The Right Coast

February 28, 2006
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.

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.

February 27, 2006
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."

Our French Allies
By Maimon Schwarzschild

From today's (London) Telegraph:
France and the European Commission are leading a diplomatic drive to unblock £23 million in EU funding for the Palestinian Authority, without waiting for Hamas to renounce violence or recognise Israel.

Senior French officials said their government wanted the money freed immediately, and handed over in one block, as part of a strategy of reaching out to Hamas.
Words fail. But who can be surprised?

Mark Steyn writes:
In five years' time, how many Jews will be living in France? Two years ago, a 23-year-old Paris disc jockey called Sebastien Selam was heading off to work from his parents' apartment when he was jumped in the parking garage by his Muslim neighbor Adel. Selam's throat was slit twice, to the point of near-decapitation; his face was ripped off with a fork; and his eyes were gouged out. Adel climbed the stairs of the apartment house dripping blood and yelling, "I have killed my Jew. I will go to heaven."

Is that an gripping story? You'd think so. Particularly when, in the same city, on the same night, a Jewish woman was brutally murdered in the presence of her daughter by another Muslim. You've got the making of a mini-trend there, and the media love trends.

Yet no major French newspaper carried the story.

This month, there was another murder. Ilan Halimi, also 23, also Jewish, was found by a railway track outside Paris with burns and knife wounds all over his body. He died en route to the hospital, having been held prisoner, hooded and naked, and brutally tortured for almost three weeks by a gang that had demanded half a million dollars from his family. Can you take a wild guess at the particular identity of the gang? During the ransom phone calls, his uncle reported that they were made to listen to Ilan's screams as he was being burned while his torturers read out verses from the Quran.

This time around, the French media did carry the story, yet every public official insisted there was no anti-Jewish element. Just one of those things. Coulda happened to anyone. And, if the gang did seem inordinately fixated on, ah, Jews, it was just because, as one police detective put it, ''Jews equal money.''
Read the whole thing.

The decency of post-war Europe that Sybille Bedford wrote about (see the next post below) seems long ago and far away.

UPDATE: In fairness, there is this. (Hat tip to Harvey Zall.) But the basic picture isn't good, helas. Counterdemonstrations of a few hundred people, or even of a few thousand, are scarcely reassuring in countries like France or Belgium where the plumbers union (or whoever) can regularly turn out hundreds of thousands.

Faces of Justice
By Maimon Schwarzschild

The author Sybille Bedford died in England last week, aged 94. Here is the (London) Daily Telegraph obit. Bedford had an unusual and very unconventional life. She was also a good writer about law. "The Faces of Justice", published in 1961, was a kind of legal travelogue about the post-war western European legal systems: a humane, revealing, and charming book -- still fresh, I think, nearly half a century later, although the post-war Europe she described has vanished utterly. Says the Telegraph:
After writing The Faces of Justice (1961), which was a series of descriptions of proceedings in English, German, Swiss and French courts, Sybille Bedford described herself as "a private and unlearned aficionado of the law". In fact, her skill at reportage, and her perceptiveness and intelligence, made her one of the most astute observers of legal procedure of her time and won her high praise.
Bedford was impressed by the day-to-day decency of the courts she visited in England, West Germany, France, and Switzerland. Not by the courts in Austria, though: her chapter about them is very funny, and not at all kind to the Austrians. Bedford's father was an "eccentric" German baron; her mother a German Jew. Was Bedford expressing, or even mocking, the old prejudices that her parents probably had against Austria...?

February 25, 2006
Markets for Traffic
By Mike Rappaport

One of the most significant inefficiencies in modern society is traffic congestion and this inefficiency is directly the result of government operation of the roads. Gary Becker discusses how market pricing could correct these problems at the Becker Posner blog.

I used to discuss market pricing of the roads in my Environmental Law class. Most people were very hostile to the idea. My sense was that much of the opposition came from two sources: (1) the belief that existing systems, despite their inefficiencies, are natural or preferred, and (2) disagreements over the facts concerning what causes traffic at present and what other reforms might address the issue. I was amazed to listen to southern Californian students praise the virtues of mass transit, knowing that most of them had never commuted on a subway. It was hard to communicate what it was like to grow up in New York and take a subway to high school.

February 23, 2006
"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.

Attacking Bush from the Right
By Mike Rappaport

I am looking forward to having a look at this book, which has already created quite a stir even before it has been published. Here is a brief summary from Amazon:

Bartlett, an economist and former Reagan administration official, attacks the Bush administration hard but from the political Right. Challenging Bush's conservative principles of operation and credentials, Bartlett actually gives former president Clinton more credit for following conservative economic principles. In contrast, the Bush administration has been marked by shortsightedness, if not anti--intellectualism, too willing to reward friends without regard to competency and to punish as enemies those who deviate from the party line. Bush's shortcomings include his drug bill, trade policies, and expanded regulatory requirements. Interestingly, Bartlett concludes that Bush's relentless effort to cut taxes will leave an unenviable legacy for a conservative--the need for America's largest tax increase. Bartlett also takes the administration to task for corruption that violates the principles of difference the Republican Party declared during the campaign against Clinton. This is a worthy critique, one that the administration will not be able to dismiss as liberal propaganda.

Here is a shorter version in a Cato Paper from Bartlett.

It is interesting to compare Bush 43 to Bush 41, with this description in mind. In many respects, Bush 43 has a similar economic policy, although he has spent more money. My guess this is because Bush 43 has faced a Republican Congress whereas Bush 41 would have taken even greater heat from approving Democratic policies.

February 21, 2006
Larry Summers Resigns
By Gail Heriot

It's a sad day for Harvard and American higher education.

Sounds like fun
By Tom Smith

The California Bar, take two.

February 20, 2006
Cowan on Epistemology
By Mike Rappaport

Apparently, Tyler Cowan hates epistemology. But he does have some good insights about it. Here is one:

You are wrong so, so, so often. That is, or rather should be, the central lesson of epistemology. It is a lesson which hardly anybody ever learns. And you don't need the fancy philosophical machinery to get there. That is why the rest of epistemology is so often so fruitless.
Yep. (And don't tell me I am wrong about this!).

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.

February 19, 2006
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.

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.

February 18, 2006
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.

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.

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.

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 '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

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.

Oil for Food but Give up your Farming
By Mike Rappaport

Another "advantage" of not invading Iraq and using the oil for food program:

Michael Totten reports:

I met a Palestinian-American from Beirut who works as a private sector aid worker of sorts. I’ll call him J. He’s there with a company to help Iraqis get their agriculture sector back up to speed after the Oil-for-Food program demolished it. (Agriculture products – wheat, etc. – were brought in from outside the country and distributed socialist-style for free to every Iraqi through the UN while Iraq was under sanctions. Locals farmers, then, had no reason to grow any crops. Their market was almost completely destroyed, and so was their business.)

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.

February 17, 2006
By Mike Rappaport

The creative powers of a free civilization -- at work at ridiculing the jihadists.

NSA program update
By Tom Smith

Keep up with the super-secret spying program here.

Germany Remembers: and How Anti-Americanism and Anti-Semitism are Entwined
By Maimon Schwarzschild

January 27th is the anniversary of the liberation of Auschwitz by Soviet troops in 1945: and it is the official holocaust memorial day in Germany. The German Bundestag (the federal parliament) observed the memorial this year by hearing an impressive and touching speech by Ernst Cramer: 92 years old, a German Jew born before the First World War; an inmate, briefly, of the Buchenwald concentration camp during the round-up of German Jews in 1938; an American citizen who was present -- as an American soldier -- at the liberation of the Buchenwald; a well-known Berlin writer, journalist, and foundation officer. Cramer speaks reflectively and simply about his own life, and about the crimes and catastrophes of 20th century Germany. He ends his talk by making explicit the link that everyone in Europe quietly understands, but that's so very rarely mentioned out loud: that today's anti-Americanism is often wrapped up in anti-semitism, and vice versa.

Cramer begins with the story of his own life, and he says:
In my early years the Reichstag building... was akin to the nation’s temple, a cathedral of democracy, a guarantee of the values of the Enlightenment. I believed that this palatial building was the very embodiment of freedom, liberality, tolerance, human dignity and the true spirit of Germany.

[O]n 15 September 1935, the Reichstag, which by then consisted solely of National Socialists, meeting in Nuremberg where the [Nazi] party held its conventions, passed the laws... which robbed all German Jews, including me, of their civil rights. Overnight I and all the other German Jews were deprived of the rights which our forefathers had won by dint of living and working for centuries in German lands. I – and hundreds of thousands like me – had ceased to be German citizens. A few years on from then, in November 1938, I was sent to a concentration camp.

Today, a biblical lifetime later, I stand here in the Reichstag, before the highest organs of the reborn and reunited free Germany, and have an opportunity to recall, for all of us, the atrocities perpetrated by Germans between 1933 and 1945. Together with all of you, I am able to mourn the many million victims who were killed by Germans or on German orders.

For making this total transformation possible, for enabling Germany to re-emerge as a free state, upholding freedom and profoundly aware of its responsibilities, but also for enabling us today to commemorate the many victims of that time here and right across the world, I thank all those who played their part.

I thank the soldiers of many nations who fought and triumphed over Nazi Germany; I thank the politicians and statesmen who after World War Two avoided repeating the mistakes of 1919 - I am thinking of Versailles - and instead gave a redeemed Germany the chance to renew itself; I thank all those who helped to clear the rubble of the fallen regime, as well as the emotional and physical debris left behind, and to rebuild our Germany.
There is a small but growing Jewish community in Germany today -- almost all arrived from the former USSR. Says Cramer:
Today there are virtually no “indigenous” German Jews still living in Germany; I am one of the last of them. Yet, on the other hand, the Jewish community is growing. This is a strong sign of trust. There is – largely as a consequence of the Nazi policy of extermination – a land of the Jews, Israel. Germany has maintained diplomatic relations with the State of Israel for 40 years.

Jews are living in Germany again. Unfortunately – not for this reason, indeed completely independent of it - anti-Semitism is resurfacing, as in other parts of Europe. It is there even if hostility towards Jews is today often largely concealed or camouflaged as criticism of Israel – sometimes one can even hear the absurd claim that the Israelis are today’s Nazis.
And now Cramer draws the parallel between today's anti-semitism and the wave of European anti-Americanism:
Anti-Americanism is also quite often closely allied to anti-Semitism. Along the lines of one of Hitler’s arguments, it is often claimed that the Jews have too much influence in the USA, that they determine – mainly on account of Israel – American foreign policy. That is humbug, but there are those who believe it.
A memorable and brave talk. Here is the original, in German, from the Bundestag website. And here (as a Microsoft Word document) is the unpublished English text, from Ernst Cramer's office in Berlin. It's an extraordinary speech. Do read the whole thing.

February 16, 2006
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.

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.

February 15, 2006
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.

That's showbiz, grasshopper
By Tom Smith

Shaolin Temple plans American Idol style show to pick new kung fu stars. No kidding.

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.

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?

Richard Epstein on the NSA Anti-Terror Program
By Mike Rappaport

Richard Epstein, one of my heroes, publishes an op ed in the WSJ($), which argues that the NSA Antiterror program is illegal. Epstein argues that the Commander in Chief Clause is narrow and does not provide authority for the program. He also argues that the Authorization of Military Force statute clearly does not provide the President with authority for the program.

I part company with Epstein's claim that the Authorization of Military Force statute clearly does not provide the requisite authority, as I have discussed before. As to his Commander in Chief argument, while I basically agree with his conclusion that the original meaning of the Clause provides narrow authority, I disagree with his reasoning.

He writes:

[The Constitution provides that] "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the militia when called into actual service of the United States." Note the word "power" appears no where in this sentence. The operative verb is "shall be."

The choice of words is not inadvertent. Later in the same section the Constitution provides that the president "shall have the Power to grant Reprieves and Pardons for offenses against the United States, except in cases of impeachment," and the "Power, by and with the Advice and consent of the Senate to make Treaties." Elsewhere the president shall "receive" ambassadors and "require" reports from his subordinates.

Words matter. Only powers allow for a change in legal status of the persons over whom some power is directed. Thus the president's power to grant reprieves and pardons is rightly described as "plenary," precisely because Congress has no stated power to hedge it in by legislation, for example by declaring certain offenses unpardonable. The president's power to make treaties is likewise plenary, but now subject to the explicit check of Senatorial advice and consent. (Emphasis added)
This argument does not work, since there is a clear counterexample: The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officers of the United States, including Supreme Court justices. Clearly, the appointment of a Supreme Court justice changes the legal status of the person appointed, yet there is no mention of power.

It is not entirely clear why the Constitution sometimes uses power and sometimes not, but I have a different hypothesis: the Constitution uses power when it is conferring a discretionary power on the President (that the Congress cannot mandate); by contrast, in cases when it uses "shall," it imposes a binding obligation, including one that the Congress can mandate. So the President is Commander in Chief and must take care that the laws be faithfully executed. Similarly, he must make appointments to various offices (if Congress requires it). By contrast, he need not make recess appointments ("The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate").

Fox News
By Mike Rappaport

I had known that Fox News handily beat its competitors, but I have not realized by how much. Hugh Hewitt reports the following numbers:

6pm: Hume: 1,448,000 / Dobbs: 745,000 / Abrams: 290,000

7pm: Shep: 1,458,000 / Blitzer: 625,000 / Hardball: 534,000 / Showbiz: 123,000

8pm: O'Reilly: 2,244,000 / Zahn: 647,000 / Countdown: 479,000 / Grace: 529,000 / On The Money: 223,000

9pm: H&C: 1,379,000 / King: 751,000 / Rita: 284,000 / Prime News: 346,000 / Mad Money: 182,000

10pm: Greta: 1,088,000 / Cooper: 594,000 / Scarborough: 293,000 / Grace: 272,000 / Deutsch: 121,000

11pm: O'Reilly repeat: 1,000,000 / Cooper: 373,000 / Situation: 169,000 / Showbiz repeat: 149,000 / On The Money repeat: 59,000

These are enormous disparities. Its a new world. The first presidential election reported by Fox News was Bush v. Gore. Despite some mistakes it and the other networks made, I believe Fox had an important impact. Who knows if the result would have been different had there been no voice for the Republicans then -- and now.

February 14, 2006
Why Hamas Won
By Mike Rappaport

Fareed Zakaria has an interesting explanation in his Time Magazine column:

Let's stop for a moment and understand how this happened, so that at least we can stop being surprised. The story of the rise of Hamas mirrors the rise of almost all such Islamic political parties in the Middle East.

For decades, the dictators who ruled (and rule) the Middle East destroyed all political opposition groups. They were particularly aggressive in co-opting or exterminating liberal, secular, forward-looking groups because those were seen as most threatening. They were often less harsh toward Muslim groups, partly because the Islamists were seen as less political. And, of course, you cannot ban the mosque in an Islamic country.

Rulers like Anwar Sadat and Jordan's King Hussein often used Islamic groups to discredit the secular opposition. Decades of repression, incompetence and stagnation ensured that citizens got increasingly unhappy with their regimes. And the only organized, untainted alternative was the Islamic movement.
While I am discussing Zakaria, let me recommend his book "The Future of Freedom: Illiberal Democracy at Home and Abroad," which did not receive the attention it deserves, especially among libertarians. It is not a strict libertarian book, even of the moderate variety, as it seems to embrace rule by elites a bit too much. That said, it is filled with powerful and well documented explanations and arguments. Well worth the read.

The Evil of Campaign Finance Legislation
By Mike Rappaport

This is from the article on the same by Brian Anderson, previously linked to by Maimon:

Two popular conservative talk radio hosts, Kirby Wilbur and John Carlson, explained why the gas tax was bad news and urged listeners to sign the 225,000 petitions necessary to get the rollback initiative on the November ballot, though they played no official role in the campaign and regularly featured on their shows defenders as well as opponents of the tax hike. With the hosts’ help, the petition drive got almost twice the needed signatures, but the ballot initiative, strongly opposed by labor unions, the state’s liberal media, environmental groups, and other powerful interests, narrowly lost.

Meantime, however, a group of pro-tax politicians sued No New Gas Tax, arguing that Wilbur’s and Carlson’s on-air commentaries were “in-kind contributions” and that the anti-tax campaign had failed to report them to the proper state authorities. The suit sought to stop NNGT from accepting any more of these “contributions” until it disclosed their worth—though how the initiative’s organizers could control media discussions or calculate their monetary value remained unclear. The complaint also socked NNGT with civil penalties, attorneys’ fees and costs, and other damages. Even more offensively, to litigate the suit the politicians hired a private law firm, Foster Pepper & Shefelman, which serves as bond counsel to Washington State. The firm, which represents unions, hospitals, and retirement funds among its other clients, could thus clean up from the state’s plan to sell gas-tax-backed bonds. Appearance of corruption, anyone?

The real target of the suit was clearly Wilbur and Carlson, or, more accurately, their corporate employer, Fisher Communications. If NNGT received the “contributions,” that meant Fisher had sent them by broadcasting Wilbur’s and Carlson’s support for the initiative. Washington law limits contributions in the last three weeks of a political campaign to $5,000. Depending on how one measured the dollar worth of on-air “contributions,” Fisher could thus face big fines and criminal sanctions if it let Wilbur and Carlson keep talking about the gas tax. “Thankfully, Fisher assured us that we could keep talking about the subject on the air, and we did,” Wilbur says. The judge ruled in favor of the pro-tax pols, though he finessed the $5,000 limitation problem by ruling only on the “contributions” that occurred prior to the campaign’s last three weeks.

The Institute for Justice, a libertarian legal defense group, has entered the fray, filing both an appeal to the Washington Supreme Court and a counterclaim against the politicians behind the suit. “I think this case presents a substantial issue under the First Amendment,” institute attorney Bill Maurer explained. “This is one of the most important cases nationally about the right of the press to speak freely, without the interference of the government or regulation of the government—because the power to regulate is the power to suppress.” Should the appeal lose, the days of political talk radio could be over not only in Washington State but everywhere. “McCain-Feingold could definitely be used in the same fashion,” Maurer tells me. “In fact, the prosecutors in this case say McCain-Feingold permits them to do this. But pretty much any state that has campaign-finance laws that restrict contributions is subject to this abuse, too.”
When we look back at George Bush's presidency, one of his worst acts -- in some ways far worse than Medicare Prescription Drugs, since it was unnecessary -- was his approval of McCain-Feingold. Just compare that to Ronald Reagan's veto of the Fairness Doctrine, which set in motion the new media. And, of course, the Supreme Court's approval of that law does little honor to an institution that unfortunately had little to begin with.

February 13, 2006
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.

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?

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.

Making Israel Part of NATO?
By Mike Rappaport

The Wall Street Journal floats the idea of defending Israel from Iran by making it part of NATO. I suppose I have nothing against it, and perhaps it would help. But I surely hope that I am right in thinking that, if Iran were to attack Israel with nuclear weapons, there would be nothing left in Iran for NATO to do after Israel was done. I would be sorry for the innocent Iranians who would be harmed by this response, but responding to a nuclear attack with nuclear weapons is fair game. That, by the way, is a reason why the Iranians who oppose the government should be taking more action now. And why the US should be helping them more.

Of course, the world will no doubt blame the victims -- the Israelis -- as always. After all, the world treats the "occupation" of the territories as if it occurred in an offensive war of aggression, when in fact it involved Israel taking territories in a defensive war, territories by the way that were previously controlled by other "imperial" powers, not by the Palestinians.

The Legal Elite at Work: It Sure Ain't Pretty
By Mike Rappaport

Here is how it works. Justice Stephen Breyer writes a book defending nonoriginalism. As I have written in my review of the book here, I think the book is dishonest and weak. In particular, it portrays its position of finding any meaning Breyer wants to in the Constitution as an exercise of judicial restraint.

The New York Times reviews the book. Who do they assign to do it? Kathleen Sullivan, former Dean of the Stanford Law School and a reliable partisan voice for liberal activism. And what does Sullivan say? She simply repeats the arguments of the book, including that Justice Breyer is really a practitioner of judicial restraint.

Any criticisms of the book, Kathleen? None she thought fit to mention. Here is one she left out: Breyer spends the whole book talking about how one should interpret the Constitution to further political participation and uses that to justify his decisions. Yet, Breyer wrote the Court's decision stating that the Constitution protects partial birth abortions. No political liberty implicated there, neither for the mothers or the fetuses. Yet, Breyer says nothing about it, and Sullivan of course ignores it as well.

One might ask how Sullivan or Breyer can face themselves, but of course we know the answer: They will do anything to justify reading in their favored rights into the Constitution, especially the right to abortion.

This is corruption.

February 12, 2006
Dead eye Dick
By Tom Smith

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

February 11, 2006
How (Not) To Save the Newspapers
By Maimon Schwarzschild

A left-wing group in Chicago has sued Craigslist, the online classified service, for allegedly printing discriminatory advertisements. The suit is "part of an emerging attempt by housing watchdogs nationally" to bind online classified sites to the complex anti-discrimination regulations that apply to print classifieds in newspapers -- regulations that differ from state to state and even from city to city. The regulations typically require print publishers to scrutinise the wording of each and every ad, which would be impossible in the decentralised online world. And national or global websites are obviously in no position to comply with mutually inconsistent local "equal opportunity" regulations and paperwork.

Craigslist and similar websites are an important drain on newspaper revenues, which are dropping, of course, for other reasons as well. Insofar as most newspapers are now symbiotic with the Democratic Party, any such drain is a threat to the political left in this country. (Even local newspapers that are owned by Republicans increasingly have leftish newsroom staffs; and they almost all print acres of even-more-leftish AP or New York Times news service wire copy.)

The Craigslist lawsuit is thus an early confirmation of a recent prediction by Brian Anderson in City Journal:
The rise of alternative media — political talk radio in the eighties, cable news in the nineties, and the blogosphere in the new millennium — has broken the liberal monopoly over news and opinion outlets. The Left understands acutely the implications of this revolution, blaming much of the Democratic Party’s current electoral trouble on the influence of the new media’s vigorous conservative voices. Instead of fighting back with ideas, however, today’s liberals quietly, relentlessly, and illiberally are working to smother this flourishing universe of political discourse under a tangle of campaign-finance and media regulations.
No doubt the adversaries of "new media" will try. But if this lawsuit is an example, it seems a pretty feeble one. The Craigslist suit is weak on the law. And even if a friendly judge (i.e. unfriendly to Craigslist) thinks otherwise, what is to stop Craigslist, now headquartered in San Francisco, from becoming headquartered in sunny Nassau, Bahamas; or anywhere else in the world?

If Craigslist goes offshore, how about lawsuits -- or criminal prosecutions -- against anyone who buys an ad?

Do you think that would be politically popular?

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.

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.

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.

Parents, beware this menace to your children
By Tom Smith

Curious George, victim.

You can't even make fun of this stuff.

February 10, 2006
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.

February 09, 2006
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.

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.

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."

February 08, 2006
Political Experts
By Mike Rappaport

Interesting interview at TCS of Philip Tetlock, who has just published the book "Expert Political Judgment, How Good Is It? How Can We Know?" The book is "the result of years of research during which he worked with almost 300 experts known for commenting or offering advice on political and economic trends." Here are some interesting excerpts from the interview:

Tetlock: And one of the first things we discover is that there is a tendency for experts to claim to know more than they do about the future.

The second thing you notice is that some experts are much more prone to be over-confident than are other experts. And that's where we get into our classification of experts in terms of their styles of reasoning as either hedgehogs or foxes.

Schulz: So you divided your experts into camps using the famous Isaiah Berlin distinction that hedgehogs know one big idea and they confidently stick with it, applying it to any and all or various scenarios, and foxes are more flexible and skeptical. And what did you find in comparing those?

Tetlock: Well, the key finding is a bit on the complex side. It's that if you have a hedgehog style of reasoning and you have a very strong ideological commitment to a point of view and you're making long-term predictions, you're at serious risk of falling off a cliff in terms of your predicted accuracy. You pay a price for having the combination of a very theoretically focused cognitive style, a very strong theoretical set of commitments associated with that style, and looking at the more distant future where there is more opportunity for our biases to come into play.

One of the curious things about my experience in this study is that those experts who tend to be more doubtful that they could predict anything, were actually somewhat better at predicting. So modesty was actually a useful cue for accuracy in this context.

Schulz: And these folks would have been foxes or …

Tetlock: They're more likely to be foxes. Foxes are more likely to believe that there's a certain amount of uncertainty and indeterminacy in the world, that the world just oscillates sometimes in violent unpredictable ways.

[These findings raise] the interesting question of [why experts do so poorly]. And one possibility is that people aren't selecting experts primarily on the basis of the truth value of their pronouncements. People are selecting experts on other grounds and what might those other grounds be?

They're suggested in a lovely book Richard Posner wrote on public intellectuals. One is that the experts are providing what he called solidarity goods and the other is experts are providing entertainment goods. Now, a solidarity good is when it doesn't really matter whether the experts are right or wrong. The expert is affirming your values and the expert is doing a good job mashing the other side, affirming your side and making you feel good about your world view. So that would be a kind of a solidarity function for instance, better than a truth-seeking function. And an alternative function, a third function would be simple entertainment value.
A fascinating interview. Read the whole thing.

Update: It is interesting to compare the accuracy of political experts with those of scientific or medical experts. My sense of scientists is that they follow a strong norm of being cautious, something that would certainly help with the political experts. Medical experts, though, strike me as prone to many of the same biases as the political experts. Witness, for example, the most recent study debunking the fat is bad view of the 1980s. Now, what business did all of those people have making that mistake.

Finally, consider global warming scientists. My sense is that there is great pressure on scientists to agree with the "consenus" on global warming. Very little caution there. And hence my skepticism about is claims.

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.

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.

February 07, 2006
I think I liked my brain better when it was still maturing
By Tom Smith

I forgot what my point was.

I Intend Not To Torture Unless I Change My Mind
By Mike Rappaport

Recently, President Bush signed a law prohibiting torture, but in the signing statement announced that he reserved the right not follow it to the extent it was unconstitutional. Also, during his confirmation hearings, Judge Alito was asked about his view, articulated in the 1980s, concerning the force of signing statements in the interpretation of statutes. These events have created significant controversy about signing statements.

The controversy involves a couple of issues. The first is Judge Alito's issue: whether courts, when interpreting a law, should take account of the President's intent, as reflected in a signing statement, as much as they do the Congress's intent as reflected in legislative history. This issue is not too interesting to me, since I believe that neither Presidential Signing Statements nor legislative history should be used in construing statutes.

The second issue, raised by President Bush's action, is more interesting. In the last several decades, Presidents have issued signing statements instructing the executive branch that a provision in a law is unconstitutional and should not be enforced. In other words, the President's signs the law but notes that a part of it is unconstitutional.

This practice, I believe, is unconstitutional and illegitimate. In a law review article written more than a decade ago, I argued that if the President believes that a provision of a bill is unconstitutional and that he has the power to not enforce it if it is passed, then he is required to veto it. Given that he believes that the Constitution forbids him from enforcing an unconstitutional law, he should also believe that he is required not to sign that unconstitutional law. See "The President's Veto and the Constitution," 87 Northwestern Law Review 735 (1993).

Thus, President Bush should have vetoed the law had he believed it unconstitutionally constrained his commander in chief or executive power. The only counterargument might be that President Bush believes the law is not always unconstitutional, but only under limited circumstances -- such as when he determines that it is necessary to torture in order to protect the United States during wartime. But the fact that the law is not always unconstitutional does not excuse signing it. President Bush might also have legitimately signed the law if he believed it did not intend to restrain him from torturing when the Constitution prohibited such restraint – that is, if the law was read as if it said “to the extent permitted by the Constitution.” But that interpretation of the law appears to be clearly mistaken.

While I therefore believe that President Bush acted improperly under what I regard as the original meaning of the Constitution, that does not mean that his critics have it right. Most of his critics reject original meaning. Many of them accept using practice and precedent to interpret provisions, and President Bush here has followed his predecessors, including his father and President Clinton, in signing laws that he intends not to enforce. So this criticism, like so many other criticisms of President Bush, seems partisan and result oriented.

February 06, 2006
Senators Kennedy and Durbin Meet the New Media
By Mike Rappaport

These Senators are not only clueless about policy; they also seem ignorant of why they now have less power. Paul Mirengoff of Powerline writes about his questioning of Senator Durbin:

I then asked why, if the Democrats disagree with the administration's understanding of what AUMF authorizes, they don't present clarifying legislation telling the administration that its interpretation is incorrect. This would enable the Senate to vote on whether it thinks listening to calls from al Qaeda to the U.S. is a necessary and proper measure to prevent another attack.

Apparently peeved at the thought of having to vote on that issue, Senator Durbin asked what organization I was with. I told him I was respresenting Power Line and Pajamas Media. Durbin said he wasn't familiar with this group, and then proceeded to address my question. His answer was (I quote from memory) that "this is not how things work" and that (if I understood him correctly) the issue is whether the president's actions are constitutional.

I attempted to follow-up by noting that if the administration is right about the interplay of FISA and AUMF, there is no serious constitutional question because the president is acting with the permission of Congress. Durbin made it clear, however, that questioning was over. His parting shot was that he would try to check out what I write for "Pajama Line." My parting shot, that Dan Rather knew something about the outfit, drew laughter.

John Birch Watch
By Maimon Schwarzschild

Senator Leahy on "Face the Nation" yesterday: "[T]he Bush administration knew the names of the hijackers before 9/11, they did nothing on it". (Page 6, bottom, in the transcript linked above.)

The paranoid style, so reminiscent of the John Birch Society in the 1950s, is now so normal among Democrats -- does Leahy share it? or was he merely pandering to it? -- that CBS's Bob Schieffer did not even bother to follow up by asking Leahy "Um, what do you mean by that?"

If you are a politician like Leahy, of course, you might begin by pandering, but you soon begin to share the paranoia -- if only to spare yourself the cognitive dissonance of saying one thing so much of the time yet believing another...

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."

The Proper Response
By Mike Rappaport

This is the way a free society responds to actions done which are culturally insensitive.