The Volokh Conspiracy

My friend Glen Whitman (Agoraphilia) writes this, apropos the debate:

I was amused by the following juxtaposition:

(1) Within 5 minutes of the debate's opening, they were openly discussing the need to expand the assault weapons ban to include some handguns, and you had to argue against full-on gun prohibition.

(2) Toward the end of the debate, Scher called gun owners "paranoid" for thinking that minor gun restrictions would lead to full-on gun prohibition.

Indeed.

A few links you might find interesting:

1. Copies of original historical sources on the Second Amendment.

2. My testimony on the Second Amendment.

3. A list of people and organizations who have called for broad bans on guns, or on handguns. This is the reason I'm skeptical of claims that "no one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed."

4. While we're talking of slippery slope fears — and, hey, you've made slippery slope arguments, too, whether you're liberal, conservative, or libertarian, you might just make them on different subjects (for instance, abortion, privacy, free speech) than others do — here's my article on the subject, plus a shorter version that I cowrote for Legal Affairs. It's a scholarly piece, not a political one; and, trust me, there's something in it for people all over the political map.

5. In case we get into the perennial assault weapons debates, here's a quote from Tom Diaz of the Violence Policy Center, NPR, Mar. 11, 2004: "If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference one way or another in terms of our objective, which is reducing death and injury and getting a particularly lethal class of firearms off the streets." Here's one from Charles Krauthammer, Wash. Post, Apr. 5, 1996, at A19, who is a proponent of a total gun ban:

   Its [the assault weapons ban's] only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation . . . . De-escalation begins with a change in mentality . . . . The real steps, like the banning of handguns, will never occur unless this one is taken first . . .

   And here's a recent source that makes clear that (1) assault weapons "were used in only a small fraction of gun crimes prior to the ban: about 2% according to most studies and no more than 8%" (PDF page 7) and (2) the differences between assault weapons and other guns are in large part cosmetic (things like whether it has a bayonet mount, or a folding stock) (PDF page 11).

I should be on Air America at 5:15 Pacific time today, debating gun control with Bill Scher (Liberal Oasis).

te-jik points to this New York Times Magazine interview with a Yale economics professor (thanks to Clayton Cramer for the pointer):

[Q:] As a professor of economics at Yale, you are known for creating an econometric equation that has predicted presidential elections with relative accuracy.

[A:] My latest prediction shows that Bush will receive 57.5 percent of the two-party votes. . . .

[Q:] Why should we trust your equation, which seems unusually reductive?

[A:] It has done well historically. The average mistake of the equation is about 2.5 percentage points.

[Q:] In your book "Predicting Presidential Elections and Other Things," you claim that economic growth and inflation are the only variables that matter in a presidential race. Are you saying that the war in Iraq will have no influence on the election?

[A:] Historically, issues like war haven't swamped the economics. If the equation is correctly specified, then the chances that Bush loses are very small.

[Q:] But the country hasn't been this polarized since the 60's, and voters seem genuinely engaged by social issues like gay marriage and the overall question of a more just society.

[A:] We throw all those into what we call the error term. In the past, all that stuff that you think should count averages about 2.5 percent, and that is pretty small.

[Q:] It saddens me that you teach this to students at Yale, who could be thinking about society in complex and meaningful ways. . . .

It saddens a New York Times interviewer that an economics professor is teaching students about what he thinks is a sound scientific theory. Not that the professor is wrong, if he is (which would indeed be cause for sadness). Not that voters are so focused on certain matters that their behavior is so predictable (which some might approve of and some disapprove of). She's sad that the professor is teaching students about such behavior. Funny, I thought that understanding facts (if they are facts) about human behavior is a meaningful addition to one's thinking about society, even if they are facts that New York Times reporters don't much like.

Of course, this also misses the fact that each class in a university is supposed to focus on a particular subject, not deal with society in all its complexity and depth of meaning. Doubtless students learn about lots of other aspects of society in other classes, which may intentionally omit econometrics and focus on other matters. Adding an econometric analysis into the mix gives students a more complex and meaningful picture of society than would be the case if one excluded this analysis.

Oh, and here's something from later in the interview:

[Q:] Are you a Republican?

[A:] [Arch game theory humor omitted. -EV]

[Q:] I don't want to do game theory. I just want to know if you are a Kerry supporter.

[A:] Backing away from game theory, which is kind of cute, I am a Kerry supporter.

[Q:] I believe you entirely, although I'm a little surprised, because your predictions implicitly lend support to Bush.

[A:] I am not attempting to be an advocate for one party or another. I am attempting to be a social scientist trying to explain voting behavior.

[Q:] But in the process you are shaping opinion. Predictions can be self-confirming, because wishy-washy voters might go with the candidate who is perceived to be more successful. . . .

Maybe the journalist is just trying to be provocative here, and the questions don't reveal her own thinking. Still, it seems a bit odd that the questions (1) express surprise that a scholar who is trying to describe the world would reveal (not just in political editorials, but in his scholarship or in his teaching) a truth that he himself finds politically unwelcome, and (2) implicitly criticize the scholar for expressing this truth (since this truth may, heaven forbid, influence people to vote in a way that he dislikes).

UPDATE: Reader Jack Sullivan writes: "If you read Solomon's interviews at the front of the magazine on a regular basis, you'll notice that the questions tend to be fairly jokey (think Jon Stewart or David Letterman type ironic attitude). Certainly not much cause for hand wringing." If this is so — and I don't read those interviews — then I would indeed be much less troubled by the interview.

Paul Caron (TaxProf) has more on Alan Keyes' slavery reparations plan, including Keyes' attempt to reconcile his plan with his harsh condemnation of reparations proposals in 2002. I'm not persuaded by Keyes' answer, which seems to distinguish the waiving of taxes from cash grants:

Not at all. I have taken a strong position against schemes of extortion from the fellow citizens of people here in America, based on the idea that somehow or another that would be requital for slavery. And I made clear over the years that I think the blood and treasured sacrifice during the Civil War constituted that requital.

But I have also made clear every time I was asked that there was objective damage done to black Americans by the slave system. And there have been frequent efforts in American history not thus far successful to address the wounds that were left by that legacy. What I have laid on the table repeatedly is a thoroughly Republican, thoroughly conservative approach that is actually borrowed from ancient history in terms of what the Roman empire used to do to respond to damaged communities. You give them tax relief. You give them a tax break to make up for the fact, for instance in this case, the black folks toiled for generations at what was effectively 100 percent tax rate.

And by doing this, you unleash their enterprise. Give them an incentive to work. Give people an incentive to own businesses without taking pennies out of anybody else's pocket, you're able to create an environment where people are encouraged to work and put a strong foundation under themselves instead of putting money in a democracy to dominate their lives that undermines the moral foundations of their families and destroys their economic incentives.

As a matter of fact, it's a thoroughly conservative, thoroughly consistent Republican approach to a very serious challenge.

But if you compare (1) raising taxes on whites to pay for the lowering of taxes on blacks and (2) raising taxes on whites and blacks to pay for cash grants to blacks, it's hard to see how either is any more or less "extortion from the fellow citizens of people here in America, based on the idea that somehow or another that would be requital for slavery" than the other.

Ted Balaker (Out of Control, Reason Public Policy Institute) writes:

Insurance companies are beginning to monitor customers' driving in exchange for lower rates:

* Progressive will announce its TripSense trial in Minnesota on Aug. 24. Customers who sign up will get a device the size of a Tic Tac box to plug into their cars. The device will track speed and how many miles are driven at what times of day. Every few months, customers would unplug the device from the car, plug it into a computer, download the data and send it to Progressive. Depending on results, discounts will range from 5% to 25%.

* In Great Britain, major insurer Norwich Union will start its Pay As You Drive test in a few weeks. Volunteers will get a device the size of a Palm computer installed in their cars. The gadget will use global positioning satellite technology to track where the car goes, constantly sending information to Norwich Union wirelessly. Cars that spend more time in safer areas will qualify for bigger discounts. . . .

I wonder if technology used by Progressive and Norwich Union could be [broadened] . . . . Perhaps (with the driver's ok) the act of buckling up could be tracked by insurance companies. This approach would also throw a carrot into the mix, for buckling up would be rewarded with lower rates. . . .

Read the rest of Ted's piece for more.

I think this sort of monitoring is a good idea. Naturally, I'd want insurance companies to promise to keep the information confidential; and if I were an insurance company, I'd offer a deal by which people could disconnect the device for some time and lose part of the discount (naturally the fact of the disconnection would itself be interesting information, but less informative than the collected details would have been), perhaps a part related to the time the device is disconnected. But while I realize that such confidentiality can never be perfect -- and certainly if the insurance companies don't promptly throw out the data, a subpoena could pierce the confidentiality -- I think that on balance the benefits of giving more choices to safe drivers and drivers who drive in safe parts of town make the proposals worthwhile.

I realize that some drivers are stuck in bad parts of town because they live or work there, and they're not morally at fault for that. But I don't see why that's relevant. Those drivers will have foreseeably more expenses for which insurance will have to pay. If you make it illegal for insurance companies to distinguish those drivers from other drivers, then the low-risk drivers will essentially be legally required to cross-subsidize the high-risk drivers. I think that's both wrong and economically inefficient. If you want to subsidize drivers who may not be able to afford insurance, subsidize them directly (with the equivalent of food stamps) rather than by requiring the low-risk drivers to subsidize the high-risk ones, whether those high-risk ones are rich or poor. And this goes double if the insurance company does measure easily changeable behavior, such as speeding or seat belt use.

We don't require life insurance companies to charge the same premiums to old people as to young people. It's not the old people's fault that they're old, but they are higher risk than the young, and it would be wrong and inefficient to make young people subsidize the old. (The inefficiency comes because the result will be that young people will buy too little life insurance, since it's a bad deal for them; and the old people will still end up paying high prices, since as young people fall out of the pool, the old people will have to pay more.)

And, yes, I'd also support health insurance companies charging high-risk people more, though I'd want to make sure that the system doesn't discourage the buying of health insurance early in life (or even before your birth, when your parents would buy it for you), when your future health is relatively uncertain, and when you can pool risk with a lot of other people. If we think that we should compensate people with genetic predisposition to disease, or help poor sick people, we should do that directly, rather than by requiring cross-subsidization. And at the very least this should be so as to people whose diseases are in part affected by their lifestyles (smoking, low exercise [like me], obesity, high-risk sports, excessive drinking or drug use, and the like), to the extent that this can be determined.

Finally, I realize that there are some prohibitions on race and sex discrimination in insurance sales that don't make actuarial sense, in that they require people who are known to be higher risk to pool their risk with people who are clearly lower risk. But if they are justified, they are justified because of some special concerns about race and sex discrimination, concerns that shouldn't, I think, carry over to other situations (such as age in life insurance, which is just as much outside our control as race or sex).

calling for restrictions on political speech?

Aaron Swartz points to this press conference:

Q There's a new ad by MoveOn.org that talks about — that criticizes Bush's record in the National Guard. What's your response to that, and what do you say to Harkin, who called Cheney a coward for not serving?

MR. McCLELLAN: We have been on the receiving end of more than $62 million in negative political attacks from these shadowy groups that are funded by unregulated soft money. And the President has condemned all of the ads and activity going on by these shadowy groups. We've called on Senator Kerry to join us and call for an end to all of this unregulated soft money activity. And so we continue to call on him to join us in condemning all these ads and calling for an end to all of this activity. . . .

Q But, Scott, the MoveOn.org ad, back to that. Senator Kerry denounced the ad specifically, saying it's not indicative of their — the way they feel about the Bush service in the National Guard. He specifically denounced the ad, which is something that they're saying the Bush-Cheney campaign has not specifically done about the Swift Boats ad.

MR. McCLELLAN: Let's be clear here. What the senator did was, he said one thing at the same time his campaign was doing another. His campaign went out there and essentially promoted this false negative attack at the same time Senator Kerry was saying he condemned it. The President has condemned all of this kind of activity, and he should join us in doing the same and calling for an end to all of it. Apparently he was against soft money before he was for it. And the President thought he got rid of all of this unregulated soft money activity when he signed the bipartisan campaign finance reforms into law. And so it's another example of — the senator's latest comments are another example of him saying one thing and doing another.

I certainly hope that the Administration is not indeed calling for "an end" — a legal end, via an extension to the Bipartisan Campaign Reform Act — to people pooling resources to express their political views, including their views about candidates. You can call it "soft money," but it's speech, of the sort that political movements such as the antislavery movement, the temperance movement, the civil rights movement, and many other movements (good and bad) have engaged in. Without such speech, who gets to speak effectively, in the large traditional media? The media itself; the parties; and the politicians who have the infrastructure to raise hard money in $2000 chunks; and a few super-rich people (unless they're shut up, too). People who care deeply about a subject, enough to pool even tens of thousands of their dollars with others who care equally strongly, would be shut out.

This sort of speech doesn't involve campaign contributions to officeholders, which Buckley v. Valeo has held can be restricted (in part precisely because such restrictions leave open alternative channels, such as independent expenditures). It isn't even corporate expenditures, which Austin v. Michigan Chamber of Commerce and McConnell v. FEC held — wrongly, I think — to be restrictable. This is independent spending on political expression, which Buckley specifically held was constitutionally protected, by a 7-1 vote that include liberals, moderates, and conservatives in the majority (the only dissenter was Justice White). I certainly hope that McClellan's views don't represent the policy agenda of the White House. (For a more detailed argument on why such speech should be protected, see here.)

UPDATE: Unfortunately, President Bush seems to be taking the same view:

G. BUSH: Well, I say they ought to get rid of all those 527s, independent expenditures that have flooded the airwaves. There have been millions of dollars spent up until this point in time. I signed a law that I thought would get rid of those, and I called on the senator to -- let's just get anybody who feels like they got to run to not do so. KING: Do you condemn the statements made about his... G. BUSH: Well, I haven't seen the ad, but what I do condemn is these unregulated, soft-money expenditures by very wealthy people, and they've said some bad things about me. I guess they're saying bad things about him. And what I think we ought to do is not have them on the air. I think there ought to be full disclosure. The campaign funding law I signed I thought was going to get rid of that. But evidently the Federal Election Commission had a different view.

(in the context of assisted suicide) at Southern Appeal, between Steve (Feddie), Ramesh Ponnuru, and Jonathan Adler.

Alabama Law Review
Cardozo Law Review
Connecticut Law Review
George Mason Law Review
Georgia Law Review
North Carolina Law Review
Notre Dame Law Review
Ohio State Law Journal
Tennessee Law Review
U.C. Davis Law Review
University of Colorado Law Review
University of Miami Law Review
Washington Law Review

1. As I mentioned above, submit via ExpressO.
2. If you want to be thorough, remember to submit to the above journals (many of which are in the Top 50) on paper.
3. If you're an editor at one of the above journals, get on the ExpressO list, or else you're going to lose out on a lot of submissions. Some people will still submit to you on paper, but other people will just skip you and submit to the other journals. The downside is that you'd have to accept electronic submissions; the ExpressO people tell me that they only do paper submissions to a few journals, mostly those in the Top 20 but also a few that I suspect are included for historical reasons. They don't want to do paper submissions to more journals, even though they charge more for the paper submissions, because they're short on manpower and doubt that the extra money will let them hire more people (and I assume that they don't think it's feasible to hike the paper submission costs much above the $6.50 to cover those extra costs). But while accepting electronic submissions can be something of a hassle (since you'd have to print out copies yourself), it can also prove to be a benefit, since it might let you organize the submissions more easily. And more importantly, I think you need to do that to compete effectively.
4. Finally, if you're an editor at one of the journals that get paper submissions (Arizona, California, Columbia, Duke, Emory, Florida, Georgetown, Harvard, Michigan, Minnesota, NYU, Northwestern, Southern California, Stanford, Texas, UCLA, U Chicago, U Pennsylvania, U Pittsburgh, Vanderbilt, and William & Mary), also talk to your people about switching to electronic submissions. True, you do get the submissions in any event, and few people will be stymied by the extra $4.50. But you'll get them several days after your competitors who get electronic submissions. Those competitors may give offers on some articles — likely the hottest ones — just a day or two after they get those articles electronically, and before you even get the paper copies in the mail. That means that when the author tries to shop up to you, you might not be able to respond quickly enough, and you might thus end up losing out on a great article. True, some submitters may adapt to this by using ExpressO to submit to you on paper, and then using it to submit to the other journals electronically a few days later, so it lands in everyone's e-mailboxes and mailboxes simultaneously. But most submitters won't do that; and as a result, your competitors will steal a march on you. You're law students, you're law review editors, you're super-competitive, no? So make sure you're competitive on this.

Eric Muller (IsThatLegal?) points out that some people may indeed be "self-hating Xs": "[B]ecause the person's X-ness is very important to him or her yet also at some subconscious level causes or has caused him or her a great deal of discomfort, he or she denies and even flees from his or her X-ness[, and m]aybe even disapproves of or is somehow repulsed by visible X-ness in others."

Doubtless this is so for some people, and if you really know a person well enough -- preferably from personal acquaintance, but possibly from serious observation of his public comments -- you might be able to legitimately criticize the person as "self-hating." But my point, which I stand by, was that many people use the "self-hating X" locution without any real evidence of actual self-hatred.

Rather, the term tends to function (not always, but very often) as a cheap smear, or at best as an entirely unsupported inference that any X (Jew, homosexual, Asians) who might find flaws in common attributes of fellow Xs must surely exhibit the psychological profile that Eric describes. So if you do have evidence that someone really is self-hating, that's fine. But in my experience, very few uses of this term actually rest on such evidence.

The Ninth Circuit has just affirmed a district court's decision that the distributors of Grokster, a peer-to-peer file-sharing service, weren't liable for contributory or vicarious copyright infringement.

My thoughts, which unfortunately probably presuppose a knowledge or reason to know of the legal structure of contributory infringement (which generally requires knowledge of specific illegal use or lack of substantial noninfringing uses, plus material contribution) and vicarious liability (which generally requires more or less direct financial benefit, plus right and ability to control, but that's all very terse shorthand for more complex doctrines): The Ninth Circuit decision is right on the bottom line, and on most of the analysis, but mistaken when it finds that Grokster didn't "materially contribute" to the infringement.

Providing a tool that makes an action easier is indeed material contribution. Gun manufacturers and distributors do materially contribute to crime; alcohol manufacturers do contribute to drunk driving, and car manufacturers to speeding; Grokster does materially contribute to infringement. The point is that all these products are dual-use products, usable for good as well as for ill. The distributors are also materially contributing to law-abiding behavior, and they don't know which particular user is going to act lawfully and which unlawfully (I think the Ninth Circuit was quite right on the knowledge prong). The distributors' actions therefore aren't banned, because the bans would interfere with lawful uses as well as unlawful ones.

On the other hand, if the knowledge element is satisfied — if, for instance, I sell a gun to someone knowing that he is going to use it for criminal purposes, or sell someone a device knowing that he will use it to infringe — it seems to me that the case for tort liability or in some situations even criminal liability is very strong. Selling such devices does help the person commit the tort or the crime, and there's little reason to shield such sales from liability when the seller knows the would-be tortfeasor's or criminal's intentions. See, e.g., RESTATEMENT (SECOND) OF TORTS § 876 ("For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance . . . to the other so to conduct himself"). (In criminal cases, some states allow aiding and abetting liability only when the actor's *purpose* is to help someone else to commit a crime, but other states allow such liability, or special criminal facilitation liability, simply based on a finding of knowledge).

So, again, I'd agree with the Grokster bottom line — I just think that it was mistaken on the material contribution element.

is now supporting reparations for slavery (thanks to Dan Gifford for the pointer):

Keyes proposed that for a generation or two, African-Americans of slave heritage should be exempted from federal taxes — federal because slavery "was an egregious failure on the part of the federal establishment." In calling for the tax relief, Keyes appeared to be reaching out to capture the black vote, something that may prove difficult to do, particularly after his unwelcome reception at the Bud Billiken Day Parade Saturday. . . .

No word on whether Americans whose ancestors died fighting in the Civil War would get special treatment as well, or whether having a slaveowner ancestor would double your tax bill. For a forceful argument against reparations, read this piece from 2002, which includes this language:

Those responsible [for reparations lawsuits] propose to settle the accounts of slavery leaving the Civil War out of the equation — complete and utter nonsense. The price for the sin of slavery has already been paid, in blood. . . .

Pettifogging lawyers and dishonest scholars will always be able to carp selectively and ignorantly about the warts upon our body politic.

But the truth of the Civil War is that the terrible price for American slavery has been paid, once for all, by the American people's deliberate acceptance of their duty to pay it when, in God's providence, Southern intransigence brought it due. . . .

The author of that piece? Alan Keyes.

(No it has nothing to do with the Front for the Liberation of Technology, damn it.) Some of the leading lights in libertarian tech policy -- Adam Thierer (Cato), Jim Harper (Cato), Braden Cox (CEI), Sonia Arrison (PRI), Solveig Singleton, James Gattuso (Heritage), Wayne Brough (Freedom Works), Tim Lee (Cato), and Thomas Pearson (Cato) -- have now started a new blog, the Technology Liberation Front. Check them out!

a tale of woe, with a moral: I've just been corresponding with a reader who wants to get into law teaching. His problem — and it's a problem shared by many law students and young lawyers who want to get clerkships, fellowships, and other interesting jobs in government or in public interest law — is that he needs letters of reference from professors, and he's not sure he can get any.

Why is that a problem, you ask? He got very good grades in many classes; why not ask the professors who gave him those grades? Because those professors have no idea who he is.

If he calls them, they'll say that they'll gladly write a letter saying that he wrote a very good exam and thus got a very good grade. But a letter like that is worth little; it simply repeats what the transcript already shows. In his words (though pieced together from several e-mails):

[I had n]o significant relationships with any of my law professors ―- I was that guy who got A's without saying anything in class, and sometimes without regularly attending class. . . .

Although it sounds terribly arrogant (and probably is), I only talked in law school when I was tired of watching other students flail about. I'm sure part of it was my visceral distaste for the "gunners" in my class ―- I tended at the time to be so laid back that a rumor went around that I was an alcoholic and that the iced tea I brought to class every day was laced with whisky [EV: I infer from the person's message that the rumor was indeed false].

In any event, I really missed out on a huge chunk of the law school experience by shying away from academic engagement. Not only did I cheat myself out of full value, but I really did put myself behind [in the search] for academic jobs. . . .

Maybe my sad story can somehow help others. -sniff-

Look, if you don't want to speak in class except when called on, and if you don't want to talk outside class to your teachers, that's fine. I do think that students' speaking in class tends to help them understand the material better, and get more interested in it. It also helps the professor and the other students, precisely because then class discussions aren't just the usual five or ten talkers. But, other than in seminars, you aren't required to participate (again, except when called on), and you certainly aren't required to try to be friendly with us teachers. If you want to be the silent type, be our guest.

But understand that if you don't let the professors get to know you, you can't get the benefits that flow from their getting to know you: letters of recommendation, phone calls to prospective employers, and so on. Access to such personal help is one of the great advantages that students can have. You can only get it, though, if you build something of a personal relationship with the people from whom you'll want the help.

So, first, make efforts to talk in class. Don't talk just for the sake of talking, but surely you'll have some interesting questions — ask them. You'll also have some interesting answers that others in the class aren't coming up with — give them. Don't be afraid of sounding stupid to your classmates. Very few of the questions and comments that I've heard in class are at all stupid or embarrassing (yes, a few are, but really very few); and if you aren't a frequent talker, your classmates will be glad to hear a new voice, instead of listening to the usual suspects.

And, second, try to get to know the professors — not all of them, but just the ones you like — outside class. If you have questions, go to their offices to ask them. Go out to lunch with them; many schools actually provide funds for teachers to take their students to lunch, so both your and the teacher's meal could get paid for. And many of your teachers are actually pretty interesting people, who can say interesting and helpful things both about the class's subject matter (if that's what you ask them about) or about their other experiences (if that's what you prefer).

Again, you don't have to do it. If you think your professors are utter bores, and speaking in class is foolish, that's fine. But if you don't make an impression on your professors (except on the exam), you can't expect to get the benefits that flow from making a good impression.

UPDATE: A reader writes:

Your comments about the perils of being a passive student are true for more than just law students. I'm an undergraduate engineering student and by being engaging with my professors, and interacting with them on a personal level . . ., I have developed relationships that have paid off well in the professional and academic world. One of my professors recommended me for an internship and now I have a permanent job at the company. Another is an adjunct professor who works during the day for NASA. Through him I was able to secure a fellowship for when I attend graduate school in the spring. Enough about me though. This is really a life lesson about the power of interpersonal relationships. Hopefully people will learn the value of just being basically friendly to others.

Max Boot has a nice piece on modern political mudslinging, or comparative lack thereof.

As I mentioned below, a Ninth Circuit en banc panel has just upheld the collection of DNA from people who are on probation after having been convicted of a crime. Judge Kozinski was one of the dissenters, and one of his arguments was that the majority's result could lead to requirements that the DNA of everyone, not just of convicted felons, be kept in a government-run database.

This is a classic slippery slope argument -- the seemingly appealing decision before us today (appealing because it's limited to criminals) can lead to a much more troublesome decision in the future. Here's how he crafts the argument (most citations omitted):

This isn't an issue we can leave for another day. Later, when further expansions of CODIS are proposed, information from the database will have been credited with solving hundreds or thousands of crimes, and we will have become inured to the idea that the government is entitled to hold large databases of DNA fingerprints. This highlights an important aspect of Fourth Amendment opinions: Not only do they reflect today's values by giving effect to people's reasonable expectations of privacy, they also shape future values by changing our experience and altering what we come to expect from our government. A highly expansive opinion like the plurality's, one that draws no hard lines and revels in the boon that new technology will provide to law enforcement, is an engraved invitation to future expansion. And when that inevitable expansion comes, we will look to the regime we approved today as the new baseline and say, this too must be OK because it's just one small step beyond the last thing we approved. See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1077-1114 (2003). My colleagues in the plurality assure us that, when that day comes, they will stand vigilant and guard the line, but by then the line -- never very clear to begin with -- will have shifted. The fishbowl will look like home.

Anyone who doubts that CODIS will expand, prodded by the voracious appetite of law enforcement, has only to consider the growth of fingerprint databases. In 1924, when J. Edgar Hoover became head of what was to become the FBI, the Justice Department's fingerprint files contained only prints of those who had at some point passed through the criminal justice system. Hoover, who favored universal fingerprinting, moved to expand the database and aggressively lobbied local law enforcement officials to submit prints to the FBI. He took a further step in 1929 and began fingerprinting all civil servants. The Alien Registration Act, passed in 1940, eventually delivered over a million prints to the FBI. Today, the FBI's Integrated Automated Fingerprint Identification System contains the fingerprints of over 47 million people, including prints "acquired related to a background check for employment, licensing, and other non-criminal justice purposes" and "submitted voluntarily by state, local, and federal law enforcement agencies." Several states require fingerprints of all drivers' license applicants. California all by itself has the prints of over 22 million drivers' license holders on file, as well as the prints of lawyers, and certain welfare recipients. Not all these fingerprint databases are currently in searchable form, but given our improving ability to store biometric identifiers electronically, it's only a matter of time.

Because the great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence ushered in by Katz v. United States, 389 U.S. 347 (1967), it proceeded unchecked by any judicial balancing against the personal right to privacy. As a consequence, we have become accustomed to having our fingerprints on file in some government database. The suggestion that law enforcement agencies, including the FBI, must destroy the fingerprints of those who were wrongfully arrested and booked, and were later released, would today be greeted by reactions ranging from apathy to a disdainful snigger. Why? Because we have come to accept that people -- even totally innocent people -- have no legitimate expectation of privacy in their fingerprints, and that's that.

(Judge Kozinski also points out that while the mandated DNA collection applies only to people on probation after having been convicted of a crime, the DNA will be retained not just during their probation, but also after the probation is done and even if all their civil rights are legally restored.)

Of course, the slippery slope argument is forceful only if you think the bottom is bad. Judge Kozinski does: "Perhaps my colleagues in the plurality feel comfortable living in a world where the government can keep track of everyone's whereabouts, or perhaps they believe it's inevitable given the dangers of modern life. But I mourn the loss of anonymity such a regime will bring." I probably disagree (for reasons that I don't have the time to get into now).

But I think the slippery slope argument is indeed powerful, because many people would indeed dislike what's at the bottom of the slope. The real question is how to convince those people (who approve of such restrictions on convicted criminals' privacy but would disapprove of such restrictions on law-abiding citizens' privacy) that the slippage is indeed likely to happen -- that this result they like on its own should indeed be rejected for fear that it will lead to something worse in the future. Kozinski's opinion strikes me as an excellent example of how such a concrete, forceful argument can be made (and not just because of the law review article he cites).

Oh, and I think "the fishbowl will look like home" line is a classic.

The Ninth Circuit en banc five-Judge plurality opinion upholding DNA collection from probationers has this material in n.28 on pp. 11459-60 (accompanying the text "[T]he Court has recognized that 'those who have suffered a lawful conviction' are properly subject to a 'broad range of [restrictions] that might infringe constitutional rights in free society,'):

In Morrissey v. Brewer, the Supreme Court observed:

Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities.

. . . Beyond these restrictions, parolees and probationers convicted of serious crimes are denied the right to vote by most states. . . . In addition, their Second Amendment rights are severely limited [citing the federal ban on felons possessing firearms].

Nothing much, I realize — I doubt that any future panel would feel remotely bound by the implication that individual people have Second Amendment rights, and that bans on firearms possession would severely limit such rights. (This is especially so since judges often join other judges' opinions without fully endorsing every tangential comment in a footnote — there's something of a collegial norm against joining judges' being too picky or micromanaging, though technically a join is indeed supposed to represent full agreement.)

Still, it's an interesting item, which might eventually help remind other judges that there is a substantial strain of judicial opinion that the Second Amendment secures a right of the people just as much as the First and Fourth Amendment do.

Prof. Laura Kalman at UC Santa Barbara is compiling (1) a list of law professors who are closely related by blood (parent-child, sibling-sibling, aunt/uncle-niece/nephew, grandparent-grandchild, but probably not any more distant than that), and (2) a list of Supreme Court clerks who are likewise closely related by blood. (She's not looking for married couples.)

If you have some definite information on this, please e-mail Prof. Kalman at kalman at history.ucsb.edu. Please include as the subject line the text

Lawprofs: NameA / NameB

or

Clerks: NameA / NameB

for instance

Lawprofs: Akhil Amar / Vik Amar

or

Clerks: Sarah Cleveland / her father

(though in the last case, "Clerks: The extremely cool Sarah Cleveland / her father" would also qualify, and naturally, if you have the father's name, that would be better yet). This will let Prof. Kalman sort the submissions more effectively.

Also, in the body of the message, please include (for professors) the schools at which the professors teach or taught and (for law clerks) the Justices for whom the clerks clerked. Please do not send the messages to me; send them to kalman at history.ucsb.edu .

might swing the outcome of the Presidential election -- and might yield yet another controversial post-election lawsuit. Lawprof Peter Shane has a detailed piece on this; here's an excerpt:

On August 2, 2004, the Colorado Secretary of State approved for inclusion on the November, 2004 state ballot a measure that would revise Colorado's allocation of electoral votes. Under the proposed measure, Colorado would become the first and only state to allocate its electoral votes proportionately among the Presidential candidates. Maine and Nebraska, the only states that currently depart from the winner-take-all unit rule, allocate an elector to the victor in each congressional district, with a bonus of two additional electors going to the plurality winner of the overall state vote. Under the terms of the Colorado initiative, the new rules would, if approved, take effect with the casting of electoral votes in the 2004 election.

Championed chiefly by Colorado Democrats, this initiative -- if approved and upheld -- could well be enough to swing the presidential election. Colorado is currently rated in the independent Cook Political Report as "leaning Bush." If the state's nine electoral votes, however, split 5-4 with Bush over Kerry, Bush's Colorado victory might be insufficient to offset Kerry victories in the winner-take-all states. For example, had the initiative been enacted prior to the 2000 Election, Al Gore would presumably now be running for re-election.

Of course, there is no way of guaranteeing what the impact of a Colorado change might be. Senator Kerry might actually win Colorado outright, but lose in Oregon -- a current "leans Kerry" state with a 7 electoral vote prize. Under such a scenario, limiting Kerry's Colorado electoral vote edge to a single vote might swing the election to Bush. . . .

Go here for more analysis, including a brief discussion of some of the legal objections that could be raised to this.

Coloradans who are interested in maximizing the power of Colorado, by the way, should certainly vote against the proposal: By making the likely swing in the Colorado vote just 1 elector (5-4 vs. 4-5, which would be the case so long as each candidate gets over 3.5/9=roughly 39% of the vote), it will make candidates pay almost as little attention to Colorado as they do to the states whose outcome is a foregone conclusion. Under the current system, though, if Colorado is at all close, the potential swing would be 9 electors, which is pretty significant.

Of course, Coloradans could also vote from a perspective of maximizing the likely success of their preferred presidential candidate, in which case pro-Kerry voters should vote yes and pro-Bush voters no. Finally, Coloradans could vote from a perspective of what's the theoretically morally right answer -- but I agree with Prof. Shane that even if this is a sensible question to ask on the national level, I doubt that it makes sense on the state level, since whatever one thinks is the theoretically best result, having one state change its views won't really bring us closer to that result (except insofar as the state can start a cascade among other states, but I doubt that this will happen).

Naturally, all this supposes that voters are thinking "How should I vote assuming my vote will make a difference" -- a not uncontroversial position, given that the chances of any particular vote making a difference are vanishingly small, but I don't want to get into that debate again now.

though largely obsolete and therefore extra amusing (because it's not that familiar): Alligator pear.

I can't evalute the accuracy or the importance of this report (and I doubt I'll blog much by way of follow-up), but I thought I'd pass it along for those who are interested. From news.com.

UPDATE: Henry Farrell points out that computer science professor Ed Felten (Freedom to Tinker) has several posts on this; here are the first and the last. Felten's bottom-line: "Where does this leave us? MD5 [one prominent algorithm] is fatally wounded; its use will be phased out. SHA-1 [another] is still alive but the vultures are circling. A gradual transition away from SHA-1 will now start. The first stage will be a debate about alternatives, leading (I hope) to a consensus among practicing cryptographers about what the substitute will be."

Oh, and thanks to BNA's Internet Law News for the original tip.

This TechCentralStation column is very good (thanks to InstaPundit for the pointer). I'm not sure I'd endorse everything it says -- for instance, I'm not sure whether federal crime-fighting programs, as opposed to state and local ones, are likely to be particularly effective. But I think it makes some excellent points.

Poverty, people say, causes crime; but what many people miss is that crime causes poverty. Crime disproportionately victimizes the poor, and it keeps them poor, partly by diminishing their assets (or making them invest their scarce money in anti-crime measaures) but chiefly by keeping their neighborhoods poor. If you want to help the poor, work to reduce crime -- which in large part (though not entirely) means arrest, prosecute, incapacitate, and thus deter criminals.

I would like to thank Professor John Mogk for his reply to my post on the Michigan Supreme Court's overruling of Poletown, and also thank the Volokh Conspiracy for providing such a worthy forum for our debate.

Readers of the Conspiracy may recall that Poletown was the notorious 1981 decision in which the Court had upheld the city of Detroit's decision to condemn the homes of over 4200 people in order to transfer the property to General Motors so that it could build a new factory. The recent Hathcock decision overruled Poletown and held that private property could not be condemned for transfer to other private interests so long as the sole rationale for doing so was "economic development."

Unfortunately, Prof. Mogk continues to be mistaken in his claim that all the other 25 largest cities in the country have the power to condemn private property for transfer to other private interests purely for purposes of "economic development." He is also off-base in his discussion of the consequences of the Poletown decision itself, which did not create 6000 jobs, as he claims. Finally, the fact that Detroit remains the poorest large city in the country after 23 years during which the Poletown rule was in effect undermines Mogk's claim that Poletown takings are essential for economic progress in "distressed areas."

In my original criticism of Prof. Mogk's argument, I cited decisions by Illinois, California, and Florida supreme courts that concluded that economic development was not an adequate rationale to justify takings that transfer property to private interests. Obviously, these states include cities that are clearly among the nation's largest, and have somehow managed to prosper without a rule similar to Poletown. It is misleading for Mogk to argue that these cases "are distinguishable on the basis of involving a predominant private benefit or not being authorized by the legislature." The whole reason why these courts decided that the condemnations at issue involved a predominant private benefit or were not authorized by legislation is precisely because the only public benefit claimed was economic development. For example, the Supreme Court of Illinois concluded that a "contribu[tion] to economic growth in the region" cannot be a legitimate ground for condemnation because "incidentally, every lawful business does this." Southwestern Illinois Development Authority v. National City Environmental, LLC, 768 N.E.2d 1, 9 (Illinois 2002). This is virtually the exact same reasoning that the Hathcock court adopted in overruling Poletown on the ground that its "economic benefit" rationale "would validate practically any exercise of the power of eminent domain on behalf of a private entity."]

Prof. Mogk's claim that Poletown contributed to Detroit's development by "transferring 6000 jobs" to the city is also misleading. Detroit and GM claimed at the time that this would happen. In reality, the new factory employed only 2500 people as of 1988. It has never employed anywhere near 6000 workers. See, e.g., Marie Michael, "Detroit at 300: New Seeds of Hope for a Troubled City," Dollars & Sense, July 2001. Moreover, the Poletown condemnation wiped out some 400 businesses, 16 churches and a number of hospitals and schools. It is quite possible that these institutions employed as many or more workers as the factory did. If you factor in the destruction of 4200 peoples' homes and the fact that the City spent over $200 million "preparing the site" for GM, it is highly probable that Poletown inflicted far more harm on Detroit's economy than benefit. Sadly, the Poletown Court did not even consider these massive economic harms in its decision.

Another serious flaw of Poletown is that it imposed no obligation on the new private owners to actually provide the "economic development" that supposedly justified the condemnation in the first place. Poletown created a blank check for takings that transferred property to GM and other powerful corporations on the basis of dubious claims of economic benefit that the new owners had no obligation to live up to. Obviously, GM and others took full of advantage of this loophole. The political power of the new owners had far more influence on condemnation decisions than any economic benefits they might create for the community. Thus, it is no surprise that, as Prof. Mogk himself points out, Detroit remains the nation's "most economically distressed" large city even after 23 years of Poletown-style condemnations.

Finally, it is difficult to understand Prof. Mogk's claim that condemnation is necessary to facilitate development in "distressed areas [where] the market is virtually non-existent or in a state of collapse," despite the fact that he admits it is "not needed to further economic development where the market is strong and growth is occurring." As anyone who has ever tried to buy real estate knows, it is much easier to acquire property in "distressed areas" — where prices tend to be low, especially if the market is "in a state of collapse" — than in growth areas, where they are usually much higher. If a developer has a viable project in a distressed area, she should find it easier to buy the necessary property there than in a growth area. If, on the other hand, the project is not viable, then it certainly should not be supported by the use of eminent domain.

In addition to inflicting grave injustices on property owners, takings that transfer property to powerful private interests are not needed to rescue distressed urban areas. Indeed, as Poletown dramatically demonstrated, they are often likely to do more harm than good.

Readers wanting more detail on the case against Poletown can find it here and here.

Last week, I blogged a link to George Mason lawprof Ilya Somin's op-ed defending the recent Michigan Supreme Court ruling that certain seizures of private property were unconstitutional, even if compensation was paid, because they weren't for a constitutionally authorized "public use." I also blogged a link to an op-ed on the other side, by Wayne State lawprof John Mogk, and the text of Somin's rebuttal.

John Mogk now passes along this response:

In reply to Ilya Somin's comments posted on August 9, 2004, I agree that the facts surrounding Poletown, Hathcock and other cases in which a taking is based upon economic grounds should drive the legal and policy analysis. We do not agree on the facts.

For those interested in the Poletown debate I recommend that the case be read from the original reports, rather than relying upon an interpretation of it contained in the case law, articles or legal texts. Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N.W. 2d 455 (1981).

None of the cases referred to in Somin's remarks convince me that Detroit does not stand alone among the 25 largest cities in the nation in being denied the power of eminent domain to take private property for transfer to private developers to further economic development, when the taking is authorized by the legislature, "serves a legitimate public purpose and provides a predominant public benefit." This is the requirement in Poletown.

The principal cases to which Somin refers are distinguishable on the basis of involving a predominant private benefit or not being authorized by the legislature. Hathcock prohibits Detroit and other distressed municipalities from using condemnation to further economic development, when the authorized taking provides a predominant public benefit.

The question that the Poletown court addressed, according to the opinion, was "Can a municipality use the power of eminent domain granted to it by [the legislature] to condemn property for transfer to a private corporation to build a plant to promote industry and commerce, thereby adding jobs and taxes to the economic base of the municipality and state?"

The Poletown court found on the facts of the case that "The power of eminent domain is to be used in this instance primarily to accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental."

Poletown did not permit all economic development takings. It was not a case involving the use of condemnation to "increase the profitability of a private business." There was no evidence whatsoever introduced in the case that GM would be more profitable if it build an assembly plant in Poletown than outside of Detroit.

Nor was it a case involving a project contributing to regional economic growth. The problem was local in nature and addressed a massive exodus of manufacturing jobs from the City, resulting in a dramatic slide in its tax base and employment levels.

The Poletown project was initiated by the elected officials of Detroit to keep 6000 jobs in the City that were to be lost by the closing of a 50 year old, obsolete GM manufacturing facility several miles away. This it did. Automobile manufacturing plants built around World War I were multi-story and no longer efficient to operate. They had neighborhoods tucked up next to them and were frequently reached on foot or by local transit systems. After World War II new plants were designed as one-story structures, requiring greatly expanded boundaries to accommodate assembly lines and employee parking.

Several years before the Poletown project, a similar aging, obsolete plant (Dodge Main) had been closed by the Chrysler Corporation immediately adjacent to the Poletown neighborhood. The vacated plant site was on a major rail head, power grid and Interstate Freeway (I-94). There were no jobs remaining on the site. No other available site in the City offered the same favorable conditions for a state-of-the art manufacturing plant.

The site needed to be significantly expanded to accommodate a one-story manufacturing plant. Mayor Coleman Young prevailed upon GM to be permitted to assemble the Poletown site for a new plant.

GM needed the Mayor's cooperation to improve conditions around its world headquarters, which it was renovating at a cost of $250 million, and the restoration of a major 30 block neighborhood to the north of the headquarters in partnership with the residents living there (New Center Commons). The three projects were ongoing at the same time. GM agreed to cooperate with the Mayor, if its time-lines could be met.

The project transferred 6000 jobs to the site. Detroit has a personal income tax of 3% and a tax on personal and real property. The combined sum of these taxes should have yielded several hundred million dollars to the City since completion of the project and continue to generate substantial revenue in the years ahead.

Condemnation is not needed to further economic development where the market is strong and growth occurring, such as in L.A., San Francisco and San Diego, referred to by Somin. Strong market demand will eventually result in land development which the local government can control through the use of its regulatory powers (zoning, et al) in the public interest. If one beneficial project is not build, another will be.

In distressed areas the market is virtually non-existent or in a state of collapse. If developers are to be attracted, they must be assured of land control within a reasonable time-frame. "Time is money." Condemnation is needed under these conditions, when the public purpose is legitimate and public interest predominant. Project feasibility is often tenuous, at best, and delays in land assembly cannot be tolerated by the private investor.

Condemnation alone is not the answer for a City in decline. It is only one tool contributing to redevelopment, but one of the most important. Reversing a city's downward course takes years, particularly one that had the Nation's largest civil disturbance of the 1960s, dismantling of neighborhood schools through busing in the 1970s and widespread HUD housing abandonment in the late 1970s and 80s. Census data suggests that Cleveland, Philadelphia and St. Louis are not far behind Detroit in experiencing urban collapse.

The foundation projects to which Detroit looks to rebuild itself in the 21st century have been primarily facilitate through the use of condemnation for economic development purposes, in accordance with Poletown. They were believed not to be possible without it.

In Hathcock, the Michigan Supreme Court could have clarified and tightened the public purpose and predominant public benefit standards of Poletown and protected Hathcock and other landowners from condemnation. Their land lies in one of Wayne County's growth areas. The Court appears to have been on a mission to throw Poletown out. Not to keep and clarify it, will have profound detrimental effects on areas within Michigan where disinvestment and decline is occurring.

Bjorn Staerk has a good rejoinder to some anti-Muslim extremist nonsense -- obvious stuff at one level, but still worth repeating. (Thanks to InstaPundit for the pointer.)

I take it that few of us would claim anything much about what all Christians think, or even what the overwhelming majority of Christians thinks about particular political or moral topics (other than perhaps at the most general level, or about topics on which there's very broad agreement among Christians and non-Christians alike).

The categorical generalization about what all or even nearly all Christians believe is clearly unsound. The statistical arguments may theoretically be accurate, but in practice this data is hard to collect: Our sense of what most people of group X think is often based on highly unrepresentative samples (e.g., those Xs we know, or those who are especially loud, or even those who live in our country rather than elsewhere). It also often does not distinguish between very different flavors of a political belief and intensities of that belief -- for instance, knowing how many members of some group "oppose abortion" tells us rather little about their specific policy views, or the intensity of those views.

You might think that knowing someone's religion, at the coarse level of Christianity, Islam, and the like, would indeed tell you a good deal about his actual moral beliefs. But it turns out not to be so. It's not so for Christianity, and as best I can tell it's equally not so for Islam (or even for smaller religions such as Judaism). There may be a few exceptions; I can confidently guess, for instance, that most Christians oppose laws banning Christianity. But those really are exceptions.

As a result, it makes little sense to say, for instance, "Christianity is a religion of peace" or "Christianity is a religion of war," unless one is speaking about theoretical aspirations about what the religion should be, rather than describing how Christians actually act, have acted, and are likely to act. It seems to me the same is true for Islam.

I should stress that I think it's perfectly proper for people to criticize religious beliefs and religious movements, just as it's proper for people to criticize any ideology. But broad criticisms about how Islam is this or Christianity is that -- again, with a very few exceptions -- are almost always based on inaccurate overgeneralizations.

I've always been annoyed by the way many people use the term "self-hating [X]," usually "self-hating Jew" but often in other contexts. Here are three reasons, two general and one specific to a particular usage I've seen:

1. "Hating": Often, the person being accused shows little evidence of "hating" anyone — he's criticizing them, maybe he's being unfair to them, but it doesn't follow that he hates them. Labeling disagreement with a group, or even erroneous disagreement, as "hatred" (widely thought to be a highly reprehensible emotion, unless the target is genuinely evil) strikes me as unfair and misleading: It's argument by epithet, rather than by providing evidence.

The criticisms of George Soros as a supposedly "self-hating Jew" are a classic example — I have no reason to think that Soros hates Jews (or his own Jewishness). One can certainly criticize statements he's made about Jews; but calling them expressions of hatred is simply unfounded, unless one can point to some substantial evidence that they do indeed flow from hatred. (Nor is it enough to just say that similar statements have been made by people who hate Jews; that some anti-Catholic bigots, for instance, criticize Catholicism out of hatred, doesn't mean that everyone who criticizes Catholicism is equally hateful.)

2. "Self": That someone hates some group is already a pretty serious allegation, which requires some serious evidence to support it. But saying that he's self-hating makes him look not just hateful, but pathetic and contemptible — he doesn't just hate Jews, but he hates himself, because he hates his own Jewish side. The characterization sounds not just like a moral criticism, but a psychiatric diagnosis.

Yet it seems to me to be empty pop psychology at best. One can disapprove of the religious or ethnic group into which one was born without disliking oneself. In fact, coming from a group may give one a particularly good view (though it may also give one a distorted view) of the weaknesses and errors of many group members. It may well be wrong for people to overgeneralize, and to come to dislike Jews, Catholics, Armenians, or whoever else as groups because they dislike a lot of their fellow Jews, Catholics, or Armenians in their family, neighborhood, or social circle. But this dislike of a group hardly translates into dislike of oneself.

3. [X]: Finally, one recent set of "self-hating" references just further illustrates how this phrase can delude people — people calling Michelle Malkin a "self-hating Asian."

Now I'm very glad that there's been a serious debate about the merits of Malkin's work (including, quite prominently, by Eric Muller while guest-blogging on this very blog). But the debate is not advanced by illogical name-calling.

"Asian" is a funny sort of term, which purports to cover a madly heterogenous group of people from Japan to the Philippines to Burma and (in many contexts) India and Pakistan. Many whites and some American Asians may see the group as "Asian." My sense is that most Asians and many American Asians do not; they see the group as Chinese, Japanese, Filipinos, and so on.

Michelle Malkin is the child of Filipino immigrants. She is writing a book that is defending the internment of Japanese-Americans. Other than being from the same huge part of the world, and having similar eye shapes and hair colors, Filipinos and Japanese have little in common with each other. It's true that racists have often lumped the two together, and that the hostility towards (and often hatred of) Japanese immigrants during World War II flowed partly from general hostility to Asians. But it also flowed, of course, from matters peculiar to the Japanese.

So even if one could somehow show that Malkin is motivated by hatred of people of Japanese extraction — and I have no reason to believe that this is true, and I accept it only to separate the various parts of my argument — the "self-" coupled with the "Asian" in the phrase "self-hating Asian" is especially nonsensical. To be accurate (again, assuming for a moment that some hatred is involved) rather than an illogical smear, the assertion would have to be "World-War-II-era-Japanese-hating Filipina" (where Japanese is used to include "of Japanese extraction," as are "Filipina" and "Asian"). To be still more accurate, absent any evidence of hatred, it would have to be "World-War-II-era-Japanese-internment-defending Filipina." A somewhat different-sounding criticism than "self-hating Asian," no?

Patterico points to this opening of a Dana Milbank Washington Post column:

Earlier this month, President Bush was almost done with a speech to a group of minority journalists when he dropped a rather startling proposal.

"We actually misnamed the war on terror," he said. "It ought to be the Struggle Against Ideological Extremists Who Do Not Believe in Free Societies Who Happen to Use Terror as a Weapon to Try to Shake the Conscience of the Free World."

Or, if you prefer to abbreviate, SAIEWDNBIFSWHTUTAAWTTTSTCOTFW.

Ladies and gentlemen, the Bushism has returned. . . .

Hmm — it sounds to me (and Patterico) like a bit of a joke, no? (See here for a more extended quote.) Lots of people, especially those who like to use words like "struggle" instead of "war" and to say someone "happens to" do something rather than "labeling" the person with an adjective, have been arguing that we shouldn't use the term "war on terror." Bush intentionally comes up with a lampoon of what those people would prefer that it be called.

The joke (admittedly, not an uproariously funny one) is precisely that the phrase lacks the punch of "war on terror." And surely it must be a joke: Do you really think that Bush meant to seriously admit that the "war on terror" was misnamed? Whether or not you think the term is a misnomer, I doubt that President Bush thinks so, or that he has any interest in seriously saying so.

Incidentally, the LEXIS transcript (available in the Public Papers of the Presidents file) -- and also the White House's transcript (thanks to reader Mark Hessey for the pointer) -- reveals that Bush's statement was followed by laughter from the audience — and my guess is that this was laughter that Bush intended.