The Right Coast

June 29, 2005
Africa's Health Barrier
By Maimon Schwarzschild

Speaking of health, this RightCoaster will be visiting Ethiopia in a few weeks: and that means a lot of preventive medicine in the meantime. The recommended vaccines and immunisations include yellow fever, hepatitis, meningitis, polio, and malaria. The travel clinic said don't even bother bringing a sterile syringe: "Would you carry it with you at all times?" asked the Doctor sceptically. "If you get into the kind of accident that requires a transfusion, you're probably done for anyway". On that cheery note, we decided no sterile syringe, and never mind the HIV rate.

As for Dengue fever, there is no immunisation. "Try not to get bitten by mosquitoes", said Dr Cheery, with that sceptical look again.

Robert Kaplan -- a "travel writer" only in the high, serious, Victorian sense -- wrote a provocative piece in 1994 called "The Coming Anarchy". It definitely bears re-reading. One of his points was that disease is isolating Africa from investment, from tourism, from hopeful contact with the rest of the world:
As many internal African borders begin to crumble, a more impenetrable boundary is being erected that threatens to isolate the continent as a whole: the wall of disease. Merely to visit West Africa in some degree of safety, I spent about $500 for a hepatitis B vaccination series and other disease prophylaxis. Africa may today be more dangerous in this regard than it was in 1862, before antibiotics, when the explorer Sir Richard Francis Burton described the health situation on the continent as "deadly, a Golgotha, a Jehannum." [I]n Africa the HIV virus and tuberculosis are now "fast-forwarding each other." Of the approximately 4,000 newly diagnosed tuberculosis patients in Abidjan, 45 percent were also found to be HIV-positive. As birth rates soar and slums proliferate [in Africa], some experts worry that viral mutations and hybridizations might, just conceivably, result in a form of the AIDS virus that is easier to catch than the present strain.

[But] it is malaria that is most responsible for the disease wall that threatens to separate Africa and other parts of the Third World from more-developed regions of the planet in the twenty-first century. Carried by mosquitoes, malaria, unlike AIDS, is easy to catch. Most people in sub-Saharan Africa have recurring bouts of the disease throughout their entire lives, and it is mutating into increasingly deadly forms.
Conditions are somewhat less dire in Ethiopia than in West Africa, although Ethiopia is desperately poor. In countries -- or "countries" -- like Liberia and Sierra Leone things have only gotten much worse since Kaplan wrote.

I hope to have a healthy time in Ethiopia. And to keep in mind my completely undeserved good luck in having been born on the fortunate side of the world's "wall of disease".

Migraine Headaches
By Gail Heriot

Oh dear! It looks like my fellow Right Coasters and I have been maintaining radio silence yesterday and today. Sorry. I at least will endeavor to correspond on a more regular basis. But not today. My excuse is that I have a migraine headache--something I am afflicted with from time to time. When I get one, it usually lasts about two and a half days.

My doctor tried to flatter me about them last year. He said they are especially common among tall, smart women. I don't know if he's right, but somehow it wouldn't make me feel any happier even if he is. What does make me feel is little better is the hope that magnesium supplements will help. I had been dutifully taking them for the last couple of months, but then I forgot for a while. I won't forget again.

June 27, 2005
"No, not Gonzales!" That Really Might Be the Kind of Cronyism that the Federalist Objected to...
By Gail Heriot

In a column entitled, "No, not Gonzales!," Robert Novak reports a "torrent" of leaks from the White House that Alberto Gonzales will be Bush’s nominee to the Supreme Court no matter whose resignation creates the vacancy. Conservatives are hoping this is not true. And maybe it isn’t. (Indeed, as of this writing it’s not even clear that there is a vacancy.)

Gonzales has a lot of opposition on the right. Pro-life advocates object to him on account of the views he expressed while he briefly served as a Bush-appointed member of the Texas Supreme Court. Opponents of racial and gender preferences, on the other hand, remember that Gonzales energetically intervened over the objections of Solicitor General Ted Olson, Assistant Attorney General for Civil Rights Ralph Boyd and Assistant Secretary of Education for the Office of Civil Rights Gerald Reynolds to prevent the United States from coming out in full support of Barbara Grutter and Jennifer Gratz, the lead plaintiffs in the lawsuits against the University of Michigan over its race-based admissions policies. Grutter and Gratz felt betrayed by the luke-warm, limited endorsement. And there is reason to believe Gonzales' intervention affected the outcome of the cases.

"I know that I’ve been helped because of my ethnicity," he told the Los Angeles Times. "Personally, I’m not offended that race is a factor. But it should never be the overriding factor or the most important factor."

Would any GOP member of the Senate vote against Gonzales on this account? Perhaps not. Most Republicans agree that a President, no matter what party he is from, must be given substantial (though not infinite) discretion to appoint judges of his choice. Bush insists that conservatives are mistaken about Gonzales. He knows the man well. Their personal friendship goes back many years. Shouldn't he then be cut some slack to make his choice?

But some would say that the fact that Bush and Gonzales are friends is just the problem. The one occasion that everyone agrees that the members of the Senate should be willing to resist an ill-considered nomination is when it is inspired by family connection or personal attachment. Bush's argument is favor of Gonzales is precisely that: I know this guy well. He says "trust me." But people make mistakes when they deal with friends.

In Federalist No. 76, Alexander Hamilton argued that the Senate’s role in the confirmation process should be largely passive. Members of the Senate should not second guess the President. It’s his choice. But they must act as a check upon "the spirit of favoritism" on the part of the President:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."

We'll see what happens.

June 26, 2005
The Anti's
By Maimon Schwarzschild

Paul Johnson notes the link between anti-Americanism and anti-semitism -- in Europe, in the Middle East, and elsewhere:
[A]nti-Semitism and anti-Americanism have proceeded hand in hand in today’s Europe just as they once did in Hitler’s mind (as the unpublished second half of Mein Kampf decisively shows). Like hatred of Jews, hatred of Americans can similarly be described as a form of racism or xenophobia, especially in its more vulgar manifestations. But among academics and intellectuals, where it is increasingly prevalent, it has more of the hallmarks of a mental disease, becoming more virulent, widespread, and intractable ever since the United States began to shoulder the duties of the war against international terrorism.

Asked to explain why they hate Jews, anti-Semites contradict themselves. Jews are always showing off; they are hermetic and secretive. They will not assimilate; they assimilate only too well. They are too religious; they are too materialistic, and a threat to religion. They are uncultured; they have too much culture. They avoid manual work; they work too hard. They are miserly; they are ostentatious spenders. They are inveterate capitalists; they are born Communists

That anti-Americanism shares many structural characteristics with anti-Semitism is plain enough. In France, as we read in a new study, intellectuals muster as many contradictory reasons for attacking the U.S. as for attacking Jews. Americans are excessively religious; they are excessively materialistic. They are vulgar money-grubbers; they are vulgar spenders. They hate culture; they are pushy in promoting their own culture. They are aggressive and reckless; they are cowardly. They are stupid; they are exceptionally cunning. They are uneducated; they subordinate everything in life to the goal of sending their children to universities. They build soulless megalopolises; they are rural imbeciles. As with anti-Semitism, this litany of contradictory complaints is fleshed out with demonic caricatures of particular individuals like George W. Bush. Just as 14th-century Christians once held the Jews responsible for the Black Death, Americans are blamed for all the ills of today’s world, starting with (real or imaginary) global warming. Particularly among French intellectuals, such demonization has become almost a culture, a way of life, in itself.
Read the whole thing.

What Johnson doesn't explain -- perhaps no one really can -- is why anti-semitism and anti-Americanism seem to be linked emotions for so many people. I think one element is that both Americans and Jews are seen as economically successful: and if you envy people's economic success, it is satisfying to look down on them, and to denounce them, as money-grubbing, materialistic, cunning, exploitative, and so on. Also, Jews and Americans may both be seen as people you can safely jeer at because they don't hit back: Jews, historically, because they couldn't; Americans, because they usually don't.

(Does any major country put up with as many insults, with as little angry come-back, as the United States? Years ago, the city of Calcutta renamed the street housing the US consulate "Ho Chi Minh Street". It was a calculated insult. Did the US break diplomatic relations with India? Did it close the consulate? Did it rename the street housing the Indian Embassy in Washington "General Dyer Terrace" or "Mohammad Ali Jinnah Gardens"? No to all the above. The US Consulate in Calcutta is still open for business on Ho Chi Minh Street...)

Yet, these "explanations" seem partial at best. No doubt Johnson is right that both "anti's" are pathologies. But it's worth thinking -- and worrying -- about why they seem to be merging into the same pathology, at least among many who are most acutely infected.

June 25, 2005
Politics of faculty hiring
By Tom Smith

I think Gordon Smith is recommending to law school teaching applicants that they fly their colors, whatever they happen to be, when applying for law school jobs.

There may be philosophical reasons for doing this, but I don't think it's the way to maximize your chances of getting hired somewhere. As Gordon must know, all it takes is a little prejudice on the margin to keep you out, in a hyper-competitive market. This is all the more true if you are gunning for a top 20 law school, need to be in a certain city or region, or want to teach some popular subject.

I think I could have gotten a Supreme Court clerkship if I had just given Justice White the answer he wanted to hear. He wanted to hear that I didn't like technical, analytical philosophy. I knew that's what he wanted to hear, but I just couldn't bring myself to say it. It would have just been a little, White lie (get it?!). He was supposedly a difficult man to work for. Might not have been fun. But probably would have been helpful to the old career. I regret not having at least changed the subject, or something.

There's a lot of prejudice out there, and not just against Republicans, Catholics, Mormons, Evangelicals and various others. Being gay will help you some places, but hurt you others. Being a dyed in the wool Marxist is probably a problem, but being on the left is just fine. Federalist Society associations probably hurt well more than they help, at least that used to be the case. Jewish is good, but religious Jewish, I'm not so sure. Israeli-American, I can well imagine being an issue. You don't want to deny who you are, but it's not really the University's business, is it, where you worship? Most of the prejudices are unconscious, so it's meaningless to be assured, oh no, we're happy to have applications regardless of, etc. Moreover, it's not as if people annouce they are being swayed by prejudice, even when they are. Many people think they're doing the world a favor by keeping conservatives out of law teaching; it's sort of a radical, subversive thing to do, to certain way of thinking. It's what you call invidious. You will be judged fairly. But that's after you die. In the meantime, discretion is the better part of valor. Go ahead and send your application here, though. None of these shortcomings aflict us.

Big bad blog fight
By Tom non-Volokh Smith

Geez. You check out of the blogosphere for a couple days, and in your absence a major blogfight breaks out. I feel like I dropped into the Men's, to return to a major barroom brawl. In the movies, you would break a chair over the first guy you saw, but in real life, you just sit down and watch the fists fly.

June 24, 2005
Are state schools a good idea?
By Tom Smith

The most interesting thing about this editorial is that it appears at all in the MSM.

I'm not sure I have a coherent position on this one. It does seem likely to me that the benefits of a voucher system would far outweigh the costs. But here in California, even reducing pre-tenure years for public school teachers from 5 to 2 is controversial. Merit pay raises more eyebrows than sodomy. So vouchers may be a pipe dream, anyway.

I also think that some pretty unreasonable people are driving this debate. It's perfectly reasonable for parents not to want their 6 year olds to be exposed to official indoctrination about homosexuality. At the same time, it's nuts to think that biology or geology should be taught in a manner consistent with the proposition that the earth is 10,000 years old. Way too much of this debate is driven by rights talk, and excessive concern for ideological minorities. I mean, if you can't stand bible-thumping Christianity, maybe you should consider moving away from Cowpie. Similarly, maybe you should consider that whatever saying God just dropped the comet in mid-orbit is, it ain't astronomy. My kids go to a Catholic school and still get exposed to all kinds of rubbish, such as that the ultimate ethical act is recycling. In fact, most recycling is an utter waste of time and money. Here's what you do. You sit your cute little beggar down on your knee, and you say, "Son, recycling is bullshit. But remember to be polite to your teacher." Most indoctrination problems can be taken care of this way. You want to teach them to be pretty questioning, skeptical sorts, anyway, lest they become Howard Dean supporters. But if you really want your kids to reject a large part of modern science, I think it is a lot to ask that the public schools help you.

June 23, 2005
Balkin on Originalism
By Mike Rappaport

Having written my post on the Normative Basis of Originalism, I set off for a family vacation to Gettysburg and Philadelphia. Now, Jack Balkin has written an interesting response to my post. While Gettysburg and Philadelphia are great places to write about constitutional law, a family vacation certainly limits the time I have to spend on it. I hope to respond to Jack’s post in the near future. For now, read what Jack has to say over at Balkinization.

Update: Also take a look at Larry Solum's post.

Finally, a commerical use for male underarm sweat
By Tom Smith

It sells magazines. Really.

Also, video games and violence.

Eye of Sauron found in deep space.

I always hated the stuff anyway.

My theory on this one is that the smart, sluggish guys kinda ride the wave . . .

Nice work if you can get it.

Cheer up, pizza face.

Hard men.

Nano-guys fight cancer.

June 22, 2005
The Normative Basis of Originalism
By Mike Rappaport

In arguing that the Downing Street Memo supports the impeachment of President Bush, Brian Leiter offers some criticisms of originalism that require a response. In essence, Brian contends that there are no good normative arguments for following the original meaning of the Constitution.

I must beg to differ. In the Texas Law Review, edited at Brian’s own school, John McGinnis and I have published an article that provides a normative defense of originalism. (Randy Barnett has also defended originalism in a complementary fashion in his recent book.) McGinnis and I root the normative basis for following the original meaning of the Constitution in the fact that constitutional provisions can only be enacted by passage under strict supermajority rules. (See Articles V and VII of the Constitution.)

Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. While the specific effects of supermajority rules depend on the type of laws being passed, the circumstances, and the model of the legislative process that one employs, one can make certain generalizations. First, that supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited. Second, the greater support required under supermajority rules also means that laws must in general produce significant public benefits in order to pass. (For other arguments, see the paper.) While supermajority rules don’t make sense in all circumstances, they are desirable when applied to the passage of constitutional norms that will be entrenched against change by ordinary legislative majorities.

The supermajoritarian process for enacting constitutional norms provides a reason why constitutional provisions should be preferred to ordinary statutes passed under majority voting rules: the constitutional norms are likely to be of higher quality than ordinary legislation. The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.

Both Brian and the paper he cites to by Andrei Marmor miss this argument. They contend that absent the people consenting to the Constitution which has not occured, there is no reason to treat its original meaning as authoritative unless the Framers had some “special expertise.” But it is not who the Framers were that justifies following their Constitution, it is the supermajoritarian process by which they enacted the Constitution. This process also justifies not following their handiwork when the Constitution has been amended.

This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by Marmor and most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

In the end, then, originalism is justified because it enforces provisions enacted in a process that suggests they will be desirable and assigns to judges the task of enforcing, not making, the law.

UK horror story
By Tom Smith

This story is getting some play on talk radio and in the UK press. Pretty shocking.

O'Connor, Not Rehnquist? And Gonzales to Replace O'Connor?
By Gail Heriot

Idle speculation by Bill Kristol in the Weekly Standard. It's been a long month.

Summer reading
By Tom Smith

Ah summer. Time for big, chunky books with little redeeming social value. I discovered the Merrily Watkins mysteries on Amazon, and they're pretty delicious. Hard to describe, however. P.D. James meets Stephen King? Some reviewers call it a new genre, but in fact the "supernatural detective" is as old as the detective genre itself. LeFanu and Blackwood both practiced it. In these mysteries, the Rev. Watkins is asked by her bishop (who turns out very badly, but I won't spoil it) to be the "deliverance consultant" for the C of E diocese in Hereford, a very old English town in the Midlands. Lots and lots of English atmosphere, and evil in new and some very old forms. Supernatural stuff seems to happen, but on the margins; so the King analogy in inapt.

I had to send William down the driveway to get the UPS packages. The driver will no longer come up our driveway, being afraid of our dogs. I suppose I am now officially a Jamulian. The dogs are scary, but harmless. I especially like Denali's big, bellowing, slobbering bark. It is not true that I was ordering packages just so they'd have something to do.

English mysteries with clerical detectives? Am I going soft or something? What happened to miniguns turning VC into red mist? Calm down, savage readers. Here's the book you want. Kent Anderson's Sympathy for the Devil, recommended by a loyal reader, gets five hand grenades for searing action and psychological realism. Hanson is a raw recruit drafted into Vietnam who volunteers for the Green Berets to escape the mediocrity and oppression of ordinary infantry life. He adapts only too well, and evolves into a lover of war, with everyone except his Yard fighters and other Special Forces becoming the enemy. As Hanson says at one point, he's not trying to win the war; he just likes the work. This book goes way beyond the cliches of Apocalypse Now and Platoon.

Senator Durbin's Comments and the Okinawa Suicides
By Gail Heriot

What happens when an army has a reputation for brutality in its treatment of prisoners ? Their opponents fight back all the harder in order avoid becoming prisoners. More people on both sides end up dead. That’s why the American military has a long history of attempting to cultivate an image of humane treatment. And with a few exceptions they’ve earned the image they seek.

The New York Times ran a particularly poignant story earlier this week about the World War II Battle for Okinawa in 1945 that can be seen as a variation on this theme. In that terrible episode, Japanese civilians were misled by the Japanese Imperial Army into believing that the approaching Americans were savages who would rape and torture them. Many killed themselves to avoid that terrible fate. Then the real Americans arrived ...too late for some ... bearing candy and cigarettes. I quote from the article:

"For a long time, the Japanese Imperial Army announced that, on other islands, the women had been raped and killed, and the men were tied at the wrists and tanks were driven over them," said Mr. Nakamura, now a guide at a museum housed in a traditional dwelling that bears bullet holes from the American attack. As Japanese defenses crumbled on the island in late March 1945, 56 of the 130 residents committed suicide, he said. Fleeing with family and neighbors, he said, he passed one cave where 10 villagers had killed themselves.

"I heard my sister calling out, 'Kill me now, hurry,' " Mr. Nakamura said, recalling how his 20-year-old sister panicked at the approach of American soldiers. His mother took a rope and strangled her.

"I tried to also strangle myself with a rope," he recalled, lifting his now weather-beaten hands to his neck. "But I kept breathing. It is really tough to kill yourself."

Minutes later, the Americans took them captive.

"The U.S. soldier touched me to check if I had any weapons," he recalled. "Then he gave us candy and cigarettes. That was my first experience on coming out of the cave."

His mother lived into her 80's.

"We talked about the war," Mr. Nakamura said. "But to the end, she never once talked about killing her daughter."

A horrific story, isn’t it? That’s part of what makes Senator Durbin’s statement inexcusable. America’s reputation for the humane treatment of those it takes prisoner isn’t just a nice thing to have. It’s vital. Sooner or later lives will depend on it. America’s current enemies (like its former enemy the Japanese Imperial Army) already have every motivation to mislead. It is wrong to make it easy for them by making foolish comparisons between Guantanamo Bay and the Nazi, Soviet, and Pol Pot regimes.

Does that mean that Americans should refrain from criticizing Guantanamo Bay abuses altogether? Of course not. Indeed, a public debate that neither exaggerates nor minimizes the situation may actual bolster our credibility. But a little persepctive is required.

Criticizing Mistakes
By Mike Rappaport

Glenn Reynolds quotes this statement by Norm Geras:

"I have never seen, in all the voluminous discussion since the liberation of Iraq from Saddam Hussein's rule, anything from the anti-war camp (perhaps I just haven't read widely enough) that made a distinction between mistakes and avoidable mistakes, or mistakes and culpable mistakes. . . . it suggests one of two things: either that the undertaking could have been carried out altogether smoothly and unproblematically; or that the criticism of mistakes is motivated more by an impulse to oppose than by a desire for the undertaking to succeed."

Glen on defeatism
By Tom Smith

I suppose it would be in the American interest if some communist hell hole were our ally against the Iraqi 'insurgency.' Then think of all the American lefties who would flock to the cause. "We must save the PRSWO [People's Republic of Somewhere or Other]! Their prisons may be full to bursting with political dissidents, but they gotta heckova health care plan!" Instead, we're stuck with defeatism.

I agree that the Bush administration is doing a terrible job selling the program. If we're going to be neo-imperialists (I mean that in a nice way), we could do with a neo-imperialist press, or at least one that didn't see its job as flacking for Joe Biden, or whoever.

June 21, 2005
How Wal-Mart Saved the US from Japan, Inc.
By Mike Rappaport

William Lewis, the director emeritus of the McKinsey Global Institute and author of The Power of Productivity: Wealth, Poverty and the Threat to Global Stability, explains why productivity grows in some countries but not in others. Once again, the free market is the key. The most interesting part of the interview involves the reasons why the US has a more productive economy than Japan.

The paradox was that in the 90s stories on the front pages of the New York Times, the Wall Street Journal, and the Economist were all about how the Japanese manufacturing industries through trade were driving US manufacturing industries into the ground and virtually wiping them out. And of course that did happen in consumer electronics -- the US basically got out entirely in the consumer electronics business. And the steel industry and the automobile industry came very close to being bankrupt -- yet the GDP per capita numbers at purchasing power parity exchange rates show that GDP per capita in Japan was roughly 30 percent below the US. So how could this be?

What we found is that Japan has a dual economy. Yes, it does have some selected manufacturing industries that have high productivity, yet, the traded part of an economy is always a tiny fraction of the total GDP. [Thus,] the standard of living is determined because the productivity of the country is determined by what happens outside these traded goods.

[Our study] showed was that [outside of the traded goods manufacturing sectors], Japan's productivity was very low. Say, in retailing, 50 percent of the US; in food processing about a third of the US. And food processing, although it's a manufacturing industry and it's not heavily traded, it has more employment than steel, automotive, computers, and machine tools added together. So it's much more important.

In the US, there is much more level and free competition for the leading consumer's demands. So if Wal-Mart moves into an area, it sets up new operations. Because of its higher productivity, it is able to under price these much less productive operations. Whereas in Japan, there all sorts of obstacles.

[Wal-Mart has] great difficulty in Japan getting hold of land. The local zoning authorities for a long time just outright banned big box stores, stores of over something like 10,000 square feet. That ban was put in place at the political influence of the small shopkeepers and others. The US objected to that and finally got that overturned, but it just got overturned into something almost equally ineffective which setup a lot of environmental and traffic and other kinds of potential obstacles, with the board determining whether to go forward dominated by local interest, local producer interest, local retailing interest.

Hummers are for weenies
By Tom Smith

f you see someone driving one of these, then you can be impressed.

Krugman talks about his economics career
By Tom Smith


Recess appointment for Bolton?
By Tom Smith

No doubt the politics are complicated, but at this point I don't see why not.

Mao's Jewish Boy
By Maimon Schwarzschild

This obituary tells a weird story:
Israel Epstein, who has died in Beijing aged 90, was one of the last survivors of the band of foreign apologists for Mao Tse Tung, and propagated a heroic image of the Great Helmsman...

Epstein was born in Warsaw on April 20 1915. His parents, who were Jews and socialists, had been imprisoned for their political activities by the Russian authorities then in control of the city, and his mother had briefly been exiled to Siberia.

[Epstein] grew up in China, and by the mid-1940s was reporting for publications such as Time on the fight by the country's leader, Chiang Kai-Shek, against the invading Japanese. But as a lifelong Marxist Epstien hankered for a more radical leader...
For forty years and more,
Epstein edited the monthly English-language magazine China Reconstructs (now China Today). The journal invariably presented the best face of China to the West, and Epstein was regularly consulted by Mao, Zhou Enlai and Deng Xiaoping as to how the country could improve its image abroad.
In China, Epstein met and married Elsie Fairfax-Cholmeley, ten years older than he, the daughter of a left-wing Yorkshire squire. "They formed a harmonious pairing and she became much involved in his work."

Reading this picaresque story, it is crucial to remember -- the obit politely omits to point it out -- that in sheer numbers of human lives destroyed, the Chinese Communist regime was the single worst in all world history; Mao & Co left the Nazis and even Stalin's Soviets far, far behind.

That aside (as it were) -- Epstein's story is surely a curio. Read the whole thing. (Registration required at the Telegraph, though.)

The Teaching Company's Nostalgia for Mao's China
By Gail Heriot

This is an excerpt from Red Guard: From Schoolboy to "Little General" in Mao's China by Ken Ling, written about the events of the Chinese Cultural Revolution of the late 1960s and early 1970s. The story takes place at a secondary school in Xiamen, where the author was a student:

"At twelve o'clock ... as a few of us were on our way back from a swim ..., we heard screams and shouts as we approached the school gate. Some schoolmates ran up to us shouting, 'The struggle has begun! The struggle has begun!'

I ran inside. On the athletic field and farther inside, before a new four-story classroom building, I saw rows of teachers, about 40 or 50 in all, with black ink poured over their heads and faces so that they were now in reality a 'black gang.' Hanging on their necks were placards with words such as 'reactionary academic so-and-so,' 'corrupt ringleader so-and-so,' 'class enemy so-and-so,' 'capitalist roader so-and-so": all epithets taken from the newspapers. On each placard was a red cross, making the teachers look like condemned prisoners awaiting execution. They all wore dunce caps painted with similar epithets and carried dirty brooms, shoes and dusters on their backs.

Hanging from their necks were pails filled with rocks. I saw the principal: the pail around his neck was so heavy that the wire had cut deep into his neck and he was staggering. All were barefoot, hitting broken gongs or pots as they walked around the field crying out: 'I am black gangster so-and-so.' Finally, they all knelt down, burned incnese, and begged Mao Zedong to 'pardon their crimes.'

I was stunned by this scene and I felt myself go pale. A few girls nearly fainted.

Beatings and torture followed. I had never seen such tortures before: eating nightsoil and insects, being subjected to electric shocks, being forced to kneel on broken glass, being hanged 'like an airplane' by the arms and legs.

Those who immediately took up the sticks and applied the tortures were the school bullies who, as children of Party cadres and army offiers, belonged to the five 'red' categories, a group that also included children of workers, poor and lower-middle peasants, and revolutionary martyrs .... Course and cruel, they were accustomed to throwing around their parents' status and brawling with the other students. They did so poorly in school that they were about to be expelled, and presumably resented the teachers because of this.

Greatly emboldened by the instigators, the other students also cried 'Beat them!' and jumped on the teachers, swinging their fists and kicking. The stragglers were forced to back them up with loud shouts ....

The heaviest blow to me that day was the killing of my most respected and beloved teacher, Chen Ku-teh ...

Teacher Chen, over sixty years old and suffering form high blood pressure, was dragged out at 11:30, exposed to the summer sun for more than two hours, an then paraded about with the others carrying a placard and hitting a gong. Then he was dragged up the the second floor of a classroom and down again with fists and broomsticks all along the way. On the second floor some of his attackers ran into a classroom to get some bamboo carrying poles with which to beat him further. I stopped them pleading, 'You don't have to do this. This is too much!'

He passed out several times but was brought back to consciousness each time with cold water splashed on his face. He could hardly move his body. His feet were cut by glass and thorns. But his spirit was unbroken. He shouted, 'Why don't you kill me? Kill me!' This lasted for six hours, until he lost control of his excrement. They tried to force a stick into his rectum. He collapsed for the last time. They poured cold water on him again--it was too late. The killers were stunned momentarily, as it was probably the first time they had ever beaten a man to death, and it was the first time most of us had ever witnessed such a scene...."

Unfortunately, stories like this about the Cultural Revolution are abundant. According to Jean-Louis Margolin in The Black Book of Communism, by the time it ended, the dead numbered between 400,000 and 1 million, although some estimates are as high as 3 million. Large numbers of victims were professors, school teachers, scientists, writers and actors. Some were actually eaten by their attackers--at least 137 in Guangxi, mostly teachers and college principals. It was a time of almost unimaginable horror.

The members of the Red Guard, most of them teenagers, who committed these atrocities were not acting on their own. Mao Zedong himself launched the movement. And he and his CCP-controlled media relentlessly egged on the young thugs. (Local CCP cadres even joined in the "feast" at Guangxi). Mao's motives were, of course, ugly. He had lost much of his governmental authority (although not his party authority) as a result of his disastrous Great Leap Forward. The Cultural Revolution was his way of getting it back.

According to Margolin:

"The Chinese Communist Party had a long tradition of anti-intellectualism, and Mao was a particularly noteworthy example. Red Guards everywhere repeated his slogan: ‘The capitalist class is the skin; the intellectuals are the hairs that grow on the skin. When the skin dies, there will be no hair.’ Officials became incapable of pronouncing the word ‘intellectual’ without adding the adjective ‘stinking.’"

Why I am bringing this up today? I've been listening to the Teaching Company’s audio series "From Yao to Mao: 5000 Years of Chinese History", hoping to learn something about China's long history. (Up until now, my knowledge of early Chinese history had been mainly derived from the study of Chinese art, and that has its limitations. I could tell you a bit about the T’ang dynasty ceramic horses, but I couldn’t tell you much about the actual T’ang dynasty.)

But after listening to all 36 lectures, I’m not sure if I what I learned from the tapes about early Chinese history is reliable. When the lectures reached events that occurred during my lifetime, it became pretty clear I was listening to a white wash.

The first hint was the lecturer’s description of the Great Leap Forward, Mao’s big push toward large-scale collectivization from 1957 to 1961. The author seemed a tad too eager to describe its successes along with its failures. This seemed like a funny way to describe what quite possibly was the greatest famine in history. (As my fellow Right Coaster Maimon is fond of saying "Other than that Mrs Lincoln, how did you like the play...?")

Then the lecturer described the Cultural Revolution as being "chaotic" but then went on to say that "in some ways [the forces] Mao unleashes ... are anticipatory of things like the Solidarity Movement in Poland." Yikes. Well, I suppose they are similar in the sense that both were movements purportedly for the benefit of working people in avowedly communist countries on the Eurasian landmass. But the similarities end there. The Solidarity movement was a grassroots movement that was all about loosening the grip of totalitarianism on the people of Poland. The Cultural Revolution was instigated by the Chairman of the Communist Party and was about tightening that grip on the Chinese people–by sending teenaged thugs out to neutralize "enemies" of the revolution. Especially elderly school teachers and opera singers.

Finally, the listener is told that Mao was committed to women's equality, that the status of women has "deteriorated quite significantly" since Mao's time and that, in particular, "educational opportunities for women have declined" since he was in charge. What rubbish! The notion that anyone's education opportunities have declined since Mao’s lunatic reign is absurd. Mao’s idea of supporting education was his July 26, 1966 order to close all secondary schools and institutions of higher education for six months. Why? He needed gangs of schoolchildren to terrorize, humiliate, and sometimes murder school teachers, that's why.

By the way, Margolin reports that the Cultural Revolution "class enemies" who were forced to parade around in ridiculous costumes and hats for the amusement of Red Guard gangs were disproportionately women. That should be no surprise. Cowardly thugs always prey disproportionately on women.

Modern China continues to have serious problems. But only a fool would be nostalgic for Mao.

June 20, 2005
Send in that lady with the hammer
By Tom Smith

Well, this is disturbing. (via instapundit).

The Chinese version of MSN Spaces is linked to the new MSN China portal, launched last month in partnership with Shanghai Alliance Investment, a company funded by the city government here. Last week that partnership plunged Microsoft into the long-standing controversy surrounding the Chinese government's internet censorship policies, after Asian blogs and news reports revealed that MSN Spaces blocks Chinese bloggers from putting politically sensitive language in the names of their blogs, or in the titles of individual blog entries.

The words and phrases blocked by Microsoft include "Taiwan independence," "Dalai Lama," "human rights," "freedom" and "democracy."

In a statement, lead MSN product manager Brooke Richardson said, "MSN abides by the laws, regulations and norms of each country in which it operates. The content posted on member spaces is the responsibility of individuals who are required to abide by MSN's code of conduct."

Mao dismisses that statement as disingenuous. The company, he says, is going above and beyond official censorship practices, which deal decisively with speech critical of the ruling communist government, but don't outright ban words like "freedom."

Memo to Bill: Freedom is a good thing.

Impeach Bush Now!
By Tom Smith

Oh, alright, just kidding. But the inimitable Brian Leiter lashes out at various legal academics for arguing it can't or shouldn't be done, for constitutional or prudential reasons. Brian makes some good points amidst the fury. I must say, I have always been rather curious myself as to the normative basis of originalism. I think it is clear that whatever it is, it can't be any worse than, because "we" think it's a good idea, which sums up a lot of contemporary jurisprudence. I have never, however, gotten anything but rather impolite answers whenever I posed the question, so I've stopped doing so. I do think some thoughtful originalists wrestle with it from time to time. Still, it would be nice to have a full-dress, philosophically sophisticated answer to the question, So what if the original meaning of the whatchamacallit clause was X? If the answer was published in a 1991 article in the Harvard Journal of Law and Public Policy, then the cite will do. Personally, I prefer the original meaning of the Constitution, but I admit it's just a preference, because as a matter of historical accident, I think the Framers had a much better understanding of how politics works, human nature, and law generally, than we do. David Souter. James Madison. I rest my case.

I notice Brian has chosen green as the color of his new blog format. Is green the new red?

As to whether a President can be impeached for lying to the American people, well, obviously not. I thought we settled that. Lying is a deeply personal matter, between a President and his or her family, confessor and close political advisors and fund raisers, whether indicted or not.

As to the Downing Street memos, I have only read news accounts of them, but if it really is the case that the Bush administration set out on a conspiracy to deceive the public into believing that war against Iraq was necessary because of the threat that Iraq had WMDs that they could at any moment put into the hands of terrorists, knowing as they did so that no such thing was true, well, that would certainly be a crime in my book, and I wouldn't shed any tears if a President were impeached for it. I don't happen to believe that's the case, and the bobbing to the surface of the Downing Street memos should not convince anyone that it is. I doubt it is even possible to find out something like that, but sure, investigate away. Oversight is something Congress can do that wastes money at a much slower rate than most of their activities.

More broadly, I think it is almost impossible for outsiders to judge whether the Iraq War was successful foreign policy or not until we see how it turns out. Disaster seems possible but not inevitable. In fact, if we stay long enough to thoroughly crush the "insurgency", I think it is likely to count as a significant victory for American power and prestige. Of course, that is precisely what many critics of the policy fear. I worry some about hubris in trying to democratize the middle east, but who knows.

And if you want to see someplace that reminds one of Europe before WWII, I suggest . . . Europe! Just don't wear a yarmulke.

Social security lockbox for you and me
By Tom Smith

Gail's friend John Fund touts what actually seems like a good idea: putting the payroll tax surplus into personal social security lockboxes so Congress couldn't spend them on the usual pork-for-pals. A little chip of ownership, and restrainst on spending at the same time. Krugman better get busy making up some new numbers on this one. I asked my personal expert on Social Security what she thinks, but she's against it.

Ed Viesturs retires
By Tom Smith

American's leading mountaineer is calling it a day. He's a climer's climber in my book. Accomplished (the only American to have climbed the world's 14 highest mountains), extremely strong, and sane, he's the model. You don't hear any of Mark Twight's I'm not afraid to die alone in a blue hole rubbish out of him. If Twight's still alive at 45 it will be a miracle, and he does not have anything like Viesturs's high altitude resume. One thing the article does not stress is that Viesturs was amazingly strong at high altitude. He did all his peaks alpine style, and without oxygen. He was conservative about risk by modern standards (hence his not being dead) but he was a machine going up steep ice and snow. If you watch him climb in the Everest IMAX movie, at 26,000 feet or so he looks like he's on the stairmaster at the gym. In terms of cardiovascular capacity, he must be something of a mutant, like Lance Armstrong. Anyway, good on him for setting a positive example for a change in the world of adventure sports.

Here's what I mean.

Missing boy in Utah
By Tom Smith

Stories like this drive me crazy. On balance, Boy Scouts do a lot of good work, but I have never been comfortable with the level of precautions taken. I was in scouts for some years as a kid, and it's amazing no one was ever killed. On one memorable trip to Pistol Lake, in the Idah0 Primitive Area (now Church Wilderness), one scout, the butt of many jokes, emerged from the lake to warm his backside at the fire. Unbeknownst to him, some demon had put a can of aerosol deoderant in the fire. Of course, it exploded, sending the young victim running into the woods. He was eventually found. Some years later I got called back to be Senior Patrol Leader of a newly formed troop. Some nice kids, but also plenty of hoodlums. I kept them from commiting any serious crimes, but shortly after I left some of them found a bulldozer at a construction site and inflicted upon it many thousands of dollars of damage. How they managed to do this while on some scouting thing, I don't know, but they did. They got caught and in a lot of trouble. Thank God it wasn't on my watch. Managing boys together is daunting work. I just hope that Utah boy didn't fall into the Bear River, but that does seem the most likely explanation of his disappearence.

BOY FOUND. That's some good luck. That and high powered Mormon prayers.

Will the EU Unravel?
By Maimon Schwarzschild

Here is the New York Times report on the failed European summit. The Times rightly says that the EU meeting "ended in failure and mutual recriminations... after the collapse of negotiations over plans for a budget". "Reflecting the turmoil after a series of political setbacks in recent weeks, leaders of the European Union lashed out at one another", adds the report.

But the Times understates, if anything, how openly hostile things have become among the Euro governments. There is more of a flavour of it in this Daily Telegraph story (registration required), published a few days after the French and Dutch referenda ("Non" and "Nee" respectively, of course):
Tempers are fraying among Europe's most fervent federalist leaders as they confront the current EU political crisis.

In the latest outburst of diplomatic pique, the Belgian foreign minister, Karel De Gucht, lashed out at Holland for voting No to the draft EU constitution last week.

Mr De Gucht called the Dutch prime minister, Jan Peter Balkenende, a "small-minded Harry Potter" and "a man in whom I detect no trace of charisma".

Mr De Gucht heaped blame on the Dutch government for their management of the Yes campaign and questioned the rise to political prominence of Pim Fortuyn, an outspoken populist politician murdered by an animal rights extremist in 2002.

"[Dutch] public opinion has become very superficial and unreliable since the rise and death of Pim Fortuyn," he said, referring to the late politician as "an extravagant, militant homosexual with deviant opinions and a chauffeur-driven Bentley."
This sort of thing is pretty much unprecedented coming from senior government ministers in the EU.

(Leave aside the Belgian comrade's attitude to gays, which evidently needs some thought reform...)

No doubt, the latest split between Britain vs France and Germany partly reflects the long-simmering differences between Britain and the big continental countries. But the poisonous quality of this week's brawl is partly a hallmark of the Chirac and Schroeder styles, which can best described as short-term demagogic and long-term disastrous for their own interests.

For instance, over several years, Chirac and Schroeder have ginned up popular support for their (not very popular) governments by playing up anti-Americanism. There has been a distinct anti-semitic note as well, albeit somewhat more disguised. This worked for them politically in the very short term. But in the end, the hostile stereotype about Americans (and Jews) is that they are "commercial". So when it came to a referendum on the EU Constitution, a lot of French voters, spun up against "commerce" and free trade, voted "Non". The EU, after all, is partly a free trade area. That was what the "Common Market" was mostly about originally. Can't have that.

So the EU Constitution is dead on non-arrival. Yet Chirac and Schroeder staked their political reputations on it, evidently hoping it would be a charter for an anti-USA United States of Europe: under their leadership of course.

Meantime, there is no way of knowing how deeply the anti-American campaign has poisoned Europe's relations with the US. It's a safe prediction, though, that Americans won't be keen to make sacrifices for France or Germany anytime soon. Perhaps not for a generation or more. It was no help to Candidate Kerry that he gave the general impression of thinking otherwise.

Now, humiliated by the referendum, Jacques Chirac has turned on another "Anglo-Saxon" demon. Britain, of course. Britain should massively subsidise the rest of the EU: otherwise it is "selfish", says Chirac. But the scandalous "Common Agricultural Policy", which subsidises French farming, is untouchable. This may poll well in France, for a while anyway. (Schroeder is probably a goner in any event.) But it weakens the EU, in which Britain is no longer alone in resenting French and German high-handedness.

(The "Common Agricultural Policy" is also very, very bad for the Third World, by keeping farm products from poor countries from competing in European markets. The usual "campaigners" and demonstrators don't notice this, of course, since it's not part of the left-wing anti-free-market script.)

If France can't have a "dirigiste", anti-American Europe, will it continue to play by the rules of the European Common Market at all? It's not clear that it will. Or even that it can, politically, given the domestic passions that Chirac has whipped up. But if France and/or Germany turn against the Common Market, the European Union truly could unravel.

The EU is a hugely unlikely project, after all. Your blogger recently travelled in Europe, where there is uncontrolled entry, and immigration, for citizens of any EU country. In Britain, for instance, this meant until recently that western Europeans could enter as of right; now it means Poles, Hungarians, Cypriots, and many others can do so as well. Yet Australians, New Zealanders, Canadians (and of course Americans) are "foreigners", subject to strict passport and residence controls: lesser breeds without the law.

In fact, by joining the Common Market in 1973, Britain had to give up "Empire free trade", which meant no more special relationship with Australia, New Zealand, and so on. This is one reason the British monarchy is now on life support in these countries. Australians and New Zealanders, and (English) Canadians too, used to think of themselves as essentially British. They felt betrayed when Britain spurned them for the European Common Market.

Yet the idea behind true European Union is that the British, to take the most provocative example, should think of Hungarians and Cypriots as their compatriots, but not Aussies and New Zealanders.

Very improbable, even under favourable circumstances.

And circumstances are less and less favourable.

June 19, 2005
Canadian MD fights the good fight
By Tom Smith

Here the site of a Canadian MD who's fighting to reform the system. Where's Hercules when you need him? Still, you gotta wish the guy luck.

Not ready for prime time
By Tom Smith

By all means, let's take our cues from the Yerapeans on all the really important stuff.

Steyn on Gitmo
By Tom Smith

He has it about right.

It seems as though the Democrats are determined to demonstrate they are the party not to be trusted with the national defense. To be fair, I don't think Bush has done a particularly good job keeping the country informed and inspired over this war, but not very many politicians could do that.

If we are going to close down Gitmo, I sure hope we get those Pershing missiles out of Europe at the same time. It sends the wrong message to the Soviets, and makes us look like war-mongers to the entire world. I also think it is very important that internees at Gitmo be able to sue in American courts for damages, including punies. If ATLA ain't happy, ain't nobody happy.

BTW my source in the Pacific says that the extremely remote Johnston Island is being considered as the new location for Club Fed (Terrorist branch). It has an interesting status legally. Under some statute or other (ask Gary Lawson) it is legally considered a United States Ship at Sea. I'm not sure exactly what that means, but it sounds like pretty plenary authority. Perfect place for prison. Wonder what the Supremes would have to say about that. Just the flight there sounds like torture to me. We might have to invent something special, like Terrorist Class, so we don't get in trouble with Amnesty International.

Happy Juneteenth
By Gail Heriot

Although Abraham Lincoln' s Emancipation Proclamation took effect January 1, 1863, word didn't reach Texas until June 19, 1865, when Union Major General Gordon Granger arrived to read the Emancipation Proclamation in Galveston. From there, word of freedom spread quickly to Texas' 250,000 or so slaves.

Within a few years, "Juneteenth," as the occasion was called, came to be celebrated each year by former slaves throughout Texas, sometimes with gatherings as large as 30,000, and also in Louisiana and Oklahoma. Its popularity declined somewhat in the 1960s, but it has since enjoyed a revival of interest, particularly in Texas itself, where it is now a state holiday.

Juneteenth--which celebrates an actual event of huge importance in history--provides an interesting contrast with Kwanzaa, a "traditional" holiday that was in fact made up in the 1960s Maulana Ron Karenga (a/k/a Ron Everett), a so-called Black Nationalist from Los Angeles who was convicted and served time in prison for the brutal torture of female members of his gang. Loyal readers may recall that I have written on Kwanzaa before. Not-so-loyal readers (and forgetful readers) should click here for that discussion.

June 18, 2005
Ars Gratia Artis
By Gail Heriot

My friend John Fund and I went to the Getty Museum up in L.A. on Thursday. It was my first pilgrimage to that great shrine of high culture.

There’s no denying that the setting is spectacular. The buildings and plaza are so brilliantly white they are almost blinding. And the view from the Getty’s mountaintop perch seems to take in all of Southern California.

But there's something unnerving about a shrine on that scale dedicated to art for art's sake. It's too spectacular. Instead of making the art collections seem important, it makes them seem unimportant. They can't compete with the view. Lest we forget, they are just a bunch of paintings.

It's easy to understand how religious faith inspires human beings to build grand cathedrals and temples. A shrine to the Creator of the Universe ought to be magnificent. It is also easy to understand why Americans, who do not always share the same faith, might long for a few monuments that we can all share in. But builders of monuments must be mindful of scale, and when God is taken out of the picture and replaced with man's handiwork as the object of attention, a grand scale may no longer be appropriate. Rather than feeling uplifted, the viewer may end up feeling a little foolish for climbing a mountain to see a few paintings, photographs and sticks of eighteenth century French furniture.

Among other things, we saw the Rembrandt show. It’s entitled "Rembrandt’s Late Religious Portraits" and will be on display until August 28th. It consists of seventeen portraits painted in the last decade or so of the artist’s life, portraying Christ, the Virgin, Matthew, Paul, Bartholomew and a number of other significant figures of the Christian faith. Among the paintings is the well-known "Self Portrait as the Apostle Paul."

I liked the show. A lot. And I was even willing to put up with annoying crowds and commentary from tour guides talking about the importance of brush stroke to see it. But I couldn't help wondering whether I would have liked it even better in a more intimate setting or a setting that emphasized its importance as an expression of faith rather than as a set of paintings.

By the way, if you find pompous art criticism either annoying or amusing, one of the funniest books ever written is Why Cats Paint: A Theory of Feline Aesthetics by Burton Silver and Heather Busch.

Drop Outs and the Information Revolution
By Mike Rappaport

Bill Gates and Steve Jobs are two of the people most responsible for the information revolution, a revolution that has significantly increased the returns to education. The funny thing is that both of them dropped out of college. Steve Jobs tells part of the story in his excellent commencement speech at Stanford.

June 17, 2005
More Police, Less Crime
By Mike Rappaport

This column suggests that we should double the number of people working in police forces.

June 16, 2005
Buck on Originalism's Critics
By Mike Rappaport

Stuart Buck makes three good points about the criticisms of originalism. Here is one of them:

One of the common objections to originalism is that it's too hard. All of these overworked judges and Justices don't have the time or expertise to do real historical research into the original meaning of a constitutional provision.1 It is usually liberals who make this charge. While I don't have any specific person in mind, it is curious that the latest liberal cause du jour has been to urge judges to consider the opinions of foreign courts. How are judges supposed to be capable of accomplishing that task? If a judge, despite American legal training, finds it too difficult to understand the history and context of the American Constitution, how likely is it that the judge will be capable of understanding all that is relevant about decisions written in another language and in a completely different context?
Read the other two here.

Talking sense on evolution etc.
By Tom Smith

Eugene is quite good on the topic.

62.7 percent of New York Times editorials are complete rubbish
By Tom Smith

Can you spot the glaring logical error in this op-ed piece in the ever lovable NY Times? Terrorism expert Peter Bergen did some surveys and discovered most of a group of well-known terrorists went to college, at least for a while. Therefore, we should stop criticizing madrassas for spewing out America-hating zealots who are tomorrow's terrorists. Where to begin with such dumbness? This is just like saying, "Some people claim toadstools are poison. I have surveyed 100 famous cases of death by poison and found that a mere 2 percent of them involved ingesting toadstools. The poisonousness of toadstools is greatly exaggerated. Indeed, it is THE TOADSTOOL MYTH!" Alas, this is extremely tupid, as my kids used to say. I don't know what this fallacy is called, but you cannot reason backwards in this way. What you want to do is look at a nice sample of madrassa graduates (and don't forget your kevlar!) and count how many of them are terrorists, disposed to commit terrorism, support terrorism against the US, whatever it is you want to measure. Then you can compare something sensible, such as, disposition to support terrorism before and after going to the madrassa, or correlation between having gone to a madrassa and probability that one has C4, nails and rat poison strapped to one's tummy. But showing that most famous terrorists had some college education tells one nothing about madrassas. There's also the bias in the sample problem. If you want to take this backwards approach, you should at least get terrorists from across the board, including those who blew off their feet trying to place the IED, not just the spectacular "successes."

Of Blogs and Stare Decisis
By Tom Smith

What do blogs and stare decisis have in common? Just as some blogs (Instapundit, DailyKos, etc.) get a lot more hits and links than others, so some cases get cited more than others, a lot more. In fact, a lot, lot more. I recently did some calculations on my Web of Law data and found to my shock that a mere 1000 of the total of more than 4 million state and federal cases get 80 percent of all citations. The vast majority of cases are dead -- they have never or rarely been cited and will almost certainly never be cited again. For USSC cases, it is the same story. A mere 2 percent of USSC cases get 96 percent of all cites to USSC cases. I don't know about you, but this rather changes the way I think about stare decisis. Shouldn't it? I'm not exactly sure what I thought before I knew this, but I think I just assumed most cases had some fate other than complete oblivion. In any event, in the interests of self promotion, the revised version of my paper is here. It has these numbers, plus some charts showing this phenomenon occurs on every jurisdictional level, federal to state.

I also strongly suspect the same distribution characterizes legal scholarship. I am trying to get the data now. It will turn out, I betcha, that the vast majority of law review articles rarely or never get cited. The top 5 percent of articles (cite wise) will get maybe 90 percent of all cites, or something equally shocking. The physics scholarship network has such a highly skewed distribution. Does this mean that legal scholarship is a waste of time? It doesn't seem to have slowed down physicists much. If an article gets cited say, six times in total, does that mean it was wasted effort? (Top articles get cited thousands of times.) Hmmmm. "Is Legal Scholarship a Waste of Time?" sounds like the title of a law review article that might appeal to student editors.

God bless George Orwell
By Tom Smith

Here here.

June 15, 2005
The End of Europe: The Pre-quel
By Gail Heriot

Tom, you are joking when you suggest that Americans didn't stop looking to Europe for cultural validation until sometime the 1980s, aren't you?

The end of Europe
By Tom Smith

Robert Samuelson on the decline of Yerp.

Some of us are old enough to remember when Europe was the really cool place, the center of new ideas, progressive thinking, all of that. Seems like a long time ago. History, food, some nice country, definitely, but the sense of shift is palpable. Funny that American culture had for 200 years or so been looking East for cultural validation, and then sometime in the 80's, that just stopped.

4-year dies at Disney World
By Tom Smith

I hate Disney.

June 14, 2005
Gallup Poll Reports "Major Racial Divide" on Michael Jackson Verdict
By Gail Heriot

According to a Gallup poll, 48% of Americans "disagree" with the Michael Jackson verdict while only 34% "agree." The figures break down rather strikingly by race. Among white respondents, 54% said that they disagreed with the verdict and 28% said they agreed. Among non-white respondents, 26% said they disagreed and 56% said they agreed. The Michael Jackson poll gap is not quite the size of the O.J. Simpson poll gap (Whites 62%/27% – Non-Whites 24%/67%), but it bears some similarity.

I’m in the minority (of those who weighed in) this time. I admit that it’s entirely possible that I would have a different view if I had been present at the trial (or even if I had paid more careful attention to the news reports), but guilt beyond a reasonable doubt is a tough standard and I’m not at all convinced that standard was satisfied here. I’m not even sure that I would have found Jackson guilty under a lesser evidentiary standard.

The extraordinary fact that was proven (indeed admitted to) was this: Several years after Jackson paid huge sums of money to settle a claim that he had molested a young boy, thus avoiding prosecution by the skin of his teeth, Jackson was still inviting young boys into his bed, thus risking further prosecution and lawsuits. To me, this proves beyond any reasonable doubt that Jackson is either a child molester who just couldn’t stop himself or very, very odd and out of touch with reality.

The problem is that Jackson clearly is very, very odd and out of touch with reality, so maybe the evidence doesn’t really prove anything new. And he’s rich. That’s makes him the perfect target for a grifter, which the complaining witness’s mother appeared clearly to be.

Here's hoping that justice was done.

In other science news . . .
By Tom Smith

Iomega: watch out for movie industry assassins.

Ha ha to self indulgent yuppies: new, better, cheaper flat screens on the way.

Cute animals. Let's eat them.

In the future, Instapundit will use this to teach and blog at the same time. Query whether law deans will require this. Query whether law deans will still be necessary.
(Hmmmm. "Claytronics" they call it. More here.)

Important problem that needs to be addressed by 100 page, 500 footnote law review article, reaching no ultimate conclusion. My recommendation: go ahead and treat patients with what works and hit critics on the head with a big shoe.

I really want to visit the high arctic; looks like I should hurry.

But looking like John Kerry is overdoing it.

Another reason to oppose cell phone use on flights, in addition to avoiding savage in flight beatings.

In addition to wearing boxer shorts, watch porn with 2 men and 1 woman.

Great new astronomy and space site
By Tom Smith


Gamers unintentionally make huge contribution to understanding universe. Talk about unintended consequences.

June 13, 2005
Cheney understands
By Tom Smith

Story here. Some people want Gitmo closed because it is an effective weapon against terror. For whatever weird reason a British academic or a French bureaucrat would get satisfaction out of more suicide bombings on American soil, they are similarly against interrogating illegal combatants. Then there are Democrats who think they can use the issue for their political benefit, and they're not very strong on national security anyway. While the temptation to think that whatever is the opposite of what these people think, must be right, should probably be avoided, the notion their views should carry any weight is baffling to me.

I do think maybe it would be better if suspected terrorists captured in places like Afghanistan just disappeared into scattered locations only the military and the CIA knew about. Gitmo is a lightning rod for publicity. But there may be good reasons for having one central location.

One thing is for sure. If Castro were in charge of the prison, criticism of it would be out of bounds for the left. Instead we'd be hearing about how great medical care is for their children (which is a good thing: you can pick up a lot of nasty things when you don't have shoes). In fact, Castro's prisons really are gulags, and you don't hear much about them. I guess for a gulag to be a gulag it has to not really be a gulag. Or something. Weird.

As far as Gitmo's effect on our reputation, I think our reputation would be hurt far more by closing the place under the pressure of our various enemies. It would earn us a deserved reputation for weakness and lack of resolve. Indeed, all the criticism of the place presents an opportunity to stand up to it, and show we really do mean business. If Hillary gets elected, we will have plenty of problems, but I don't think softness on terrorism will be one of them, and then all of these objects of criticism will magically be transformed into non-issues.

Interview with FEC Commissioner Brad Smith
By Mike Rappaport

Here is an excerpt but read the whole thing:

We are starting to turn the purpose of regulation on its head. Elihu Root argued that we had to prevent the great accumulations of wealth from taking over politics. That's the direction we are heading now. When we think about who is going to be exempt under the press exemption, I think almost everybody would agree that the big corporations are going to be exempt under press exemption. That is to say that the Washington Post website, well, that's probably exempt. What about Slate, which at one time was owned by Microsoft? Well that's going to be exempt. Why? Because Slate kind of looks and it feels like a newspaper. It comes off the web rather than delivered by paper to my door, but it just has that look and feel and has that kind of sense to it. And then people are going to say, what about maybe a blog such as that run by Glenn Reynolds of InstaPundit or something like that? Well maybe that gets the exemption. But after that it's less clear.

Therefore we are saying if you are a big powerful cooperation, we are going to give you a press exemption for your Internet activity, at least if you are a press operation. And as we work down the line we are not going to give you that exemption. As a result you are going to be stifling the activity of the most grassroots, casual type of political action, rather than that of the big press corporation.

Real men: back or never out?
By Tom Smith

Interesting survey.

Supply Side Economics
By Mike Rappaport

James Gwartney has an encyclopedia entry on Supply Side Economics at the Concise Encyclopedia of Economics provided by the Liberty Fund. The Encyclopedia is a quite useful resource. Here is an excerpt from the article, which suggests that the Reagan Tax cuts had significant supply side effects:

The critics of the eighties tax policy argue that the top rate reductions were a bonanza for the rich. The taxable income in the upper tax brackets did increase sharply during the eighties. But the taxes collected in these brackets also rose sharply. Measured in 1982-84 dollars, the income tax revenue collected from the top 10 percent of earners rose from $150.6 billion in 1981 to $199.8 billion in 1988, an increase of 32.7 percent. The percentage increases in the real tax revenue collected from the top 1 and top 5 percent of taxpayers were even larger. In contrast, the real tax liability of other taxpayers (the bottom 90 percent) declined from $161.8 billion to $149.1 billion, a reduction of 7.8 percent. These findings confirm what the supply-siders predicted: the lower rates, by increasing the tax base substantially in the upper tax brackets, caused high-income taxpayers to pay more taxes. In effect, the lower rates soaked the rich.

Probably the most detailed study of the tax changes in the eighties was conducted by Lawrence Lindsey of Harvard University. Lindsey used a computer simulation model to estimate the impact of the eighties' tax-rate changes on the various components of income. He found that after the tax rates were lowered, the wages and salaries of high-income taxpayers were approximately 30 percent larger than projected. Similarly, after the rate cuts capital gains were approximately 100 percent higher than projected, and high-income taxpayers' business income was a whopping 200 percent higher than expected. Lindsey concluded that the main supply-side effects resulted from (a) people paying themselves more in the form of money income rather than fringe benefits and amenities, (b) increases in business activity, and (c) a reduction in tax shelter activities. His findings undercut the position of those supply-side critics who had assumed that substantial supply-side effects were dependent on a large increase in labor supply.

So soon old, so late wise
By Tom Smith

More on Tyson.

Why do we classify based on race?
By Mike Rappaport

Extremely interesting paper on this subject by the amazing John Tooby and Leda Cosmides (as well as Robert Kurzban). Here is the abstract:

Can race be erased? Coalitional computation and social categorization. Previous studies have established that people encode the race of each individual they encounter, and do so via computational processes that appear to be both automatic and mandatory. If true, this conclusion would be important, because categorizing others by their race is a precondition for treating them differently according to race. Here we report experiments, using unobtrusive measures, showing that categorizing individuals by race is not inevitable, and supporting an alternative hypothesis: that encoding by race is instead a reversible byproduct of cognitive machinery that evolved to detect coalitional alliances. The results show that subjects encode coalitional affiliations as a normal part of person representation. More importantly, when cues of coalitional affiliation no longer track or correspond to race, subjects markedly reduce the extent to which they categorize others by race, and indeed may cease doing so entirely. Despite a lifetime’s experience of race as a predictor of social alliance, less than 4 minutes of exposure to an alternate social world was enough to deflate the tendency to categorize by race. These results suggest that racism may be a volatile and eradicable construct that persists only so long as it is actively maintained through being linked to parallel systems of social alliance.

June 12, 2005
Not very smart bomb strikes again
By Tom Smith

Frank Rich gets fisked.

Congressman Sells House to Defense Contractor, Which Immediately Puts House Up for Sale and Ultimately Sells at $700,000 Loss
By Gail Heriot

Is it a case of corruption? Or rock stupidity? Or both?

Report from al-Andalus
By Maimon Schwarzschild

A week's travel in Andalucia, after an urgent Law and Philosophy conference in Granada: all just part of the academic routine, of course.

The "centro historico" of a Spanish town, like that of European towns and cities generally, is almost always glorious: elegant architecture, beautifully maintained. In Andalucia, formerly al-Andalus, the old forts and palaces, and even the churches, reflect the flowering of Moslem culture before the Christian consolidation (and the mass expulsions of Jews and Moslems) after 1492. But the lovely old neighbourhoods are almost as striking as the great monuments: now thoroughly gentrified, they are a treat to visit.

The historic central districts contrast sharply with the medium-rise apartment buildings that surround every town. They are boxy, post-Franco modern, slightly shoddy looking, and there are vast numbers of them. Anywhere in the world -- very much including the USA -- it is surely better to be upper middle class than lower middle class. But the contrast seems even sharper in Europe. And Europe's boxy-development dwellers have long been treated as peripheral politically as well as socially and architecturally. The "centres historiques" voted Oui in the French Euro-referendum. They lost to an angry backlash from the boxers.

In Spanish towns, the heart of the "centro historico" is often the pre-1492 "juderia" -- the Jewish ghetto, now a lovely residential setting for the favoured few. There are no Jews living there, but Spain seems proud that there once were. There are plaques and monuments, even statues to such as Maimonides, to remind the visitor of those who once lived nearby.

Perhaps in 500 years or so the "Judengasse" -- the Jews' street -- will be the most desirable and expensive part of every German town. Will the House at the Sign of the Black Shield (Schwarz-schild) be a tourist attraction in Frankfurt? More likely, I suppose, the house of our neighbours up the street, at the sign of the Red Shield (Roth-schild).

June 11, 2005
Mr. and Mrs. Smith
By Mike Rappaport

I know I am not supposed to like this movie, but I did. Not a great plot, but an interesting enough story line, and when combined with lots of action and two great stars, an enjoyable couple of hours. This was probably the best vehicle for Angelina Jollie that I have seen. While the movie was rated PG 13, it should have been R.

What do the bookies know
By Tom Smith

Tyson is clearly done. Boxing won't miss him much. He apparently doesn't have the shape to do it any more. Tough deal for his many creditors.

You have got to respect boxers, even if they are crazy to do it. Boxing is like the aerobics class from hell, where if you don't keep up, you get your brains or guts pounded out. The live in their own universe of pain. It's like the aerobic hell of rowing or cycling, but every so often, someone hits you in the head or your ribs with a pipe. It must be a pretty foul gutter to think boxing is the way to crawl out of it.

You could have made a lot of money on this fight. Tyson was a 12 to 1 or so favorite. I guess he must have been working out in secret, or something. Somebody watching him train probably would have been able to tell he did not have the wind to go the distance with McBride. Maybe he really will quit now.

McBride was 271 pounds. What a monster. Something like six-five. Supposedly a good, but not a world class fighter. If he's smart, he'll get out before too much more damage gets done to his squash. He seems like a nice enough fellow. Hate to think of him drooling away his old age in some clinic.

Army recruitment problems
By Tom Smith

The Army is having big problems with recruitment.

June 10, 2005
A book for Clinton haters to hate
By Tom Smith

I just don't understand why some people hate Bill Clinton. It is a paradox, a mind-exploding puzzle. He was a flawed man, yes, and aren't we all, yet, in his complex combination of subtle intelligence and almost byzantine appreciation for the many sides of every argument, he was, if anything, the moderates' moderate, the blah blah blah blahblahblah . . .

I think they might have a computer at the New York Times to write this stuff. Anyway, here is the review in the Times of John Harris's book on the slick one. It must take a special kind of mental discipline, Zen like in its elusiveness, to maintain the state of not understanding why a lot of people hate Bill. It is not thinking, little grasshopper. It is not-thinking. I mean, puh-leeeese.

How about a little trip down memory lane? First, we get scared witless that mom and dad, and then us, and maybe our kids are going to be stuck in some nightmare of Hillary care. Remember the fear that it might actually happen? Those were happy days. Anybody who's had a close encounter with state health care (I lived in the UK for two years and learned in a big hurry not to get sick) was good and scared. Thank God for the big drug companies. Then, remember gays in the military? That was fun, and a great way to start the term. Soon after, Blackhawk down. Incompetence, betrayal, and indifference, all packed into a few weeks. Got to love the big guy. Yes, yes, we got welfare reform. And we owe that to Bill? I seem to recall something about the Republicans shoving it down his throat. But he raised taxes! And that's what set off the recovery, because it lowered interest rates you see, and that led to investment, which led to all that wonderful growth . . . ! I hate taxes. Middle East? A total, compromised, unprincipled mess. Terror on the rise. And then the wonderful second term. (With a few loose ends, like Vince Foster, left over from the first.) I just loved the "Daddy, what's a blow job?" questions. Why, son, it's something our Presidents get from misguided college girls in the house of Lincoln and Roosevelt and the Gipper, that's what! I really miss those days. Wall to wall coverage. Democrat party hacks swarming all over the cable channels to lecture us that lying is not lying, and Ken Starr, whose idea of a wild time is a coke and a ball game on TV (and no cigar), is the real pervert. All the time wondering, am I crazy, or has the country gone insane? In the background, all kinds of stuff to make your hair stand on end. Would you really fire all U.S. attorneys just to get rid of the troublesome one in Arkansas? Serious people actually frightened of the Clintons, like they're the Corleones. And maybe they're right. That girl from Oxford sure isn't talking. People who know people telling you downright troubling things about what's going on in the White House. Pretty in pink and the vast right wing conspiracy. And the press. Remember the press? The good, old, pre-blogosphere press? And it just went on, and on, and on. Juanita Broderick. Dude, he raped her. But never mind. It's Chinatown. The impeachment, now airbrushed out of the official Times history. You just don't see that word a lot. And then the pardons, to all appearances simply bought, and practically stealing the silverware and rugs when they left. How very amusing. Those darn Clintons. Why do I hate Clinton? I don't know; just one of those mysterious, incomprehensible, idiosyncratic quirks, I guess. The man wasn't a president. He was a disease.

And now there's 2008. Well, sufficient unto the day are the catastrophes thereof.

The Growth of Government Spending
By Mike Rappaport

Why was government spending largely stable from 1789 to the 20th century and why has it grown so much since World War II. Gordon Tullock has an interesting and relatively short discussion of the matter here. While the discussion is interesting, unfortunately, his "bottom line is that governments have grown in recent decades, that they did not do so earlier, and that economists do not really know why."

O Canada, your health care system is funny
By Tom Smith

You can't make this stuff up.

It leads me to propose a kind of anti-Hayekian principle. Just as markets and other free institutions result in spontaneous orders that are more elegant and useful than anything we could have planned, so governments blunder into situations that are more bizarre and more hilarious (in a dark way) than anything we could make up.

On a more serious note, it always struck me as bizarre that the various leftotrons cannot see that there is a fundamental moral right involved in the freedom to pay someone to fix your body. If you were walking down the street with one of those Inuit arrows sticking out of your back, don't you have a moral right to give somebody money to get him to pull it out and fix you up? How is that different from the right to buy food? I suppose if you have something better than the market as a way of allocating food and medical care, you might have an argument, but of course, not only do they not have a better alternative, they have created enormous human catastrophes trying to prove that they did. At some point, don't you have to say, I'm sorry doctor, but the leeches don't seem to be working?

The question remains, will Canada slip towards sanity, or come up with something even more zany? Maybe, you have the right to buy medical services, but you can't use your own money? Maybe, you can buy medical services, but must pay in fish? It confirms the cosmic centrality of the USA: to the south we have tragedy, and to the north, comedy, eh?

The Filibuster Deal
By Mike Rappaport

Recently, there has been a lot of talk about how the deal is better for the Republicans than the Democrats and at least better for the Republicans than was initially thought. (See the article referenced by Tom below.) Let me say that this argument is premature.

The deal gave Republicans majority votes on three contested nominees, and they are now in the process of securing the confirmations of those nominees. Obviously, that makes it look good for Republicans, but so what. That was never the problem with the deal. It was that filibusters would be used against other nominees and especially against Supreme Court nominees, and that it would be harder to use the nuclear option in the context of a specific Supreme Court nominee. The filibustering of John Bolton hardly makes one feel secure that the Democrats will not use the filibuster in the future.

As far as I can tell, the claim that the deal was a good one for the Republicans is entirely the result of people focusing on the three confirmations. Wake up, guys. That is not the issue.