Thoughts from
San Diego on Law, Politics, and Culture

 
Please ignore those angry Jews behind the curtain
By Tom Smith

Am I understanding this correctly? Columbia University released its official report "Towards a Theory of Why Professors Who Just Happen to Hate Jews Are Not That Bad" (or whatever they are calling it) to the New York Times, on the condition that the Times not talk to the students who lodged the complaints against the professors, and the New York Times agreed? I mean, I know they usually only tell one side of the story, but do they want to do so by contract? I really think readers have the right to rely on the Times to tell only one side of the story out of ideological bias and laziness, not on purpose.
posted by thomas at 3/31/2005 07:28:00 PM

 
Authors of Misleading Bankruptcy Study Have an Unusual Perspective on Rent Control Too
By Gail Heriot

Remember the bankruptcy study I wrote about in the National Review Online back in February? It made the front page in newspapers all across the country in early February with headlines like "Medical Bills Blamed in Half of Bankruptcies" and "Medical Bills Cause About Half of Bankruptcies, Study Finds." In early March, it made the rounds again, this time as fodder for op-eds in the New York Times, the Washington Post, and other newspapers urging rejection of the bankruptcy bill. The flaws in the study, however, are so numerous and glaring that I couldn't cover them all in the NRO essay. Reading it will only give you a taste.

I learned today that this was not the first time lead author David Himmelstein and co-author Steffie Woolhandler, both Harvard University associate clinical professors of medicine, weighed in with an unusual medical perspective on a hotly contested political issue. In 1996, when Massachusetts was considering abolishing rent control, Himmelstein and Woolhandler protested with the argument that (as Woolhandler put it), "If rent control vanishes, dozens will die." Noting that stress and social isolation can and sometimes do result in heart attack and death, she stated, "One-third of our heart attack patients at Cambridge Hospital live in rent-controlled apartments. By allowing landlords to force them out, the governor and state Legislature are implementing the death penalty--a social policy sure to kill."

Only heart attacks by rent-subsidized tenants were considered in this curious analysis. One could, of course, spin out similar tales of heart attacks by landlords who are unable to make ends meet because they can't charge fair market rents or of would-be tenants falling ill when they can't find an apartment at all, because nobody is willing to build apartments buildings that will only be rent controlled when completed. But evidently the good doctors were not inclined to go that far.

My friend Jeff Jacoby of the Boston Globe had this to say at the time:

"Somehow, in all the months that the rent-control debate hissed and billowed in Massachusetts, it never occurred to me that the best way to shed light on the issue was to talk about killing. Limited as I am, I had imagined that [the issue] was about the right of property owners to charge fair-market rents vs. the desire of tenants to live in subsidized apartments.... If only conservatives could be as sensitive ... as Drs. Woolhandler and Himmelstein. Then they would realize how massive the death toll can be when liberals don't get their way."

I can't link you to Jeff's column or the Boston Globe story, since they are from 1996. They are on Lexis/Nexis. Instead, I will link you to one of Jeff's more recent columns on socialized medicine. Himmelstein and Woolhandler are co-founders of Physicians for a National Health Care Program, which advocates a single-payer system as the "only solution to solving the United States' many health care problems," so it's on topic.
posted by Gail at 3/31/2005 05:22:00 PM

 
Michael Schiavo in Hell (a play in one paragraph)
By Tom Smith

MS: Where am I? Gosh it is so hot here!
Man with No Eyebrows: But I think you will agree it is a very dry heat.
MS: Dry! I'll say! I'm so thirsty! I don't think I've ever been so thirsty!
MNE: Just you wait.
MS: What?
MNE: You said you were thirsty?
MS: So thirsty . . .
MNE: Would you like some nice, cool water?
MS: Please!
MNE: Let me just check outside. (Goes to door.) Why, how curious. There are hundreds of people out here trying to bring you water. Would you like a cup?
MS: Oh yes!
MNE: Cold water or warm?
MS: Cold! I don't care!
MNE: You know, I think we actually have a procedure to determine whether I can give you any water. I don't think I'm permitted to give you water just because you're thirsty! We have rules, you know.
MS: Rules?
MNE: Oh, yes. Rules and rules.
MS: Well, who do I have to ask?
MNE: Oh, judges. We have lots of judges here. You may recognize some of them.
MS: I don't have time for that!
MNE: Trust me. You do.
MS: All I want is some water, for Christ's sake!
MNE: (Wincing) Please don't swear.
(Years later . . . )
MS: Water. Water. I'm so thristy . . .
MNE: Oh, look! A package! It seems to be a crate of chilled Evian water sent by Terri and her parents. Do you remember them?
MS: Water? Water! Water!
MNE: I would let you have some, but that would violate the temporary restraining order issued before the 99th interlocutory appeal to the 666th Circuit. If there's one thing we don't permit around here, it's contempt of court. (Sipping.) Mmmmm. I don' t really prefer Evian. I think it tastes a little soapy or something. Still, it is nice and cold.
MS: Water! Huhnnnnnhuuuhhh!
MNE: What are you saying, Michael? You seem a little inarticulate. Well, I suppose I know what you really want. You really want to follow the law, right? I knew it. And believe me, just as soon as I am permitted to do so, I will give you a nice big gulp of water, if there's any left, that is! Alas, I must toddle. I must go to visit your attorney. He's right next door, you know!
posted by thomas at 3/31/2005 10:41:00 AM

 
Today Should Be Proclaimed Charles Whittaker Day
By Gail Heriot

Who's your favorite Supreme Court Justice in history? John Marshall probably has a pretty large following. So does Oliver Wendell Holmes. And both John Marshall Harlans.

My sentimental favorite is Charles Whittaker--an Eisenhower appointee whose opinions are now mostly forgotten. Nobody ever accused him of being one of the Court's leading lights.

I love him for what he said on March 31, 1962, the day he resigned. Whittaker found the job exhausting, physically and emotionally. He said that he just wasn’t sure he had the talent necessary to do it well. He wanted to give somebody else a chance.

You've got to love him too. How many Supreme Court justices have not really had all the talents the job requires? Darn near all of the them. But, unlike the rest, Charles Whittaker knew it.

Here’s to you, Mr. Justice Whittaker. You had at least one of the important talents necessary for a good judge: You were a modest man.
posted by Gail at 3/31/2005 12:07:00 AM

 
Pope would not want to be kept alive, Michael Schiavo says
By Tom Smith

(MSMBS) March 30, 2005, Nitwater, Fla. Michael Schiavo surprised the international community today with his claim that John Paul II, Pontifex Maximus and Vicar of Christ on Earth, told him at an Everglades cook-out and beer party that he would not want to be kept alive by artificial means.

"He's a regular guy," claimed Schiavo. "He told me feeding tubes and all that [stuff] was not for him. Just give him a shot of vodka and hold a silk pillow over his face--that's what he wanted."

Asked if anyone else had heard his conversation with the Pontiff, Schiavo claimed his sister in law and his great aunt Sally "Bubba" Ridiculio had also heard the conversation. Schiavo was unable to remember the exact date of the conversation, however, he said "it wouldn't matter, because it was a secret trip anyway." Schiavo added the Pope did not want "one of those expensive Catholic funerals." "He just wanted to be cremated and have the money he saved invested in once-in-a-lifetime opportunity I explained to him."

A Vatican spokesman who insisted on anonymity would only state that the claim is what one would expect from a "podex maximus" such as Schiavo, but refused to explain further. Reached in her hospice, Mrs. Terri Schiavo said "water . . . "
posted by thomas at 3/30/2005 11:00:00 AM

 
Quantum difference engine
By Tom Smith

If this doesn't get a link from Glen, there is no justice. This month's Scientific American is reporting that some nanotech physics types thinks nano-wires may be used to construct switches for use in quantum computers. This would actually be a mechanical quantum computer. The non-technical explanation is that the wires are so small that when you twist them, they, uh, do some quantum mechanical thing that, um, acts like a quantum switch. Whether it works or not, it certainly has applications to science fiction.
posted by thomas at 3/30/2005 10:00:00 AM

 
Time for bed
By Tom Smith

I would say more about this, but I'm too sleepy.
posted by thomas at 3/29/2005 06:11:00 PM

 
The Switch in Time that Saved Nine
By Gail Heriot

Today is the anniversary of the 1937 decision in West Coast Hotel v. Parrish and Justice Owen Roberts' famous "switch in time that saved nine."

Some background for non-lawyers (and forgetful lawyers):

The Constitution doesn’t say how many justices the Supreme Court must have. So when Franklin Roosevelt proposed that Congress increase the number of justices on the Court, he wasn’t proposing anything unconstitutional. He was, however, fighting a tradition. The Supreme Court had had nine since 1869 and prior efforts to change that had not met with success.

FDR's motive was transparently political. He was seeking some way around a Court that had held much of his New Deal to be unconstitutional--often in 5-4 decisions. He proposed adding a new justice for every sitting justice over the age of 70--something to help these poor fellows out with their crushing work load. Before he could carry out his threat, however, Justice Owen Roberts, in a move forever dubbed as the switch in time that saved nine, dramatically came ‘round to FDR’s way of thinking. The court was then 5-4 in FDR’s favor.

If Roberts was intimidated, he probably shouldn't have been; the court-packing scheme was opposed by most of the public and most members of Congress. But when the proposal failed in the Senate on July 22, 1937, I doubt FDR shed any tears. He'd already won the war.

West Coast Hotel itself concerned the constitutionality of minimum wage laws.
posted by Gail at 3/29/2005 05:56:00 PM

 
Arnie
By Tom Smith

There are so many reasons to love Ahnold. Including when he said (I quote roughly) "to drive my enemies before me, and hear da lamentations of da women."
posted by thomas at 3/29/2005 09:17:00 AM

 
Terri Schaivo would not have wanted Catholic funeral, says husband, remembering conversation from some time or other
By Tom Smith

This tells you what you need to know about Michael Schiavo. His siblings' testimony that Terri said she would not want to be kept alive by machines seems doubtful, but who knows. What is utterly implausible is that anyone who was even casually Catholic would not want a Catholic burial. I gather Terri was a fairly serious Catholic. The only plausible explanation for not giving her one is that that is more convenient for Michael, notwithstanding the profound emotional pain it inflicts on her parents. Not giving a Catholic a Catholic funeral is roughly equivalent to chopping off of Roman's head so there is no mouth to put the coin in, or leaving a Greek to decay on the battlefield or gouging out the eyes of an American Indian. You just don't cremate a Catholic woman and give her a non-Catholic burial, unless she has entirely rejected the faith of her birth, or unless you don't give a damn about what she would have wanted. Michael probably knows that. And doing that reflects on everything else he has done.

What an unbelievably selfish thing. Are we supposed to believe he needs to have Terri's ashes in his family plot, given the circumstances of her death? Is he going to have time to visit her grave given his current duties to his living wife and children? It would seem the just thing to do would be to console himself with his living family and let Terri's parents have their dead daughter. He can already get another wife. Oh that's right. He has. But maybe the guy is the heartless villian some say he is. To deprive Terri's parents of even a grave to visit would be the act of depraved man, acting out of a diseased hatred for his in-laws. It puts the lie to all the talk about how he was only trying to do what Terri wanted. It is all but impossible to believe Terri would not have wanted a Catholic funeral, so whose wishes are we worried about now? Maybe the right-to-die people would like to defend not caring about her wishes concerning a funeral, not the law of it, but the justice of it. It may be Michael wanted his wife to die, but does he really need to keep her corpse as well? Maybe we should start a fund drive so we could buy it from him. And maybe there should be an autopsy. Insisting on a cremation under the circumstances is more than a little bizarre.

Or maybe the ACLU has an opinion on this. I can hardly wait. They could deploy both their expertises as right to die slowly advocates and criminal defendant's lobby. There must be some kind of right not to have your dead wife autopsied just because how she got brain damaged is a little vague. Call it, the right to have one's wife cremated quickly, especially if her parents think you strangled her. I mean, what good is the right to cremate if you can't use it when you need it? And there's probably some sense in which it is just another sign of the coming fascist theocracy not to just dump her in hole somewhere. It's probably some kind of right to dispose of your wife's body as you want to. Perhaps one of those feminist issues.

Just one final opinion. The Democrats probably feel pretty smug about this, and we'll no doubt hear some nauseating comments about how Terri is finally at peace from those who were so eager to see her so. But this is not going to help them. For every New York Times reader who clucks about Ayatohla Delay, there are about three twice a year church goers who will have been thoroughly creeped out by the Dr. Death Democrats. The patently insincere efforts of Howard Dean et al to ingratiate themselves with religious Americans is not off to a very strong start.
posted by thomas at 3/27/2005 10:54:00 PM

 
Bad judge
By Tom Smith

I found this analysis by Hugh Hewitt pretty persuasive. It seems to me hyper-technical to say, as the 11th Circuit apparently did, and as Ann Althouse approves of their doing, that the statute Congrees passed gave federal courts jurisdiction to hear de novo any federal claims TS happened to have, without actually giving her any such claim, if she didn't already have one. Federal jurisdiction is a notoriously tough area (at least I am notorious for not knowing it), but I don't see how this reading makes the statute anything but a nullity-- something you should avoid in reading statutes. So, if the law was intended only to let federal claims be litigated on TS's behalf, why would you need a statute giving federal courts the jurisdiction to do that? Don't they already have jurisdiction over federal claims? On the other hand, if the idea was to let certain state law issues be relitigated de novo as federal issues, well, you would need a statute for that.

Even hard-core textualists would be disinclined to read a federal statute so that it made no new law, especially when the intent was pretty clearly to do something. It is one thing to say, as between doing two things, what the statute actually says, and what Congress seems to have intended, you have to do the former. It's quite another to say you have to do the former, even if your reading of the statute gives it no effect at all. I am also enough of a realist to think what happened here is that the Clinton-nominated judges on the 11th circuit found the TS statute and the way it was passed very distasteful, were out of sympathy with the underlying "pro-life" philosophy, and so were happy to find a reading of it that frustrated Congressional intent. Of course, it is at least as hard to know what is going on inside the brain of a federal judge as it is to know what is going on inside the brain of Terry Schaivo. But in Terry's defense, there is no reason to suspect she is deliberately doing the opposite of what her job is supposed to be.
posted by thomas at 3/27/2005 10:56:00 AM

 
Is a Faculty Rebellion Brewing at Columbia University?
By Gail Heriot

Here's what the New York Sun is reporting:

"A faculty rebellion is brewing at Columbia University against President Lee Bollinger over his handling of the university's investigation into the conduct of professors in the Middle East studies department.

Leading the way is a former provost of the university, Jonathan Cole, who in a speech on Tuesday night before a restive gathering of professors and students strongly suggested
that Mr. Bollinger wasn't doing enough to defend faculty members from accusations that they have intimidated Jewish students.

Speaking for almost an hour and drawing applause from the audience, which included some of the scholars under investigation, Mr. Cole said in no uncertain terms that Columbia is under attack by what he described as outside political forces.

When the content of a professor's views is under attack, Mr. Cole said, 'leaders of research universities must come to the professor's defense.'

He said the pressures bearing down on the university reminded him of the climate that
existed on American campuses a half-century ago during the McCarthy era.

'We are witnessing a rising tide of anti-intellectualism,' Mr. Cole said, calling the present situation at the university 'another era of intolerance and repression....'"

Read about it further here.

posted by Gail at 3/25/2005 01:46:00 PM

 
Maybe it is painless
By Tom Smith

This is just anecdotal, but it would be good to think dying of dehydration in Terri's circumstances would be painless. I had not heard the ketosis can simply suppress desire for food and water.
posted by thomas at 3/25/2005 07:57:00 AM

 
Rare wisdom
By Tom Smith

This is the wisest thing I've read on the Terri S affair. I do think some on the right, such as the lovely Anne Coulter (lovely but sometimes insane), are going off the track turning this into a judges gone wild issue. I think it better illustrates how an average judge can get things wrong, even if that is clear only in hindsight, and then those mistakes can ripple outward. In retrospect, it seems like it was a mistake to give Terri's guardianship to her husband, given the poisonous relationship between him and her parents. And the parents aren't faultless in this either, perhaps. But it is just too obvious that it is unsupportably cruel to her parents not to let them take custody of their helpless child at this point, given that they want her and her husband does not. People speculate about her husband's character, but his actions rather speak for themselves. He seems to be using his control over Terri's fate as a way to even the score with the in-laws he now hates. Or that looks like a plausible theory anyway. Something else not much commented on is what this tells us about laws like Florida's. Statutes which attempt to apply the last wishes of a now permanently incapacitated person seem deeply flawed. I don't think much of this sort of hypothetical autonomy reasoning. I mean, who cares, really, what Terri might have said about wanting or not wanting to be kept alive, especially if it wasn't in a considered way. Especially if the evidence is weak, it should be trumped by what is in the best interests of the person now. If that had been the law Florida judge Greer was applying, perhaps he would have made the parents guardians. Also, legislatures should not just favor spouses over parents by default in deciding who is to be a guardian. We don't live in a cleave to your husband or wife world anymore. Parents and blood siblings are much better choices, I would bet, for looking out for one's interests than spouses where the marriage has been brief and there are no children.

As to the politics, I am happy to let the Democrats hove to the line that Republicans irrationally favor life, are soft and sentimental about things like dying daughters, don't understand brain science and when people need to be put down, and use the terms person, baby, life, kill and wrong, far too freely. Yes, Kerry was scary for a while, but we have to learn to trust the Democrats on these things.
posted by thomas at 3/24/2005 09:42:00 PM

 
Science and Schaivo
By Tom Smith

This is interesting, and one of the few times I've linked to a left wing blog approvingly. It shows, apparently, an actual CAT scan of Terri's brain, with commentary from some anonymous PhD in neurophysiology. He says the damage to Terri's brain is so great and obvious that she could not be conscious in the sense of a reasoning, willing human being. My wife is an endocrinologist, dammit, not a neurologist, but I showed the image to her (without telling her anything except it was Terri's brain). Her reaction was "that's a very atrophied brain," and pointed out various features indicating that. She said she thought it very unlikely that someone with such a damaged brain could be conscious.

So that's actually a relief to me. But it doesn't go to the question of experiencing pain. Presumably someone could have lost their ability to engage in higher brain functions and still feel pain. I have observed reptiles in the wild and in captivity, and they certainly act like they feel pain. It still bothers me a great deal that the legislature and judiciary of Florida have managed to bring about a state of affairs in which a human being, however brain damaged she is, is made to die of thirst. If it were my daughter, I would probably put a pillow over her face, and hope God would understand, even if the state of Florida could not. (I understand the Church would not either.) These days, if you are stuck in the hospital or hospice with terminal cancer, and your doctors are sophisticated, they will give you enough morphine to control pain, even if that dims and turns out your lights for good. And that works for me. But as far as I know, Terri's not on a morphine drip or anything of the sort. I have read reports that doctors say she won't feel a thing, but I'm skeptical of that. I've also read that her wonderful husband has refused to let Terri be given morphine in the past, and I don't know whether to believe that either.
posted by thomas at 3/24/2005 06:09:00 PM

 
Biased doctor thinks Terri might be conscious
By Tom Smith

Perhaps the most disturbing thing about this story is the implication that a doctor who is publicly right-to-life cannot render a sound clinical judgment about Terri's neurological state. Professors at prestigious medical schools are quoted to the effect that, oh, he's a Christian, you know, so his judgment can't be trusted. Now there's a point. If a doctor is horrified at the idea of putting a living, conscious human being to death, you really have to doubt his scientific acumen. A true scientist would want to starve her to death, just to gather the data. The neurological exam took 90 minutes, but was not "complete," we are told. When was the last time a doctor took 90 minutes to examine you, for any reason? I went with my dad through a cancer diagnosis and chemotherapy, and no doctor ever spent 90 minutes with him, or 60. What an unbelievable crock. If a highly qualified neurologist spends 90 minutes with a patient and concludes there really might be somebody home, that is, by any remotely rational standard, a pretty good reason not kill the person by dehydration.

If she is there, make no mistake, there is a good chance she will experience an exquisitely painful death. It's not the sort of thing most people know about, but I can tell you among climbers, wilderness sorts, sailors and the like, it is well known that dying of thirst is one of the very worst ways to go. T.E. Lawrence ("of Arabia") knew of thing or two about thirst, and about suffering, and he describes dying of thirst in Seven Pillars of Wisdom as something feared greatly even by the Bedu, who were almost entirely impervious to pain. It is a very slow, very painful death to the conscious person. Dying of thirst is being tortured to death. It's no accident that the one thing Jesus complained about on the cross was thirst. People who keep dogs penned up until they die of thirst are quite rightly prosecuted for animal cruelty. I understand well how the Florida and federal courts got themselves into this mess, and why it would be very difficult even for a wise judge to extract himself from it. But the fact remains that the consequence may well be inflicting horrible and unnecessay pain on an innocent woman for no better reason than to satisfy the selfish motives of her former, in all but a technical sense, husband.

Peggy Noonan asks some of the right questions:

I do not understand the emotionalism of the pull-the-tube people. What is driving their engagement? Is it because they are compassionate, and their hearts bleed at the thought that Mrs. Schiavo suffers? But throughout this case no one has testified that she is in persistent pain, as those with terminal cancer are.

If they care so much about her pain, why are they unconcerned at the suffering caused her by the denial of food and water? And why do those who argue for Mrs. Schiavo's death employ language and imagery that is so violent and aggressive? The chairman of the Democratic National Committee calls Republicans "brain dead." Michael Schiavo, the husband, calls House Majority Leader Tom DeLay "a slithering snake."

Everyone who has written in defense of Mrs. Schiavo's right to live has received e-mail blasts full of attacks that appear to have been dictated by the unstable and typed by the unhinged. On Democratic Underground they crowed about having "kicked the sh-- out of the fascists." On Tuesday James Carville's face was swept with a sneer so convulsive you could see his gums as he damned the Republicans trying to help Mrs. Schiavo. It would have seemed demonic if he weren't a buffoon.

Why are they so committed to this woman's death?

They seem to have fallen half in love with death.

What does Terri Schiavo's life symbolize to them? What does the idea that she might continue to live suggest to them?

Why does this prospect so unnerve them? Again, if you think Terri Schiavo is a precious human gift of God, your passion is explicable. The passion of the pull-the-tube people is not.

I do not understand their certainty. I don't "know" that any degree of progress or healing is possible for Terri Schiavo; I only hope they are. We can't know, but we can "err on the side of life." How do the pro-death forces "know" there is no possibility of progress, healing, miracles? They seem to think they know. They seem to love the phrases they bandy about: "vegetative state," "brain dead," "liquefied cortex." . . .

There are passionate groups of women in America who decry spousal abuse, give beaten wives shelter, insist that a woman is not a husband's chattel. This is good work. Why are they not taking part in the fight for Terri Schiavo? Again, what explains their lack of passion on this? If Mrs. Schiavo dies, it will be because her husband, and only her husband, insists she wanted to, or would want to, or said she wanted to in a hypothetical conversation long ago. A thin reed on which to base the killing of a human being.

Peggy's right. In fact, I think the Atrios's and Carvilles of the world get a thrill out of the fact that by cheering on the killing of somebody, they can hurt the people they hate, those dreadful Christian conservatives, so much. This is not just about death, but about hate. Of course, they do go together. In fact, they could care less about Terri. What they care about is the chance to inflict a defeat on their enemies. They care about Terri even less than her "husband" apparently does. They could join her husband in asking "when is that bitch going to die?" When indeed. Maybe she's holding out for Easter. Though Good Friday would be appropriate.
posted by thomas at 3/24/2005 12:40:00 PM

 
More Joy of Chess
By Tom Smith

Pejmanesque has an interesting chess story here. To which I can add one from yesterday, when once again the Local Catholic Academy Chess Club, coached by me, met. Helping out was my Contracts student, Chris, who seems to be a strong player, certainly compared to me anyway, and also, I noticed, a nice way with kids. Quite a bit nicer than I am, I noticed. I made this observation to my lovely wife Jeanne. "He hasn't had to put up with them as long as you have." A good point. Though I love doing it of course. Though weird things happen. This is quite apart from the questions such as "Can the King move two spaces to get out of check?" When it was time to clean up yesterday, I told everyone to put away their own pieces, both to encourage responsibility and to make my life easier. I noticed everyone had put away their pieces except my son, Patrick. "Patrick!" I said in my habitually pleasant tone, "put away your pieces, NOW!"
"I can't," he said.
"What do you mean you can't. Just stop standing there and put them away! We need to get going!"
"I can't touch my pieces," he insisted. I was getting annoyed. Patrick is an extremely clever child and has gotten something of a reputation in the family unit for being very canny at avoiding chores.
"You can't touch them? Why not?!" I managed to say without shouting.
"Because Jason licked them!"
We have had many other infractions at the chess club, including fights, throwing of pieces, use of inappropriate language and merciless goading of persons losing games, but this is the first time we have had somebody lick chess pieces so as to inhibit another person from touching them. Apparently Patrick's friends have discovered that he will refuse to touch, let alone eat, anything that has somebody else's spit on it, a not entirely irrational disposition to have. I sighed and put them away myself. If I remember, I will wipe them down latter with a wipey.

BTW I am finding this series pretty good for me, the aspiring but basicly untalented chess player, of moderate to no ability.
posted by thomas at 3/24/2005 12:11:00 PM

 
Is Michael Schiavo Off Message?
By Gail Heriot

Is Michael Schiavo the true voice of Terri Schiavo? Or is he a man with an enormous conflict of interest? Or both? It doesn't look good for him if the reports about what he said on the Larry King Show are true: "We didn't know what Terri wanted, but this is what we want."
Update: This quote is all over the web and is mentioned in the WSJ Political Diary News Service, but I'm not convinced that it's fair. I've read the complete transcript now, and, upon reflection, it appears to me that he probably just misspoke and that he was trying to refer to his in-laws' views here and not his own. Referring to his in-laws, he said, "But this is not about them, it's about Terri. And I've also said that in court. We didn't know what Terri wanted, but this is what we want...." It's confusing perhaps, but to interpret the statement as a reference the Shiavo's own desire requires some reason to believe that he would suddenly refer to himself in the plural.

For fairness's sake, I should also state that the WSJ mention of Schiavo's statement was probably accurate news reporting regardless of how the statement should be interpreted. The WSJ story was about how certain left-of-center organizations were giving the Schiavo story distance because they felt that Michael Schiavo was contradicting himself and therefore didn't want to get too close.

Additional Update: Ah, I think I have it figured out. It's a transcript error. On the CNN Saturday Morning News on March 19th, they re-ran the clip of Michael Schiavo being interviewed by Larry King. This time the transcript reads: "But this is not about them, it's about Terri. And they have also said that in court. We didn't know what Terri wanted, but this is what we want." (Italics added). If this is the correct statement (and I suspect it is, since it makes more sense from Schiavo's standpoint), he is simply giving his take on his in-laws' position, not his own.
posted by Gail at 3/23/2005 10:18:00 AM

 
The Student Bill of Rights
By Gail Heriot

I was up at the Cal State-San Marcos campus this afternoon and listened to a well-attended debate on Senate Bill 5, affectionately and officially known as the "Student Bill of Rights." Among the debaters was State Senator Bill Morrow, who is sponsoring the bill.

I have very mixed feelings at this point. I tend to be uncomfortable when I hear about legislatures toying with the idea of exerting greater control over what happens in the classroom, even when it is done with a light hand as it is in Senate Bill 5. On the other hand, the number of faculty members who feel free to harangue their students on political issues (frequently in classes that have nothing to do with politics) is troubling, as is the breathtaking lack of ideological balance on many campuses. These problems are unlikely to disappear without prodding of some sort. The question is whether this (or something like it) is the right kind of prodding, and I guess I'll have to think about that.

I thought Morrow comported himself well (as did all the debaters on both sides of the issue). I was particularly impressed by his willingness to modify the bill in response to reasonable concerns (he specifically stated that he planned some modification of the declarations in Section 1 (a)(1)(D)). I've re-produced below the operative part of the bill. It's modeled after a proposal by Students for Academic Freedom, one of David Horowitz's organizations. If anyone wants to voice his or her opionion, send me an e-mail and I will send it on to Morrow.

By the way, for the benefit of those of you who are unfamiliar with California politics, I suspect there is little danger that this bill will pass any time soon. The state legislature is not just heavily Democratic; as a result of California's most recent re-districting scheme, political moderates in either party are rare birds, so cross-over votes from Democrats are unlikely. But things may change, and similar bills are being considered in other states, where they may have a better chance.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 66015.8 is added to the Education Code , to
read: 66015.8. (a) (1) The Legislature makes the following
declarations and findings with respect to public institutions of higher
education:

(A) The Legislature declares that the central purposes of the university
are the pursuit of truth, the discovery of new knowledge through scholarship and research, the study and reasoned criticism of intellectual and cultural traditions, the teaching and general development of students to help them become creative individuals and productive citizens of a pluralistic democracy, and the transmission of knowledge and learning to a society at large.

(B) The Legislature further declares that free inquiry and free speech
within the academic community are indispensable to the achievement of these goals, the freedoms to teach and to learn depend upon the creation of appropriate conditions and opportunities on the campus as a whole as well as in the classrooms and lecture halls, and these purposes reflect the values of pluralism, diversity, opportunity, critical intelligence, openness, and fairness that are the cornerstones of American society.

(C) The Legislature finds that academic freedom is most likely to thrive in an environment of intellectual diversity that protects and fosters independence of thought and speech, and that academic freedom protects the intellectual independence of professors, researchers, and students in the pursuit of knowledge and the expression of ideas from interference by legislators or authorities within theinstitution itself.

(D) The Legislature further declares that intellectual independence means the protection of students from the imposition of any orthodoxy of a political, religious, or ideological nature. To achieve the intellectual independence of students, teachers should not take unfair advantage of a student's immaturity by indoctrinating him or her with the teacher's own opinions before a student has had an opportunity fairly to examine other opinions upon the matters in question, and before a student has sufficient knowledge and ripeness of judgment to be entitled to form any definitive opinion of his or her own, and students should be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion.

(b) To secure the intellectual independence of students, and to protect the principles of intellectual diversity, the Regents of the University of California are requested to, and the Trustees of the California State University and the Board of Governors of the California Community Colleges are hereby directed to, develop guidelines and implement the following principles of the Student Bill of Rights:

(1) Students shall be graded solely on the basis of their reasoned answers and appropriate knowledge of the subjects and disciplines they study, not on the basis of their political or religious beliefs.

(2) Curricula and reading lists in the humanities and social sciences shall respect the uncertainty and unsettled character of all human knowledge in these areas, and provide students with dissenting sources and viewpoints. While teachers are and should be free to pursue their own findings and perspectives in presenting their views, they should consider and make their students aware of other viewpoints. Academic disciplines should welcome a diversity of approaches to unsettled questions.

(3) Exposing students to the spectrum of significant scholarly viewpoints on the subjects examined in their courses is a major responsibility of faculty. Faculty shall not use their courses or their positions for the purpose of political, ideological, religious, or anti-religious indoctrination.

(4) The selection of speakers, allocation of funds for speakers' programs, and other student activities shall observe the principles of academic freedom and promote intellectual pluralism.

(5) An environment conducive to the civil exchange of ideas being an essential component of a free university, the obstruction of invited campus speakers, the destruction of campus literature, or any other effort to obstruct this exchange shall not be tolerated.

posted by Gail at 3/23/2005 12:03:00 AM

 
Power corrupts, absolute power corrupts absolutely, and even a little power corrupts pretty darn well
By Tom Smith

Turns out family values is big bidness. I have been hearing things consistent with this coming out of DC for a while.

posted by thomas at 3/22/2005 08:18:00 PM

 
Steyn is right again
By Tom Smith

Mark gets it right again on killing the inconvenient and post-life culture in the West. Via American Digest.
posted by thomas at 3/22/2005 10:28:00 AM

 
When talent meets too much time
By Tom Smith

The Amazon review list as art form. Low art, but art. Warning:much of the humor, while funny, is in very poor taste.
posted by thomas at 3/22/2005 09:19:00 AM

 
A lovely little story
By Tom Smith

Wondering whether the judges might be missing what is going on behind the briefs in the Terri Schiavo case reminded me of this nice little incident from my childhood. My dad was a state court trial judge in Idaho and his district included a little town in the mountains called Idaho City. It was a mining town in pioneer days, with a probably well deserved reputation as a sink of iniquity. It is still nothing to write home about. It has a few souvenir shops, a hot springs pool, and a genuinely creepy pioneer cemetary that is haunted if anyplace is. My father was always pressing me and my siblings to accompany him on his junkets to hear motions or pleas in these places, in part of his ongoing campaign to raise lawyers, which was quite successful, as he produced one litigator, one federal judge, one prosecutor and one law professor. Anyway, that day he was hearing the guilty plea of this vile creature who had gunned down his wife one morning in a local bar restaurant general store. The Mrs. was apparently having her first drink of the day when hubby walked in with a big revolver (maybe a .45) and pumped one into her back. This of course in full view of the regulars in the joint. Idahoans being tough stock, she fell from the stool, but did not die, and crawled over to the frozen food section. So Wilbur or whatever he was called shot her a couple more times. The prosecutor then allowed as she was dead. My father questioned the defendant to make sure he understood what he was pleading to. Somehow my dad got the notion he might be trying to get smart and set up some sort of issue of appeal, which was touching, given that the defendant probably could not spell appeal, let alone create an appealable issue. Nobody asked him why he shot his wife; I suppose it wasn't necessary. But I wondered. After the proceeding, I was walking out of the courthouse, some sort of historic building, and I walked past the chain-link fence holding pen where our sharpshooter was being housed for the time being. He had struck a James Dean pose, and there was a very pretty 15 year old girl, in full flirt mode, obviously taken with our gun slingling hero. On the drive home I asked my dad if the slay-ee had a daughter and he said yes, a pretty 15 year old. The Idaho city James Dean was the step dad. I explained my hypothesis that pretty daughter was the causis belli between husband and wife that had ended so tragically or at least sordidly on the floor of the Idaho City saloon. My father agreed that it made sense. He sighed. Toward the end of his judicial career, he got really sick of violent crimes.

posted by thomas at 3/21/2005 08:13:00 PM

 
Catholics oppose death penalty; Eugene's shot at episcopacy declines further
By Tom Smith

More US Catholics oppose death penalty than ever before.

Which reminds me of a joke (yes, I stole it from Flight of the Phoenix -- but it bears repeating.)

A priest and a rabbi were watching a boxing match. One of the fighters stepped into the ring, swung his arms around to warm up, and then quickly crossed himself. The rabbi turned to the priest and said, "Father, what does that mean?" The priest said, "If he can't box, not a damn thing."
posted by thomas at 3/21/2005 07:59:00 PM

 
Terri Schiavo
By Tom Smith

I have not been following this controversy very closely, but you don't have to look at it very hard to sense something funky going on. I hope the federal legislation that would move the case to federal court does pass.

Here are some questions worth asking. Would Mr. Schaivo benefit from a life insurance policy if Terri dies? That certainly seems relevant. Given that he is for practical purposes married to another woman now, isn't it odd to allow him to exercise the legal powers of a husband over his incapacitated wife? Even if the Florida laws of guardianship technically allow this, it hardly seems equitable, especially if the parents stand ready to speak for Terri, and do not suffer a conflict of interest. On the other hand, if Terri's parents want her to be kept alive, are they prepared to pay for it, or do they want her husband to pay for her care? Something an independent court could do, and I hope would do, would be to inquire who is really, all facts and circumstances considered, in the best position to represent the interests of the comatose woman. It might be her parents, her husband, or a guardian ad litem.

On the politics of this, I think the Democrats are once again getting it way wrong. They may think they are standing up for the right to die with dignity, but it comes across as, oh boy! A vulnerable, compromised human non-person! Can we kill it?! Please?! Pretty please?! Planned parenthood also needs some remedial PR work. They really should want to avoid the whole Zis zing ees not human! Nine! Eeet must be liquidated! At vunce! schtick. I can't be the only person they are creeping out. If I were flacking for them, the first thing I would explain is that the slippery slope is a bad thing; you don't want to go down it. When people say, first you're killing fetuses, next you'll be killing people in comas, you should not reply, "yes, isn't it wonderful!" Ditto for the Democrats' line that the Republicans are interfering in a sacred family matter. When the blood relatives are for keeping the woman (brain-dead though she may be) alive, and the "family" consists of a "husband" who is living with his girlfriend and his children by her, allegedly on the proceeds of the malpractice settlement of his wife's case, your facts for not interfering with the "family's" decision are not too good. This matter just begs to be put in front of some non-hack, life tenure jurist. Maybe they have some in Florida.

This would all be so much easier if Janet Reno were still AG. We could just send in a SWAT team, ship Terri off to Cuba (where they would know what to do with her), and be done with it. I wonder how little what's-his-name is doing. Probably chopping cane for the fatherland, wondering what shoes would feel like.

Finally, I would like to go on record that, should I be in the hospital acting like a vegatable, before starving me to death, please offer me a stiff scotch. That might arouse me. If that doesn't work, my lovely wife Jeanne can decide what to do, unless she is living with some other guy, in which case all bets are off, especially if the guy is a dermatologist or some other over-compensated sort. I don't want to be starved to death. I hate dieting. If nobody has the stones to snuff me out, then they can just deal with me. I want to be cremated and my ashes scattered (if allowable under RC law), otherwise buried in a paper bag, in the mountains of central Idaho, northeast of McCall, close to the Payette River or one of its tributary streams. But please, nowhere near Florida.

MY RESPONSE to Steve Strum is, no, I don't generally favor forum shopping, but I think what seeems to be going on here, or might be, if you believe the rumors, is that a hinky state judge has got a bee in his bonnet, such that he is determined to pull the tubes on a woman who might actually be alive. Let's just say my view of the Florida state judiciary has not recovered from Election 2000. I'm not saying federal judges should be brought in every time a state judge appears to be making a hash of things. But I'm not going to get upset here, given that federal judges intervene to keep convicted killers alive all the time. And this is being done at the express command of Congress. This seems to me a case in which Congress can legitimately act.

As far as I know, Terry S. hasn't killed anybody. I suppose if she had, she'd be getting more support from the ACLU right now. In fact, maybe that's an angle. Put out a story that Terry actually once had a love child, but killed it, knowing that being unwanted, it would be better off dead. Presto, chango, she's sympathetic after all. BTW I read somewhere (and I'm too lazy to look for it now) that Terry S. has never even had a full neurological exam, with an MRI or a CAT scan. Can that be true? Good heavens, I took my son to get an MRI over the weekend because his knee hurts. Is Florida Canada or something? Apparently above when I refered to her as "brain dead," I was wrong. So if she's not brain dead, what is she? Would she feel pain being starved to death? It seems someone ought to weigh that against the oral testimony of her sorta husband that she would not want to be kept alive. I mean, really. You can't enforce an oral contract for more than $500 worth of widgets without a writing. You would think the mere "yup, that's what she said" of a former (in equity) husband would not be enough to terminate the spouse. And another thing. What are the feminists thinking on this one? O, right, I know. If this incovenient woman is not disposed of, that could somehow someday lead to some regulation of the sacred right of abortion. But, given that you can come up with, and any of us who went to college have heard it done, a feminist account of just about anything, how wearing socks is part of the patriarchal conspiracy or whatever, you would think that a husband trying to kill his wife in order to get the insurance money on her so he can carry on with another woman, would at least cross the mind of the average feminist as a plausible hypothesis. You would think you could say "Killing your wife is a feminist issue!" But no. It's all just,"next thing you know, they'll be trying to say we cain't kill fetuses!"

STILL more information here. This blog seems elaborately balanced. I don't pretend to know what the real story is here. But I do think the right to die people are creepy, and if it is not about money, then I don't see why Michael Schiavo is fighting so hard to have Terri killed. If there was some reason to think she was suffering, that would be different. But if his view is that she really is the mental equivalent of an eggplant, and her parents desparately want to keep caring for her, then what is the harm, besides financial, in allowing her to live? Reviewing the history of the litigation, though, I can see why Judge Whittemore (sp?) implied he was unlikely to change the result. Every issue seems to have been thoroughly litigated. I suppose it is possible that Michael really believes she is dead already and what is going on now is just an offense to her dignity, but that still seems a hard line to take under the circumstances. One thing that strikes me as odd is that no reporter seems to have found out whether there is an insurance policy at stake, what Michael's financial condition is, and so on. And if he buys a new Corvette after Terri buys it, we'll never find that out either, any more than we know what Elian is up to. He has declined to answer questions about insurance. And it also looks like there is no way to make that a legal issue, at this point. What a mess.
posted by thomas at 3/20/2005 11:04:00 AM

 

Serial killers and torture
By Tom Smith

Probably everything that needs to be said, and more, has been said in reaction to Eugene's post endorsing the torturing to death of the serial child-killer in Iran. Like others, I was surprised to see Eugene, whom I view as moderate in all things, taking such an extreme view. So I guess Eugene is moderate in all things, including moderation.

Still, I want to add a few things to the debate that may be idiosyncratic enough not to have been said yet. I think the desire to torture extremely depraved killers is natural enough, but not something we want to turn into public policy. One reason we should not do so is that this sort of deliberate infliction of agony is evil in itself, and evil is the sort of thing that is difficult to manage. I don't find it hard to believe that evil has a supernatural dimension, but even if one dismisses that, both evil and good acts have a strange ability to propagate through social systems in seemingly mysterious ways. The analogy would be perhaps how atoms adjust themselves in lattices or spin glasses. We may think we are just creating disincentives or satisfying the preferences of victims' family members, but that is just our crude social science at work. We are also displaying what some people will find seductive examples of cruelty, and giving the sadists in the audience something to get excited over. When the secret policeman in the mob that witnessed the flogging in Iran, goes back to his prison to flog and rape some political prisoner, because the flogging got him so worked up, that is just as much a consequence as whatever may be deterred. I think it is part of the logic of evil that it gets us to imitate it, and say we are doing good. If the idea is to inflict pain for pain, then why not have the relatives of the raped children sodomize the rapist in front of the crowd, before strangling him? That would fit the magical thinking of the punishment better, wouldn't it? The reason we would not is presumably that we think the proceeding would be too degrading for everyone involved, and we would be right.

With all due respect for Eugene, I don't think he is giving evil enough credit. It is not like some debit on a balance sheet that can we wiped out by an entry on the other side of the ledger. It is more like a virulent disease that we don't really understand. By torturing torturers we deter some, undoubtedly, but we also spread the taste for torture and other forms of degradation. We know that whole cultures can fall into that madness, and it is nothing to be fooled around with.

When I was in the mental hospital legal clinic at Yale, another student and I interviewed a serial killer who was incarcerated in the Whiting Forensic Institute, the maximum security mental hospital in Connecticut. He nom de guerre was the "Connecticut Valley Strangler;" he raped and strangled prostitutes. His accommodations were in the super-max Ward D within the institute, entered through double steel sliding doors. The orderlies stayed inside a station that looked like the booth of a drive through teller at a bank, watching the hallways through thick glass. When you entered the hallway, you took a "panic button" that looked like a garage door opener. If you were attacked, you were supposed to push the button and the orderlies would come and rescue you. In theory. My classmate, a lovely woman who is now a partner at a large firm, and I went into the Strangler's room, and met the fellow. Our job was to see if he had any beefs, for we were there to represent the inmate/patients. He was one ugly spud. Well over 6 feet, 300 pounds or more, and heavily acne scarred, he had an odd tone to his skin, as if he had recently been to a tanning salon. His speech was slurred from the thorazine, and I say, thank God for thorazine. (All those security precautions you saw in "Silence of the Lambs" were nonsense. They just would have kept Hannibal Lectur so gorped up he would barely have been able to lift his head from the pillow.) Strangler guy immediately began to pick on (the person I'll call) Jane, punning on Jane, "plain Jane" and so on. He wasn't too drugged to be cruel. Jane had an unenviable face, but apparently didn't scare easily. There was also something flirtatious in his attention, in a very, trust me on this, creepy way. I just wanted to get out of there. Stupid, leering, oddly articulate, highly sexually motivated evil has that effect on me. Strangler guy was exhibit one for the verdict "not guilty by reason of insanity, but not fit to live, either."

The reason I favor the death penalty is that I think there are some criminals so depraved that world is a better place with them out of it. I think many (but not all, I realize) opponents of the death penalty are relative innocents who do not realize whom they are dealing with in the likes of, say, sexually predacious serial killers. This Nova episode is a good introduction to the phenomenon, and an introduction is about enough.

The main reason I am against torturing even these monsters, and that's a good word for them, is that I don't see how that would be possible without making or encouraging some people to enter into the same world as the monsters live in, and that is to be avoided. We don't (or shouldn't anyway) let children watch pornography, and for similar reasons, we should not make a spectacle out of flogging and hanging. The main things you want to accomplish with a death penalty are accomplished with an execution that is as dignified, efficient, private, and painless as possible. It should be done in a way that does not spew the disease of degradation and sadism into the air like a bunch of evil spores. The killer has already done that. The death of the killer should satisfy the victims' survivors as much as they can be satisfied. I think psychological science, and traditional morality, suggests vengeance beyond that does not really contribute to recovery anyway.

posted by thomas at 3/20/2005 09:02:00 AM

 
Things Irish (plus the great Blogger suck-a-thon)
By Tom Smith

So, is Blogger back up yet? Testing. Testing. What an unbelievable piece of crap is Blogger. I mean, really. Yesterday, I wrote what I thought might be the best post ever, about growing up Irish Catholic, nuns, my very Irish American, beautiful, alcoholic long dead aunt Mugga, the evil psychotic bitch Sister Ambrosia, my fifth grade teacher, visiting Ireland to make pilgrimage to the places of Yeats's poetry, and what does Blogger do? It eats the post. Poof. Gone. No backup. It may have been destiny or what ever the Celtic word for wyrd is, but even so. I just don't have it in me to do it again. Happy belated St. Pat's everyone. We are going to switch to typepad.
posted by thomas at 3/18/2005 10:01:00 AM

 
Happy St. Patrick's Day
By Gail "My Ex-Mother-in-Law Was a Murphy" Heriot

Calling them dirty, lazy and ignorant hasn’t always been regarded as rude or inappropriate. At one point it was considered a simple fact, amply demonstrated by the evidence. They were not like the rest of us; they were different. Anyone who thought otherwise could try wandering into one of their inner city neighborhoods unarmed. Even the police would venture in only in groups of six or more....

Racism? Perhaps. But the "race" I am referring to is the Irish-–a "racial group" that has become so mainstream today that... well... it is the mainstream. Everyone seems to have a mother (or in my case an ex-mother-in-law) whose maiden name was Murphy. To say that you’re an Irish American is to say that you’re an ordinary American, a member of the "majority."

But it was not always thus. Nineteenth-century Ireland--from which the ancestors of present-day Irish Americans fled in boatloads--was a remarkably dismal place even before the Great Potato Famine. As Gustave de Beaumont, traveling companion to Alexis de Tocqueville, wrote in the 1830s:

"I have seen the Indian in his forests and the Negro in his chains, and thought, as I contemplated their pitiable condition, that I saw the very extreme of human wretchedness; but I did not know then the condition of unfortunate Ireland."

The evidence seems to bear him out. At 19 years, the Irish peasant's life expectancy was less than the American slave's 36 years (which was not a great deal less than that of other Americans). While the American slave lived in crude log cabins, the Irish peasant lived in even cruder mud huts. And while the American slave ate only small amounts of meat and the meat was of poor quality, the Irish peasant, like peasants across Europe, often had none at all. The world of the 19th century was still a grim place nearly everywhere, but the Irish peasant's world was extraordinarily grim.

With the famine, things took an almost unimaginable turn for the worse. In a remarkably short period of time, the potato, Ireland's staple crop, essentially disappeared. One and a half million, half-starved souls were cast on American shores in the years between 1845 and 1855. And these were the lucky ones. One million out of Ireland's population of eight million died.

When these immigrants got off the boat, they were largely illiterate, unskilled, unwashed and ill-equipped for urban life. What they knew how to do was grow potatoes, something there wasn't much of a call for in New York, Boston or any other American city. Not everyone sympathized with their plight. Friedrich Engels, who fancied himself a champion of the workingman, regarded the Irish immigrant to Great Britain as having a "crudity" that "places him little above the savage." For work requiring skill or patience, Engels complained, "the dissolute, unsteady, drunken Irishman is on too low a plane."

Here in America, many agreed with Engels. Signs reading "No Irish Need Apply" started popping up soon after large numbers of Irish began arriving. Some employers no doubt thought they were being more polite by expressing a preference for "Protestant" applicants; other made sure they were understood by insisting on "any color or country except Irish." Almost nobody thought these Irish immigrants were just like the rest of us.

I would like to be able to say that each and every one of them struggled heroically against all these obstacles, refusing to let his dignity or sense of responsibility flag even for a moment. But the world's not like that. That's why most of us should thank our Creator that circumstances have never put us to the test; real human beings, unlike the characters in melodrama, can be disappointing. Irish neighborhoods had more than their share of crime, prostitution, and other urban pathologies. Family abandonment was more common among the Irish than among other immigrant groups at the time. And in 1914, more than half a century after the first great wave of Irish immigration, about half the Irish families living on the West Side in New York were still (for that and other reasons) without fathers.

It would also be nice to report that the notion of the hard drinking Irishman is just an untrue and vicious stereotype. But in fact, as a group, the Irish were justifiably known for their drinking. When the Irish began to pour into Boston between 1846 and 1849, the number of liquor dealers increased from 850 to 1200. Most catered to the newcomers. Even as late as World War II, more Irish Americans were rejected from the military for alcoholism than Blacks, Italian Americans or Jews.

But why rehash the sins of the fathers? Why not tell the many positive stories about Irish immigrants to America? Well, perhaps it's not good to dwell on the negative side for too long, but I think in this case it says something great about America and its people: If these scruffy Irish immigrants (and I've been told that I'm a tiny bit Irish too, so I hope that gives me a bit of license)... if they can assimilate and have their grandchildren can become part of the American Establishment, anyone can. It may (and usually does) take generations for a group to become just another part of the majority. But everybody can do it. After a while, we're all as American as ... well ... the potato.

What are the implications of all this for today's immigration policy? Maybe very little. The issues that confront us there are difficult and complex. Reasonable people disagree and will continue to do so. But St. Patrick's Day is not a day for resolving thorny issues of public policy. It's a day for raising a glass and toasting all things Irish or even partly Irish. Like baseball and apple pie ... and the Great American middle class.
posted by Gail at 3/17/2005 12:07:00 AM

 
Still More on Bankruptcy
By Gail Heriot

Todd Zywicki ably defends the bankruptcy bill in the NRO here and here. Also see his recent inquiry on the Volokh Conspiracy here.
posted by Gail at 3/16/2005 11:50:00 PM

 
A poem about a person
By Tom Smith

All this discussion about Peter Singer, and babies, and so on, and so forth, reminded me of this poem, popular in college classrooms (or used to be; I wonder if it is still), but still a very good, British, post-war poem.

Death of a Son (who died in a mental hospital aged one)

Something has ceased to come along with me.
Something like a person: something very like one.
And there was no nobility in it
Or anything like that.

Something was there like a one year
Old house, dumb as stone. While the near buildings
Sang like birds and laughed
Understanding the pact

They were to have with silence. But he
Neither sang nor laughed. He did not bless silence
Like bread, with words.
He did not forsake silence.

But rather, like a house in mourning
Kept the eye turned in to watch the silence while
The other houses like birds
Sang around him.

And the breathing silence neither
Moved nor was still.

I have seen stones: I have seen brick
But this house was made up of neither bricks nor stone
But a house of flesh and blood
With flesh of stone

And bricks for blood. A house
Of stones and blood in breathing silence with the other
Birds singing crazy on its chimneys.
But this was silence,

This was something else, this was
Hearing and speaking though he was a house drawn
Into silence, this was

Something religious in his silence,
Something shining in his quiet,
This was different this was altogether something else:
Though he never spoke, this
Was something to do with death.

And then slowly the eye stopped looking
Inward. The silence rose and became still.
The look turned to the outer place and stopped,
With the birds still shrilling around him.
And as if he could speak

He turned over on his side with his one year
Red as a wound
He turned over as if he could be sorry for this
And out of his eyes two great tears rolled, like stones,
and he died.

Jon Silkin, 1954
posted by thomas at 3/16/2005 10:36:00 PM

 
More on Bankruptcy
By Gail Heriot

Uh oh! My analysis has been called "spectacularly stupid" by a nice man named Thomas Nephew. Gosh, I suppose I’ve been called worse ... even by my own grandmother once or twice. But allow me to respond:

Nephew is evidently hot and bothered on two grounds:

(1) First he is upset that my National Review Online essay begins with a discussion of an inaccurate newspaper headline:

"Half of Bankruptcy Due to Medical Bills–US Study." At least so said the
Reuters headline in last week’s story. And similar news stories across the country agreed. Soon it will be repeated as gospel on Capitol Hill and by the chattering classes everywhere. Understandably, middle class Americans have started to feel a little queasy about their health and about the adequacy of their health insurance.

The fundamental problem is that it isn’t true. Despite what the authors have encouraged us to believe, the Harvard study, entitled "Illness and Injuries as Contributors to Bankruptcy," isn’t really about medical bills, crushing or otherwise. It’s about bankruptcies that can–at least if you’re willing to stretch things a bit–be classified as medically related."

Nephew doesn’t disagree that the headline is inaccurate. But he evidently thinks that I shouldn’t have brought up the error. He points out that the study’s title is not itself misleading in this regard.

I have three responses to that.

First it would be worthwhile in itself to point out that the media got it wrong, even if the authors of the study had not been at fault. That’s the version the public and most public policymakers read and react to. I might add here that it wasn’t just Reuters that got it wrong. The Boston Globe, the Cleveland Plain Dealer, the Associated Press, the Chicago Tribune, MSNBC, CNN and lots of others ran headlines claiming that the half of all bankruptcies were found to be caused by medical bills. All were false.

Second, in the media’s defense, those headlines were not manufactured from whole cloth. A press release (available on Lexis/Nexis) that accompanied the study, issued over U.S. Newswire by Physicians for a National Health Program, an organization co-founded by two of the authors, also carried an erroneous headline, "Harvard Study: Half of U.S. Bankruptcies Caused by Medical Bills." (According to its web site, PNHP is an organization that advocates a single-payer system as "the only solution to solving the United States’ many health care problems."). Similarly, the announcement of the study by the Harvard Law School (where one of the co-authors is a tenured faculty member) opened with a statement that the study had found that "[n]early half of all Americans who file for bankruptcy do so because of medical expenses."

In addition, study’s authors made numerous public statements in connection with the study's release that would understandably cause people to think that it was about crushing medical debt. E.g.:

*Co-author Elizabeth Warren said in the Harvard Law School announcement of the study that "[a] broken health care finance system is bankrupting middle class America."

*Lead author David Himmelstein said, "Our study is frightening .... Too often, private health insurance is an umbrella that just melts in the rain."

*Co-author Steffie Woolhandler echoed Himmelstein’s statement with her own similar comment, "Our study is fairly shocking .... We found that, too often, private health insurance is an umbrella that melts in the rain."

No wonder Reuters and others thought they were dealing with a study about medical bills.

Third, the difference between "half of all bankruptcies are caused by medical bills" and "half of all bankruptcies are somehow medically related" is a huge one. As I alluded to before, at least three of the authors to the study are critics of the nation’s current health care finance policy and have used the study as an opportunity to offer their opinions on the subject. "Covering the uninsured isn’t enough. We must also upgrade and guarantee continuous coverage for those who have insurance," Dr. Woolhandler said in a statement. She went on to condemn employers and politicians who advocate what she called "stripped down plans, so riddled with co-payments, deductibles and exclusions that serious illness leads straight to bankruptcy."

The problem is that if it’s not true that "half of all bankruptcies" involve medical debt, the most comprehensive of all health care coverage won’t solve the problem. Indeed, as I said in the National Review Online essay, it may even be counterproductive. Mandatory comprehensive health care coverage will mean more expensive health care coverage. That’s just cold, hard reality. Some employers or employees may try to make up the difference by cutting corners on disability insurance. Other employers may hire fewer employees. If it turns out that it is lack of adequate disability insurance that is really driving these bankruptcies, then debtors who fall ill or who are injured or unemployed will be worse off, not better off, as a result of having comprehensive health care coverage.

I think I understand what’s confusing my friend Nephew. He seems to think that it shouldn’t matter whether the study is about bankruptcies caused by crushing medical debt or bankruptcies caused by a medical catastrophe that prevents the debtor from earning a living. In either event, it seems unfortunate. He is too focused on the bankruptcy bill. When this study was announced in February (and when my National Review Online piece was written and published), the study was being touted as proof of the need for health care finance reform. That’s what those portions of the essay are focused on, and not so much on the recent bankruptcy bill.

(2) Now let’s get to the part of the article that arguably has a greater bearing on the bankruptcy bill. In the National Review Online, I argued that in order to get to the point where the authors could state that half of all bankruptcies have a "medical cause," they had to include a number of dubious case categories, including bankruptcies in which the debtor cited chronic gambling, alcohol and drug addiction, and birth or adoption as a substantial cause, as well as all cases in which the debtor had paid more $1000 over the two-year period leading up to the bankruptcy. The last category is especially misleading. The debtors in it did not have to claim that medical bills were a special problem for them. It was sufficient that they spent $1000–hardly an unusual sum for a family over two years. Most families probably spent that much on groceries too. Yet you wouldn't say their bankruptcies were caused by groceries.

Nephew is apparently concerned that I failed to state that not all of the categories included by the authors as bankruptcies with "a medical cause" were misleading. It’s a strange criticism in view of the fact that I specifically state, "Don’t get me wrong. Some bankruptcies are caused by crushing medical debt. But they aren’t half of all bankruptcies ...." If I’m willing to concede that some bankruptcies are caused by medical bills, then it’s pretty obvious I’m willing to concede that some bankruptcies are medically related. Indeed, my essay specifically states that debtors in 28.3% of all bankruptcies identify "illness and injury" as a substantial cause (although not necessarily the primary cause) of their bankruptcy.

Nephew, however, thinks that I should have also pointed out that in 21.3% of bankruptcies, the debtor or the debtor’s spouse had lost at least two weeks of work-related income because of illness or injury." Gosh, I thought I was being nice by using the larger 28.3% figure. In writing the National Review Online piece, I was willing to assume for the sake of brevity that the 28.3% was a fair one. In fact, I believe that even that figure is probably substantially overstated. But if Nephew would prefer that I use the lesser figure of 21.3%, then fine. The point is that it is misleading to claim that 54.5% of all bankruptcies have a "medical cause." It simply isn’t so.

Maybe Nephew is under the impression that these two figures can be added together to arrive at 49.6% of all bankruptcies. I can assure him that isn’t so. These figures overlap substantially. If that weren’t so, the authors would be claiming that 97.6% of all bankruptcies have a "medical cause," since that’s what the figures would add up to.

Okay, I’ve gone on too long. I’m going to take my "spectacularly stupid" ... uh ... analysis and get some sushi.
posted by Gail at 3/16/2005 05:00:00 PM

 
Kasparov
By Tom Smith

I got this email from a student of mine and chess enthusiast:

I noticed you linked to a story about Garry Kasparov on your blog. He made
his announcement after the super grandmaster Linares tournament which I had
been following from game 1. He played incredible for the entire 2 week
tournament and the entire chess world went from ecstatic at seeing the old
Kasparov to flabergasted at hearing his announcement. Though I'm deeply
saddened that the best chess player that has ever lived has retired in his
prime, I think the sacrifice he is making (no pun intended) is downright
heroic. He has definitely opened my eyes to the brewing problems in Russia.
The reason I bring this up is that I wasn't sure if you've had a chance to
review any of his games from Linares. At the following link you can find
his tournament winning victory over the #1 player from England, Michael
Adams. Kasparov's win is spectacular. I don't think you can fully appreciate the drama of his
announcement until you see the incredible level of chess he was playing just
prior. Even though I know he doesn't see things this way, I have a sense
that Kasparov has martyred his career for a cause that is deeply American.
I feel an incredible sense of solidarity with him. Anyway, enough of my
blathering on, enjoy the game!
posted by thomas at 3/16/2005 04:41:00 PM

 
"The Threat of Federalism": Would De-Centralization Dampen the Power of National Special Interest Groups (especially the wackiest ones)?
By Gail Heriot

The National Organization for Women's Legal Defense and Education Fund has a website with the sub-caption "The Threat of Federalism." It begins this way:

"The NOW Legal Defense and Education Fund has recently established a Project on Federalism. The Federalist Society, an organization of extremely conservative lawyers, which expounds a philosophy they call "federalism," has gained tremendous influence in the Bush administration and in the federal courts. This is a little understood but dangerous movement."

The essay goes on to argue in earnest tones that the Federal Government should be regarded as a "progressive agent for change," that those of us born in the modern era "have lived with the assumption that the federal government has the authority to tackle national problems," but that the Supreme Court has in recent years threatened the nation's well-being with a strange doctrine that they call federalism, which holds that the federal government does not always have that authority. In other words, this federalism stuff is bad, bad, bad.

I don't much mind if the folks at NOW aren't sold on the idea of federalism. I suspect a lot of people don't really see the point. But why is NOW's view expressed with such fervor? And why does NOW think should women in particular should care about how power is allocated between the state and federal levels?

I suppose one way to explain it is simply by remembering that the primary interest group behind the "Violence Against Women Act" was NOW and that Act was the subject of the Supreme Court's decision in United States v. Morrison. In other words, NOW's ox was the one that was gored. But I would like to suggest another explanation: Taking federalism seriously may or may not harm women, but it does threaten a group that is near and dear to NOW's heart--high-profile inside-the-beltway interest groups. And naturally, NOW's staff members would consider that bad.

Let's go back to 1787. The conventional wisdom when the Constitution was drafted was that democracies (including representational democracies or republics) had to be small to function effectively. But in Federalist No. 10, Madison turned this view on its head by arguing that, in order to fight the evils of factionalism, bigger is actually better.

By "faction," Madison meant what we might call "special interest." He mentioned propertyholders, those without property, creditors, debtors, landed interests, manufacturing interests, mercantile interests, and monied interests as examples, adding that there are many other "lesser interests." Madison rightly understood that factions sometimes seek to the sacrifice the good of the community as a whole in order to obtain some private advantage and must somehow be thwarted if the good of the community is to prevail.

So long as a faction is strictly a minority, it is harmless enough, since in a democracy, it won't get its way. The problem comes when the faction is itself a majority or when it forms coalitions with other factions that together are able to secure inappropriate advantages. Madison thought that this is easier to do at the local or state level than at the national level. At the national level, the number of petty factions will be so large that they will tend to cancel each other out. He wrote:

"The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, ... the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other."

Well, yes ... In the 20th century, for example, it was said that tobacco growers had a lot more clout in North Carolina than was healthy, because they were well-organized and concentrated there. Ditto for the auto industry and the auto workers unions in Michigan. But at the national level, these interests were a few voices among many. As the country has become more geographically homogeneous and the economies of the various states more diversified, Madison's point became somewhat less crucial. But it continues to have validity.

Still I wonder if the opposite point can't be made too. Sure, Madison is probably right that insofar as special interest groups are geographically localized, their ability to subvert the public good for their own special advantage is reduced by having a large federation. But not all special interest groups are geographically concentrated. Some are so geographically diffuse that they might not exist at all as organized special interest groups (or they might not be as effective) if the United States were broken into 50 separate countries. The power of these non-geographical special interest groups may be magnified the greater the size of the federation as they can take advantage of organizational economies of scale.

Take a look at the District of Columbia telephone book. It's a real fright. All manner of special interest can be found there from the African American Women Business Owners to the National Association of Professional Pet Sitters. No, I'm not saying that every one of them is trying to secure unfair advantage for itself. Some are busy trying to defend themselves against other special interest groups' efforts to secure unfair advantage over them. My point is simply that each one has a office and a staff, and the staff members spend their time trying to influence legislation and administrative rulemaking in their group's favor, not in favor of the public good. And if they had to divide their time between Albany, Annapolis, Atlanta, Augusta, Austin, etc., most of them couldn't do it. They'd be stretched too thinly.

Some could, of course. Mega-organizations, like the AARP, the Sierra Club, NOW, the NEA, and several others have enough members to lobby in all fifty states. But I suspect that if these organizations had to do so, they would need to rely much more heavily on volunteers and much less heavily on paid staff members. And that just might help reduce the level of extremism among their leaders--extremism born of being too long inside the beltway and spending 100% of their time thinking as members of a particular interest group.

NOW purports to represent women. But when NOW President Kim Gandy says things like, "There is no question ... that a Bush presidency would be a disaster for women," and publishes a web site accusing "Bush and his accomplices" of "lies" and "misdeeds," it's hard to say she's representing women. Lots of women--a majority of married women--voted for Bush. Similarly, the AARP represents retirees. But that group is also not as one-dimensional as AARP policies make it appear to be. Ditto for lots of large membership organizations that lobby the federal government.

Is it possible these groups are the way they are in part because of the centralization of power in the hands of the federal government? I think so. And at least it's interesting to give it some thought...

posted by Gail at 3/15/2005 12:02:00 AM

 
California Superior Court Holds Same-Sex Marriage Ban Unconstitutional
By Gail Heriot

The New York Times reports. For my earlier series on same-sex marriage, entitled "Marriage, Schmarriage," click 1. here, 2. here, 3. here, 4. here, 5. here, 6. here, and 7. here.

Hmmm ... Looking back on that long list of heres, I wonder if I have become a tad too fond of blogging.
posted by Gail at 3/14/2005 03:32:00 PM

 
Chess stud fights back
By Tom Smith

Kasparov is retiring to send a message of opposition to Putin. It's a huge loss to chess. But you have to admire his courage.
posted by thomas at 3/14/2005 11:46:00 AM

 
More on Peter Singer
By Tom Smith

This is interesting. Lest there be any doubt, I'm with the lady in the power wheelchair. Would it ever occur to you that it might be fun to zip around in a power wheelchair? Me neither. We don't know what it's like to live other people's lives, not anywhere near well enough to decide to kill them. One of the many problems I have with utilitarianism, outside of limited contexts where it does make sense, such as financial market regulation, is that we simply have no idea what is going on inside of the heads of others, well enough to make decisions for them, anyway.
posted by thomas at 3/14/2005 10:43:00 AM

 
Of race and horticulture
By Tom Smith

This post at the Corner reminded me of an incident shortly after we bought a house in San Diego, some years ago. Out here in the sticks lots are large, and we have maybe a hundred trees, large and small, on the property. I have had something of a phobia about lawn care ever since my fledging lawn mowing business cratered after I mowed over a sapling in a customers yard and tried to cover it up by shoving it back into the soil. I hired therefore the gardening service many of my neighbors used, and told them, inter alia, I wanted them to trim the trees. They did so, and made an utter mess of the job. Limbs were hacked off with no apparent reason, with six inch stubs left on the trunks. Even I knew that was bad stuff. So I fired them and hired a gardener from my university, which is famous for its beautiful grounds, among other things, and showed him the trees. Looking at the trees, he sighed in disgust and said,
"What race were they?"
I wasn't sure I understood him, with his heavy Mexican accent.
"What?" I said.
"What race were they?"
That's what I thought he had said. I temporized. "What race, do you say?"
"Were they Mexican or Japanese?" he said.
What could I say? "Mexican," I said.
He sighed again, as if the incompetent tree trimmers had let the whole race down. He, however, proved to be an excellent gardener.
posted by thomas at 3/13/2005 05:07:00 PM

 
Judges still need more protection
By Tom Smith

Judges probably are on average braver than the typical person and have thicker skins. But they should still get more protection than they do, whether they like it or not.
posted by thomas at 3/13/2005 09:25:00 AM

 
Rap update
By Tom Smith

This poses the interesting question, are rappers just bad shots?
posted by thomas at 3/13/2005 09:19:00 AM

 
Bankrupt Political Discourse
By Gail Heriot

I still don't really have an opinion on the bankruptcy bill. I haven't read it (or a decent summary) yet. But I nevertheless breathed a sigh of relief when it passed in the Senate this past week. I couldn't stand the idea that the bill might be scuttled on the basis of a misleading piece of propaganda.

I am referring to "Illness and Injury as Contributors to Bankrupcy"--a supposedly academic study that was the subject of an extraordinary media blitz back in early February. Headlines like "Medical Bills Cause About Half of Bankruptcies" were on the front page of newspapers all over the country that week. Not only were these headlines false, the whole study was deeply flawed and constructed to greatly exaggerate the importance of medical problems as a cause of bankruptcy.

Loyal Right Coast readers may recall that I did a critique of the study back when it came out, which I expanded on in a National Review Online essay. But if I had had illusions that anyone actually reads and reacts what I write, they would have been dashed by the experience. A month later, newspapers, this time editorializing against the bankruptcy bill, continued to cite the study as proof that either half of all bankruptcies are caused by medical bills (a false claim) or that half of all bankruptcies were caused by illness or injury (also a false claim). The study remained a centerpiece of the rhetorical case against the bankruptcy bill.

At least the Washington Post carried my letter to editor today. It read in part:

"In "A Bill Bankrupt of Pity," E.J. Dionne [op-ed, March 1] claims that a
recent study on bankruptcy found that half of bankruptcy debtors "said illness or medical bills drove them to bankruptcy." In fact, the study, "Illness and Injury as Contributors to Bankruptcy," found no such thing. The number of actual debtors who said that illness or injury was even a significant cause of their bankruptcy was much smaller (28.3 percent). And many of those had quite modest medical bills and missed very little work.

"To be able to claim that half of all bankruptcies had a medical cause, the authors had to include a number of dubious case categories, including bankruptcies caused by chronic gambling, alcohol and drug addiction, and birth or adoption, as well as all cases in which the debtor had paid more than $1,000 in medical bills over the two years leading up to the bankruptcy. This last category is especially misleading. The debtors included in it did not have to claim that medical bills were a special problem, much less that such bills "drove them to bankruptcy." It was sufficient that they spent $1,000 -- hardly an unusual sum for a family over two years."

Alas, I had hoped that having a blog would avoid the need to write letters to the editor ....
posted by Gail at 3/12/2005 01:46:00 PM