The Right Coast

February 28, 2005
Don't Blame Pete Wilson for Making California a Blue State
By Gail Heriot

Brendan Miniter's comment in today's WSJ Political Diary (subscription required) seems quite unfair to me. He suggests that former California Governor Pete Wilson and Proposition 187 (which denied illegal immigrants certain state benefits, including welfare benefits) are responsible for making California a Democratic electoral stronghold. I'm starting to hear this everywhere I go and it's utter nonsense. And I'm saying that as someone who opposed 187 and who regards herself as moderately pro-immigration (though I would like to see some significant changes to our immigration policy).

Democrats increased in strength largely because more Hispanics and Asians moved to California (and more blue-collar whites left for Nevada, Arizona, etc.). Demographics matter. First generation immigrants tend to be Democrats in part because they will tend to come from the lowest socio-economic strata. That has nothing to do with their "reception." Had Pete Wilson greeted them at the border with a kiss and a bottle of champagne, they would still be Democrats. It wasn't Wilson's alleged anti-immigrationism that made California a Democratic stronghold, it was immigration itself. The best the GOP can do is try to pick up as many Hispanic and other votes as they can (and I strongly support those efforts).

Is it possible that there are a few Hispanic immigrants who will tell you that they would have been Republicans but for Proposition 187? Sure, but there may also be a few Mexicans living in Mexico who will tell you that they would have immigrated to the USA (and voted Democratic) but for Wilson and 187. I don’t know which way it nets out. The one thing I’m pretty sure of is that the effect is tiny relative to the overall effect of immigration. Blaming California's Democratization on Wilson is like blaming a flood on some guy for peeing in the river.

Prof Chruchill, redux
By Tom Smith

Michelle Malkin has these excerpts, which are reputedly from Ward Churchill talks at some college campus. Am I missing something, or is he referring to the terrorist attacks that killed some 3,000 innocents, and killed them in a particularly horrible way, as good things? That's certainly what it looks like, but without the context, one can't be entirely sure. But if he is saying what he sounds like he's saying, well, then, the trustees at Boulder should just fire the guy. Good grief, if some professor were to show a picture of the lynching of a black man from the 1930's in the South, emit a rebel yell and say "Just makes you proud to be an Amurican!", and say it in all apparent sincerity, I like to think he would be fired. I mean, shouldn't he be? I think there is plenty of room for academic freedom without providing state funded sinecures for proponents of mass murder. If that's how Professor Churchill feels, let him be paid by some demented Saudi, not the taxpayers of Colorado. Didn't some Coloradans die on 9/11? Aren't there Coloradans fighting in Iraq and A-stan now? Seems a bit at cross purposes, if that beautiful, mountainous state is also paying for a professor who is saying (if indeed he is) that it's just swell that all those Americans died for the crime of being Americans. The state of Colorado may not be able to prevent such speech, but it doesn't have to underwrite it.
AND now that I look at it again, he seems to be talking about the best ways to carry out terrorist attacks. He seems to be saying something like, now that all Arabs are suspected of being terrorists, it will be hard for them to kill lots of people, so others of us will have to take up the slack (and this guy is against profiling! Apparently on the novel the grounds that it might prevent terror attacks!) As I said, perhaps I misunderstand what he is getting at, but, look, nobody could possibly object on First Amendment grounds to firing a state employee who holds open (or closed!) discussions on how best to wage war on the civilian population of the United States.
AND FROM OUR FAR FLUNG CORRESPONDENT . . . Somehow I am not surprized to learn Dr. Churchill may not be a great respector of property rights. (via this law student blog.)

Go ahead and blog
By Tom Smith

Every time some newspaper hack complains about blogging, I reach for my keyboard. QandO fisks recent dumb arguments re same. Hey you in the green eyeshade, the 1st amendment gives you the right to speak, not the right to do so without consequences.

Appealing How Appealing
By Tom Smith

Lots of good stuff on How Appealing today, including this, on the hysterically named "nuclear ("nuc-u-lar') option" in the Senate. Keep scrolling.

And there is this astute analysis of the First Amendment by one of the true giants of the law. I am a little preturbed, however, as it appears to have been plagiarized from the winner of the Ozark Bend, Arkansas Third Grade All School Essay Contest on "Our Friend the Constitution," but that may just be a coincidence. Great minds, similar tracks and all that. A taste:

"You want to burn the flag or protect the flag [or] salute the flag, I say that's all good," as a judge interpreting the U.S. Constitution, Kennedy said. "You believe in atheism, you believe in a Christian God, I say that's all good."

And that's just a sample of the intellectual riches that await you.

Your Supreme Court at work
By Tom Smith

If you are black, and you get sent to prison in California, your chances of getting knifed in your sleep by an Aryan Brother just went up. But at least you will know, as you bleed out, that you have not been discriminated against by the State of California. By the Aryan Brotherhood, perhaps, but not by the state. And how can that fail to be consoling? There are worse things than getting knifed in your sleep. There is, for example, being forced to read an opinion by Justice O'Connor. But everybody makes mistakes. Some people end up in jail, and some people end up on the Supreme Court.

The Supreme Court and other disappointments
By Tom Smith

Some colleagues and I had a fancy and very expensive dinner Friday night at one of San Diego's fine dining establishments that seems to be in a bit of a decline, but more on that later. I do not mention the names of my distinguished colleagues, for reasons that will become clear, but all of us had been appellate court clerks and two had been U.S. Supreme Court clerks, within the last decade or so. I was struck by how both USSC clerks were completely dismissive of the idea that the Court was even attempting to follow the law, or were doing anything other than just making it up as they went along. Bound by past decisions? Don't be silly. Obliged to do what Congress said? Get outta here! It makes you wonder if it should even be called a court. We have a radio show in the San Diego area (not one you want to listen to) that calls itself "the court of public opinion." Maybe that's the kind of court it is. That is, just a metaphorical court. Not a court, but a figure of speech. So maybe it should go "God Save the United States and this honorable so-called Court!" They could stick in the so-called when they get around to taking out the God. Not that they have to; they just might feel like it someday.

Welcome readers
By Tom Smith

While we at the Right Coast have a policy against toadying for links, I would, on behalf of my distinguished colleagues and me, like to welcome all readers from to our humble blog. It may be that, as Glenn Reynolds suggests, we "lean right." But that is not on purpose. We simply call them as we see them, pursue the truth and the occassional laugh, and that's where we end up. Maybe that's why it's called the right. As for Glenn, I have just one word. Nanotechnology. It's the future, I tell you, the future. And everyone of those little robots will have his own assault rifle, and we will all be safer for it. Just kidding, Glenn. Let me know when you'd like your lawn mowed.

February 27, 2005
Goodbye, Aiko
By Gail Heriot

I just learned (almost a year late) of the death of Aiko Nakane, long-time owner of Aiko’s Art Materials on Clark Street in Chicago. She was 95. I discovered Japanese woodblock prints at Aiko’s when I was a college student. As much as anyone, she taught me to love beautiful things (and to wrap them well). Here’s to you, Aiko-San.

Senate Filibusters, the Constitution and Star Trek
By Gail Heriot

Senator Jim Talent (R-Mo) dropped by San Diego on Thursday morning. Since Jim and his wife Brenda were both in my law school class, I figured I should drag myself out of bed early in the morning to attend the small breakfast being given in his honor by the San Diego Lincoln Club. (I then wasted the rest of the morning feeling like an underachiever. I'm pretty sure I couldn't even get my mother to vote for me for Senate, but that's another story....)

Jim said a few words about the seemingly-endless problem with judicial nominations. As most readers know, although Republicans now hold a solid majority in the Senate, they still cannot get Bush's nominees confirmed, because they (and their moderate Democratic allies) do not quite have the 60 votes necessary to cut off the filibuster. Rightly or wrongly (and I'm inclined to think it's wrongly), the will of the majority is being thwarted.

I blogged on this topic more than a year ago, shortly after Miguel Estrada withdrew his name from consideration. Let me first quote a portion of that post:

"The word 'filibuster' comes from the Spanish word 'filibustero' meaning pirate. The Spanish word can be traced back to the Dutch "vrijbuiter," which also means pirate. The filibusteros of the nineteenth century had a nasty habit of taking over the governments of small Latin American and Carribean countries, just as Senators essentially take over the Senate when they filibuster in the familiar manner. In our own time, we might have called them 'hijackers,' since they hijack Senate operations for their own purposes.

"The 'modern' filibuster, of course, differs from what many of us recall from Jimmy Stewart's performance in Mr. Smith Goes to Washington. In Stewart's time, a would-be filibusterer had to talk, talk, talk and talk sometimes around the clock. No Senator could conduct an effective filibuster by himself, since he would eventually collapse. But two or more could operate as a tag team and bottle up Senate operations indefinitely, sometimes sleeping on cots in the Senate cloakroom. The United States government could be brought to its knees.

"After the notorious filibusters by Southern Democrats during the Civil Rights Era, Senate rules were changed to make the process less disruptive. A member of the Senate can now put a matter on hold. But sixty Senators can vote to cut off debate. And in the meantime, other Senate business can be conducted without hindrance. It's thus relatively painless for all concerned. There are no marathon sessions, no readings from the Cleveland telephone book, and no Jimmy Stewarts.

"It seems to me there are two possible reasons to support the concept of a filibuster. Neither reason, however, would support the use of the filibuster against the Estrada nomination.

"First, there are occasions in which debate has been called off prematurely by a majority that mistakenly believes that it has heard it all. Allowing a minority to force the majority to hear more can be a good thing. But if the issue is whether the Senate has fully debated the issue, there ought to be limits to how long Senate action can be delayed. A week? A month? Two months? Surely at some point it becomes obvious that the point is not the need for further debate but rather the desire to thwart the will of the majority. The current method by which the Senate rules attempt to limit abuse is the ability of sixty Senators to cut off debate. That method is ineffective when the Senate is split 59 to 41. It mustn't be overlooked that a majority of 59 is still a very large majority and at some point its will ordinarily ought to be respected.

"That leads me to the second reason that someone might favor the filibuster. Now and then an issue comes along about which the minority feels passionately and the majority does not. Deference to the will of the minority may sometimes be appropriate in those cases. The traditional filibuster is one way that the minority is able to register that passion.

"The problem is that the modern 'painless' filibuster is an ineffective way to separate passion from pique (or even mild disagreement). No one imagines that Ted Kennedy or Barbara Boxer would have been willing to bring the United States government to its knees–shut down the appropriations process, allow Social Security checks to bounce and freeze all federal activity--just to keep Miguel Estrada off the D.C. Circuit. Indeed, it is difficult to believe they would have been willing to stay up past bedtime for that purpose. The modern filibuster makes opposition easy and painless. Rather than allowing a small group of Senators to stop action they passionately oppose, small group can get its way on everything while paying little or no political price."

Indeed, the modern "painless" filibuster reminds me of the old Star Trek episode, "A Taste of Armageddon." In it, Kirk and his colleagues run across a couple of planets that have transformed war into a relatively painless affair. Computers designate who would have been killed if an actual attack had been carried out, and those persons are required to report to "disintegration machines" for ... uh... disintegration. But the ordinary business of the planet can be carried on. The problem, of course, is that the incentive to end the war is greatly reduced. Not altogether surprisingly, the war between these two planets turns out to be in its 500th year.

In the Senate, the "casualty" that must report to the disintegration machines is majority rule. But at least the ordinary business of the Senate gets conducted. Under the circumstances, however, it is not at all clear that's a good deal. To me at least, it seems worth it to shake things up a bit to restore democracy.

The obvious solution would be to change the Senate rules to forbid such things. The problem for the Republicans is that, unlike the House of Representatives, which adopts new rules by majority vote after each election, the Senate is a continously sitting body. Its rules, including its rules on filibusters, continue from year to year and can be modified only by a two-thirds majority vote. An ill-considered rule (as I believe the rule permitting such filibusters is) is thus difficult to modify or dislodge.

The next-best solution, according to Jim, is to seek the authoritative opinion of the President of the Senate that the filibuster is unconstitutional. I've not been quite sure what to make of this option. (My fellow Right Coaster Mike Rappaport is an expert in super-majority rules; perhaps I should ask him.) Surely, the Senate could not pass a rule requiring that all future declarations of war be unanimous (and that any modification of that rule also be unanimous). If they could do that, why not just let them pass a rule saying that King George III (or his heirs and assigns) gets to decide all issues. That can't be permissible. On the other hand, regarding all non-constitutionally mandated super-majority rules unconstitutional seems excessive. Where should the line be drawn? Where does this case fall?

February 24, 2005
Are you really a white person?
By Tom Smith

From our Pacific correspondent comes this charming essay by the woman who introduced Ward Churchill, of recent fame, at his appearence at the University of Hawai'i. Extra points for those who can detect the considerable irony of the author, given her views of what makes a person white, being the one who introduced Professor Churchill, whose non-whiteness seems to be open to some doubt. There seems, in short, to be a double standard regarding who gets to pretend not to be white. Boy, this is getting complicated.

Trouble in Canadistan
By Tom Smith

Polar bear 1: What's that in the sky, Herb?
Polar bear 2: It looks like one of those new North Korean ICBM's, I forget what they're called.
Polar bear 1: Where do you suppose it's heading, eh?
Polar bear 2: I don't know, but I'm comforted by the fact that it is U.S. Americans, not Canadians (who are also North Americans, you know) who will be incinerated.
Polar bear 1: Well, I don't know, but in any event, our job is not to worry about geopolitics, but merely to catch fish and the occassional marine mammal, and eat them, eh?
Polar bear 2: Too true.

For the whole story, fish here.

Rice Plantations Re-Visited
By Gail Heriot

In my last post, I mentioned that slaves from West Africa (particularly the Senegal-Gambia area) supplied not just the labor but the original know-how for the rice cultivation in the South Carolina Low Country in the 18th and 19th centuries. "Dearieme" wrote asking if these slaves had farmed as free peasants while in West Africa or as slaves there too. I don't know the answer to that question, but it's an interesting one. If anyone out there knows, I'd like to hear from them.

February 23, 2005
Goodbye Yurp
By Tom Smith

The West: nice while it lasted.

February 22, 2005
Those darn Canadians
By Tom Smith

Canadians don't think the US should promote democracy.

A Visit to Mansfield Plantation in the South Carolina Low Country
By Gail Heriot

One hundred and fifty years ago, rice was king in the South Carolina Low Country. There were about two hundred rice plantations along the Waccamaw, the Pee Dee and the Black Rivers near Georgetown, and they were responsible for about half the nation's rice output. Now thought of as a bit of a backwater, the Low Country was then home to an astonishingly large proportion of the wealthiest men in the country (and an equally astonishing number of slaves). To give you an idea: According to the census, in 1860, less than 900 slaveowners in the entire country owned more than 300 slaves. About a third of them were rice plantation owners--despite the fact that the land devoted to the cultivation of rice was tiny when compared to that devoted to cotton or tobacco, the more familiar Southern cash crops. Nationwide, fourteen slaveowners had more than 500 slaves, nine of whom were rice planters, including Waccamaw River planter Joshua Ward, the only person to own more than 1000 ... uh ... other persons. Maybe that's why they called the rice "Carolina Gold."

Slaves provided not just the labor for these vast plantations. They provided the original know-how. Prior to their coming to South Carolina, Europeans knew nothing of the intricacies of rice cultivation--the building of rice fields and dikes, controlled flooding, threshing, pounding, etc. Neither did the Indians, who occasionally gathered wild rice, but did not grow it themselves. It was the Africans who knew what to do. By the time of the slave trade, rice had been extensively cultivated in West Africa, especially in the Senegal-Gambia region, for centuries. And while not all slaves coming to America were knowledgeable about rice cultivation, some were, and they could and did teach others. Over time, improvements were made, but the methods remained fundamentally based on the West African example.

Today it's all gone. The carefully cultivated rice fields have been taken back by the wild. And it wasn't just the demise of slavery that ended it (although that was an important factor). Rice cultivation in South Carolina didn't end until about 1930, when South Carolina's soft-bottom rice fields lost out to the firmer-bottom rice fields of Louisiana and Texas, which could better support the weight of modern machinery.

What's left are the swamp creatures--wild boar, deer, herons, wild cats, bittern, ducks, raccoons, oppossum, and a few alligators--and, of course, the stately plantations homes built by slave carpenters, some of whom had been sent to Britain by the plantation owners to learn carpentry. This past weekend, I stayed at a bed and breakfast at one such home--Mansfield Plantation. Built in 1718 along the Black River, Mansfield comes complete with a live oak allee and a now run-down row of slave homes. (If you think the picture on the web site looks familiar, it may be because you saw it in Mel Gibson's "The Patriot.") Old out-buildings--the kitchen and an old schoolhouse--have been converted to beautiful (and romantic) guest bedrooms. Breakfast is served in the elegant dining r00m in the "big house."

Back in the 19th century, Mansfield was owned by the Parker family. And so it is today. John and Sally Parker recently purchased (or should I say re-purchased) what had been John's ancestral home. They are now in what will likely be the never-ending process of caring for, restoring, and improving this little piece of American history. Fortunately, it's not all work for them. When I arrived on Saturday, they were entertaining some of John's old college friends with an oyster feast and they kindly allowed me to join them. True Southern hospitality. You can't get that at the Hilton, you know.

Secret Memo reveals Rehnquist to remain CJ after he is dead
By Tom Smith

A secret OLC memo obtained by the Right Coast reveals Bush administration deep legal thinkers are exploring the constitutional implications of a person continuing to be Chief Justice after he has in fact died.

"The Framers believed in an afterlife," explained our unnamed source. "By 'life tenure' (sic) the Constitution is not necessarily referring to one's physical life. The Chief Justice would not be able to appear at oral argument, but he could presumably still read briefs and otherwise participate from whereever he ends up, perhaps Purgatory after all that voter discrimination stuff in Arizona."

The story's credibility is supported by reports that applications for Rehnquist clerkships include questions about mediumship and automatic writing experience. Our unnamed source would only say "we are not taking anything off the table."

Other justices declined to reply to emails requesting comments, except for Justice O'Connor, who allowed as that "back in Rattlesnake Gulch, we had a horse that lived to be 39, which is I don't know maybe 200 in horse years. "

Some originalists are apparently balking at the discussions of the possibility of a dead Chief Justice. "If we're going to be communicating with the dead, why don't we go right to the source and dial up JM [James Madison, co-author of Federalist Papers], that's what I want to know!" commented one former Reagan Administration official, now partner at a Washington consulting firm.

Professor Humboldt van der Smerlandiaorlunksk, paranormal researcher at the Princeton Engineering Anomalies Research project reports, in a related development, "electronic voice phenomena," or voices detected on blank, unused electronic media, that appear to coming from dead Virginians. "Zee dialect ees authentic 18th century Virgeeean," declared the professor. Indeed, through the static, one can hear what appears to be the phrases "Separation of powers," "limited gov . . . " , and "office." "Eeet ees not clear how vee should interpret these phrases," said the professor.

February 16, 2005
NY liberals are in a bind and I don't care
By Tom Smith

If New Yorkers are so smart, why aren't they smart enough to figure out that they aren't any smarter than most people? In this story, we are treated to yet another one of those handwringing exercises, you know, oh, gosh, I want Bush to fail, but I feel guilty if that means a bloody fiasco in Iraq. Except that I am nobly rising above that, because I am aware that it's not about me, now please admire me for that. That's our cue to be empathetic, as if to take part in one of those unbelievably tedious conversations about what our feelings are about Bush and Iraq. When in fact, I don't care about comfort levels in Manhattan or Westwood. If Bush makes them uncomfortable, I'll try not to enjoy it too much, but it's hard not to enjoy it at least a little.

New York liberals confuse narcissism with political sophistication. Their grasp of history is notional, they don't read very many books, and just spend their time reinforcing each other's opinions. That gives them the illusion of being sophisticated while preserving their actual ignorance. Even the more academic of them--though make no mistake, their currency is money, not brains--tend to be short on knowledge of affairs. They are much more likely to be able to tell you what the best invite on the Hamptons is than whether there are lots of Muslims in Chechnya. America to Manhattan: we don't care what you think, and we are right not to.

Nothing could be more richly deserved than the discomfort of Manhattan liberals with Bush's successes. But I don't expect it to lead many of them to actually change their views, such as they are.

The primates of Harvard
By Tom Smith

This wonderfully lucid essay by Stephen Pinker about the Lawrence Summers kerfuffle suggests an image: In the hallowed, ivied hall at Harvard mill two hundred odd primates. At the front of the hall is their alpha male, and he is saying something the rest of them don't like. The shrieks of outrage! The somersaults! The tail chasing! Ahhhhhreeeeeek! The naked ape outrage! Summers violated The Taboo! He ate of the casava root without first spitting upon the ground. He climbed the forbidden bannana tree! Apes have a tendency to get upset, and it takes a long time for them to calm down.

Here's why you should privatize social security
By Tom Smith

Gary Becker (no big surprise) gets it. SS has grown into a giant welfare scheme for the elderly, who are not even that elderly. In fact, on average they are a lot richer than the people who are paying for them to be retired. Professor Becker is far more distinguished than I, so it is left to me to announce, it's just a giant rent-seeking scheme by the old, financed by the work of the young. Don't get me started. If the scheme were privatized, you would at least reduce the incentives for old folks to game the system, pushing for higher benefits, early retirement ages, and so on. Even all the yada yada about the looming insolvency of SS is biased in favored of the wrinkled minority. The idea is youngsters must pay and pay to make sure those bloated SS payments are ab-so-lutely guaranteed. It has to be rock solid, even if it means mom has to dump the kids at Cockroach Daycare and scrub the johns. It is a grotesque redistribution from the young and poor to old and rich. By privatizing it, people would have to internalize some of the costs of their decisions, such as when to retire, how much to save and so on.

Another point worth exploring would be whether privatization would put more capital allocation decisions in private rather than state hands. I can't think this one all the way through. But I know this. This argument would be worth making just because it might give Paul Kruger heartburn. It goes like this: The increase in private management of capital would increase economic growth, increase tax revenues, and therefore make the change self-financing. You would certainly have a lot of stock in firms that do stuff instead of government bonds sitting in accounts. Sounds good to me.

Conservative philosophers
By Tom Smith

Admit it. It's nice to read some philosopher who makes you say, "that's right," and "that's right too!" Novel, but nice. Here's a whole blogful of conservative philosophers. Check out this essay on the Rawlsian structure of "basic structure." The idea that the basic structure of society can be transformed in any way that is an improvement--I concede it can be destroyed: ask the Chinese that managed to survive the cultural revolution without being eaten--is such a perfect example of academic hubris and stupidity. The essay linked above does a nice job addressing it.

February 15, 2005
Still More on Polygamy
By Gail Heriot

Julie Carlson, a former Peace Corps volunteer, wrote to me in response to my earlier posts on polygamy. Her comments are very interesting and come from actual observation:

"I lived in Liberia (West Africa) for 2 years as a Peace Corps volunteer back in the early 1980s. During that time I knew many people who lived in polygamous relationships and some who were married to only one person. You said that the conventional view is that it weakens the hand of women. In some respects I agree, but in a culture where birth control is almost non-existent, having more than one "co-wife" helps space out child bearing for all the women. [unlike say, a typical woman in the early 1900's in America who had one husband and gave birth to 10, 12, or 15 children.] There are also the very real social benefits (help with child-rearing, cooking, cleaning) especially in an environment where just getting water back to your kitchen can be a big deal. But the downside came for women who married a man with the expectation that she would be his only wife, and he (usually for economic reasons - i.e. he moved up in the world) decided later on to take another wife. That could be a very ugly situation, full of pain for all involved. When I was there, Liberia was in transition from a more traditional culture to one that was more modern. It was in the mish-mash of the two that things became messy - young girls having children out of wedlock, older men preying on young girls, etc."

For some reason, I was particularly intrigued by the problem of the woman who married with the expectation that she would be her husband's only wife, only to be disappointed when he decided to take a second. Is this a problem that can be eliminated up front by contract law? Or is the difficulty of enforcement one more reason to be wary of polygamy?

I'm inclined to think that while strong contract law would help, in the end it's impossible to give complete protection to a first wife when her husband is hell bent on getting a second wife in a society that permits polygamy, unless you are willing to go the extreme of forbidding divorce. But the basic problem is not unique to polygamous societies. We have it here too. It's the problem of the first performer.

In a sense, marriages are like long-term contracts. Over the long haul, most good marriages are characterized by roughly equal benefits and sacrifices. But in the short run, such equality is rare. One spouse may work for years at a not-so-great job to put the other spouse through college or medical school. Had the sacrificing spouse not been married, he or she might have finished his or her own schooling instead. But the sacrifice is made to benefit the marital "community." In the long run (if there is a long run), they will both benefit.

In traditional marriages, it is more often the wife who performs first. (There are plenty of exceptions; my own ex-husband (bless him) helped make it possible for me to go to law school.) The most common way she does it is by bearing and and taking primary responsibility for rearing the couple's children. Doing so means that she has to interrupt her career (or at least give it less attention than she would otherwise). Children also make it somewhat more difficult for her to find another mate if her husband decides that he has made a mistake and wants out. And in addition to the problem of children, a wife is somewhat more inclined to make sacrifices to further her husband's career than a husband is to further his wife's. His career successes, on the other hand, are more likely to occur later in his career.

If the late performer can exit costlessly before his (or her) turn comes to perform, it's unjust, unless appropriate adjustments can be made. Sure, one could argue that newlyweds should be wary of "investing" in a marriage that might not last. But in the end, we want people to invest in their marriages. Two people collaborating can do more for themselves as a couple than they can for themselves individually. That's why we have contract law--to protect expectations thereby giving people the confidence to make these sacrifices. And that's part of why we have laws concerning dissolution of a marriage; a lot of it is about protecting that "first performer."

In a polygamous culture, the "first performer" problem may play out as Julie describes. Wife No. 1 had every reason to believe she would be the only wife. Indeed, that's what her husband told her way back when, and it mattered to her, so she had the whole deal put in writing. She now has spent the proverbial best years of her life bearing and rearing their seven children, the oldest of which are now adults, cooking their meals and generally making it possible for her husband to succeed in life. She's in no position to start over. One day her now-sucessful husband tells her that he wants a new wife. She points to the "marital contract," but he tells her that if she won't agree to "contract reformation," he will divorce her. Is he bluffing? Maybe, but she caves in any event. Wife No. 2 moves in the next day. Now Wife No. 1 must share "the profits" of her earlier sacrifices with a third party.

But the story is a familiar one in under legal regimes requiring monogamous marriages too. The difference is that when the late-performing spouse "breaches the contract" in a society that does not allow polgamy, it's often to demand a divorce (often with the intent of acquiring a trophy wife) and not just to demand an additional spouse. In some ways that's worse since it is an all or nothing sort of thing. In some ways it's better, since it will involve a clean break and avoid the humiliation of being the less-loved spouse for the rest of her life. Fundamentally, however, the problems are similar. And the challenge for domestic relations law is do the best it can to do justice in such a situation.

Does all this mean that I favor permitting polygamy, since it is not clearly and unequivocally worse than monogamy? Well ... no. But I do find the similarities and differences between the two systems interesting as they relate to the first performer issue.

February 13, 2005
DC is full of such nice people
By Tom Smith

Democrats celebrate one of their own.

Your UN at work
By Tom Smith

Those darn human traffickers from the UN.

February 11, 2005
Southern music snobbery rears its ugly head
By Tom Smith

That guy at Instapundit seems to be endorsing (at the end of the post) the sentiment that Linkin Park is a really bad act. I detect here that ugly thing, Southern music snobbery. I am not saying Linkin Park is one of the greats, like Leonard Skinard (sic), but they are authentically LA, a contradiction in terms, yes, but that is part of the point. Their musical range is limited. In fact, they seem to have only about five songs, that they endlessly "remix" or "reanimate." But there is something about their sound that really does capture, at moments anyway, the sort of desperate alienation inside a smooth, melodious groove that is the dark spirit of LA. All their songs seem to be about loss of self; not just the fear of it, but the it's long gone despair of it. The rap braggidocio stuff -- "We're Linkin Park" -- sucks, but that seems to be something rappers do. And though they are corporate now, they came up from the streets in the sense that they became popular locally, and got pushed up by fans, not ordained by some label. No, it ain't "Sweet Home Alabama," but LA is not Alabama. If you think it's sweet, you probably need to get your meds retuned. I am not saying Linkin Park is great or even particularly good as music. What I am saying is that it is emotionally articulate low culture. I offer the following challenge. Watch the good action flick Collateral and listen for when the Linkin Park track comes in at the emotional climax of the movie, when our kidnapped cab driver (Jamie Fox, a very talented non-Scientologist actor) has had enough. I think it works. The city, the violence, the powerlessness, the humiliation, he finally has had enough, and the Linkin Park track is just the thing to express the feeling raw. They're popular for a reason.

Hail Columbia
By Tom Smith

It's just that your sense of fair procedure is very unsophisticated.

Line in the sand
By Tom Smith

Interesting article in the UT about the controversy around designating more land in Anza-Borrego Desert State Park as wilderness. I should probably admit I am incapable of rationality on this issue. I live in the semi-desert of East San Diego County, at the foot of McGinty Mountain, the big mountain you look up at, if you'd ever played the Steele Canyon golf course (as I haven't--I hate golf--and it hates me even more). For ten years, I have watched off roaders gradually degrade the mountain, blazing new trails up its flanks, widening old ones, and leaving behind beer cans, litter, spent ammo, used condoms, cigarette butts, unidentifiable vehicle parts and exhaust. I have made feeble efforts to resist them. It's quite illegal to ride on the mountain itself, at least off the established road. The Nature Conservancy owns a good part of the land. Their stewardship could be classified as non-existent. The little signs they put up, with the slash through the little motorcycle, were torn down years ago. Yes, I could call the San Diego sheriff, and I have on particularly egregious occassions (oh boy! a drunken keg party featuring pickups spinning cookies! And on my street!), but they have better things to do than chase down ex-urbanites' beefs against off-roaders.

I've hiked in the Coyote Canyon in Anza-Borrego which seems to be the biggest chunk of land the state wants to limit off-road traffic in. It stands out as an exquisite piece of desert in country full of it. I am just at a loss as to why it is necessary to ride on your butt through it, messing it up, when there is other desert out there that has already been destroyed.

From a social policy point of view, it strikes me as a no-brainer. All you have to do is keep your eyes open for ten years to judge the compatibility of keeping land available for the next 50 years, let alone 150, and opening it to off-road traffic. All you have to do is walk around Anza-Borrego to see the effects of the traffic. You've got incompatible uses, and it's just hard to believe the most utility is to be gotten out using it all up in the next 20 or 30 years.

Yes, I know, this wouldn't be a problem in libertarian heaven. Users would have to internalize their costs, and they would get their membership in the Syndicate of Off Road Parks revoked if they mowed down a stand of rare botanicals (as they do on my mountain) instead of high-fives. In a world wide auction of the San Diego country desert, held by the TANSTAAFL council, I would be willing to take my chances and pay my share. But we don't live in that world. Instead, the land is owned by the state, and you have maybe 300,000 people in a region of 10 million who want to use it up and be done with it. That's not liberty; it's theft.

February 10, 2005
More Armchair Musings on Polygamy vs. Monogamy
By Gail Heriot

Polygamy existed for a long time (and in some places in the world continues to exist). What does it have to recommend itself?

It seems to me that polygamy is most likely to emerge as the dominant marital institution in cultures in which (1) A high birth rate would be seen as desirable; (2) Men tend not to remain in one place or to accumulate sufficient property to support a family until they are somewhat old ... say 30 or older; (3) Women (or should I say girls) are sufficiently mature to fulfill their responsibilities as wives and mothers at a significantly younger age ... say 16 or older; and (4) Because young people die from disease, accident and war at a fairly high rate, there are a lot more women (or girls) of marriageable age than there are men of a marriageable age. Under these circumstances, by refusing to "waste a womb" just because there isn't a marriageable man for each woman capable of bearing a child, polygamy will produce a higher birth rate than monogamy, and it will increase the chance that if a young mother dies, her child will have a stepmother already in place to help out. Moreover, the men who are getting edged out of the marriage market under such a system, don't realize they have been edged out. They think their time is coming in the future (though many of them turn out to be wrong because they die before they get a chance to marry.)

Of course, (mercifully) this is not the world we live in, and maybe that's part of why polygamy has so few advocates today. Few argue that the focus of our "marriage policy" ought to be to produce the highest birth rate possible. And even if they did, modern Western nations do not have the pyramid shaped-demographic (with lots of young people, fewer middled-aged people and fewer still old people) that used to characterize societies everywhere. Polygamy thus has no advantage over monogamy in its effect on the birth rate. Indeed, if polygamy were to somehow catch on, its most significant effect would be to create a pool of "left out" men--probably not an effect that anybody is looking to produce.

Scuttlebutt on the sub crash
By Tom Smith

This from our secret Pacific correspondent for you USN junkies. It's copied from an email, hence the formatting gliches.

To say that I've had a bad year so far would be a little short on the tooth I think. Last year was a good one for the boat. After spending 5 months away from home in drydock (Sandy Eggo) we got our second BA on ORSE (bad
>juju), received the highest score in PacFlt for a submarine TRE inspection, aced our mine readiness inspection with 4 out of 4 hits, completed 2 outstanding missions (will have to shoot you), and completed a early ORSE just
>before Christmas with an EXCELLENT. It was also the first year that Auxiliary Division had a Christmas standown since coming out of the yards in 2002. A-division also took the CSS-15 Red DC award for the second year in a row. My retention has been 100% since I checked onboard in Oct 2002 amongst 1st/2nd and turd termers.
>We were going to our first true liberty port 2 weeks ago, heading for Brisbane and fun in the sun. As this WOG knows, we were getting ready for our crossing the line ceremony and the crew was really upbeat, and hard
>charging, we had just completed a great year for the San Fran.
>To say the world went to shyte in a hand basket would be an understatement. I would put it closer to a nightmare that becomes reality. The seamount that is a large part of the discussion the last 2 weeks is un-named. The charts we carried onboard were up to date as far as we cantell. No modern geographic data for this area was available to us
>onboard as it is a remote area not often travelled by the Navy. We have one of the BEST ANav's in the fleet onboard, a true quartergasket that takes pride in his job. We have RLGN's onboard, when they are running, they are
>accurate as hell for our position, they also drive Tomahawks.
>We knew where we were. All of my depth gauges and digital read the same depths as we changed depth to our SOE depth for flank. I can't discuss alot, because I'm still a participent of at least 2 investigations....LOL.
>I was the Diving Officer of the Watch when we grounded. If you read the emails from ComSubPac, you will get some of the details, from flank speed to less than 4 knots in less than 4 seconds. We have it recorded on the
>RLGN's-those cranky bastages actually stayed up and recorded everything. For you guys that don't understand that, take a Winnebego full of people milling around and eating, slam it into a concrete wall at about 40mph, and then try to drive the damn thing home and pick up the pieces of the passengers.
>As for the actual grounding, I can tell you that it was fortunate that myself and the Chief of the Watch were blessed by somebody. I was standing up, changing the expected soundings for a new depth on the chart (yes, we had just moved into deeper water) leaning against the ship's control panel with a hand grip, and the COW was leaning down to call the COB on the MJ. The next thing to cross my mind was why am I pushing myself off of the SCP and where the hell the air rupture in the control room come from? I didn't know it, but I did a greater than 3g spiderman against the panel, punched a palm through the only plexiglass guage on the SCP and had my leg crushed by the DOOW chair that I had just unbuckled from. The DOOW chair was broken loose by the QMOW flying more than 15 feet into it and smashing my leg against a hydraulic valve and the SCP. I don't remember freeing myself from
>it. If I had been buckled in, I don't think I would be writing this. The COW was slammed against the base of the Ballast Control Panel, and only injured his right arm. He could of destroyed the BCP, he was a big boy. Everybody else in control, with the exception of the helm, was severely thrown to the deck or other items that were in their way, and at least partially dazed. Within about 5 seconds of the deceleration! , we blew to the surface, it took that 5 seconds for the COW to climb up the BCP and actuate the EMBT blow. We prepared to surface right away and got the blower running asap, I didn't know how much damage we had forward but knew it was not good, I wanted that blower running. I would say that about 80% of the crew was injured in some way, but do not know the number. We grounded in the middle of a meal hour, just after field day, so most of the crew was up. Once we got the boat on the surface and semi-stable with the blower running the rest of the ship conditions started sinking in to our minds. We were receiving 4MC's for injured men all over the boat. I was worried that those reports were over whelming any
>equipment/boat casualties that could make our life worse. I had teams form up of able bodied men to inspect all of the forward elliptical bulkhead, lower level, and tanks below those spaces. I couldn't believe that we did not have flooding, it just didn't fit in. At one point I looked around in the control room, and saw the disaster. The entire
>control room deck was covered in paper from destroyed binders, and blood. It looked like a slaughterhouse, we had to clean it up. I knew that Ash was severly injured and brought to the messdecks, he was one of my best men, and one of our best sailors onboard, he was like a son to me. After surfacing I was the control room supervisor, I had a boat to keep on the surface and fight and knew that if I went below to see how he was doing, it would teeter me on the brink of something that the ship did not need, the ship needed somebody who knew her. I have to say that the
>design engineers at Electric Boat, NavSea and others have designed a submarine that can withstand incredible amounts of damage and survive. We lost no systems, equipment, or anything broke loose during the impact. The damage to our sailors was almost all from them impacting into the equipment. The crew is a testament to training and watch team backup. When a casualty occurs, you fight like you train, and train like you fight. It kept us alive during that 2+day period.
>I've just returned from the honor of escorting my sailor home to his family. God bless them, they are truly good people and patriotic. The Navy is doing everything they can for them and they are learning how submariner's
>take care of each other. During the memorial and viewing on Saturday, CSS-15 provided a video from the coast guard of us on the surface and the SEAL/Dr. medical team being helo'd in, the family had this video played on 2
>screens in the background. It was a sobering reminder of what a hard woman the ocean can be. We had to call off the helo because of the sea state, it was becoming too dangerous for the aircraft, we almost hit it with the sail a couple of times. The sea would not allow us to medivac in our condition and that sea state.
>I was one of the 23 sent to the hospital that Monday. I was fortunate, my leg was not broken, just trashed/bruised. I walked on that leg for almost 24 hours before it gave out on ! me and they had it splinted. The SEAL made me
>promise not to walk on it, how do you refuse a SEAL? LOL. So I hopped around on a single leg for awhile, the other chief's were calling me Tiny Tim, LOL. "God bless each and every one! Except you, and you, that guy behind
>you!". The COB threatened to beat my @ss if I walk onboard before my leg is otay, he's about the only man onboard that I'd take that from, hehe.
>The crew is doing better, we've lost a few due to the shock of the incident. We will make sure they are taken care of. The investigation goes on, and I have a new CO. I will only say that the San Fran was the best damn sub in the Navy under CDR Mooneys leadership. We proved that. God bless him and his family no matter what happens in the future, he is truly a good man.
>I just need to get my leg healed and get back to fighting my favorite steel bitch.

February 09, 2005
Papal retirement speculation
By Tom Sm ith

There's probably some long, Italian word for "specualtion about whether the Pope will resign."

February 08, 2005
By Gail Heriot

One of our regular Right Coast readers has pointed out that in my original post on the Conference on the Meaning of Marriage, I had promised to write something about polygamy and then got carried away by the topic of same-sex marriage instead. OK, then, let me say a couple of things about polygamy ...

The conventional view of polygamy (or at least polygyny) is that it strenghthens the hand that men are dealt in life while weakening the hand of women. That strikes me as wrong (though I am hardly the first to say so). Let's make the dubious assumption that appears to be implicit in this view--that a man is better off the more wives he can get (at least if that's what he wants), but that a woman is better off if she can be the sole wife. Under that view, some men are better off in a polygynous world and some men are worse off. When the numbers of men and women are roughly equal, if a man who is perceived by women as "highly desirable" will be able to attract more than one wife, some other poor guy will get no wife at all. Polygamy ensures that there will be a surplus male population with nothing to do. (And that, of course, is a reason to oppose it right there. Surplus male populations tend to make trouble.)

The effect for women is the same: Some are better off and some are worse off--though the game is not all or nothing the way it is for men. In a culture in which monogamy is the rule, women who are considered very desirable as wives can usually attract men who are considered very desirable in the marriage market. Women who are considered less desirable as wives may attract men who are considered less desirable as husbands. Most though not all people find someone. Switch to a rule of polygyny, and all bets are off. Some highly desirable women will be able to negotiate for a monogamous husband (though they may have to give up something for it). Others may settle for a husband who keeps his option to marry another. Highly desirable women may therefore as a group be worse off. But women lower on the marriageability totem pole may correctly regard themselves as better off. Under the monogamous regime, they could marry only men who are not already taken (and who are willing to marry them.) Now their option have multiplied. They now include married men who are willing to marry them. In other words, they don't have to marry their no good bum of a boyfriend unless all thing considered they think they're better off with him than with a "shared" higher status husband.

Polygyny survived for centuries in some cultures, so I figure it must have served some purpose. On the other hand, it appears to have zero support today beyond a few nut cases. Why? I'll try to offer my guesses on that tomorrow.

February 07, 2005
Just like your dad told you
By Tom Smith

He was right. Now just get it on there.

Desktop fusion
By Tom Smith

This is pretty mind-blowing stuff, it's not cold fusion, though just as potentially revolutionary, and it appears in the mainstream science mag for nerdy wannabes such as you and I. Yes, I subscribe, and you should too, if you want to impress all the really hot babes with the latest in scientific discoveries.

And there's this, some background here, and how you can create fusion in your own garage, assuming you have a moderately well equipped physics lab there. It could all turn out to be hooey, but you never know . . .

by Tom Smith

Here's a newish article in the Yale Law Journal about the economics of sharing. I don't know if it's good, but it looks interesting. It is by the recent hire of YLS about whom the former dean said, the importance of his scholarship could not be overestimated, which I noted was one of those self-contradictory sentences, e.g. "This is not a sentence." Still, it looks like an interesting article, even if the last thing I need is another article I should read.

Experts beware
By Tom Smith

This is what it looks like when an expert gets beat up by a smartish journalist. Ouch-o-rama. I'm just a simple country law professor, but whenever an expert starts reminding you that he is an expert, it is usually just before some smarty pants takes him apart by showing that he is rooting for one side or the other, contradicts himself, or whatever. One of the big challenges of leadership is knowing when to pay attention to experts and when to ignore them.

Something a lot of academic experts don't seem to understand is that the rules are different -- and thank God they are -- in public political controversy than they are at the academic conference. Assumptions that won't be questioned in the academy might be ruthlessly exposed in the rough and tumble of public debate. Lines of argument that lead to counterintuitive to most people results will count against you, not for you. Preening superiority is detested, not admired. It's a different world. Not better. That would be a value judgment. Just different.

February 05, 2005
Posner on Summers controversy
By Tom Smith

Posner pretty much says it all on the Larry Summers controversy.

The reaction to Summer's comments seems overwrought to me. You ought to be able to ask the question, are women innately less able to be great scientists than men?, without having to spend the next month or year grovelling to every feminist cause in sight. Conversely, if you are going to grovel later, you should not speak up in the first place. That being said, it seems pretty silly to contend that women are inferior in science. (I'm married to a Bryn Mawr grad in a quite scientific branch of medicine, so I may be biased.) I happen to think there are profound innate differences between women and men, but those I can think of would make women better at many sciences than men. Perhaps there are some branches of mathematics that would favor men, and some women. But these markets are so thin and quirky, you cannot really surmise anything from there being few top female topologists, particle physicists, or whatever. It's only been about 30 years since female graduate students could more or less expect to be thoroughly hit upon by the professors, as a matter of course. Unattached female students were a fringe benefit, like long, quiet summers. And plenty of female graduate students would game the system as well as they could too; not all were victims, though I suppose you could say they had to play the hand they were dealt. It seems like Summers could have chosen a better spot to outrage PC sentiments; they are hardly in short supply.

Medical Bills as a Cause of Bankruptcy (Part II)
By Gail Heriot

Art Webster, a Maryland attorney whose general practice includes a great deal of bankruptcy, wrote to comment on my previous post:

"I saw the article you refer to the New York Times this morning and I was also surprised by it. Frankly, I found it hard to believe from my practice. The vast majority of my clients’ financial problems are caused by divorce and loss of job. I would be surprised if 5% of my bankruptcies are caused directly by medical bills. Now, medical PROBLEMS cause a lot of bankruptcies. But by that I mean people who become disabled or lose their jobs due to medical and/or health reasons. One couple [that I've represented] filed because the husband was a state employee and due to a series of heart attacks went from a job earning $75K to one earning $40K. But all of his medical bills were paid. He just could no longer service his credit card and personal loan debt. Sad story, but nothing to do with medical bills."

Art files about 150 Chapter 7 petitions a year on behalf of his clients, so he's looking at a pretty large sample.

Tort by cookie
By Tom Smith

My litigator brother in the Aloha state sends me this sweet story about leaving cookies for your neighbors. I wonder if this judge is available to become Chief Justice of the Court?

February 04, 2005
Medical Bills as a Cause of Bankruptcy
By Gail Heriot

“HALF OF BANKRUPTCY DUE TO MEDICAL BILLS–US STUDY” At least so said the Reuters headline in yesterday’s story. And so indicated similar stories in newspapers across the country. Soon it will be repeated as gospel on Capitol Hill and by the chattering classes everywhere. Understandably, middle class Americans have started to feel a little queasy inside about their health and, more particularly, their health insurance.

The fundamental problem is that it isn’t true. Despite what the study's authors have encouraged us to believe, the study isn't really about medical bills. It's about bankruptcies that someone, somehow has determined are medically related. It finds that 54.5% of all bankruptcies have “a medical cause” and that 46.2% of all bankruptcies have “a major medical cause.” It does not find, however, that an injury or illness was the primary cause in half of all bankruptcies. And, perhaps more importantly, it does not find that medical bills were a significant factor in those bankruptcies.

Don't get me wrong. Some bankruptcies are caused by catastrophic medical debt. But they aren’t half of all bankruptcies, and the only way to make it look like they are is to jimmy the figures. For example, the study classifies “uncontrolled gambling,” “drug addiction,” “alcohol addiction,” and the “birth or adoption” of a child as “a medical cause,” regardless of whether medical bills are involved. Yes, there may be situations in which a researcher might legitimately want to classify those conditions as “medical,” but an attempt to prove that Americans are going bankrupt as a result of crushing medical bills is not one of them. A father who has gambled away his family’s mortgage payment is not likely the victim of crushing medical debt. Similarly, the couple who find they can no longer afford their previous life-style now that Mom or Dad has to stay home with the baby will usually find the obstetrician’s bill the least of their problems. Babies are a financial hardship even when hospitals give them away free.

Maybe that's why only 28.3% of the surveyed debtors themselves agreed with the authors that their bankruptcy was caused in a substantial manner by "illness or injury;" the rest presumably put the blame elsewhere.

Buried in the study is the fact that only 27% of the surveyed debtors had unreimbursed medical expenses exceeding $1000 over the course of the two years prior to their bankruptcy. Presumably 73%–the vast majority-- had medical expenses during that two-year period of $1000 or less. Had that figure been recited up front, it would have been obvious that the authors had to massage the data pretty hard to support the conclusion that half of bankruptcies are somehow driven by medical costs.

Nobody likes to have to pay $1000 in medical expenses even when they get two years to do it in, but for most Americans it is not catastrophic. They’ll get by. And they won’t need the protection of the bankruptcy courts to do so. Something else is going on in the overwhelming majority of these bankruptcies, whether it's gambling debt, drug or alcohol addiction, child care expenses, unemployment, or simply the wanton use of credit cards.

What would be far more significant for the public to know is how common the cases of truly crushing medical debt-–in the range of 10,000 in single year or more--actually are. That's something the study is careful not to tell us that, despite the fact that the raw data behind the study would appear to be sufficient to make such computations possible. Instead, at every turn, the authors choose to present the data in ways that mislead the reader into believing that crushing medical debt is the leading cause of bankruptcy. For example, at one point we are told that the mean out-of-pocket medical expenditure for this kind of bankruptcy is $11,854. But this is not the average for the 54.5% of bankruptcies that the study holds to have "a medical cause;" it's the average for the much smaller group (28.3%) in which the debtor agreed that illness and injury played a substantial role. And the $11,854 figure is not for the year or two prior to the bankruptcy, but for the entire period of the illness, which may be many years. Finally, and most importantly, it is a mean and not a median. Just one truly catastrophic illness costing a total of $6 million over the course of any length of time would be enough to put the group's mean at above $12,000, even if nobody else in the sample ever spent a dime on medical bills. It's hard to see why a respectable scholar would use the mean instead of the median if the point of the study is to show that a large proportion of bankruptcies are caused by medical bills.

At least one of the authors–Dr. Steffie Woolhandler, a Cambridge Hospital internist, makes it clear that she does indeed have an agenda. She identifies herself as an advocate of universal health coverage who believes that her study supports demands for health care reform. “Covering the uninsured isn’t enough. We must also upgrade and guarantee continuous coverage for those who have insurance,” she said in a statement. She went on to condemn employers and politicians who advocate what she called “stripped-down plans, so riddled with co-payments, deductibles and exclusions that serious illness leads straight to bankruptcy.”

Well, she and the Robert Wood Johnson Foundation, which funded the project, haven’t proven it with this study. And since previous estimates have indicated that the number of bankruptcies caused by serious medical illness has been around 8% in the past, I remain skeptical.

Academics and free speech
By Tom Smith

If instapundit is any indication, opinion in the blogosphere is running toward the view that Ward Churchill is an moral idiot, but he has the right to say whatever is on his none too impressive mind. Even though I realize I take advantage of my free speech rights on this entirely private blog, affiliated in no way with the University I am happy to be employed by, I just want to dissent and say, I don't see what the problem is with firing the guy. Of course, he may have some contractual right not to be fired for saying extremely stupid things. That's another matter. Moreover, I would not be shocked to learn there is some constitutional principle, created in 1973 or whatever, that no professor may be fired for displaying a complete lack of mental competence. Nothing the Supreme Court does can surprize me at this point. I speak merely of the high policy of the thing.

Some professors have gotten this idea that as professors they are entitled to hold opinions and express them publicly, no matter how much discredit that brings to their employer, its affilitated institutions, or their species. I find the view baffling. If the President of Proctor and Gamble expressed the view that Americans are an obsessively clean people and that body odor is in fact sexy, no one would contest his right to hold that view. In fact, many French people seem to hold that view. But the Board of Directors of America's most important soap company would be right to fire him. It should not be that different with universities.

Obviously, academics need a wide range of freedom so that they can push the boundaries of knowledge. But that doesn't mean that there is no voiced opinion, no matter how odious, that counts as good cause to can some dimwitted academic. This is certainly the case with private institutions. But it ought to be the case with public institutions as well. If academic freedom had some reasonable definition, perhaps universities would be less the font of so many wacky and destructive ideas, and more productive of actually useful knowledge. Indeed, by giving vent to his offensive and silly ideas and getting fired for it, Professor Churchill would probably make a greater contribution to academic life in this country than anyone had reason to expect he ever could. They also serve who are merely made examples of.

In my simple-minded view, tenure and academic freedom are just contract terms. To the extent they are not well defined, you fill them in with some sort of reasonableness standard. There are opinions you have a constitutional right to hold and express as a citizen, that should still get you in trouble or even fired, for violating your duties as an employee of an institution, even ones at which we get to wear gowns and funny hats. If this means there are all kinds of obnoxious, half-baked, pernicious and silly views various professors in the academic demi-monde will become hestiant to express, that's what we economics types call "a positive externality." Sort of, let a thousand nasty weeds perish, to paraphrase that genocidal Chinese guy. Do Professor Churchill's statements sink to that level? I don't know, because I haven't studied them, and don't intend to. That is a thankless task for the worthies at UC Boulder, who must pay for the sin of hiring this guy in the first place. Fortunately, I do not have that kind of time to waste, and if I did, I would use it to maybe read a Conan the Barbarian novel, which I have never done, but which I am sure would be more fun and educational than exposing myself to Churchill's ravings.

AND HERE'S some sensible moderation from Eugene Volokh. I think his reasoning is fallacious. You can have a policy that protects professors who say bold things most of their colleagues disagree with, and still boot people who say sufficiently evil or obnoxious things. Moreover, as Posner's post referred to above suggests, if academic freedom is supposed to promote the bold expression of dissenting views, it has been an abject failure. A more inhibited environment, as far as expressing views out of the mainstream, could hardly be found. People in normal lines of work are much freer to express their views than the average professor. In terms of freedom to express, oh let's say the views of your average conservative Republican, the UC system should probably get a freedom grade of about a D or maybe a C minus. (I have only felt physically uncomfortable, i.e. not sure I was completely safe, as a professor, twice, once from a student at USD who had suffered a head injury, and once at a UC law school, not UCLA, when my speech had run afoul the gay students' association, and they sent a couple of scary ambassadors to counsel me in my office. Let's just say they could have moonlighted as guards in a movie about women in concentration camps.) I suspect that a kind of bad speech drives out good speech phenonmenon is part of the explanation. If you could be booted out (student or professor) for screaming obscenities at somebody espousing (for the whole country) majoritarian views, maybe speech on campus would be more diverse. To try to be clear, the idea that protecting Ward Churchill's right to call the dead of 9/11 little Nazis, makes conservatives on campus a little more secure, is baloney. It's like saying because the police can't arrest the armed robber who lives on my block because they didn't quite have probable cause that time they stopped him walking away from a victim, I am safer in my house, because the police aren't going to break in and arrest me in the middle of the night. That's nice, but I was more worried about getting mugged.

The finger
By Tom Smith


February 03, 2005
Those darn Marines
By Tom Smith

This Marine general is saying it can be fun to shoot people. Though apparently, he likes to shoot people who "slap women around." He made these remarks in San Diego. I don't see how he could say that. It is true that last Sunday I was wondering if it would be fun to wrap Frank Rich with about 20 rolls of duct tape, slap a little guidance module on his head, sling him under a F-117, and call him a Not Very Smart Bomb, but I knew as soon as I had it that that was a very wrong thought. If you did that, he would look a lot like a bomb, but it would still be wrong.

Hollywood wrong about Gladiators
By Tom Smith

Were Roman gladiators martial artists who fought demonstration matches again and again, and not to the death? That's what this article in the last New Scientist says, based on some archeological evidence.

I have been planning a more elaborate post about American professional wrestling, but I might as well make my main point here in brief form. Like many people interested in martial arts, I viewed professional wrestling for many years as a perversion and an abomination. But I now realize that view was somewhat simple minded. The truth is, all fighting arts exist on a continuum between practicality, sport and display. Pure combat training is what you want to save your life in battle, but it not as fun to do, or as fun to watch, as more sport oriented arts. Even supposedly no-holds-barred fighting, such as UFC, have rules that prevent such tactics as eye gouging and biting, that can permanently disable fighters, who, after all, promoters want to fight again. Similarly, some of the most effective tactics in a real fight are boring to watch, such as riding a mount on an opponent until he gives up from exhaustion. UFC had to change its rules to exclude this effective, but audience boring tactic. So, in truth, short of the real, brutal thing, the human equivalent of dog fighting, rules are imposed to make fights more entertaining to watch. So-called professional wrestling is just the extreme end of that spectrum. It is all entertainment and display. It's not for me, but it is on the same spectrum as the most Zen like kung fu match. The connection here, of course, is that even gladiators (perhaps) did not fight no-rules fights to the death. Why? Because, counterintuitively to some, matches to the death with no rules would be less fun to watch than displays of elaborate techniques and stunning physical prowess, not to mention much more expensive and difficult to manage.

New editions of Rand
By Tom Smith

Speaking of Rand, I notice that the airport bookstores are prominently displaying these good-looking editions of Rand's books, graced by cool-looking moderne art on the covers. So now would be a good time to stock up.

Nino speaks out
By Tom Smith

Scalia is growing on me. Here's a report on a talk he gave, which I think he has given before, to the effect that it is OK to be an old-fashioned Catholic. I am not an old-fashioned Catholic, more of a wimpy Catholic, but I like old-fashioned Catholicism and am heartened when Scalia speaks out for it. My problem with Scalia is not his views. I find myself agreeing with him most of the time. I think, however, that he is a grump. An extremely grumpy man. I think the other justices would find having him as the Chief very tedious, and I don't see how that helps the cause. Some people are under the impression that Justice Scalia is a jolly fellow who makes lots of jokes at parties. My impression is that he is smart enough to figure out that this is a politic way to behave, and so does so occassionally. But while I was a humble clerk on the D.C. Circuit, Nino was busy lunching with various officials from the White House and DOJ, while the allegedly demonic Judge Bork was schmoozing with clerks. My worm's eye impression was that Nino was not the sort of fellow to ever forget the vast gulf that separated clerk and judge, or just those who could help him and those who couldn't, while Bork and that other villian, Ken Starr, were eager to do so whenever some opportunity presented itself. I can only imagine that the likes of Justice Ginsberg and O'Connor would hate it very much to be lorded over by a CJ Nino. While they may deserve to be miserable, the former for being too clever and the latter for being too dumb, I don't see how the ladies being in a state of permanent repressed fury would help the cause of ordered liberty and all that other good stuff. With the possible exception of Thomas, the other Justices would really hate it too, even if they could be temporarily convinced that they would not. They would come to, of that I am sure. But, that being said, it takes stones to give these Catholic speeches that Scalia has been giving; he's probably not a plausible candidate for CJ anyway, and the speeches just seal the deal. You could ask me, well, whom would I prefer, Nino or Sheriff Sandra Day? That is a grossly unfair question. Nino, of course. I would prefer grumpiness over dumbellitude any day.

February 02, 2005
Althouse is not a wingnut
By Tom Smith

That may not mean much coming from me, but still. You can catch up on the controversy here. I think in order to resolve this productively, we need to come up with a good name for Kevin Drum. Something that would capture his self-congratulatory, middle-brow sniffiness. Kevin might as well be MSM.

Which reminds me, did you catch Bill Moyer's screed about right wing religious nuts in this fair land of ours? As a resident of far East County San Diego, I feel a certain sympathy for those who fear religious nuttery, but here's the thing. Bill Moyers is his own kind of religious nut. The fact that he is more difficult to classify gives him no right to make fun of people who think Jesus is going to beam them up as soon as fifth seal of Babylon or whatever is broken. I'm sorry, I'm a Catholic and haven't read the book of Revelation, or Relevations, as Moyers calls it, in a while, so I find it hard to mock. But Moyers is the poster boy for the kind of gooey New Age naif who never encountered a bizarre pagan practice he did not admire. "And what do you feel when you throw the baby into the lava pit?" you can hear him saying. "We in what we prefer to call the civilized world have much to learn from you and your authentic spirituality," he would simper, right before the next infant fondue. What on earth was that old devil LBJ thinking? Was Moyers some kind of elaborate joke? Maybe he let LBJ pick him up by his ears. The yuckiest thing about his op-ed piece was not his contempt for fundamentalist Christians, some of whom are indeed a few fries short of a happy meal, but his earnest belief that the hackneyed set of liberbal bromides he brought forth for our consideration somehow qualified as insight or wisdom. He has every right to be a dimwit, but posing about as some sort of American sage whilst whining about global warming and his grandchildren, is just rude. You just want to say, oh, Bill, put a plug in it. You just want to lock him and Roger Rosenblatt in a room together and let them bore each other to death.

Those darn Europeans
By Tom Smith

The sages at the EU have decided that spunky if clumsy totalitarian leader of the Cuban island paradise is OK after all. Havel is appalled. Is there any of that stuff they gave Arafat left over? Oh, Maximum Leader, care for a planteur?

Blue ink at Yale
By Tom Smith

Now here's a nice story. No word on whether any Yale law students got ink on their fingers. For myself, I can't feel quite right about any election Jimmy Carter isn't there to observe. But I guess you can't blame him for skipping it, what with the bombs and all.

Spy fiction
By Tom Smith

Good and good for you. John Le Carre is an old boy of my college at Oxford, though that is not his real name. He endowed a room there above the JCR. He is a fine novelist, although a dyed-in-the-wool anti-American, as many in the British intel community are, for reasons I don't really understand. Maybe the CIA gives them a rather bad impression of Yanks, or maybe they just don't like not having the empire any more. Anyway, the list is as reliable as anything in the wilderness of mirrors can be.

Save that contract
By Tom Smith

Don't throw it away.

February 01, 2005
February 1: This Day in Constitutional History
By Gail Heriot

The Constitution doesn’t specify how many justices should sit on the Supreme Court, so the first Court, convened on February 1st, 1790, had only six instead of the now-traditional nine. Of those, only three arrived on time for their first day of work. Travel was tough in those days. Fortunately, the Court had no cases before it, so the occasion was mainly ceremonial.

One of the problems they faced was what to wear. British judges, of course, traditionally wore rather elaborate gowns and wigs. But when Justice William Cushing walked down the street in full judicial regalia, the crowds made fun of him. “MY EYE!” a passer-by was heard to say, “WHAT A WIG!” Embarrassed, Cushing never wore the wig again. The justices decided to go bareheaded with simple black judicial robes.

Score Another for the Bloggers
By Gail Heriot

Good thing Dan Rather wasn't covering this story.