The Right Coast

December 31, 2003
If it can't run away, don't eat it
By Tom Smith

Until recently the American Meat Institute and their subsidiary, the US Department of Agriculture, held that there was no problem feeding us with beef from cattle too sick to walk. Pardon me, but I think I might throw up every hamburger I have ever eaten, and let me assure you, that is quite a few.

Thank goodness for the government. Now that it turns out that doing so might turn hundreds or thousands of us into stumbling vegetables with brocoli for brains, the Department of Agriculture has ruled, if Betsy can't make it on her own to the slaughterhouse, then she's not fit to be et. I would not have thought it necessary to ask before, but does the DOA have any position on roadkill? And what about the definition of "beef"? Does it include, say, rats? I think the time may have come to go organic, meat-wise.

To be more honest about it, I should probably admit there isn't a lot that I won't eat. I need the DOA to make sure there is nothing disgusting in my hamburgers, because even a big sign at Ralph's saying "Warning: You don't even want to think about what is in this stuff" wouldn't deter me much. One summer I worked on a ranch, and there was a beef critter with a large mass on its leg, a tumor perhaps. The ranch manager decided it had to be slaughtered and would be fed to us. As the new guy, I got the honor of dispatching the creature, for which I was given a none too sharp GI bayonette. I learned something profound from the experience, which is, if you have to kill something with a big knife, make sure it is sharp. Actually, I also learned that cows deserve respect, fear death, and look really sad right before you kill them. I would be a vegetarian myself, except that I really like to eat meat. Anyway, the point is that all of us ate up this sick steer. It was tough, but tastey. Ranchers know their human primates. They'll eat anything.

I'm into small government, but I think it's fine if the feds say -- Novel thought! Let's not grind up the brains of cows with a horrible, deadly disease and mix them into America's favorite food! Whaddiasay, guys!

By Michael Rappaport

America's best columnist has another gem:
    Yeah, sure. After 18 years of American sanctions, Moammar Gaddafi randomly picks Dec. 19, 2003, as the day for his surrender. By amazing coincidence, Gaddafi's first message to Britain -- principal U.S. war ally and conduit to White House war councils -- occurs just days before the invasion of Iraq. And his final capitulation to U.S.-British terms occurs just five days after Saddam Hussein is fished out of a rathole.

    Sen. John Kerry was equally ridiculous in his explanation of the Libya deal: "An administration that scorns multilateralism and boasts about a rigid doctrine of military preemption has almost in spite of itself demonstrated the enormous potential for improving our national security through diplomacy."

    The Democrats seem congenitally incapable of understanding that force has not just the effect of disarming the immediate enemy but a deterrent effect on others similarly situated. Iraq was not attacked randomly. It was attacked as part of a clearly enunciated policy -- now known as the Bush Doctrine -- of targeting, by preemptive war if necessary, hostile regimes engaged in terror and/or refusing to come clean on WMDs.

The Real Sharon Plan
By Michael Rappaport

A great column by Barry Rubin in the Jerusalem Post (link requires registration). Rubin begins:
    It's astonishing to read interpretations of Prime Minister Ariel Sharon's speech at the Interdisciplinary Center's Herzliya conference.

    On one hand, it is being analyzed as a unilateral withdrawal bordering on surrender to terrorism; on the other hand, others are saying that the plan is a meaningless gesture or trick.
Rubin corrects these misinterpretations:
    [Sharon's] approach is to ask which specific pieces of territory it is in Israel's interest to hold, with a view both to short-term security during the Interim Era and in some cases to obtain as a result of a peace agreement if and when that happens.

    In some cases, this could mean pulling out of areas which Israel controlled at the end of the Oslo process in September 2000. Illegal outposts would be removed, which the government already agreed to do in the road map. Some small settlements which were judged to be of little value and big security problems would be dismantled.

    By the same token, however, there might be other small, uninhabited areas under Palestinian control as of September 2000 where Israel might remain. And on top of this, Israel continues to insist on its right to enter any place in the West Bank or Gaza Strip if security needs require.

    In short, combined with the completion of the security fence, this is a rational reevaluation of policy. It is not intended to prefigure a comprehensive peace treaty, but rather to govern Israeli behavior in the Interim Era.

December 30, 2003
What would we do without the Times
By Tom Smith

You would think that with a whole Sunday magazine devoted to people who died in 2003, the Times could have found room for at least one soldier or marine who died in Iraq or Afghanistan. But no. There is an endlessly admiring obit of Serigo Vieira de Mello, the UN special envoy killed by a truck bomb some weeks ago in Bahgdad. After his death, the UN promptly pulled out. Am I missing something here, or is there something fundamentally useless about an organization that 'fights' for peace right up until the moment somebody gets killed? As to the people who are dying and not running away, the Times has nothing to say.

In fairness, I should say this week's magazine is well worth reading, with several fascinating profiles of people I had never heard of, such as Kemmons Wilson, the founder of Holiday Inn. For all that the Times (especially the Book Review) seems to have a requirement that authors try (and usually fail) to make some profound observation or other, this piece actually makes a good point: that the taming of the road trip for the American middle class, by providing clean, reliable accomodations on the road, made it psychologically much easier for baby boomers' kids to leave home for school and career.

But it also would not be the Times if it did not manage to include something that was at once stupid, pretentious, somewhat offensive and at least a little goofy. And the grey lady does not fail us. Allow me to quote from the description of the late Paul Moore, episcopal bishop and patrician do-gooder. With his death, the Times laments, "America lost one of its last dashingly handsome, abundantly sexual WASP crusaders for social justice." Don't they have editors at the Times? What is this supposed to mean? Abundantly sexual? I guess if you're a salesman, you're just horny, but if you're a bishop, you're "abundantly sexual"? I like the use of the churchy "abundantly." You could, I suppose, be "bountifully sexual," or even "bountiously sexual," but perhaps that should be reserved for a female partician WASP saint with a great figure. Pardon me for asking, but just how abundantly sexual was he? Did he bless his flock with his abundant sexuality and crusade for social justice at the same time? That would be something.

Maybe it's a Catholic thing. We have trouble thinking of our saints as, well, hot. But I guess the idea is to suggest that Bishop Moore is so far above all that holy stuff. He was a saint, but not a saint, if you, nudge nudge wink wink, know what I mean. I understand from looking at Albion's Seed, a great book, that the Puritans were, contrary to popular opinion, quite into sex, but it just really, really had to be within marriage. Maybe there's some Episcopalian thing I'm missing about liking Bishops to be studly. But I doubt it. I think the Times is just being its usual toadying, simpering self when it comes to the long-gone WASP ascendancy.
Update: Here's an interesting piece on Paul Moore and the Episcopal Church in the US.

Worthwhile Canadian Initiative
By Maimon Schwarzschild

See "The Barbarian Invasions": a film from the French Canadian director Denys Arcand. It's about a dying man, a 60-ish and 60s-ish college teacher in Montreal. He is an old leftie, raffish and rather sad, who has lived for pleasure. His divorced wife and his estranged son -- a "risk management" capitalist -- bring some of the man's old friends and old mistresses together to be with him. It's funny, complicated, and very touching. The film has had good reviews: many reviewers are calling it the best film, or one of the best, of the year.

What none of the reviews mentions (at least none that I've seen) is that it's also, and on many levels, a deeply conservative movie. The serious side of the film -- about life and about family -- is as conservative as could be. And when the 60s-ish friends talk about politics and ideas in one long scene, they are rueful and pretty disillusioned about all of it: Marxism and Trotskyism, existentialism and anarchism, Quebec separatism, so on and so forth.

The satirical, funny side of the movie is just relentlessly conservative too. The Montreal hospital, under Canadian socialized medicine, is pictured like something out of Calcutta: a nightmare of crowded squalour and corruption. There are thuggish, gangster unions to be bribed. The hospital administrator, in her closely-guarded management suite with its big Quebec flag, spouts p.c. management-speak until she too accepts her bribe. There is a six-to-twelve month (-to forever) waiting period for a CAT scan, until the family go across the border to a private clinic in Vermont for immediate service. What makes the satire devastating (it would be over-the-top otherwise) is that it's delivered deadpan, as background just to be taken for granted.

It's a haunting movie in its way. Very funny too. (For Canadian history buffs, there is a scene -- extraneous to the plot, really, but effective nonetheless -- with a warehouse full of kitschy French Canadian church furniture: unsaleable, of course. The priest hoping to sell the stuff notes that Quebec stopped being Catholic from one month to the next in about 1966. Which in fact is essentially what happened...)

"The Barbarian Invasions" is evidence for Brian Anderson's observation that conservative ideas are appearing, more and more, in various media that were long a monopoly of the political and cultural left.

See the movie.

Tivo heaven
By Tom Smith

I can now record 140 hours of TV on my Tivo. Perfect for the James Bond marathon, every show about exotic, disgusting animals, incomprehensible Japanese cartoons for your children, the Lehrer news hour, K-1 fighting events to watch with your kids, cheesy Sci-Fi movie, ESPN classics from when football was football, and I could go on, and will. I was impressed by the prices at You give them money, and they send you the machine, just like they promise!

Speaking of disgusting animals, how about this? The male angler fish is about a hundredth of the size of the female. To mate, it attaches itself to the side of the female like a little leech. It is then literally absorbed into the body of the female until it is nothing more than a kind of wart with sperm in it. Somehow from there the female absorbs what it needs and reproduces. You can learn a lot from TV.

Stock up before it's too late
By Tom Smith

The feds are banning ephedra it seems. I'm not too ripped up about it (little gym joke there). Here's a dirty little secret of gym rat culture. A lot of those ripped guys and gals you see at the gym? How did they get that way? A lot of them did by taking stimulants such as ephedra. It's popular because it works. You're so buzzed up, you can't wait to get from the bench press to the squat rack. But, you might get a heart attack and die. No pain, no gain. I've never taken ephedra, but I've talked to plenty of people who have. Most of the other stimulants on the market now are just expensively packaged caffine. It's cheaper to go to Starbucks. And that works too! Lots of people use caffine to get them over the hump between the couch and the gym. Maybe it's wrong to invade a country just because they have oil. But I hope no one would suggest we couldn't invade South America if they ever threatened to cut off the coffee supply.

Sanchez on Rand
By Michael Rappaport

In my view, an accurate take from Julian Sanchez on how Ayn Rand often converts people to the right:
    Jerome Tuccile wrote a history of the libertarian movement called "It Usually Begins with Ayn Rand"-- which is accurate enough, since at least when they're first getting interested in libertarian ideas, a lot of people come through Rand. And the funny part is, while she paints herself as this great champion of rationality and logic, the actual philosophy, stripped from the fictional and rhetorical context, is mostly a lot of sophomoric crap. She's not successful because her arguments were any good, but because she effectively gets across a "transvaluation of all values." She paints this portrait of the world going to hell because of political power lust. And, more importantly, she provides this kind of shock-therapy, in that she undoes, at least briefly, a lot of the emotional associations that get drummed into us, and that implicitly shape our political views. Government programs to help people are "generous," and if you want to be good and generous, you support those. Commercial activity is avaricious, and nice people want to constrain the sway of this sphere where greed is the prime engine.

    Nozick once told me that as he was coming to hold classical liberal views, there was a point where he was convinced that capitalism was the best system, but that he must be a bad person to think so. I don't think I'd want to adopt her set of emotional associations wholesale, but for a lot of people she helps to loosen a sort of emotional-intellectual straightjacket that makes it impossible to consider classical liberal ideas without associating them automatically with base motivations, or the opposite ideas with noble ones.

Discontent on the Right
By Michael Rappaport

An interesting piece on discontent with President Bush on the right. Here are two small excerpts:
    "Presidential political adviser Karl Rove estimates that as many as 4 million evangelical voters stayed home in 2000 because they were not sure whether Mr. Bush was "strong enough" on their issues."

    "Pat Buchanan, whose challenge of President George Bush in 1992 is credited by some conservatives as leading to the Clinton presidency, says that if it weren't for the ongoing war the current president would be facing a primary challenge."

Tushnet Responds
By Michael Rappaport

Eve Tushnet responds to my post commenting on her column criticizing same sex marriage.

Quindlen on Liberty
By Michael Rappaport

Although the paragraph below comes from an essay that is a bit old, it is always worthwhile to mention something damning about Anna Quindlen. I do not read her column now, but I suffered for years when she was a New York Times columnist. Here is a short description of Quindlen's reaction to the liberation of Afghanistan:
    "How depressing was it," asked Anna Quindlen in a December Newsweek column, "to see Afghan citizens celebrating the end of tyranny by buying consumer electronics?" Apparently, if you’re somebody like Quindlen -- who confessed in the same column that "I have everything I could want, and then some" -- the spectacle was pretty dispiriting. Liberty itself descends on the land, and the best thing its people can do is go shopping? It was just too vulgar.

December 29, 2003
Mad Cow Disease
By Michael Rappaport

Stephen Bainbridge has a series of interesting posts on issues relating to Mad Cow Disease.

Regulatory Failure: The ESA
By Michael Rappaport

Some powerful criticisms of the Endangered Species Act over at the Conspiracy.

Update: More at the Conspiracy on the ESA. Here is an excerpt:
    A Washington Post editorial tries to claim the law is a success, but only succeeds in demonstrating how ESA myth overshadows environmental fact. For instance, the Post writes, "Thanks to the legislation, the American bald eagle, whose near-extinction had become a symbol for environmental degradation, is still flying." Not quite. The primary threat to the bald eagle was the pesticide DDT, which was linked to reproductive problems, specifically egg shell thinning, in several birds species. Yet DDT was banned in the United States in 1972, over twelve months before the ESA was enacted. Other federal laws, such as the Eagle Protection Act, also provided the bald eagle with specific protection against poachers and collectors. Thus it may be fair to credit the federal government with the bald eagle’s recovery, but the ESA was not the tool of this success. (Much the same can be said about the recovery of the peregrine falcon, which the AP celebrates here.) The Post is equally off-base in crediting the ESA with the recovery of species like the American Alligator, and it is simply perverse to credit the ESA for inspiring an international ban on trade in elephant products – a ban that has done more to imperil elephants, by diminishing the value of elephant herds and their habitat – than it has to save them.

December 28, 2003
Oakshott on Iraq
By Michael Rappaport

David Brooks has another interesting column – I like him better at the Times than I ever did at the Weekly Standard or the Wall Street Journal – on what Michael Oakshott’s attitude would have been towards the American reconstruction of Iraq.

The Oakshott of Rationalism in Politics is great, but I must admit that I have never digested much of the rest of his works. For Andrew Sullivan’s take, see here.

I still remember the first time I read Oakshott. It was in a course at the Yale Law School called The Conservative Tradition. It was taught by Anthony Kronman, and it covered a range of prudential conservative thinkers, including Burke, de Tocqueville, and Arendt. Kronman had a real talent for clear exposition. At the time I had already started to make the move from being a pure libertarian to a fusionist conservative-libertarian due to Hayek’s influence, but Kronman’s class helped to deepen and broaden my understanding of the conservative tradition. Interestingly, Kronman omitted Hayek from the reading list, which was probably a mistake in general, but was fine for me, since I was quite familiar with his views.

By the way, the students in the class were also first rate, including law professors Tom Smith, Akhil Amar, Dan Greenwood and Peter Swire. While the class was one of the best I ever had at Yale, it of course had nothing to do with “real law.”

December 26, 2003
Cool new space telescope
By Tom Smith

Check out the pics from the new Spitzer space telescope at the JPL website.

The Ford Foundation -- And The Carnival Of The NGOs
By Maimon Schwarzschild

The Ford Foundation may now receive some long-overdue scrutiny for its funding of Palestinian (and other Arab) extremist groups, as the Wall Street Journal reports today (registration required). Ford heavily supported the groups that turned the UN's "anti-racism" conference in Durban in 2001 into an anti-semitic hate rally, for example. (The Jewish Telegraphic Agency reported on this in a fascinating series in October.)

There is a broader problem, though. There is now a very extensive network of "NGO"s -- non-governmental organizations -- involved in trying to influence international relations. The NGO world is almost all on the political left, much of it "hard left" by any measure. The NGOs have been given formal standing at the UN and in other international organiztions. Many NGOs, including some of the most zealously leftist of them, are quite lavishly funded: directly by the European Union in many cases, as well as indirectly with a boost from US tax law, as today's Wall Street Journal piece points out. The sheer number of organizations is impressive, if not breathtaking: there are now hundreds, probably thousands, of active NGOs on the international circuit.

When you talk to people involved in international issues, many of them mention quite matter-of-factly that NGOs are active in lobbying foreign governments, especially "third world" ones, and systematically urging these governments to take a "harder" left-wing and anti-American policy line on a wide array of issues, ranging from trade to the war in Iraq.

The NGO phenomenon has received very little scrutiny -- certainly very little critical scrutiny -- from scholars or journalists. (The JTA report on the Ford Foundation in Durban was highly exceptional, and therefore all the more important.) There are obvious legal questions, including whether American citizens on the staffs of NGOs are breaking American laws by lobbying foreign governments to oppose American foreign policy. (It is a criminal offence under the Logan Act for an American to lobby a foreign government "in relation to any disputes or controversies with the United States".)

But mainly, who are these groups? How many are there? What is the range of their agendas, and is it true that they are tilted ideologically to the left or the far left? Which are the biggest and most influential? What are they up to? Where is their funding coming from? How much formal and informal interchange is there among them? And how successful are they at influencing international relations? There is a good book to be written about this -- preferably by someone sceptical but sober. The JTA report is a good start, and a good model.

Gift suggestion
By Tom Smith

Both Professor Rappaport and my lovely wife Jeanne would groove on this.

Cards with kids
By Tom Smith

This is a fun card game for the whole family. It is more sophisticated than it looks, with room for adult fun. For "ridiculous" for example, I chose "Eleanor Roosevelt," which would certainly have annoyed some players. Kids like it too. And, if you like, you could spice it up by playing for money. If you do this, I suggest you shuffle the cards before they are judged, to prevent various strategems. If you play it, you'll see what I mean.

Royal dog fight
By Tom Smith

One of the queen's corgis was mauled to death by her daughter's bull terrier. You can see how it could happen. Every time I see a corgi I sort of want to grab it in my teeth and shake it until it is dead, but maybe that's just me. Oh, alright, I'm just kidding. Any time someone loses a dog, it's a very sad thing. But you would think, with god knows how many lickspittles hanging about, the royals could manage to control their dogs. "James, take Dotty outside, and please don't let her kill anything." How hard is that? Anybody should be able to figure out that you don't let a bull terrier with a violent record play with an annoying little weiner dog with an attitude.

December 25, 2003
Tushnet on Same Sex Marriage
By Michael Rappaport

Eve Tushnet has an interesting piece arguing against same sex marriage and the Massachusetts Supreme Court decision holding that the state constitution requires that same sex marriage be recognized in the state. The logic of her argument against same sex marriage -- that marriage is about protecting children -- seems to suggest that it is problematic for gay couples to adopt or have children. This is a premise that is often omitted from social conservative arguments against same sex marriage, but would appear to be an important part of that argument.

Concerning the Massachusetts Supreme Court decision, Tushnet has this to say:
    ...The Massachusetts court is saying to citizens, "You all go ahead and vote for the laws. Then we'll tell you what you really voted for. Don't expect it to look much like what you thought you agreed to." The rule of law requires that laws be predictable and stable--that laws not be yanked out from under citizens like a carpet in a Tom and Jerry cartoon. The Massachusetts court (like the Supreme Court in Roe v. Wade) has ignored this principle.

    The funny thing is, this bait-and-switch approach to judging may be turned against the Goodridge decision itself in the future. As UCLA law professor Eugene Volokh (who supports same-sex marriage) has pointed out, the language the majority used in its decision gives no good reason to bar polygamy or adult incestuous marriages. If marriage is simply about commitment, well, obviously we can make commitments to more than one person. And we can make commitments to people who are already members of our families - for example, siblings. Why should these commitments not be recognized in law as marriages?
The point in her first paragraph seems undeniable. The point in her second paragraph, however, seems naively academic. If the judges were motivated by consistency, then Tushnet might be right. But they are not: they are motivated by the belief 1) that same sex marriage should be allowed and 2) it is discriminatory for such marriages not to be allowed. It may be discriminatory that polygamy is prohibited, but the judges do not think it should be allowed (nor is there a strong political movement in favor of it), and therefore one should have no worry that it will be protected.

Mad Bureaucrat Disease
By Michael Rappaport

An interesting article on Mad Cow Disease. While one certainly needs to be skeptical of New York Times's articles criticizing cabinet officials in the Bush Administration, somehow I do not find it hard to believe that the Department of Agriculture is both behind the times as to scientific understanding and overly protective, in a short-sighted way, of agricultural interests.

December 24, 2003
Ayn Rand on Christmas
By Michael Rappaport

Tim Sandefur has a quote from Ayn Rand expressing her unique and interesting perspective on Christmas.

Quotes from 2003
By Michael Rappaport

Tim Blair has a long list of his favorite quotes from the year. (Hap tip: Instapundit.) One that caught my eye:
    "The last thing we expected was to be the first to publish anything about the [antiterrorism protests in Iraq]. It felt both good and awful at the same time. Good for scooping Reuters, AFP, AP, and other wire services and media stations. And awful for the people that depended on these services for their news. I'm telling you there were reporters from every station in the world at the demos that day and yet only a few mentioned them at all." -- Iraqi blogger Zeyad
(Emphasis added). I wonder why the reporters failed to mention the protests?

December 23, 2003
Father and Son
By Michael Rappaport

A cute conversation.

More on Marxian Tort Law
By Michael Rappaport

Ethan Leib writes to complain about my post on his Marxist Theory of Tort Law. He writes:
    I wonder if intellectual integrity doesn't demand that we take seriously any idea--even Nazi tort law--if it provides a conceptual arsenal that can illuminate our own practices or provide a standpoint from which to view our own practices in a new light. . . . If you had taken the time to do more than glance at the paper, of course, you would have seen that I don't argue for a Marxist administration of tort.
I am glad to here that Mr. Leib does not endorse a “Marxist administration of tort.” (Of course, I had not thought so from glancing at his paper. That was not my objection.) I am also glad to hear that he is merely using Marxian theory to “illuminate our own practices.” I have no objection in principle to any such analysis, but I am highly skeptical in practice that Marxian theory will enlighten us – especially after a century in which some our brightest minds have plumbed the depths of it. For an earlier post on this subject, see here.

The problem is that given the obvious weaknesses of Marxian theory, it seems to me that most people who spend time on Marxian theory do so because they are still attracted to it. And I find this both intellectually and morally depraved.

If Mr. Leib is not attracted to the theory – a point which is at least not obvious on the face of his paper, but may very well be true – then I say great.

Brooks on the Democratic Party
By Michael Rappaport

This analysis from David Brooks seems right to me:

"Howard Dean has launched a comprehensive assault on his party's leaders. First, he attacked their character, charging that they didn't have the guts to stand up to George Bush. Then, he attacked their power base, building an alternative fund-raising and voter mobilization structure. Now he is attacking their ideas, dismissing the Clinton era as a period of mere damage control.

So how are the Democratic leaders defending themselves? They are responding as any establishment responds when it has lost confidence in itself, when it has lost faith in its ideas, when it has lost the will to fight."

Posner on Same Sex Marriage
By Michael Rappaport

Take a look at Richard Posner’s views on how the judiciary should rule as to same sex marriage. If all judges had Posner's attitudes and talents, I might favor a pragmatic theory of judging. But since they do not . . . .

US Funds Terrorist Organization
By Michael Rappaport

Although the United States has announced a strict policy against terrorism, somehow that policy is not applied to the Palestinians. Consider the following from Rachel Ehrenfeld in an opinion piece in the Washington Times (Hat tip: SFA).
    This week, the International donor community has been gathered in Rome to approve another contribution of $1.2 billion to the Palestinian Authority for the 2004 budget. The United States, Japan, the European Union and Norway, are the biggest contributors, joined by the Arab League countries and the International Monetary Fund.
This money is provided despite “thousands of Palestinian documents captured by the IDF, demonstrating Mr. Arafat's and the PA's complicity in funding and encouraging terrorist attacks against Israel.”

Iraqi Freedom in the Wall Street Journal
By Michael Rappaport

A superb day at the Wall Street Journal Editorial Page. Two pieces that address the politics and economics of the future Iraqi state. First, Bernard Lewis has a great article on the possibility of democracy in Iraq. While the piece is not yet available to nonsubscribers, here is a brief excerpt:
    The study of Islamic history and the vast and rich Islamic political literature encourages the belief that it may well be possible to develop democratic institutions – not necessarily in our Western definition of that much misused term, but in one deriving from their own history and culture, and ensuring, in their way, limited government under law, consultation and openness, in a civilized and humane society. There is enough in the traditional culture of Islam on the one hand and the modern experience of Muslim peoples on the other to provide the basis for an advance towards freedom in the true sense of the word.
Second, Vernon Smith explains his ingenious plan for privatizing oil and other public assets in Iraq. He argues that each Iraqi citizen should have an equal right in the public assets, which should be tradeable on international exchanges, and the assets should be auctioned to the highest bidder. Marginal Revolution has a long excerpt here. Here is one paragraph:
    [Establishing this scheme] would launch the new Iraqi state as one based on individual human rights, and the rule of law, and anoint it with rock-hard credibility by giving every citizen a stake in that new regime of political and economic freedom. The objective is to undermine any citizen sense of disenfranchisement in the country's wealth, economic and political future, and to galvanize citizen support for a democratic regime. Now is the time to act, before post-war business-as-usual creates de facto foreign and domestic spoils-of-war property right claims, leaving out a citizenry brutalized enough by a totalitarian regime, and in sore need of empowerment in their own future.
With these two pieces, one begins to have a blueprint for freedom in the Arab world.

December 22, 2003
Deference to the Fox When He Guards the Hen House
By Michael Rappaport

Cass Sunstein has written an op ed in the Washington Post praising the Supreme Court’s opinion in the recent Campaign Finance case for giving deference to Congress’s factual findings. Sunstein argues that in other cases involving federalism the Court has mistakenly failed to defer to such findings. One aspect of Sunstein’s argument – that the Court gave no deference in the earlier federalism cases – is powerfully criticized by Larry Solum.

My concern is with another aspect of Sunstein’s argument – his praise for the Supreme Court’s conferral of deference in the Campaign Finance case. My question is simple: Aside from a preexisting desire to uphold the Campaign Finance law, why would anyone think it appropriate to defer to Congress in this case? The law at issue has often been described as an Incumbent Protection Act and therefore the incumbents that passed it had a serious conflict of interest.

The only argument I can see for the Court’s decision to defer to Congress is an argument based on rules. We should defer some of the time and it would be problematic for the Court to adjust its deference based on how much of a conflict of interest it perceived Congress to have. For an ideal world, this would be at least a plausible argument, although I think I would reject it. But for this Court – for Justice O’Connor – to make an argument based on rules is absurd.

Fortunately, perhaps the nation’s leading expert on whether Congress should be given deference concerning First Amendment issues is an active member of the Blogosphere – Stuart Benjamin of the Conspiracy. Perhaps Stuart will enlight us.

December 21, 2003
Marxist Tort Law
By Michael Rappaport

Larry Solum does a great job each week of listing a wealth of legal papers, but here is one that I plan not to study: “What Should a Marxist Legal Analysis of Torts Become?” written by Ethan Leib of Yale’s political science department. In much the same way that some people cannot resist staring at an automobile accident, I glanced at the paper to see if it really purported to be about what its title implied. The answer is yes. Consider this gem from the conclusion:
    In a period of ever-expanding capitalism, the Marxist legal analysis of tort still may have a role even if the revolutionary movement to bring about communism is not yet ripe. As Desai very commonsensically reminds us, “since the ancient/classical, as well as the feudal, modes of production lasted a thousand years each, why did anyone think that a much more productive mode would disappear in a mere century or two.
Sorry. I feel about this one much as I would feel about an essay on the Nazi Theory of Tort Law. Marx may be dead in Moscow, but he appears to be alive in New Haven.

The Response to Sharon's Speech
By Michael Rappaport

The Administration is already modifying its response to Sharon's speech. My guess is that the Administration wants to keep its response, initially at least, positive but noncommittal. And that may be the reason for the change, since the White House remarks were interpreted by the press, at least, as too negative.

December 20, 2003
On the First Day of Kwanzaa, My True Love Tortured Me ...
By Gail Heriot

If you visit a card shop at your local shopping mall these days, chances are you will see Kwanzaa cards. It's big business. (Well, maybe it's just medium-sized business, but it is evidently lucrative enough for card companies to bother with.) And if you go to swanky private schools like the one attended by the children of my fellow Right Coaster Chris Wonnell, you may well receive instruction on this traditional African-American holiday. Taking Kwanzaa seriously is all part of the spirit of multiculturalism.

Except, of course, Kwanzaa isn't traditional at all. It was invented in the late 1960s by convicted felon Ron Everett, leader of a so-called black nationalist group called United Slaves. I use the word "so-called" because United Slaves' veneer of black nationalism was very thin; most of its members had been members of a South Central Los Angeles street gang called the Gladiators, just as the Southern California chapter of the Black Panthers had been members of the Slauson gang.

In the early 1960s, these gangs were mostly concerned with petty and not-so-petty crime in the Los Angeles area, including the ever-popular practice of hitting up local merchants for protection money. By the late 1960s, however, they discovered that if they cloaked their activities in rhetoric of black nationalism, they could hit up not just the local pizza parlor, but great institutions of higher learning as well, most notably UCLA. Everett re-named himself Maulana Ron Karenga ("Maulana" we are told is Swahili for "master teacher"), donned an African dashiki, and invented Kwanzaa. And the radical chic folks at UCLA went into paroxysms of appreciation.

In theory, Kwanzaa is a Pan-African harvest holiday, except that it is not set at harvest time. And in theory, it celebrates the ties of African Americans to African culture, except that it purports to celebrate those ties using the East African language of Swahili when nearly all African Americans are descended from West African peoples.

But those are just details. Many of the best-loved holidays in the Christian calendar have traditions connected to them that don't quite fit if you examine them too closely. But those rough edges have now been smoothed over by the long passage of time. No one really cares if the Christmas tree was once used to celebrate pagan holidays; many generations of credible Christians have earned the right to claim it as their own.

Kwanzaa is different. It has connections to still-living violent criminals. It is an insult to the African American community, very few of whom celebrate Kwanzaa and even fewer of whom would celebrate it if they knew the full story of its recent history, to suggest that it is an "African American holiday."

UCLA soon found that a bunch of street thugs calling themselves United Slaves can dress themselves up in colorful clothing, learn a few words of Swahili but they will still be ... well ... street thugs. The beginning of the end for United Slaves as an organization came with a gun battle fought on the UCLA campus against the Black Panthers over which group would control the new Afro-American Studies Center (and its generous budget). In the end, two Black Panther leaders--Alprentice "Bunchy" Carter and John Jerome Huggins--were dead. Two members of United Slaves were convicted of their murder. (Under UCLA's High-Potential Program, which admitted politically-active minority students during the late 1960s, often regardless of their academic credentials or even whether they had graduated from high school, many members of the Black Panthers and United Slaves were registered as students at UCLA.)

No, Maulana Ron Karenga was not among them. But not long after the incident, Karenga proved himself to be every bit as brutal as his followers when he was charged and convicted of two counts of felonious assault and one count of false imprisonment.

The details of the crime as reported in the Los Angeles Times (and quoted last year by Paul Mulshine in an article for FrontPage magazine) are horrific. The paranoid Karenga began to suspect that the members of his organization were trying to poison him by placing "crystals" in his food and around the house. According to the Los Angeles Times:

"Deborah Jones, who once was given the Swahili title of an African queen, said she and Gail Davis were whipped with an electrical cord and beaten with a karate baton after being ordered to remove their clothes. She testified that a hot soldering iron was placed in Miss Davis' mouth and placed against Miss Davis' face and that one of her own big toes was tightened in a vise. Karenga, head of US, also put detergent and running hoses in their mouths, she said."

The Los Angeles Times went on the state that "Karenga allegedly told the women that 'Vietnamese torture is nothing compared to what I know.' "

Karenga spent time in prison for the act. But if you are worried are what has become of him, you needn't be. He served only a few years. When he got out, he somehow convinced Cal State Long Beach to make him head of the African Studies Department. Happy Kwanzaa.

December 19, 2003
The Sharon Speech: Part II – Analysis
By Michael Rappaport

Having summarized Prime Minister Arial Sharon’s speech proposing a new disengagement policy, I will now analyze it. In my view, Sharon’s disengagement proposal is a significant improvement over previous strategies pursued by Israel. In the past, Israel has either placed its hope on an agreement with the Palestinians (Oslo, Camp David II) or attempted to forcibly constrain Palestinian terror in the West Bank and Gaza. Neither strategy has been terribly successful.

The disengagement strategy has the potential to be far superior. First, the new strategy will improve Israeli security against Palestinian terror. By building the security fence and withdrawing from difficult to defend settlements, Israel will make it much harder for Palestinians from the West Bank to attack Israel or its settlements.

Second, the new strategy gives the Palestinians a much greater incentive to make a peace deal. The incentives are of both the carrot and stick variety. The carrots involve an Israeli offer to make a peace deal and the removal of certain settlements. The peace offer is not really new, but Sharon’s speech does make explicit that a Palestinian West Bank would be contiguous (a feature that the Palestinians claim was not at least initially offered by Barak). The removal of settlements before the Palestinians crack down on terror is both new and significant.

The sticks, however, are even more important. If Israel pursues a disengagement policy, the Palestinians’ most significant weapon for fighting Israel, suicide bombers, will be significantly weakened. Moreover, Israel will no longer be forced to pursue a strategy of waiting for a peace deal for security: It can pull back behind its fence and attempt to protect itself. Further, Israel will retain control of much larger portions of the West Bank than they would keep under a peace deal.

Obviously a fence is not a panacea, and the Palestinians may figure out other ways to attack Israel. But it seems likely that Palestinian terror will be reduced. The key is that Sharon appears to have figured out a way to give the Palestinians some incentive to make peace now – a point I have emphasized – while at the same improving its security until any deal is reached.

Nonetheless, as I said in the first post on this blog, Israel is not simply fighting against Palestinian terror. A second constraint, if not opponent, is world opinion, including the opinion of the United States. In addressing this constraint, the question is whether the disengagement plan will provoke vigorous responses from the Arab Middle East and Europe, which might then cause the United States to strongly oppose the plan.

There are some hopeful possibilities on this front. First, the incentives created by the disengagement plan may lead to a peace deal before any disengagement occurs. Second, the disengagement plan will provide the Palestinians with some kind of control, or perhaps even a state, in the limited portions of the West Bank and Gaza, which may cause the Palestinians to oppose the plan less vigorously than one might otherwise have expected. Third, the plan is tied to the actions of the Palestinians. It does not permanently occupy the land; it says, “we will withdraw as part of a peace deal.” The world may therefore see that responsibility for failing to negotiate mainly lies with the Palestinians.

Still, it is to be expected that the Arab Middle East and much of Europe will oppose the disengagement plan, if for no other reason than it is an effective strategy for Israel and would weaken the Palestinian’s ability to wage war. But the real question is whether there would be enough support, from moderate people and nations, to allow the United States to back, or at least not strongly oppose, the Plan. If so, Sharon might just be able to pull it off.

That said, there are many dangers lurking in the Plan. Dismantling settlements will definitely provoke significant opposition from Sharon’s base. Even more importantly, Sharon must not dismantle the settlements without being allowed to complete the security fence. Thus, he must be careful only to dismantle the settlements as he gains support for the plan.

Despite these dangers, the disengagement plan is a major step forward. Today, I believe that Israel is a bit safer and terrorism is a bit weaker than each was yesterday.

The Padilla case
By Tom Smith

Good post on this on Volokh, including link to PDF file of opinions.

It seems to me Eugene Volokh, and John Yoo (last night on Lerher news hour), get it right on the Second Circuit opinion. It is hard to see why the Congressional resolution authorizing military force did not include the power of military detention. On the other hand, given that it is such a potentially dangerous power when exercised against US citizens on US soil, it seems prudent at least that citizens should have the right to contest their status as enemy combatants before a judge and while represented by counsel. At least until things get much worse, and they might, it is hard to see how this would be inconsistent with national security. Such hearings could be in camera if they involved classified material. E.g., we know Johnny Jihad is part of this plot to release weaponized smallpox at the annual ACLU convention because of the following NSA intercepts . . .

As to the 9th circuit opinion on Gitmo detainees being entitled to lawyers, personal trainers, first run movies, and individual de-lousing kits, I know only what I read in the New York Times and saw on TV, but I can at least share my attitudes. Apparently the decision rests on the base being a U.S. territory, and individuals being entitled to certain rights on U.S. territories. All I know of the law of U.S. territories is that it is very complicated, not at all intuitive and understood by perhaps a half dozen people in the country, one of whom is my friend Gary Lawson at Boston U law school. Perhaps Gary would hazard an opinion? However, the 9th Circuit's opinion on such a question has exactly the same odds of being correct as you have of guessing which way the stock market is going to move. The 9th Circuit could be right. Anything can happen. But it would be a pretty silly result if enemy combatants captured in the field of battle had rights to counsel while the conflict was still going on and while they were being held on a military base not in the U.S. It's possible. If it's true, it's dumb, and Congress should change the law. But the Ninth Circuit saying it is the law, increases the probability of its being so by zero, or perhaps even a negative amount.

A final thought for civil libertarians. I actually do worry about federal agents pounding on my door in the middle of the night and hauling me away under some nebulous authority. Oh, OK, not really very much. But it is easy to imagine this power getting out of hand, especially if there is another big terrorist attack. People who care about liberty should think about what is really necessary to prevent something like a dirty bomb, or my favorite nightmare, a biological attack. If say 50 or 100 thousand people were killed in such an attack, our liberties would be far more threatened than by John Padilla not getting a lawyer. Sometimes the choice is not between a slippery slope and the high ground, but a slippery slope and ground that could give way beneath you at any moment. A dose of Richard Posner's pragmatism is needed here.

December 18, 2003
The Sharon Speech: Part I – Summary
By Michael Rappaport

Arial Sharon, the Prime Minister of Israel, has given a major policy address. It may turn out to be one of the most important speeches in Israel’s history. In my view, it is a bold address that holds the promise of effecting a real improvement in the conflict between Israel and the Palestinians. This post summarizes the address; my next provides analysis. (The italics are supplied by me.)

First, Sharon reiterated his acceptance of the roadmap:
    The Roadmap is the only political plan accepted by Israel, the Palestinians, the Americans and a majority of the international community. We are willing to proceed toward its implementation: two states – Israel and a Palestinian State – living side by side in tranquility, security and peace. The Roadmap is a clear and reasonable plan, and it is therefore possible and imperative to implement it. The concept behind this plan is that only security will lead to peace. And in that sequence. . . . The opposite perception, according to which the very signing of a peace agreement will produce security out of thin air, has already been tried in the past and failed miserably.
He also announced that Israel would take actions to improve conditions for the Palestinians:
    “Israel will remove closures and curfews and reduce the number of roadblocks; we will improve freedom of movement for the Palestinian population, including the passage of people and goods;

    Israel will fulfil the commitments taken upon itself. I have committed to the President of the United States that Israel will dismantle unauthorized outposts. It is my intention to implement this commitment. The unauthorized outposts will be dismantled. Period.”
Sharon appealed to the Palestinians to make a peace deal, and suggested some of the terms:
    It is not in our interest to govern you. We would like you to govern yourselves in your own country. A democratic Palestinian state with territorial contiguity in Judea and Samaria and economic viability, which would conduct normal relations of tranquility, security and peace with Israel. Abandon the path of terror and let us together stop the bloodshed. Let us move forward together towards peace.
But having offered a deal, Sharon then explained what would occur if the Palestinians did not pursue peace. It is here where Sharon has taken a new path and where many of his action in past months have been, in my view, leading:
    We are interested in conducting direct negotiations, but do not intend to hold Israeli society hostage in the hands of the Palestinians. I have already said – we will not wait for them indefinitely.
If the Palestinians do not make a deal, Israel will unilaterally pursue an Disengagement Plan. The Plan
    will draw provisional security lines and the IDF will be deployed along them. Security will be provided by IDF deployment, the security fence and other physical obstacles. The "Disengagement Plan" does not prevent the implementation of the Roadmap. Rather, it is a step Israel will take in the absence of any other option, in order to improve its security. The "Disengagement Plan" will be realized only in the event that the Palestinians continue to drag their feet and postpone implementation of the Roadmap.
The Disengagement plan will allow Israel to improve its security while waiting for the Palestinians to make a deal. The Plan, however, has an incentive for the Palestinians:
    Obviously, through the "Disengagement Plan" the Palestinians will receive much less than they would have received through direct negotiations as set out in the Roadmap.

A little political humor from my 12 year old son Luke, who is not allowed to watch this kind of thing
By Tom Smith

I wonder how little what's-his-name is doing these days. Not as well as Janet Reno I bet.

Jesus the Movie
By Tom Smith

Controversy over Mel Gibson's forthcoming movie about the Passion of Jesus.

I agree with most of what Medved says. However, I don't think you can really separate telling the story from the effect of the story. If Spielberg decided to do an historically accurate and graphic movie about the Inquisition and its effects on the Jews of Spain, for example, it would make the Church look very bad, and I would suspect Spielberg of Christophobia. The analogy isn't perfect, because the Crucifixion is at the core of Christian dogma and faith, so for Christians it's a story that must be told. On the other hand, you can't really expect Jews to shut up already about being persecuted.

This makes me think of the essential weirdness and oddity of Christianity. It is a religion that centers around a guy who was tortured to death in a way intended to be extremely humiliating and painful to even think about. I remembering reading that in Japan, Catholics used to carry around little crucifixes in boxes, where the crucifix was behind a curtain, because the image was considered so shocking and horrible it should not be displayed openly. Gibson clearly gets this, as he says his intent is to make everyone who watches the movie, not just Jews, uncomfortable. The thing for Christians to remember is that every Jew who died in a concentration camp, or was killed by a Christian in a pogrom was as much a victim, and a victim to the same things, as Jesus was. As some wise thinker said, the dividing line between good and evil runs not between Christians and Jews, but down the middle of every human heart.

You can't make this stuff up
By Tom Smith

Did the Butcher of Bahgdad retain his sense of style to the end? Christopher Hawthorne in the Design Notebook in today's New York Times contemplates this profoundly trivial question. It's hard for we Americans to really understand what it's like for a perpetrator of crimes against humanity, but one with some taste, to try to make a spider hole a home. Did you notice that Sadam had with him moisturizing shampoo? That desert air plays havoc with your locks. And last I saw him, I would definitely say he was having a bad hair day.

For Christopher's sake, I want to assure him that I at least really am aware that Sadam must have really had his feelings hurt to see the soles of the boots of the Army special forces men who captured him. I really do feel that in his culture, this is deeply insulting. And right now I'm going to cry about it. Boo hoo hoo hoo hoo. There, I hope you feel better now, Christopher. I know I do.

We need more aritlces like this. What should a terrorist wear before he slaughters innocent people? The whole jeans and white T-shirt thing is just so generic.

This one definitely is a contender for the most idiotic and pretentious New York Times missive of the year, and that's saying something.

Mercury Emissions
By Michael Rappaport

An interesting post on the mercury issue. It captures in a short space why many conservatives and libertarians are often hostile to the claims of environmentalists, even when environmentalists claim to be concerned about behavior that will seriously harm the public. The reason is that the environmentalist claims are often based on faulty inferences and junk science. Sadly, the precautionary approach that is written into certain environmental laws often appears to condone, if not require, such inferences. Here is an excerpt:
    How was the EPA's safe-level arrived at? There are three major studies of mercury and neurological impairment in children due to consumption of contaminated fish. One study found no effect, one was ambiguous, the last found some mild impairment (You would never notice the impairment on an individual level and can detect it only in a large sample. Not to be ignored if it exists, but we are not talking about Downs children). To be on the safe side, the EPA focused on the one study that found an effect. Within that one study there was some uncertainty about how much mercury caused a problem so the EPA took that study's lower bound (the lower bound of the 95 confidence interval for the statisticians in the audience.) Finally, to really be on the safe side, they divided the lower bound by ten!
Moreover, the Bush Administration does not want to ignore these concerns. It simply wants to reduce the possibly harmful emissions more slowly than does the NRDC to greatly reduce the cost.

Sad but True
By Michael Rappaport

If you are a professor, at least.

Acting and Politics
By Michael Rappaport

There are times when I think that acting might injure the part of a person’s brain that discerns correct political principles. Or is it that people who lack this ability in the first place happen to be good at acting? Nature or nurture – it is always hard to say. Although the evidence for at least one of these conclusions is overwhelming, there are exceptions. Consider this courageous statement of political wisdom by John Rhys-Davis, the actor who plays Gimli the dwarf in the Lord of the Rings movies (Hat tip and organization of the quote from Andrew Sullivan):
    I'm burying my career so substantially in these interviews that it's painful. But I think that there are some questions that demand honest answers. I think that Tolkien says that some generations will be challenged. And if they do not rise to meet that challenge, they will lose their civilization. That does have a real resonance with me... What is unconscionable is that too many of your fellow journalists do not understand how precarious Western civilization is and what a jewel it is.

    How did we get the sort of real democracy, how did we get the level of tolerance that allows me to propound something that may be completely alien to you around this table, and yet you will take it and you will think about it and you’ll say no you're wrong because of this and this and this. And I'll listen and I'll say, "Well, actually, maybe I am wrong because of this and this.

    [He points at a female reporter and adopts an authoritarian voice, to play a militant-Islam character:] ‘You should not be in this room. Because your husband or your father is not here to guide you. You could only be here in this room with these strange men for immoral purposes.'

    I mean ... the abolition of slavery comes from Western democracy. True Democracy comes from our Greco-Judeo-Christian-Western experience. If we lose these things, then this is a catastrophe for the world.
True and beautiful. And he can act.

December 17, 2003
Habermas on eugenics, and life issues
By Tom Smith

When smart Germans talk about the dangers of eugenics and other 'life' issues, its a good idea to listen.

Utilitarian Democrats
By Michael Rappaport

The Evangelical Output discusses the results on the ethics test of various bloggers. After accurately listing me as a utilitarian, he says of utilitarians: "Make Good Democrats." For a blogger who is so focused on morality, he sure knows how to hurt a guy. I guess I will just have to lick my wounds and re-read those "Democrats" Richard Epstein and David Friedman.

Exam Postponement Excuses
By Michael Rappaport

Since the exam in my Administrative Law class is being given today, this interesting post on excuses for postponing and cancelling exams seemed appropriate.

Steyn on Dean
By Michael Rappaport

An insightful and funny piece (although not as funny as Tom's post) on Dean and the other Democrat presidential candidates. The main point: Dean cares about bike paths more than national security. Here is an excerpt regarding the response of the Democrats to the capture of Saddam:
    It's odd that when something big happens, as on Sunday, the Democratic candidates seem irrelevant to the story, like asking a lacrosse expert what he thinks of the Super Bowl. They get interviewed and they trot out their lame clichés, about the need to "internationalize" Iraq, by which they mean not Tony Blair, John Howard, the Poles and Italians, but Kofi Annan, The Hague, the French, the Guinean foreign minister, all the folks who proved unwilling and unable to deal with Iraq before the liberation and who have given no indication of being likely to do any better after. The Democrats' indestructible retreat to this dreary line gives them the air of a gormless twit in a drawing-room comedy coming in through the French windows every 10 minutes and saying, "Anyone for tennis?" You can't help feeling that, on the big questions roiling around America's national security, the Dems don't really have speaking parts: if this was Broadway, they'd have been written out in New Haven.

December 16, 2003
Just say we ain't payin'
By Tom Smith

Jack Kemp gets it right:

It is my hope that Baker presents America's position to
Saddam's debtors this way: Much, perhaps an overwhelming
amount, of Iraq's debt falls under the category of "odious
debt" - debt contracted not for the needs and benefit of the
people but to strengthen and support a despotic regime.
Bankruptcy is a fundamental concept of capitalism that wipes
the contractual slate clean. There is a political analogy to
bankruptcy - today it's called "regime change" - in which the
country begins de novo. It occurred in Nazi Germany,
imperial Japan, Soviet Russia and Warsaw Pact Europe. It
has now occurred in Iraq. Tabula rasa: The slate has been
wiped clean; things begin de novo. Thus, rather than going to
France, Germany and Russia hat in hand asking for debt
"forgiveness," I hope Baker presents them with the stark
reality that a free and sovereign Iraq will be perfectly
justified in repudiating much, if not the overwhelming
majority, of the debt contracted by Saddam. Better for those
countries to step up to the plate on their own now than play
the role of Shylock later.

Yale Law School annual letter arrives. Life is complete.
By Tom Smith

The annual holiday (it would be wrong to say Christmas) dean's letter has arrived from the Yale Law School. It is always good for a few laughs. For example, on Jan Deutsch's retirement:

"To say that Jan Deutsch approaches constitutional and corporate law from an original point of view is--as all Jan's former students can attest-- a wild understatement . . . Well, you can say that again. An insane point of view would be more accurate . . . of the utterly fresh contribution he has made, during his 38 years on the faculty, to their understanding of these subjects. "Fresh" is good. I would be surprised if Deutsch was aware of any corporate law case after Perlman v. Feldman or indeed that Learned Hand had in fact, died, and therefore was no longer shaping corporate law. But I have an ax to grind. I was actually ejected from Professor Deutsch's class after disagreeing with him about the Holocaust. He said after the US Army took Germany, all the Nazis should have been summarily executed. I said, no, there could be cases of mistaken identity, false denunciations and so forth, so there would have to be some kind of procedure to figure out who the Nazis really were, then they could be executed. Professor Deutsch told me to get a drop slip and he would sign it. He wasn't kidding. He had, as far as I could tell, absolutely no sense of humor. Jan has helped his students see the unexpected in the familiar and the mysterious in the known. Such as how a person with a flagrant mental illness is allowed to continue teaching for 38 years. I like tenure as much as the next guy, but sheesh, give the kids a break. In Jan's discerning eye, a single case becomes the proverbial grain of sand in which the whole universe of law may be glimpsed . . . it's called obsessive-compulsive disorder and it responds well to SSRI's but hey, who's complaining and those who have walked the path of the law with this extraordinary guide can never forget the depths he has shown them. Oh, puhleeeese. More like, left the path of the law and fallen into the depths of a very strange man's extremely personal obsessions. This insanity was enabled by a slavish band of groupies Deutsch managed to surround himself with every year, many of whom were a few fries short of a happy meal themselves.

Abe Goldstein is also retiring. He was a good teacher and a nice man. Unpretentious in a place where that was, let us say, an uncommon virtue. He gave me my only 'low pass' and it was richly deserved. I knew practically nothing about criminal procedure and he crafted a deadly exam about grand jury intricacies, I remember. He probably was just too nice to fail me. I'm a corporate law person. All I know about criminals is I don't like 'em.

There is now a David Boies Professorship at Yale. Well, OK. I'd rather have that than Al Gore as President. Could we have a Sidney Blumenthal professorship maybe? A William Jefferson Clinton Internship?

Burke Marshall died, we are reminded. He was a brave man, and what really took courage was walking into his office if you were a member of the Federalist Society.

Yochai Benkler has joined the faculty at Yale, an event, I judge from the letter, roughly equivalent to the Second Coming. The importance of his scholarship, apparently, "cannot be overestimated." I'm sure it's swell scholarship, it's not my area and I've never heard of him, but is it really impossible to overestimate its importance? Haven't you just done so? Is he as great a legal mind as, say, Sandra Day O'Connor? Jan Deutsch?

Don't get me wrong. I'm glad I went to Yale. I would have been lost in the crowd at Harvard, eaten alive at Chicago, and spent all my time skiing and playing outdoors had I gone to Stanford. It was nice to be able to get Honors without going to class, which was a relief, since sometime in my first year my butt-kissing gene just poof! turned off, just like that. In many places, like graduate school, that would have been the end. Fortunately, at Yale, as long as you did not attempt to talk to the professors, with some exceptions, they would not hold this against you. I liked a few of my professors, but I'll only mention Bob Bork, a brilliant and extremely kind man who was abused by his colleagues at Yale. It was a great irony that this former Marine who wouldn't hurt a fly was savaged by these people who never run out of nice things to say when they're talking about themselves. The we're-so-wonderful-we-can-barely-stand-it tone of these letters, going back over more than a decade, is always a bit hard to take.

You can have my copy of Red Dawn when you pry it from my cold, dead fingers
By Tom Smith

Sasha Volokh is implying that Red Dawn lacks artistic merit, I think, and I won't stand for it. He seems to admit he has not seen it in awhile. Well, I own my own copy and watched it fairly recently thankyouverymuch. I can report it makes a pretty good treadmill movie. How can you beat the scene where the Cuban colonel tells his goons to go to the gun store and get the federal government forms revealing where the gun owners are, who end up in Commie concentration camps of course. We told you so. And how about the scene where the Wolverines execute the rat in their midst who was captured by the commies and made to swallow a radio homing device. That's what I call drama. And when the red soldier actually does pry a handgun from the cold, dead fingers of a dead Murican with just such a bumper sticker on his pickup truck. Chatterbox misses the point. If you are an elite Special Ops guy in your twenties, you have probably watched Red Dawn a hundred times. You would get a kick out of being called Wolverines. Moreover, doesn't anybody here remember 1984? It was the era of Sting singing "I hope the Russians love their children too," and nuclear freeze and we better surrender before its too late. And it turned out to be too late, too, but for a different reason. I guess that theory of history still has a few bugs in it. By the way, the DVD of Red Dawn has some interesting background material on the making of this classic film, the difficulties getting it made and released (imagine that!) and how it became a cult classic. Test your knowledge of the movie: The answer is "Shoot straight for once, you Army pukes."

By Tom Smith

I don't even like baseball. I was never any good at it as a kid, and my dad made me play it anyway. It has generally been mysterious to me how people can seem to enjoy it so much. But even with that, I am finding Michael Lewis's new book, Moneyball, extremely interesting. It is tempting me to actually watch baseball, look at pitchers' stats, and batters. Is there perhaps out there an undiscovered statistic that would predict, at least better than what most people use, the outcome of a game? The spread on a game? Better than the sports books on line? No, no, no. The way lies madness. I must remind myself. I am the guy who bought cubes when the NASDAQ was at 4700. But if you like baseball, markets or both, you will surely love this book. It is also full of very funny baseball lines, great stories of undiscovered geniuses, etc.

I wonder if the Padres could play some moneyball? Do some sophisticated hiring? Win?

Could this approach be applied to football? Nah. It's probably just too complex a game.

The Evil of the Communist Party
By Michael Rappaport

This column by Dennis Prager makes a good point about how liberals have never taken the moral evil of people who supported the Communist Party seriously. Prager discusses the Orwellian obituary of Sylvia Bernstein, who is described as a civil rights activist but not as a Communist Party member. As Prager puts it, for the mainstream media:
    the fact that a person was a member of the American Communist Party when it obeyed Joseph Stalin and the Soviet Communist Party is as irrelevant to a moral assessment of that person as if she had been a member of a stamp club. In fact, the only time her membership was even mentioned in the AP obituary printed in the New York Times, the Washington Post and elsewhere, was to invoke Mrs. Bernstein's victimhood.
For me, these points by Prager almost seem like old hat. Yet the mainstream media is still oblivious. And, of course, they would regard their position as morally superior.

December 15, 2003
Regulation: the more you do, the more you need to do
By Tom Smith

The new medicare drug benefits probably forebodes price regulation of drugs in the future. There are many things I like about Bush, but he's no Ronald Reagan on the economy. Tax cuts, good. Spending like a maniac, bad. Steel tariffs, very bad. I'm glad Yurp said, du can play that game. Biggest bingo game in history for seniors (drug benefit giveaway)-- very expensive way to buy reelection. It's called compassionate conservativism. It would really hurt the conservatives' feelings for Bush not to win.

France and Germany have done enough harm already
By Tom Smith

I am really tired of conservative journalists criticizing the Pentagon's decision to exclude non-coalition members from bidding on Pentagon contracts for the reconstruction of Iraq. First, David Brooks on the Lehrer News Hour, now George Will. If they weren't trying so hard all the time to strike the "I'm conservative, but I'm reasonable" pose, they would be wrong less often.

It is only because pundits spend so little time in the real world that they don't understand that there really are national security considerations to who gets these contracts. I think the story was in the news, but I heard directly from a high-ranking Marine officer deeply involved the planning of the Corp's brilliant advance on Baghdad, that the French satellite phone manufacturer whose phones many journalists were using, really did give the codes to the Iraq army that allowed them to track the Marines and Army movements. This was flat out sabotage by a French contractor. Many, many infrastructure projects that need to be completed in Iraq are sensitive to terrorism. Not just phones, but power, water, roads, and on and on. Why on earth should we give those contracts to firms that we know have worked closely with the Baathists in the past? How stupid are we supposed to be? We don't want to find out that all those bio-chem weapons are not a myth by finding 10,000 dead Iraqis some morning in Baghdad after M. de Grotesque has given the keys to the water supply to some al Queda operative in exchange for a case of champagne and a night with his sister. The French and German governments have proven that they are unwilling or unable to stop their firms from doing business with terrorists. The missiles shot at Secretary Wolfowitz were French and brand new -- so why on earth should those companies get the key ring for the systems that will be a big part of Iraqi security? I don't want the French in charge of air traffic control over New York, either. If the French want to prove they are capable of sensitive projects bearing on civilian security, they can show it by protecting the Jews of Paris.

"Human Rights Watch" Watch
By Maimon Schwarzschild

Steven Den Beste posts a critique -- a pretty devastating one -- of last week's Human Rights Watch report on the situation (pre-capture, of course) in Iraq. The report is essentially a brief against the coalition: an exercise in partiality; and a dishonest, even internally self-contradictory one. Den Beste is driven to wonder about Human Rights Watch's motives: he doesn't discount the possibility that "deep down they hate us".

For what it's worth, I've met one senior Human Rights Watch officer at several symposia in New York over the past few months, and I was genuinely taken aback at her visceral hatred not only for George Bush (that's to be taken for granted in these circles) but for the US more generally. Over the course of several hours of discussions, touching on a variety of events over many decades, she made it extremely clear that a "human rights problem" (past or present) exists for her only if America can be blamed for it. Quite simply, she has no interest in it if she can't blame America for it -- whether plausibly or, in many cases, utterly implausibly. She blames America first, last, and always. (Not exclusively though. She also loathes the state of Israel, and expressed disgust at the existence of a Jewish state -- in any borders.) As for Iraq, she is not, to put it mildly, rooting for the success of the coalition.

I don't know how typical of her colleagues she is, although she is certainly in a senior and responsible job at Human Rights Watch. But on the evidence of last week's report -- and others like it -- there is reason to think she is very typical.

These are the people who are now issuing a "warning" that Saddam Hussein should not be tried by Iraqis . Instead, according to the solemn Human Rights Watch announcement -- issued within hours of his capture -- Saddam should be handed over to "international experts". (Who do you suppose they have in mind?) Any judicial proceedings, they go on to instruct, must be "partnered" with the United Nations. (The UN's virtue is evident in the fact that it couldn't or wouldn't lift a finger against the tyrant.) Read the whole thing, as the saying goes: if only for the unintentional comedy of the ex cathedra tone.

One knows in the abstract that many "NGOs", especially "human rights organizations", have now been mentally absorbed into the hard and enraged left. It's a worrying thing, given the influence many of these organizations have at the UN and elsewhere. Their influence, in many cases, draws on their past reputations -- deserved or otherwise -- for fairness or at least for being somewhat serious and sane. But many of these groups, Human Rights Watch unfortunately included, are increasingly far from being fair, or serious, or even sane. I would like to think that the grim, almost unhinged zealotry of my Human Rights Watch acquaintance is not the norm in these circles. Then again, I would like to think all sorts of things that, unfortunately, aren't so.

Ethical Selector
By Michael Rappaport

Larry Solum suggests taking the ethical selector test. I guess I am addicted to these tests, especially if they are short. My score: John Stuart Mill -- 100 percent. Not exactly a surprise. More on utilitarianism later this week.

December 14, 2003
More on Hitchens
By Michael Rappaport

I took Tom Smith's suggestion to read the Hitchens interview. It was quite interesting. Here is his explanation as to why 9/11 made him leave the Left:
    As to the “Left” I’ll say briefly why this was the finish for me. Here is American society, attacked under open skies in broad daylight by the most reactionary and vicious force in the contemporary world, a force which treats Afghans and Algerians and Egyptians far worse than it has yet been able to treat us. The vaunted CIA and FBI are asleep, at best. The working-class heroes move, without orders and at risk to their lives, to fill the moral and political vacuum. The moral idiots, meanwhile, like Falwell and Robertson and Rabbi Lapin, announce that this clerical aggression is a punishment for our secularism. And the governments of Pakistan and Saudi Arabia, hitherto considered allies on our “national security” calculus, prove to be the most friendly to the Taliban and Al Qaeda.

    Here was a time for the Left to demand a top-to-bottom house-cleaning of the state and of our covert alliances, a full inquiry into the origins of the defeat, and a resolute declaration in favor of a fight to the end for secular and humanist values: a fight which would make friends of the democratic and secular forces in the Muslim world. And instead, the near-majority of “Left” intellectuals started sounding like Falwell, and bleating that the main problem was Bush’s legitimacy. So I don’t even muster a hollow laugh when this pathetic faction says that I, and not they, are in bed with the forces of reaction.
Hitchens's breadth of knowledge and his unusual opinions make him an extremely interesting person to read.

Update: The Hitchens interview has two parts. I much preferred the first part. The second part is devoted to the conflict between Israel and the Palestinians. While Hitchens has an interesting perspective, he sadly retains the Left’s blinders as to the nature of the Palestinian fight against Israel. He views Israel as simply having dispossessed the Palestinians of their land and shows no recognition that Israel would be willing to establish a two state solution if the Palestinians would give up their terror.

Journey of a man of the left
By Tom Smith

This interview of Christopher Hitchens is interesting. I stopped being a leftist beginning with the Soviet invasion of Afghanistan. I'm glad I never really knew much about the anti-Soviet left, or I might never reached my current state of reason and enlightenment. Anyway, Hitchens is an interesting, if annoyingly self-congratulatory and pompous guy. At least if he becomes a neo-con, he won't have to get a new personality.

American Presidential Candidate Selector
By Michael Rappaport

Stephen Bainbridge pointed me to this site. Based on 17 questions about your political views, it tells you which presidential candidate you are closest to. My favorite candidate was George Bush (64 percent). My second favorite was the Libertarian candidate (60 percent). That seems right: I am somewhere between Bush and the Libertarian Party. Strangely Gephardt came next (43 percent); and then Lieberman (37 percent), my favorite Democrat. Perhaps I should listen more closely to Gephardt to see if he is closer to my views than I think.

The last time I took this type of test, the Political Compass Test, my results were very close to Bainbridge’s. This time we were once again similar in our support for Bush (Bainbridge 67, me 64) but my support was considerably greater for the libertarian candidate (Bainbridge 46 percent ranking him 5th, me 60 percent ranking him 2nd).

Take the test. Its fun, shorter than the Political Compass Test, and gives more intuitive results.

December 13, 2003
Christmas guy toys -- Part I: Coffee
By Tom Smith

My favorite things I often buy for myself. But here is an update on various toys, many fitness related, that might make a good holiday gift, or you can just buy for that techno-nerd fitness geek on your shopping list, i.e. yourself. (I-am-not-a-sexist disclaimer: I use 'guy' to mean male and female guys.)

First things first. Caffine. You wake up but you don't want to get up. At all. Then your mind moves to that first cup of java. You find you have gotten out of bed. Life may not be good yet, but there is hope. What works? The best coffee, short of the little coffee bar on the corner up from your pensione in Sienna or even the occassional Starbucks, comes from a French press. This is cheap, effective technology. Here's one at a great price.

But sometimes you want to make a big pot of the stuff at home, like every morning. What to do? I think the dirt cheap brewers you can get at Target for $20 can do a pretty good job. But if you want something more reliable and longer lasting, or just want to indulge your coffee fetish, here is a dandy machine. The milk frothing device really works, but don't expect to be as good as your local espresso bar. If you are really a nut with money to burn, buy this and invite me over to try it. I'll even set it up for you!

Another promising type of device is this thing. I've never tried it, but some people swear by the vacuum method. It looks like a bit of a hassle to me. If I had time to do this, I would just use the French press instead.

If you are sick enough, you may want to buy a conical burr grinder. I don't have one, but it's the next step.

Where should you buy coffee? I know lots of bean-heads turn their noses up at Starbuck's, but I don't think they are that bad. If you want something better, you can buy it at Peet's. Or look around locally. There may be a coffee roaster in your area that does a good job. Look for beans that look really oily, almost like they've been dipped in olive oil. That oil is where the flavor comes from, or most of it. That's why a french press is better than a gold filter, and gold better than paper--it lets more oil through.

December 12, 2003
Texas A & M Asserts its Independence
By Gail Heriot

God bless Texas A&M University President Robert Gates. The Supreme Court told him that he could racially discriminate all he wants; all he has to do is refrain from using a mathematical formula. But he doesn't want to engage in race discrimination. "My concern," he said, "is that I want every student at Texas A&M to be able to look at every other student and know they all got in on the same basis, on the basis of personal merit and achievement."

For the past several years, like other Texas public colleges and universities, Texas A&M has been working under the Fifth Circuit's Hopwood decision, which prohibited racial double standards in admissions. When the Supreme Court's twin decisions in Grutter and Gratz overruled Hopwood, other Texas schools announced that they would be returning to race-based admissions standards. But not the Aggies. Gates has announced that A&M will continue to combine aggressive outreach with universally-applicable admissions standards. Diversity is indeed a worthy goal in the view of President Gates, but he isn't willing to sell the soul of his university to get it.

Gates is already facing opposition. State Senator Royce West (D-Dallas) said, "This policy sends the wrong message to young ethnic minorities .... Race must be a factor in getting the results we need in the state of Texas." And West is willing to go to threaten adverse consequences if A&M does not show significant improvement in its ethnic diversity by Fall of next year.

This in itself is nothing new. Such threats have been made in other states as well. California Legislators, particularly members of the Hispanic Caucus, have been anything but subtle in demanding that the University of California increase its Hispanic enrollment or face budget cuts. But perhaps West has one-upped his California counterparts. He is threatening to seek legislation mandating that race be considered in the admissions policies of all Texas public institutions of higher learning.

Good luck to President Gates. He is swimming upstream in the academic world. It won't be easy.

Guardian of our liberties does it again
By Tom Smith

I have not read the Campaign Finance Case Opinions and do not plan to. If I can spare the time to read 60,000 words by (largely the law clerks to) second class minds struggling with a mess made by Congress, I think I'd rather spend the time reading, oh, gosh, I don't know, maybe this excellent biography of Vince Lombardi. Reading the New York Times on the decision was bad enough. They noted the swing vote was cast by our favorite cowgirl, Sandra Day O'Connor, the only justice, the Times smugly noted, who has ever served in elected office. I think she was posse leader back in Cowbone, Arizona or something. Those doggies know a thing or two about money and politics, I can tell you. Would somebody please tell her it is time to retire and start boring the hell out of students at the U of A?

I am not an expert on campaign law. It is one of those areas, like employment discrimination, I prefer just not to think about. From reading the daily prints, however, I take it the geniuses on the high court have concluded that, for example, if a bunch of private citizens put together a group called "Don't Vote for Congressman Bob; He's Corrupt, Inc." and then buy an ad that says "Don't Vote for Congressman Bob; He's Corrupt!" anytime close enough to the election to make a difference, it will be illegal. Why? Because allowing that would, yes, you guessed it, promote corruption!

If BCRA, as the monstrosity is known, was really intended to reduce corruption in politics, it raises the following intriguing puzzle: Why on earth did Congress pass it? Aren't they for corruption? Don't they like it? Profit from it? Do it for a living? I have seen the fat men from the plains chasing their aides around the tables at Bullfeathers as their horrified (hopefully soon to be former) wives looked on in horror. I have seen the Great Manatee of Hyannis Port rise up on his hind flippers to denounce immorality. I know of corruption. Children, here, as nearly as I can make it out, is the deal. BCRA makes it harder for challengers to say harsh things about those fine gentlemen and ladies who occupy their spots in the great domed playground where the people get governed. To my innocent eyes, this is what the bill seems designed to do. We should be grateful things designed by Congress rarely work.

What I can't understand is how the Supreme Court could possibly reach this decision. After all, they are not stupid people. Well alright, O'Connor may be stupid. And Kennedy. Stevens, well, no rocket scientist he. But there's David Souter. Is he smart? I don't know. Every time I try to read something he has written, I fall asleep. I still get traumatized thinking about Virginia Bankshares.

But, boy, I am sure glad that devil Bob Bork is not on the Court! He thought the first amendment applied only to political speech! Sure dodged a bullet there! I guess when we weren't looking, the mainstream took a turn through Cowbone, Arizona, and it turns out the first amendment does not apply to things like saying Congressman Bob is Corrupt, at least before an election! Good to get that learnt. I am just embarrassed about how confused I was about that. It's not my area, as I said. I had this whole "free-speech--politics--say-what-you-want-about-the-government,-it's-America-after-all" thing going on in my head. That mainstream is a tricky, deceptive thing. Now I will be free to look at my fake images of 11 year old girls being raped, free from government interference, as long as I don't mess with Bob's job.

William Buckley used to say he would rather be governed by the first 500 people in the Boston phonebook than the faculty of Harvard. How about any 9 lawyers, or any 9 people who can read "Congress shall make no law . . . abridging the freedom of speech"?