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DISPATCHES FROM THE EDUCATION APOCALYPSE: Welcome to COVID College — Corona bursts education’s business bubble.

Fortunately, Reynolds Online University has long touted the benefits of online learning!

WE NEED A COMPLETE AND TOTAL SHUTDOWN OF HIGHER EDUCATION UNTIL WE FIGURE OUT WHAT’S GOING ON: Survey results suggest many women nationwide sexually violated by profs, other campus employees.

Of course, with schools going online, I suppose this is a thing of the past. Once again, Reynolds Online University leads the way!

DISPATCHES FROM THE EDUCATION APOCALYPSE: Arizona State University restores students’ porn access.

To be fair, I’m pretty sure that no one at Reynolds Online University cares about what you’re “researching” when not on class time.

DISPATCHES FROM THE EDUCATION APOCALYPSE: Horrifying Video of Colorado Cheerleaders Being Forced to Do Painful Splits.

Perhaps it’s time for Reynolds Online University to open up a high school branch…

THE LOGICAL CONSEQUENCE OF FEMINIST FEAR-MONGERING: Female College Students Say They Live in Constant Fear of Being Raped.

Don’t worry, coeds! You’ll be safe at Reynolds Online University!

WHY ARE LEFTIST UNIVERSITIES SUCH CESSPITS OF SEXUAL VIOLENCE? Duke Reports a Sexual Assault Rate 5 X as High as Our Most Dangerous City.

I think President Trump’s Department of Education should cut off federal funding for this menace. But there is a solution!

Reynolds Online University, Where Nobody Gets Raped!

PETER BERKOWITZ: Trump Can Help Debunk Alleged College “Rape Culture.”

Due process protections for the accused in campus cases alleging sexual assault have been under attack for decades. In the guise of enforcing Title IX—a 1972 federal law prohibiting educational institutions that receive federal funds from discriminating on the basis of sex—the Obama administration intensified the attack.

Restoring due process on campuses does not seem to be a top priority for President Trump and congressional Republicans. If they wish to uphold the rule of law—for men and for women—it should be.

Yes, it should. Plus:

A “rape culture” does not pervade our campuses. Despite a determined campaign of disinformation—to which former President Barack Obama, former Vice President Joe Biden, and Sen. Kirsten Gillibrand (D-NY) prominently contributed—the incidence of sexual assault on campus dropped by more than half between 1997 and 2013, is below the off-campus rate, and affects approximately one in 40 women, according to the Department of Justice.

Nevertheless, our universities have curtailed basic civil liberties and perpetrated gross miscarriages of justice. Their attack on due process also obscures the principle source of regretted sexual experience among undergraduates: a campus hook-up culture of alcohol-fueled promiscuity that drives romance, courtship, and love from the undergraduate lexicon.

Those who doubt due process has been degraded in college disciplinary proceedings—and those inclined to believe it but who have yet to acquaint themselves with the hard facts and life-altering consequences of campus justice—should read “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” by KC Johnson and Stuart Taylor, Jr. The authors of the indispensable “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case” have once again performed an outstanding public service. In tale after harrowing tale, they expose “a system on our nation’s campuses in which accused students effectively have to prove their innocence, often under procedures that deny them any meaningful opportunity to do so.”

The authors are anything but partisans. They are not even conservatives.

Nope, but anybody should be upset about this. Well, anybody except Reynolds Online University, Where Nobody Gets Raped!

NO TOUCHING:

If you’re male and 18 and waiting anxiously for your acceptance at a prestigious coastal liberal arts college or university, the authors of The Campus Rape Frenzy would undoubtedly have two words of advice: Don’t go. That is, if you plan on any sexual M.O. other than abstinence.

If you do go and then have sex, your partner (let’s say ze is a she) can, under current rules, accuse you of sexual assault or rape if you kiss her or reach for her hand without her permission, can say that she was afraid of you when she did give permission and so was coerced, can claim that after a single drink she was under the influence of alcohol and therefore unable to give consent (you can be way drunker, but that doesn’t matter), and can make these claims months after the fact without you being aware that she has made them.

Think that’s scary? What happens next is even worse. Following guidelines from the Obama administration Office of Civil Rights, you will likely be denied representation by a lawyer, forbidden from presenting exonerating evidence or asking questions of your accuser (who will invariably be referred to as the “victim” or the “survivor”), be subject to the decision of a college administrator who is under pressure to show that her (as it almost always is) institution is eagerly working with the federal government’s esoteric understanding of Title IX, and found guilty if there is a 50.01 percent chance you failed to get consent, or lost it at some point unbeknownst to you. The press will rake you over the coals and your future, now that you’re expelled and branded a sexual malefactor, will be compromised.

Yep. Everybody’s safer at Reynolds Online University.

HIGHER EDUCATION BUBBLE UPDATE: College more dangerous than prison for women AND men when it comes to sexual assault, says Obama admin.

The Obama administration has produced new statistics on prison rape which, taken in conjunction with its widespread claims about college campuses, imply that women and even men are safer from rape in prison than they are on college campuses.

In a recent report from the White House states that 8.5 percent of female inmates and 3.7 percent of male inmates experience sexual assault while in prison. More than half of these incidents are committed by prison and jail staff, though the report acknowledges that “many abuse incidents in prisons involve other inmates as perpetrators.”

If one takes these statistics at face value and compares them to other widely reported statistics used by the White House on campus sexual assault, one could conclude that sexual assault is far more common on college campuses than in America’s prisons. After all, the Obama administration loves to tout deeply flawed self-reported surveys showing 20 percent of women and 5 to 8 percent of men are sexually assaulted on college campuses over a four-year college career.

This would mean that men are twice as likely and women nearly three times as likely to be raped on a college campus as they are in prison.

At least it’s good marketing for Reynolds Online University:

EMILY YOFFE: Sex On Campus: Why the grim portrait painted by the new AAU study does not reflect reality.

Young women are indeed the victims of sexual assault at the hands of young men—on campus and off. These are terrible crimes, and we should urge, and help, those who are victims to report this to the police. But there is a danger when the findings of surveys like AAU’s are treated as proof that vast numbers of female college students are victims of sexual violations. It puts schools under increasing pressure to prove that they are doing something about this alleged epidemic, and this, in turn, has led to the creation of policies that offer little due process, but severe punishment, for men accused of misconduct. Parents of high school students are surely looking at the AAU list as their children make application decisions. The headlines say these parents should be worried about what will happen in college to their daughters. Surveys like this one, and the way they are described in the press, suggest that they need to worry about their sons, too.

At least it’s good marketing for Reynolds Online University:

ASHE SCHOW: California continues descent into campus sexual assault madness. “California was the first state to implement a “yes means yes” — or affirmative consent — policy, which regulates how students engage in sexual activity. Now the state wants to allow community colleges to expel students for sexual misconduct even if the accuser isn’t a student and the alleged incident occurred off-campus.”

Just another advertisement for Reynolds Online University.

ARE HAPPIER LAWYERS, CHEAPER LEGAL FEES ON THE HORIZON? Glenn Reynolds, our beneficent Insta-host, reviews the new book, Glass Half Full: The Decline And Rebirth of the Legal Profession by Ben Barton, Glenn’s fellow University of Tennessee law professor, who has also been guest-posting here this week, in his latest USA Today column:

[W]hile technology is hurting firms’ income, it’s also cutting their expenses, and making life easier (in some ways) for solo practitioners. I have a former student who practices family law and doesn’t even keep an office. Her clients like it that she makes house calls, and she saves big on overhead. Email, voicemail and the like are better than a secretary, and online legal research is better than maintaining a law library.

Clients, meanwhile, will get cheaper legal services. There’s a limit to how much lawyers can cut their rates — those student loan debts have to be paid, and if you can’t make enough to pay them practicing law, you’re better off doing something else — but many tech startups are looking at ways to provide legal services more cheaply and efficiently than the old model ever did. Barton is optimistic about that, and I hope he’s right.

At any rate, law, as the ultimate white-collar job, is now undergoing what so many other fields have suffered before: Technological unemployment and a shrinking economic pie. Lawyers, who probably didn’t shed a lot of tears when this happened to linotype operators, will just have to deal with it as well. I hope that Ben Barton’s mostly-cheerful predictions turn out to be right.

Read the whole thing, to coin an Instaphrase.

SEX, LIES, AND DEMOCRATIC POLS: PolitiFact Gives “Mostly False” To Mark Warner’s Claim That It’s Safer For Women Not To Be In College.

That’s actually completely false, but he’s a Dem so he only gets the “mostly false” rating. But perhaps I can use him in the next Reynolds Online University ad. . . .

POOR ASHE SCHOW. SHE’S ALWAYS HAVING TO PLAY WHACK-A-MOLE WITH DISHONEST NUMBERS: No, 1 in 6 MIT undergraduates have not been sexually assaulted.

But I say, Why take chances?

WORRIED ABOUT BEING RAPED ON A COLLEGE CAMPUS? Try Reynolds Online University: “The One Where Nobody Gets Raped.”

NOTHING CREEPY ABOUT THIS: Government to Track ‘False, Misleading’ Ideas on Twitter.

The National Science Foundation is financing the creation of a web service that will monitor “suspicious memes” and what it considers “false and misleading ideas,” with a major focus on political activity online.

The “Truthy” database, created by researchers at Indiana University, is designed to “detect political smears, astroturfing, misinformation, and other social pollution.”

Yeah, I’m not worried that a database named for a Colbert slam at the right will be subject to political abuse or anything. The researchers are:

Program Manager: Balasubramanian Kalyanasundaram

Filippo Menczer [email protected] (Principal Investigator)
Alessandro Vespignani (Co-Principal Investigator)
Alessandro Flammini (Co-Principal Investigator)
Johan Bollen (Co-Principal Investigator)

I’ll be watching to see how this is used, and encourage everyone else to do the same. Remember when protest was patriotic? Now, apparently, it’s been fundamentally transformed.

ITUNES UNIVERSITY GOES INTERACTIVE:

iTunes U has been great at replicating the sit-and-listen part of the college learning experience. It’s been less great, however, at replicating the thing that has traditionally made the university such a great learning environment: class discussion, the lively back-and-forth that can come from the seminar setting. And it’s been less great at that, of course, because it hasn’t tried to be any good: iTunes U has been a clearinghouse for college lectures, and that, so far, has been more than enough.

Until today, that is. Now available on the iTunes platform is a Stanford class, “App Development for the iPhone and iPad,” which allows, for the first time, interactive class discussions. The class — to date, the most popular among Stanford’s many iTunes U offerings — will employ the course discussion infrastructure of Piazza, which Stanford has already been using as an online supplement to its in-person discussions. Students in the class — which is still free to take — will get to interact with each other, asking questions and working through problems.

Where, I wonder, could this be leading?

HIGHER EDUCATION BUBBLE UPDATE: Higher Education’s Online Revolution: The substitution of technology (which is cheap) for labor (which is expensive) can vastly increase access to an elite-caliber education.

At the recent news conference announcing edX, a $60 million Harvard-MIT partnership in online education, university leaders spoke of reaching millions of new students in India, China and around the globe. They talked of the “revolutionary” potential of online learning, hailing it as the “single biggest change in education since the printing press.”

Heady talk indeed, but they are right. The nation, and the world, are in the early stages of a historic transformation in how students learn, teachers teach, and schools and school systems are organized.

If only someone, somewhere, would explain what’s going on in a short, easy-to-read book.

KEN ANDERSON TAKES MY WSJ COLUMN AS A JUMPING OFF PLACE, and makes a much more important point:

Strange as one might find it, I would put risk aversion as the primary behavior distinguishing today’s elites – in the college placement process, the university, the migration of top tier students to Wall Street jobs where they make good money but risk OPM, the assortative mating market that is quite possibly (as I remarked tongue in cheek at Valentine’s ) the raison d’être of the physical elite university, the intense reward of strategic behavior that is aimed less at maximizing gains than minimizing possible losses … today’s elites are well schooled in strategic behavior, but that strategic behavior is mostly about avoiding any error, and to the extent that our elites take risks, it is only with other people’s futures. . . .

All of this is very difficult for our elites to take up reflectively, for obvious reasons – conflicts of class interest, as well as in difficulty in confronting one’s own risk aversion as a social pathology, given how much success it has brought you. But, even more importantly, the master intellectual method that currently predominates in elite training and formation, economics, is remarkably ill-equipped even to see the issue, because its assumptions make it very difficult to see the “social” as an irreducible analytic category, rather than simply congeries of individuals. Until there is a recovery of social theory – and the conflict tradition in social theory in particular – and a greater willingness to see the discipline of economics within a centuries’ long trajectory of intellectual history, we will not have the tools by which to analyze the New Class in America.

Read the whole thing.

My Popular Mechanics columns are here.

My USA Today columns are here.

My New York Post columns are here.

My Washington Examiner columns are here.

My TCSDaily / TechCentralStation columns are archived here.

My old MSNBC blog is here.

Previous columns written for FoxNews.com (I stopped in 2002) can be found here.

A (partial) list of my law review articles can be found here. It’s not usually up to date, but it’s the best I can do.

Also, downloadable copies of many of my law review articles can be found here, through SSRN.

Contributions to The Guardian are (mostly) rounded up here.

You may find my discussion of the state of the blogosphere with Cass Sunstein on the University of Chicago Faculty Blog interesting. Scroll forward from that link for the whole thing.

Some other items are listed below:

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The New York Sun, April 16, 2002
Whizzer�s Legacy
Glenn Harlan Reynolds

�The milk of human kindness,� a well-known federal judge once remarked to me, �does not flow through Whizzer�s veins.� He meant this (mostly) as a compliment.

Byron �Whizzer� White served as an Associate Justice of the United States Supreme Court at a time when compassion, as personified by judges like his colleague William J. Brennan, Jr. and federal appeals judges like J. Skelly Wright, was regarded as the cardinal virtue of the bench. But, as befitted a man who was once the highest-paid professional football player in the nation, White favored a more strenuous approach.

Like his colleague John Marshall Harlan, White was a kind of liberal, but he was a liberal of a species now nearly extinct, a species for whom compassion was only one � and not necessarily the foremost one � among many values. With Harlan, White voted to strike down the Connecticut anti-birth-control law in Griswold v. Connecticut. But, also like Harlan, he wrote separately to express a more modest rationale for the decision. For White, unlike the majority, the biggest problem with the law was not that it infringed a fundamental right of privacy � it was that it did not make sense. The State of Connecticut claimed that its law against birth control was intended to prevent premarital and extramarital sex, but the statute, and its enforcement, did something else entirely.

�I wholly fail to see,� he wrote, �how the ban on the use of contraceptives by married couples in any way reinforces the State�s ban on illicit sexual relationships. . . . [The statute] has been quite obviously ineffective, and [its] most serious use has been against birth-control clinics rendering advice to married, rather than unmarried, persons.� In short, White found, the law violated something as important as privacy � the right to expect a law (and the arguments made in court supporting the law) to make sense. If the State of Connecticut had a legitimate government purpose for enacting the birth-control statute, then it had done a particularly bad job because the law simply didn�t serve the purposes it was claimed to.

Though critics of the majority opinion in Griswold often call the right of privacy it recognized radical, White was in fact calling for something far more radical than a new individual right. White�s hardheadedness made him hard to pigeonhole: he voted with the liberals on (most) civil rights matters, and with the conservatives on (most) criminal matters.

But his approach was in many ways a foreshadowing of what was to come. In the 1996 case of Romer v. Evans, for example, the Supreme Court struck down an anti-gay-rights provision adopted in a Colorado referendum. The majority�s reasoning was that the provision � which barred localities from adopting gay-rights ordinances � failed �rational basis� review because the Court could identify no legitimate governmental purpose behind it. Instead, the Court held, the provision was motivated by a �bare desire to harm an unpopular group.�

Although �rational basis� analysis was long taught in law schools as being synonymous with �the law will be upheld,� White was long a champion of a more rigorous approach. The Romer decision is a fitting example of White�s legacy for another reason, too: it was criticized from both left and right. The left didn�t like it because it contained no ringing affirmation of gay rights. The right didn�t like it because it was insufficiently deferential to the state.

It may seem odd to link White�s legacy to a gay-rights case, given that his most unpopular opinion was probably the majority opinion he authored in the 1986 case of Bowers v. Hardwick. The Bowers case involved the constitutionality of a Georgia law making homosexual (and, actually, heterosexual) sodomy a felony punishable by up to twenty years imprisonment. White�s majority opinion upheld the law, finding no �fundamental right� of homosexuals to engage in sodomy.

White�s opinion was, in my own opinion, wrong. Under the logic of Griswold and Romer, the Georgia law is irrational � though since, despite the disingenuous claims of Georgia�s counsel at oral argument, it applied to heterosexuals and homosexuals alike, it was at least nondiscriminatory.

But though White may have been unable to bring himself to follow his own lead in Bowers, the courts of many states � including Georgia � have since struck down their sodomy laws on precisely the ground that they are irrational, and fail to advance a legitimate governmental purpose. In court after court, judges have examined the various justifications offered for laws banning homosexual sodomy (for example, that homosexual relationships can�t lead to children) and concluded that they didn�t make sense (after all, we allow heterosexuals who are sterile, or too old to reproduce, to have sex). White�s methodology, it turns out, may have had more impact than the opinion he authored.

What�s more, this principle is spilling over from traditionally liberal subjects like gay rights to those generally regarded as conservative. We see even economic regulations � once almost immune from judicial scrutiny � being examined in terms of rational basis and governmental legitimacy today. Just recently, for example, the Institute for Justice persuaded a court in my home state of Tennessee to strike down a law banning the sale of caskets by anyone other than a licensed funeral director, even though independent sellers could offer the same caskets at a fraction of the price. The state�s asserted justifications, it was found, were irrational: no one ever �protected� a consumer by keeping markups at four hundred to six hundred percent.

The principle that laws should make sense is, in fact, a radical one. While it has a long way to go before it has occupied the field, it has made great strides since Justice White began championing it. Like White himself, it will produce decisions that sometimes look conservative and sometimes look liberal. But it is really a species of muscular skepticism that � like White himself � is not made for ideological pigeonholes.

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Glenn Harlan Reynolds is Professor of Law at the University of Tennessee, and publishes the InstaPundit.Com website.

Wall Street Journal, December 28, 2001
Of Capitalism and Third Places
Glenn Harlan Reynolds

Senators have �hideaway offices,� and so do I. Theirs are scattered in various nooks and crannies around the Capitol. Mine is at the local Borders. Theirs are more prestigious, but mine has better coffee.

I have an office with a nice computer, and I have a study at home with a nicer computer. But I often pack up my laptop, or a book that I�m reading, or student papers to grade, and relocate to this third place: somewhere more congenial than the office, less isolated than home.

Others must feel the same way, because when I�m there I find myself surrounded by people of all sorts. On a typical day there will be two or three with laptops intently writing, well, something. There will be tables full of high-school or college students, alternately studying and flirting, a home-schooling parent drilling a child on Babylonian history, one or two road-warrior salespeople catching up on scheduling and messages, a claque of bible-studiers arguing about Job, and a leather-clad cyberpunk-looking youth sitting with his more conventional mother. By now, I know all the regulars by sight, and many by name. We keep up on each others� lives in a casual sort of way.

This third place, of course, is the �Third Place� that sociologist Ray Oldenburg called essential to civilization in his 1989 book, The Great Good Place. The third place had several characteristics: it had to be free or inexpensive, offer food and drink, be accessible, draw enough people to feel social, and foster easy conversation. Another characteristic that Oldenburg identified was that such places were disappearing.

In 1989, they were. In 2001, they�re not � and you can thank the much-maligned �chain book superstores� for this. Certainly when I moved to my upscale Knoxville suburb in 1989, there weren�t many such places. Nor had there been many in Washington, D.C., where I came from: the Afterwords caf� at Kramerbooks was the closest thing, but it didn�t really fill the bill. When I lived in New Haven, the famous Atticus books was like a poor man�s Borders � without public restrooms. (They�ve since added them, in the face of competition from the palatial Barnes & Noble – operated Yale Co-op down the street).

Now, within about a mile of each other, are three big bookstore/caf� complexes: Borders, Barnes & Noble, and Books-a-Million. All seem to be doing well.

They�re doing well because they�ve identified a need, and they�re meeting it. You�d think that this would make a lot of people happy � and of course, it does, as I can tell just by looking around. But you�d think it would make more than just the customers happy; you�d think that it would please the people who are always worrying about America�s need for �community.�

In that, however, you would mostly be mistaken. While hostility toward book superstores has receded from its late-90s peak, it is still very real. Independent bookstores, we are told, are genuine; chain bookstores are all about marketing. Chain bookstores are bad for small presses, bad for communities, and � as Carol Anne Douglas writes in Off Our Backs � bad for feminists, whose books apparently can only be bought at �feminist bookstores.�

I don�t know about the feminists, but small press sales appear to be up thanks to chain bookstores� larger selection of titles. Communities are surely benefitting from the introduction of pleasant third places where such didn�t exist before. And what�s more, with the exception of a handful of independents, chain bookstores are better at being third places.

That�s because independent bookstores have traditionally been run by people who like books. Those people generally aren�t interested in offering the other amenities that Oldenburg calls important and that superstores offer, like coffee shops, comfy chairs, and live music performances. At many independent bookstores, they like books better than people, and want you to know it � the bookish version of the music geeks in the movie High Fidelity. The chains, however, aren�t in business for personal gratification. They just want to keep customers coming back. Want coffee? Got it! Want a triple mocha latte, and handmade fresh salads from the Tomato Head restaurant downtown? Got it! And, interestingly, the extra traffic that these amenities produce means that chain stores typically can afford a better selection of books than the independents, too, which is why small presses are benefitting right along with latte-lovers.

Well, no surprise there. That�s what capitalism is all about. Funny that it�s a dirty word to some people.

Glenn Harlan Reynolds is professor of law at the University of Tennessee and publisher of InstaPundit.Com.

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The Boston Globe, November 25, 2001
Ashcroft and the Second Amendment
Glenn Harlan Reynolds

The Attorney General was asked a question at a Congressional hearing: “What in your opinion would be the constitutionality of a provision added to this bill which would require registration [of firearms]?” His answer: “I am afraid it would be unconstitutional.”

The year is not 2001, but 1934, and the Attorney General is not John Ashcroft, but Homer Cummings. Cummings was hardly the first to think there were constitutional barriers to gun control. Throughout the nineteenth century, leading scholars like Thomas Cooley, Joseph Story, and St. George Tucker had found the Second Amendment protected an individual right to arms against federal interference. Congress agreed: the 1866 Freedmen’s Bureau Act provided that “the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens.”

Leading modern scholars of constitutional law agree. Laurence Tribe of Harvard has written that the Second Amendment protects an individual right. So have William Van Alstyne of Duke, Eugene Volokh of UCLA, Randy Barnett of Boston University, and many others. They also agree with Ashcroft’s statement that this right does not bar reasonable regulations aimed at preventing crime, rather than disarming honest citizens.

The twentieth century Congress agreed with its nineteenth century counterpart: the 1986 Firearms Owners’ Protection Act found that “the rights of citizens to keep and bear arms under the second amendment to the United States Constitution” required additional legislation for their protection. An accompanying Senate Judiciary Committee report on the Second Amendment stated that “what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.” And in several cases � some quite recent � the Supreme Court has, though admittedly in dictum, lumped the right to arms together with clearly personal rights like free speech.

Despite this, Attorney General John Ashcroft’s recent statement that the Second Amendment protects an individual right was treated as a lurching departure from settled law by some. Yet Ashcroft’s interpretation sits rather comfortably with the mass of opinion from other branches.

The chief opposition to the individual-rights view comes from gun-control advocacy groups. I’ve never quite understood why gun-control groups have felt it necessary to adopt an absolutist no-right-to-bear-arms position, when it is clear that the individual right view leaves room for reasonable regulation, so long as that regulation is really about preventing criminals from getting guns, not disarming ordinary citizens. (I myself have written that gun registration wouldn’t violate the Second Amendment). But such absolutism is one of the dynamics of our ongoing culture war, on the left as much as on the right.

Some critics of Ashcroft’s view have claimed that it conflicts with United States v. Miller, the 1939 Supreme Court case that is its only opinion directly addressing a Second Amendment argument in the past hundred years. Miller, we are told, makes clear that the Second Amendment only protects the National Guard. There are two major problems with this argument. One is that Miller never mentions the National Guard. The other is that the only action actually taken in Miller was to remand the case back to the District Court (which had previously held the National Firearms Act unconstitutional on Second Amendment grounds) for factfinding on the issue of whether a sawed-off shotgun was the kind of weapon the Second Amendment protects. Whatever Miller did, it did not endorse the “National Guard” theory.

The lower federal courts are a different story. The lower courts’ resistance to the individual-rights view has, at least until recently, been widespread, and those criticizing Ashcroft’s position have been quick to point to these decisions as evidence that Ashcroft is somehow off the reservation. Yet on closer examination, the lower courts’ opinions are less persuasive. In a recent article, Professor Brannon Denning of Southern Illinois University Law School analyzed all the lower court decisions on the Second Amendment, and concluded that , “lower courts have strayed . . . from the Court’s original holding to the point of being intellectually dishonest.” Many lower courts in fact have endorsed the National Guard theory. Of course, many of them also claim that Miller did the same, which it clearly did not, and to read these opinions in series is to see lower courts progressively and unashamedly moving the goalposts in order to ensure that � regardless of the arguments offered by counsel � no one could possibly succeed in a Second Amendment challenge. This line of cases is no great testament to the rule of law. The U.S. Court of Appeals for the Fifth Circuit agreed with this last month when it essentially adopted Professor Denning’s criticism of other lower court decisions and held that the Second Amendment does in fact protect an individual right. In response to this decision, Michael Barone noted that “It will now be very hard�I would say impossible�for any intellectually honest judge to rule that the Second Amendment means nothing.”

On analysis, therefore, it appears to be the lower federal courts (except, now, for the Fifth Circuit) who are out of the mainstream on this issue. So are the gun-control groups who so vigorously invoke the lower courts’ opinions to deny any possibility that the Second Amendment (which is, after all, one-tenth of the Bill of Rights) does anything so uncouth as to create an enforceable constitutional right.

Glenn Harlan Reynolds is Professor of Law at the University of Tennessee, and writes for the InstaPundit.Com website.

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NICK LEMANN PROVES MY POINT: Writing in The New Yorker, he observes:

“Millions of Americans who were once in awe of the punditocracy now realize that anyone can do this stuff—and that many unknowns can do it better than the lords of the profession,” Glenn Reynolds, a University of Tennessee law professor who operates one of the leading blogs, Instapundit, writes, typically, in his new book, “An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government and Other Goliaths.”

The rhetoric about Internet journalism produced by Reynolds and many others is plausible only because it conflates several distinct categories of material that are widely available online and didn’t use to be.

I appreciate the book plug. But, actually, it’s Lemann who’s doing the conflating, taking my comments about punditry and then applying them to hard-news reporting. Lots of other people responded to Lemann while I was away — Rebecca MacKinnon has a response and a big roundup here — so I’ll just note one recent event that suggests that the standards set by alleged professionals aren’t very high.

That, of course, is Reuters’ use of faked photos from Lebanon, part of a larger trend on the part of allegedly professional and objective Western media to use local stringers who are thoroughly anti-Israel and anti-American and then present the resulting reporting as if it were neutral and factual. And it’s not as if the most recent developments are unusual.

I agree with this take: “Quite apart from the dismaying ineptitude of missing the clear evidence of manipulation that bloggers will eagerly and easily throw in their faces, we should worry that there is much more subtle and expert use of photoshopping going on all the time.”

Despite claims to the contrary, I haven’t argued that blogs will replace traditional journalism. But this stuff makes “amateur hour” look pretty good. And if a blogger had perpetrated this kind of a fraud and had it reproduced all over the world, I suspect we’d be hearing much more in the way of tut-tutting from the likes of Lemann.

INCOHERENCE ON PRIVACY: Dave Weigel thinks that the New York Times did nothing wrong in publishing the GPS coordinates of Cheney and Rumsfeld’s vacation homes, because anybody can find that stuff in this Internet age. But in the same post he writes:

As so often happens with these things, angry bloggers have struck back and posted the addresses and phone numbers of the Times’ photogs. (No link.)

No link? Why not? By Weigel’s standards, a link wouldn’t contribute to invasion of privacy. Anybody can find that stuff, right?

And if anybody can find that stuff, why’s he so upset about publishing office phone numbers of public officials?

More coherent thoughts on the subject can be found here.

UPDATE: As usual, Glenn Greenwald is clueless, accusing me of being a major promoter of StopTheACLU.com when in fact I was the target of a targeted mass-delinking at their behest. Glenn — read the Online Integrity principles linked above if you want to know what I think about privacy. Jeez.

And why is your publishing of my email different, exactly, from the “thuggish” tactics you condemn? Grow up.

ANOTHER UPDATE: Reader Patrick Kelly emails:

In order to avoid work, I looked at Greenwald’s post on your “promoting” “Stop the ACLU.” I even clicked through the links. Greenwald’s links don’t come close to his descriptions. Your post “approvingly citing” the STACLU is a link to a Sacramento Bee story noting a guilty verdict in the Hayat (Lodi) terror case (via STACLU, hardly approving of its mission). The “often” link references the Solomon act decision, and says “John Stephenson is gloating.” Hmmm, that’ a clear endorsement if I ever saw one. The “promoting” link refers to a link that goes to a blogger asking for financial help (again, via John Stephenson, and again, hardly support for his contention).

But the bottom line is, how can anyone read your site and conclude that you are firmly opposed to the ACLU? You are either with the Left in all things, or they don’t want you for anything. Take that Joe Lieberman.

Greenwald’s readers, as previously discussed, don’t seem to follow the links. His descriptions often diverge rather sharply from the linked items. And I link lots of people I don’t “approve of” — like Greenwald!

But reading blogs to avoid work? Say it ain’t so!

MORE: Reader Jeff Kimmel emails:

If posting someone’s email address is just as thuggish as posting that person’s home address, why do you post your email address on your site and not your home address?

I don’t think it is thuggish. But Greenwald seems to think that posting a public official’s office phone number is thuggish, and those two things don’t seem very different. When Greenwald posts my email, though, he doesn’t even bother to spamproof it, as I do on my site, meaning that not only do I get lots of abusive and illiterate emails from readers of his site who don’t even bother to follow the link and read what I actually wrote, I also get emails offering to refinance my mortgage and introduce me to sexy Russian women. Which, it’s true, are often politer and better-written than the ones from Greenwald’s readers, but which are nonetheless undesirable. That’s not thuggish, just thoughtless.

Anyway, I think that the privacy guidelines at the Integrity site are pretty good ones, and the blogosphere would do well to follow them.

MORE: And, yes, I do have my email address on the site — but it’s got some sort of nifty javascript antispam that Stacy Tabb put on it. It’s generally good manners to post emails in the form “pundit -at- instapundit.com” or some such so that spam harvesters don’t catch them. That’s what I usually do. My other problem with Greenwald is that his readers seem to email based on his, often inaccurate, descriptions rather than following the link and reading things for themselves.

MORE STILL: People unclear on the concept. . . Reader D.G. Fisher writes:

I agree with you that publishing your email address and publishing your home address are EXACTLY the same thing.

So please, let’s have at it and publish your home address on your weblog so we can now see where you live and I can drop by and knock on your door and hand-deliver my messages to you personally instead of having to do this impersonal arms-length email thing.

C’mon Glenn, you owe us that much. Email addy/ home address — there’s no difference, nuh-uh, not as far as any sensible person can see. Get to it already and publish your home address. Your home phone number would be pretty cool too.

Funny, but I don’t think I said that. In fact — remember how we started out? — it was Dave Weigel, way at the beginning of this post, who seemed to say that publishing not just the address, but the GPS coordinates of Rumsfeld and Cheney’s houses is okay, because people can find it anyway, but that publishing the office phone number of a university chancellor was something awful. And I was the one who suggested that this didn’t make much sense.

As I noted above, I think the Online Integrity principles make more sense. And I guess, once the sarcasm is gone, that D.G. Fisher thinks the same thing.

So where does he get the idea that I feel otherwise? Where else than from Glenn Greenwald, who once again misrepresents my position in order to make his point: “Listing someone’s email address and their home address are, argues Reynolds, indistinguishable and equally ‘thuggish.'”

Except that I don’t argue that. Greenwald is arguing with himself. I think he’s got his Glenns confused. And for those who don’t follow links, here are the Online Integrity principles on this stuff:

Private persons are entitled to respect for their privacy regardless of their activities online. This includes respect for the non-public nature of their personal contact information, the inviolability of their homes, and the safety of their families. No information which might lead others to invade these spaces should be posted. The separateness of private persons’ professional lives should also be respected as much as is reasonable.

Public figures are entitled to respect for the non-public nature of their personal, non-professional contact information, and their privacy with regard to their homes and families. No information which might lead others to invade these spaces should be posted.

Clear? I think so.

A LOT OF PEOPLE seem to suddenly miss the Independent Counsel law, just as Megan McArdle predicted. Funny, I remember when the very idea of this sort of thing was anathema to the Republic. You’d almost think that people’s views on these questions were driven entirely by political concerns.

In The Appearance of Impropriety, (now available in paperback! — and at an irresistible price! — makes a great birthday, wedding, or Bar Mitzvah gift!) Peter Morgan and I wrote about these dynamics. (And it was considered a largely pro-Clinton book at the time, which Lanny Davis used in a class he taught on political communication. How things change.) Of course, Ashcroft can appoint a Special Prosecutor, which is not quite the same thing as an Independent Counsel, even though the Independent Counsel law has expired. Should he? Perhaps, though I think the right way to investigate this is to get the journalists involved — and perhaps Joseph Wilson, Valerie Plame, and George Tenet — under subpoena and just ask them who said what to whom. Then you can fire, or prosecute, the leaker if it’s warranted. You don’t need a Special Prosecutor to do that.

UPDATE: Here’s the model approach, right here:

James A. Wells, Assistant U.S. Attorney General: Tell you what we’re gonna do. We’re gonna sit right here and talk about it. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them subpoenees he’s got stuck down in his pocket and we’ll go downstairs and talk in front of the grand jury. …Elliot? Jim? …Fine. All right, Elving, hand whichever one of these fellas you like a subpoenee and we’ll go on downstairs and talk in front of the grand jury.

District Attorney James A. Quinn: Gallagher’s a government witness.

James A. Wells, Assistant U.S. Attorney General: Wonderful thing, a subpoenee.

——————————————————————————–
James A. Wells, Assistant U.S. Attorney General: You had a leak? You call what’s goin’ on around here a leak?! Boy, the last time there was a leak like this, Noah built hisself a boat.

——————————————————————————–
James A. Wells, Assistant U.S. Attorney General: Now we’ll talk all day if you want to. But, come sundown, there’s gonna be two things true that ain’t true now. One is that the United States Department of Justice is goin’ to know what in the good Christ — e’scuse me, Angie — is goin’ on around here. And the other’s I’m gonna have somebody’s ass in muh briefcase.

Too bad Wilford Brimley isn’t available.

UPDATE: Click “more” below for a piece I wrote for Newsday on the expiration of the Independent Counsel Act, which has at least some relevance to today’s issues. And here — far more timely — is a lengthy post by Bill Dyer on the legal issues involved. He also suggests Rudy Giuliani as the special prosecutor, should one be appointed.

Sounds good to me. And here’s a call for Senate hearings. Just make the journalists testify under oath?

Continue reading ‘A LOT OF PEOPLE seem to suddenly miss the Independent Counsel law, just as Megan McArdle predicted. …’ »

JOHN LOTT UPDATE: My last post on John Lott produced a criticical email from Ben Zycher, an economist at RAND who thought I was being unfair to Lott. I offered Zycher space to respond, and what he sent is set out below (click “more” to read it). I was hoping for something that went into more detail regarding the statistical issues involved, but . . . .

In a related development, Clayton Cramer responds to an email from Tim Lambert regarding Lott.

UPDATE: Another economist has emailed in with comments. Click “More” to read them, too.

ANOTHER UPDATE: James Lindgren has emailed a lengthy response to Zycher’s comments, also reachable by clicking “more.” There’s also more from Tim Lambert, and an update from Lindgren, below now.

Continue reading ‘JOHN LOTT UPDATE: My last post on John Lott produced a criticical email from Ben Zycher, an economi…’ »

BELLESILES UPDATE: An article by Jon Weiner in The Nation portrays Michael Bellesiles as the victim of a gun-lobby witch hunt, concluding:

But the campaign against Bellesiles has demonstrated one indisputable fact: Historians whose work challenges powerful political interests like the NRA better make sure all their footnotes are correct before they go to press.

Unfortunately, the article also serves to illustrate that those who challenge politically powerful anti-gun interests will get slimed even if their footnotes are correct. The article is quite nasty to NWU legal historian James Lindgren, though it doesn’t seem to identify a single inaccuracy in his Yale Law Journal article on the problems with Bellesiles’ Arming America.

This is itself a problem, as I’ve written elsewhere:

When fraud is discovered, it is usually by another researcher whose skepticism is aroused. Yet uncovering fraud usually isn’t considered as valuable to an academic career as original research is; worse yet, some scholars who expose their colleagues as frauds face resentment from those who dislike seeing their field’s dirty laundry aired. But the absence of consequences for fraud can only make the problem worse. If we want to discourage fraud, we need to ensure that the people who discover it are recognized for their contributions – which, after all, spare other members of the field years or even decades of wasted effort based on fraudulent work – and properly rewarded. And, of course, we need to ensure that those who commit fraud are properly punished.

Those who complain that academics don’t do enough about fraud in their midst need to recognize that attack pieces like this one are one reason why that is so.

Some of the statements about Lindgren in this piece ring false to me. I’m going to see if I can get an email from him. If so, I’ll post what he sends. In the meantime, I invite readers to follow the link to the Yale Law Journal piece and to compare it with The Nation’s article and decide for themselves.

Meanwhile, there’s no word yet on what Emory plans to do about Bellesiles.

UPDATE: Lindgren sends the following via email:

As anyone familiar with the Bellesiles matter can plainly see, the Nation article has a large number of errors. Since the Nation was unable to find any factual errors in my scholarship, it instead attempted some rather crude ad hominems. Among them, it says that I urged people to retract their reviews of Arming America. If I had done so, that would indeed have been unusual, though not improper. But what I did was urge two authors to correct or retract one statement in their reviews merely by an online post to H-Net lists, which eventually they both did, because the particular statements were indeed factually wrong. I never said the words that one of those authors, Matthew Warshauer, attributes to me in the Nation article.

Referring to me, the Nation also says, “He accuses Bellesiles of bias . . . .” I have never accused Professor Bellesiles of bias (nor of prejudice). To the contrary, I have repeatedly argued that such claims of bias are incoherent in this matter.

In addition, Clayton Cramer has blogged some comments. (Eugene Volokh calls it “a very good response to The Nation’s rather weak defense of Bellesiles.”) I should note, too, that the Nation piece fails to mention that the big explosion in publicity over Bellesiles’ work came after the Boston Globe — hardly an NRA mouthpiece — published an investigative piece on Bellesiles’ work. And how come it links to Bellesiles’ website, but not to the Lindgren article — freely available on the Web in several places — or to any of the other criticisms on Bellesiles?

As Volokh says, rather weak. Even for The Nation. As that other NRA mouthpiece, The New York Times noted:

Without doubt, Mr. Bellesiles’s research would not have received such careful scrutiny if he had not stepped into the politically and ideologically charged struggle over guns. Yet the scholars who have documented serious errors in Mr. Bellesiles’s book — many of them gun-control advocates — do not appear to have any sort of political agenda.

They were struck by his claim to have studied more than 11,000 probate records in 40 counties around the country. He found that between 1765 and 1790, only 14 percent of estate inventories listed guns, and “over half (53 percent) of these guns were listed as broken or otherwise defective.” Those claims are featured prominently in the book and were cited in many positive reviews as the core of its argument.

But those who tried to examine the research soon found that they could not, because most of Mr. Bellesiles’s records, he said, had been destroyed in a flood. The records they could check showed an astonishing number of serious errors, almost all of them seemingly intended to support his thesis. In some cases his numbers were off by a factor of two, three or more, said Randolph Roth, a history professor at Ohio State University.

To use one example: in his book, Mr. Bellesiles writes that of 186 probate inventories from Providence, R.I., recorded between 1680 and 1730, “all for property-owning adult males,” only 90 mention some form of gun, and more than half the guns were “evaluated as old and of poor quality.”

At least three scholars have independently examined the same archive and found that 17 of the estates in question were owned by women; that some estates lacked inventories, and that of those that had them, a much higher percentage than Mr. Bellesiles reported contained guns; and that only 9 percent of the guns were evaluated as old and of poor quality.

“The number and scope of the errors in Bellesiles’s work are extraordinary,” Mr. Roth said. They go well beyond the probate record data, he added, affecting Mr. Bellesiles’s interpretation of militia returns, literary documents and many other sources. . . .

Those who have pressed him hardest for details say they have been led on a bizarre scholarly car chase, with Mr. Bellesiles offering new memories about where he got his records as soon as the old ones were discredited. (Emphasis added).

What, the folks at The Nation don’t read The New York Times?

UPDATE: Arthur Silber has a long post on Jon Wiener’s article, which segues into a lengthy discussion of bias on both left and right. But here’s an on-topic excerpt:

I hope you will read both Wiener’s Nation article and the Lindgren Yale Law Journal piece — and I think the difference in tone and approach will strike you as forcefully as it did me. (I also point out that the Lindgren piece contains an Appendix which discusses over 200 documents which Bellesiles misread or misinterpreted in basic ways in the first edition of his book.) But with regard to the Nation article, I will note two aspects of it: first, approximately the first third of the article is devoted to a personal reminiscence concerning a lecture by Bellesiles that Wiener attended — and he takes every opportunity to describe the pro-gun individuals who also attended (and who challenged Bellesiles’ findings) as “unusually large men” — in other words, and in Wiener’s view, pro-gun, NRA-type thugs. And this is apparently seriously offered as some sort of legitimate argument which, by implication and for “right-thinking” kinds of people, ought to make us question the legitimacy of a scholar such as Lindgren. Second, the entire article is remarkably, and inappropriately, “personal” in tone. It is, as Reynolds also notes, quite nasty to Lindgren — although, very significantly, Wiener does not offer even one substantive argument challenging even one of Lindgren’s conclusions.

Indeed. And he’s right that you should read the two pieces and compare their tone.

ELECTED DICTATORS: Can you be a dictator if you took power legitimately through an election? Readers seem to be enjoying this debate, so I guess I’ll weigh in further.

The short answer is “yes,” and in fact the original “Dictator” — a war leader used by the Roman Republic — was legitimately chosen, though he was “elected” by the consuls. (But as this Roman history page from the University of Texas illustrates, the Dictator is sometimes grouped with the elected magistrates. The Roman Republic — like our own system — was far from a pure democracy). The Dictators tended to abuse the, um, dictatorial powers they were granted, which led to the term becoming pejorative. (This is a cautionary tale regarding the grant of extensive wartime powers generally, of course, even through legitimate processess).

Reader John Monasch writes:

Will the “Chavez, dictator or democrat?” debate continue? I contribute the following recent, non-Nazi example of a democratically elected leader morphing into a dictator (in case you haven’t thought of him or others already):

Peru’s Alberto Fujimori

Please use him if you continue this mini-feud (it’s fun for the readers). This example also seems to back up Porphyrogenitus’s claim that people would be more outraged if Chavez was right-wing. I’m definitely a Reynolds partisan but I think that Alterman may have the advantage in that, so far, Chavez cannot be completely booted out off the democratic leader camp and into the dictator column. He hasn’t rigged or cancelled any elections (yet) a la Arafat and Fujimori and the shooting of protestors and jailing opposition has not quite reached dictatorial proportions (yet), but I could be wrong. I know he’s tried to tinker with the Venezuelan constitution but it may have been through proper legal challenges; I don’t know enough about the details to say for sure. He’s very iconoclastic.

Alterman may be right about the label you used but you, however, have the advantage in the big-picture argument in that Chavez (former failed coup leader) is a dangerous figure and needs to be watched, if not overthrown outright. Just because he’s not a dictator, doesn’t mean his actions are defensible. If he makes it to the next election, he’s toast and will probably cancel or rig them and then you will be able to laugh at Alterman. In the meantime, democrat or not, Chavez will continue to cause further misery and shame for the people of Venezuela. At least Fujimori did mostly good things for his country and is an anti-terrorist hero. Too bad he slipped into corruption couldn’t let go of power in the end. I have a hunch that if conditions in Peru worsen, Fujimori’s reputation may eventually be rehabilitated and he may even return from exile in Japan. Maybe not. He slipped pretty badly. But I’d take him, over Chavez any day. Alterman wouldn’t.

Well, I’m glad you’re enjoying this (very) mini-feud. We aim to please.

Personally, I’d say dictator is as dictator does — and more important than whether he/she was democratically elected is the question of whether he or she can be democratically unelected. Chavez, as I mentioned earlier, is no Hitler. But he’s hardly a posterboy for democracy and legitimacy, either. It seems clear that he’s willing to do pretty much anything, legal or otherwise, to keep and expand his power, which to me is the hallmark of a dictator.

Another example is Robert Mugabe — democratically elected at first, but a pretty indisputable dictator now. If you don’t want to count him as a dictator, then it suggests that your definition of dictatorship is too damned narrow.

UPDATE: Lynxx Pherrett notes that no similar outrage attended the removal of the Estrada regime in the Philippines:

Both Chavez and Estrada were clearly elected, both convincingly ran as champions of the poor, both fail(ed) as President, both were ousted in mob rule/direct democracy protests; Chavez was reinstated after counter-mob rule/direct democracy protests while the EDSA III protests/May Day riot failed to regain the Presidency for Estrada.

That the Left is acting outraged over Bush’s response to the events in Venezuela in 2002, after only mildly questioning while tacitly approving the Philippine coup in 2001, has more to do with their disapproval of Bush’s Mid East policies than any actual concern for constitutional procedures and the rule of law in other countries. In 2001, Bush wasn’t telling the Palestinians that they had better come up with some responsible leadership if they wanted to talk to the US, so both the Left and the Right could quietly watch a (mostly) bloodless coup in the Philippines. But now it’s a little over a year later, the Left had to squawk about Chavez to maintain their front of “principled opposition” to any Administration pressure for the ouster of Arafat.

I’m not sure that it’s concern for Arafat that’s the motivator here — even my cynicism has limits — I think it’s more that this presents an opportunity to attack Bush.

UPDATE: And no, this isn’t a “feud” that Alterman and I have cooked up to generate traffic. We’re responsible bloggers, and we wouldn’t do that.

ANOTHER UPDATE: Boy, but if we did, we’d be geniuses, judging by all the email this has generated. Reader Robert Hochman writes:

I noticed your discussion of elected dictators and couldn’t agree more with your analysis. Democratic legitimacy comes not only from getting elected, but most importantly from ruling and submitting oneself for re-election.

Without trying to be self-promoting, this is the very point I made a few days ago in the The New Republic online, when talking about democratic reform in the Palestinian territories. President Bush said that rejecting old leadership and adopting reforms is a pre-requisite to statehood. What he didn’t say, and what he should have said, is that electing new leadership that implements anti-terror policies, AND re-electing those leaders after a fixed term in office is a pre-requisite to statehood.

Yes. I think that being able to get rid of leaders is a greater hallmark of civilization than electing them in the first place.