The Right Coast

June 30, 2004
By Mike Rappaport

Today I noted a score of referrals from Yahoo, which we normally don't get. Checking the site, it turns out that Yahoo has a page for law blogs, and we were recently added. Yahoo also lists other types of blogs as well.

Overturning Rasul
By Mike Rappaport

I have been working my way slowly through the Supreme Court’s detention cases. In this post I will discuss Rasul, which involves the rights of aliens to access to United States Courts. In short, I think that the Court’s decision was mistaken, largely for the reasons stated in Justice Scalia’s dissent, but that the decision is less likely to be dangerous than it at first appears.

In Rasul, the Supreme Court held that aliens from Australia and Kuwait, who were captured in Afghanistan and held in Guantanamo, were entitled to access to the United States federal courts in order to contest their confinement. Exactly what procedures they will be entitled to is not clear. Six members of the Court believed that the aliens were entitled to these rights, whereas Scalia, Thomas, and Rehnquist thought otherwise.

Rasul seems to me to be more important than the Hamdi case (which involves citizens), if only because there are likely to be far more aliens than U.S. citizens who are charged with fighting against the United States. Most importantly, Rasul may allow persons that the United States captures on foreign battlefields to seek review of their cases in federal court. As Eugene Volokh has noted, this may allow war by litigation, with the captives burdening our military and courts.

What has not been widely noted, however, is that the political branches may be able to overturn Rasul. The Court’s decision was expressly based on a habeas corpus statute rather than the constitutional right to habeas. Thus, there is nothing in the Rasul decision that would prevent Congress from modifying the statute and eliminating the problem. Congress could redraft the statute to make clear that aliens captured outside of the United States are not entitled to habeas. Or Congress could simply cut back on the Supreme Court’s reading of the statute, reducing or limiting the right to a hearing in various circumstances.

Of course, it is possible that the Court might review such a statute and find it unconstitutional under the Habeas Corpus Clause, but this by no means clear. In fact, if Congress and the President were to agree to limit habeas for aliens outside of the United States, I think it is extremely unlikely that O’Connor and Kennedy would hold that statute unconstitutional, which would result in at least a 5-4 decision in favor of constitutionality.

Thus, in the end, Rasul may be less important and less dangerous than it first seems. Some have noted that the Constitution allows Congress to suspend Habeas Corpus, but they have argued that this is no cure-all because the suspension may only be made under limited circumstances that may not apply. But there are no such restrictions on Congress’s ability to modify the habeas statute (assuming the constitutionality of the modification). Of course, that the political branches can overturn a Supreme Court decision is no justification for that decision. But it does a place a limit on the harm that it can cause.

Update: Upon further reflection, I want to amend my post a little. While the majority opinion, supported by five members of the Court, relied on statutory authority, Justice Kennedy’s concurrence appeared to rely on the Constitution’s Habeas Corpus Clause. Thus, my claim that Justices Kennedy and O’Connor would be likely to uphold a statute modifying the habeas statute needs to be revised. It is possible (although by no means certain) that Justice Kennedy would deem a statutory amendment to be unconstitutional. Yet, it is also possible that the other justices in the majority (in addition to Justice O’Connor) would hold the statute to be constitutional. Thus, my bottom line remains the same as before: Nothing in the Court’s opinion in Rasul precludes amending the habeas statute and it is quite possible that the Court would hold the revised statute to be constitutional.

By Tom Smith

Two weeks ago I was weightlifting in the garage watching Enter the Dragon with my son, and I stupidly hurt my back. I did this by allowing myself to get distracted while deadlifting, an exercise that involves squatting, bending over, grabbing a barbell and then standing up, bringing the barbell up off the floor, but leaving your arms fully extended. Some people think it is the ur-strength exercise, but it is dangerous for the lower back, as I found. Between the movie and my son I lost concentration, must have shifted unconsciously, and I felt some muscle or muscles that run from the pelvis to the spine go. There was a sharp, stabbing pain, I cried out and dropped the 250 lbs (not much for a deadlift) to the floor and cursed myself. That was two weeks ago. Since then I have been hurting, some days better, some worse. It really sucks.

Pain is an odd thing, being so subjective. I finally talked my lovely wife Jeanne into taking a look at me. As a very busy physician, she really hates to work at home. She asked me to rate the pain on a scale of 1 to 10. I asked what 10 was, and she said as much pain as I can imagine. I said I could imagine quite a lot. "As much pain as getting your leg sawed off," she said. I said I thought that would hurt a lot more than most people imagined, so compared to that, maybe a 2. "Well, 2 isn't very bad," she said. "Well, it hurts. OK, maybe a 3." With all due respect to this standard medical question, how useless. Pain can be shockingly bad, one of my least favorite things about it. It can also be full of nuances that make it very different from other sorts of pain, but almost impossible to discribe. It can be pinching, burning, throbbing, hot, cold, stabbing, diffuse and combinations of the above. Once I had my wisdom teeth out and the oral surgeon numbed my jaw thoroughly and told me I wouldn't feel any pain, but I would feel pressure and that my jaw was being "compromised." What on earth was that supposed to me. Then he started digging around and I wanted to shout "Stop! stop! I feel so . . . compromised!" I felt like my jaw was being raped, a very odd sensation, I assure you, and not a good one.

You can take drugs for pain and they work different ways. Vioxx works pretty well for back pain, but far from completely. Narcotics work, but the world is full of people addicted to narcotics they started taking for back pain. It will have to get a lot worse before I do that. Narcotics, or at least some of them, do not get rid of pain so much as reduce or eliminate the anguish that accompanies pain. You can still tell the doctor what is being cut and how much it hurts, you just don't care very much. It is an odd sensation.

Oddly, as you can read in many books about endurance sports, it's much better to accept pain, if you can, than to fight it. This much easier said, than done, of course. When pain gets severe enough, it's natural to panic. This reaction probably evolved to get us out of painful situations fast. Often, however, it doesn't do any good. If you can bring yourself to, by actually paying attention to the pain, you can sort of take its measure and realize it's not going to envelop you or destroy you. I think was is going on here is that you are controlling the emotions that accompany pain, from which a lot of the suffering of pain actually comes. Pain is sometimes supposed by philosophers to be a simple 'feel' but it is actually quite complex.

Pain must serve various evolutionary functions. Just a couple of fun facts. The most painful weapon possessed by an animal might be the venom of the duck billed platypus. They are not the harmless cute critters you may think. They have an envenomated spur on their hind leg that they use to defend themselves. They are not predators, so they don't use it to kill prey. The venom serves only one purpose, to inflict pain, and it does that very, very well. (It might also play a role in mating, however.) The pain is so intense that victims can go into cardiac arrest from being stabbed, and the treatment is to cut the pain-carrying nerves from the affected body part. Children, leave that duck-billed platypus alone. My ten-year old tells me that the nervous system of insects is like that of human teeth, which carry only pain signals. The nerves in your teeth, apparently, just feel pain or nothing. And that, supposedly, is what it is like to be a potato bug. Oops, sorry, they're not really insects. What it is like to be a grasshopper. Just nothing, or pain. If that is true, it must suck to be a bug. However, just because they feel pain, doesn't mean it bothers them.

My appalling spelling
By Tom Smith

I have received several nice emails of late, for which I am grateful, from loyal readers pointing out some particularly embarrassing spelling errors I have made in recent posts, which I need not repeat here. I don't have anything in the way of excuses, except to say I write quickly, am sometimes too pressed to run spellcheck, and it doesn't catch everything anyway. Spelling "public" as "pubic" for example. I suspect my inability to spell is congenital. I think of words more as phonic units than groups of letters. Perhaps that's it. If scary nuns couldn't teach me to spell, it's probably too late now. But rest assured, while the spelling may be erratic, the quality of thought is crystalline.

June 29, 2004
Communion and abortion
By Tom Smith

This post via Michael Perry at Mirror of Justice is interesting. As you would expect, the canon law on denying communion to public officials because of their public activities is complex.

Even so, it's not clear to me Kerry would not qualify to be excluded, given the canons. If you had a public figure that said he strongly supported Roe, would never do anything to endanger the rule in Roe, strongly supported the right to choose abortion, thought abortion was just dandy, etc. etc., then it seems to me he would fall within the canon. Just saying you personally oppose abortion, but then assuring voters that you will do everything necessary to make sure abortion rights are not limited, may well not be enough to keep you from being excluded, assuming the canons were enforced, which is obviously another matter.

My surfing safari
By Tom Smith

I have been meaning for some time to relate my surfing adventure with Ross Garrett, famous San Diego surfer, but various things have gotten in the way. As I told Ross, since he kindly took me surfing, my summer has not worked out quite as I planned. It may be karma, since I spent last summer adventuring in Peru and getting in shape to do said adventuring, I seem fated to spend this summer driving kids to various activities. So far this has been the summer of the minivan. I do plan to get back in the water and for those of you who are wondering, I can report, surfing is a good thing.

My attitude going in to trying surfing was, as with most things, fear and apprehension. I imagined that it would be largely an exercise in making a fool out of myself in front of twenty-something hard bodies who would point at me as say things like, “Dude, look at the Barney,” Barney being, I think, surfing slang for untalented person. But, it wasn’t like that at all. First, I was greatly relieved to see the crowd at Tourmaline State Surf Park was one in which I was far from the oldest, baldest or fattest. This crowd looked more like someone had ordered everyone at the driving range to take off their clothes. It was, frankly, not that pretty of a sight. Nor were there an inordinate number of feminine hotties, another staple of surfing movies, the limit of my previous exposure to the sport, and I was glad of that, as they cause me to pull in my stomach uncomfortably and otherwise make me self-conscious. My impression was that this group of surfers was a lot easier to take than the crowd at a typical ski resort, which isn't saying much I know. It actually seemed like nice, family type people. Imagine.

Various people have confided in me that surfing is one of those things you have to grow up doing, and maybe that’s true if you want to be really good. But my impression was that it is a sport a middle aged guy can learn. It certainly seemed a lot easier than fly-fishing or golf, both of which are not possible to learn. Ross and I met at the parking lot around 8 and he kindly lent me his dad’s old wet suit, a large which I barely squeezed into. The wet suit is a remarkable thing, and really does keep you toasty warm in water that would otherwise make you a eunuch. There was not much in the way of surf, maybe 2 or 3 feet waves, but that was plenty for me.

Ross had brought for me a Surftech 11 foot board with a bright blue foam top, said to be the best learner’s board. It was, by any standard, a very large object. It was too big to get my arm around, so I had to carry it on my head, as in the old Endless Summer poster. He showed me how to paddle out, and that’s what we did. The paddling was surprisingly hard work, the most exercise of the process. The big board, however, was very stable. It felt like you could host lunch on it. We turned around at a spot Ross chose, and waited for a set, this being what a group of waves is called, to come in. This struck me as one of the most difficult bits, choosing a wave to attempt to ride. I could distinguish big waves from small ones, but judging which would break in the right place and when to start paddling seemed pretty mysterious. With Ross telling me when to start paddling, I managed to catch a few waves, even standing up once, very briefly. It was quite amazing how the big board came to life when the wave got under it, as if it wanted to rush into the shore. Given that these were tiny waves, I can only imagine what the sensation must be like on big waves. Ross does some tow-in surfing, which involves being towed by a Jet Ski (personal water craft or PWC to us surfers) at high speeds into waves that are too big and fast to catch by paddling. That must be, as they say, intense.

After a while, Ross started shoving me into the waves at the right moment, and this made catching them a lot easier. However, it would be a violation of the surfing ethic to rely on this permanently.

Overall, I would say surfing seemed a lot easier to pick up than I have been led to believe. I found it considerably less humiliating than golf and better exercise as well. For the rest of the day I felt this weird combination of post-workout high and relaxed mellowness that may explain why they (we?) call people dude. I think what I need to do is get a board and figure out a way to practice that is not too embarrassing, perhaps early mornings. My older brother lives in Hawaii, and he tells me there surfing is a family affair. A trip to the islands in definitely in order. It seems clear you absolutely don’t need to be some ripped rock star to surf. Ross made a point which seems right to me, that surfing has been ill-served by being depicted as an extreme sport for edgy urban twenty year olds. There is that side of the sport. But as with mountains, you can confront the void on K2 or you can hike up to the top of Bob’s Peak and eat a sandwich. Both are legitimate.
UPDATE: Here's a link to Ross's blog. He is hanging with Yvon Chouinard this summer, helping Patagonia get their surfing thing right. Other exciting developments in his career, but I'll wait for permission to explain.

Krauthammer on Clinton
By Mike Rappaport

As usual, Charles Krauthammer gets it right. Consider his summation of the former President:

I never hated Clinton. On the contrary, I often expressed admiration for his charm and for the roguish cynicism that allowed him to navigate so many crises. Nor was I scandalized by his escapades. What appalled me then, a feeling that returns as Clinton has gone national revisiting his own presidency, is the smallness of a man who granted equal valence to his own indulgences on the one hand and to the fate of nations on the other. It is the smallness that disturbs. It is that smallness that history will remember

June 28, 2004
Litigation as warfare
By Tom Smith

I suppose the good news about Eugene's good point that captured enemy combatants can now apparently file habeas petitions to contest their imprisonment is that Congress can fix it if they want to (can't they?) by amending Section 2241, the habeas statute. I think most Americans would think the idea of combatants captured in battle being able to sue pretty silly. You could make some funny ad copy out of it.

Of course, once the trial lawyers get ahold of it, you might get a statute authorizing suits for damages in the event enemy combatants were harmed in the course of battle. Even those who were not harmed physically of course, might have suffered emotional pain and suffering.

No big surprize, I find myself agreeing with Scalia regarding the US citizens. Suspend habeas or charge them with treason. Treason still carries a death penalty, doesn't it? I imagine the threat of the long drop would persuade citizen-terrorists to talk as effectively as stress positions. And if you're running around with an AK47 in some hellhole and you're not a Marine, I imagine there are lots of juries in our Southland that would take a dim view of your story about cultural tourism and hunting lessons gone bad.

As to Gitmo, it just looks like the Supremes doing their usual of disregarding a clear precedent in order to impose a really silly reading on an otherwise unobjectionable law. It's really rather discouraging. In those rare instances that Congress has not imposed some ludricrous legal regime, the Courts can be counted on to do so. Scalia writes:

The reality is this: Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its
courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.

As usual, a good point. Still, I suppose the Executive and the military can be faulted for naively supposing that settled law to the contrary would stop the Supreme Court from extending jurisdiction to the imprisoned terrorists. The federal courts have proven they do a good job running prisons, right?

And gosh, I guess it's a good thing Saddam is now is the legal custody of the sovereign nation of Iraq, or our criminal defense lawyer cum law professors would be lining up to prosecute his habeas petition!

Point of Law
By Mike Rappaport

A new blog has just been started, called Point of It is edited by Walter Olsen of the Manhattan Institute, and includes as contributors Stephen Bainbridge, David Bernstein of the Conspiracy, Mike DeBow of Southern Appeal, and Richard Epstein. It looks very promising.

Harry Potter III
By Mike Rappaport

I caught the third Harry Potter movie recently. I really enjoyed it. It may be my favoriate of the series.

Two things struck me about the movie. The first was how different the third movie was from the first two. If you consider the fact that it was the same author, a similar story, essentially the same actors, and the same producers, the change was astounding. Clearly the new director decided to shake things up, and he certainly did. People have mentioned that the new movie is darker, which is true enough. But there is much more to it. The entire texture of the picture -- the look of the film -- is dramatically different. At times, it almost has the feel of a home movie, but nonetheless it works. Various features, including the new texture, really give you a sense of surprise, wonder, and fear at the magic.

The second striking aspect was the decision made to depart at various points from the book. When I heard that the movie changed the book more than the previous movies, I was scared because it has been my experience that such changes make things worse. (The best of the Lord of the Rings movies was the first, which changed the least from the book.) In this case, however, the changes did not really take away from the original story and appeared to keep the movie moving along. While they probably could have stayed closer to the book, they did not harm the movie and may have helped it by departing. That is very unusual.

June 27, 2004
Reagan not lucky in his biographer
By Tom Smith

This piece about RR in the New Yorker contains some truths, but it is full of enough bogus psychologizing about his supposed inadequacies to explain why it got published in the New Yorker. For all the New Yorker's fascination with other cultures (see just about any recent short story), they are utterly clueless about the American culture that begins west of the Hudson.

Congratulations, Patrick
By Tom Smith

Since self-promotion hardly seems alien to the blogosphere, I feel free to brag about my 10 year old Patrick, who won the best climber award at his rock climbing camp, "Kroc Rock" at the Kroc Center. He climbed up their 3 story or so climbing wall, which included some overhangs, in 43 seconds, which I gather is pretty darn good.

I think climbing is a great sport for kids, as long as safety is emphasized, as indeed it should be for adults as well. All of this "touching the void" stuff is strictly for the movies.

Your judiciary at work
By Tom Smith

This is the sort of thing that give male enhancement devices a bad name.

What is wrong with these people?
By Tom Smith

It's just so confusing I can barely stand it. First, demented Islamofascists drive planes into buildings and kill more than a couple of thousand people, and the message we get from the left is, we have to understand why they did this. As if, by some tortured logic, it might be justifiable to kill thousands of innocent people to make the point that they hate America. And not only kill them, but kill them in a very bad way to die. Burned to death, crushed to death, dying slowly of dehydration while trapped in rubble. Lots of pictures of burning towers, but none of the body parts that must have littered the ground. Very few of burn victims. OK. Fine.

Now, we are fighting these people in Iraq. It is the policy of the US government, apparently, to use what I would call semi-harsh treatment to get suspected terrorists to tell us what they know. Most Americans, perhaps upwards of 70 percent, think this is fine. It's certainly fine with me. And why wouldn't they? What confuses me is, how are we supposed to be so open-minded that we kinda see the point of people who kill thousands, and would kill millions if they could, but go into brain-lock when they think of some guy caught with an RPG being put in a "stress position" for a couple of hours. Here's some tender-hearted fellow at the New York Times boo-hooing about how sad he is to be an American. How could we celebrate Reagan when Abu-Ghraib was so fresh in our minds? What about Nuremburg? Aren't we just a bunch of Nazis? What I want to know is, why do writers like this one hate us so much? What did we do to hurt him? Oh, boo hoo hoo hoo hoo!

Actually, I'm relieved that such a large majority of Americans favor coercive interrogation. It means a lot of Democrats, roughly half it looks like, favor not giving prisoners hot food, as opposed to MREs that are good enough for our soldiers, unless they tell us where the next ambush is coming from. Oh, boo hoo. I'm so ashamed I'm going turn my hot tub down five degrees, just to punish myself.

I guess you have to have an historical perspective. In WWII, there were folks who were quite happy to defend Hitler until he switched sides and attacked Russia. Intellectual embarrassment didn't stop them. Why should it stop people from urging us to sympathize with the terrorists and then get outraged by bad treatment of our enemies that falls far short of burning them to death with jet fuel.

Well, just to be clear, here's my stance on the various suggestions raised by the Time's boo-hooer of the week:

I love Reagan, his funeral was moving, he won the Cold War, and your side lost. Ha ha ha.

We beat the Nazis, and we'll beat their low-tech Arab buddies, too.

It's absolutely fine by me if you subject illegal combatants to harsh treatment up to and including that equivalent to the average American high school football practice in anyplace but Texas. That would be cruel. No sexual humiliation, though. That's only allowed in Manhattan sex clubs.

Steyn on Clinton auto-bio
By Tom Smith

Vintage Steyn. via Southern Appeal.

Dying for the media
By Tom Smith

This post at Belmont Club explains how hostile media coverage costs American lives.

Dafur roundup
By Tom Smith

Genocide in the Sudan. This is what evil looks like. via Instapundit.

I think this might be a job for reconnaissence in force. Maybe the French could do it.

The silly Times
By Tom Smith

It's hard to be the Times. How can you be the newspaper of record when you make stuff up?

June 26, 2004
Dick Cheney and Aaron Burr
By Gail Heriot

I was sick in bed yesterday when the Washington Post ran the story of Vice President Cheney's unfortunate public use of the f-word. (And I do mean unfortunate. Vice Presidents should not regard themselves as having that liberty. That is one among many reasons that I will never be Vice President of the United States.) But at the time, I was reading Ron Chernow's biography of Alexander Hamilton, in which, of course, Vice President Aaron Burr shoots former Secretary of the Treasury Alexander Hamilton dead. It provided interesting perspective on the Cheney story. Those were the good old days when Vice Presidents understood the need for decorum. Or something.

The Chernow book is highly readable "treasury" of information on one of America's greatest men (and a personal favorite of mine). I can't recommend it enough. I also loved Richard Brookhiser's Alexander Hamilton: American, which while, less ambitious than the Chernow book, has the virtue of being short enough to read on a transcontinental flight. (Don't you just love books that can be read in exactly 5 hours?)

Michael Moore -- the bright side
By Tom Smith

Conservatives are in a state of high dudgeon about Michael Moore's latest artistic documentary, Fahrenheit 9/11. While I certainly understand why they are irritated, I also think they are failing to see how the movie tells a happy story about America, which Moore proves is, indeed, the land of opportunity.

Here we have a relatively young man who, to all appearences, is without any appreciable talent. Based on his public utterances, he seems to be of somewhat below average intelligence, for example, or at least below the average of those who comment on geopolitics. He comes across as someone who thinks geopolitics has to do with earthquakes. Like many people who find long articles about the international news in USA Today hard going, he tends to see the world in terms of conspiracy theories. Of course, he is not the first relatively unintelligent person to do well in the movie biz. However, most of those people, while stupid, are or were spectacularly good looking, or are at least good looking, and able to sing or dance. I am incurious about what Tony Bennett thinks about the future of public sector borrowing in the developing world, for example, but no one can deny the appeal of his vocal stylings. With Michael Moore, none of this is so. Not only is he no rocket scientist, but he has looks only his mom could love, and that after a couple stiff drinks. So here we have a fellow who is, not to put too fine a point on it, both stupid and ugly, and yet is the toast of Hollywood, Washington, and Cannes. Not to mention making untold millions of dollars. Only in America.

June 25, 2004
Bumper Crop
By Maimon Schwarzschild

I see quite a few Kerry bumper stickers driving around San Diego. I have yet to see any Bush-Cheney stickers. I don't know what it means, and I am aware that this might not exactly get a lot of credit for being scientific, poll-wise. Still, San Diego ought to be red territory if anyplace is. The Bush campaign is supposed to be a well organised juggernaut. But is it?

On the other hand, the latest fevered Gore speech and the ugly Michael Moore movie ought to be helpful to Bush.

Incidentally, I suppose the point has been made before, but for anyone with any background in British politics, the "red = Repubs" "blue = Dems" thing is just bizarre. British politics has been colour-coded for at least a century: blue = conservative (as in "true blue"; hence Mrs Thatcher's blue suits); red = socialist (obviously); yellow = Liberal (I think daffodils were Gladstone's favourite flower). Candidates in Britain campaign wearing big paper "rosettes" with their party colour. I mean, everyone knows these colours. It's perverse to reverse them. Next, somebody is going to suggest that Americans should drive on the right side of the road. (Or have light switches that go "up" for on and "down" for off, instead of the correct British way...)

Restraining Spending
By Mike Rappaport

With federal spending going wild, something needs to be done. Stephen Moore describes a promising proposal entitled the Family Budget Protection Act, which includes the following features:

1) It restores the power of the president to line-item veto wasteful and parochial spending projects, which have multiplied in number and in cost in recent years.
2) It eliminates so called "baseline budgeting" which allows federal programs to grow each year on automatic pilot.
3) It creates a sunset provision for federal programs, so they are not put on a perpetual life support system.
4) It requires that if Congress and the president do not agree on a budget on time and on budget, that all federal programs will be funded at the previous year's level, minus one percent.
5) For the first time ever, it creates enforceable overall spending limits on entitlement programs, which have been ravaging the federal budget over the past two decades.
The fourth feature was most interesting to me. Several months ago, John McGinnis and I published an op ed in the Wall Street Journal arguing that a supermajority rule for spending should be enacted. To deal with the possible holdouts and government shutdowns that such a rule might create, we proposed that a majority (rather than a supermajority) should be permitted to enact spending of no more than 90 percent of the previous year's amount. To the best of our knowledge, a provision of this type had not previously been advocated or discussed.

The Family Budget Protection Act uses a similar provision to deal with with holdouts and government shutdowns, requiring that if "Congress and the president do not agree on a budget on time and on budget, that all federal programs will be funded at the previous year's level, minus one percent." I don't know for sure whether this provision was adapted from our proposal, but it very well might have been. If so, it is gratifying to see one's work having some small real world effect. Of course, if the Family Budget Protection Act and the provision are actually enacted, it will be far more gratifying.

Cool climbing site
By Tom Smith

Here's a cool site on Everest and Himalayan climbing generally.

Update on the upper half
By Tom Smith

Just in case you're weren't invited to the opening of Michael Moore's new documentary in DC, here's the story in the Post.

Parts of it are hard to credit. Michael Moore "picking daintily" at a plate of food? I doubt it very much.

German uber-boy
By Tom Smith

A German boy (see this neat picture) has been born with a genetic mutation that gives him twice the muscles and less fat than normal children. Something to do with less myostatin to inhibit muscle growth. So far, he seems to have no health-threatening abnormalities.

June 23, 2004
Grutter and Gratz: Full Employment for College Administrators?
By Gail Heriot

Today is the one-year anniversary of Grutter v. Bollinger and Gratz v. Bollinger. To those who heard about the Supreme Court's decisions last June only on television or radio, the battle over race-based admissions policies may have appeared to end in a tie score. While the Court upheld the University of Michigan Law School's admissions scheme in Grutter, it condemned as unconstitutional the University of Michigan's undergraduate policy in the companion case of Gratz.

But appearances can be misleading. In fact, Grutter was a huge loss for those who favor race neutrality. Gratz, on the other hand, will probably for all practical purposes turn out to be an insignificant victory. Any college or university whose race-based policy would be banned by Gratz can, without too much trouble, re-model its policy in the style approved by Grutter and achieve precisely the same results. Almost all of them now have.

Both Michigan policies gave extraordinary weight to race in determining who is admitted and who is not. The college gave 20 bonus points (out of 100 necessary for admittance) to all African American, Hispanic and American Indian applicants. The effect was huge--the equivalent of an entire letter grade on the applicant's high school GPA. All other things being equal, a student who earned straight Bs in high school would be treated as if he had earned straight As--if he happened to be from a desirable racial group.

The law school, on the other hand, had no crude point system. It claimed instead that its decisions were based on a nuanced evaluation of the whole person in which race was a minor consideration among many. But it was all just talk. In the end, the results demonstrated the the law school's obsession with race was every bit as over the top as the college's; the gap between the credentials of admitted minority students and rejected White and Asian students was every bit as wide. According the Judge Bernard Friedman,who presided over the Grutter trial and (unlike the Supreme Court)found the law school's policies unlawful, there was "mathematically irrefutable proof that race [was] indeed an enormously important factor."

In some ways it would have been better to lose both cases. The effect of Gratz is simply to cause colleges and universities to hire more admissions officers to go through the motions of reading each file before giving heavy preferential treatment to African Americans, Hispanics and American Indians. More admissions officers means more people whose jobs depend on the continuation of race-based admissions policies. That's not good news. People are funny that way: They like putting food on the table and can get pretty grumpy when they see others interfering with their ability to do so. It is worth noting that college adminstrators are just about the only group that in fact advocates race-based admissions policies.

Despite what you may have heard, the evidence indicates the faculty members are not big supporters of race-based admissions policies. Indeed, that's understatement. The evidence indicates they actually oppose it. In a 1996 nationwide study of full-time faculty members at public and private colleges and universities,the Roper Center for Public Opinion Research fould that racial, ethnic, and gender preferences are quite unpopular. Among those who knew their own institution's policy on admissions, 60% reported that their institution had either formal or informal policies giving preferences to applicants based on race, sex, or ethnicity. When asked whether their institutions should grant preferences to one applicant over another for admission based on race, sex, or ethnicity, 57% responded "no," 32% responded "yes," and 11% did not know or declined to state. Only college administrators differed.

Still, Grutter and Gratz simply close off one avenue for opponents of race-base admissions policies--the federal courts. A Gallup poll released just a day after the Court's decisions suggests the political possibilities. A strong majority (69%) said that college applicants "should be admitted solely on the basis of merit, even if that results in few minority students being admitted." Only 27% took the position that an applicant's race should be taken into consideration "even if that means admitting some minority students who otherwise would not be admitted." It's just a matter of time before this is translated into statute or popular initiative somewhere. Right now, with the Michigan Civil Rights Initiative back on its feet after a nasty court battle, it looks like Michigan itself may be the next state (after California and Washington State) to go race neutral.

Roger Clegg on Racial Preferences
By Mike Rappaport

Roger Clegg discusses some of the actions that opponents of racial preferences have been taking in the wake of last year's Grutter decision. (Hat tip: Betsy's Page.)

Opponents of preferences have not quietly folded their tents on gone away. Ward Connerly has launched a drive to ban preferences at ground zero: Michigan. While this ballot initiative has faced several hurdles (including a lack of support from the Republican establishment and court challenges), it remains on track. Indeed, the Michigan house this month passed an amendment to the state's higher-education bill that bans preferences, and a state supreme court decision there suggests that existing state law might already illegalize what the university is doing.

Meanwhile, the National Association of Scholars has systematically enlisted its state affiliates to send freedom-of-information requests to state schools, asking for documents bearing on whether those schools use preferences and, if so, how exactly they work: who is preferred, who is not, how heavily the preferences are weighted, and so forth. NAS has made clear that the schools can expect this request every year. Many schools are indicating that they don't use preferences; others still do, but the effect of the information requests is to make these schools more vulnerable to public, legislative, and courtroom pressure.

The Victory over al-Sadr
By Mike Rappaport

The story is here. But will it be anywhere else?

June 22, 2004
Warren Harding
By Mike Rappaport

David Bernstein has a good post defending Warren Harding's presidency. Bernstein points out that Woodrow Wilson is consistently listed as a near great president. Would someone care to explain why?

Bernstein notes that the Federalist Society - Wall Street Journal poll ranked Harding low and Wilson high. I was one of the scholars who participated in that study, but don't blame me.

Incorporation of the Establishment Clause?
By Mike Rappaport

Justice Thomas's concurrence in Newdow has led to a significant blogosphere discussion about incorporation of the Establishment Clause. In this post, I shall try to further the debate by drawing some basic distinctions concerning incorporation.

The original Bill of Rights only applied against the Federal Government. The only way that the Bill or any part of it can be applied against the states is through the Fourteenth Amendment.

While the Supreme Court has held that many of the provisions in the Bill apply against the states under the Due Process Clause, this is clearly mistaken for textual reasons. The only plausible basis for incorporating the Bill of Rights into the Fourteenth Amendment is through the Privileges and Immunities Clause.

Even if the Privileges and Immunities Clause is properly read as applying some of the Bill of Rights to the states, there are still many questions left open as to which rights apply and what their content is.

First, not all provisions that limit the federal government should be applied against the states. For example, one might argue that the Tenth Amendment or the Port Preference Clause of Article I, section 9 ("No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another") should not be applied to the states because they are not individual rights, but instead federalism provisions that are intended to determine the relationship between the federal government and the states.

Second, not all provisions that are incorporated would necessarily have the same meaning against the states as they do against the federal government. The principal concern in 1789 was the possible abuse of power by a distant federal government; the principal concern in 1868 was protection of the freed slaves from the defeated southern states. If a right that originally was intended to protect against the federal government had evolved a new meaning by 1868, and that meaning made more sense in terms of protecting freed slaves, then one might infer that the Framers of 14th Amendment understood it to have that new meaning. For example, one might believe that the First Amendment was originally intended to incorporate the principles made famous in the Zenger case, which protected the role of juries in free speech cases, since juries were local and democratic institutions that could resist the abuses of a distant, oligarchic federal government. By contrast, one might believe that Freedom of Speech had evolved by the end of the Civil War to be more about protecting individuals from an oppressive majority and therefore would focus more on rights that federal judges could enforce and less on juries that might be filled with whites from the former confederate states.

How do these two principles apply to the Establishment Clause? One possibility is that the Clause was originally a federalism provision, like the Tenth Amendment, and therefore not appropriately applied against the states. This appears to be Justice Thomas's preferred position in his Newdow concurrence.

Another possibility is that it was originally a federalism provision, but by 1868 it was understood to protect an individual right of people not to be subjected to an established Church. Then, it might apply against the states, but with the same content as it had against the federal government. Justice Thomas contemplates this possibility in his concurrence, saying that if the Establishment Clause does apply against the states, it should only apply against real establishments (or possibly where there is coercion).

Another possibility is that the Establishment Clause had not only changed its meaning to an individual right, but had also expanded the scope of the protection it conferred. Under this view, the 14th Amendment might protect against actions by the states that were not prohibited to the federal government. Finally, this last possibility might be extended so far that the states are prohibited from taking actions that do not involve coercion of individuals. While I have not looked at the history very much, I tend to doubt that this conception prevailed in 1868 (not to mention at subsequent points, such as say 75 years later in 1943).

Thus, in the end, I find many different applications of the Establishment Clause to the states, as well as no application at all, to be plausible possible interpretations of the original meaning. The one view that does not seem plausible is the present Court's jurisprudence -- but what else is new?

While it is hardly relevant, I should say that my own political preferences about these matters differ from my take on the original meaning. Ironically, my political preferences are closer to the Court's jurisprudence than to any of the other positions I find to be plausible interpretations of the original meaning.

Guido speaks out
By Tom Smith

Not that it makes me an expert, but I took torts from Guido [Calebresi] back in 1981 (that's not as long ago as it sounds). With his recent remarks comparing Bush to Mussolini and Hitler, Guido, who is now a judge on on the Second Circuit, has rather put his foot in it.

It's not the first time. Every year at Yale we had the Yale Law Revue in which students displayed their considerable talents in song and dance routines that satirized professors, often savagely. For example, one poor professor who had failed to get tenure but stayed on a few years in increasingly less elevated administrative positions was depicted as pushing a broom around the halls. Ouch. To the tune of Elvis Costello's "My Aim is True", a lovely black woman with a great voice crooned to Bruce Ackerman, "I hear you moved to Riverdale/that's expensive real estate/ Helluvaway to bring Justice to the Liberal State" or words to that effect. Bruce Ackerman had left Yale in a pout to go to Columbia because Yale had not given his wife a job. He came back when they did. Ackerman's big book at that time was called "Justice and the Liberal State." Maybe you had to be there. Word had it that the lyrics "Ackerrrrrrman, We all love you" were substituted after protests for "Ackerrrrrman, My favorite Jew." I'm telling you, it was rough stuff.

Anyway, the song about Guido was set to that country tune The Gambler (You gotta know when to hold 'em, etc.) The punch line of the song, whose lyrics I cannot recreate, was Guido's telling his torts class that his senior colleague Quentin Johnstone was an idiot, and no one could take a class from him if they could help it. Guido had gotten straight A's in law school except (cue music) "for that C he got in Property, in 1958." On a law school faculty, it's pretty unheard of to tell your class to avoid a senior colleague because he's a fool. Was QJ a fool? Well, he's dead now, I'm not Guido, and I have no comment.

Like half the world, I have a soft spot for Guido. His politics are the usual Yale liberal, but in Guido they seem more comical than threatening. Also, I think federal judges ought to be able to say controversial things. A federal judge ought to be able to say Roe v. Wade was the worst case of Supreme Court legal malpractice since Dred Scott, if that's what she thinks. She's not saying it's not the law; she's just saying it's stupid. Guido was not saying that Bush v. Gore was a nullity; I infer he was saying it was wrongly decided. If he refused to be bound by it, that would be another matter. Yes, yes, it's not very judicial. But not every single judge should talk the legal version of Greenspanese. That would be boring.

No one should infer from this that I was one of Guido's little lackies. He always treated me the way a PETA member might treat an insect in his house. Benignly, but there was no ambiguity about our relative positions. He once wrote a letter of recommendation for a friend of mine whose parents were immigrants. Of him, I was told Guido opined "X is a remarkable student, especially when you consider that his parents are peasants." In Guido's world, there are a lot of peasants. You can be insulted by this, or you can think that one of the charms of aristocracy is that it allows a few people to say things no one else would dare to say. I think Guido must have given up any hope he had for the highest court -- and you have to admit there's something wrong with a world where there is a Justice Souter and no Justice Guido -- so now he really can say what he thinks. Personally, I think somebody should host a conference on Bush v. Gore, constitutional succession, and related topics, and invite Guido to speak. What wasn't incomprehensible would be very interesting.

UPDATE: A loyal reader writes to inform me my property professor QJ is still alive. I'm glad to hear it, and wonder how I got it into my head that he had died. In any event, all the more reason to neither confirm nor deny Guido's excessively candid appraisal of him. Reader also reports that when he was at YLS, the revue featured Dean Tony Kronman morphing into Dirk Diggler of "Boogie Nights." If you took a class from Tony K and you have seen Boogie Nights, you will appreciate that this is very funny. Not terribly nice, but funny.

Hitchens on Michael Moore
By Tom Smith

Christopher Hitchens on Michael Moore's new film. I think it's fair to say he didn't like it.

To describe this film as dishonest and demagogic would almost be to promote those terms to the level of respectability. To describe this film as a piece of crap would be to run the risk of a discourse that would never again rise above the excremental. To describe it as an exercise in facile crowd-pleasing would be too obvious. Fahrenheit 9/11 is a sinister exercise in moral frivolity, crudely disguised as an exercise in seriousness. It is also a spectacle of abject political cowardice masking itself as a demonstration of "dissenting" bravery.

and . . .

If Michael Moore had had his way, Slobodan Milosevic would still be the big man in a starved and tyrannical Serbia. Bosnia and Kosovo would have been cleansed and annexed. If Michael Moore had been listened to, Afghanistan would still be under Taliban rule, and Kuwait would have remained part of Iraq. And Iraq itself would still be the personal property of a psychopathic crime family, bargaining covertly with the slave state of North Korea for WMD. You might hope that a retrospective awareness of this kind would induce a little modesty. To the contrary, it is employed to pump air into one of the great sagging blimps of our sorry, mediocre, celeb-rotten culture. Rock the vote, indeed.

Termites at Crooked Timber
By Maimon Schwarzschild

Oh my. Kieran Healy at Crooked Timber is calling me into the Headmaster's office for a stern caning for saying that an anti-American federal Europe would be a bad thing, and that it is good news if last week's election success for the Euro-sceptic parties-- including the UK Independence Party -- makes the creation of a centralized, federal European power less likely.

Headmaster Healy is so cross that his logic is impaired. It is one thing to say that UKIP's success is a good thing if it slows down the euro-federal juggernaut. (That's what I said.) It would be another to say I want to be governed by UKIP. It's true, UKIP is a mixed bag: like many fringe (and not-so-fringe) political parties. Many people who voted for UKIP surely wouldn't want it to be the government. (Even if UKIP had won all the votes last week, it still wouldn't be the government of anything. This was an election for the "European Parliament", which is not where the power is in the EU.) But the UKIP vote does send a message to the "establishment" parties that euro-federalism is unpopular, and getting more so. Voters unhappy with the idea of a Brussels superstate -- or unhappy with the idea of toeing the Chiraq-Schroeder-Zapatero line -- might well have felt that they had nowhere else to go.

The second piece of illogic from Kieran Healy is much the more serious one. I mentioned the growing "anti-Americanism, and thinly veiled anti-semitism" in European politics. This is obviously what excited the hornet's nest at Crooked Timber. Kieran Healy says UKIP "in the past" had a "scattering" of anti-semites or at least "nordicists" (whatever they are: I don't think he means Swedish socialists): and this is his bridge to the ugly subject -- and it is an ugly subject -- of the European far right.

That there was, and is, anti-semitism on the European far right is scarcely in dispute. But the implication at Crooked Timber is that if there is anti-semitism on the far right (and of course there is), then there is anti-semitism only on the right: don't look for it anywhere else.

Put baldly like that, the idea is ludicrous. But I think some such idea, or at least some such feeling, is common enough among "progressives". Anti-semitism is a right-wing disorder. Must be. Therefore it is only a right-wing disorder.

Would that it were so.

Anyone who has watched an "anti-war" march ("Star Of David = Swastika"), read the mainstream European press ("Jenin massacre", and much, much else of the same sort), attended a bien pensant dinner party in London or Paris (graced with the presence of the French ambassador to Britain or otherwise), or spent any time in left-leaning European university or professional circles lately, knows better. You have to be deep in a "progressive" burrow not to notice the seismic growth of "anti-Zionist" rancour on the European left: a preoccupation with the possible misdeeds of Israel so disproportionate as to make the inference of anti-semitism inescapable.

For a typical if fairly mild example, Kieran Healy need look no further than his own fan mail. A Crooked Timber correspondent writes,
    "Segregationist USA, land of slavery and a million missing Natives, has meanwhile built its oil empire with the help of the satellite state religious-based Israel."
(Most of the responding posts have vanished from Crooked Timber's site: the link is to the Google cache. Just scroll down to the post from "q".)

Does Crooked Timber share that view? Crooked Timber saith naught.

Meanwhile, back in the real world, a growing number of French Jews are taking steps to emigrate. I don't think a Bourbon restoration is what they're worried about.

For more on Europe and euro-federalism, here is Mark Steyn in the Daily Telegraph. And the extraordinary (in the good sense) Victor Davis Hanson. And read David Frum's op-ed (English version) in the Swedish daily Expressen on US-European relations.

June 21, 2004
Student Evaluations of Their Teachers
By Mike Rappaport

Eric Rasmussen has an interesting post on the role of student evaluations. Here is an excerpt:

Why, then do we rely so heavily on student evaluations? It is hard to believe that professors and administrators do not realize how weakly they measure the amount a teacher has taught his students. Even if they did not, if good teaching was the objective, surely we would pay some attention to the syllabi and what kind of tests were given and use objective evaluators-- students or faculty observing single class sessions-- which we do not do in any serious way. Rather, I think that "good teaching" means "contented students" for the people who rely on student evaluations. Student evaluations are indeed a good way to measure this. And it is a reasonable objective. Administrators are trying to sell a product, and if you view the student as a customer rather than as someone to whom you have a moral obligation, you want to design a product that he wants.
Interestingly, at one law school I know, the student evaluations ask the students many questions. Not a single one of them, though, asks how much the student believes he learned overall in the course. They ask all kinds of things, like how well the professor integrated current events, but not how much was learned. Hard teachers, who give a lot of work, would benefit from this question being asked. And so would the students.

June 20, 2004
Iowa electronic market shows Bush uptick
By Tom Smith

The Iowa Electronic Markets are essentially a betting exchange on future political events. Recent scholarship suggests markets such as these do a very good job processing information about the probabilities of future events. For example, the HSX play market, where you can bet play money on who will win Oscars and how films will do at the box office, does a better job predicting these events than do the professionals in the trade press.

Exactly how markets manage to do this seems not to be well understood. I can say that the law of corporate finance people don't have any deep understanding of this. For one thing, the math is very hard and you have to resort to simulations. Curiously, though, it seems markets do not have to be that big or thick or efficient to do a good job predicting the future.

So that makes this uptick in Bush futures all the more interesting. It coincides with the 9/11 commission fandango.

More on Iraq- al Qaeda connection
By Tom Smith

This via realclearpolitics (which should be a daily stop for you).

I really question the wisdom of Kerry making such a big deal out of the "no connection" line. His big problem with swing voters is, I think, not seeming trustworthy on national security. If his big principle is, we have to give people who truck with terrorists the benefit of the doubt, how does that help him? It's late to be playing to his base, which is what this seems like. Along the lines of the old Kennedy saw that he found campaigning less stressful than Nixon, because he could just be himself and Nixon could not, this suggests to me Kerry has a hard time not being the left wing critic of US foreign policy. This may endear him to the New York Times, but I doubt it's smart in Florida or Ohio.

You never know where debates will end up, but this one looks like it's heading towards Kerry saying the evidence was not strong enough to justify war, and Bush saying in a war against terrorism, you can't wait until you are sure beyond a reasonable doubt that somebody is planning to attack you or helping those who are.

AND there's this Jack Kelly column which does a good job hitting the high points of how the media is getting the 9/11 commission report wrong.

Not to insult our friends on the left unduly, but I am puzzled at what they are thinking here. Are they thinking they can get away with such distortions? In politics, everybody spins. To me, though, it seems the left is quite a bit cruder about it. Is this a holdover from the old Stalinist Orwellian business of just brazening things out? "We have always been at war with Oceana"? Is this because the left is pitching to the poor masses, who don't read UN and 9/11 commission reports on the web? Or is it more a Clintonian thing? He certainly was a poster boy for the idea that liars can prosper. I like to think, though this may be way too optimistic, that with the internet, blogs, etc. etc., we are coming out of a period in which "the masses" can be so easily manipulated by big media, when William Randolph Hearst could start a war (though of course that war was just so we could get naval bases, etc. etc.). Maybe this means the media will have to stop treating us so much like idiot children.

The New York Times
By Mike Rappaport

Its gotten to the point where New York Times bias is so pervasive that it hardly seems worth mentioning. I mean this quite sincerely: If the Times runs a story on the Iraq War which is not negative, that is worth pointing out. A negative story is simply not news.

But what the hell. I point it out as a way of dealing with it, not because it surprises anyone. This book review of John Keegan's book on the Iraq War is up to the New York Times's standard.

The Times, though, better watch it. There was a time when the term "liberal" was not used as a slur word in American politics. The phrase "this journalism is up to the Times's standard" could soon come to be understood generally as a slur.

June 19, 2004
President Bill pens a flinger
By Tom Smith

I gather down under they have a term for a really bad book -- a "flinger", meaning what you should do with it. If this is the review the Clin-tome gets in the New York Times, it must be truly a stinkeroo. He probably should have just let a staff of ghosts write it.

I would say "because I could" is a meaningless response to the question "why did you do it" with young Monica, but when you think about it, a stupid question deserves a stupid answer. It's like asking a bank robber why he stole the money. What is he supposed to say? It's easier than earning it? I thought if I just asked for it, they wouldn't give it to me? I prefer money to vegetables? The better question is something like, why did you think you could get away with it? Or, to what do you attribute your lack of normal moral development? My non-expert view is that Clinton is a sociopathic personality, who simply lacks the moral sense most people are born with. I think it is likely he raped Juanita Broderick, for example. I'm not positive he did, but I followed her story pretty closely and know a little about rape (I even taught criminal law one year!), and it seemed to me her story held together pretty well. Of course, maybe she was coached by experts from the vast RWC, yada yada. And I thought I was cynical about the feminists before that incident. Not as cynical as Clinton, I guess. Doesn't it seem likely, however, that Bill is making up for lost time now with the ladies, that every one who knows him slightly knows that the notion that he and Hillary saved their marriage with therapy and turning over a new leaf is a total crock, but everyone has agreed to turn a blind eye because they're rightly sick of the subject and it doesn't help the cause? I hope he lives a long life, because I'm not ready for his funeral. He should be careful, though: he has got-drunk-and-drowned-in-his-hottub written all over him. Either that, or death by Viagra overdose, said to be an unpleasant way to go.

But thank God for small favors. One good thing about the book being a stinker is that it will disappear sooner from the public consciousness, such as it is.

Excellent fisking of the NYT
By Tom Smith

The NYT coverage of the 9/11 commission report really has brought that paper to a new low. Somewhere after spin you get to outright falsification, and they've gotten there. This fisking at the realclearpolitics site is good.

What's amusing is how telling lies can hurt you if, one, the lies you tell can be refuted but, two, the people you are trying to help by lying either believe the lie or think it's irrefutable, and endorse it before they find out otherwise. John Kerry seems to have gotten himself into this pickle. Maybe Kerry and other important Democrats could get a special annotated version of the NYT, with bracketed comments, e.g., [This is false, but difficult to deny] or [we just made this up] or [someone would have to actually read the testimony to realize this is a lie]. That way, people would know what aspects of NYT "news" not to rely on.

In a way, it speaks well of the Times that they are lying so clumsily. It suggests they have not been in the business very long. They need to decide whether they are going to become a smoother organ of political propaganda, or try to go back to being a paper of record, quaint as that is. But now they're just a joke.

Debka on background to al Qaeda in the Kingdom
By Tom Smith

Interesting exclusive story from debka about secret war against al Qaeda. Hard to know how accurate it is, but it's plausibe.

BTW I don't approve of calling Saudi Arabia "the Kingdom." There are lots of kingdoms. It sounds pretentious.

WMD update
By Tom Smith

If the press were not so busy carrying water for Kerry and the left, they could actually dig up a story here. There is a lot of suggestive evidence, some of it more than suggestive, that Iraq's WMD program was dismantled and shipped out of the country.

You can follow links to the UNMOVIC report to the UNSC, which includes the satellite imagery.

This is a nice site collecting materials relevant to WMDs in Iraq.

Why Central Europeans Snubbed the EU
By Mike Rappaport

Although the US saved the freedom of the French and German nations, I would not want to be in the same political entity with them. NATO and the UN are more than enough. The Central Europeans appear to be discovering this fact about their new partners.

June 18, 2004
Cultural Norms and the Coase Theorem
By Mike Rappaport

Interesting post on the Coase Theorem. (For those who read the post: I don't think that the cultural explanation is necessarily tautological. If you asked people whether paying someone to cut his trees violated a cultural norm, and a large percentage said yes, that would be evidence. The explanation for the norm is another matter, though.)

Return to the planet of the boys
By Tom Smith

Jeanne is back east to go to her niece's high school graduation, so I am in charge of three boys. The youngest, the infant Mark, Jeanne took with her. She's not crazy.

They are all in the pool now, so I have a moment. Earlier I tried to take a nap, but the screaming was too loud. So far, there have been lots of touching family moments, such as this one:

Patrick: Ahhhhhhhh! You kicked me in the weiner!
William: You were thweatening me!
Dad: William, don't kick anybody in the weiner. Patrick, stop threatening your brother.

Last night I grilled burgers and we watched Adam Sandler's 50 First Dates. They had seen it before, they said, and judged it suitable for children. In the entire movie, there were perhaps three scenes that did not have some off-color joke on subjects such as the gigantic size of walrus penises, the tendency of steroid use to cause nocturnal emissions, and so on. I hope most of it went over the 8 year old William's head. I would rate the movie as too stupid for adults and too raunchy for kids, but the scene of the walrus vomitting enormously on the vet's assistant was strangely amusing.

The king snake, no doubt sensing diversion in the air, took his chance, slithered out of his tank, and escaped under the coffee table. This was cunning, since the coffee table weighs about 500 lbs. He may be there still or elsewhere in the house. I don't care. If he wants to try to make it on his own, I say, you go, snake. Jeanne, who is the instigator of all the reptile fancying around here, has arranged to get some corn snake eggs from a patient who breeds snakes. I can hardly wait.

The big event this morning was going to the local Target, always a religious experience for me (look at this beautiful t-shirt and its seven dollars!) and buying a playstation 2 for the kids. We have resisted until now, but somehow this purchase became the uber-bribe for good grades. School is now out so the bribe is due. Our children are very different regarding spending money. Our middle boy, Patrick, is ten and the future investment banker. Short of cash to pay the gardener last Saturday, I turned to Patrick to borrow $60. "OK," he said, "but there will be interest. One dollar per week, but no interest for the first week. That wouldn't be fair." He gave me three 20's. I owe him about $500, from previous transactions. I have no idea where his money comes from. Once, I borrowed $30 from him on terms that I had to pay him back in Kennedy half dollar coins. My life was miserable until I did. I ended up having to go to a bank to get the coins. William is a worker. You say, "want to make a dollar?" and he says "sure. How?" I say "clean out the fireplace," and next thing I know the 8 year old is carefully shoveling ashes into a can and vacuuming up afterwards. Amazing. If I asked Luke, he would say "You know what the amazing thing is about using a bokken against a takihachi?" By the time I got done bargaining with Patrick I could have cleaned the thing myself.

We got the Playstation and I let them set it up. Of course, they knew exactly how it worked. Soon the sounds of dying samurai and spell casting Harry Potter characters were filling the house. I went to check on them. "I can almost feel this thing making me stupider," said Patrick. Luke was draped like a noodle over a chair. "It just saps your energy," he said. Later on, I kicked them out into the pool. Before that, I heard William screaming. "I didn't do anything," Patrick said. "He was pulling on something, and I just let go of it!" He was even.

Cool comet
By Tom Smith

Photos from Stardust's encounter with comet Wild 2.

and spaceshipone.

Oh, that Iraqi terrorist connection
By Tom Smith

The interesting question is how the media will handle the latest revelation that Iraq was planning terrorist strikes against the US.

They can say, "we were talking about Iraq - Al Qaeda links, not state sponsored terrorism by Iraq!"

Or, "why did the Bush administration keep this information secret?"

But these and other responses I can think of don't sound very effective. So I think it will just get the non-fact fact treatment. After a while, it will just be conveniently forgotten, just like all the puzzling clues that a bunch of WMD parts got moved out of Iraq are ignored.

You have to admit, though, it is a hoot. The 9/11 commission does its amateur hour investigation, announces the links between Iraq and terrorism against the US are unproven (Bush lied!) and then Putin of all people says, "Of course, there were those attacks Iraq was planning that we told you about . . ." Oh dear! Isn't Putin on the bandwagon! Who's side is he on anyway?

If the press were capable of being embarrassed, they would be embarrassed. Al-Reuters does its best, but all it come up with is some State Department types complaining no one told them about this intelligence, combined with a deceptive headline. Can you believe the headline? Imagine, the CIA not telling State about some juicy intel from the Russians! Shocking. Hard to credit! But maybe the CIA didn't want the Russian source to end up in a wood chipper. Or even worse, the dreaded underwear on the head treatment.

June 17, 2004
More on Reagan
By Mike Rappaport

Take a look at this AEI paper comparing Reagan and Bush's spending. (Hat tip: Andrew Sullivan.) Key point:

Ronald Reagan sought--and won--more spending cuts than any other modern president. He is the only president in the last forty years to cut inflation-adjusted nondefense [discretionary] outlays, which fell by 9.7 percent during his first term. George W. Bush, in contrast, increased real nondefense spending by at least 25.3 percent during his first term.
Reagan's accomplishment is impressive. While David Stockman is famous for suggesting that Reagan was unwilling and unable to cut spending sufficiently, Reagan was, as usual, far and wide better than any of his predecessors and successors in this area. Bush 41 and Clinton during his first term both cut total discretionary spending (both defense and nondefense), but in both cases the cuts came from defense spending due to the Cold War's end -- cuts which were made possible by Ronald Reagan's policies.

John Yoo and Boalt Hall
By Tom Smith

This is an important read. It certainly is the case that it would be a big blow to academic freedom, not to mention the reputation of Boalt Hall, if they gave in to intimidation by law students, who in this case haven't a clue what they are talking about, to fire Professor Yoo for writing a memo when he was at DOJ saying the Geneva convention did not apply to illegal combatants. I gather the students' view is that Yoo should be fired for advising his client what the law said, even though or if that is in fact what the law said, because they wish the law said something different.

So let's get this straight Now we're supposed to lie to our clients about what the law is, because the law as is might turn out in the future to be a politically unpopular position? May I tell my client that capital punishment is the law in Texas, even if it is politically incorrect?

It is embarrassing enough for Boalt Hall that their students should take such a ridiculous position. I have just been assuming that in due course, the administration of that distinguished law school will send the students a polite letter informing them that tenured professors are not fired because students disapprove of legal memoranda they wrote while fulfilling their professional and Constitutional duties to the government of the United States. Under any other logic, I suppose, Boalt Hall would also have to fire any professor who had served in any capacity, such as the armed services, of which the petition-signing subset of the Boalt Hall student body (I'm thinking the bar scene in the first Star Wars movie) do not approve. Goodness, I am hoping the early 'seventies, when any rump group of half-informed and half-stoned students with a bullhorn could intimidate administrators into submission, are long gone. That turned out badly, remember?

And not only that, but is there the slightest chance Boalt Hall could fire Yoo without violating any number of state and federal laws? Not exactly my area, but I doubt it very much. I wonder what the likelihood is that those brave petition signatories, this marine corps of the politically correct, would like to indemnify the University against any liability they might suffer for, oh, breach of contract, to begin with. I bet the landing craft of these heros of the left would be depopulated faster than the ones at Omaha Beach. "Just because I want to fire this guy doesn't mean I want any consequences for me!" Here's an idea. Let's post the names of the signatories on the web, and that way prospective employers can find out who the idiots are. "I see you signed the Yoo petition, Mr. Peabody. How is that consistent with the University's status as a public employer? I see. And as an associate at this firm, would you not see it as your duty to tell the clients of this firm what the law was, however much you might disapprove of that law?" That kind of torture, in my opinion, is definitely legal.

And I'm sure Boalt Hall doesn't want the kind of attention it would get from the Governor's office and Washington, D.C. if they pulled a stunt like firing a professor at a public law school for the good faith performance of his duty as a public servant. Just off the top of my head, let's see: Would the Senate Judiciary Committee take an interest? The Department of Justice? The White House Counsel's office? The Department of Education? Any agencies that give grants to Boalt Hall, to UC Berkeley? Is there any statutory law that would be violated by such a termination? Would it amount to discrimination against someone for having been a federal employee? Is that legal? Is legislation necessary to address such discrimination? I'm sure people in the UC System would love to come to Washington and testify about that. Especially those who supervise the law school administration. There's no reason, of course, that you can't have any number of public inquiries going at the same time, at both state and federal level. Then there's private litigation, not only against UC, of course, but against decision makers personally, who may have been acting ultra vires when they made such a decision. At least, that's the way they may see it in Sacramento. But I'm sure those are sacrifices anyone who would fire Yoo would be willing to make, in order to do the right thing. I would not fire Yoo, but before I did, I sure as hell would have a legal opinion from counsel and an indemnification agreement so that if I did so, I would not be personally liable. But then, I'm not as brave as some people. I am not, for example, a Marine of the poltically correct.

Come to think of it, contracts is my area, and such a termination sure looks a lot to me like bad faith. It is a breach of contract to fire someone for testifying truthfully under oath in a way you as an employer don't like. Sounds a lot like a government lawyer advising his client faithfully and then getting fired for having done his public duty. Discovery here we come. It would make a nice case in a contracts casebook.

But, as I said, it would be just so unbelievably stupid for UC Berkeley to do such a thing, I just don't believe they would do it. Maybe they should say that so people like me can relax. It would make a nice contracts case, though.

I guess I really am a nerd
By Tom Smith

This actually sounds like fun to me. via modulator.

Debka's analysis of the 9/11 commission report
By Tom Smith

Interesting analysis of the 9/11 report. Debka claims the commission has fallen victim to al Qaeda disinformation.

By Maimon Schwarzschild

Most of the European governing parties did humiliatingly badly in last week's European Parliament elections, very much including Chiraq's party in France and Schroeder's in Germany. Former President Nixon tells Bill Safire (NY Times registration required) that "Schroeder is finished; Chirac has had it." From RN's mouth to God's ear...

Tony Blair's Labour Party was trounced in Britain too, and the Anglo-American media have predictably been spinning the result as a "punishment" for the Iraq war and "Blair's support for Bush". (Not a sparrow falls but it proves the evil of George W. Bush...)

But the real story in Britain was the surge in support for the newish UK Independence Party: seventeen percent of the vote, twelve seats in the Euro-Parliament, more than double the UKIP share at the last Euro-election in 1999. The UKIP isn't just against Euro federalism: it is bluntly for UK withdrawal from the European Union. (You can't get more Euro-sceptic than that.) Anti-federalist or Euro-sceptic parties did well in Poland, Austria, and Holland too.

I used to root for a United Europe: for one thing, I liked the idea of being a "citizen of Europe" rather than of just one old European nation-state. But the past couple of years have cured me. Anti-Americanism, and thinly veiled anti-semitism, turn out to be somewhere near the top of the Euro agenda: or at least, these are the visceral feelings that have been surging to the Euro surface, cynically promoted by Euro politicians (Jacques Chirac, Exhibit A) and by most of the Euro media.

There is a case for hoping that Britain stays in the European Union: British people are less anti-American than much of Old Europe (though there is plenty, plenty of anti-Americanism in Britain); still, the thought is that Britain will tether Europe, politically and psychologically, a little closer to the US than otherwise. But in a European Union that careens on towards "statehood", it's pretty clear that the continentals are more likely to drag Britain along with them -- in policy and fundamental stance -- than Britain is to pull the continentals towards more friendly feelings for the USA.

The UKIP success this week, and growing Euro-scepticism in New Europe and even in parts of Old Europe, are bad news, perhaps very bad news, for the emergence of an anti-American "federal Europe". Sounds like good news to me.

ps Mark Steyn, as ever, has it right on this subject.

By Maimon Schwarzschild

We are a San Diego blog, so we probably ought to tell you about the earthquake in San Diego on Tuesday. There was an earthquake in San Diego on Tuesday. I was at home, at the computer, and there was a jolt. Then it was over. The end.

End of earthquake, that is. Some day, there will be, or may be, a much bigger earthquake. Then I, my computer, my apartment house, and much or all of San Diego or southern California or the west coast of the United States may be swallowed up into the maw of the Earth. The End. For more details, by all means re-read Jonathan Edwards' Sinners in the Hands of an Angry God. Or just stay tuned to TheRightCoast.

June 16, 2004
Yoo's Defense
By Mike Rappaport

John Yoo defends the Administration's torture opinions and policy here.

Christian America
By Tom Smith

This is interesting. Statistics suggest the US is more Christian than ever.

Brian and Fidel
By Tom Smith

This may be a mistake, but I want to accept Brian's implicit challenge to anyone to disagree with Castro's dare to disagree with him about the culpability of "neo-liberal globalism." I think the difficulty here is how to structure the argument so that it's useful. I'm not sure how to do that. But a few points may be worth making.

First, I'm not sure what neo-liberal globalism is. I think it may be a fictional entity. If it means free, or relatively free trade, then I think the argument that free trade impoverishes is largely false. So that might be one point of disagreement -- what is the effect that relatively free trade with more developed countries has on poorer countries.

Second, and this point might be more philosophically interesting, is that of culpability for avoidable suffering in the third world (or whatever you want to call it). On a certain level, I think it's undeniable that a lot of people suffer in poor countries who could be helped if rich people such as ourselves gave them money. To take a personal example, as I never tire of telling people, I went to Peru last summer to spend a week in the rain forest with my family, and go on a midlife crisis mountaineering expedition. It was expensive. While in Lima, we saw lots of children, as young as four and five, living on the streets. Some literally lived in holes, and begged at nearby intersections. I didn't give them any money to speak of, though I sometimes bought little trinkets from them. When I got home I spent thousands of dollars for emergency care for my dog. I don't feel particularly bad about that, but I do at least wonder if I got it wrong.

There are many questions here. But let's just say, for argument's sake, that wealthy countries and people have an obligation to do significantly more than they are doing to help the poor, sick, and so on, people in places such as Peru. It hardly follows that capitalism, which is the cause of our wealth, is to be blamed either for the poverty of the poor, or the unwillingness of rich people to share more than they do. If people are not very altruistic toward distant strangers (and they are not) this is not caused by some economic system. It is rather a limitation imposed by human nature on what kind of economic systems will work. Of course, this view rejects various Marxist and other views about the dependence of what gets called human nature on economic facts, but I'm comfortable rejecting those views. So, rich people who do not share may be morally cupable (though that is a separate argument and not simple), but that culpability has nothing to do with having free markets, private property, and all the other stuff implied by capitalism.

If there is an implied claim that if only the US or most countries were socialist, there would be far fewer poor people and so much less suffering, well, that's an empirical claim that one can argue about, but I think it is not plausible at all. A slightly different tack to take might be to argue, as I think is plausible, that free markets are especially important in poor countries, where the margin of survival is much less. I think a strong argument can be made that markets are by far the most efficient and safest way to assure that food and other necessary goods get to the poorest people. I think whatever the record of socialism in Canada or whereever, it has been disastrous in Africa, Asia and South America, and its failure to work has resulted in much suffering. So the argument would be if you want to help the poor, promote free markets. Also ask people to be generous with the poor, but there you will run up against people's natural selfishness. This does not mean that rich people who are not as generous as they should be are not morally culpable. They are. But the evil of capitalism or the goodness of socialism does not follow from that.

Holbo on denying communion
By Tom Smith

Interesting article (more than a post) on denying communion to pro-abortion Catholic politicians, by John Holbo. Thoughtful, but doesn't really have a bottom line, that I can see.

Part of the reason I have come to think of modern liberalism, or whatever it should be called, as something of a sham, is the inability of liberal commentators to get it about Catholics and abortion (I'm not including Holbo here). You really have to imagine that you are a Catholic in, say, Nazi Germany in the late thirties, and that the state is rounding up gays, Jews, gypsies and the mentally defective. Lets say there are, and there probably were, to the shame of the Church, Catholic politicians who do not oppose, or even support, these actions. Do you give them communion?

I think a lot of the warnings to the Church not to mix religion and politics fail to take seriously the position of the Church that abortion is a grave moral wrong. Personally, I think there is room to disagree about that when the life that is ended is that of a cluster of cells less sophisticated than what we eat for breakfast. Agreeing with the church's position means you have to believe the little creature has a soul, or something similar. But in late term abortions, babies that could survive with the usual neo-natal care, are killed. How that is not infanticide is just beyond me. Why an exception should be made for the mother's health is beyond me as well. There are many single moms whose lives would be improved, health included, by allowing them to kill some or all of their infants, and we call that murder. The only argument I have ever heard that makes any sense, albeit of an amoral kind, is that if late term abortions are outlawed, other abortions will get outlawed as well. By the same logic, early life infanticide should be permitted as well. (As to the philosophical arguments of Judith Jarvis Thompson and similar arguments, I think they are stupid. I find it hard to believe that similarly flawed anti-abortion arguments would ever have been published in prestigious journals. She visited at Yale Law School for a term and I was in her class for a while, but dropped out out of fear of doing permanent damage to my philosophical acumen.) In any event, it seems to me as between Planned Parenthood and the RC church, the latter has the more plausible position, even for those who do not accept its metaphysics. (It also creeps me out that Planned Parenthood even has a position on euthanasia. What is that about? Whose choice is that? It makes it look not like "choice" versus "right to life," but "right to life" versus "right to kill.")

It's not really the Church's problem that the Democratic Party has established a litmus test that to be a Democrat you have to believe in the absolute right to an abortion. You rarely hear the suggestion that maybe the Party should reconsider its position on abortion, rather than the Church reconsider its opposition to it. Why can't the Party consider opposition to late term abortions, or consider approving parental consent for abortions for minors? It's hard to see how the Party's position is principled at all. Instead it seems motivated by the political clout of a well organized minority within it. So the Party is asking the Church to compromise its principles for the political expediencies of the Democratic Party. I don't see how the inability or unwillingness of Democrats to stand up to their most extreme factions turns into a moral imperative for the Church. Especially when there is no reason to think it will stop there, there being so many others whose right to life is as qualified as that of the not quite born.

If the Church thinks abortion is a grave moral wrong it wouldn't be much of a church if it didn't deny communion to those who publicly support it. The Church should have done more to fight for the lives of Jews, gays, gypsies, the mentally retarded, the old and infirm, and the many others the Nazis thought did not have the right to live. Maybe it's learned its lesson.

Hayek and Gay Marriage
By Mike Rappaport

I took Tom's suggestion and read Jonathan Rauch's article addressing What Hayek Would Say About Gay Marriage. I agree with Rauch's description of Hayek's normative theory: he would not rule out same sex marriage simply because it is not traditional, so long as the change were part of a larger landscape where existing norms were maintained.

But simply because Hayek would not rule out same sex marriage does not mean he would have no concerns about its nontraditional nature. Largely based on the Hayekian theory that Rauch describes, I support civil unions as a step in the direction of gay marriage, but one where the results of the experiment can be judged without going all the way towards same sex marriage. It seems to me that Hayek's tentative, gradualist view argues for civil unions as a first step.

While Rauch does not address civil unions in this article, he does address it elsewhere, arguing that civil unions are problematic because they would be used by heterosexuals and would undermine traditional marriage. As I have discussed before, he is right that civil unions for heterosexuals is a danger to traditional marriage, but all that means is that civil unions should be restricted to gays. The justification for the restriction is that civil unions are a substitute for full marriage and therefore should not be provided to heterosexuals.