Thoughts from
San Diego on Law, Politics, and Culture

 
A rocket blast from the past
By Tom Smith

I was in the university library looking for stuff on Agatha Christie for Patrick's school report, when I came across some of the books of Arthur C. Clarke. It brought back powerful memories.

Clarke and Isaac Asimov changed my life. Unlike my kids, I did not discover reading until I was in eighth grade. Until then, my passion in life was football. (All the other kids had not yet gotten bigger than I.) I also loved skiing, and war movies. That was pretty much it. Then I caught pneumonia, and had to spend three weeks, maybe more, at home. I asked my dad to get some books for me at the library, and suggested science fiction, thinking vaguely it might be less boring than other books. He brought home a stack of Clarke and Asimov books. There was 2001, Childhood's End, collections of short stories. I was entranced. My sickbed was transported to the stars, where philosophical paradoxes played themselves out on the largest of scales. From there I decided I had to find out about astronomy, philosophy, theology and every other topic these writers touched on, however superficially. I am quite sure that had I not fallen ill, and spent weeks with nothing to do but read, and come across these very thought provoking, if not literary, books, my life would have been a lot less interesting. Maybe it is just a symptom of middle age, but I think nothing can recapture that excitement, of your mind opening up for the first time. It was even better than listening to the White Album for the first time.

posted by thomas at 2/28/2006 08:39:00 PM

 
UC Irvine Islamocartoon kerfuffle
By Tom Smith

I think the real story here is that UC Irvine administrators are standing up for free speech. That is at least slightly encouraging.

posted by thomas at 2/28/2006 08:35:00 PM

 
Yale's admission of former Taliban minister as special student leaves questions unanswered
By Tom Smith

(RCN New Haven Feb. 27) Yale University's admission of Rahmatullah "Buddha Kablooey" Hashemi, former ambassador-at-large for the Taliban, leaves Yale alumni and parents with many unanswered questions.

Hashmeni, who was a high official for the notorious Taliban at the tender edge of 22, quipped "I vas only following ze orders! Sorry, just kidding. Really, I was as surprized as anyone to get in. I worried that having been so intimately associated with the people who hosted the world's most wanted "terrorist," and which is still fighting and killing US soldiers, might be held against me."

In fact, Yale University went to great lengths to recruit the animated anti-American. "I feel honored, really," said Hashmeni. "I mean, the Yale Law School does not even want to let recruiters from your military so-called JAG corp on campus. Yet I, from the regime implicated in killing 3000 Americans can continue my education here. As you Americans say, who woulda thunk it?"

Chip McSweenysondale, of Litchfield, Connecticut (Yale '75) wonders "Does this mean my kids would have a better chance of getting into Yale if they had some connection with a regime that supports terrorism? I mean, maybe we could send them to a summer program or something." Chip, Jr., who will graduate from the Phillips Andover Academy next year, and hopes to attend his father's alma mater, is not so sure. "I mean, I want to go to Yale, totally," he remarks, "but I mean, like, I don't support terrorism or anything. I mean, these are the people who helped blow up the twin towers, right? I had my 12th birthday party at Windows on the World. I liked those buildings."

Ho Pin Dat, 212th Reincarnation of the Enlightened One, and former abbot of the Monastery of the Compassionate Buddha in the remote Northeast of Afghanistan remarked "They drove us from our cells. Many of the old monks died. They blew up the statues of the Buddha that stood a thousand years before anybody had heard of Yale. And yet now they invite this person to study there. Is he not a criminal? I do not understand this."

The Yale public relations office has denied that 2007 applications will include a question about whether the applicant has any associations with terrorist states or organizations that would make one an especially attractive candidate. "This is not affirmative action for terrorists," stated Harvey Feldstein, director of public relations. "We just like people from diverse backgrounds."

"I applied to Yale, but I couldn't get in," remarked Joe Roberts. Instead, Roberts went to Cornell, where he participated in the ROTC program and graduated in 2002, with a commission in the US Army. Roberts served in the 82nd Airborne in Afghanistan, was seriously wounded, and now spends most days working on his walking. "I will get it back," he says. "Don't worry about me."
posted by thomas at 2/27/2006 07:08:00 AM

 
"Due Process" Evidently Not the ABA's Strong Suit
By Gail Heriot

By now you've probably heard about the ABA's Council on the Section on Legal Education's new diversity standards for law schools. What you may not know is that the ABA also took the opportunity two weekends ago to endorse the proposed Native Hawaiian Government Reorganization Act (known as the "Akaka Bill"). Strangely, it apparently never occurred to anyone at the ABA that they might want to alert those who oppose the bill that the matter was under consideration at the ABA and perhaps even invite input from them. Perish the thought that the ABA would want to hear both sides of the controversy. Those who are leading the opposition (including those in the Senate) were caught unaware.
posted by Gail at 2/23/2006 08:09:00 PM

 
Larry Summers Resigns
By Gail Heriot

It's a sad day for Harvard and American higher education.
posted by Gail at 2/21/2006 10:44:00 PM

 
Sounds like fun
By Tom Smith

The California Bar, take two.

posted by thomas at 2/21/2006 05:52:00 PM

 
New Empirical Studies of Law Blog
By Tom Smith

New and very interesting looking blog on Empirical Legal Studies from some high powered legal academics. This should be good. There is nothing like facts.
posted by thomas at 2/20/2006 11:45:00 AM

 
You have no right to exist. Now give us money
By Tom Smith

It's a heartbreaker, alright. Hamas takes control of the PA, but Israel won't give it any money. The injustice of it is just staggering. Even the European Union is saying, no money for the PA unless Hamas recognizes Israel's right to exist. Decisions decisions.
posted by thomas at 2/19/2006 03:31:00 PM

 
Better luck next scandal
By Tom Smith

When a media and liberal punditocracy driven scandal tips over the ridge and starts to roll down the hill into the marsh of yesterday's news, nobody helpfully rings a bell. Instead, the story that never was, but might have been, merely forms yet another layer of sediment that will be dredged up in tomorrow's revisionist histories. Judge for yourself, but that is what it appears to me is happening now with the NSA scandalette. It is far from clear there will even be hearings in the Senate Intelligence Committee, seeing as the White House appears to be holding firm. If you watch, you can see this again and again. Some fuss in the press. Hill gets involved. Various solons posture. Press huffs and puffs. White House "stonewalls". (Personally, I like stone walls.) Gradually, press and solons decide that the American People require them to turn their attention elsewhere. But boy, they sure showed the White House a thing or two.

For what little it may be worth, here is my prediction. There aren't going to be any broad-ranging, news-making hearings in the Senate Intelligence Committee. Ain't gonna happen. Why? Because the WH won't go for it, and is willing to stand firm on this, probably because W is personally involved, what with feeling personally responsible for protecting American lives. Being in the big chair on 9/11 probably does that to you. And standing in the ashes of the WTC. The Senate Judiciary Committee may come up with some recommendations for changing FISA; it would be difficult to make it any worse. Ambitious Rep. Heather of Coyotebone, New Mexico, the USAF and whatever college she was at at Oxford, will dither about trying to attract attention, but when she realizes this is not the ICBM to fame she thought it might be, will move on herself. She looks like a lady who knows the main chance when she sees it, and she will figure out soon enough this ain't it. Better luck next time, Heather. Especially given that other Republicans on the committee are not going to make it any easier for her. There may be some kind of "deal" under which the branch in charge of foreign policy promises to run more stuff by the FISA court and/or keep those watchdogs of our liberties on the Hill more informed. This is called, allowing the political branch to save face after the WH tells them, that the NSA program is in fact going to go on, and no, they are not all going to learn all about it. You might see some screeching in places like The Nation that the WH has simply defied Congress, and they will be right. (They often are -- their problem is that they are on the wrong side) Various MSM wise persons and bloggers will probably not run big stories proclaiming that their prognostications of another Watergate or whatever were, well, rather a lot of overheated piffle. No, indeed. Instead, attention will move on. No one ever said there was going to be a big dust up over this, did they, with the Supreme Court solemnly instructing the White House and NSA to tell the brave Senators everything they want to know? Nope, nobody ever said that would happen.
posted by thomas at 2/19/2006 02:56:00 PM

 
Between Iran and a hard place
By Tom Smith

I also am not expecting much from W. It is a problem -- presidents with short time horizons.
posted by thomas at 2/18/2006 06:15:00 PM

 
Not quite sure what the ABA is thinking
By Tom Smith

I don't follow affirmative action law. I mostly ignore it in the hopes it will make more sense by the time I have to learn about it. But, I don't quite see how the ABA thinks this is going to work. Isn't this a bit like putting a big "sue me" sign on your back? It puts small, but undeniably cute law schools such as USD in a particularly difficult position, I would think, since I would guess it is easier to stand up to the ABA if you are UCLA or Boalt Hall, and you have the state of California behind you. But then, both those schools may not want to stand up to the ABA on this one. It is going to be a big, confusing mess. Happy deaning to you deans out there.
posted by thomas at 2/18/2006 05:41:00 PM

 
UC Berkeley Ethnic Studies Faculty Members Continue to Lament that the Voters Didn't Agree with Them and Enlist Students to Help Them Reverse Prop. 209
By Gail Heriot

From the course offerings (as quoted in California Patriot Blog):

Ethnic Studies 198: The Prop. 209 Project
Co-Instructors: Professor David Montejano, Ethnic Studies; Professor Taeku Lee,
Political Science
Time: Tuesday 4-6 PM (first class meets on January 24)
Location: Shorb House Conference Room, 2547 Channing Way @ Bowditch
Number of Units: 2
Course Enrollment: 12
Requirements: Students must have completed a minimum of 60 units.
Course Description: In the 1990s, California voters passed a series of “anti-diversity” referenda-the “anti-immigrant” Prop. 187 in 1994, the “anti-affirmative action” Prop. 209 in 1996, and the “anti-bilingual education” Prop. 227 in 1998. Many have interpreted these results as a backlash against the rapid demographic changes taking place in the State. In this research seminar, we will examine this hypothesis-and also speculate about possible antidotes. Taking Prop. 209 as our chief case study, we will explore the various facets that made this campaign a successful one, including looking at the weaknesses of the “pro-affirmative action” campaign. In the first part of the course, you will map out the likely geography of anti-diversity, pro-diversity and swing districts in the State. In the second part of the course, you will use this analysis to craft a political strategy for a successful “pro-diversity” initiative in the State. What kind of voter turnouts would be necessary, what kind of campaign would have to be mounted, what “framings” of affirmative action policies are most likely to succeed, what contextual factors have to be in place, and so forth? This second part of the class will allow for considerable creativity on your part. Projects will be evaluated on an individual basis. A presentation of each project will take place at the end of the semester.
posted by Gail at 2/18/2006 05:15:00 PM

 
Not rich, not white, and he risked his life so that spoiled American college students could sleep securely at night ...
By Gail Heriot

This story, reported in OpinionJournal.com 's Political Diary, particularly annoyed me:

"It's well known that college students today aren't as educated in our nation's history as they should be, but it's still hard to grasp the mind-bending political correctness just displayed by the University of Washington's student senate at its campus in Seattle.

"The issue before the Senate this month was a proposed memorial to World War II combat pilot Gregory "Pappy" Boyington, a 1933 engineering graduate of the university, who was awarded the Congressional Medal of Honor for his service commanding the famed 'Black Sheep' squadron in the Pacific. The student senate rejected the memorial because 'a Marine' is not 'an example of the sort of person UW wants to produce.'

"Digging themselves in deeper, the student opponents of the memorial indicated: 'We don't need to honor any more rich white males.' Other opponents compared Boyington's actions during World War II with murder.

"'I am absolutely bewildered that the Student Senate voted down the resolution,' Brent Ludeman, the president of the UW College Republicans, told me. He noted that despite the deficiencies of the UW History Department, the complete ignorance of Boyington's history and reputation by the student body was hard to fathom. After all, 'Black Sheep Squadron,'
a 1970s television show portraying Colonel Boyington's heroism as a pilot and Japanese prisoner of war, still airs frequently on the History Channel. Apparently, though, it's an unusual UW student who'd be willing to learn any U.S. history even if it's spoonfed to him by TV.

"As for the sin of honoring a rich white male, Mr. Ludeman points out that Boyington (who died in 1988) was neither rich nor white. He happened to be a Sioux Indian, who wound up raising his three children as a single parent." ... -- John Fund
posted by Gail at 2/18/2006 02:33:00 PM

 
A weird case gets weirder
By Tom Smith

Victor Goldberg reveals the little known connection between the Lucy, Lady Duff Gordon case and . . . kewpie dolls.
posted by thomas at 2/18/2006 12:38:00 PM

 
Special Operations and the future of war
By Tom Smith

Interesting WSJ article here.

Our recent visitor, courtesy of the Right Coast and the USD Federalist Society, Lt. James Golladay, touched on this topic. Thanks again, Jim! Jim is a former Navy SEAL and USD law grad who worked as chief of operational law at the USSOCOM in Tampa, and on prosecuting terrorist suspects at DOD. Jim's fascinating talk gave me a much better idea of the enormity and complexity of the task of fighting terrorism, and observing legal limits at the same time. In Peru, I was told the army just gathered up some 50,000 suspects connected with the Shining Path, and shot them. That's not an alternative for a country like ours.

A point Jim made afterwards also struck me -- just how astonishingly lethal spec ops forces have become, with the combination of their traditional skills and technology. Teams can go on a mission, develop intelligence from that, go on another mission the same night, and with new information from that, carry out even a third attack, one after the other. They can combine information they gather with information in the larger network. It's a new world for these kinds of operations.

Whether Rumsfeld's enthusiasm is justified, I certainly cannot say. As I say to my teenage son on occassion, I am not entitled to an opinion on this question. It does seem plausible to me that we are more likely to be facing threats from small terrorist cells in the future than traditional nation-state enemies, but who knows.
posted by thomas at 2/18/2006 09:38:00 AM

 
NSA program update
By Tom Smith

Keep up with the super-secret spying program here.

posted by thomas at 2/17/2006 03:14:00 PM

 
Speaking of lyrics . . .
By Tom Smith

I am a child of the 'seventies and think Don Henley is a genuis. What can I say. A friend of mine lived up the road from him in Something or other Hills, and said he was a pretty nice guy too, but really hated living in LA. Here are his lines written by middle aged guy who loses his marriage or relationship because he worked too much and was home too little.

I got the call today, I didn’t wanna hear
But I knew that it would come
An old, true friend of ours was talkin’ on the phone
She said you’d found someone
And I thought of all the bad luck,
And the struggles we went through
And how I lost me and you lost you
What are these voices outside love’s open door
Make us throw off our contentment
And beg for something more?

Coming next: great alt-country lyrics.
posted by thomas at 2/16/2006 05:21:00 PM

 
I'm leavin', on that midnight train to Georgia
By Tom Smith

Where, if I read this Georgia statute correctly, Eugene Volokh can take a laptop full of porn, but I, not being a 1st Amendment expert, could not, lawfully anyway. (Because the material would not relate to my course of study.) That's what I call discrimination. I'd rather live in his world, than live without him in mine. OK, irrelevant. But what a great lyric.
posted by thomas at 2/16/2006 05:16:00 PM

 
Is This Supposed to be News?
By Gail Heriot

People who believe that "everyone, regardless of race, should be treated equally" are "more likely to have unfavorable attitudes toward affirmative action than those who hold racist attitudes." So finds a researcher at the University of Missouri.
posted by Gail at 2/15/2006 09:51:00 PM

 
That's showbiz, grasshopper
By Tom Smith

Shaolin Temple plans American Idol style show to pick new kung fu stars. No kidding.
posted by thomas at 2/15/2006 08:00:00 PM

 
Wanted: Board Members Who Will Rubberstamp Management's Plans
By Gail Heriot

The San Diego Union-Tribune ran a front-page story today about UC administrators who sit on the boards of numerous corporations and nonprofits. The story suggested that the UC may not be getting its money's worth from its most highly-compensated administrators, because they spend so much of their time jetting around the country to attend corporate board meetings.

The strongest example of this, according the Union-Tribune, is Marye Anne Fox, UCSD Chancellor, who sits on 10 boards, including W.R. Grace & Co., Boston Scientific Corp., Pharmaceutical Product Development and six non-profits. (Yes, I recognize that adds up to nine, not ten, but that's what's the earlier story said.) She spent 21 days last year traveling to and from and attending board meetings and got paid $339,260 in cash and stock for her efforts.

Fox argues that her board service doesn't interfere with her duties at UCSD (and in fact enhances the university's profile). Maybe she's right. One school of thought is that university administrators should go out of their way to sit on the board of non-profits, since it may allow them to tap into fundraising sources that might otherwise be unavailable to the school. Ditto for profit-making corporations. (Personally I have my doubts that the advantage to the school is worth the school's time.) What's interesting to me is how it possibly could be worth it to the corporations and non-profits. What are the odds that she is energetically fulfilling the independent supervisory function of a director if she is sitting on 10 boards, presumably trying to turn her position to UCSD's advantage, and simultaneously trying to discharge her duties as UCSD chancellor (a job that pays her $359,000)? If she spent just 21 days on these matters, can she be anything better than a rubberstamp? Yes, I know what you're thinking: Board members all over the country are just rubberstamps (when they don't have actual conflicts of interest). Sigh.
posted by Gail at 2/15/2006 07:41:00 PM

 
Stupid question of the week
By Tom Smith

Fox News gets the nod:

Question: How far away from you was he?

Cheney: I'm guessing about 30 yards, which was a good thing. If he'd been closer, obviously, the damage from the shot would have been greater.

Question: Now, is it clear that -- he had caught part of the shot, is that right?

Cheney: -- part of the shot. He was struck in the right side of his face, his neck and his upper torso on the right side of his body.

Question: And you -- and I take it, you missed the bird.

Cheney: I have no idea. I mean, you focused on the bird, but as soon as I fired and saw Harry there, everything else went out of my mind. I don't know whether the bird went down, or didn't.

You missed the bird?
posted by thomas at 2/15/2006 05:15:00 PM

 
Glenn, it's not 1987 anymore
By Tom Smith

Glenn, dude, somebody has to tell you. Your look is all wrong. Clark Kent glasses? Blue suit and flowery tie? This is the bigtime, Glenn. CNN. International media exposure. I am not saying you have to go the whole LA nine yards with Armani suit, black tee shirt and rectangular granny glasses. I'm not saying your hair has to look like you were trapped in a windtunnel overnight. But you might want to just lean a little bit in that direction. You represent all of us now. The era of doing your own hair is over. You look like you're using a comb. I'll have my people text your people. You are the face of the blogosphere now. You need to look like the future, not like you escaped from Wall Street in the last century. Have thought about shaving your head and a goatee? OK, you're right. That's not you. Maybe something spikier? Just think about it. That's all I'm saying. Here's a picture of me, just to give you some ideas.
posted by thomas at 2/13/2006 04:38:00 PM

 
Cool new way to invade people's privacy
By Tom Smith

This is cool. Now, armed with nothing more than your colleague's/date's/boss's/employer's etc. address, you can scope out how much their house is worth. Or just do your own. It seems to work! I think my "zestimate" came back a little high, but who's complaining? The graphics are neat, and it even shows a Google map style aerial photo of your property. I know it's wrong, but who can resist information?
posted by thomas at 2/13/2006 02:22:00 PM

 
Subpoena showdown?
By Tom Smith

I am baffled as to why Orin Kerr, over at VC, thinks that the (Supreme?) court(s) would uphold a subpoena by the Senate or House to force members of the Executive Branch to come and spill their guts about the NSA program. For one thing, U.S. v. Nixon appears to say (albeit perhaps in dicta) that national security is a very good reason for asserting executive privilege. Moreover, everybody in Washington knows that signals intelligence is the most secret of the secret stuff, and if the Executive says that national security demands that this program be kept secret, I really doubt the Court is going to want to second guess it. Furthermore, look at what is happening here. This very secret program gets outed in the press. A somewhat half-hearted furor ensues, mostly in the left-liberal press and commentariat. Yet it doesn't take an Hercule Poirot to figure out that one of the most likely sources of this story was the Senate itself. So, the Court is going to order the Executive to hand over more secret stuff to the Senate, which there is good reason to think is already leaking the stuff to the press, for reasons that look at least partly if not mostly political? Talk about soiling the judicial ermine. The compelling purpose for which the Senate needs this information is what -- are some Senate staffers planning to write a book or something? Add to this that if the Senate plays hardball, the DOJ can get some subpoenas of its own issued, in the investigation of who leaked to Mr. Risen at the NY Times. Do our brave Senators really want Risen sitting in jail, while they wonder how long he will keep his mouth shut? Finally, take a look at the Supreme Court. Are there really five justices there who would vote to support the release of this information, especially when the political question doctrine or something similar waits there as an alternative, when the Executive tells them that the NSA program is one of the few things standing between the country and the mad bombers? I think it is far more likely that they will say, this is for Congress and the Executive to work out among themselves. And they would be right.
posted by thomas at 2/13/2006 09:52:00 AM

 
Dead eye Dick
By Tom Smith

Maybe he thought it was a terrorist. Or a Democrat.

posted by thomas at 2/12/2006 06:39:00 PM

 
Those darn googlers
By Tom Smith

Maybe nobody has told them that DC is not SF? Maybe somebody should explain that Congress can pass laws, and that these laws could do things like forbid you from giving various tyrannical governments things they want to keep the restless in line?

At a minimum, I think Google should be required to report everything they do, right down to the last 1 or 0, to accommodate those pesky Chinese secret policepersons. And I still want to know if people who disappear in the real world of the PRC will also disappear in the googleverse.
posted by thomas at 2/11/2006 12:59:00 PM

 
Sigh
By Tom Smith

What can you say. It really is too bad that national defense is a public good. If it weren't, the Democrats could live in We're Not Scared Land, and the rest of us could live in our little gated communities, where crazed jihadist nutballs would not be allowed.

posted by thomas at 2/11/2006 12:48:00 PM

 
ABA goes big for telling law schools what their diversity policy should be
By Tom Smith

This piece by David Bernstein is troubling (subscription may be necessary):

The new [ABA] Standard 211, styled "Equal Opportunity and Diversity," would govern admissions and faculty hiring policies. It says nothing about treating people from different groups equally, and lots about "diversity" -- a code word for affirmative action preferences. "Consistent with sound legal education policy and the Standards," part (a) says that a law school must provide "full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities," and it must also commit "to having a student body that is diverse with respect to gender, race and ethnicity."
Part (b) says, "Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity."
This sounds innocuous, since law schools can reasonably differ on what constitutes "sound legal education policy." Some might think that the educational benefits of a racially heterogeneous student body justify significant racial preferences; others might give more weight to data showing significant educational costs resulting from preferences.
An empirical study by Richard Sander of UCLA, for example, confirms anecdotal evidence that student beneficiaries of such preferences tend to struggle in law school and end up at the bottom of their classes. Statistics published in the year 2000 also reveal that under current affirmative action policies, 42% of all African-American matriculants to law school either never graduate or never pass the bar (compared with 14% of whites). Some schools might conclude dooming a huge percentage of African-American students to failure is contrary to sound educational policy, and limit their "diversity" efforts to recruitment and retention.
That will not be possible, according to the "interpretations" of Standard 211, which have "equal weight" to the rules themselves. Interpretation 211-1 states that "the requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."
Racial preferences will thus generally be necessary to comply with Standard 211 -- despite the fact that several states, including California and Florida, ban race as a factor in law school admissions or hiring or both. Equally outrageous is Interpretation 211-2, which states that, "consistent with the Supreme Court's decision in Grutter v. Bollinger, a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity." This is a complete misstatement of the law, and the attorneys who wrote this are either incompetent or, more likely, intentionally dissembling.

So to satisfy the ABA, we would have to violate California law? That doesn't sound like a good idea to me.
posted by thomas at 2/11/2006 12:40:00 PM

 
Parents, beware this menace to your children
By Tom Smith

Curious George, victim.

You can't even make fun of this stuff.
posted by thomas at 2/11/2006 12:30:00 PM

 
Law prof salaries
By Tom Smith

Here's the low down on law prof salaries in the UC system. In dollars per unit of distinguishedness, they do seem pretty low. Jesse Choper gets only $198K per year? On the other hand, bear in mind that profs on this level in the food chain can make their salary and more consulting, if they decide they want to work more than 20 hours a week. Also, if you include non-salary, cash compensation, such as housing allowances, the numbers look more in line with the market, but still hardly generous, or up to what you would think such big names should be getting. UVA salaries are better. But they are hardly jaw dropping. I don't know how the USD piggy bank is doing, but I should think a number of these stars could come to USD and improve their style of life, in terms of money, sunshine and traffic. But money isn't everything (as the dean explained for the nth time). Housing is expensive in SD, however. On the other hand, all the law professors at USD are so wonderfully witty and friendly, it makes up for that. The moral of the story for young prof persons coming up, might be, consider the advantages of private institutions.

LET ME add that I am not trying to say teaching at a public institution does not have many big advantages. A school such as UCLA, for has example, has a huge, gorgeous campus, and many very strong departments, not just law. When I visited there some years ago, I took the opportunity to hook up with some UCLA astronomers, who were nice enought to let me tag along to some astronomy events. I was in geek heaven. It takes a big multiversity to pull that off. Plus big universities have cultural lives associated with them. My idea of heaven is a big university in a small college town located close to great skiing. Many years ago I had an offer to stay at such a place, but the salary was such I could barely afford to live in the lovely college town, and so ended up going elsewhere. Hard to have your cake, etc.
posted by thomas at 2/10/2006 08:14:00 AM

 
FISA kerfuffle update
By Tom Smith

The WSJ gets it right on FISA again. If only we all could be so reasonable.

How much more do you have to know about FISA than that it was passed in the wake of the Church hearings and even Jimmy Carter signed it reluctantly?

The Bush White House is so infuriatingly hard to predict. One moment they nominate what's-her-name to the Supreme Court, the next moment they nominate Sam the Great. (We pause here for a moment of gloating.) On the NSA business, one moment they are ably defending the right of the President to defend the country, the next they are scurrying about because some Congressperson finds the AG's defense of the legality of the program unpersuasive. Since when should anybody care what the legal opinion of anybody in Congress is? Do they even have legal opinions? Some Congressperson says s/he is very concerned blah blah blah about the constitutionality of the NSA program and the White House is supposed to care? I do not pretend I am some old Washington hand, but I worked in the White House for a year and dealt with Senatorial staff on various issues, and practiced law in DC for 4 years after that, and was involved in some "legislative" work (i.e. trying to get egregious special interest legislation passed, because we were paid by our clients to do so), and the notion that anybody, even said Senators and Congresspeople themselves, should take seriously their misgivings regarding the legality of NSA program or any other moderately complicated legal res is beyond absurd. It is downright silly. They do not have legal misgivings. Not really. They only have perceptions of political opportunities. With practice, they can learn to pursue these opportunities by expressing legal misgivings. Some of them can even pronounce "constitutionality," but nothing in their brains corresponds to this concept. And now the House intelligence committee, all 90 of them, wants to get involved. There is some Congressperson from New Mexico I have never heard of before who the LA Times tells us breathlessly is a former Air Force officer (officer? What does that mean? Lt. junior grade? General? what?) and a former member of the NSC staff (golly! a true expert!), and she has decided her subcommittee should find out all about how the NSA does things, dad gummit. Maybe the NSA should start a blog and just let us all know hour by hour how the top secret spying is coming along. "Picked up an interesting call between LA and Islamabad this morning. Something about dropping off "the big boom boom package" at the airport. Sounds interesting!" Or "spying will be light today; everyone's off to the crypto convention at MIT." And now it looks like FISA judges are getting into the leaking act. And these are the people we want deciding whether the phone numbers found on Johnny Jihad's laptop maybe tapped?

Let me recreate for you what is going through the average Senator's mind as he ponders deeply on the NSA issue: "Hmmm. If we get new legislation through updating FISA, that will make us look responsible, protecting civil liberties. That will help me if some other shoe drops. On the other hand, if a city gets blown up, and better intelligence might have stopped it, that will just be some judge's fault. Looks like a no lose no brainer . . . " If you were to ask said Senator, "What do you think is really necessary, in terms of domestic intelligence gathering, to prevent another catastrophic attack on the US?" you would get some waffle back, but if you could scan his brain, you would just get the brain state for a giant "Huh?" They have not pondered this issue, and they are not going to. It is not what they do. And this is among the statespeople of the Senate. In the depths of the House, you just have the equivalent of tossing a piece of ripe cheese into a barrel of mice. Oh boy! Now's my chance! I can get in the paper! This is just like Boys' State! Does the White House realize this? That they are only encouraging them? You cannot give these people a little information and satisfy them. It is not as if they really do have "genuine deep concerns about the legality of blah blah blah." This is the Congress. They see the NSA kerfuffle as a party, and they want to be invited. They want to get in the paper. They want people to think they are important. They want people to give them money. If you think it is a lot deeper than that, you haven't spent a lot of time trying to sell egregious special interest legislation to Congresspersons. I'm sorry. I did not invent our government, I only observe it. It is why we have a President. He should just stop explaining and do his job. If it makes him unpopular, and makes various journalists and pundits say he is a mean, scary president, and it's so scary that he is spying and who knows what else, well, too bad for poor old W. Maybe he will leave office unloved. If it is necessary for the national security, he should do it. It is not necessary that everybody like it. That's why they call it power, for heaven's sake. He should say, "this is necessary for the national defense, and we are going to keep doing it. Too much has been said already about how it works. For the details, you will have to wait until the war is over. If you think otherwise, good luck and we'll see you in court." (On the legal front, here is a question. Take the probability the Supreme Court would take the case where plaintiff wants to tell the President to stop his spying, then multiply it by the probability that the Court will tell the President, so sorry, you have to stop that nasty spying, and we sure hope that doesn't mean Chicago gets turned into a radioactive lake of glass. Now ask: do numbers come that small?) And if Congress tries to pass some stupid FISA the sequel, Bush should veto it, and tell the Congresspersons that he will do so. If the White House tells them firmly they have to find something else to pose over, then the Congresspeople will do so. Bush should also vigorously pursue the leakers, starting with a subpeona for young Reporter Risen. He can be the first to send his Pulitzer acceptance message from jail.

But here is a dead easy prediction for you. Now that all this secret stuff is being shared with our responsible, statespersonlike representatives in Congress, we all are going to be finding out a lot more about it. If you are crazed jihadist conspirator, you will want to stay tuned. You don't need a waterboard to get a Congressperson to talk.
posted by thomas at 2/09/2006 05:00:00 PM

 
Check out this website of common errors in English
By Tom Smith

And this WSU English Prof is scoring about 100K hits a month on his web page. I'm jealous. Oops. I really mean, envious. Lots of cool stuff. Duck tape. Asterisk. Celtic like kilt, not like the Boston Celtics, which is mispronounced, bizarrely given how many Irish Americans there are in Boston. (But then my mother's family says Coughlin like "Coff-lin", not "Cock-lin", as they do in Eire; no idea why. Maybe trying not to sound Irish?) And an extremely valuable and clear discussion of affect vs. effect. Please read it and never misuse those words around me again. Somewhere he says -- "Nobody said English was easy. Just memorize it and get on with your life." They don't make many professors like this anymore.

My own little suggestion would be, you don't have to pronounce aunt as "ahhnt" or envelope as "ahhnvelope," and for heaven's sake do not say, Nevahhhda, Orygone, or Colorahhhhdo, but please, put the accent on the second syllable of propane, cement, and insurance, not the first, unless you want somebody to think you chew tabacky and are married to your first through third cousin.

MORE FUN with words. Hat tip to LS.
posted by thomas at 2/09/2006 12:18:00 PM

 
Corporate social responsibility and reply to Bainbridge
By Tom Smith

Steve challenges me to 'operationalize' my claim that corporations no more than individuals can excuse immoral behavior by pointing to their duty or preference for maximizing somebody's (such as shareholders') wealth.

This can get tricky, because it depends on what you mean by 'operationalize' and what it means for shareholder wealth maximization to be a 'norm.' I tend to think the degree to which shareholder wealth maximization really is a norm, let alone a legal rule, is exaggerated. It is difficult to get into legal, as opposed to market, trouble for not maximizing shareholder value, the Ford and Dodge Bros. case being a rare counter-example. So, one has to construct a rather unrealistic hypothetical to tee up the question, but that is part of what law professors get paid for, so here goes.

Suppose you are the President or some other high officer of Hilton Hotels. You have a big hotel in Bangkok. It comes to your attention that a large tour group that operates out of, let's say, Japan, books large blocks of rooms in your hotel as part of its "sex tourist" business. That is, this tour group promotes and offers vacation packages to Japanese men who want to come to Bangkok and take advantage of the brothels there which specialize in child prostitutes. (I understand this is a big business, though I am making up the part about a tour company offering these trips explicitly in Tokyo, though it would not surprize me.) Further, let's say Hilton makes a lot of money on this trade. Now, let's say the Hilton executive decides the company just should not be involved in this business, because child prostitution is immoral. It amounts to little better than slavery in the best case, and is frankly slavery in the worst. Child prostitutes are ill treated, and usually get sick, die and are tossed away like soiled tissues. A dreadful business. So, Hilton executives decide they are just not going to do business anymore with that tour company, even though it is going to cost Hilton a lot of money to make this decision.

I would say, of course they can and should make that decision. And no shareholder should be in a position to make them do otherwise. Nor do I think any would be under current law. That is, I predict no judge would rule that Hilton officers had violated any duty they have to the corporation and its shareholders by making that decision, for moral reasons. Granted, it is likely the case would not even come up, because all the officers would have to say to avoid any question of violation of duty, would be to say, in their business judgment, the long term economic interests of the firm were not served by being involved in the child prostitution business. Business judgment rule to the rescue. But I think even if the Hilton officers for some reason said, we are not making the decision on economic grounds -- we just think as a moral matter, this company should not be involved in child prostitution, they would still win the case. Thinking this would not be the result is placing way too much faith in the persuasive and precedential power of the Dodge Bros. case. Good luck finding a judge that would tell Hilton they cannot do as I hypothesize they did. As a fallback, I would say, Hilton ought to win the case.

If executives were permitted to do this, does this mean that sometimes they would claim to have moral qualms about doing something that they really objected to for some other self-serving reason? Sure. But I think competitive markets serve as an adequate check against that sort to thing. If executives have qualms about not worshipping the golf gods at least twice a week, I think labor and capital markets will take care of them. And indeed, these markets may even force Hilton back into the child prostitution business, and laws may have to be passed to stop them (and may already have been, for all I know).

And then there is this . . .

Thai village a sex-trade hub as families sell off daughters
By Andrew Perrin

MAE SAI, Thailand - Ngun Chai sold his 13-year-old daughter into
prostitution for the price of a television set. He had no regrets. His
wife, Lu, had one. When she discovered that her eldest daughter wasn't
working in a bar in a nearby city - as the agent who bought the girl had
promised - but was selling her body in a Bangkok brothel to as many as
eight men a day, she wept. The tears were not for her daughter.

"I should have asked for 10,000 baht [$228], not 5,000," she said. "He
robbed us."

posted by thomas at 2/09/2006 12:00:00 PM

 
All of you are wrong
By Tom Smith

High fat diets are OK. High carb diets are OK. If you want to lose weight, eat fewer calories and exercise more.
posted by thomas at 2/08/2006 01:58:00 PM

 
Corporate social responsibility
By Tom Smith

My friend Steve Bainbridge has an interesting column up at TCS on corporate 'cowardice' and corporate social responsibility, prompted partly by Google's recent (in IMHO fairly shameful) dealings in China.

I have been thinking about corporate social responsibility, as it is rather awkwardly called, for a while, trying to develop my position on it. I think I may disagree somewhat with Steve; I know I do with some people. I should probably write a short essay about it, and if I can conquer sloth and disorganization, I will.

My starting point would probably be an essay which the philosopher Thomas Nagel, whom I consider to be a very, very smart guy, wrote probably 30 years ago called "Ruthlessness in Public Life." He wrote it during the Vietnam War era, and it sounds like it, but I remember thinking he was essentially right. His basic point was, I took it, that just because you are in a position of great power in no way diminishes your moral obligations, or somehow entitles you to a different set of morals, under which you are allowed to be more ruthless than we would think appropriate for private persons. I think something like this approach makes a lot of sense when applied to corporations.

Whether as a result of applying the "shareholder value maximization" norm, or some other desideratum, corporate officials and scholars sometimes speak as if they have a duty to maximize profits that somehow trumps other moral duties that individuals and organizations usually do or may have. That is what I disagree with. Corporations are free to maximize profits just as individuals are free to maximize their income, if that is what they want to do. Because corporations want to entice investors to buy their securities, they obviously have strong incentives to stress to investors just how important profits are to the corporation. But that changes nothing as far as the moral restrictions and duties corporations are subject to. A corporation is no more entitled than you or I to do something wicked, just because it is necessary to maximize profits. Indeed, the idea is so absurd, it is hard to believe anybody really makes that claim, and I am not sure anybody does, though sometimes it seems like they are implying it. A move sometimes made, perhaps e.g. by Milton Friedman, is that corporations are not real entities and therefore cannot be subject to moral duties or restraints. This strikes me as very silly, and I doubt anyone who is serious about morality at all really believes it. The idea that a bunch of people coordinating their actions are somehow suddenly released from moral restraints is ridiculous on its face. True, there is lots of work to be done in clarifying what it means to say, XYZ Corporation has a duty not buy Third World babies and turn them into dog food (to take a lurid example), but the bottom line is going to be, the agents of XYZ Corp. just cannot do that morally, whether it is legal or not, even if it would be a very profitable enterprise.

So with Google, I have no problem saying, it was immoral for them to cooperate in the efforts of the PRC government to keep their people from getting informed about human rights and related topics, so as to postpone the day of their liberation from Communism. Yes, if someone can tell a convincing story that that day is actually made nearer by Google's decision, that is another story. I don't see any reason for believing it, however. Tyrannies can find technology very useful, the hopes of starry-eyed techno-libertarians to the contrary. It makes no difference whatever to the rightness or wrongness of their or its actions that Google was only trying to maximize profits. Ve vere only trying to maximize ze profits! is not even the beginning of an excuse. Indeed, we normally take the desire to make money as an aggravating factor when it is the motivation for a bad action. It is hardly an excuse that you killed somebody for money, rather than for some other reason. It is no different for corporations. It is legitimate for them to try to make money, just as it for you or me to do so. That is their primary purpose, often. But it has to be done within moral constraints. I also think it is just fine for corporations to have other goals in addition to making money, such as Patagonia, Inc. wanting to be all tree-huggy and green, and why shouldn't they be?, and Ben & Jerry's wanting to be kind to animals or whatever it is they are. But that is another argument.
posted by thomas at 2/08/2006 11:26:00 AM

 
I think I liked my brain better when it was still maturing
By Tom Smith

I forgot what my point was.

posted by thomas at 2/07/2006 02:49:00 PM

 
Lt. James Golloday speaking at USD Law this Friday on Legal Aspects of WOT
By Tom Smith

I am happy to announce that Lt. James Golloday, an expert on legal aspects of the War on Terror, will be speaking here at USD Law School this Friday, at 12 noon, room 2B (that's the main floor) of Warren Hall (that's the main law school building).

If you are a Right Coast reader, you are invited!

Jim is an interesting guy. From 1989-91, he was an enlisted sailor in SEAL team FOUR and was deployed in Operation Just Cause (that was Panama, I believe) which is where I think he won his Bonze Star with Combat "V". Then the Navy sent him to Annapolis, and he became an officer with SEAL team FIVE out here in Coronado. He went to law school here at USD, where he picked up the top grade in quite a few courses, and asked me lots of hard questions in my Corporations class. After law school, he was a member of the DOD Criminal Investigation Task Force investigating terrorist suspects, then was Chief of International and Operational Law for the US Special Operations Command in Tampa, where he trained special operators (such as SEALs and Delta, I presume) on the legal aspects of their jobs. He was deployed in both Iraqi Freedom and Enduring Freedom. He is thus an expert with front line experience on the law of detention and prosecution of terrorist suspects. He also has extensive experience in JAG doing defense work at both the trial and appellate level.

Jim sent me some legal background stuff, for anyone who is interested. If you are, email me and I will forward it to you.

I am sure this will be an interesting talk. I hope to see lots of you there!

Pizza will almost certainly be served. I am in charge of organizing it, which is why I say "almost."
posted by thomas at 2/06/2006 11:32:00 AM

 
She's got that right
By Tom Smith

I am glad to see German Chancellor Merkel speaking this way:

German Chancellor Angela Merkel evoked her nation's own history as a cautionary tale of what can happen when threats to peace remain unchecked.

Dr Merkel, speaking at the annual Munich Conference on Security Policy, said Germany's own experiences during the 1930s should be a warning over how to deal with Iran. "Now we see that there were times when we could have acted differently. For that reason Germany is obliged to make clear what is permissible and what isn't," she said.

posted by thomas at 2/05/2006 10:33:00 AM

 
Cartoon kerfuffle
By Tom Smith

Those darn Islamofascist nutballs are at it again. Mark Steyn captures it as usual. When this started, I was inclined to think, well, you can't blame people for being upset when their religion is insulted. I didn't like "Piss Christ" or the BVM with elephant excrement on her either. I thought it was just dandy that Mayor Guiliani made life a little difficult for the Brooklyn Museum. But that was before crazed mobs started burning embassies and calling for murder of anyone who dares insult them. If there were a very large segment of Roman Catholicism that wanted to take over a large bit of the world, make all women dress like nuns, eat fish on Friday, never miss Mass, and punish heretics by burning them at the stake, and had been busy murdering innocent people by the thousands in order to bring the neo-Medieval world about, I would not be too shocked if somebody published an editorial cartoon criticizing it. If it showed the baby Jesus as a ticking time bomb, I would think, well, that's what I get for burning people alive. But then, maybe I lack the spirit of the true fanatic.

I think to view this whole episode as raising any serious questions about free speech is silly. The only question it raises is whether free speech is possible in a country that has a substantial number of people in it who do not believe in free speech. The answer appears to be, maybe not. Some Labour MP has opined that, if the women holding the placards saying "Those Who Insult Islam Should Be Butchered" can lawfully be deported, they should be. Sounds about right to me. That's a little bit of diversity we can do without.

What we are running up against here are the limits of tolerance. Open societies can tolerate a lot, maybe even special restrooms for the transgendered, but not large numbers of people who want to kill anyone who speaks critically of their benighted vision of the much desired future One Party Religious State. My view is that open, liberal societies have to be careful about how much of the politics of intimidation they put up with. They can't put up with much. Most people are easily frightened, and who can blame them. Not everywhere can be, say, Montana or all of Australia, where a good fight is appreciated. Once the politics of violent intimidation catches hold, it spreads, like a panic. But so far, thankfully, the Europeans seem to be holding up pretty well.

Not all Muslims, of course, are nutballs. There are the reasonable Muslims, some of whom are actually speaking up now, which is certainly welcome. But I suspect there are also sophisticated people in places of power in Saudi Arabia and Syria and other such places, quite happy to see the mobs unleashed to rattle the confidence of poor old Europe. These are not the people throwing firebombs, but rather the people making phone calls to tell the police chiefs in Damascus to go easy on the demonstrators. It is a strange, little controversy, but it does give the Muslim world an opportunity to demonstrate its strength, for the Muslim Street to flex its muscles.
posted by thomas at 2/05/2006 09:12:00 AM

 
Atticus Finch
By Tom Smith

Here is an interesting post at Powerline about Harper Lee and Atticus Finch.

Atticus Finch is indeed a person many of us think of when we think of the good lawyer. A person I think I can compare him to pretty fairly is my father, Walter E. Smith, who is now a retired state court trial judge in Boise, Idaho. I plan to write more about my dad at some point, but as I get older, I realize more what a special kind of lawyer he was. That all four of us kids became lawyers, one a litigator, one a prosecutor, one a federal judge and one a law professor (which arguably counts) says something, I suppose. He was a public servant during what were turbulent times in smallish cities across America. There was the civil rights movement, for one. As a moderate Republican (I suppose you could call him), he had to take sides in the whole debate over civil rights for African Americans. It was that kind of time. Lots of people in public life just had to take sides. He chose the pro-civil rights side, and marched with the not very numerous Blacks of Boise, Idaho, stood on the courthouse steps, and sang "We Shall Overcome." In the early 'sixties in Boise, that took some stones. He became one of the targets of the crazed right. This was before the great purge of the Conservative movement in America led by Bill Buckley, and if you supported civil rights, you were a communist or worse.

Before he became a trial judge, my father was a juvenile court judge (and before that he had practiced corporate law for a large department store company, which he did not like much). In the course of a decade, he was more responsible than anyone else for reforming Idaho's juvenile justice system, which in the 1950's was like something out of a Hollywood B horror movie, and turning it into a modern system. He was (and still is) fearless in a quiet sort of way, quite Atticus Finch like in that respect. Appropriately enough, one of his political enemies was the jackbooted local sheriff, whose aspirations for higher office fortunately never went far. When a new juvenile justice facility finally got built in Boise, the people behind it wanted to name it after my father. Characteristically, he declined, saying "I don't want my name on any damn jail."

I think there are a lot of good lawyers like my father out there, who have inspired others to go into law. Not to make money, or even to make a name for themselves, but because they want something that is hard to put into words, but is like, seeing justice gets done. As a law professor, I suppose I have opted for (what I see as) the good life, but when I think what a lawyer really should be, I too think of Atticus Finch, but before that, of my dad.
posted by thomas at 2/04/2006 10:32:00 AM

 
Kozinski blogging
By Tom Smith

Here is a long, detailed post on an interesting Kozinski opinion. K is one of my favorite judges, not first, or second, but definitely top ten. He is somewhat full of himself, as judges tend to be (Paul and Will, I'm not talking about you). But he has more right to be than most people who are full of themselves.

In any event, it seems to me K is right on this case, and that it is not that hard of a case. Without going through it in detail, it seems to me that it comes down to whether using a check guarantee card which you don't know the bank has cancelled, is fraud. The Nevada statute on check fraud can, I suppose, be read in various ways, but they all require fraud. Writing a check on an account that you know (or should know) has insufficient funds in it, is fraud because you are representing falsely that you do have funds to cover the check. What is the false representation in using a check card when you know or should know you are exceeding the credit limit of the card. You are violating your credit agreement, certainly. But to whom are you making a false representation? Not to the merchant, who is paid, because it honored a facially valid check card. To the bank? That makes no sense. The bank knows what your credit line is, and that you have exceeded it. Try as I might, I can't come up with any plausible deceit or false representation between card user and bank, only breaches of contract. If you could show the defendant planned to abuse the card from the opening of the account, that would probably be different, but a different case. So, Judge K is right again.

As to whether I would reverse on appeal the life sentence of a man falsely convicted on jailhouse snitch testimony (I know the testimony is false by hypothesis -- which does most of the work in this hypo), even though the jury believed him -- well, of course I would, and I would expect any good judge to do so. Yes, I suppose technically the jury's assessment of the facts deserves respect, and usually it does. This should be a heavy presumption. But if a judge really believes to a moral certainty that the jury was wrong on the facts, then he should not let an innocent man spend the rest of his life in prison to uphold the principle that the jury is the finder of fact.

In real life, however, I suspect this sort of hypo is unrealistic. Very rarely would a judge be able to tell from reading a transcript that a witness was lying, when the jury believed him. Demeanor and all that. If a judge thinks the witness is lying, he should probably consider whether he is not habitually oversure of his own opinions, as judges tend to be. Or just indulging a misplaced compassion for violent criminals, paper hangers or whatever other class of miscreant he is dealing with. That is a lot more likely than a false conviction by a hoodwinked jury. Juries can be fooled, but, I am told, it is hard to do.
posted by thomas at 2/04/2006 09:28:00 AM

 
Deliberate for extremism
By Tom Smith

This is funny. Deliberation leads to more extreme views.
posted by thomas at 2/04/2006 09:01:00 AM

 
Maybe Google's butt will get kicked in the Chinese market
By Tom Smith

They certainly deserve it. But whether their home grown competitor will be more freedom friendly, I don't know.

posted by thomas at 2/02/2006 04:54:00 PM

 
Go Lantos go
By Tom Smith

I don't often get the opportunity to praise Democratic Congressmen from California, so I will take this one. Tom Lantos is absolutely right about this. American high tech firms should be ashamed of themselves in their recent dealings with China. Congress should have hearings, dig deep, demand answers, and then, I hope, pass tough legislation that makes not being evil not just a cheap slogan, but the law, at least where evil means using some of the latest information management technology to do the bidding of a ferocious tyranny.

The more I think about this issue, the madder I get. I have spent a lot of time reading and thinking about search technology in the last year or so, in connection with my Web of Law project and my desire to improve legal search technology (which I consider to be extremely lame in in its current form). There is a lot more at stake here than just whether people in the PRC get access to the same set of web sites as we do. Search is just the word we use to describe a rapidly evolving set of technologies that potentially at least may ultimately manage most of the information we use in our lives. So if Google and Microsoft are starting off by blocking out inconvenient websites for their Chinese masters, where will they stop. Are we to believe "OK, So we were evil; but from now on, it's Don't Be Evil! Promise!" So, let's say the Chinese secret police decide some human rights activist has to disappear. Will Google acceed to their request that if you google his name, you will come up with a big nothing, or someone of the same name who sells cute Mao slippers in Canton? And what about records of search queries? The Party might find it very useful to probe the intentions of their subjects. How far is Google willing to go in finding out in what novel and powerful ways information technology and political slavery can be combined? I suppose it's like that old joke: "Now, Madam, we are just dickering over the price."

When I was an obnoxious student activist at Cornell in the 1970's, we found out that a company formerly owned by Cornell was developing a technology called FingerMatch, basically a biometric identification technology, primitive by today's standards, but cutting edge at the time, and trying to sell it to the South African Bureau of Mines and the South African secret police (BOSS), the secret police agency SAVAK in Iran, and a rogue's gallery of other secret police organizations around the world. Biometrics was just what you needed if you have an apartheid system that imposes complicated rules on who can be where at what times in your country. Blacks may all look alike to you, but their fingerprints don't -- so the South Africans were very interested in FingerMatch. We made a stink; what happened is another story. But the point is, technology can be used to implement tyranny, and it can be used in really diabolical ways. With Google and similar technologies you are talking about how to manage information, which means how to manage history, news, hopes, reputations, personal secrets, and much else besides. It is potentially an enormously powerful and dangerous tool, if put into the hands of the likes of the Communist Party of China.

Someone needs to put the fear of God into the heads of our geek geniuses. Let them know that evil may just be part of mission statement to them, to be disguarded when convenient, but it is something the rest of us fear, for good reasons.

AND there is this funny parody.
posted by thomas at 2/02/2006 11:59:00 AM

 
What WaPo liberals don't get
By Tom Smith

If you click through, you will eventually get to the offensive cartoon in the Washington Post, which makes a point about Rumsfeld by showing a "comical" depiction of a serviceman who has had all his limbs blown off.

For what it is worth, I will try to explain to people who do not already get it, why this is so offensive. First, terrible things like this really do happen. We treat them, or should, with a certain delicacy, because they are so awful. We usually do not make jokes out of miscarriages, children being crushed by cars, young people who die of cancer, babies born with horrible, disfiguring disabilities, middle aged women with children and other responsibilities who discover they are going to be dead in a few months from breast cancer, accidents in which whole families perish together, and one could go on and on. These are not funny things, and part of what makes them not funny is that they really happen, and all too often for most of our tastes. When my lovely wife Jeanne comes home from work, where she has had to tell some mom or dad that he or she won't be around to see their kids grow up, she is devastated by it, because it is one of those things that really, really suck. Similarly, it really happens that soldiers get some or all of their limbs blown off. It is not remotely funny. It is as dreadful as dreadful can be, so much so that but for courage most of us can only imagine, we think such a person would be better off dead. Out of this comes a point of civility: You just aren't allowed to use these heros, for that is what they are, to score your own, pathetic, allegedly homorous, little political points. You have to find some other way to do it.

There is another point that I am convinced the vast majority of people who think the editorial page of the Post or the New York Times taps into some deep wisdom, don't get. It is one of those facts that dawn on you maybe in your thirties or fourties if you are a child of the 1970's or maybe never. It is a fact like, you mean you have to work hard for the rest of your life? And, you mean children don't always turn out the way you would like?, and, You mean I really am eventually going to get sick and die? One of those facts the denial of which seems to be a pillar of certain world views. That fact is, that we get to live the way we do, free, rich, and relatively happy, because some people have what it takes to face down the miscreants with guns and bombs who want to take it away from us. It is shocking to me how few people seem to really know this. Without police, we would have no property. And without people like the one charicatured in the WaPo cartoon, we would have no freedom. It really is that simple. Yet those who "loathe the military" seem to view these people as being like the people who wash their cars or pick their lettuce for them. Paid servants, to be viewed with pity and contempt. It makes you wish that national defense were not such a public good, so that these sorts could not have their free ride.

Here's a somewhat relevant story I got from my father this Christmas. He is as deaf as a post, because, according to my lovely wife Jeane, of his service in the artillery in WWII. Big guns catch up with you that way, apparently, even many decades later. He was a young lt. commanding an artillery battery of 150mm howitzers in the Battle of Okinawa. His most dangerous moment came when a sniper (probably) managed to ignite the stockpile of ammunition behind the guns. The white phosphorus caught on fire, and rounds started to explode. Everyone ran. One round went off, caroomed across the ground, and cut off one of my dad's men's legs. They managed to save his life, but he lost his leg. Hundreds of thousands died on Okinawa, so I suppose you could count him lucky. But fifty years later, my dad still thinks of that incident with intense regret. He said that as a result, he gives money to Disabled American Veterans. It is not a fucking joke.
posted by thomas at 2/02/2006 11:24:00 AM

 
Iranian bus drivers arrested, families beaten
By Tom Smith

Arresting and beating the families of striking bus drivers seems low even for Islamofascists.

posted by thomas at 2/01/2006 06:34:00 AM