigations of oddball threats were abandoned altogether. Then one day one of those uninvestigated threats would turn out to be real, and accusations would fly about dangerous laxity at the Secret Service. . . .

I don't think this is quite right: It seems to me that the Secret Service, like other law enforcement agencies, has to have the discretion to distinguish possibly real threats from things that clearly aren't threats. Still, this struck me as a reasonable point, and one worth quoting; Simon also has some other interesting related thoughts in his post.

 
[Eugene Volokh, 2:24 PM]
Assassination ban: Reader Eugenio Labadie points to an AP wire story that says that the killing of Odai and Qusai Hussein violates the Executive Order that banned assassinations. Rep. Charles Rangel took the same view on Hannity & Colmes yesterday: "I really think that these are two of the rottenest bums that have ever been described to me, but do you know something? We have a law on the books that United States should not be assassinating anybody."
(I suspect he was using "a law" loosely, to refer to the executive order.)

     Here's what appears to me to be the current text of the relevant part of the order, from "Executive Order 12333 -- United States intelligence activities":

2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

     I don't know if there's been any authoritative interpretation of this order -- and remember that it's just an Executive Order, and to my knowledge violation of such orders with the approval of the Executive (i.e., the President) is not a crime or otherwise actionable -- but in any event, does it apply here? I can't imagine that the order was meant to apply, or was understood as applying, to the killing of the members of an enemy military organization in time of war. That's what you do in a war: Kill enemy soldiers. Sometimes you kill them in battle, sometimes you send special forces to kill them by surprise. Sometimes you kill the grunts, sometimes you kill the generals (and it's often both more effective and more just to focus on the latter).

     Odai and Qusai had been among the leadership of the Ba'athist regime with which we were at war. Remnants of that regime appear to still be at war with us, and I suspect that there was good reason to think that Odai and Qusai were working with those remnants. Can the Executive Order really be meant to prohibit that? Seems like that would be a very strange thing for an Executive to do.

     All this, by the way, assumes that our soldiers were sent in to kill Odai and Qusai; I'm not sure that this is so -- if they were sent to capture them, but there was a firefight and the soldiers had to kill the enemy in order to win the firefight (quite plausible, given accounts such as this one from the L.A. Times), then that's of course not an assassination at all.

     Incidentally, one might argue that because the Order is in a section on "intelligence activities," it should only apply to people working for the CIA and such agencies. I'm not sure that this alone will fly, because the order is pretty broad in its coverage -- it says "No person employed by or acting on behalf of the United States government," and our soldiers surely qualify as that. Rather, I think the order simply can't apply to trying to kill the enemy during a war, whether that's done by intelligence operatives or by soldiers.

 
[Eugene Volokh, 2:10 PM]
Constitutional distinctions that turn on the seriousness of an offense: A question for readers who are knowledgeable on constitutional law -- and one that's limited to what the Court has decided, not whether the Court should have decided it: Can you help point me to any cases in which the Supreme Court has either (1) refused to draw constitutionally significant distinctions between crimes based on their supposed harmfulness, or (2) been willing to draw such distinctions?

     Classic examples in which the Court has held that it can't reasonably draw such distinctions are Branzburg v. Hayes (refusing to provide First Amendment protection for newsgatherers' refusals to testify, even when the protection would supposedly be limited to trials of relatively minor crimes), Mincey v. Arizona (refusing to create a Fourth Amendment exception for searches of murder crime scenes, reasoning that murder can't be effectively distinguished from other crimes), and, to some extent, its recent Cruel and Unusual Punishment Clause jurisprudence. An example in which the Court has been willing to draw such a distinction is Welsh v. Wisconsin (considering the gravity of the offense as a factor in the Fourth Amendment exigent circumstances doctrine); another is Coker v. Georgia (holding that the death penalty may not be imposed for rape, though it could be for murder). Justice Brandeis urged a similar distinction in his Whitney v. California opinion, in which he reasoned that advocacy of very minor crimes shouldn't be punishable at all; and some of the "clear and present danger cases," especially the 1950s Communist cases, also purported to consider the magnitude of the danger, i.e., the seriousness of the urged crime, rather than just its likelihood and imminence.

     If you know of other such cases, can you please e-mail me about them (at volokh at law.ucla.edu)? I would distinguish, by the way, the cases that focus chiefly on the prosecution's effect on the *defendant*, such as the cases that decide when a jury is required, or when a lawyer must be appointed. I'm interested in the harmfulness of the offense as going to the government's interest in being able to act (e.g., subpoena someone, arrest them, search their property, lock them up for life), rather than to the defendant's interest in having the best procedures for defending himself against the charge. Thanks!

 
[Eugene Volokh, 11:46 AM]
Another great Stu's Views:

 
[Eugene Volokh, 9:30 AM]
Lynne Stewart opinion: Many thanks to Phil Carter for passing along the link -- it's here. Hope to read it and comment on it later.

 
[Eugene Volokh, 12:25 AM]
The elusive "Freedom to Read Amendment": Reason's Hit & Run writes:

Congressmen Sanders, Otter, and Conyers have proposed a Freedom to Read Amendment to the PATRIOT Act, which would revoke the power to investigate citizens' reading habits without probable cause -- one of the law's most heavily criticized provisions. The ACLU has set up a page from which you can send a free fax to your representative urging that he or she support the bill. So go click, and try not to think about how mindbogglingly depressing it is that we need a "Freedom to Read Amendment" in the United States.

I'm not sure what I think about this, largely because I have no idea what this Amendment would do. Reason doesn't link to its text, but it does link to the People for the American Way press release and the ACLU fax-your-representative page -- and neither of those link to the text, either. I tried searching for the text via google, and found some pages that praised the amendment; but the ones I checked don't seem to link to the text, either.

     Now maybe the amendment's text hasn't yet been finalized (though the ACLU says that the Congressmen "have proposed an amendment," which suggests that the amendment must exist somewhere). But if that's so, then isn't it a little early for people to be asked to fax in something that makes some pretty definite statements about what the Amendment would supposedly do, e.g., "The Sanders-Otter-Conyers Amendment would return legal standards and warrant procedures that were in place for libraries and bookstores before the passage of the USA Patriot Act"? And if the amendment's text is final, why not provide a link to it? (Or was it there, and I missed it?)

     In any event, if any of you know where I can find the text (I'll also try to do a quick LEXIS search for it when I get back into the office in the morning), please let me know. (And, no I don't think it's the same as the Freedom to Read Protection Act, which was introduced several months ago, though perhaps it's based on that.)

 
[Eugene Volokh, 6:31 PM]
Does federal law restrict bloggers' ability to endorse candidates? Stanford Professor Larry Lessig had Presidential candidate Howard Dean guest-blogging on Larry's blog. But now Larry writes:

The appearance by Governor Dean here has created lots of excitement, some stir, and a bit of anger. I’ve been requested by the University to move my blog to a personal server, which is fine and right given FEC regulations. . . .

I understand that Larry isn't objecting to this, but I do want to object, since the FEC regulations govern you and me and everyone else, and not just Larry and Stanford.

     I'm trying to figure out right now what the legal theory is here; but if the theory is that Stanford may not let its servers be used for blogs that endorse a political candidate -- or for blogs that just provide a candidate with a forum, since Larry didn't clearly endorse Dean -- then that theory is breathtakingly broad.

     First, it seems that it would apply equally to ordinary Web pages, op-eds posted on a faculty member's site, e-mail distribution lists, and the like.

     Second, it would apply to student speech as well as faculty speech.

     Third, it would apply to newspapers as well as blogs -- after all, how is Larry's conduct really different from the Stanford student newspaper endorsing a candidate, or letting a candidate write a column? (And if it is different, perhaps on the theory that the Federal Election Campaign Act exemption for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate" applies only to old media and not the Internet, then that's very bad, too.)

     Fourth, if the claim is that Stanford may not host this because it's a corporation, and its hosting is therefore an impermissible corporate expenditure, then America Online can't host it, either, can it? (The prohibition would be narrower if the legal theory was that Stanford can't host it because it's a nonprofit corporation, but I don't know why that would be the distinction under the Federal Election Campaign Act.)

     Fifth, all this would of course apply equally to sites that criticize candidates as well as endorse them.

     As I mentioned, I'm looking into this further, and it may well be that there's less here than meets the eye. But if the FEC regulations do indeed restrict universities from hosting Internet speech that supports or opposes candidates, then that's very troubling, and in my view unconstitutional -- just as it would be unconstitutional for the FEC to restrict newspapers from publishing speech that supports or opposes candidates.

 
[Eugene Volokh, 6:09 PM]
The wooden periodic table -- with samples: (OK, photos of samples, but apparently the owner really does have them.) It's really cool. Thanks to Mitch Sklar for the pointer.

 
[Eugene Volokh, 6:03 PM]
Patents and First Amendment law: Reader Tim Shell writes, citing this story:

Yahoo now owns a patent for positioning paid advertisments in search results. This is something Google does and Yahoo might be expected to attempt to force Google to stop this.

Does this patent violate the First Amendment's free press protections? Isn't Google or any other search engine free to publish their results however they see fit? Is charging a premium for well-positioned search results really any different from charging more for a more prominently placed ad in a magazine?

I'd consider this subject blogworthy and would be interested if you had any opinions on it.

     An interesting issue. I don't think there's a First Amendment problem here, because patent law is a content-neutral rule that only incidentally affects speech: The government isn't deciding which viewpoints or subject matters are favored and which are disfavored -- it's just giving people the ability to control a certain communication technology, without regard (on the government's part) to the content of the communications. The First Amendment is implicated, because patent law here does enable people to restrict others' communication; but because the law is content-neutral (and especially given that patent law leaves people free to communicate in lots of other ways), it's constitutional.

     Moreover, if the insight behind patent law -- that patent law provides an important incentive to invest in developing new technologies -- is sound, then we wouldn't want the First Amendment to preempt patent law here: Stripping communications technologies of patent protection would lead to less innovation.

     Now I'm not certain that patent law has this positive effect (though I suspect that it does), and there are good arguments that patent law (or the patent office) has recently gone too far in protecting business methods and computer software. This patent might well be an example of patent law going too far, though I really don't know. Still, this is a matter that First Amendment law leaves to Congress and to the Patent Office to decide.

 
[Eugene Volokh, 5:38 PM]
Judge Alex Kozinski on Bjorn Lomborg's The Skeptical Environmentalist: Judge Kozinski's Michigan Law Review book review of Lomborg's book is now up here. Much worth reading.

 
[Eugene Volokh, 4:23 PM]
Two counts in Lynne Stewart case dismissed: According to the AP,

A judge dismissed the two main terror counts against a civil rights lawyer and a translator on Tuesday, saying charges they conspired to support a terrorism organization were unconstitutionally vague.
U.S. District Judge John G. Koeltl left intact charges that attorney Lynne Stewart and two others conspired to defraud the United States and that Stewart made false statements. . . .

Stewart was charged last year with helping deliver messages from her client, Sheik Omar Abdel-Rahman, who is serving a life sentence for conspiring to blow up New York City landmarks and assassinate Egyptian President Hosni Mubarak.

Prosecutors say she and co-defendants Mohammed Yousry, an Arabic translator, and Ahmed Abdel Sattar, a U.S. postal worker, helped relay messages from the blind Egyptian cleric to the Islamic Group, a radical Egyptian-based terrorist group. . . .

The judge said the defendants were correct to argue that a law outlawing the mere use of phones and other means of communication without specifying what is illegal was unconstitutionally vague. . . .

I'm trying to track down the opinion itself now; if anyone has a URL, please e-mail it to me at volokh at law.ucla.edu.

 
[Eugene Volokh, 4:10 PM]
John Dingell vs. Ward Connerly: There's an interesting exchange of letters between the two on race preferences and other matters. Connerly, it seems to me, gets in some very effective (and generally quite sound) digs.

 
[Eugene Volokh, 3:48 PM]
Thorny Problems of Free Speech Law: I've finally prepared the reading materials for my Harvard seminar -- glad to have that out of the way. Should be a fun set of topics; the first five weeks will focus on:

1. When may courts restrict parents' speech in child custody cases, or make custody or visitation decisions based on the parents' speech?



2. When may the government restrict groups' or speech organizers' ability to choose who speaks for them, who can come to the group's meetings, or how the people can be paid? This issue is implicated by antidiscrimination laws, by child labor laws, and by attempts to prosecute pornographers on the grounds that they are pandering -- i.e., hiring people for purposes of prostitution.



3. When, if ever, may the government restrict speech on the grounds that it will offend a captive or otherwise unwilling audience?



4. When may the government punish false statements of fact (other than the fairly well-settled areas of libel law and fraud law)?



5. What should we think of the Oregon courts' experiment with creating a very different constitutional structure for their state constitution's Free Expression Clause? State courts are free to interpret their own constitutions differently from the way the U.S. Constitution is interpreted. (Sorry, I can't easily capture the Oregon framework in a sentence or two, except to say that in some areas -- e.g., obscenity, commercial advertising, fighting words, and others -- it's considerably more speech-protective than the federal framework.)

We'll also discuss my "crime-facilitating speech" question (though I still have to finish writing the paper that will serve as the basis for that class session). The remaining six weeks will be focused on the students' own papers. I'm much looking forward to the seminar -- should be a lot of fun for me, and, I hope, for the students as well.

 
[Eugene Volokh, 2:44 PM]
Is gay extramarital sex adultery? The Concord Monitor reports on a case before the New Hampshire Supreme Court that raises this question (in the context of a straight marriage, not a gay one, of course). I would have thought that the answer was surely yes, but I guess it's not so clear. (I did a quick search through the New Hampshire statutes and didn't find any explicit definition of the term.) Thanks to Andrew Sullivan for the pointer. (Thanks to How Appealing for pointing out that the paper is the Concord Monitor, not the Christian Science Monitor, which is what I had originally said.)

 
[Eugene Volokh, 11:51 AM]
Article about blogs for lawyers: Gary O'Connor and Stephanie Tai have just published an article on blogs for lawyers in the Journal of Appellate Practice & Procedure; it's available here.

 
[Eugene Volokh, 11:19 AM]
A bit more on ostensibly factual claims hiding normative judgments: Robert Light writes, in response to my "inconceivable post" below:

[M]y first and very cursory response would simply be that it IS accidental since nature means "generation, growth" (i.e. in the ancient Greek, the Greeks of course being those who invented the concept of nature, -- er, no, they discovered nature as that which happens/occurs in contradistinction to convention, "nomos"). And nature certainly does not intend for any one human being to be infertile.

I don't see how this works. It's not clear to me what it means for "nature" to "intend" something -- but if nature can indeed intend things, then of course nature intends 70-year-old women to be infertile. A completely natural, universal, and predictable process makes this so. If you see God as the author of nature and of natural processes, then presumably God intended menopause to happen, or else it wouldn't happen.

     Ah, one might say, but the woman was at one point fertile. Maybe, though I believe that there are some people who are born permanently infertile, through entirely natural processes. But in any event, the marriage between two 70-year-olds is a marriage in which the woman is infertile -- not accidentally infertile, but infertile as a result of a natural and universal process that would presumably, to Catholics, be divinely inspired and (again, if nature can intend things) naturally intended. And yet to Catholics, that marriage is still a sacrament, even though it is entirely, nonaccidentally, and naturally incapable of producing children.

     As to "nature" meaning "generation, growth" in Greek, I don't know my >ancient Greek, but I'm not sure how it is in any event helpful. As we know, nature includes both birth and death ("A time to be born, and a time to die"), both natural fertility and natural infertility (bees are natural, for instance, even though most of them are sterile). Am I missing something here? (Also, may I blog this message, together with my response?)

     More generally, I find this genre of philosophical argument -- which basically turns on definitional claims about the supposed "essence" of some thing or the supposed "intentions" of "nature" -- to be quite unhelpful, and generally misleading: It purports to turn on facts about the physical world, and to deduce moral judgments from those facts. But in reality, the foundation for the argument isn't fact; it's a morally laden characterization of the fact.

     Likewise for claims that other readers have made about how the true purpose of sex is obviously reproduction. This starts with a fact -- one thing that sex sometimes leads to is reproduction, and this has obviously been a tremendously important function -- but then makes an unsupported leap to a broader claim that this is somehow the one morally important and legitimate purpose. Sex, of course, has other effects: pleasure, for instance, and emotional bonding; both of these effects have also been quite important in human history, and continue to be important to humans. So the normative broader claim, about what the legitimate purposes of sex should be, doesn't really follow from the factual foundation. And yet the normative claim is often cast as if it itself were a factual assertion, which it isn't.

     I have nothing against moral argument -- I often make such arguments myself. But it seems to me that the moral claims should be clearly asserted and clearly defended, as the normative judgments that they are. What bothers me is when they are hidden behind supposedly factual claims that, on closer examination, aren't really factual at all.

 
[Eugene Volokh, 10:09 AM]
I sure hope this isn't so: The Drudge Report reports:

A LOS ANGELES TIMES comic Sunday that graphically showed President Bush being held at direct gun-point has raised concerns within the Secret Service, the DRUDGE REPORT has learned.

The shock cartoon by the paper's Michael Ramirez depicts the president's hands behind his back with a gun to his head -- assassination style -- as an unidentified man wearing a vest which reads "politics" appears ready to pull the trigger!

"We take all images such as this very seriously," a top secret service source who requested anonymity said from Washington. "Regardless of the politics behind any speech, images of the president, such as this, raise concern."

The sketch appears to be a take-off of a Pulitzer prize winning photo that memorialized the Vietnam war for the 60s Generation. It attempts to make the point that partisan politics are more of a threat to Bush than guerilla war. . . .

The cartoonist is obviously not trying to threaten the President's life; if the Secret Service is wasting its time on this (and I hope that the account is inaccurate), that shows pretty bad judgment on the part of its managers.

UPDATE: My hopes are dashed. The L.A. Times reports:

An editorial cartoon in The Times that depicted a man pointing a gun at President Bush prompted a visit to the newspaper's offices Monday by a Secret Service agent, who asked to speak to cartoonist Michael Ramirez.

The agent was turned away.

A Secret Service official said the inquiry was routine, according to Karlene Goller, an attorney for The Times who met with the agent and later spoke to an official in the agency's Los Angeles office. The government asks questions of anyone publishing material that might be construed as a threat against the president.

Goller said she met with the Secret Service agent, Peter J. Damos, in the newspaper's security office and told him he could not speak to Ramirez. After some discussion, Damos left.

Reached later by telephone, Damos declined to discuss the incident with a Times reporter.

Ramirez said Damos had called him earlier in the day and asked if he could visit. Ramirez said he assumed the call was a hoax, and jokingly said yes. "So when he showed up," Ramirez said, "I was completely surprised."

The cartoon, which ran in Sunday's Opinion section, was intended to defend the president, according to Ramirez. . . .

"President Bush is the target, metaphorically speaking, of a political assassination because of 16 words that he uttered in the State of the Union," Ramirez said. "The image, from the Vietnam era, is a very disturbing image. The political attack on the president, based strictly on sheer political motivations, also is very disturbing." . . .

I agree with the Secret Service that they need to investigate statements that might be threats against the President, even if it's not clear that the statement is a threat. That's why you investigate: To find out what an ambiguous statement really means. But here there was no ambiguity, nothing "that might be constued as a threat," at least by a reasonable person. Seems to me that the Secret Service should be focusing on real threats, not on this.

 
[Eugene Volokh, 9:11 AM]
Why election litigation is on the rise, and why that's not very good: Prof. Rick Hasen, a top election law expert, has an interesting column on this.

 
[Eugene Volokh, 9:10 AM]
Always check whether the intercom is on: Dan Weintraub of the Sacramento Bee promises juicy stuff to come:

. . . [A] bunch of [California] Assembly Democrats plotting budget strategy in a closed hearing room [didn't realize that the Capitol intercom system that normally broadcasts committee hearings was left on]. . . . [Y]ou will likely be hearing a lot about this tomorrow, and the gist is this: the Dems were speculating that a delay in adopting the budget would both hurt the Davis recall and help their effort to pass a ballot measure next year lowering the vote requirement for a budget from two-thirds to 55 percent. . . . There were hints that it might be in the Dems best interest to drag out approval of the budget this summer, even as they speculated that the Senate would soon reach a deal and send a budget to the Assembly. Scandal? No. But more than a bit ironic, given that the Democrats have been accusing the Republicans of delaying the budget for partisan motives. Look for more on this in the morning papers.

Interesting -- I wonder what will actually come out when the tape is made fully available. (Thanks to Rick Hasen for the pointer.)

UPDATE: This morning's L.A. Times does write about this:

Los Angeles Assemblywoman Jackie Goldberg and others discussed holding up the budget to dramatize the consequences and build support for a ballot initiative that would make it easier to raise taxes.

"Since this is going to be a crisis, the crisis could be this year," Goldberg said, according to a transcript. "No one's running [for reelection]. And maybe you end up better off than you would have, and maybe you don't. But what you do is you show people that you can't get to this without a 55% vote."

The ballot initiative would let the Legislature approve any tax increase with a 55% vote. The state Constitution requires a two-thirds majority. That means that under the current makeup of the Legislature, at least eight Republicans must join the slim Democratic majority for a tax increase to pass.

Fabian Nunez, also of Los Angeles, agreed. "If you don't have a budget, it helps Democrats," he said. . . .

Republicans noted that many caucus members have charged the GOP with holding the budget process hostage. Yet, those same Democrats are now caught on tape discussing ways to hold things up.

After about 90 minutes, a staffer interrupted to alert lawmakers that their meeting was not private at all:

"Excuse me, guys, you can be heard outside," an unidentified staff member said.

"Oh [expletive], [expletive]," Goldberg said. . . .

Democrats who attended the caucus session included Patti Berg, Eureka; Judy Chu, Monterey Park; Mervyn Dymally, Compton; Loni Hancock, Berkeley; Hannah-Beth Jackson, Santa Barbara; John Laird, Santa Cruz; John Longville, Rialto; Alan Lowenthal, Long Beach; and Patricia Wiggins, Santa Rosa.

Goldberg made no apologies about her comments with regard to the timing of a "crisis."

She said it was part of a discussion over whether it would be better to make deeper cuts this year, to show Californians the severity of the state's money troubles, or to disguise the problem this year and make more drastic cuts next year.

"It meant whether or not we do the things this year or next year that let the public understand how serious the situation is," Goldberg said. "They think if we skate by, it was all hyperbole up here.

"We're in a crisis," said Goldberg. "You don't have to precipitate one. The question is whether we should make that crisis happen now when it's really happening.... When you wait a year, you double the amount you have to cut.... Is it better to do it now or next year?" . . .

If anyone finds a place where the recording (or, better yet, the transcript together with the recording) is posted online, please let me know.

UPDATE: A reader writes:

It is unlikely that there is a tape of more than the last few minutes of the meeting you were referring to. It was not a regular committee meeting, so there would be no official tape; instead, it was a group of legislators meeting in a room where they thought they could speak privately -- a mistake, but there you have it.

It was not until later in the meeting, apparently, that Republican staffers realized the conversation was being broadcast over our "squawk boxes," at which point they began taping. Soon thereafter, the legislators were informed their meeting was being broadcast, uttered the understandable epithets, and closed up shop.

 
[Eugene Volokh, 6:19 AM]
Inconceivable: (Teaser: Though this post starts out as YAPAGM, yet another post about gay marriage, it actually has a slightly different payoff at the end.) Another recent message on gay marriage made me think a bit more about philosophical arguments, especially philosophical arguments based on fairly old sources. The author, who was described by another party, as being "extremely well schooled in Thomistic-Aristotelian metaphysics," made various arguments, culminating with:

Third, the Catholic Church permits marriages between infertile parties because infertility is only an accidental circumstance. Per se, the genesic act is perfected per Aristotelian principles, unlike sodomy, jerking off, etc., where the genesic finality (metaphysical) of the faculty is vitiated ab initio.

     My first reaction was, apropos the term "accidental," "I do not think that word means what you think it means." As I've mentioned before, there's nothing at all "accidental" about many kinds of infertility, especially the infertility of post-menopausal women. This infertility is the result of a predictable and universal event (or at least nearly universal -- for all I know, there might be a very few women who naturally never go through menopause even though they live a normal lifespan, but that has to be staggeringly rare). I assume that from a Catholic perspective, this event (menopause) is authored by God, so there's no accident there. There's nothing "accidental," in the normal sense of the English word, about it -- just imagine your reaction if a friend of yours told you "I married this 70-year-old woman, and, what do you know, it turns out that by sheer accident she's infertile." If anything, fertility would be the "accidental circumstance" where marriages with post-menopausal women are concerned.

     The Catholic Church, though, as I understand it, doesn't frown on marriages between 70-year-olds -- in fact, I take it that it treats them as a sacrament. It may well have perfectly cogent reasons to do so and yet reject marriages between homosexuals, which are just as infertile as marriages between 70-year-olds. But the claim that "infertility is only an accidental circumstance," at least in normal modern English, is not such a reason.

     Now to the philosophy: It may well be that the word "accidental," in "Thomistic-Aristotelian metaphysics," does not mean what we think it means. I suspect that it refers to a subtly different concept than we think of as "accidental," or perhaps even a radically different one (I set aside whether this is a sensible concept, because that turns out not to be germane to my ultimate point here). Nor should this surprise us. The legal term "actual malice" doesn't mean "actual malice," to the consternation and confusion of many law students and even more laypeople. The mathematical term "rational number" doesn't refer (and was never intended to refer) to the most common English-language sense of "rational." There's nothing inherently improper when a complicated system of reasoning, analysis, or description uses terms in specialized senses.

     But users of this system should be careful to recognize that these specialized senses make their arguments unintelligible to outsiders. Sometimes that doesn't matter much, for various reasons. But if the system is being used as a source of rhetoric -- of argument that is meant to persuade people, including people who are not trained in the system -- then this specialized terminology can weaken the system's influence.

     Those who are "extremely well-schooled" in the system might accidentally forget that others aren't that well-schooled in it. (This is one reason why lawyers sometimes accidentally use legalese even when they're consciously trying not to: Many legalese terms don't seem like legalese to lawyers; they just seem like the normal way of speaking.) And even if these extremely well-schooled people are speaking to insiders (e.g., Catholics who have at least some exposure to the specialized lingo), those insiders may be so impressed by the argument of the experts that they'll just blithely quote it to outsiders, as it was quoted to me. The quoter expects the argument to be a knock-down winner -- after all, it is born out of a tradition that includes Aristotle and Aquinas, and was repeated by a great scholar. But the listener is entirely unimpressed: He literally speaks a slightly different language than the specialized language in which "accidental" doesn't quite mean "accidental."

     So I suppose that this is a reminder to all who are proud to have access to a deep and complex source of specialized knowledge, whether the Catholic tradition, the Talmudic tradition, the common-law tradition, objectivism, Marxism, deconstructionism, or for that matter theoretical physics: No matter how much you value this discipline's specialized language, when you want to persuade people, you should speak their language, not your own.

 
[Eugene Volokh, 5:31 PM]
A bit more on older drivers: Reader Jeff Bishop responds to my post below, by saying:

"However, drivers who are above 70 pose no more of a danger than other drivers, and less of a danger than most. Why? Because they drive less: If you count crashes per licensed driver, and not per mile driven, you'll find that this number is relatively constant, and quite low, for all listed ranges from 55 up."

Isn't that a little like pointing out that far fewer people die from crack overdoses than from alcohol poisoning, and concluding that crack must be safer than alcohol?

Not really. As I understand it, far fewer people die from crack overdoses than from alcohol poisoning because far fewer people use crack than use alcohol. But that's not so as to older drivers: The relatively low rate of crashes per older driver does not flow from their being fewer older drivers (since of course the rate is per older driver). Rather, it comes from older drivers engaging less often in hazardous activity, even though that activity is more hazardous when they do it than when others do it.

     The better analogy is: Would you rather have someone next door who drinks once a week, and gets so drunk that he becomes a menace to his neighbors every 50 times that he drinks (i.e., once a year)? Or would you rather have someone next door who drinks every day, and gets so drunk that he becomes a menace to his neighbors every 350 times that he drinks (i.e., once a year)? The answer is probably that both are equally unpleasant. The latter may handle his liquor better than the former -- but because he drinks more often, the harm to you is the same.

     My correspondent also writes:

Also, the social utility of allowing a given old person to drive is probably much lower, since he is more likely to be retired.

That is one of the plusses of measuring crashes per mile driven: If we take away an average 27-year-old's driver license, we'll prevent twice as many crashes as if we take away an average 82-year-old's driver's license -- but we'll also be decreasing the 27-year-old's productivity in the workforce. If one thinks that the net social benefit of driving is roughly proportional to miles driven, because that captures the value of driving to work, driving for work, driving to school, and so on, then we should be looking at accidents per mile driven rather than accidents per driver.

     At the same time, I think that there's more to having a car than social productivity; there is also a substantial value to personal independence, and taking away a person's driver's license can dramatically reduce that, especially in Los Angeles and very many other places like it. I realize that there are countervailing values, too, such as human life and limb; when someone becomes dangerous enough as a driver (I say "dangerous enough" because we're all dangerous in some measure), we may therefore be justified in taking away his license. But the costs of such a loss can't be captured solely by focusing on the economic production that is helped by the driving, or on miles driven as a rough proxy for that economic production.

 
[Eugene Volokh, 3:49 PM]
How dangerous are those older drivers, anyway? Reader Gregory Tetrault points to this study, which suggests that:

1. • Drivers who are above 70 are worse drivers, on average (per mile driven) than 30-to-70-year-olds (the average crashes per mile driven are pretty constant in the 30-to-70 age ranges);
   • drivers age 70 to 74 are a bit worse than 30-to-70-year-olds, though better than 25-to-29-year-olds;
   • drivers age 75 to 79 are halfway between 20-to-24-year-olds and 25-to-29-year-olds;
   • and drivers 80 and above are worse than 20-to-24-year-olds, though much better than 16-to-19-year-olds.
   "Bad" is measured by the number of crashes reported to the police (again, per mile driven), not fatal crashes; as reader Gregory Tetrault points out, old people are less likely to survive serious crashes, so counting fatal crashes per mile driven would measure the dangerousness of old people to themselves (and possibly to their passengers, who are more likely to be old) more than it would measure their dangerousness to others. I'm now tracking down a paper that purports to measure fatality risk imposed on others by older drivers, but I don't yet have it.



2. However, drivers who are above 70 pose no more of a danger than other drivers, and less of a danger than most. Why? Because they drive less: If you count crashes per licensed driver, and not per mile driven, you'll find that this number is relatively constant, and quite low, for all listed ranges from 55 up. A 30-year-old is thus much more likely to get into a crash than an 80-year-old -- and, one might therefore say, is much more likely to be a danger to you -- simply because he's out on the road more.

What you do with these numbers is up to you; there are pluses and minuses to either measure of risk. But this does suggest that statements such as "80-year-old drivers are, on average, more likely to be a danger than other drivers" are at least incomplete.

     My friend Glen Whitman, an economics professor, has some more on the L.A. Times article that prompted my earlier post on this subject.

 
[Eugene Volokh, 3:17 PM]
Another license plate story, or maybe it's a computer programmer humor story, but since I'm a computer programmer, I like those. This is from reader (and former user of my HP 3000 software) Michael Greene:

After I quit working on an HP3000 . . . I wrote video games for a few years. The target machine was an Atari VCS which had a 6502 microprocessor. The coding was all done in assembler and if you looked at any page of code, you would more than likely see several XOR 'FF' instructions. Lots and lots of bit testing took place and that instruction was indispensable. In any event, a friend who had made a pile treated himself to a new Porsche, and chose XOR FF as his plate.

A few weeks later, he got a note from the DMV rejecting the request. Some clerk somewhere figured he was trying to pull a fast one and sneak a sexual allusion onto his plate. He took a day off work, drove up to Sacramento and confronted the nay-saying clerk with a 4" thick listing of his work.

He got his plate. . . .

 
[Eugene Volokh, 10:28 AM]
World's shortest joke: My friend Jack Schaedel reminded me of this one a couple of weeks back. It's two words long:

Pretentious? Moi?

 
[Eugene Volokh, 9:22 AM]
Unequal enjoyment: Several days ago, I pointed out that the Sixth Amendment requires not just that the criminal defendant have certain rights, but also that he enjoy them:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Reader Terrence Berres points out that this need not be true for all the trial participants, though; see Keplin v. Hardware Mutual Casualty Co., 24 Wis. 2d 319 (1964):

We have examined the pages of the record cited as illustrative of impatience and boredom by the court with the plaintiffs' evidence and fail to find any such impatience or boredom, much less error. While a trial judge should conduct a trial free from prejudicial error, there is no requirement he enjoy it.

How sad! But maybe in criminal cases, where the Sixth Amendment rights apply, the rule is more fair, and the judge, the prosecutor, and the witnesses must have a grand old time with the defendant's constitutional rights, too.

 
[Eugene Volokh, 8:14 AM]
License plate puzzle: Saturday, I saw this license plate on the road:

GHUKET

What does it mean? I think I've guessed, though I didn't confirm it with the car's owner. Don't bother googling it -- the query yielded exactly one page (though it will yield more once this post is spidered), and though I can't understand what it means (it's in German), it doesn't seem too promising. My proposed answer is here.

UPDATE: Readers Gary O'Connor and Carter Wood report that the German "ghuket" is a term from late 19th century dialent spoken in Wittenthal, Baden, Germany -- it's apparently a form of "gucken," which means "to look" or "to see." No, I don't think that this is the likely explanation for the license plate.

 
[Eugene Volokh, 7:29 AM]
Uh-oh: Reader John Anderson points to this New York Daily News story (though keep in mind the usual warning not to believe everything you read in the papers; it's possible that the newspaper materially erred here, though I've heard no specific evidence of that):

Angela Lipsman is a really smart kid, but a really, really dumb rule is keeping the 15-year-old from getting a college degree.

Angela, who skipped high school and went straight to college last year, has earned her associate's degree and is on her way to a bachelor's -- but she can't have the sheepskins because she never got a high school diploma.

Even worse, the gifted girl's proud dad is being investigated by child protective services for alleged educational neglect -- for letting his daughter go to college.

"It's not fair," said Angela, who has a 3.84 grade point average and 71 credits from Borough of Manhattan Community College and Fashion Institute of Technology. "I'm still going to school and I'm still getting an education."

The hard lesson came from an Albany judge who ruled against Angela's age-discrimination suit challenging the state Education Department's edict that kids have to stay in school until age 16 and can't get general equivalency diplomas until they turn 17. . . .

"It's very demoralizing," said [Angela's father, retired teacher Daniel] Lipsman, who vowed that he'll "go to prison before my daughter goes to a city high school." . . .

Fortunately, "Schools Chancellor Joel Klein offered hope to Angela, who recently learned she has enough transfer credits for an associate's degree from Albany-based Excelsior College. 'We are evaluating the student's college credits to determine whether the credits may be applied toward a high school diploma,' Klein said in a written statement." So maybe some government official will actually show some sense here after all.

     I have a personal stake in this being resolved in Lipsman's favor, because it turns out that I'm in a similar position: I actually technically dropped out of school at age 12, in order to go to college. In fact, I have neither a high school degree nor a GED -- and despite that, they're actually letting me teach our nation's youth! Shocking, I know, but I hope the Authorities will let that slide.

 
[Eugene Volokh, 6:31 AM]
Bad drivers and bad statistics: Following the death of 10 pedestrians who were hit by an 86-year-old driver who apparently lost control of his car, people have been talking again about imposing more requirements on older drivers. This might or might not be a good idea; I don't know enough about the subject to have an informed opinion. But the argument from this L.A. Times article struck me quite weak:

Here in New Hampshire, . . . the state strictly enforces one of the country's toughest laws governing older drivers [which apparently compels "anyone 75 or older to take a road test when renewing a driver's license"]. . . .

[Elvin] Frame spent his 76th birthday at the motor vehicles office here this week, taking the road test required of all drivers his age . . . . Statistics suggest that the law affecting every New Hampshire driver "reaching his or her 75th birthday" has been successful. Granite State motorists over 70 were at fault in 13 fatal crashes, 11% of last year's total, according to state figures. Nationally, drivers over 70 were responsible for 13% of last year's traffic fatalities."

Is there really a significant difference between this 11% and the nationwide 13%? Had there been two more New Hampshire traffic fatalities caused by over-70 drivers (out of the over 100 total traffic fatalities in New Hampshire), the averages would have been identical. These don't seem terribly probative numbers to me.

     Moreover, it's not even clear what the numbers are for the drivers who are affected by the law, which is limited to drivers over 75, not over 70. Finally, the law has been in effect, according to the article, since 1955. What have the statistics been in other years? Is the fraction of traffic fatalities caused by older drivers consistently lower in New Hampshire than in the nation as a whole? Or was this past year just a statistical blip? The article doesn't tell us. (I suppose it's possible that the traffic fatality data has only been broken down by age of the driver at fault starting this past year, but I doubt it, and the article doesn't say anything to this effect.)

     These sorts of numbers may seem impressive, but they really mean very little, especially when they (1) represent just one year, (2) show very small changes of the sort that can easily be caused by chance, and (3) don't even purport to measure the precise group that the law affects (over-75-year-olds). Even if none of these problems were present, we'd still have potential problems flowing from potential confounding factors (perhaps New Hampshire drivers are somehow different from the average American driver in other ways) -- but with these problems, the statistic, I think, is worse than useless.