The Right Coast

September 30, 2005
Philosophers as Logicians
By Mike Rappaport

Is this claim by the Anal Philosopher entirely correct, mostly correct or mostly mistaken?

There is a disturbing tendency among philosophers to think that their technical training—we're nothing more than logicians—qualifies them to speak with authority on every issue. In fact, the contribution of philosophy to public affairs is quite small, which is why few laypeople can name even one living philosopher.

Able Danger
By Mike Rappaport

The payback and coverup continue.

September 29, 2005
Eugenia Charles
By Maimon Schwarzschild

Eugenia Charles, the long-time Prime Minister of Dominica, has died at 86. The Economist has an obit that is mostly both affectionate and perceptive. Dominica is a tiny Caribbean island nation, with a population of only 71,000. Eugenia Charles' moment on the world stage was in 1983, when the neighbouring island of Grenada was taken over by a Cuban-backed Communist gang. Here is the Economist:
THE press photographs did no justice to how Eugenia Charles felt as she stood beside Ronald Reagan, at the White House, in October 1983. They showed a rather grim and melancholy woman, in a white cravat and executive striped suit. Only a vestigial twinkle in Reagan's eye suggested the truth: that Miss Charles was having the time of her life. “Mr President,” she told him afterwards in her lilting basso profundo, “you have big balls!”

She had just invited him to invade Grenada, and he had done so secretly, at once. That island, in the same chain as her own state of Dominica in the eastern Caribbean, had been taken over by Cuban-backed thugs and the moderate prime minister murdered. Miss Charles had raised the spectre of Cuban infiltration all over the region; Reagan, ever ready to wage clandestine war against Commies, had gallantly responded. A navy flotilla with marines had been diverted from its voyage to Lebanon to carry out her wishes and liberate the island.
(The Euro-sneer at Reagan and the "Commies" reflects not on Reagan but on the Economist, which is usually -- although by no means always -- better than that sort of thing. The sneer mars an otherwise appealing obit.)

Eugenia Charles' father, with whom she lived till he died at 107, was probably the biggest influence on her, says the Economist, believably enough. Her upbringing and outlook indeed had much in common with Margaret Thatcher's.

I remember Eugenia Charles speaking out forcefully and publicly -- both in Washington and at the UN -- about the need to take action in Grenada. She spoke eloquently, elegantly, and altogether impressively. At the time, a little snobbishly, I thought she spoke far better than Reagan did: she the Prime Minister of an island of 70,000 souls, he the President of the United States. But they each had their work cut out for them; and they each did what was needed. Rest in peace, both.

Hawaiian Population Explosion?
By Gail Heriot

For the last few months, I've been blogging about the proposed Native Hawaiian Government Reorganization Act, popularly known as the "Akaka bill," which, if passed, will authorize ethnic Hawaiians to retroactively form themselves into the nation's largest Indian tribe. If you still haven't heard about this ill-advised item of legislation, check out my op-ed in the San Diego Union-Tribune, which explains why ethnic Hawaiian leaders want such a thing. (Hint: They believe tribal status will immunize Hawaii's massive system of special benefits for ethnic Hawaiians from constitutional scrutiny.)

Here is another reason to oppose the Akaka bill: By the year 2050, the number of ethnic Hawaiians in the country is expected to double from approximately 401,162 to 987,602. More and more people will be on the receiving end of special benefits for ethnic Hawaiians, which include special housing, special schools, special home loans, special employment opportunities and special business loans. What is a very bad idea today will be completely untenable in the future.

What I find interesting is that Akaka bill advocates apparently regard this projected population increase as good news for the political prospects of the bill and the so-called Hawaiian sovereignty movement in general. Hawaiian sovereignty activist Lilikala Kameeleihiwa (nee Lily Dorton), former chair of the University of Hawaii Center for Hawaiian Studies, put the matter bluntly in the Honolulu Advertiser:

"'I'm seeing that we need to be a majority of the population if we're going to get political change,' she said. 'We, as Hawaiians, would like to have more control over our land base so that we can raise our children in a Hawaiian manner so we can practice our culture, so that we have land on which we can make our schools that we can use to produce healthy, happy Hawaiians.' Kameeleihiwas said she's disappointed that the Kamehameha study does not show Native Hawaiians growing at a faster clip. At a recent rally attended by approximately 10,000 suuporters of Kamehameha's [racially exclusive] admissions policy, she urged Native Hawaiians to make as many babies as they could. She continues to make that call. 'I don't want to have to wait for 2050 for us to double our population.' she said. 'Instead of the next 50 years, I'd like to do it in the next 20 years.'"

It's curious. A century ago, Americans were told that ethnic Hawaiians were a "dying race." In the 1900 census, for example, there were only about 40,000--a number thought to be less than the number in 1800. During the 1920s, Congress was urged to (and did) pass homestead legislation granting special housing benefits to ethnic Hawaiians -- in part because of the belief that ethnic Hawaiians were dying out as a race. They needed special help just to survice---or so it was thought.

But the 2000 census indicates that just over 400,000 ethnic Hawaiians live in the US--a tenfold increase over 1900. Of course, not all those 400,000 are "full-blooded" ethnic Hawaiians; some are mixed race. But the "dying race" stuff was always a myth. Hawaiians weren't dying off in the 20th century. They were intermarrying with people of other races. While the number of "full-blooded" Hawaiians was stagnant, the number of part Hawaiians was expanding at a furious pace--and still is.

In some ways, Kameeleihiwa is being very sensible to view this as good news. More ethnic Hawaiians means more voting power. More voting power means more political clout. Why wouldn't that be good news for a growing group? But in another sense, it exposes Hawaii's racial benefits sytem for what it is: a raw power grab. It's all about politcal clout. The argument isn't that the Akaka bill is good policy or bad policy for Hawaii as a whole. The argument is that ethnic Hawaiians must do everything they can to become a majority in Hawaiian politics, and that once they do they will be free to impose their will. It's not pretty.

Here's hoping the Akaka bill is soundly defeated.

More than 5 is Wasted
By Mike Rappaport

How ironic that William Rehnquist's successor was confirmed by the Senate 78-22. Rehnquist is sometimes reported to have said that if his opinion got more than 5 votes overall, than he had made a mistake. That he got six or more votes for an opinion suggested he could have written the opinion to reach a better result and still have gotten a majority. Did George Bush make a mistake and appoint someone who was more moderate than he needed to? Only time will tell.

The Economics of Brides and Grooms
By Mike Rappaport

The question:

Why do brides often spend thousands of dollars on wedding dresses they will never wear again, while grooms often rent cheap tuxedos, even though they will attend many formal social events in the future?
The answer:

Because most brides wish to make a fashion statement on their wedding day, a rental company would have to carry a huge stock of distinctive gowns - perhaps 40 or 50 in each size. Each garment would thus be rented only infrequently, perhaps just once very four or five years. So the company would have to charge a rental fee greater than the purchase price of the garment just to cover its costs. In contrast, because grooms are willing to settle for a standard style, a rental company can serve this market with an inventory of only two or three tuxedos in each size. Each suit can thus be rented several times a year, enabling a rental fee that is only a fraction of its purchase price.
Both the question and answer were supplied by a student in one of Robert Frank's introductory microeconomics classes. Read Frank's quite interesting discussion about how to teach and learn. (Hat tip: Marginal Revolution).

Austrian vs Neoclassical
By Mike Rappaport

In my younger days, I seriously considered getting an advanced degree in Economics (before I seriously considered getting an advanced degree in Philosophy). Back then, I used to worry quite a bit about the debate between Austrian and Neoclassical economists -- between Hayek and Friedman. While I sympathized with the policy conclusions of Austrians, I could never quite embrace the principled Austrian position. Bryan Caplan seems to have a similar position. See here and here.

Hatred of Shiites
By Mike Rappaport

Fouad Ajami writes an extremely interesting piece in the Wall Street Journal on the Shiite-Sunni conflict and its role in the Iraqi insurgency. It begins with this very powerful paragraph:

The remarkable thing about the terror in Iraq is the silence with which it is greeted in other Arab lands. Grant Abu Musab al-Zarqawi his due: He has been skilled at exposing the pitilessness on the loose in that fabled Arab street and the moral emptiness of so much of official Arab life. The extremist is never just a man of the fringe: He always works at the outer edges of mainstream life, playing out the hidden yearnings and defects of the dominant culture. Zarqawi is a bigot and a killer, but he did not descend from the sky. He emerged out of the Arab world's sins of omission and commission; in the way he rails against the Shiites (and the Kurds) he expresses that fatal Arab inability to take in "the other." A terrible condition afflicts the Arabs, and Zarqawi puts it on lethal display: an addiction to failure, and a desire to see this American project in Iraq come to a bloody end.

September 28, 2005
The Emergency Plan for New Orleans Was to Lose the City
By Mike Rappaport

Jonathan Rauch has an extremely interesting piece on the government's planning regarding the possibility of a level 4 or 5 hurricane in New Orleans. He writes:

The evacuation plans were inadequate and then bungled. The rescue was slow, confused, often nonexistent. Yet the most striking fact of the New Orleans catastrophe has received less notice than it deserves: The plan for New Orleans in case of a hit from a very powerful hurricane was to lose the city.
Read the whole thing.

September 27, 2005
Saving Our Environment from Washington
By Mike Rappaport

That is the name of a new book written by David Schoenbrod, a law professor at New York Law School. The subtitle of the book expresses the main idea: "How Congress Grabs Power, Shirks Responsiblity, and Shortchanges the People." Schoenbrod belives that "the best environmental rules--those that done the most good--have come when Congress had to take responsibility, or from states and localities rather than EPA."

While I haven't read this book, I greatly enjoyed his earlier book, Power without Responsibility, which defended the traditional constitutional principle that forbade Congress from delegating legislative power to administrative agencies. This book continues his earlier theme, but applies it to environmental matters. Schoenbrod was once an attorney for the Natural Resources Defense Council, so this is an area he knows something about.

Update:Schoenbrod has an excellent piece on the opinion page of the Wall Street Journal, which is online only for subscribers. He writes:

After Hurricane Betsy swamped New Orleans in 1965, President Lyndon Johnson stroked its citizens ("this nation grieves for its neighbors") and pledged federal protection. The Army Corps of Engineers designed a Lake Pontchartrain Hurricane Barrier to shield the city with flood gates like those that protect the Netherlands from the North Sea. Congress provided funding and construction began. But work stopped in 1977 when a federal judge ruled, in a suit brought by Save Our Wetlands, that the Corps' environmental impact statement was deficient. Joannes Westerink, a professor of civil engineering at Notre Dame, believes the barrier would have been an "effective barrier" against Katrina's fury.
Schoenbrod has a sophisticated analysis showing how environmentalists and the government failed to address the risk of a hurricane. He concludes:

There are some things only the federal government can do, but it tends to do much more than the strictly necessary. Alice Rivlin, President Clinton's director of Office of Management and Budget, argued that Congress should return many programs, including some environmental ones, to the states in order to "focus the energies of the federal government on the parts of the task for which it has a distinct advantage, and rely on the states for activities they are more likely to carry out successfully."
Good advice, but don't hold your breath.

September 26, 2005
Bring it on
By Tom Smith

Actually, don't bring it on. But if you do, I'll be ready. I am now the proud owner of a Pro-line fire pump, a unit powered by a 6.5 hp Honda engine, mounted on a dolly, with a 3 inch mining grade hose to stick in your swimming pool, and 50 feet of municipal grade fire hose to spew water at 50 gallons per minute. The pump produces 100 gallons a minute, so there's a lot of pressure. Enough to soak down a 75 foot tree for example, or blow the windows out of a house. Not cheap, that's true. But it's beats standing there in your driveway, watching the towering flames march toward you, while the fire hotline operator tells you she really has no idea whether you should evacuate or not, but that you should trust your feelings. It does no good to pound your phone into splinters. Better to buy one unit than to curse the idiots yet again. Now I can send the wife, kids, and dogs to safety, while standing my ground with 15,000 gallons of pool water to command, which is as much as 60 firetrucks carry. I'm no expert, but the thing appears to be lovingly hand-crafted by real men who know about things like lathes and valves. Overbuilt, if anything. Downright beefy. LWJ does not seem that impressed by it, but then fighting fires has traditionally been, well, you see where I'm going.

You can also wash your driveway, knock down birds, and control crowds, which could come in handy given the parties my neighbors have had lately. I could also in theory hit motorcyclists as they rode by. Every man his own fire department. Now I just need one of those funky hats.

Local News
By Maimon Schwarzschild

Indepundit has a full report -- excruciatingly full -- on yesterday's mass (well, not really) demonstration in San Diego. The theme is "The Middle East Wars Come to the San Diego Left".

Which brings to mind another demo in San Diego, years ago, witnessed by Joan Didion. The platform speaker was going on about "working people", as the small crowd dwindled. Said Didion: "People who work in San Diego don't think of themselves as working people"...

September 25, 2005
Public schools
By Tom Smith

Those darn teachers' unions. If we are going to betray our children's futures to make life easier for hacks and incompetents, are glad they are such darn nice folks.

Awkward facts
By Tom Smith

This is troubling. Well connected Iranians are fleeing Iran, and money is moving out as well. Inside the country, the new president has spoken openly of developing nuclear weapons. It has been and still is a primary supporter of terror against the US. It is the most plausible candidate for putting a nuclear weapon in the hands of terrorists who would use it on US soil. Bush's policy appears to be to hope it all just goes away, or maybe diplomacy will take care of it.

Some awkward facts: Just because the idea of most Democrats being in charge of the GWOT is frightening, does not mean W is doing a competent job. Just because Iraq was a threat, does not mean Iran is not a worse threat. Just because we thought Iraq had WMD's and didn't, does not mean Iran does not or will not soon have, WMD's of the worst sort. Just because we can't afford a war against Iran now, doesn't mean we won't have one. Just because it would be insane for Iran to launch nuclear missiles at Israel, does not mean they would not do it, and Israel would probably retaliate against both Iran and its allies.

The Bush adminstration needs to get a grip on the Iran problem, and they show no sign of having done so.

Model UN
By Maimon Schwarzschild

"There is No Cure for the UN", says Mark Steyn. The Oil for Food scandal is only a case in point -- although it's a massive one:
[Kofi Annan] and his Deputy, Canada's Louise Frechette, simply failed to notice the world’s all-time biggest scam exponentially expanding under their noses and with the enthusiastic participation of their closest colleagues.

Possibly they carelessly assumed it was just the usual nickel and dime UN corruption — like the child-sex rings and drug cartels that operate out of pretty well every peacekeeping operation. But the point is, while it may have happened on Kofi’s watch, he wasn’t watching, so that’s OK. Like OJ promising to hunt down the real killers, Mr Annan and Mme Frechette are committed to staying in their jobs and redoubling their efforts to spearhead the reforms the UN vitally needs.

I, too, am in favour of Kofi Annan staying on, not just till his term expires in December 2006, but for five, ten years after that, if he wishes. If I was as eager for UN ‘reform’ as its supporters claim to be, I’d toss Kofi to the sharks and get some new broom in to sweep clean. But if, as I do, you believe 90 per cent of UN ‘reforms’ are likely to be either meaningless or actively harmful, a discredited and damaged secretary-general clinging to office is as good as it’s likely to get —- short of promoting Didier Bourguet, the UN staffer in Congo and the Central African Republic charged with running a paedophile ring. A UN that refuses to hold Kofi Annan to account will be harder to pass off as a UN that represents the world’s ‘moral authority'...

What’s important to understand is that Mr Annan’s ramshackle UN of humanitarian money-launderers, peacekeeper-rapists, and a human rights commission that looks like a lifetime-achievement awards ceremony for the world’s torturers is not a momentary aberration. Nor can it be corrected by bureaucratic reforms designed to ensure that the failed budget oversight committee will henceforth be policed by a budget oversight committee oversight committee.

The oil-for-food fiasco is the UN, the predictable spawn of its utopian fantasies and fetid realities. If Saddam grasped this more clearly than [the UN's modish-leftish admirers], well, that’s why he is — was — an A-list dictator and they’re not.
(Steyn has now posted the piece. Read the whole thing.)

The conventional apology for the UN is that it reflects the world's governments as they are; and that it is a forum for peacemaking. But the UN is also a petri dish for corruption and for ideological extremism. Many of the UN's member governments behave much worse at the UN -- and certainly take a much more fervid anti-American and anti-semitic line there -- than they do in their own capitals, on their own, away from the UN.

The manic anti-Americanism -- and the relentless, Nazi-edged anti-semitism -- are nothing new at the UN. They were fully developed by the early 1970s.

I had a few years' personal taste of it in that era. (I was barely 20 years old, with journalist's credentials at the UN that didn't bear much looking into.) I was there in the General Assembly Hall when Yasser Arafat gave his thuggish, rapturously-received speech. And I stood around in the Delegates' Lounge afterward and watched the even more rapturous reception line for him: the world's diplomats queued up to fawn over him, most of them barely able to contain their glee -- and their malice (for you know who).

For the first time in my life -- really, the only time in my life -- it was a first-hand taste of what a Nazi Party Rally in Nuremberg must have felt like.

Meantime, by way of comic relief, here is a transcript, and -- much better still -- the live audio of Donald Trump's testimony to the Senate International Security Subcommittee last July about renovating the UN Building in New York. It is vintage Trump: not an atom of humility. But he obviously took some trouble to look into what will be done at the UN Building, and how much it should cost. The short answer -- no surprise -- is that the UN is planning to spend billions more than ought to be spent.

Don't just read the Trump transcript. Listen to the audio. You'll laugh: at Trump. At first. Then -- even if ruefully -- you'll start laughing with him.

The UN aspect apart, you learn something about Trump from this performance (especially if you listen to the audio). What comes through is that the guy may be awful, but it's no accident that he's a gazillionaire. He knows his business: at least, he knows to the dollar what everything costs to build and renovate in New York, and how much he has spent, himself, on every aspect of every one of his projects. There's pleasure (guilty or otherwise) in listening to a guy, any guy, who knows his business.

September 24, 2005
Are some ideas so bad they fail?
By Tom Smith

I know it is an entirely politically motivated decision, but I'm still glad Hillary has come out against the "International Freedom Center" idea. There perhaps should be a museum about man's, especially American man's, inhumanity to man, and there are. Just check out your neighborhood university; chances are good there is an exhibit in which you will learn that America sucks. But the site of 9/11 in lower Manhattan is not that place. Arlington National Cemetery is not the place for a retrospective on American war crimes, either. Some places and events speak for themselves, and a lot of "interpretation" is not needed. Just a recounting of the facts will do. People went to work on a Tuesday morning in the fall. Evil fanatics seized control of two civilian aircraft, cutting the throats of flight attendants with boxcutters. They flew the aircraft into the two towers. Close to three thousand men, women and children from some 90 different countries burned to death, were crushed to death or suffocated in the ensuing inferno, among them hundreds of police and firefighters, who tried to save as many as they could, with apparently complete indifference to their own safety. Many, many bodies could not be recovered. Their ashes are in the ground beneath your feet. Something along those lines.

Meat story
By Tom Smith

Often when I think about natural selection, as I did below, it reminds me of this story:

by Terry Bisson

"They're made out of meat."
"Meat. They're made out of meat."
"There's no doubt about it. We picked up several from different parts of the planet, took them aboard our recon vessels, and probed them all the way through. They're completely meat."
"That's impossible. What about the radio signals? The messages to the stars?"
"They use the radio waves to talk, but the signals don't come from them. The signals come from machines."
"So who made the machines? That's who we want to contact."
"They made the machines. That's what I'm trying to tell you. Meat made the machines."
"That's ridiculous. How can meat make a machine? You're asking me to believe in sentient meat."
"I'm not asking you, I'm telling you. These creatures are the only sentient race in that sector and they're made out of meat."
"Maybe they're like the orfolei. You know, a carbon-based intelligence that goes through a meat stage."
"Nope. They're born meat and they die meat. We studied them for several of their life spans, which didn't take long. Do you have any idea what's the life span of meat?"
"Spare me. Okay, maybe they're only part meat. You know, like the weddilei. A meat head with an electron plasma brain inside."
"Nope. We thought of that, since they do have meat heads, like the weddilei. But I told you, we probed them. They're meat all the way through."
"No brain?"
"Oh, there's a brain all right. It's just that the brain is made out of meat! That's what I've been trying to tell you."
"So ... what does the thinking?"
"You're not understanding, are you? You're refusing to deal with what I'm telling you. The brain does the thinking. The meat."
"Thinking meat! You're asking me to believe in thinking meat!"
"Yes, thinking meat! Conscious meat! Loving meat. Dreaming meat. The meat is the whole deal! Are you beginning to get the picture or do I have to start all over?"
"Omigod. You're serious then. They're made out of meat."
"Thank you. Finally. Yes. They are indeed made out of meat. And they've been trying to get in touch with us for almost a hundred of their years."
"Omigod. So what does this meat have in mind?"
"First it wants to talk to us. Then I imagine it wants to explore the Universe, contact other sentiences, swap ideas and information. The usual."
"We're supposed to talk to meat."
"That's the idea. That's the message they're sending out by radio. 'Hello. Anyone out there. Anybody home.' That sort of thing."
"They actually do talk, then. They use words, ideas, concepts?""Oh, yes. Except they do it with meat."
"I thought you just told me they used radio."
"They do, but what do you think is on the radio? Meat sounds. You know how when you slap or flap meat, it makes a noise? They talk by flapping their meat at each other. They can even sing by squirting air through their meat."
"Omigod. Singing meat. This is altogether too much. So what do you advise?" . . .

The rest is here.

ID update
By Tom Smith

Here's a story about a lawsuit in PA regarding intelligent design.

I probably know more about complexity theory that most corporate law professors who live in Southern California, and the idea that anyone knows enough to claim that they know natural selection as a process is incapable of producing complex organisms, strikes me as pretty insupportable. It may be fair to say there are things we can't explain yet about how natural selection works, and whether there are other important mechanisms at work in evolution, but that is something else again.

It's wrong to say ID is "not science." In a sense it is. It is the claim that a central neo-Darwinist claim, that evolution occurs largely or even entirely by means of natural selection, is wrong, is inconsistent with the evidence. That is certainly a scientific claim. Science consists partly of falsification (though not entirely -- I think Popper is wrong about that). The problem is that ID is not anything like established science, or even slightly well supported science. It is just one of many counter claims floating around. It is rather like the claim that life on earth is the result of colonization by extra-terrestials. It might be true, it might answer some questions if it were true, but the evidence for thinking it is true is, last I checked, pretty slim and dubious.

Some religions have doctrines that commit them to factual theses inconsistent with consensus views of modern science. You can imagine that if various ancient Greek religions had survived, they might view the atomic theory of matter as heresy, for example. Young earth creationists, I gather, insist the Big Bang theory is false, because it involves a creation that occurred 17.5 billion years ago or so, not several thousand, as some people read the Bible to reveal.

There could be some points I'm missing here, but I don't see why or even how science is supposed to be taught in public schools so as to steer clear of contradicting various religious doctrines, where it is just a fact that some of them do conflict with core scientific truth, to the extent such a thing exists. I certainly believe that as a matter of policy, religious belief should be accommodated in public schools. Maybe this means creationist students should be able to graduate high school without taking the usual biology class, or check a box on their exams that indicates they are answering all questions as a matter of what biologists believe, not what the Truth is, so they can answer "Species emerge through a process of natural selection, true or false?" correctly without betraying their religious beliefs. But that is a different thing from putting stuff very far indeed from the scientific mainstream on an equal footing with established, mainstream biological science, in the science classroom itself.

Two other quick points. There is no good reason for including in text books the anti-religious rantings some biologists are prone to. So parents of any religious stripe might reasonably object if some of the writings of Richard Dawkins were assigned in a biology class. Though much of his exposition of biological theory is just that, sometimes he indulges in purely ideological posturing; science classes should not be used to propagandize against religion. But this is hardly the big problem. The grade school science textbooks I have looked at, and I doubt high school texts are much better, are just dreadful, quite apart from any religious objections one might have. Horribly written, bone dry, bafflingly organized and apparently committed to the proposition that science is about arbitrary distinctions and pointless definitions -- that about sums them up. What a disservice to our children, not to mention to science! The kerfuffle over evolution in schools seems like a symptom of the pathology in our schools more generally. Whether we agree about natural selection or not, economic selection occurs, and if science education does not get better, our children will be learning about its harsh laws the hard way.

September 23, 2005
Crowd wisdom and common law
By Tom Smith

Very cool link below by Professor Rapport to Google's crowd wisdom tool.

It makes we wonder to what extent common law decision making could be characterized as a crowd wisdom mechanism. If 100 judges decide on some issue, and their outcomes could be characterized as taking a normal or normalish distribution, the mean decision, you might say, represented the wisdom of that crowd. Do mean decisions turn out to be the rule that emerges from a common law process? I don't know, but I don't think it is a crazy suggestion. If it is a good idea, it has probably already been published and maybe even had a symposium issue about it.

Web of Law project grows new nodes
By Tom Smith

In exciting news for me, anyway, what I refer to as the Web of Law project has gotten bigger and more highly powered lately. The team or happy family now consists of Steve Strogatz and Jon Kleinberg at Cornell, Mark Newman at Michigan, Antonio Tomarchio, one of Steve's grad students, one of Mark's grad students who is I think to be involved as well, Eric Rasmussen of Indiana University, through a separate but related project, and me. Jon Kleinberg is a very big name indeed in computer science and networks, and just won a McArthur fellowship (the so-called genius prize). Steve and Mark are also very distinguished in their fields of mathematics and networks, among other things. Eric Rasmussen, the economist at Indiana University, is one of the country's leading game theory experts, among other things. (I was going to put something self-deprecating in at this point, but in this company, it seems superfluous.) I was of the view that high powered scientists needed to be brought in to study legal citation networks (though Mark was already working on it, unbeknownst to me at first), and boy, that has certainly happened.

Preliminary results, assuming they prove out, have already revealed some new and interesting stuff about the Web of Law, even very interesting, depending on how you feel about these things. I think there are insights here for people interested in many different aspects of the legal system. How authoritative cases emerge, how precedents age, what courts follow their own law more and less, differences between state and federal courts, and more. The hardest part may be figuring out how to package it so that legal scholars pay attention to it.

September 22, 2005
Republican Spending
By Mike Rappaport

William Niskanan, the Chairman of the Cato Institute, writes:

The war on terrorism has been a rationale for increased spending, but not its primary cause. President Bush has endorsed a substantial increase in spending for agriculture, defense, education, energy, homeland security, Medicare, and transportation -- only a trivial amount of which is a direct response to Sept. 11 -- all the while refusing to veto a single spending bill. The primary cause of the rapid increase in federal spending to date is that the Bush administration and too many Republicans in Congress have embraced big government conservatism in both foreign and domestic policy at the expense of their traditional party commitment to fiscal responsibility.
These guys are losing me. And if the Republicans are losing someone as relatively loyal as me, that may signal that they have a big problem. The bottom line: not raising taxes is not enough; you have to hold the line on spending.

Google Channels Hayek!
By Mike Rappaport

Predictive markets at Google. And they work.

September 21, 2005
Hamilton's View of the Necessary and Proper Clause: A Foundational Mistake
By Mike Rappaport

The Necessary and Proper Clause is one of the foundation stones of liberal jurisprudence. It is the textual hook that liberals (and some conservatives) use both for an expansive federal government and for Congressional statutes that depart from a strict separation of powers. Gary Lawson, an originalist scholar (and a friend) has spent much of his career showing that the broad interpretation of the Clause is mistaken. His most recent piece on the Clause is "Discretion as Delegation: The “Proper” Understanding of the Nondelegation Doctrine" in the George Washington Law Review, which includes this powerful attack on Alexander Hamilton's broad view that any means that is "rationally related" to an enumerated power is "necessary":

As an original matter, the “rational basis” standard of Hamilton has no constitutional foundation. The textual case against the Hamiltonian rational basis interpretation is simply devastating. Textually, it is linguistically bizarre to read the word “necessary” to mean anything like “rationally related to.” Samuel Johnson’s 1785 Dictionary of the English Language defined “necessary” as “1. Needful; indispensably requisite. 2. Not free; fatal; impelled by fate. 3. Conclusive; decisive by inevitable consequence.” This is not the stuff of which rational basis standards are made. Moreover, when the Constitution mean to give actors unfettered discretion with respect to means and ends, it knows how to do so.

Hamilton’s famous observation that “[i]t is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing,” appears to be blather. I am not a historian, so I cannot claim extensive familiarity with the eighteenth-century discourse. But I have examined every usage of the word “necessary” prior to or contemporaneous with Hamilton’s comment that appears in the (considerable) database contained at the American Freedom Library CD-ROM, and none of those usages even remotely conform to Hamilton’s. Samuel Johnson would, unsurprisingly, appear to have much the better of this particular argument.
Update: Some readers have argued that Jefferson's view of "necessary" is also problematic. But neither Lawson nor I adopt Jefferson's view. It is Madison's characteristically intermediate view that is the best approach.

September 19, 2005
Bad words
By Tom Smith

are good for you.

Hard Time
By Tom Smith

Eight and a half to twenty five for Kozlowski and Swartz, formerly of the Tyco corporation. They were convicted in NY state court of looting about $150 million from their corporation. I have not followed the case closely enough to have an informed opinion on the justice of the conviction. As harsh as the sentence is, if they are indeed guilty of stealing that much, a harsh sentence is necessary to deter other corporate wrongdoers, or so it seems to me. Worse for the two, they will apparently have to do at least some of their time in a maximum security state prison. That's really bad news for them.

Here's something I don't understand. If you are the sort of person who would steal scores of millions from your corporation, why do you hang around to pick up your eight years minimum in the big house, where trying not to become Big Eddy's new girlfriend is going to be your next career. Why wouldn't you stash ten million in Curacao or someplace, and if need be, disappear onto some smallish yacht or quaint if somewhat filthy tropical backwater? K had a yacht and apparently likes sailing. True, it would be hard to leave behind wife and kids, whom you would see once in a while on visitor's day. But you really have to wonder if the Mrs. Looters will be there when they finally get out. I suppose you could say if he runs, he will be on the run for the rest of his life, and if he does get caught, and it's hard not to, he will never get out of prison. K, however, is 58, and ten years inside at that age is like 20 outside. It's hard to see he'll have much left if and when he finally gets out. I wouldn't loot in the first place, but if I had, I think I would just accept that it was the pirate's life for me, haul up the black flag, take my chances with the fair Spanish ladies, and not let them take me alive. If I ever come up for bail, I'm only kidding.

Bush's Spending
By Mike Rappaport

Despite the fact that Bush's spending proposals are probably better in form than simply government administered largess (see the previous post), the amount of this spending, when combined with previous spending, is enormous. Stephen Moore makes the case in today's Wall Street Journal.

Sadly, one must acknowledge that George Bush has been a disaster for small government. I used to be a single issue voter, asking which candidate will lead to smaller government. While I now am willing to concede the importance of other issues, I still believe this is the generally the most important matter. And on this issue, Bush gets an F.

This is not to say that the Democrats would have been better. My guess is that Kerry and Gore would have wanted to spend even more. And the form of their spending would have involved more government decisions. Nonetheless, there is no point in denying that Bush has done tremendous harm to the nation and to the cause of limited government. If Iraq turns out well and the process of promoting freedom in the Middle East is reasonably successful, he may even seem to have a successful presidency. And given that there were no lower spending alternatives, I suppose that Bush was clearly to be preferred. Still, while one prefers a grade of C to a grade of D or F, that does not make a C a good grade.

Update: The Wall Street Journal continues the theme:

What President Bush, House Majority Leader Tom DeLay and other Republicans haven't figured out yet is that deficit spending isn't a problem for them unless it endangers the broader conservative agenda. If it does, it will become the electoral issue. And what we're seeing is that Katrina is swamping every goal conservatives have, from limiting government to cutting taxes to reforming entitlement programs. Katrina spending has already imperiled plans to repeal the death tax, and Congress is already $60 billion into a spending binge. Handing out $2,000 debit cards was just the beginning. The conservative Congress has brought back the welfare state.

Jack Kemp's Influence
By Mike Rappaport

Here are indications that Jack Kemp's policy ideas have taken hold within the Republican party. From George Bush's speech on the rebuilding of New Orleans, there are three Kempian proposals:

Tonight I propose the creation of a Gulf Opportunity Zone, encompassing the region of the disaster in Louisiana and Mississippi and Alabama. Within this zone, we should provide immediate incentives for job-creating investment: tax relief for small businesses, incentives to companies that create jobs and loans and loan guarantees for small businesses, including minority-owned enterprises, to get them up and running again.

It is entrepreneurship that creates jobs and opportunity. It is entrepreneurship that helps break the cycle of poverty, and we will take the side of entrepreneurs as they lead the economic revival of the Gulf region.

I propose the creation of worker recovery accounts to help those evacuees who need extra help finding work. Under this plan, the federal government would provide accounts of up to $5,000 which these evacuees could draw upon for job training and education to help them get a good job ... and for child care expenses during their job search.

To help lower-income citizens in the hurricane region build new and better lives, I also propose that Congress pass an Urban Homesteading Act. Under this approach, we will identify property in the region owned by the federal government, and provide building sites to low-income citizens free of charge, through a lottery.

In return, they would pledge to build on the lot, with either a mortgage or help from a charitable organization like Habitat for Humanity. Home ownership is one of the great strengths of any community, and it must be a central part of our vision for the revival of this region.

September 18, 2005
By Mike Rappaport

The results so far suggest that the Christian Democrat coalition won a plurality, but not the majority necessary to govern. This after many years of the Social Democrats, who were far behind even two weeks ago. One reason for the result:

Reunification has had very clear political consequences for Germany. Without the eastern voters, the SPD would have clearly lost the past two elections.
For this and other insights, see this excellent site. (HT: Marginal Revolution).

By Tom Smith

Yahoo needs to get a clue from Google. Don't be evil. Just. Don't. Be. Evil. How hard is that? Short course on moral theory. When the secret police of a horrible tyranny comes to you and asks for help tracking down a brave, but solitary, weak and embattled soul who dares oppose them, don't help them. Don't be evil. Is that clear? Are you geniuses smart enough to get your arms around that? Can your algorithm sort that out? Are any of you Yahoo billionaires going to pony up to, say, hire a lawyer for the freedom fighter who is going to rot in a Chinese prison for ten years because of you, or help support his family, or will we just have to be impressed with how socially responsible you are because you drive a Prius? Unbelievable.

Family life update (thank you New York Times)
By Tom Smith

There's something wrong with the pool system. The pump seems fine, so I thought I should clean out the debris basket, a procedure which involves turning off the pump, unscrewing a giant plastic plug, and removing by hand the dog hair, dead amphibians, and small toys that have accumulated in the mesh. You remove the plug with a thingamajig, which was missing of course. Had it been used as a weapon in a kid battle and misplaced? Picked up by the tree trimmers when moving limbs? You just have to deal with these things with the Zen of home ownership. Pounding your head against the edge of the pool does no one any good. But just in case, I went inside to ask the ever capable young William -- an unusual 9 year old, to whom you can give instructions such as "go to the garage and get me the power drill and the 2 1/2 inch deck screws" and he will actually do exactly that -- if he knew where the thingamajig was.

He did not, but he and his brothers were eager to announce their find in the Men's Fashion section of the the New York Times. Here was an ad for Diesel Jeans which showed a young man or maybe woman, it was hard to tell, in jeans only, being whipped by two topless women, each in said jeans. With the whips, they were playing tic tac toe on the man-woman's back, having left the game enscribed there in quite realistic looking welts. Yet the man-woman was smiling; what jolly good fun. "That's just so gay!" said Patrick, in astonished disapproval. "It's not gay, it's just sick," corrected my lovely wife Jeanne. "Gay" seems to be a term of disapprobation for anything sexually suspicious in the school kid set. I decided I might be able to get the plug out with a pipe wrench and went back to the garage. "I guess now we can't leave the Times sitting around," I said to LWJ. "We have to move to a cabin in the woods," she said.

The magazine section's cover story in on Bono, the singer for the rock band U2, who spends his time campaigning for aid to Africa. While it was definitely an egregious puff piece, it was not as sickening as it might have been, though I admit I could not get all the way through it. It did cause me to wonder what is so distasteful about celebrity do-goodity. I decided it has to do with people who have their cake and eat it too. As the story makes clear, Bono lives high, with a house on the Riviera, the finest wines, and all of that. Yet he has time to tell the world more money must be sent to the governments of Africa. If the money went directly to feed the starving children, he would probably be correct, though his example would be more impressive if he gave of his financial assets as much as he does of his precious time. The annoying thing is that the advice he gives seems often enough to be wrong, as far as his mandate to increase foreign aid goes. About debt relief, I might agree with him; I'm not sure.

The article depicts the rich and powerful gathered at Davos, just enraptured by their own wonderfulness and good intentions. And yet, if you were just to announce to the Davos crowd that everyone who had a net worth of more than $100 million would be taxed $1 million each to wipe out the remaining amount due from African countries to the US, which Bono wanted Congress to do, you would have raised more than the amount needed, (about 450 million USD) or else caused a stampede for the doors that would have killed a lot of rich people. All those hangers-on would have been left with no one to hang on to. Rich people being rich is easy enough to ignore, their posing as moral giants begins to get annoying, but their doing so by advocating actively destructive policies begins to make me downright testy. Why can't they just settle for being rich and morally trivial and leave the rest of us alone?

The pipe wrench did work, I cleaned out the filter, but the creepy crawler was still very slugish. I did the wise thing and said to hell with it. Something was probably stuck in a pipe, quite possibly one of the frogs Patrick has been keeping in the pool. With luck, it will decompose and professionals will not have to be paid to get the obstruction out.

Postscript: Patrick advises he was not keeping the frogs in the pool; he released them from their tank, and they went to the pool on their own. He offers this link to a remarkable picture of a Komodo dragon eating a monkey. Also, he knew where the thingamajig was.

New Math
By Tom Smith

This looks cool.

I am one of those sad souls who loves math, but is abnormally untalented at it. In fact, after fifth grade I was put in a special summer school for retarded children because my math was so bad. It turned out to be really fun. I was the smartest kid in the class. We played with colored blocks which had all kinds of cool geometrical properties. As it turned out, I was not actually retarded, just abnormally stubborn, which evinced itself in my refusal to learn my times tables. This may have been related to my hatred of my sadistic fifth grade teacher, Sister Ambrosia, who was subsequently institutionalized. Yes, fifth grade was late to be learning times tables, but that is when my ignorance of them emerged.

By Tom Smith

UN update. What a charming bunch.

This is just my opinion mind -- but why not move the UN to some godforsaken spot in the Third World, and auction off the site to the highest bidder. Donald Trump could take it over. I see a retro-chic residential building with great views of the East River.

By Maimon Schwarzschild

Bob Denver, who played Maynard G. Krebs, died early this month. Maynard was the beatnik friend of Dobie Gillis, on the CBS sitcom that aired from 1959 to 1963. Meghan Daum writes:
The primordial hip nonconformist, (the "G," he insisted, stood for Walter), Maynard was thought by many at the time to be the nation's most famous beatnik, better known and perhaps more lovable than the likes of Kerouac, Ginsberg and Burroughs.

In what even today would be an unlikely set of traits in a sitcom character, Maynard was a jazz fan who talked frequently about Thelonious Monk and Dizzy Gillespie, played the bongos and ocarina and even sang scat. He wore a goatee, baggy clothes and invoked a kind of hipster parlance.

[T]he difference between Maynard's brand of slacker — and with his famous aversion to work, he was certainly among the first of the slackers — and today's acne-ridden layabout is that Maynard, for all his silliness, was inherently wise. His sense of justice arose directly out of his cultural interests, not in spite of them. His character was the result of what he dug rather than what he didn't dig. His love of Thelonious Monk didn't preclude his friendship with the straight-laced Dobie. A hippie, with all of his circumscribed cultural baggage, would probably have dismissed Dobie as an incorrigible square. Maynard was nuanced enough to have friends on both sides of the radio dial.

For that, we have Denver to thank. May Bob Denver, like, rest in peace.
And Scott Johnson, over at Powerline, has good memories of Maynard as well.

September 17, 2005
A new Times correction policy
By Tom Smith

The poor New York Times. Paul Krugman publishes an op-ed piece with falsehoods in it (concerning the 2000 election in Florida media sponsored "recounts") and Professor Krugman won't correct them. Well, I guess he did once, but that correction was itself incorrect. But there has not been an official, on the record, correction.

This is all rather complicated and inconvenient. I suggest that lawyer's tool, the broad disclaimer. Duh! Just print at the bottom of the op-ed page a statement along these lines.

It is the policy of the New York Times to allow our op-ed writers to make false statements, whether intentionally or unintentionally. Readers should not rely on any factual statements, claims, assertions or averments. General statements about what has happend in the past or may happen in the future should not be taken to be true.

Voila. Need for corrections eliminated.

September 16, 2005
Icky science alert
By Tom Smith

Possible lines:
I think I once kissed a girl like that.
Check your fish before eating.
Nature is a beautiful thing.

The State of Conservatism
By Mike Rappaport

David Broder has a new column discussing the Weekly Standard's 10th Anniversary Issue in which contributors discuss whether their views have changed in the last 10 years.

Some proudly said they had not wavered in their policy beliefs -- no matter what the consequences. Scholar Robert Kagan, a passionate advocate of war in Iraq, said the judgment he made in the mid-1990s was right -- and was shared by a large number of prominent Democrats, including Bill Clinton, Al Gore and Madeleine Albright: Get a new regime in Iraq.

But others clearly demonstrate second thoughts about what they have seen since the Republicans took over Congress in 1995 and the White House in 2001. Irwin M. Stelzer, the director of economic policy studies at the Hudson Institute, said that for him, the lesson is the yawning gap between the declaration of policy and its implementation. The right policy: tax cuts in the face of a recession, and long-term cuts to stimulate risk-taking and work. . . . But, oh, the implementation. When . . . additional revenues streamed into the Treasury's coffers, they were not used to restore balance to the federal budget. Instead, a spendthrift Congress and a veto-shy president proceeded to squander the proceeds.

And Andrew Ferguson, a senior editor of the Weekly Standard, voiced an even deeper disillusionment, arguing that the seeds of conservative decay were sown in the very moment Republicans took over Congress and the publication for which he works was born. As long as conservatism was simply striving for power, it was intellectually honest, he said. But, Ferguson said, "[t]he Republican takeover -- which is to say, political success -- dealt the mortal blow.
Significantly, I agree with all of these comments. I still support the Iraqi War of Liberation, but I believe Congress and the President have exercised power horribly concerning economic matters. In part, I think this is the corruption of power, but in part it is that Bush simply does not believe in small government. In the long run, the Medicare Prescription Drug plan will loom large in evaluating the Bush Presidency. It will be badge a shame for him, much like Ford's appointment of John Paul Stevens or the first Bush's appointment of David Souter.

September 15, 2005
By Mike Rappaport

One virtue of the Israeli withdrawel from Gaza is that it reveals Palestinian political society for what it is. No reasonable observer can place the blame on Israel for what is occurring in Gaza. One vice of the Israeli withdrawel is that much of the world will refuse to examine what has been revealed.

So far, at least, the Washington Post seems to have an accurate view:

ONLY DAYS after the final withdrawal of Israeli forces, the Gaza Strip is on the verge of anarchy. Despite promises to impose law and order, the Palestinian Authority has allowed mobs of looters and armed extremists to rampage through former Jewish settlements, where they have burned or bulldozed synagogues left standing by Israel. Many of the valuable greenhouses that, with the generous help of international donors, were saved for use by the Palestinians have been stripped of equipment as police stood by and watched. Despite a formal agreement with Israel to maintain security, Egypt has allowed thousands of Palestinians to illegally cross its border, including rifle-brandishing militants. If it is not quickly checked, the disorder will destroy Palestinian hopes that the Gaza transfer will become a step toward statehood.

September 14, 2005
Palestinian Looting
By Mike Rappaport

What a surprise! Talk about killing the goose that lays the golden eggs!

Victor Davis Hanson on Withdrawing from Gaza
By Mike Rappaport

I support the Israeli withdrawel from Gaza, but I must admit to feeling a bit awkward about that support. Many people I respect believe it is the wrong move.

I gain some solace from two commentators who I greatly respect who also support the withdrawel: Charles Krauthammer and more recently, Victor Davis Hanson. In an op ed in the Washington Times, which does not seem to be available any longer, Hanson makes the case. As always, he is persuasive. Here is an excerpt:

The Israeli military is crafting defensible borders, not unlike the old Roman decision to stay on its own side of the Rhine and Danube rivers. In Mr. Sharon's thinking, it no longer made sense to periodically send thousands of soldiers into Gaza to protect fewer than 10,000 Israeli civilians, when a demographic time bomb of too few Jews was ticking inside Israel proper.

Palestine as a sovereign state rather than a perpetually "occupied" territory also inherits the responsibility of all mature nations to police its own. So when Hamas and Co. press on with their killing -- most likely through rocket attacks over the fence -- they do so as representatives of a new Palestinian nation. In response, Israel can strike back without worrying about blowback on isolated vulnerable Israeli settlements. Mr. Sharon's withdrawal policy from Gaza is thus a critical first step of turning the struggle from an asymmetrical war of terror into a conventional standoff between delineated sovereign states. And that can only help a militarily superior Israel.
In addition to this analysis of the withdrawel, Hanson also notes the reveal preferences of many Palestinians as to whether they want to live under the Israeli rule:

While there probably won't be a single Jew in the new Palestinian nation, there are more than 1 million Arabs inside Israel. Even more bizarrely, more than 100,000 illegal aliens have left Arab lands to reside in the "Zionist entity." Politically correct Arabs will not even use the word "Israel," but tens of thousands of Arabs seem to want into it nonetheless.

September 13, 2005
Fixing global warming with technology
By Tom Smith


Second biggest bang
By Tom Smith

Here. So that's what gamma ray bursts are.

Getting rid of Holocaust Memorial Day
By Tom Smith

Here we see that some of Tony Blair's advisors want to get rid of the UK's "Holocaust Memorial Day" because it is said to make some Muslims feel excluded. It is a fair point. To balance things out, we might also want to consider establishing a day to commemorate people who kill other people for political reasons, because they hate them, or both. Especially if you throw in Africa and all of Asia, there are a lot of people out there who have engaged in genocidal killing, or quasi-genocidal killing, or at least some sort of violent hate crime. Are we to exclude them entirely from the human family? Do not they not also have feelings? How do you expect they feel on Holocaust Memorial Day, being villified and such? It's really not very fair. So if we had a, say, "Genocidal Murderers Day," we could have parades with Nazis, suicide bombers, Rwandans wielding machetes, Cambodians trodding on eyeglasses, folks dressed up in Mao jackets waving little red books, some stern Soviets, and yes, to be fair, some Colorado militia ruffians carrying Indian scalps. It could be a rather long parade. It would be downright multicultural.

September 12, 2005
Ramsey on Originalism
By Mike Rappaport

Our colleague, Mike Ramsey, implicitly presents an argument for originalism:

To stand with Scalia and the Framers, we must accept that many of our own preferences are not constitutionalized, and that we can make them law only by persuading our fellow citizens to persuade our elected officials to adopt them, by law or constitutional amendment; there is no shortcut through the Court. To stand with Breyer, we must place faith in the wisdom of five lawyers – smart lawyers, to be sure, but ones who are not elected, not accountable (since they have jobs for life), and usually not trained in the practicalities of governing.
In this essay, though, Ramsey does not argue for originalism, but merely that the choice between Scalia and Breyer is our only choice.

Interestingly, Ramsey talks about Madion's proposal for a council of revision:

At the Constitutional Convention in Philadelphia in 1787, James Madison proposed a "council of revision," composed of Supreme Court justices plus the president, to review the wisdom of laws and reject laws it found unjust. The Convention refused, because that seemed to give too much legislative power to the justices. Instead, it created the federal judicial system to enforce what the Constitution's Article VI called "supreme Law."
Even though the Framers rejected this proposal, the Supreme Court has exercised a power to reject laws it regards as unjust or bad policy, whether or not the Constitution prohibits them. But this is not the only example where Madison proposed a constitutional provision, the Framers rejected it, and then the Supreme Court adopted it, notwithstanding the Constitution. Madison had proposed that the Federal Government be given the power to enact all laws in cases when the states were not competent to legislate or where the harmony of the union was implicated. The Framers rejected this proposal on the grounds that this vague language did not sufficiently limit the powers of the federal government. Instead, they chose to enumerate specific federal powers, such as the power to raise armies or to regulate interstate commerce. Once again, though, the Supreme Court chose to relax these limitations so that now, and for the last 70 years (despite the so called Federalism Revolution), Congress has had the power to enact essentially any law it desires, despite the Constitution's limitations on its powers.

September 11, 2005
Tell Us Again
By Mike Rappaport

In contrast to Charles Krauthammmer's piece discussed below, consider this post by a liberal or leftist blogger over at Left2Right. Unbelieveable. It reads like a parody of left wing self-righteousness surrounded by conclusory arguments.

Krauthammer on New Orleans
By Mike Rappaport

Charles Krauthammer has another great column, this one on "Where to Point the Fingers." His attack on the left's reaction to this disaster is on the mark -- and devestating. The piece concludes:

Now is not the time for constructive suggestions. Now is the time for blame, recrimination and sheer astonishment. Mayor Ray Nagin has announced that, as bodies are still being found and as a public health catastrophe descends upon the city, he is sending 60 percent of his cops on city funds for a little R&R, mostly to Vegas hotels. Asked if it was appropriate to party in these circumstances, he responded: "New Orleans is a party town. Get over it."

September 10, 2005
Dread Not Dred Scott?
By Maimon Schwarzschild

Mark Graber, a government professor at the University of Maryland, comes out swinging in defence of the Dred Scott decision -- which you thought was indefensible -- in a fascinating article in the North Carolina Law Review (June 2005). "Dred Scott is criticized on virtually every ground for which judicial decisions are criticized", says Graber:
The Taney Court's ruling that freed slaves were not American citizens and that slavery could not be banned in American territories is savaged for deciding issues not necessary to resolve the dispute before the Court, for failing to consider the original meaning of the Constitution, for remaining too tethered to the the original meaning of the Constitution, for failing to adhere to the plain meaning of the Constitution, for woodenly adhering to the plain meaning of the Constitution, and for ignoring distinctive issues that Mrs [Dred] Scott might have raised. A brief survey of the appropriate journals will no doubt reveal a scholarly consensus that [Chief Justice] Taney's penmanship in Dred Scott is the worst ever exhibited in a judicial opinion.
Graber argues that the Dred Scott decision was not the outrage that made the Civil War inevitable. On the contrary, Dred Scott enunciated a position that "moderate" (i.e. anti-secession) southern Democrats and northern Democrats (e.g. Stephen Douglas) could and did accept: and such Democrats were well positioned to hold power as a unionist majority in the 1850s.

In fact, says Graber, these Democrats were the only political force who could hold the country together and avoid civil war as the 1850s drew to a close: at the cost, of course, of continuing to have slavery in the United States. They were the "moderates" -- and at least for a time, a majority -- as against the southern secessionist "fire-eaters" and the northern abolitionists: extremists whom no one could hope to reconcile.

Dred Scott didn't break up the Democrats: they all accepted it. It was President Buchanan's support for the fraudulently-adopted pro-slavery Lecompton Constitution in Kansas, a territory whose majority was generally believed to be anti-slavery, that broke up the southern and northern Democrats. The (white) southerners wanted Kansas admitted as a slave state. This, unlike Dred Scott was too much for the northern Democrats to swallow. It was because of this that America's "moderate" pro-slavery majority now fractured. And thus Lincoln was elected... and the rest was history.

Is Mark Graber a pro-slavery political science professor? Hardly. He actually wants to support judicial activism, a completely conventional thing to favour in today's leftish professoriate. But Graber argues for it here in a rollickingly unconventional way. Graber says that Dred Scott is an example of judicial activism achieving a centrist compromise, at a time when the elected branches -- President and Congress -- were polarised to the extremes. Today, too, says Graber, the parties are polarised, and the Supreme Court is better than the politicians at coming to sensible, centrist compromises about abortion, affirmative action, gay marriage, and so forth.

I'm sceptical about the analogy. The anti-abolitionist but pro-unionist Democrats may have been a majority in the 1850s. Today's judicial "compromises" in favour of abortion, affirmative action, etc are more to the taste of a liberal-leaning minority -- albeit a majority, sometimes practically a unanimous one, in the newsrooms and among college faculty.

But the story that Graber tells about American politics and law in the 1850s is fascinating. Graber's article is well-documented, and it seems plausible to me. If he is right, of course, it raises the moral question of how to think about such a thing as a "moderate" pro-slavery compromise. That was the sort of compromise that the Taney Court and Dred Scott, on Graber's account, were offering.

Mark Graber's article is not online, alas. It's in the North Carolina Law Review, volume 83, page 1229 (June 2005). Put it on your list to read when (or if) you tear yourself away from TheRightCoast for a library break.

September 09, 2005
Jews: Russian and Republican
By Mike Rappaport

The Wall Street Journal has a story on Russian Jewish immigrants in Boston, who are challenging the liberal orthodoxy of Jews from Boston. While we at the Right Coast don't find Jews who vote Republican to be all that unusual, the Jewish Community of Boston does. Here is an excerpt:

Larry Lowenthal is executive director of the Boston branch of the American Jewish Committee. To judge by his public statements and writings, Mr. Lowenthal's idea of a faithful Jew is someone who opposes the nomination of Judge John Roberts to the U.S. Supreme Court, supports gay rights, abortion and euthanasia, and demands a strong separation of church and state. After all, as Mr. Lowenthal concluded approvingly in a July op-ed for the Jewish Advocate, Jews are "the most liberal" and "the least religious people in America."

Imagine his consternation when an avalanche of emails from Russian Jews began to pour in to the Web site of the Jewish Russian Telegraph, a daily blog, in response to his article. About 100 people wrote to say that Mr. Lowenthal needed to stop making "outrageous statements" on behalf of people whom he doesn't represent.

Alex Koifman, who arrived in the U.S. from Belarus in 1978, and whom Mr. Lowenthal trained for his position as a board member at the Boston AJC, criticized his old teacher for overstepping his bounds, saying: "Since when are these concerns [abortion, gay rights, and church-state separation] concerns that are specific to the Jewish community? These are the Left's concerns."

Book Recommendation: An Empire of Wealth
By Mike Rappaport

For several years, I had been looking for a good economic history of the United States. I had tried many of the textbooks, but alas they were quite dull and sometimes organized in awkward ways.

My search has ended with John Steele Gordon's new book, An Empire of Wealth: The Epic History of American Economic Power. The book is beautifully written, and moves along at a brisk, but not superficial pace. When I read books, I have a hard time finishing them. I usually put them down for a time, and it is only with the good ones, that I eventually pick them up and finish them.

Gordon's book was so good and readable that I never put it down. In fact, I started reading it, after I needed a break from Tom Wolfe's I Am Charlotte Simmons, which I thought was quite a good book. When an economic history keeps your attention more than a Tom Wolfe novel, that is saying something. (Hopefully, it is saying something about the books, but I recognize it could be saying something about me.)

Gordon has an interesting take on economics. He clearly favors markets and businesses, and there is plenty in this book for supporters of free markets. Yet, Gordon is also sympathetic to big government, starting with Hamilton's economic agenda (which makes some sense) and even extending to much of the New Deal (which makes far less sense). Still, this questionable judgment does not really diminish the value or fun from this book.

Oil for Food
By Mike Rappaport

The Wall Street Journal explains the nature and significance of the Scandal.

September 08, 2005
New and really disgusting hope for asthma sufferers
By Tom Smith

Icky science marches on.

Oh Dear
By Tom Smith

You mean, it's not Bush's fault? Not to jump to conclusions, but to me it looks like major failures at city and state levels. In fact, I'm not sure it's even right to say NO and Louisiana have govenments in the normal sense. If you are in a big classroom, and everybody is just fighting, selling drugs, doing whatever, is the guy at the front really a "teacher"?

But the NYT treatment of "Governor" Blanco is unbelievably tender, a la, "some critics have tentatively suggested that perhaps she might have considered requesting aid somewhat sooner, in the event that the worst predictions proved truer than initially anticipated by the most pessimistic blah blah blah . . . " The Times just ain't rat.

September 07, 2005
By Mike Rappaport

Tyler Cowan reports: "Virtually all 500,000 of the world’s thoroughbred racehorses are descended from 28 ancestors, born in the 18th and 19th centuries, according to a new genetic study. And up to 95% of male thoroughbreds can be traced back to just one stallion."

Same-Sex Marriage and Democracy
By Mike Rappaport

It is amazing how anti-democratic the movement for same sex marriage is. In various states, including Massachusetts, the measure only had a chance of being implemented by the courts, against the will of the legislature. Now, in California, the legislature has finally passed a same sex marriage bill, which the Governor has not yet decided whether to sign. But this apparently democratic decision violates a ballot measure that Californians voted for "overwhelmingly in 2000 that defined marriage as between a man and a woman." Clearly, same sex marriage is a measure that is supported by elites, but not by the common person. Over time, though, one would expect that the views of the elites to spread.

Update: Ethan Leib argues that the legislative action is not anti-democratic, but I am not buying: That a ballot measure is simple and therefore easy for voters to understand, and was enacted five years ago, do not constitute arguments against its democratic nature.

Are there no limits to human depravity?
By Tom Smith


Yahoo hosts phishing sites
By Tom Smith

It's nice to know Yahoo! is doing what it can to bilk widows and orphans out of their few remaining pennies.

September 06, 2005
New Orleans caused by our lack of faith
By Tom Smith

Thanks to Paul Krugman, we are learning the true cause of the horrible events in New Orleans. It is not rain, or wind, or water. It is lack of faith. You heard me, brothers and sisters. It is you. It is me. It is deep in our hearts, our lack. Our lack. of. FAITH! Faith in what? Why in government of course. If only we had believed, and believed in time. If only we had not questioned, and argued, and bitten the hand that feeds us. Then government would have reached down, like the loving daddy it is, and protected us from those awful waves and those terrifyin' winds . . .

Objective Journalism
By Mike Rappaport

John Leo notes how the MSM behaves as arm of the Democrats:

On August 6, as her 15 minutes of fame was just beginning, Cindy Sheehan used an odd term in a TV interview with Mark Knoller of CBS. She referred to the foreign insurgents and terrorists in Iraq as “freedom fighters.” Knoller cut those words out of his report, he told me, because he “really wasn’t interested.” He should have left them in. In fact, alarm bells should have rung in his brain. First of all, it’s startling that an antiwar mother would talk that way about people who blow up children and who may have killed her own son. Second, “freedom fighters” in this context is the telltale lingo of the hard, anti-American left. When the grieving mother starts talking that way, it’s news.

Knoller recalls that other reporters on the scene were watching his interview that day in Texas, but apparently they weren’t any more interested in Sheehan’s little linguistic adventure than he was. Apparently none bothered to report it. The “freedom fighter” remark reached the public only because an antiwar group, Veterans for Peace, filmed the CBS interview. It was picked up by an anti-Cindy Sheehan website,, where bloggers and conservative commentators noticed and circulated it.

September 05, 2005
This is what I was trying to say
By Tom Smith

Steyn is right again.

Sorry to be the one to mention this, but as long as we are on the topic . . . if there are sleeper cells in the US with anything big and nasty to deploy, now would be the time to do it.

Check out the video here of cops looting.

Blanco should probably be sentenced to at least five days in a fetid cell with no food or water. But why didn't Bush federalize the Guard on, oh, Wednesday?

In the midst of tragedy, laughter . . .
By Tom Smith

Sean Penn goes to NO and makes more of a fool of himself than you would have thought possible, even though you know he is a complete idiot. Click through to the photo. For those of you who are rushing to NO to help--probably best to leave your entourage at home.

And the weird thing is, he really is an immensely talented actor; he really is. As a final act of generosity, I think he should leave his brain to science, and perhaps settle once and for all whether there is some kind of biological conflict between being a good actor and your brain working OK in other respects.

Smaller penises discovered in Canada
By Tom Smith

Not good news.

Start taking Vitamin E? LWJ says no, the human studies show negative results. We are not mice, at least many of us are not.

Religious meditation works better than secular meditation. God agrees.

And if you disobey it, it gives you an electric shock.

Those darn parasites.

Robotic space penguins. Really.

September 04, 2005
The Two Rehnquists
By Mike Rappaport

Like many, I believe there were two Rehnquists. The young firebreather who did much to energize conservative jurisprudence. And then the Chief, who was moderate and pragmatic, who voted to sustain Miranda, after years of criticizing it, because (in my view) he believed overruling it would hurt the Court and conservatives.

These two Rehnquists are illustrated by two of his opinions. First, his majority opinion in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Statute on extremely weak grounds. It overturned 60 years of precedent without the slightest justification. It introduced a standardless balancing test, also without any good reason. Had Rehnquist felt he needed to uphold the statute, the opinion could have been written more narrowly and more persuasively. In my view, it is one of the worst opinions of the twentieth century.

But there is also the young Rehnquist, who wrote the dissent in Steelworkers v. Weber, the case which transformed Title VII from a law that prohibited racial discrimination to one that allowed such discrimination for certain races. Here is the beginning of that opinion:

In a very real sense, the Court's opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court's opinion borrows, perhaps subconsciously, at least one idea. Orwell describes in his book a governmental official of Oceania, one of the three great world powers, denouncing the current enemy, Eurasia, to an assembled crowd:

"It was almost impossible to listen to him without being first convinced and then maddened. . . . The speech had been proceeding for perhaps twenty minutes when a messenger hurried onto the platform and a scrap of paper was slipped into the speaker's hand. He unrolled and read it without pausing in his speech. Nothing altered in his voice or manner, or in the content of what he was saying, but suddenly the names were different. Without words said, a wave of understanding rippled through the crowd. Oceania was at war with Eastasia! . . . The banners and posters with which the square was decorated were all wrong! . . .

"[T]he speaker had switched from one line to the other actually in mid-sentence, not only without a pause, but without even breaking the syntax." G. Orwell, Nineteen Eighty-Four 181-182 (1949).

Today's decision represents an equally dramatic and equally unremarked switch in this Court's interpretation of Title VII. The operative sections of Title VII prohibit racial discrimination in employment simpliciter. Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates, see infra, at 231-251, this language prohibits a covered employer from considering race when making an employment decision, whether the race be black or white. Several years ago, however, a United States District Court held that "the dismissal of white employees charged with misappropriating company property while not dismissing a similarly charged Negro employee does not raise a claim upon which Title VII relief may be granted." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278 (1976). This Court unanimously reversed, concluding from the "uncontradicted legislative history" that "Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes . . . ." Id., at 280. We have never wavered in our understanding that Title VII "prohibits all racial discrimination in employment, without exception for any group of particular employees." Id., at 283

Today, however, the Court behaves much like the Orwellian speaker earlier described, as if it had been handed a note indicating that Title VII would lead to a result unacceptable to the Court if interpreted here as it was in our prior decisions. Accordingly, without even a break in syntax, the Court rejects "a literal construction of 703 (a)" in favor of newly discovered "legislative history," which leads it to a conclusion directly contrary to that compelled by the "uncontradicted legislative history" unearthed in McDonald and our other prior decisions. Now we are told that the legislative history of Title VII shows that employers are free to discriminate on the basis of race: an employer may, in the Court's words, "trammel the interests of the white employees" in favor of black employees in order to eliminate "racial imbalance." Ante, at 208. Our earlier interpretations of Title VII, like the banners and posters decorating the square in Oceania, were all wrong.

Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, "uncontradicted" legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions. It may be that one or more of the principal sponsors of Title VII would have preferred to see a provision allowing preferential treatment of minorities written into the bill. Such a provision, however, would have to have been expressly or impliedly excepted from Title VII's explicit prohibition on all racial discrimination in employment. There is no such exception in the Act. And a reading of the legislative debates concerning Title VII, in which proponents and opponents alike uniformly denounced discrimination in favor of, as well as discrimination against, Negroes, demonstrates clearly that any legislator harboring an unspoken desire for such a provision could not possibly have succeeded in enacting it into law.
It is the young Rehnquist that I shall miss.

The Underrated Justice?
By Mike Rappaport

Orin Kerr writes:

Rehnquist was probably the most underrated Justice of the last few decades. He was a brilliant man, but he wasn't showy. His opinions tended to be short, spare and minimalist; they answered the question presented and little more. Especially as Chief, Rehnquist didn't view legal opinions as opportunities to make grand jurisprudential statements. Rehnquist was very much a legal realist. He knew that the Court wasn't likely to be bound by grand jurisprudential statements expressed in prior opinions, so he figured there wasn't much point in making those statements.
Perhaps, but here is my question. How do we know that Rehnquist was a good or great justice (which seems to follow from saying he was underrated) if he wrote spare opinions and was a realist? What makes him good? He voted the right way? Since he does not justify his opinions very well, and apparently was unwilling to live with the principles in the opinions (being a realist), what is so good about him?

I am not denying he was a good justice -- but see below -- but simply asking what is the basis of Orin's view.

Violating the 11th commandment
By Tom Smith

Which is, you may recall, "thou shall not criticize a fellow Republican." I always vote Republican, except when I vote Libertarian, and I worked in the Reagan White House, though technically I was not a political appointee. But I don't see any reason to pull punches on the federal response to the Katrina disaster. I'm reading as much as most people, and I understand that the causes of the failures are complex. But step one is to recognize a failure when you see it. If you don't end up getting off the beaches, or whatever the appropriate military analogy is, all the excuses in the world do nobody any good. It seems to me Newt got it exactly right, as he often does, when he said it is hard to believe we are prepared for a surprize terrorist attack, when we were obviously so ill prepared for a storm that gave us days of warning. My working hypothesis is that our disaster response model assumes a vigorous and skilled response by state and local government, with federal backup, and that model is wildly inappropriate for many parts of the US, but especially the Gulf coast. I sure would not want to rely on San Diego local government for relief, and last year's Cedar Fire shows why. I did get some valuable psychological advice when the operator told me to trust my feelings on the question of whether to evacuate or not.

Anyway, this is an example of defenses of W on the blogosphere. I don't really object to it, and I suppose somebody has to do the work of defending Bush against nutty left wing attacks, such as his not caring about black people. But more important is seeing the evidence before our eyes that our disaster response capabilities have been revealed to be woefully not up to the task. We need clearer lines of authority, more expansive emergency powers, better follow through on preparedness, better civilian defense, especially in vulnerable areas (like Southern California). We need this, whichever political party it helps or hurts.

Off with their heads
By Tom Smith

This seems about right to me. There are a lot of political opportunists trying to score points against Bush in the wake of Katrina, but that should not obscure the fact that the response of the federal government to this disaster was grotesquely inadequate and, certainly to all appearences, utterly incompetent. Four years and billions of dollars on homeland defense does not seem to have been terribly well spent. You can go here; read and weep. I know the city government of NO is a dead loss. Good lord, buses left in parking lots instead of used in evacuations. But then you have the National guard saying they can't get into the city while Walmart manages to bring in truckloads of food and water. The state government of Louisiana appears criminally incompetent. They may have even stood in the way of some federal efforts to help.

Now is not the time for it, but there needs to be a very thorough investigation of this disaster after the disaster. People need to be fired (even though some of them deserve to be shot). There may be a need for new federal legislation that will give clear authority to the feds to step in when the city and state cannot or will not respond adequately to the disaster.

THIS is distrubing. Federal officials should not have to ask state approval to federalize the response, when things get as bad as they were. The Post makes it sound as if the La. state government was a major bottleneck.

September 03, 2005
Roots of NO chaos
By Tom Smith


Chief Justice Rehnquist Dies
By Gail Heriot

Chief Justice William Rehnquist died this evening. The New York Times report is here.