July 24, 2013

This blog is now resident within the online magazine Ordinary Times.

Editor-in-Chief Erik Kain introduces the newly-revamped blog -- which looks really more of a net magazine, in my opinion. Not A Potted Plant is a category of posts within Ordinary Times. You'll be able to find posts from Vikram Bath, Will Truman, and I in the sub-category there.

But our posts will mingle with what were formerly front-page League of Ordinary Gentlemen posts, sometimes to be promoted to "posts of note" with the nice rotating picture, sometimes just appearing on a single page. Nothing is going to change in terms of content. There will still by Monday Trivia and Linky Friday.

It's adversaria: our sporadic comments about politics, culture, law, money, and whatever else strikes our fancy will not end for the foreseeable future. But the look, the functionality, and the integration with our fellow authors will be much better.

Some people want to just read stuff by one author. That is a grave mistake, in my opinion, since Ordinary Times has such an impressive cadre of impressive writers, so if you only read the one person you're friends with, you're really missing out on the wealth of ideas in circulation. But, if you insist, there is a link for the new version of Not A Potted Plant and particularized links for just Burt Likko, Will Truman, and Vikram Bath's articles. This blog will remain as an archive of our past work, to be periodically updated from time to time.

Please enjoy our new Ordinary Times!

March 5, 2011

Watering The Tree Of Liberty

Watching the protests in Egypt last month descend into violence, especially seeing video from the BBC and CNN of pro-democracy protesters clashing with agents of the authoritarian status quo in one of Cairo's most important open spaces near its center of government reminds me of an incident from my own nation's history. It is a reminder that democracy is rarely achieved without paying a cost in blood. Today is a good day to commemorate the anniversary of that awful incident, a reminder of what our freedom is built upon.

In Boston on March 5, 1770, a young man named Edward Gerrish, who was the apprentice of a wig maker, confronted a British soldier, Captain John Goldfinch, near Goldfinch's post guarding the customs house. Gerrish said that Goldfinch had not settled up his bill with Gerrish's master. In fact, Captain Goldfinch's account was good, so he ignored the request for money. Gerrish came back later with some friends and renewed the claim that Goldfinch owed money. A low-ranking British soldier named "Private White" then hit Gerrish, either with his fist or the butt of his rifle. One of Gerrish's friends tried to retaliate, and a fistfight broke out between the civilians and the redcoats.

The fight grew, and attracted the attention of both Bostonians who were already upset enough that there were active-duty military troops in Boston to collect taxes, and the soldiers who felt their paramount duty was to keep the peace. One of Goldfinch's superiors sent a squadron of eight soldiers with fixed bayonets in to the growing fight to try and regain control of a chaotic situation. This did not work, as the crowd responded to the escalation of force from the redcoats by throwing so many snowballs at them that they could not advance to join the other soldiers.

They also taunted the British soldiers as having no right to be in the colonies and said that they should go back to England where they belonged. While crudely expressed in the riot, this mirrored an argument made by patriot leaders like Samuel Adams, who had publicly denounced King George's government for putting a standing army in the peaceful civilian city of Boston. Characteristically, the troops remained stoically silent in response to the jeers of the crowd, but it is hard to imagine that being accused of acting lawlessly had no emotional effect on the soldiers.

Then, a few people in the crowd produced clubs and began physically attacking the relief soldiers. The soldiers responded by using the butts of their rifles to club back, and the situation deteriorated into a general melee. Someone -- it does not seem likely to have been the commander of the relief troops -- shouted "fire!" and five of the soldiers fired their rifles into the crowd. We know that it was at least five, because five people died, three of them instantly. These are thought to be the first casualties of the American Revolution.

After the shots were fired, the crowd sobered up quickly, many running away in panic. The next day, the military commanders withdrew troops from the area to barracks, waiting for the mood of the town to die down. The growing patriot movement, however, was not content to allow the situation to end, and pressed for murder charges to be filed against the soldiers who had used their rifles on the crowd.

It is doubtful that any legal action would have been taken if it were not for Paul Revere. Americans celebrate Paul Revere for his famous "midnight ride" from Boston to Lexington in 1775, alerting people along the way that British troops were moving to secure a cache of small arms and cannon stored in a depot inland. But Revere's biggest contribution to the cause of independence was his creation of a colored woodcut depicting what came to be known as the "Boston Massacre," showing in graphic detail (and with a little editorial license) the moment of March 5, 1770, when the redcoats opened fire on the rioting colonists. Revere's illustration was reprinted, first in newspapers in Boston and over the course of several days, in papers from Quebec to Augusta, and eventually found its way to London. The graphic illustration of a line of British soldiers firing their rifles into a crowd of unarmed American colonists outraged nearly everyone who saw it.

Revere's woodcut is also one of the first uses of the mass media and the distribution of visual arts which mobilized significant political movement -- and an example of the slowness and clumsiness of the government thus challenged in realizing what was going on. The power of a new media expression of such an event to move hearts and minds is immense. Revere's woodcut has echoes through the ages in the graphic photographs of the horrors of the U.S. civil war, FDR's fireside chats, the indelible images of terrified students at Kent State University and the execution of NVA infilatrators in Saigon during the Vietnam War, the Rodney King videotape, and now in twitters and blog posts from the Muslim World throughout the past several years.

In any event, the political pressure brought to a boil in part by this use of a new form of media raised pressure on the government, which agreed to allow the prosecution of murder charges against the soldiers. By itself, this was a significant concession -- the colonial government was admitting that there was a possibility that the soldiers had acted unlawfully. Public sentiment against them was very high and they had to be confined for their own safety during the trial. It appeared that convictions were a foregone conclusion.

That was when John Adams, the man who later would be the second President of the United States, stepped in. He volunteered to defend the soldiers at no cost. He was already a prominent citizen of Boston and was identified with the patriot movement -- which at the time did not want formal independence from England but rather what we would today call "local autonomy." John Adams and his cousin Samuel Adams had a bitter falling-out over the first man's offer to defend the soldiers in the high-pressure trial. The firey patriot Samuel Adams said that this was a betrayal of the cause of freedom; the future President said that the reasons the colonists wanted independence was to free themselves from the lawless actions of the government, so their first duty must be to ensure the rule of law, and that required that the defendants be able to present the best legal defenses to the charges against them that the evidence would support.

In the trial, argued that the confusion of the fight, the initiation of violence by civilians against the soldiers, and the simple fact that the soldiers were being physically attacked all meant that they had the right to defend themselves from immediate attack. Adams put the blame solidly on King George for having sent a standing army to be stationed amongst civilians in the first place -- Adams said that if this incident had not happened, then something else very much like it would inevitably have happened. The fault, he argued, lay not with the soldiers but with the orders they had been given from London.

The defense worked. Of the eight soldiers who were charged with murder, six were acquitted and two convicted only of manslaughter because of their own admissions that they had fired their rifles directly into the crowd. Adams reduced the sentence for these two by invoking the ancient rule of "benefit of the clergy," by having the two soldiers in question demonstrate that they could read from the Bible. While this looks like sort of a cheap trick to modern eyes, it also helped demonstrate the very frivolity of that ancient and outmoded rule -- these men were obviously not priests but soldiers. Nevertheless, Adams' maneuver reduced their sentence from death to a branding of their thumbs. All eight defendants were sent home to England alive.

Along the way, Adams risked a substantial loss of political standing for defending these very unpopular men, and doing so vigorously. It took him some time to recover from many of his friends and clients turning against him in retaliation for having taken the case, and Adams was very sensitive about public approval to begin with. But history has vindicated the lawyer over the brewer. John Adams' defense of the soldiers in the Boston Massacre trial is a powerful example of a man putting principle first, above even his own politics. He made it clear that he believed the soldiers should go home, too, and that the King had no legal right to have stationed the soldiers there in the first place -- but even if George Hanover would not respect the rule of law in London, John Adams would respect the rule of law in Boston, and so should the jury.

Adams demonstrated in the trial that even the military was subject to the rule of law, and that the law demanded that even the King could be criticized in court with impunity if the rule of law were to be upheld. He showed the world that the King's policy of having active-duty troops in a civilian city to maintain order and collect taxes was very bad idea indeed and a legitimate cause for grievance by the colonists against the King. And in so doing, he ensured that the deaths of the five civilians would culminate in the independence of the United States of America and the founding of a Constitutional republic on the western shores of the Atlantic.

Whether a similar result can be achieved on the banks of the Nile in 2011 remains to be seen. Sadly, not all nations can experience velvet revolutions and Egypt will look more like the former colony of Massachusetts than the former Czechoslovakia in that now, the blood of martyrs has watered the tree of liberty. Let us hope that the tree flowers and blossoms, without need of any further nutrition.

February 6, 2011

Super Bowl Halftime Entertainment

Here's the recent history:

2001: Aerosmith (and guests)
2002: U2
2003: Shania Twain (and guests)
2004: Janet Jackson And Her All-Star Nipple
2005: Paul McCartney
2006: The Rolling Stones
2007: Prince (and guests)
2008: Tom Petty and the Heartbreakers
2009: Bruce Springsteen and the E Street Band
2010: The Who
2011: Black Eyed Peas (and guests)
 With the exception of 2004, there was an unbroken string on what seemed like they would have been really good acts. In fact, the Janet Jackson halftime show was actually pretty good, as these things go, up until the Justin Timberlake song which I didn't much care for in the first place and which everyone forgot because it came punctuated by a split-second glance at an attractive woman's BOOBIE!OMFGwereallgonnadie concealed by a pasty as if the nation had nothing else to worry about in 2004 other than that. Prince was quite entertaining for the likes of me, but probably a bit subversive for mainstream America. The Who was a little disappointing last year, starting strong but by the end of their set, Roger Daltrey looked like he needed to go take a nap.

Still, this is a pretty consistent record of high-quality acts delivering solid musical entertainment in a compressed amount of time and with an unlimited budget for showmanship. So let's grant that with acts like Springsteen, Petty, Prince, the Stones, and McCartney to follow, the bar was set pretty high. Disappointing would have been easy. Yet despite the understandable potential to have underwhelmed, somehow the musical acts supporting this year's big game found a way to come in below expectations.
 This year, it was bad enough when Christina Aguilera botched up the lyrics of the national anthem -- and then they went ahead and did the obviously lip-synched performance with the botched lyrics. You could tell it was lip-synched because her voice had the same volume no matted how far away she held the mic from her mouth. The fact that it was lip-synched means that they could have done another take if they'd card about getting the lyrics to the national anthem correct, but obviously they didn't. At least they made her take all the hardware out of her nose in order to clear security. 

But then, we got the Black Eyed Peas at halftime. This left me wishing quietly that the NFL had gone instead with a return engagement of "Up With People." Will.i.am can't sing without autotune, Fergie can't sing period (or at least didn't, judging by her cover of "Sweet Child O'Mine" in which Slash got dredged out of the 1990's to stand there and play the same eight notes over and over and over and over again), and I have no idea what those other two guys were even doing out there because it didn't even sound like rap, much less singing. Based on how they were all dressed, I kept on hoping for Rinzler to show up and take care of business for us but there was no relief until the teams re-took the field and we could return to football.

Next year, they could do better with Kermit the Frog leading a sing-along of "The Rainbow Connection" and "It's Not Easy Being Green." I wrote that as a joke, but actually, that might be a lot fun suitable for the whole family to enjoy. And really, it's no worse an idea than a halftime show starring "Indiana Jones."

This Is Number Thirteen Or Is It Number 4,000

This is very close to my four thousandth post. So of course it gives me much joy to dedicate it to the Super Bowl XLV champions, the 2010 Green Bay Packers, improbably coming from 14 players on injured reserve and losing one of their star cornerbacks during the game, winning the championship and proving that in football, explosive action can beat slow and steady pressure.

I'm a little bit too drunk at the moment to muse intelligently about the not-quite-a-diplomatic-flap over the weekend involving Britain and the START treaty. Maybe tomorrow. For now, I'll just enjoy my team winning the Super Bowl.

February 5, 2011

A Sub-Ordinary Gentleman

This blog is moving.  I'm not shutting down, I'm taking advantage of a fantastic offer from one of the best blogs out there on the Interwebs, the League of Ordinary Gentlemen.  For a time, I'll be cross-posting most of my posts.

After a while, though, this blog will become of interest only to my personal friends and family and those who are interested in other stuff (yes, including the food and cooking) will need to follow the better-supported and nicely-formatted blog at the League.

The new blog site can be found here.  Please update your bookmarks and RSS feeds.

February 2, 2011

Perhaps This Is Not The Best Prize

A homeless couple in Green Bay won an all-expense paid trip to the Super Bowl. Where it's only marginally warmer and less snowy than in Wisconsin right now. They are, apparently, big fans of the Packers (as should be all right-thinking Americans, including not only Chicago lawyers but also the guy who makes Pittsburgh's Terrible Towels). So they'll get flown down to Dallas, have a nice weekend in a nice hotel and some good food, and flown home. It would be an experience of a lifetime for a Packer fan, to see the team play in the Super Bowl.

But at the end of their adventure, they're still going to be homeless. Tickets, flights, food -- how much is all that worth? $10,000 or so? The median price on a house in Green Bay is $109,000. That same ten grand could go to for a 5% down payment on a median-level house in their own home town and closing costs, some basic furniture, a couple of new suits for job interviews, and finding some leads on suitable employment. Wouldn't that be better?

I'm a fan of the Packers and I'm excited about the game. But as much fun as it's going to be for those of us who can afford the luxury of indulging in its frivolity, it is still just a game. Watching the Packers play in the Super Bowl in person would be a big thrill, yes, but if I were homeless and unemployed, I would much rather watch them play on TV -- from the comfort of my own new house.

Macchiavelli, Mubarak, and Assange

The amazing thing, I suppose, is that it took nine days before things began to turn seriously violent in Egypt.

After Egypt’s dictator President Hosni Mubarak announced his intention to finish out his constitutional term of office and not seek re-election in regularly-scheduled elections this September, protesters calling for regime change in Egypt’s government seemed to split, with most of them crying that this wasn’t good enough and a sizable minority saying that Mubarak ought to be allowed to “depart with dignity” and make good on his vow to “die on Egyptian soil.” It turned ugly, people started throwing rocks, and now the Army wants the protests to end.

The U.S. response to all of this is diplomatic and nuanced in tone, too carefully and cautiously nuanced for some and not sufficiently bold and ideological for others. Many both in and out of Egypt fear that Mubarak’s announced leaves him sufficient time to put a puppet in place and that there will be no real change in how Egypt is governed, and that the United States actually has no particular problem with the idea that Egypt remaining only nominally democratic but a dependable ally is what we really want.

As I noted before with my comments about what Machiavelli would have thought of all this, that perception is probably exactly right. The problem is not that this policy is erroneous, it is that it has been stripped naked and its cynical, hard-headed realism is exposed for all the world to see. Consequently, the U.S. is losing standing and political capital with the very people out there in Tahrir Square, who for a week seemed to be open and sympathetic to the idea of engagement with the west and forming a secular democracy, who wanted a signal that they were thought of as the good guys in Washington and London and Paris.

Now, they’re not so sure. Now, they’re wondering if they have to look elsewhere for support. The handoff has been fumbled — it’s not clear whether that has been by some sort of mistake by Western diplomats, by Mubarak’s half-a-loaf concession, or if some kind of interference has made this all clear.

Which is why floating the idea of giving Julian Assange the Nobel Peace Prize on this of all days seems poignant. Assange wants to portray himself as a martyr for the cause of complete transparency in government, particularly the U.S. government. But that kind of transparency would prevent exactly the sort of public idealism/private realism maneuver which Machiavelli advises as the best way for statecraft and diplomacy to be practiced. Without the ability to be, well, Machiavellian about it, it forces a government outside of a situation like this to go all-in for one side or the other early on. It prevents hedging of bets, it raises the stakes of outcomes, and most importantly, it short-circuits the possibility of negotiated compromise settlements. Complete transparency means that gradual change becomes more difficult and revolutions, or violent repression of the same, become the only way change can take place.

Which is why Assange’s self-appointed mission of transparency is not a force for peace. Mubarak’s proposal contains the potential for being a tissue over the swapping of one strongman for another at the helm of the Egyptian ship of state, but it also contains enough of a framework for incremental change and a transition to democracy. That transition does not need to be generations long, but it probably can’t be successful overnight. Iraq did not transition from military dictatorship to constitutional democracy overnight, and neither will Egypt. Or Tunisia or Syria or Jordan or Libya or anywhere else that does not have a meaningful culture of peaceful political discourse and a tradition of democratic institutions upon which a constitutional republic can be built.

Mubarak’s compromise solution to protests against his government allows everyone some breathing room — it allows the West the breathing room it needs to assure itself that a new Egyptian government will not fall into the grips of radical Islamists or develop overt hostility to Israel. It allows the Egyptian military to stand back and not kill anyone, which it does not seem to want to do. It allows Mubarak the ability to withdraw from the field peacefully. It allows for democracy to actually develop in a way that will be enduring. And most of all, it allows the people of the various factions united only in their opposition to Mubarak’s authoritarian government the time to organize and present their visions of what Egypt could be in the future to the people of Egypt, without throwing rocks at each other or at pro-Mubarak forces and getting themselves hurt or killed.

This requires that there be some level of opacity in negotiations. This requires some tolerance of dissonance between public statements and official actions. It requires patience and nuance in forming policy. And it requires the maturity to tentatively accept compromise solutions. These are not things that radicalized crowds of protesters are good at. These are things that only leaders can do — and if Julian Assange forces their hands, radicalizes them, and prevents them from adopting these kinds of nuances, then he is not a force for peace, and he can look at the college kids in Cairo clashing with riot police and enjoy the spectacle of the world he has made.

January 31, 2011

Vino Intercontinentale

So The Wife and I had another blind wine-tasting party. We invited three other couples, to limit seating, and limited wine to six bottles. I found a California Tempranillo, a Bordeau, a Barbera d'Asti, an Argentinian Malbec, a South African Syrah, and an Australian Shiraz (yes, Shiraz is the same as Syrah, just spelled differently). All vintage 2006, which I thought was pretty clever on my part.

Then two of the three couples canceled, with less than two hours before "go" time. We tried scaring up other people to come, but on such short notice, no one could. The result was us and one other couple with six, count 'em six, anonymous carafes of five-year-old red wine. We had our tasting anyway, and had a very nice evening visiting with our friends.

With the result that we had nearly two and a half liters of red wine left over because really, how much are only four people going to drink? So I took one of the containers I use for infusing liquor and dumped the remains of all six carafes in it, intermingling the grape juice in a combination never before or again to ever be replicated by anyone, anywhere.

The result: vino intercontinentale. Some of that wound up in tonight's spaghetti sauce. Some of it is in glasses being drunk right now. The truth of the matter is, it's quite good. I need to let it warm up -- we stored it in the fridge for some reason that made sense to us when we were inebriated -- but even a bit on the cool side, it's quite enjoyable. I don't think I'd attach a high price tag to it, but I'm drinking it and pretty happy.

Machiavelli On American Policy Towards The Egyptian Revolution

There seems to be some debate about whether the U.S. should be backing the Mubarak government in Egypt, backing the protestors, or standing back doing nothing.

Mubarak, after all, has been a good ally to the United States in a region of the world where that is not always the easiest thing to do; under his leadership Egypt has been both a leader in the Arab world and a symbol that peace with Israel and cooperation with the United States is possible.

On the other hand, obviously we want to see actual democracy in Egypt and if we take a principled approach to our relations with the rest of the world, the self-determination of the Egyptian people ought to be the highest goal we could encourage in that nation. We can be reasonably hopeful that a post-Mubarak Egypt would remain on good terms with the West, but not certain.

Standing by doing nothing, moreover, pleases no one and may embitter whatever leader comes out on top of Cario's current struggles. Egypt is the most ancient civilization on Earth and has the richest history of anywhere on Earth. So perhaps it is to the wisdom of the past that we should look:
...it is unnecessary for a prince to have all the good qualities I have enumerated, but it is very necessary to appear to have them. And I shall dare to say this also, that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite.

And you have to understand this, that a prince, especially a new one, cannot observe all those things for which men are esteemed, being often forced, in order to maintain the state, to act contrary to fidelity, friendship, humanity, and religion. Therefore it is necessary for him to have a mind ready to turn itself accordingly as the winds and variations of fortune force it, yet, as I have said above, not to diverge from the good if he can avoid doing so, but, if compelled, then to know how to set about it.

For this reason a prince ought to take care that he never lets anything slip from his lips that is not replete with the above-named five qualities, that he may appear to him who sees and hears him altogether merciful, faithful, humane, upright, and religious. There is nothing more necessary to appear to have than this last quality, inasmuch as men judge generally more by the eye than by the hand, because it belongs o everybody to see you, to few to come in touch with you. Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result.

Il Signore Niccolò could be speaking directly to President Obama here. Actions should be strictly motivated by angles for advantage, and public statements should come dressed in the trappings of the highest moral ideals. Prior commitments and loyalties should only be honored in fact to the extent that honoring them is actually useful.

Mubarak has been a good and useful ally. But that is irrelevant. Which side we should support should be determined on which side promises to deliver more advantage to the U.S.A., and nothing more. Outwardly, we should be piously observant of the ideals of democratic self-determination, human rights and liberty, and the free traffic of both commerce and information among peoples.

How can we do this? The most sensible thoughts on the issue I've yet read can be found here.

If we can be reasonably confident that the Muslim Brotherhood will not get into a position of power, in a democratic Egypt, then Mubarak should be eased out peacefully, perhaps naming Mohammed ElBaradi as the "First Minister" or something like that. After a period of time, Mubarak resigns and retires to a sinecure somewhere that, importantly, is not in Egypt. Then a new constitution gets adopted, elections take place with the U.N. and Jimmy Carter and all the rest of the hoopla to make sure it's free and fair -- since as long as the really bad guys aren't going to call any meaningful shots, we like democracy.

But if there is a realistic chance that the bad guys could take power, then Mubarak stays.

January 30, 2011

what do these celebrities all have in common?

Beyonce. Halle Berry. Tim McGraw. Jessica Simpson. Mariah Carey. Sean John. Sarah Jessica Parker. Christina Aguilera. Britney Spears. Usher. Elizabeth Taylor. Faith Hill. Avril Lavigne. Paris Hilton. Ashley Judd.
Published with Blogger-droid v1.6.6

January 27, 2011

Roshambo Economics

Usually we think of economics as studies in supply and demand, price and consumption, in a setting of scarcity. But scarcity can come not from the vagaries of supply and demand, but also from logic. And economics is the study of human behavior when choices must be made -- much like political science is also the study of human behavior in a realm of forced choices.

Another way to think about it is not like finding the "sweet spot" of optimal amounts of guns and butter, but instead trying to plan out a game of rock-paper-scissors. The result is, at least on the double example that I find here, a preference for short-term rather than long-term utility.

People want to eat as much as they want, not endure the unpleasantness of exercise, and still lose weight. Obviously, you can't have all three -- not because food, exercise, or weight loss are expensive, but because once you have two of those, the third is necessarily excluded from what can be achieved. You can eat as much as you want and still lose weight, but only if you exercise a lot. You can skip the exercise and lose weight, but only if you restrict your food consumption. Or, you can eat at lot, not exercise, but accept weight gain as the consequence.

As it turns out, YMMV, but the most common choice seems to be weight gain rather than exercise or reduced consumption. Weight gain involves deferring a long-term pleasure, while exercise and reduced consumption involves deferring a short-term pleasure.

The body politic makes similar choices. We want the government to provide services (principally social welfare and defense), low taxes, and balanced budgets. Can't have all three. We can have robust services and low taxes, but the debt will rise. Or, services can be robust and the deficit will make sense, but only if we pay for it with high taxes. Or, We can enjoy low taxes and reduced governmental debt, but only if we make do with fewer services from our government.

As a people, we have opted for long-term debt rather than deferring short-term pleasures of low taxes and governmental services. This is reflected in our current political dynamic in which there is much sound and fury but no substantial action over our public debt, and adamant refusal on the part of either major political party to meaningfully cut social services or meaningfully raise taxes. The behavior of the parties accurately reflects the desires of the voters as a whole.

What tripartate, mutually-exclusive choices show us is that humans have a preference for immediate over long-term gratification.

January 26, 2011

Democracy In North Africa

We're not anywhere close to seeing democracy emerge in the north African nations (other than Algeria). But that doesn't mean there aren't notable things going on.

Over the past three weeks, Tunisia has been a nation whose remarkable events have been shamefully underreported in the American media. As I understand it, the tough economic times resulted in a young man who could not find work, and took to selling fruit on a street corner, and then was arrested for not having a permit. Distraught over his situation, he committed suicide, and this set in motion a chain of events which led to popular demonstrations and riots. Just over a week ago, these reached a level of intensity that the well-entrenched President, Zine El Abidine Ben Ali, was deposed. Popular calls for the institution of a functioning democratic government continue and the interim leaders of the country -- the military and the Prime Minister -- are struggling to find a way to respond to those popular demands, which so far seems to consist of issuing arrest warrants for Abidine and his family.

There are similar protests going on in Egypt. As in Tunisia, public demonstrations are outlawed but happening anyway, again led by calls for democracy on the part of economically disaffected young people in massive street demonstrations. They seem to have united around the figurehead of Mohammad ElBaradei, who has returned to his native nation at some risk to his own liberty to join the protests against the deeply-entrenched President Hosni Mubarek. Mubarak is dealt with as a partner to the U.S. because of his overt hostility to the Muslim Brotherhood -- but the really good news is that the protesters in Egypt seem to reject the Muslim Brotherhood as much as they do Mubarak.

While the violence is regrettable, it is perpetrated by the repressive, functionally dictatorial governments who are being challenged by their own people. The moral fault for the violence and people hurt by it rests ultimately with the leaders who clamp down on protests rather than recognize the sovereignty of their people. It looks like 1989 in north Africa; it remains to be seen if the result will be like Eastern Europe or like China.

Let us hope that the Egyptian, Tunisian, and hopefully other peoples prevail and new democracies, ones with true respect for the rule of law and human rights, emerge from the struggles quickly and with minimal bloodshed.

Beat About The Head And Shoulders

That's how I feel after a day like today. I need to remind myself that the number of people who go see doctors for problems, get prescribed medication, fill those prescriptions, and then take the medicine in the manner directed by their physicians is less than one-third. It's frustrating seeing clients not only fail to appreciate their problem but actively counteract all the good I've been doing for them. It's frustrating to have seen clients go through wrenching, tear-jerking experiences and then see them repeat the same mistakes that I pointed out to them caused the tears to flow in the first place. It's frustrating to see future plans frustrated by innocent-meaning actions of third parties. It's frustrating to have to deal with issues outside my area of expertise because the colleague better-equipped to deal with them is simply unavailable.

This is, of course, why there is such a thing as Scotch whisky. Would that I could enjoy some tonight.

January 25, 2011

I don't think there's all that many singers out there who would do something like this song today. So many of them are auto-tuned into oblivion and don't invest the time into learning how to use their voices like musical instruments -- much less writing lyrics like this.

This Is Not News

Why is it top-of-the-roster news for two days in a row that Antonin Scalia isn't going to attend the State of the Union address? I've serious doubts about whether any of the Justices of the Supreme Court should ever do so. Maybe one who was just nominated, as a gesture of thanks and support for the President who just nominated her and the Senators who confirmed her. But that's about it. Justice Samuel Alito causing a flap last year for silently shaking his head back and forth during a point he believed the President was misrepresenting a controversial opinion only highlighted the fact that the judicial function is best removed from the fray of politics.

Which is why it ought to have been bigger news that Justice Scalia spoke to the Tea Party Caucus in Congress. The Tea Party Caucus is obviously identified in partisan terms, although a few Democrats attended Justice Scalia's visit with them. I don't imply that in giving the talk, Justice Scalia acted improperly -- he did not. I imply that by giving this group the favor of his time and attention, he indicates a degree of sympathy with what they have to say. This isn't improper, but it pushes the limits of propriety. Some people might reasonably perceive bias from his attendance.

I attended a speech Scalia gave once at a Federalist Society function once where he received a hero's welcome and he clearly enjoyed receiving such treatment (as is only natural); he was careful to not discuss pending or likely cases that would come before him and so he didn't cross the line into misconduct. But it was odd to hear him castigate or lionize historical decisions in apparently direct opposition to the traditional view of the liberal academy -- he offered a full-throated defense of Bowers v. Hardwick and I was both put off by his decision to defend that particular decision, one which I thought was the least defensible in modern Supreme Court history.

I was even more put off by the thunderous applause given by nearly everyone present (myself and a handful of others excepted) at those particular remarks. I'd known that the Federalist Society was a collection of libertarian and conservative lawyers but I hadn't counted on my fellow libertarians being such a small minority of those present. I left the event thinking that taken as a whole, the event had the feel of partisan pep rally, cheering on the advancement of socially conservative causes in the courts. While no individual element of the night, by itself, struck me as technically improper, taken as a whole it left me with the impression of bias.

Now, I'm not entirely sure that it's hugely important that Justice Clarence Thomas misunderstood disclosure forms and neglected to include work done by his wife for partisan causes. Unlike the Common Cause advocate int he linked story, I think it's fair to say that Justice Thomas could have in good faith misunderstood what the forms were asking for -- he filled them out the way he did for twenty years and no one complained until now; Justices on the Court disagree on how to interpret things all the time. The news is that his wife works for such causes at all, because that it was creates the potential for a perception of bias.

On examination, it doesn't look like bias or anything improper, but it's important that the courts be perceived as unbiased and a part of that perception comes from the willingness of the members of the bench to make disclosures so as to display their impartiality. I see a lot of similarities here to the situation in the Prop. 8 case involving Judge Stephen Reinhardt and his wife Ramona Ripston, and the same standard -- one of disclosure but not recusal or a presumption of bias -- ought to apply.

I don't know what the Justices who are thought of as "liberal"* do with their time out in the public, or whether they or their spouses are to be found on the periphery of similar sorts of partisan-flavored activities. If so, it would be just as improper. I've seen two other Justices speaking at public events -- Anthony Kennedy, a "moderate," and Stephen Breyer, a "liberal" -- and both of them spoke at law school events about matters of academic interest. Why it should be that so much discussion about the political sympathies of these "conservative" Supreme Court Justices should be percolating around in the news, at this point in time, is very unclear to me. There is no reason to withhold similar criticism from the "liberal" Justices were they to behave the same way, and I have simply not looked into whether they are vulnerable to similar kinds of criticism. Perhaps they are, but for whatever reason they aren't in the news with it right now.

But if I were advising these jurists, regardless of their ideologies, I would tell them to keep as low a political profile as they can, and that the stuff mentioned above is not low-profile. The judiciary should be perceived as a resting place for fairness, objectivity, and equity, not as a political football. And since the media and the political branches of government labor so hard to politicize the judiciary, the judiciary should respond by underlining, whenever possible, that it tries to keep itself about the fray.

In that light, skipping the State of the Union address is not a snub to the President. It is a proper fulfillment of the judicial function and I say, none of the Justices should be there tonight.

* I put their media-assigned ideological alignments in quotation marks because calling them liberal or conservative does not accurately reflect the bulk of the work they actually do. No one outside those particular specialties really cares when they disagree about interpretations of Article 9 of the Uniform Commercial Code or the scope of ERISA pre-emption law. Nor do they always reach the results they do even in the hot-button cases for the same reasons.

January 24, 2011

Scary News For International Travel

You would have thought that security wouldn't have been a problem in Russia, unburdened as it is with concerns for civil liberties. But the bomb that the TSA will be looking for next blew up this morning in Moscow, killing 35 people who were waiting to enter Russia and apparently detonated by a suicide bomber. Naturally, everyone's hearts and sympathies go out to the families of those killed and the Russian government catches those responsible and punishes them as only Russians can.

Terrorism Russia is problematic because it could come from so many sources. Our friends from al-Qaeda are always on our minds when something like this happens, but it could be Chechen rebels, Dagestani rebels, someone trying to liberate South Ossestia -- it's almost like Russia is behaving imperialistically and making enemies along the way. Even if that is true, though, it in no way justifies this sort of violence on innocent civilians.

So Much For The Nixon Going To China Moment

In a move that surprises no one but simply continues politics as usual and adds further assurance that we will run our national debt into fiscal oblivion one day during my lifetime, the President has announced that he opposes changing either the retirement age for Social Security or the amount of benefits people will receive under it in the future. This means that the only ways to deal with the looming drawdown of the Social Security fund will be to a) raise taxes or b) divert money from on-budget programs to SSI or c) both.

Democrats, your leader has made it clear that he has no taste for entitlement reform. Republicans have already done the same -- not just for Social Security but also for Medicare. (But they are opposed to "socialism.") Without entitlement reform, there can be no serious discussion of deficit reduction -- defense is only about one-fifth of the total budget, cannot be cut completely, and our spending problem is much bigger than that.

This is the public policy equivalent of a gangrene patient opting to not take antibiotics and other nutritional improvements, and also opting to eschew debridement or removal of the necrotized tissue, proclaiming, "It'll heal on its own." No, it won't. Social Security won't get better on its own. The budget won't get better on its own. We have to cut, something, at some point. The sooner we do it, the less painful it's going to be. Just like pulling off a band-aid, it'll be better if we do it fast and all at once than if we do it slowly and over time.

What's In A Taco Anyway?

In a maneuver clearly calculated to engender massive respect for the legal profession, an Alabama law firm has taken advantage of that state's surprisingly liberal class action laws to sue Taco Bell for claiming that the mild, grainy substance they use to fill their tacos and burritos and chalupas and enchiritos and other made-up not-really-Mexican food is only 36% beef.

What, you might reasonably ask, is the remaining 64% of whatever was stuffed in the tortillas of your fourthmeal? The answer, allegedly, is a tasty and savory blend of water, isolated oat product, wheat oats, soy lecithin, maltodrextrin, anti-dusting agent, autolyzed yeast extract, modified corn starch and sodium phosphate. Pick one of those and go do your own obligatory Homer-Simpson-drooling joke. Taco Bell has denied any wrongdoing and says it will vigorously defend itself -- but the unfortunately common gastrointestinal aftereffects of actually eating at Taco Bell suggest that there may be some substance to the allegations that your "Mexican Pizza" is, well, just a bunch of fried fatty glop laced to the point of chemical supersaturation with monosodium glutamate. But you should have known that already.

So if you want good taco flavor, you'll just have to go out and buy Doritos. Seriously, go buy taco flavored Doritos. Taco was the best flavor Doritos ever made and for some reason the marketing geniuses there think it won't sell. But since it's out in "limited release" right now you can help me prove those marketing weenies wrong. When the bags of taco flavor Doritos start flying off the shelves, they'll change their minds. And my efforts to lose weight will be for naught, but I'll have my tasty taco Doritos as consolation.