Not A Potted Plant

Watering The Tree Of Liberty

2011-03-05T02:26:00.000-08:00

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.

Super Bowl Halftime Entertainment

2011-02-06T23:38:00.000-08:00

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

2011-02-06T19:28:00.000-08:00

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.

A Sub-Ordinary Gentleman

2011-02-05T13:47:00.000-08:00

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.

Zach Wahls For Governor

2011-02-03T12:42:00.001-08:00

Five Irrefutable Facts And An Inescapable Conclusion

2011-02-03T12:35:00.000-08:00

Via.

Perhaps This Is Not The Best Prize

2011-02-02T09:29:00.000-08:00

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

2011-02-02T07:44:00.000-08:00

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.

Vino Intercontinentale

2011-01-31T18:45:00.000-08:00

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

2011-01-31T18:33:00.000-08:00

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.

what do these celebrities all have in common?

2011-01-30T14:55:00.001-08:00

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.

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Roshambo Economics

2011-01-27T07:22:00.000-08:00

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.

Democracy In North Africa

2011-01-26T21:40:00.000-08:00

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

2011-01-26T21:07:00.000-08:00

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.

2011-01-25T18:34:00.001-08:00

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

2011-01-25T07:34:00.000-08:00

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.

Scary News For International Travel

2011-01-24T19:43:00.000-08:00

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

2011-01-24T19:26:00.000-08:00

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?

2011-01-24T19:16:00.000-08:00

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.

Today's NFC Championship Game

2011-01-23T02:12:00.000-08:00

My next-door neighbor is a big Bears fan. This brings a fine bit of midwestern rivalry out to sunny, warm California:

This was to have been a music video for the popular Wisconsin pub song "The Bears Still Suck" but the video was removed due to a copyright claim. I have no desire to infringe anyone's copyright. I do, however, have a desire to talk trash to Bears fans before a game I expect the Packers to win (with justification, as it turned out)

Enjoy the game.

Whiskey Tango Foxtrot

2011-01-21T21:08:00.000-08:00

This is what I get for being a comic book geek and a political junkie -- an auto-select of news stories from Google that takes me to a review of the premier edition of Steampunk Palin.

No, your eyes did not deceive you. Someone has gone through the time and effort to create a comic book called "Steampunk Palin."

In which she forms an unlikely alliance with the cyborg President "Robama" to fight an evil big corporation that's doing, um, something bad up in Alaska and turns out to be led by Al Gore. No, really.

And as you can see, Steampunk Palin has hu-u-u-u-uge breasts. It is a comic book, after all.

Bad Attorney Advertisements, Part 3

2011-01-21T18:46:00.000-08:00

For the third installment in my occasional series of bad attorney advertisements, I have found a television commercial.

Embedding of the video here is disabled, so you'll have to follow this link to see a truly tacky TV ad for a lawyer. Now, you might think that a divorce lawyer would be uniquely able to produce something that could readily cast the entire legal profession into serious disrepute (and indeed, they are well-equipped to do so), the fact of the matter is that at least one other candidate for that the title of "most shameless TV ad ever" comes from that same "Hammer" guy. Frankly, this bit of trivialization of bankruptcy, while lowbrow, doesn't really go over the top the way a lawyer using the decidedly unoriginal nickname "the Hammer" can. (This other "Hammer" guy even uses the same stock clip-art graphic of a steel hammer.)

The lack of dignity in the commercial is apparent. But this begs the question of whether good taste is actually necessary for the ad to accomplish its purpose. Maybe not -- the point of the commercial is to attract business to the lawyer and he doesn't owe any duties to the profession to make the rest of us look good. It's hard to say whether Jim "The Hammer" Shapiro is able to discern what good taste even is, given that the commercial may well not fairly represent what he's like in real life. Who knows, maybe he's really a quite sedate, pleasant, and polite guy when he's not cheesing it up for a TV spot.

But if the commercial is intended to give an idea of what he'd be like as your lawyer, I for one would rather take my business elsewhere.

Why is that? While people might be looking for a zealous advocate who will get angry on their behalf and I would too, I don't think most clients with worthwhile cases are looking for someone whose mental health is subject to reasonable question based on their presentment on TV. Both of these commercials hint that "The Hammer" is a little bit, well, off. Particularly knowing what I know about how litigation works, I know that there is a "sweet spot" that you reach in every case, when the settlement value maximizes with respect to the work done. I don't want a lawyer so blinded by his hatred of the evil insurance company that he does not understand when the case has reached its "sweet spot."

Beyond which, what if I piss him off? Clearly he's contemplated ripping peoples' hearts out and severing their heads from their bodies, and that's just for people who hurt his clients. What might he want to do if you did something he personally didn't like? Maybe it's best if I just avoid the guy altogether.

Now, I can't fault the guy for a lack of focus. A good TV ad should have as a prominent element a clear, direct focus and I'll admit it: Jim "The Hammer" Shapiro has achieved in this respect. One might take issue with the nuance of the focus on display. There is no pretense that what's going on here is about "fairness" or "justice" or "compensation for the innocently hurt" or "healing injuries." Many other personal injury ads speak to equalizing the fight between a claimant with few resources and a big, scary, powerful insurance company. Others tout the competence and aggressiveness of the attorneys whose services are being sold. Still others focus on the money that can be obtained in court, which is after all the point of personal injury law.

But here, it's not even so much about the Benjamins, or even about zealous advocacy, as it is about revenge. For anyone who has thought about how personal injury law works on an economic level, it ought to be obvious that a 40% contingency share of revenge isn't worth a penny, and speaking as someone who has interviewed his fair share of potential clients with worthless cases, I can assure the rest of you that the emotional intensity of a client's desire for revenge has nearly nothing to do with the magnitude of tangible injuries for which I might conceivably recover damages on their behalf in a court. Once again, the fact that the guy went over the top makes me question his judgment and disinclines me to hire him to handle my personal injury situation.

Now, on to practical matters. You only take away one thing from a typical TV commercial and the thing to take away from an injury lawyer's commercial is the number you should call if you've been hurt. Jim "The Hammer" Shapiro is so busy explaining how much hatred he has for the people you want to sue that he only leaves himself enough time to say his telephone number once. It's easy to forget the number after the commercial is gone, because he hasn't hammered it into your head through repetition. What I take away from this commercial is that Jim "The Hammer" Shapiro has got more than his fair share of Teh Crazee. He's practically spitting in the camera at the end when he says "You call, I hammer!" But I've completely forgotten the phone number because I'm so astonished at the lack of good taste and common sense that went in to the commercial itself.

He tries to make up for it with the overall presentation. The whole commercial is a black background frame with parallel video windows in it. The graphics are changing in the right-side window, showing a series of explosions and fires, interspersed with fast-edited black-on-white graphics. But steady on the top part of the background frame is the name of Jim "The Hammer" Shapiro and stead on the bottom of the frame is the phone number.

YMMV, but I personally think this technique fails, because my eye is drawn rapidly back and forth from the image of the frothing lunatic in the left video window with the violence of the explosions in the right video window. I can't concentrate on anything at all while watching the commercial, and my residual reaction when it's all done is a combination of stunned incredulity at the bizarre emotional intensity of the strange man screaming at me, and fatigue in my eye muscles from bouncing my visual focus so many times between the left and right video windows. It's too much, too fast, for me to mentally process.

The Determinist Explanation

2011-01-21T15:41:00.000-08:00

Because of the autonomic responses of the chicken's internal nervous system in response to visual, auditory, and other sensory stimuli, moving through a complex neural network to stimulate the chicken's behavior. Likely, the neural programming within the chicken's brain was influenced by both pleasure and pain induction, perhaps modeled after previous experience such as when the chicken had previously crossed other roads and located a source of food, or an instinctual response left over from hundreds of thousands of generations of successfully-breeding ancestors which "hard-wires" into the unconscious motive imperatives of the chicken the notion that across the road, a place of apparent safety from foxes or other threatening predators is likely to be found, e.g., a coop. While our understanding of the natural phenomena which are the inputs leading to the particular behavior under examination is admittedly limited, a complete and comprehensive understanding of those phenomena and how they are internally processed by the subject is ultimately unnecessary to come to the realization that in no event can the chicken be understood to have "chosen" to have done this.

The Primary Reason Why I Gave Up Assigning Essays

2011-01-21T14:43:00.000-08:00

I would not be surprised to learn that Bar Jester Jason Peters is reverse-engineering an actual essay from his freshmen composition class. His note to the female students of his college is well-taken -- this isn't worth suicide for them -- but I can find no similar consolation for the professors and TA's who are forced to read this stuff in exchange for starvation wages.

Via LoOG.

Multi-Lingual Legislatures

2011-01-20T17:56:00.000-08:00

So far as I had known, the only multi-lingual deliberative body was the United Nations' General Assembly. But it turns out that the Senate in Spain is a forum in which legislators desire to speak not only the primary language of the nation, Spanish, but also Catalan, Galician, Valencian, and Euskara (the language of the Basque), and the nation includes many speakers of Aragonese, Asturian and Leonese.

One suspects that in the areas near Portugal, Portuguese is also a commonly-spoken language, that English is spoken near Gibraltar, and that near the northern border there is a fair amount of French going on too. That's eleven languages in a country smaller than Texas, five of which are spoken on the floor of the nation's legislature. When The Wife and I visited Barcelona, we saw many more Catalan flags flying than Spanish, and most people spoke Catalan (sounded like Spanish with a lisp to me) and their eyes narrowed just a bit when I spoke Spanish. Yet somehow there does seem to be a common identity, even if many peoples' primary identities are regional rather than national.

The BBC maintains that nearly all Spaniards speak Spanish as a first or second language, however; so the protest that there is a common language and therefore a common ability to communicate and discuss affairs of government is there. I suppose I can understand that spending €12,000 a day on translators who are not really necessary is a waste and people might get a little peeved about that. But really, is it so bad? All told the translators for the Spanish Senate probably cost something around a million Euro a year or so -- and Spain's money problems are much, much deeper than that.

Permanently Bald Othello

2011-01-20T17:07:00.000-08:00

I suppose that Othello will always look like Lawrence Fishburne, at least for the foreseeable future. Not that Fishburne wasn't a good Othello, or anything. But I wonder if in this day and age, an actor could play Othello, or an artist could depict him, with a look other than Black Dude With A Badass-Lookin' Shaved Head.

Now, don't get me wrong. Black Dude With A Badass-Lookin' Shaved Head is a cool look and most movies, plays, and pretty much any other kind of entertainment media you could name are all enhanced by the presence of a Black Dude With A Badass-Lookin' Shaved Head. Even movies that are otherwise seriously flawed. And yes, Othello is a warrior and a shaved head is obviously a practical hairstyle for someone whose job description includes hand-to-hand combat. So it's not like there's anything wrong with depicting Othello that way.

It just seems so... obvious. There's more than one way to depict a warrior, especially one who is in repose, enjoying the fruits of his labors and his lovely, younger Venetian bride. One need not even have to have particularly dark skin to to play the role; such ultra-white actors as Anthony Hopkins and Orson Welles and Laurence Olivier have all played Othello effectively. And there are other ways to signal that some dude is officially a Mess-With-Me-At-Your-Own-Peril Badass than a Shaved Head.

Nevertheless, if Denzel Washington were to be cast as Othello today,* I bet that he'd shave his head for the role, too. What's going on with that? Why must Othello always be bald?

* Maybe with Connie Nielsen as Desdomena and Ciarán Hinds as Iago?

Three Classes

2011-01-19T23:48:00.001-08:00

This post is about what exists in reality and how I've seen it, not what I think that reality ought to be or my moral approval or disapproval of it. On balance, I'm not particularly happy with seeing the world this way but I believe it to be a useful and accurate lens with which to understand things.

Class And Personal Experience

Perhaps the most consistent thing about the many phases of my own law practice has been the very wide spectrum of people that I have met, people from all sorts of walks of life in so many different phases of their lives. It's hard to say whether one's own experience is truly representative of the world under the best of circumstances, and my experiences have comes from people who are facing legal troubles. And you get a good sense of what people really are made of when you see them grappling with their troubles. So a substantial part of what I have to say here is based on the least reliable sort of evidence, which is anecdotal. I've little else other than media to rely on for observations about broad social classes, however – media both popular and academic, to be sure, but really, what other sources of information does anyone have about the way one's own society is structured?

Also having substantial weight on my observations here is a book which has been influential among my peer group, Paul Fussell's Class. Prof. Fussell wrote this slim and trenchant observation on American society in 1983, in an attempt to explode the myth that the United States enjoys a classless society. Fussell identified nine primary socio-economic classes in the modern United States – five of which he described as "proletarian" or less – and asserted that upward mobility between the classes was extraordinarily difficult even if one overcame the odds and acquired sufficient money to afford the kinds of things that members of the next rank up might acquire with minimal difficulty.

For instance, Fussell posited that a "high proletarian" would simply never be comfortable or fit in as part of a world of "middle class" people, because the high prole's recreational preferences, aesthetic tastes, educational experiences, and socialization habits would not match those of her neighbors. She would leave Christmas lights on the eaves of her house all year, change her own oil in the driveway of her house rather than take it to a mechanic, buy cheap beer to serve at a party when her guests would be expecting imports and white wine, prefer televised stock car racing to the Super Bowl, and so on. But more to the point would be that the high proletarian would in all probability never even get to the point that she would be in a position to make such a series of faux pas to her new neighbors because the kind of jobs she would need to get in order to make that kind of money would never open up to her – there would be formal qualifications for education and work experience that she could not meet, and social hurdles during job-selection processes which she could not overcome because of her lack of a peer group in the class to which she aspired.

The highest and lowest economic classes were, according to Fussell, at such economic extremes as to be functionally invisible to the rest of society – the very poor living under bridges, committing petty theft and scrounging garbage cans for their very survival and keeping out of sight of others so as to avoid detection by a world that hates them for their poverty; the very wealthy living in rarefied and isolated enclaves having isolated dinners served to them by their servants, in which the only subject able to generate any emotion was the pressing imperative for the preservation of capital.

The basic observation that the United States is a classified society, and that class boundaries are by this phase of our history significantly ossified and impermeable, seems so true as to be beyond reasonable dispute.

Real-Life Experience

In later editions of the book, Fussell added a new chapter, alleging the instance of a "Class X" which transcended the nine-tier system originally posited. "Class X'ers" engaged in the arts for their existence, could come from nearly any of the classes, and 'enjoyed' social mobility. Wealth to them would be irrelevant and if they exhibited skill at their craft, they could gain both fame and fortune and in that sense find easy acceptance in nearly every level of society. I have always been of the opinion that Fussell was induced to add this by his editors, who found the overall thesis of the original book too depressing despite Fussell's interjection of acidly humorous observations about the behaviors of specimens from all nine classes. The existence of such a class is in too great of contrast, too blandly optimistic, and too obviously calculated to please editors of large New York publishing houses, to enjoy substantial credibility.

Real-life experience shows that there are artists and then there are artists. There is an economic spectrum within the arts and the great, great majority of those who make their career in the arts do so in exchange for shockingly low amounts of money and live in tremendous obscurity. Those who seek entrée into the elite levels of the arts world need the right kind of education (not necessarily found in a university, mind you) before undertaking their careers and the right kind of peer network so as to be noticed by the right kinds of people. In other words, they already need to at least be in the proximity of other elites in order to become elite themselves – which is, ultimately, the definition of a class.

Real-life experience contrasts with Fussell's nearly thirty-year-old observations in many other ways. I look at myself – as a lawyer enjoying a good income and a superior education, I should fit in to what Fussell described as the "upper middle class," the third-highest tier in Fussell's taxonomy – a collection of people who have significant economic comforts, who actually want for nothing, but do not consider themselves wealthy and aspire to greater wealth than they have. But my neighbors are an aircraft engineer, a postal worker, an assistant human resources manager at a community college, a termite exterminator, a drywall applicator, and a retired plumber. Some have been to college, one (other than I) has completed graduate school. These people span the sorts of professions from "middle prole" to "upper middle"; but unlike the "upper middle" Fussell described, I actually know and socialize with my neighbors periodically. We all enjoy professional football, wear similar kinds of clothing when off work, we all sporadically enjoy nights out at various performing arts venues, and we all drink high-end beer and mid-range wines when we get together. The traits and backgrounds of these people (myself included) are all blended together.

This is not to disparage Fussell, who provides a useful framework upon which to build. But it is to say that economically, it's not necessarily any great shakes to be a lawyer anymore and it's entirely possible to have a very comfortable existence without the kind of educational and professional background that Fussell associated with the middle or upper middle class. Fussell's regime is not fundamentally incorrect – but it is too compartmentalized. It describes a continuum, not a stratification.

Capital And Class

At the same time, Fussell observed that there are people of fantastic wealth, people for whom money is so plentiful as to never be an issue. These people, he says, behave differently than those who have to work for a living. Real-life experience bears that observation out and it is enduring. They have to do something with their money and they typically put it in things like real estate and securities. Thus, I encounter such people as clients. For them, money is like air – there is always a lot of it around and even if they don't have it themselves at a particular moment, there will always be more around. There are differences in behavior and world view that come from that background.

Such people sometimes seem to lack anything one could identify as a "job." They own stuff, they do things, but there seems to be little by way of structure or pattern to it. Some day-trade online for a few hours a day, some scour real estate opportunities in something like an orderly way, but for the most part they don't pay a lot of attention to what other people do to support their activities. Like their lawyers – they hire me to do certain things and leave me alone to do them. This is pleasant enough for my practice, but in dealing with them they seem to lack a realistic understanding of what is happening on the ground with their own assets. Indeed, they are often unaware of the value of their own assets or the (highly variable for both better and worse) extent of their own creditworthiness.

More importantly, they don't always have, or at least have access to, the money which so permeates their existence. And they don't always live particularly well. I'm not talking about Mitt Romney flying coach to the winter Olympics because coach seats were the only ones available for the flight he wanted. I'm talking about trust fund babies who continually mooch money from their accountant friends while smoking a lot of pot and buying new guitars to ornament their beach houses. I'm talking about people on the make who try to put together eight-figure business deals based on half-baked ideas, and who have temper tantrums when their lawyers present them with bills for a few thousand dollars.

Those tantrums seemed inexplicable to me when I first encountered them, before I realized that my clients simply didn't have the money and were using their emotions as a substitute for the money I had requested. All the shell games with future money and investors' money they promised me at the end of the tantrums were proof that for them, the money was like the air – it was simply there, somewhere, and its presence was sufficient. Beyond that, they had never given thought about money at all.

The takeaway is that proximity to capital is the key to this class. Most of the people I'm referring to here earned their money the old-fashioned way – they got it from their parents, who got it from their parents, and so on and so on. Consequently, ready access to liquid money is not always a defining trait of this class, but money permeates their existence in a way that it does not for those who make their living like me and most likely like you, my Reader, by exchanging some kind of useful work – whether that is manual labor, intellectual work, or professional services – for money and thus survive.

Entitlement And Class

On the other end of the spectrum, I get to see people – middle-aged, sometimes even elderly – who seem to have little experience at all working. Their entire economic lives revolve around various kinds of entitlement payments from a variety of governmental agencies. Perhaps there is relatively more of this here in relatively generous California than in other parts of the country. But my experience living in Tennessee tells me that such people are found there in appreciable numbers as well. These are the apparently able-bodied people who always pay their rent late because they're waiting for their Social Security and state disability payments, which despite being electronically wired to bank accounts, always seem to arrive late.

What amazes me about dealing with this collection of people is not so much that they can survive on this kind of existence. The governmental entitlement programs are designed to achieve that goal and while the shoe doesn't always fit well, it does seem to fit most of the time. There are two things that stand out for me. First, a significant number of those who live in this way seem to do so with little real understanding of, and sometimes even apparent contempt for, people who exchange labor for money.

I say "contempt" rather than "resentment" because when I encounter them (either when they solicit my services or when I am evicting them from the homes they have failed to pay rent on) they do not evidence any real jealousy for either my station in life or my clients'. As best I can perceive, for them working is for suckers; why work when you can get the same money for doing the stuff you would rather be doing anyway? These are people in the entitlement system who grew up within it, who never really leave it for very long, and who seem to consider the ability to navigate it a fundamental life skill. They view others who lack those skills the same way I view people who do not understand the importance of having a driver's license or a checking account. This is why I refer to this group of people as a class – they are born into it, socialized into its values, and consequently face significant difficulties migrating out of it.

The second observation is that for some of these people, there seems to be a pretty substantial skill set, a collection of experiences and shared knowledge passed from person to person – a curriculum, if you will – that leads to a lifestyle that seems almost enviable.

An unemployed person lacking formal educational credentials can live in section 8 housing, in a bigger house and a nicer neighborhood than I do, paying double-digit monthly rent out of pocket, which may or may not be paid at all. AFDC provides enough money for the entire family to eat on – and indeed in many cases to eat out at restaurants with some frequency. General relief provides money. State disability and social security disability payments provide more money. Periodic low-end employment results in continuing eligibility for unemployment benefits, as well as opportunities to make workers' compensation and wrongful termination claims, from which both money and disability eligibility is extracted. The end result is that for one who is able to navigate the paperwork, one can achieve a comfortable lifestyle not involving work but including material comforts such as new cars, new clothing, state-of-the-art cell phones in near-constant use text messaging friends, and cable television. Should the rent go unpaid, they can frequently stall out the eviction for six months or more, and there is little lasting consequence for them as a result. When they get sick, their medical care and medications are paid for by a panoply of public assistance programs.

This may seem a lot when taken at first glance, but it really isn't all that improbable. In terms of absolute dollars, cable TV, cell phones, clothing, and even auto leases are not terribly expensive anymore. One suspects that the cars lack insurance, that cash is not always readily available, and credit is on a downward spiral. Still, it's hard to feel sorry for such folks because their lifestyles – the actual consuming they do – appears to exceed that of a large number of people who exchange their labor for money; they are able to engage in such consumption in exchange for conforming the patterns of their lives (how many children they have, where they live, etc.) to incentives created by the government and filling out the appropriate paperwork.

Abuse, Not Cheating

I hesitate to call such people "welfare cheats," however, because it's clear that they aren't cheating the system – they are working within it, conforming to its rules, exercising their rights. They comply with the law. That's not cheating. It might be something else we don't like (call it "abuse"), it might be a cynical manipulation of the system beyond its intent, but particularly if your ethic is that the system permits something and therefore you can do it, it is more than possible to work the system into a life that features things that many people who actually work for a living cannot afford to enjoy – not the least of which is substantial amounts of free time.

This is not to say that everyone who is enrolled in government entitlement programs behaves in such a way, which when cumulated in that fashion looks very dishonest. Not everyone possesses either the skill set or the – how to put this politely? – disposition towards the government's role in society necessarily to manipulate the system in this fashion. I'm telling myself that this sort of thing is exceeding rare. But I can't say it's nonexistent, having seen it with my own eyes. What I tell myself is that my own view of things is skewed; my own personal sampling of what's out there in the world comes from being in the courthouse more days than not, and the population of a courthouse is, by definition, selective to include people who have legal problems and therefore not representative of the population as a whole.

The Tennessee Taxonomy

What all of this demonstrates to me is that wealth and affluence are different things. There are those who do not need to work, those who do need to work, those who lack the ability to work. But one's degree of poverty or affluence is a variable independent of one's ability or need to work for a living. My observation is that there are three classes of people – those who do not need to work for a living because of their association with (although not necessarily personal possession of) capital; those who exchange their labor for money in order to survive; and those who get what they need to live by way of governmental entitlements. This is a continuum, not a stratification. One might have access to capital but still either need or want to work for a living in order to secure cash flow. One might have a background of life "in the welfare system" but genuinely seek real employment.

What's more, within each of these three broad bands of ways of life, there are degrees of affluence and poverty. Some "capital-class" people live very affluent lives, some have kind of sketchy existences. As common experience for most of us shows, some people make better money at their jobs than others. And some people are very good at working the system and some are not so good at it.

So it's not right to say we have an "upper class," a "middle class," and a "lower class." Fussell's term "proletarian" was intended to reach people who do manual labor, construction trades, and the like, and do not enjoy wealth. But it is possible to make a reasonably handsome living turning a wrench, if you do it the right way and in the right place. It is possible to engage in a traditionally high-status profession like law, and only reap a meager income.

One's class is determined not by one's social status, education, or even income, but rather in how one's subsistence is derived. This is a function of heredity.

One's affluence is not determined by one's income, but rather by one's consumption. This is much more widely variable than might appear at first glance and Fussell's taxonomy is either outmoded or was never actually right. This is why I've put together a new chart, a two-dimensional taxonomy that examines consumption separately from the means by which consumption is made possible.

The result is something that to my mind looks a little bit like a map of the state of Tennessee. I have it that way because it seems to me that those within the capital class will only be allowed to fall so low by their fellow class members – wealthy family, well-off associates, and so on – and will probably not wind up in abject, grinding poverty no matter what. And I want to reflect that while it is possible for those who live mainly on entitlements to live affluent lives, this is actually a pretty rare phenomenon.

Both axes of this taxonomy are not intended to be broken down into discrete units. If I had more skill at graphics, I'd show the colors fading smoothly in to one another. The curves of the left and right sides, representing the extremes of affluence and poverty, are not ones I'm married to, particularly, although the general shape is, I think, correct. So I'll ask your indulgence, Reader, in imagining it drawn more proficiently than I have done here.

Government entitlements and subsidies may also be perceived in certain kinds of tax incentives – home ownership, for instance, is subsidized by the home mortgage interest deduction. I include those who are employed by the government in the "Labor Class" because they do, in fact, exchange their labor for money, and therefore have the same intellectual system of what skills and activities are valuable as those who pursue employment in the private sector. They have simply chosen to exchange their labor for the government's money rather than a private employer's money.

I've struggled as to how to classify Social Security in this taxonomy; people say, "But I earned Social Security," and the benefits are derived, in part, on how much of the SSI tax one has paid throughout one's lifetime. But Social Security is also used for disability regardless of what one has (putatively) paid in to the system and the system exists to ensure at least minimal survival-level income for everyone no matter what they've paid in. One's retirement income also comes from savings and investments. The right way to treat it, as I see it, is to place it somewhere in between "Labor Class" and "Entitlement Class"; on my crudely-drawn chart, those who live mainly on Social Security would be right about the line between those two. One would move up or down based on what kind of other income was coming in.

Finally, should note that capital-class people will only be allowed to fall to a certain depth on the affluence-poverty scale, while entitlement-class people do eventually face an upper limit on how far they can rise on that scale. That is why my chart looks, roughly, like a map of the state of Tennessee. That is designed to represent the fact that there are floors and ceilings that apply based on how one's sustenance is derived.

The big point of all this is to define wealth not as either net capital or the size of one's income stream, but rather in terms of consumption – and to separate that level of consumption from the manner in which that consumption is obtained.

Here It Is In Case You Were Waiting

2011-01-13T22:01:00.000-08:00

The coolest scientific name for any creature anywhere. It is (drum roll):

Vampyroteuthis infernalis:

Vampyroteuthis infernalis is the scientific name for the vampire squid. This foot-long cephalopod takes its name from the red-and-black "cape" draped between its eight legs, thought to be useful in enveloping its prey before eating it. Science is really cool sometimes.

What A Migraine Looks Like

2011-01-13T07:31:00.000-08:00

Many of my friends have not had migraines. Some, despite many years of hearing people complain of them, disbelieve that such things even exist and probably secretly wonder if complaints of migraines are malingering. Even if they accept the good faith of the migraine patient's complaints, they lack the experience to distinguish it from a simple (if intense) headache, and wonder why the sufferer cannot simply take some aspirin or other over-the-counter analgesic medication and go on about their day.

Aside from the nausea, a big distinguishing symptom of the migraine is subtly distortion of sense perception, which is called an "aura." The aura is usually the first signal that a migraine event has begun -- for me, I will see an aura an hour or two before the onset of the pain. This is called an "aura" and last night I stumbled upon a video that does a pretty good job of illustrating what an aura looks like:

I suppose some people have auras that manifest only in black and white; I perceive them in color and more often as parts of my vision upon which I cannot focus, so they seem to be blind spots. If you follow the video's instructions and look at things other than the aura, it remains in your peripheral vision. Other people report different kinds of sensory hallucinations -- my mother gets them, too, and she reports the smell of burned toast in the hours before the pain sets in. While one patient's exact kind of aura may be different from another's, the common thread of aura is hallucination.

The word "hallucination" sounds frightening, as though the migraine sufferer somehow departs from reality, in the manner of a mental illness like schizophrenia. The video should demolish that perception -- the migraine sufferer fully understands that what she sees is not a part of objective reality. Rather, it is frustrating in that the victim knows that her eyes are playing her false but she cannot solve that problem, and there is dread in knowing that intense pain is likely on its way.

The good news is, preventative steps can be taken when the aura is recognized for what it is; analgesics dull the pain and I have found that withdrawing from areas where there is a lot of light and loud noises will help. Getting a snack sometimes helps, too -- it seems to need both carbohydrate and protein to be effective.

The bad news is, there doesn't seem to be any discernible cause to the event; it can happen at any time and it's not always possible to medicate or alter one's behavior to cut off the oncoming event. Once the pain sets in, it can echo for days afterwards. So for you non-migraine people out there, be happy you don't get these. It's a real thing, it happens to a lot of people (even professional athletes) and it's not just a "bad headache" or an excuse to defer sex.

The Acne Of Middle Age

2011-01-13T07:03:00.000-08:00

I've been coming home for lunches instead of eating at restaurants for about a week and a half. Part of it is that my usual lunch buddies are busy elsewhere, part is a desire to conserve financial resources. I didn't do it expecting to effect a significant drop in caloric intake. However, that seems to have happened. When we're out somewhere, lunch will often be something like a pasta dish, a Mexican entree, or a hot sandwich. Typically these days I heat up a can of soup and make a small salad, which is a somewhat smaller lunch than I would eat while out.

I may have lost a pound or two this way, I can't be entirely sure. My complaint is that this shift in eating habits seems to have produced a blossom of acne. Like the acne of puberty, middle-age acne seems to blossom while one sleeps, resulting in unsightly skin appearing in the morning. But unlike the acne of puberty, middle-age acne strikes all over the body instead of just around the face. It's annoying and unsightly.

There must be something in the soup or the salad dressing, which I'm eating more of, that is giving me this reaction. It probably isn't salt or MSG; I would expect that to be prevalent in restaurant food too. I wondered if it might be canola oil -- I'm eating a lot of salad dressing and that's the based of most dressings one buys in the store. But I would eat a fair amount of salads from restaurants too, and I have to imagine their dressings are also based on canola oil, since they come from foodservice providers who are functionally the same as the manufacturers of retail food products.

Time To Make Hard Choices

2011-01-11T07:23:00.000-08:00

A report from the CSM about Governor Brown's budget proposal is almost unremittingly positive, particularly given its rather dismal subject matter. It makes me distrust the objectivity of the reporter. The devil is in the details, but the big picture is this:

$12.5 billion in spending cuts
$12 billion in increased taxes,
$1.9 billion in "other solutions"

"Other solutions" sounds a lot like "eliminate fraud, waste, and corruption," which generates my usual response of, "Wow! Why didn't anyone think to do that before?" I say that despite my firm conviction that there actually is a lot of fraud, waste, and corruption out there to eliminate. It's just a lot harder to do that than it looks.

Much of what we might call "fraud" or "waste" is really the result of gaming the system -- which is formally compliant with the law and therefore in something of a gray zone. For instance, is it "fraud" for a police officer, after having attained a full vesting of retirement, to claim a disability and leave the service with full salary intact, and thereby getting both an ongoing salary and an ongoing pension? Would it change your perception of this maneuver if the disability has been a real, lingering issue (police work is quite hard on the lumbar spine, after all) and the officer has tolerated it for her career and then uses it strategically in this fashion? There's a fair amount of this sort of "double-dipping" going on, or so I'm told. Is this "fraud, waste, or corruption"? We want to call it that, but at the same time, the rules permit it. Do we want to begrudge our police officers a comfortable retirement after years of public service? Does closing this loophole really deny them that?

Later this morning, I'll go to court to do evictions. There, I will no doubt encounter more people who have spent all or nearly all of their lives deriving income solely from government entitlement and anti-poverty programs. I am not so conservative as to think that such programs should be abolished or to lose sight of the fact that there are people who use them as they were originally intended -- as helping hands up the economic ladder rather than as the economic foundation of a life.

But I am also not so liberal as to think that the programs are not being abused and that someone who is participating in those programs is automatically entitled to my sympathy and compassion -- and therefore my money. Many of them come to court dressed in better clothes than I wear (other than my suits) and drive better cars than I do. I'll eventually get around to fleshing out my "three classes, three wealths" idea, but suffice to say for write now, I write of people who are affluent members of the Third Class -- the people who know how to work the system and maximize their governmental benefits. Are they engaged in "fraud, waste, and corruption"?

I have lots of questions like these, but not really any answers, because I've been so frustrated by the institutionalized corruption that pervades California's government to the point that these sort of behaviors are not only tolerated but, as a functional matter, encouraged. It's been this way for so long it's hard to imagine it being otherwise and harder to imagine how the system could change. And even if I labor my imagination in this way, I cannot make it labor so hard as to think that a Democratic governor, no matter how pragmatic he may be, will convince a Legislature dominated by Democrats to do anything meaningful about this.

The other critique I have of the budget proposal, at least as writ large, is its functional parity between tax increases and spending cuts. This may be a political calculation on the Governor's part, intended to sell at least the basic concept of an austerity budget. But as I've pointed out previously, California's real problem -- despite all the economic stumbling blocks we've faced since mid-2008 -- is not one of insufficient revenue. While we aren't at the top of revenue per-capita among the various states, we're near the top. The problem is not that there isn't a tremendous amount of money coming in to the state government's coffers.

The problem is that the law commits such a large amount of money to be spent that even the generous revenues California earns cannot meet those commitments. This is what must change. And as I've said before, it's going to suck.

The good (if unpleasant) news is that the rubber does seem to finally be hitting the road. If the Monitor is to be believed, at least the Governor has really taken to heart the idea that it is long past time for business as usual to continue, that hard, unpopular choices must be made, and made this year.

Condemnation

2011-01-11T06:55:00.000-08:00

Right around the holidays, American Atheists, Inc. used some of its money to rent space on a billboard near the entrance to the Lincoln Tunnel connecting Weehawken, New Jersey to Manhattan. They put up this image for one month:

A Christian church didn't like this so much, so they responded in kind -- renting the same billboard space for the month following the AA billboard:

This was exactly the right thing for the Christian church to do -- the remedy for speech you don't like is more speech of your own. The church's message was peaceful, pointed, and positive. While I don't necessarily agree with the message, I fully recognize their right to have done what they did, and I have nothing but praise for the way they went about exercising their right of self-expression.

Unfortunately, not everyone is as content as I to stand back and let others say what they have to say. The Friendly Atheist reports that this is what the church's billboard looked like yesterday:

This is totally and absolutely unacceptable. This atheist condemns the vandalism of the church's billboard, unequivocally, and I invite other atheists to do the same.

Now, it's not certain that the vandal is an atheist, but I'll admit that the motive of expressing disagreement with the content of the billboard seems substantially more likely than any other motive one might reasonably posit. He needs to knock it off. He's making the rest of us look bad.

Those Christians at the Times Square Church have the same right of expression that atheists do (and that everyone else does too, for that matter). Their church is, fundamentally, a collection of people, people of good faith and good intentions, who engaged a public debate in an appropriate and positive way. They paid good money to rent that billboard. For the month that they rented it, the billboard was effectively their property to have done with as they please (within reasonable limits which they obviously respected).

For someone else to come along and alter their message this way, however crudely, is stealing from them. Theft is not an appropriate form of expression. It is a crime.

Here's hoping the crime is detected and prosecuted. Vandal, even if you are a fellow atheist, you'll get no love from me. At least, not until you grow a pair, turn yourself in to the police, and apologize for what you've done.

Found Money

2011-01-11T06:22:00.000-08:00

This sounds like good news from the Federal Reserve: the government will realize $31 billion of money that had not previously been expected this year. While the path to governmental solvency necessarily goes through the difficult territory of entitlement cuts, extra revenue is a nice contribution towards deficit reduction. Our overall path cannot change because we cannot rely on this sort of thing to be repeated in the future.

It is also encouraging news because it suggests that banks are doing better, which in turn means that individual borrowers are doing better paying on their loans. It is also good news because it demonstrates that contrary to the popular myth, the Federal Reserve does not funnel money generated in heroin sales for the Lizard People and the Queen of England.

Debate Responsibly

2011-01-10T19:47:00.000-08:00

If you're going to criticize the harsh, escalating, polarizing, and purportedly violent partisan rhetoric of the Evil Other Party, then you have a duty to not engage in harsh, escalating, polarizing, or reasonably-perceived-as-violent partisan rhetoric yourself.

Policy disagreements are just that. Begin from the assumption that the other side is not threatening to turn America into a tyrannical totalitarian state, they're just plain old wrong. Then explain why their ideas are wrong and why your ideas are better.

Neither strident Republican rhetoric nor strident Democratic rhetoric caused Jared Lee Loughner to open fire in Tuscon on Saturday. Jared Lee Loughner was mentally ill and lacked the capacity to form any kind of a coherent or even identifiable political ideology. No one gets to pin him on the other side.

If you think the Other Guys are guilty of promulgating immoderate, dangerous rhetoric, then take care that your rhetoric is calm and reasonable. And don't consume intellectual product from those who engage in immoderate, dangerous rhetoric regardless of their ideology. Don't change your mind -- but do debate responsibly.

That is all.

Violence In Arizona

2011-01-08T15:09:00.000-08:00

Today's shooting of a U.S. Representative and a U.S. District Court Judge in Tuscon, Arizona, is obviously terrible news. The Congresswoman in question had her office vandalized after her vote in favor of healthcare reform* but it's not really clear that the gunman was anything more than a schizophrenic nutjob. The news appears to be that Judge John Roll has been killed, and Congresswoman Gabrielle Giffords (who is the same age as me, scary!) is in surgery hours later after a bullet struck her head.

Political violence has no place -- zero -- in our system of government and our way of life.

* The MSNBC interview in the link was terrible.

From The Department Of Wait... What?

2011-01-07T21:45:00.000-08:00

Rudy! Giuliani is going to run for President again?

Recall that in 2005, Giuliani began preparations after a "Draft Rudy" movement formed (and of course he had a hand in that, let's not be sly about that). He declared in 2007 and quickly supplanted John McCain as the Republican front-runner in the early stages of the primaries. He raised more money than anyone (Mitt Romney had more money than anyone, but that's because he tapped his own personal fortune). He attracted a lot of attention and support. Hell, I supported him.

Then Rudy! got some bad polling numbers from Iowa basically dropped out of the Iowa caucuses, coming in sixth out of seven major candidates there. Then, he came in fourth place out of eight in New Hampshire, attracting barely 9% of the total vote. Then, he came in sixth place three times in a row -- in Michigan he got 3% of the vote, in Nevada 4%, and in South Carolina 2%. He put all his eggs in the basket of Florida's early primary, coming in third place with not quite 15% of the vote, and that was basically it.

That's a pretty miserable showing for over seventy-five million dollars spent. Despite promising to appoint "strict constructionist" judges and coming as close as he could to flip-flopping on abortion, Rudy! just never caught on with conservative voters; he never shook off the mud slung at him concerning his personal life. Now, he says "there's opportunity for a moderate candidate with a background in national security." Maybe, Yerhonner, but that candidate isn't you.

Rudy!, your moment has passed. Your moment was really in 2004, but good for you, you were loyal to the party and didn't challenge W. And you didn't angle for a Cabinet position, either, which you should have done to burnish your resume for 2008. Instead, you went for the money, founding a security consultancy and attaching your name to a high-powered law firm.

By the time of the first election in 2012, it will have been more than ten years since you last really got to shine as a holder of public office. The remainder of your professional life is going to consist of security and governmental consulting for your consulting firm for as long as people will listen to you, and rainmaking for your top-100 law firm, and you've already got all the money you'll ever need to live as comfortably as you want and leave a lot for your hot wife and your adult kids, both estranged and still-gruntled.

Granted, you have to pay for your own plane, but all things considered, this is a damn sweet setup you've got going. Enjoy it, and let me dream a dream about Gary Johnson in 2012, until harsh reality intrudes on that.

I Have A Soft Spot For Elephants

2011-01-07T17:39:00.001-08:00

Let's play a game, albeit a morbid one. I've found a crime from a real case, and I've created a hypothetical circumstance. Consider two crimes, both setting in motion chains of events which result in the death of a human being:

Defendant is a construction worker who goes to his jobsite late early in the morning, and steals a stove. Four hours of morning rush-hour traffic and sixty miles later, the stove falls out of the guy's pickup truck. A big rig swerves to avoid the debris, jackknifes, and turns over. A passenger car is unable to swerve away from the big rid in time, gets pinned underneath the trailer, and is killed.
Defendant is an animal trainer for a circus, who grows angry after an elephant fails to perform a trick properly during rehearsal and repeatedly strikes it with an electric cattle prod. The elephant goes berserk after being thus abused and rampages out of the tent, trampling and killing a fifth-grader who was trying to sneak into the tent to catch a peek of the exotic animals inside.

Now, imagine you're the judge. Which punishment do you give to each crime? Your choices are:

One year in the county jail.
Twenty-five years to life in state prison.

In the state of California, the correct answer is "A-2" and "B-1." Why? You might think that the decedent's status as a trespasser in "B" is important, but that's not really a very big factor at all.

In scenario "A," the thief has stolen goods valued in excess of $400. This is grand theft, a felony under Penal Code § 487. While still engaged in the commission of this crime (driving away with the stolen goods four hours later), an activity related to the crime sets in motion a chain of events causing the death of a human being. This is called felony murder and felony murder has the same sentences as overt murder. In the case of a real scumbag who really did this was convicted of first-degree murder, which gets you twenty-five to life. (No citation for the case yet; found via Prof. Shaun Martin.)

In scenario "B," the trainer who tortured the elephant has violated Penal Code § 596.5, which is a misdemeanor. Under California's misdemeanor-manslaughter rule, the commission of a misdemeanor resulting in the death of a human is chargeable as manslaughter only if the underlying criminal act – applying the cattle prod to the elephant – is, itself, dangerous to human life. People v. Cox (2000) 23 Cal.4th 665, 675-676. So there's not even misdemeanor manslaughter, much less felony murder, since it's only a misdemeanor to torture an elephant with an electric cattle prod or indeed in any other manner.

Now, we shouldn't feel too awful about the defendant in scenario "A." If you read the case, there's a lot of very unsavory facts about the actual, real-life defendant. I didn't call him a scumbag two paragraphs above for no reason. But most relevant to this case, he didn't put up the tailgate or put any tie-downs on the stuff he stole, which seems to me a separate criminal act that I wouldn't hesitate to call "reckless endangerment of human life." But there is no mention in the case of him even being accused of this crime. Rather, he was convicted of felony murder predicated upon burglary.

But the defendant in "B" (this one is the hypothetical situation) is also significantly morally culpable; his acts are outrageous. An elephant trainer ought to know that when you push an elephant too far, he will go on a rampage. It doesn't take an elephant trainer to know that rampaging elephant is a clear and present danger to any human being who might happen to be around, whether they are trespassing or not. Besides which, torturing an animal is inherently repugnant; the initial wrongful actions of the defendant in scenario "B" shock my conscience to a degree far more powerfully than do the facts in scenario "A."

Maybe your sense of morality is more offended by theft than animal abuse. Fair enough. But consider this: which of these two scenarios would lead a reasonable person to foresee a fatality, at the time the underlying crime was committed. You could go either way, but it's a close call either way. Just as the guy in scenario "A" could and should have reasonably foreseen a reckless danger to human life by not tying down the (ill-gotten) cargo in his truck, the guy in scenario "B" could and should have reasonably foreseen that the elephant would go into a rampage after being tortured. Neither of these are particularly lengthy stretches of the imagination. Given that the defendants' actual actions are roughly equal from the issue of foreseeability of future harm, there ought to be similar sentences. But no.

It would be too much of a stretch to say that this demonstrates that the State of California values stoves more than it does elephants. And while in the particular case of "A" the guy gets no tears from me, the totality of the chain of events in question makes a sentence of 25 to life for just anyone who did those things seem a little harsh. The sentence in "B," by contrast, is obviously inadequate punishment in light of both the moral gravity of the underlying act, and its tragic result.

Better Angels

2011-01-06T21:52:00.000-08:00

In Tennessee, it's not all bigots trying to keep Muslims out of their towns with bizarrely abusive lawsuits. In Cordova, Tennessee (that's not far from Memphis), a Christian church is allowing a startup Muslim community to use its facilities for worship until it can get its mosque built. The church put up a big sign saying "Welcome to the neighborhood." The pastor explains it thus: "What would Jesus do if He were us? He would welcome the neighbor." Damn right he would have.

Likewise, in Egypt, many Muslims have reacted with horror with attacks by terrorists on Christian worshipers. So some of them formed a human shield around their Christian neighbors going to celebrate Christmas Eve services.* This is as clear a message as I can think of -- if you nutjobs think you're doing Allah's work by killing Christians, you're not, and we Muslims will not allow you to pretend that you're only killing infidels. Take your Koran seriously, especially the prohibition against murder.

I am frequently critical of religion for being used as a justification for acts of outright evil. But these are selfless, challenging, and truly moral behaviors. They are done by people of good intent, good faith, and strong religious convictions, taking the best and most noble dictates of their religions truly to heart. They lead their respective coreligionists by sterling example. These people deserve to be recognized and praised; I offer that praise and appreciation here freely, and with a glad heart.

* Christmas for Coptic Christians does not take place at the same time as it is for Orthodox or Occidental Christians because the Coptic church never adopted the Gregorian calendar.

Proof That It's Just Lip Service (Updated)

2011-01-06T07:43:00.000-08:00

This morning will be the new House of Representative's much-ballyhooed ceremonial reading of the Constitution. While some are trying to attack this new ritual as a waste of $1.1 million, I tend to agree with the idea that the money angle is not particularly relevant or intellectually honest. Rather, I think that the problem here is that the ceremony is inevitably fated to be devoid of substance, it will change nothing, and by making the Constitution an object of empty ritual, it will drain the actual meaning out of the document itself.

As proof, let Exhibit A be the efforts of Congressman Steve King of Iowa and Exhibit B the efforts of Daryl Metcalfe of Pennsylvania. Both would have Congress adopt into law statutes which would require that at least one parent of a child born in the geographic borders of the United States also be a citizen of the US in order for that child to also be a citizen. Remember, they're using statutes. Statutes changing the way citizenship is derived. Statutes aimed at "anchor babies" and the granting of citizenship to the children of illegal immigrants. Statutes introduced in to the House of Representatives on the very day that this phrase will be read out loud to the House as a reminder of a political commitment to respect the fundamental law of the United States:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

That would be the Fourteenth Amendment to the United States Constitution. Rep. King's and Metcalf's bills would, if enacted into law, contradict the Constitution. This is as close to a no-brainer as it gets.

King and Metcalf, if they really want to change the way citizenship is handed out, need to sponsor a resolution to amend the Constitution. They could do that, of course, but are choosing to do it by statute instead. Perhaps because they don't think they would succeed in amending the Constitution (or they secretly fear they would succeed), but more likely because they value putting on a show of taking a stand against an imagined threat with questionable basis in reality more than focusing their efforts on trying to solve real problems -- problems which Congress' new leaders find politically convenient to backpedal upon (read: "break") their promises to address.

So on the same day that this ceremonial reading of the Constitution is going to take place, it will be demonstrated to be an idle, empty ritual because no matter who controls Congress, no matter what rituals they hold, they will simply disregard the Constitution when it is politically convenient for them to do so. Which is why clear-eyed Americans should view this morning's proceedings as merely an empty ritual.

Update: And it turns out, they're not even going to read the whole thing -- they're going to bowdlerize it to leave out the historically embarrassing parts. (Thanks to Ken for reminding me of that great word.) I'd say, "If you're going to do it at all, do it right," but the whole thing is already a charade.

Now Go Vaccinate Your Children

2011-01-06T07:12:00.000-08:00

The data in the study suggesting that the MMR vaccine causes autism was knowingly falsified. It was based on intentionally-selected, "chiseled" data. It was a lie. It was a lie with consequences:

...measles has surged since Wakefield's paper was published and there are sporadic outbreaks in Europe and the U.S. In 2008, measles was deemed endemic in England and Wales.

A preventable disease for which there is a known, effective, affordable, and plentiful vaccine, is spreading throughout industrialized nations with powerful medical services delivery infrastructures.

Why? Because of ignorance facilitated by lies dressed up to look like science, to be sure. Because Andrew Wakefield (no longer entitled to use the title "Doctor,"), the principal author of the original study, put a higher premium on grabbing the spotlight for himself than on scientific integrity.

Why? Because of irresponsible, sensationalistic journalism -- first in the UK, and later here in the US. I remember seeing the 60 Minutes story that sensationalized this bit of mythology, and wondering why the doctors in that story who called Wakefield's methods "irresponsible," were buried so far in the middle of it as to make me question whether I was watching tabloid TV or investigative journalism.

Why? Because an attractive celebrity, heartbroken over her son turning out to be autistic, chose to cope by latching on to this dangerous lie, with the result that thousands of children have fallen ill and hundreds have died, who need not have.

I'm preaching to the choir here, I'm sure. But this whole thing is a graphic, if deeply saddening, example of why a credulous approach to the world is not only wrong-headed but dangerous. Skeptics bear the brunt of a lot of prejudice because of their tendency to question things like religion. But this is part of why skepticism is in the public interest and a skeptical approach to the world, while admittedly less fun than one based on faith and hope and emotion, will nevertheless produce better results.

Vaccinate your children. It's a duty.

It’s Not About Revenue

2011-01-05T20:26:00.001-08:00

Sadly, the first remedy that Governor Brown has proposed to California's budget woes has been to raise taxes. A fellow Californian complains here that "California has a spending problem, not a tax-revenue problem." That sounds right to me, but when something seems right to you, that's time to go do a little research and engage in a little critical thought. What I came up with was an experiment to look up the revenues of the various states and compare them to the populations, to find out how much money each state takes in per resident. I figured, in agreement with the linked author, that California would probably have among the highest amounts of revenue per citizen in the nation.

State revenue data was located here. I also used Wikipedia's reporting of the 2010 census results for population. The rest was math and sorting. Here's what I came up with:

State	FY 2010 revenue	2010 population	Revenue per citizen
DC	$21,900,000,000	601,723	$ 36,395.48
Alaska	$13,600,000,000	710,231	$ 19,148.70
Delaware	$15,200,000,000	897,934	$ 16,927.75
Wyoming	$8,200,000,000	563,626	$ 14,548.65
West Virginia	$24,400,000,000	1,852,994	$ 13,167.88
New York	$212,700,000,000	19,378,102	$ 10,976.31
Massachusetts	$70,300,000,000	6,547,629	$ 10,736.71
North Dakota	$7,000,000,000	672,591	$ 10,407.51
Rhode Island	$10,800,000,000	1,052,567	$ 10,260.63
Nebraska	$17,300,000,000	1,826,341	$ 9,472.49
California	$341,700,000,000	37,253,956	$ 9,172.18
New Jersey	$79,000,000,000	8,791,894	$ 8,985.55
Colorado	$44,800,000,000	5,029,196	$ 8,907.98
Washington	$57,000,000,000	6,724,540	$ 8,476.42
Kansas	$22,600,000,000	2,853,118	$ 7,921.16
Connecticut	$27,900,000,000	3,574,097	$ 7,806.17
Minnesota	$40,800,000,000	5,303,925	$ 7,692.42
Pennsylvania	$96,500,000,000	12,702,379	$ 7,597.00
Hawaii	$10,300,000,000	1,360,301	$ 7,571.85
Ohio	$87,200,000,000	11,536,504	$ 7,558.62
Oregon	$28,900,000,000	3,831,074	$ 7,543.58
Nevada	$19,600,000,000	2,700,551	$ 7,257.78
Florida	$136,300,000,000	18,801,310	$ 7,249.49
Vermont	$4,500,000,000	625,741	$ 7,191.47
Iowa	$21,800,000,000	3,046,355	$ 7,156.09
North Carolina	$67,400,000,000	9,535,483	$ 7,068.34
Utah	$19,400,000,000	2,763,885	$ 7,019.11
Maryland	$39,500,000,000	5,773,552	$ 6,841.54
Illinois	$87,600,000,000	12,830,632	$ 6,827.41
Tennessee	$43,100,000,000	6,346,105	$ 6,791.57
Wisconsin	$38,200,000,000	5,686,986	$ 6,717.09
Virginia	$53,700,000,000	8,001,024	$ 6,711.64
Texas	$166,600,000,000	25,145,561	$ 6,625.42
New Hampshire	$8,700,000,000	1,316,470	$ 6,608.58
Montana	$6,500,000,000	989,415	$ 6,569.54
Maine	$8,700,000,000	1,328,361	$ 6,549.42
Georgia	$63,300,000,000	9,687,653	$ 6,534.09
South Carolina	$29,900,000,000	4,625,364	$ 6,464.36
Louisiana	$29,000,000,000	4,533,372	$ 6,397.00
Indiana	$40,400,000,000	6,483,802	$ 6,230.91
South Dakota	$5,000,000,000	814,180	$ 6,141.15
Arizona	$38,600,000,000	6,392,017	$ 6,038.78
New Mexico	$12,300,000,000	2,059,179	$ 5,973.25
Missouri	$35,500,000,000	5,988,927	$ 5,927.61
Mississippi	$16,900,000,000	2,967,297	$ 5,695.42
Kentucky	$24,600,000,000	4,339,367	$ 5,669.03
Idaho	$8,700,000,000	1,567,582	$ 5,549.95
Oklahoma	$20,400,000,000	3,751,351	$ 5,438.04
Michigan	$52,300,000,000	9,883,640	$ 5,291.57
Arkansas	$15,300,000,000	2,915,918	$ 5,247.06
Alabama	$24,400,000,000	4,779,736	$ 5,104.88

Now, this is looking at all sources of revenue, not just taxes paid by ordinary people. The top of the list is filled with special cases. High direct Federal subsidies and substantial excise or corporate income taxes seem to be a factor – but they aren't universal. Alaska gets a lot of its revenue from excise taxes, because it is a major oil producer, but Oklahoma is also a major oil producer and it is near the bottom of the list.

Consider also the relative financial health of the various states. Here, I can see no relationship. States with serious financial problems, and states with relatively clean bills of fiscal health, are scattered throughout the list.

But the theory is that state government revenues are not high enough, so they need more money – in this particular case, the theory is that the state of California isn't collecting enough money to meet its citizens' needs. In terms of gross revenue, California is far ahead of any other state-level government; in terms of money in per capita, California ranks eleventh out of fifty-one, or tenth if you exclude D.C. I think this roughly but not precisely confirms the proposition that revenue is not the basic problem. The evidence is not as strong on that as I would prefer to confirm my pre-existing bias; the table suggests that the state probably can squeeze some more revenue out of its tax base and may be able to find additional sources of other revenue. But probably not a whole lot more.

The data does roughly support the proposition that revenue is not the issue. There is no relationship between revenue and a state's financial health. There is little relationship between revenue and the kind of sources of that revenue. Factoring out money per citizen, we produce a more-or-less random list of states. It's not about revenue. It's about spending.

Miracle Of Medical Technology

2011-01-04T21:18:00.000-08:00

Maybe you think Dick Cheney was a force for good, or at least for good government. Maybe you think the exact opposite. But hopefully even if you detested the man's politics, and even if you think he was corrupt, you can find a moment to think about his human condition and marvel.

See, Cheney has had a heart condition for many years now and has suffered heart failure. If this were the 1960's, the man would almost certainly be dead right now because the effects of all of this has been to render his heart too weak to pump blood throughout his body quickly and effectively enough to nourish it. So he is now fitted with a remarkable device:

His new mechanical pump, a partial artificial heart known as a ventricular assist device, leaves patients without a pulse because it pushes blood continuously instead of mimicking the heart’s own beat. Most pulse-less patients feel nothing unusual, but the devices do pose significant risks of infection. They are implanted as a last resort either for permanent use or as a bridge to transplant until a donor heart can be found. Mr. Cheney, who has participated in some of the nation’s toughest decisions for decades, now faces a crucial one of his own: whether to seek a full heart transplant. ... With most patients, a power line emerges about waist level and connects to a controller, a minicomputer that plugs into a pair of one-and-a-half-pound, 12-volt batteries. Patients wear a black mesh vest over their clothing that holds the controller and batteries.

He will never be able to take a shower again, unless he has a heart transplant, because of all that electronic equipment. A sponge bath will do for hygiene and odor control, which sucks, although if it came down to a choice between a life of only sponge baths and dying, I'd take the sponge any day.

The point here is not to do a pre-mortem on the man or his politics. Even if you detested the man, thought he was corrupt and evil, and couldn't wait for him to get out of power, that's not a reason to wish him death or wish that his family have to go through grief for him. And for now, they won't. No, the point here is to marvel that despite suffering repeated heart failures, modern technology has a way to keep him alive.

"But Cheney is really, really rich," you say, "and someone like you or me could never afford this miraculous technology if we had the same condition he did." Well, right now that's true. And yes, it is fortunate for Cheney that he is personally wealthy and so the cost of all this technology is well within his grasp. But you're not taking a long view to lodge that sort of protest. Yes, it's always the wealthy who get this sort of stuff first. They buy the technology at a premium price, which enables the developers of that technology to both recoup their startup costs and thus offer it for sale in the future at a lower price, and it creates an incentive for even more science, research, and technology to be developed in the future.

This is why I like both science and economics so much. They save lives.

Big Day From The Ninth Circuit

2011-01-04T19:11:00.000-08:00

Constitutional law geeks like me, especially here in the Ninth Circuit, had a big day today. First, the Ninth Circuit gave a clear, if judiciously-worded, opinion -- when the government posts big crosses, for whatever reason, that conveys a message that the government endorses Christianity. That's the case when it is a war memorial and that's the case when it's a memorial to fallen police officers. Granted that the reasons for posting the crosses are probably noble and have universal appeal, but that doesn't excuse the fact that it's an explicitly religious symbol being used.

Would that the message were clearer to certain members of the Supreme Court, who think that sometimes a cross can be divorced in meaning from its inherently religious symbolism. Then again, at least one of those same members of the Court thinks that the Equal Protection Clause does not apply to women, despite the plain wording of the clause.

My guess is that between the Utah cross case and the San Diego cross case, the Supremes will have an opportunity to consider this issue again, soon. The real question is what will happen to the endorsement test that five Justices followed in Santa Fe Independent School District v. Doe. Which is good for us Court-watchers, because it looks like we won't have a ripe Prop. 8 case (which will have to be re-styled Perry v. Brown) after the Ninth Circuit certified the question of the Prop. 8 proponents' standing to the California Supreme Court, which will delay the panel's decision by six months or more. That means that it's possible Perry v. Brown won't find its way to the Supreme Court's docket until 2013.

Of particular interest in that case is Judge Reinhardt's concurring opinion, in which he goes out of his way to chastise nearly everyone in sight -- starting (impliedly) with the Supreme Court of the United States for creating a murky, hyper-technical jurisprudence of Article III standing, moving on to the plaintiff's lawyers for not naming every county clerk in California as a defendant, then hitting former Governor Schwarzenegger and former Attorney General Brown for not defending Prop. 8 as was their Constitutional duty, and finishing with the intervenors' attorneys for finding the wrong public official to serve as their party representative instead of finding a number of such officials with a variety of standing claims. In other words, any one of these groups could have enabled the Court to get right in to the meat of the issue, but mysteriously no one did and as a result the ruling, and its eventual transmission up the chain to the Supreme Court, will wind up being delayed if not foreclosed. Reinhardt hints rather strongly that he thinks the proponents do have standing to defend Prop. 8, a conclusion with which I, for one, agree, but again, they'll wait for the California Supreme Court to offer that guidance.

Also of profound amusement in that case is Judge Reinhardt's full explanation for why he did not recuse himself from the case despite the fact that his wife is the executive director of the ACLU of Southern California -- it turns out that her duties as a lawyer and his duties as a judge require them to make independent decisions regardless of what the other is doing professionally and since they are both independent human beings, they are capable of deciding things for themselves. I read this out loud to The Wife, who gave the most emphatic approval I've ever heard her give to any legal opinion I've tried to discuss with her.

Car Cameras Coming To California

2011-01-04T16:05:00.000-08:00

This Saturday, it became legal to operate a vehicle equipped with a "video event recorder." These have already been in use in some police vehicles, and are expected to be adopted first by public transportation agencies, and then gradually by other users. Inevitably, people will want them in their cars -- or rather, their insurance companies will, and that will induce them to offer a discount on insurance for customers who have video event recorders.

What do these devices do? As explained to the Legislature:

Video event recorders for vehicles capture high definition videos, both of the front of the vehicle and the rear, using a dual camera device and record when an event occurs, including accidents or aggressive driving behavior. The videos are stored on internal memory together with other information such as G-force values, GPS coordinates, date, time, and more.

So that means that when you have a collision, the video event recorder will have all of this information available for download. So bill passed out of the Legislature with nought more than a peep of opposition, and became operative on the new year.

If a vehicle equipped with these devices is involved in a collision, it will provide data that would be immensely useful for determining liability. That much is obvious. What may be a little less obvious is that it would also be very useful for determining damages -- because it would record the strength of the impact in G-force, as well as enable determination of the vectors. Inflation of strength-of-impact testimony would therefore be easy to detect with this data.

Of course, the uses of such a device by law enforcement don't stop there. A police enforcement vehicle equipped with a video device of this nature could easily record evidence of speeders. While the Legislature's analysis of the device does not include "speed" as a data point recorded by the device, that such information would be recorded ought to be obvious. It could be determined by tracking the amount of time it takes for a stationary roadside object to move through a frame of the camera's shot anyway.

It would be no great leap to integrate a LIDAR device with one of these things and mount it in a police vehicle, and set it out on the road to look for speeders. If that police vehicle were not clearly marked in traditional black-and-white enforcement colors, readily-identifiable by the top-mounted emergency lights, and branded with police insignia, then people would zoom right on by it, and have their license plates and faces captured on camera with LIDAR tracking their speed. At any time. Any other vehicle on the road might be a police speed enforcement vehicle and that means that every time you zoomed by another vehicle, you would be at risk for a ticket.

This would result in a myriad of new tickets. When I have to drive in to Los Angeles, I routinely set my cruise control at or just above the speed limit. In the forty-mile drive, I am passed by literally hundreds of cars. A Highway Patrol vehicle behaving in such a fashion could generate hundreds of tickets an hour.

And there are already hundreds of traffic cameras deployed along freeways, highways, and parkways across the state. More are coming. Right now, they are primarily used for monitoring traffic flow. But it wouldn't take a computer whiz all that long to set up a system to coordinate the video from the stationary roadside cameras with data from police-mounted recording devices.

The ACLU has raised invasion-of-privacy issues here. But I think they're not on strong ground to do so. This is not a particularized search of an individual (which as a general rule ought to be done only pursuant to a warrant or other probable cause). It is a generalized monitoring of activities and behavior done in a public place. When you're out in public, people can see you. You have no reasonable expectation of privacy while driving a car on a public road.

Now, there are additional things that might happen. Police vehicles equipped with these devices would record what happened before, during, and after an enforcement stop was made. They would record things like how the vehicle was behaving -- was it speeding, was it really weaving around in traffic, was it really being driven "erratically"? That would inform things like probable cause hearings and possibly lead to exclusion of evidence. If the police engaged in physical abuse of a detainee or other civil rights violations, it would record those things happening, too.

Some police officers turn out to be rather touchy about cameras recording their activities, and perhaps for good reason because sometimes those cameras record questionable police activity. Such police officers get very little sympathy from me, just as the speeders above get very little sympathy from me. The speeders are committing crimes and endangering public safety. Police who engage in civil rights abuses are also committing crime and undermining public trust in authority. Video evidence can potentially cut either way in such a situation, and is often ambiguous, but it provides additional information.

Those officers who might be tempted to step over the line could well find themselves deterred from doing so if they knew that their activities would be recorded and subject to discovery later. Would that mean that they would not enforce the law at all, allowing criminals to go unpunished? I rather doubt it personally -- but better that a criminal go free than that an innocent person be imprisoned; better that the police are too cautious about using their power than too enthusiastic to do so.

What's the dark side to cameras and black boxes recording everything that happens on the road? The ACLU is right that there would be a diminishment of privacy. A trip to the adult bookstore or to participate in an extramarital tryst -- activities which are not illegal but are embarrassing -- would become a less private affair, one which one's spouse and family, employers, and potentially one's voter's might learn about. Is that a bad thing? You'll have to make that call, I won't go that far. I suspect that the data thus recorded would become like any other kind of electronic information -- subject to discovery and judicial weighing of the value of the contents against the privacy and Constitutional concerns.

It's a brave new world out there. You should start reacting to it by observing the speed limit.

Sleep Eludes

2011-01-03T23:48:00.000-08:00

A snowy night last night was completely wasted. There's nothing like snowfall to dampen the sounds of the outside world -- everything is quiet and peaceful, in a way that rainfall never is. We get so little rain, and even less snow, here in the desert; you'd have thought I would have enjoyed at least that part of its benefits. But no. I did enjoy stepping outside to watch the stuff fall, which is pleasant enough when it happens in quantities of only a few inches.

Even tonight, as I try to shake off the effects of one nearly-sleepless night, I find myself tired but unable to sleep.

Stress from work and other mental stimulus from throughout the day, minor bodily aches and discomforts, and the cycle of thirst and bladder conspire to keep me awake while my wife and my animals all slumber in peace and good health. Reading is sometimes effective, but oft enough I read something mentally stimulating and challenging, which only makes me even more awakes. One thing I know is counter-productive, but I cannot help myself, is writing or reading on the computer -- the computer screen is stimulating and tiring at the same time to the eyes and computer use seems to induce an agitated mental state. But after I've read enough, there is not much else to do when Morpheus hides, out of my grasp.

I know I'm not without company. Friends often complain about a lack of sleep, too. I found myself trading notes on sleeping pills at a party. I try to avoid the pills, in part because I know one can become dependent on them and that's dangerous after one builds up a tolerance, and in part because the morning after taking one I have a hard time getting the lead out and shaking off the lassitude the pill induces. Sleep is necessary for good health, happiness, and productivity, so I should put a premium on getting it. But I can never find the right time to hit the sack -- The Wife gets up two hours before I do so I only rarely turn in at the same time as she; but two hours after she goes to bed I find myself not tired at all.

I find myself yawning until tears are released, and I shall hope for release and some measure of rest before another morning in court.

First Gig

2011-01-03T19:28:00.000-08:00

Well, it didn't take very long after getting an online ordainment before word got out and some friends asked me to officiate over their wedding in a couple of months. Although I hadn't really been thinking about these two when I did it, I suppose in the back of my mind I knew they would be setting a date soon enough. I found it quite flattering to have them ask me

Another lawyer in the firm who has also been ordained tells me that it feels even better to actually do it and be right there when the happy couple declares their love for one another. Best of all, these friends are fellow atheists so they will surely wish to have a non-prophet ceremony. I'm really looking forward to it.

Predictions for 2011

2011-01-01T00:01:00.000-08:00

Completely undeterred by my decidedly spotty track record from last year, I'm forging ahead with bold predictions for 2011. A little different format this year, grouping my predictions by subject area:

International Relations: No nuclear weapon for Iran, no overt military activity involving Iran. U.S. offers to broker peace settlement between India and Pakistan; both countries accept but no resolution reached. The civilized world, following a cue for the U.S. and China, will puss out and give more money and food to North Korea in exchange for their promise to not kill any more South Koreans until they do again. Turkey will cease attempting to gain membership in the European Union and make noises about withdrawing from NATO but not actually go through with it. Watch for religiously-motivated violence to dovetail in to Presidential elections in Nigeria, Mexico's drug violence to spread south of the border into Guatemala, and for Taliban/Al-Qaeda activity to spread from Afghanistan into Tajikistan.

Domestic Politics: Congress will fail to impose meaningful spending cuts and by New Years' Day 2012, the U.S.A. will be more than fifteen trillion dollars in debt. Candidates announcing for the Republican nomination for President before year's end and will include at least Sarah Palin, Mitt Romney, Mike Huckabee, Tim Pawlenty, Ron Paul, Mike Pence, and John Thune.* The Republicans will shut down the Federal government and walk away from doing so with no significant gains to show for it. Emboldened by the prospect of such weak Republican competition, President Obama will announce no changes to his top Cabinet officers and no serious primary challenge to him will manifest in 2011. There are three gubernatorial elections in 2011 (Kentucky, Louisiana, and Mississippi), and Republicans will win them all. The Senate will consider filibuster reform and everyone will agree that the existing system has significant imperfections, but any attempt to actually change the filibuster rule for future Congresses will be, itself, filibustered.

Economy: Will muddle along with little significant improvement or decline in jobs or construction. (I feel that I'm being optimistic when I say this.) Inflation will rise above an annualized rate of 4% and there will be much wringing of hands and gnashing of teeth, to little effect. The government will attempt to kick-start mortgage lending and consumer credit with loan guarantees to banks; this will result in little economic growth, more bankruptcies, and increased governmental debt.

Law and the Courts: The Ninth Circuit Court of Appeals will affirm the trial court's ruling in Perry v. Schwarzenegger, on the grounds that no party with standing to do so lodged a challenge to the plaintiffs' claims, and offer no binding legal authority on the Fourteenth Amendment claims. This ruling will be appealed to the U.S. Supreme Court, which will grant certiorari for an expected oral argument in early 2012. There will be no nomination to the Supreme Court.

California: Governor Jerry Brown will propose an austerity budget and quickly find himself at odds with his own party. Republicans will be all but completely ignored in the ensuing mess, and the annual budget kabuki will last even longer than it did this record-breaking year. The state will fall once again into drought, and unemployment will remain at functionally its current level most of the year, measured in jobs created versus jobs lost. (Again, it's my opinion that I'm being optimistic here.) There will be very serious wildfires in the Sierra Nevadas, possibly affecting parts of the southern Sierra national parks like Kings Canyon and Sequoia.

Movies: It'll be a big year for superheroes and quasi-superheroes: Pirates of the Caribbean 4, Thor, Green Lantern, Harry Potter 7 (Part 2), and I Am Number Four should all do very well. Captain America: The First Avenger a little less so; the X-Men, Hangover, and Transformers sequels will also disappoint. Speaking of which, we will learn that the villains in the third and final Christopher Nolan Batman movie (which we won't see until 2012) will be Catwoman (who we will learn trained with Ra's al-Ghul before his demise in the first movie) and a lesser-known villain named Black Mask. I'll be most looking forward to Jon Favreau's Cowboys and Aliens. Someone will make "WikiLeaks: The Movie" (it'll have a better name than that, I hope) and it will lose money. After seeing the financial success of reality television, we will see the first of several "unscripted" reality movies starring "real people" and it will make money, inspiring numerous dreary, insipid imitators.

Note that for the first time on record, I'm abandoning my prediction that Britney Spears will publicly and loudly become a devout Christian. Oh, it's still coming, but I realize now why she hasn't yet. Despite everything, she still has too much and needs to hit rock bottom -- I'm talking about the puking-on-her-own-vomit-in-the-ER, bankruptcy-trustee-with-moving-crew-at-the-door, owes-scary-money-to-Lithuanian-mafia kind of rock bottom.

* Gary Johnson doesn't count; he has effectively announced already and while out of that group I easily like him the best, let's face it, he doesn't have a prayer.

Scorecard 2010

2010-12-31T23:59:00.000-08:00

Here were my predictions for 2010, and here's how they did:

Jon Huntsman will resign as ambassador to China and begin to lay the groundwork for a Presidential bid in 2012. Has not happened. In retrospect, I failed to credit the idea that Ambassador Huntsman might actually like being the Ambassador to the PRC and that he might not really want to be President.
Foolishly, Democrats will campaign in 2010 against George W. Bush. This will fail and result in gains by Republicans, but more in the House than the Senate. Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster. But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012. Democrats abandoned their strategy of running against George W. Bush in favor of atomizing local races, which was only partially effective; Republicans took the House but not the Senate, although their Senate gains were larger than I had predicted.
A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April. Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers. I'm taking credit for calling this one pretty much correctly.
The net inflation rate of the United States for CY 2010 will be in excess of 4%. Gratefully, this has not happened, but only because the Fed has kept the prime rate at a rock-bottom level.
President Obama will again increase the number of American troops deployed to Afghanistan. This happened. That doesn't mean I'm happy about it because I'm not, especially because we're now talking about bringing them home with no apparent political objectives accomplished despite hard work and bloodshed by our military.
Canada's government will collapse, for real this time, and new elections will result in a badly-fragmented Federal Parliament with the BQ playing the role of powerbroker. However, the BQ will not be able to leverage this into actual autonomy. Didn't happen; PM Harper took a hard hit, but survived.
An El Niño condition will manifest in the Pacific Ocean, relieving California's drought. In fact, it was a La Niña, but we had a wet winter at the start of 2010 and a wet winter at the end of 2010, and have been out of drought conditions all year.
Despite the economic help of favorable (that is, "wet") weather, California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation. Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship. Mostly happened. The only thing I got wrong was the sales tax hike.
A national newspaper of significant stature, I'm thinking the Boston Globe, will be liquidated. The Seattle Post-Intelligencer went all-online and has functionally diedas a result.
2010 will be a good year for the stock market. The S and P 500 will realize a net gain of over 20% in CY 2010. As of today, the S and P 500 is 1,124.57, so that means that to win this prediction, the S&P will need to be at least 1,349.48 on December 31, 2010. The year-end close was it was 1,257.64.
Iron Man 2 will be the biggest box office hit of the summer. But another much-anticipated sequel in the same general genre, Tron 2, will disappoint and lose money. Wall Street 2 and Sex And The City 2 will both prove to be so unwatchably bad that we all would have been better off had they not been made at all. Remakes of Clash of the Titans and Red Dawn will both prove to be convincingly entertaining. Mostly happened. Clash of the Titans disappointed; the release of Red Dawn has been delayed; Tron was fun to watch but looks on track to not make much of a profit compared to its production expenses.
In First Amendment news, the Supreme Court will decide for the government, 5-4, in the case of Salazar v. Buono, ruling that a large cross, originally built privately as a war memorial, later transferred to Federal land, then the subject of an Establishment Clause lawsuit, and then the subject of a law transferring the cross to the VFW. The Court's decision will consider the longevity of the monument as a significant factor mitigating against the finding of an Establishment. (I consider this a pessimistic prediction, for the record). Justice Sonia Sotomayor will prove to be the decisive vote in favor of the government. I nailed it right up to the Sotomayor prediction, which turned out to be wrong. The decisive vote was Anthony Kennedy.
In Second Amendment news, the Supreme Court will decide, by at least 7 votes, that the individual right to own weapons articulated in District of Columbia v. Heller will be "incorporated" into the Fourteenth Amendment and thus apply to the several states as well as to the national government. However, the Court will unanimously decline the opportunity to expand the "privileges and immunities" clause embodied in the arguments. Watch for the decision in McDonald v. City of Chicago to be one of the last decisions announced in June. I hit this one right on the head.
Brett Favre will play his final year for the Minnesota Vikings, and then retire. For real this time because he'll be 41 years old and in at least moderate pain almost all of the time. He hasn't announced his retirement yet and there will be lots of jokes in August, but after the Vikings' disastrous season, it's clearly time for Brett to say goodbye.
Iran will successfully detonate a nuclear device. This will cause much wringing of hands and gnashing of teeth and many Americans and a significant number of Europeans will consider this to be an existential threat. While all of this is going on, the Russians will hem and haw and whistle tunelessly while staring at the ceiling while trying to blend into the background and go unnoticed. However, the Iranians will not use their newly-developed nuclear weapon against anyone, including Israel. Gratefully, this did not happen.
On December 31, 2010, the U.S. national unemployment rate will be somewhere between 7.5% and 8.5%. I was too optimistic here; the unemployment rate hovered just under 10% all year.

Not so good this year. Hey, at least I didn't make any predictions as boneheaded as these:

10. U.S. Vice President Joe Biden: "More people are going to be put to work this summer." June 17, 2010. Embarrassingly for me, Vice President Biden's prediction looks a lot like one of my own.

9. U.S. private citizen Meghan McCain: Sharron Angle, Charlie Crist, Christine O'Donnell, and Carly Fiorina will win their Senate races. November 2, 2010. All those candidates lost, three by decisive margins, congruent with polling data that had been available for weeks prior to Ms. McCain's prediction.

8. U.S. President Barack Obama: Guantanamo Bay's prison facilities will close within one year. January 22, 2009. Still over 150 prisoners there and only three trials have been held, all resulting in convictions.

7. U.S. Gen. Stanley McChrystal: "We're not at the end of the military phase, but we're clearly approaching that." March 2, 2010. Gen. McChrystal was referring to Afghanistan, not Iraq, although in each theater we present have over 50,000 combat troops actively engaged in the vital job of killing bad guys.

5. (Tie) Greek Prime Minister George Papandreou and Irish Prime Minister Brian Cowen: "Our countries don't need to be bailed out" (paraphrase), February 21, 2010 and November 15, 2010. Within weeks of each prediction, both countries were bailed out of imminent financial collapse by special funds created by the EU and the IMF.

4. Newsweek Magazine: Venezuelan President Hugo Chavez will be ousted in a military coup, December 2009. While Chavez remains in power, Newsweek was sold for one U.S. dollar earlier this year.

3. Former Cuban dictator Fidel Castro: The U.S.A. will soon launch an overt attack on Iran, shortly followed by another overt attack on North Korea, June 25, 2010. That, um, didn't happen, El Commandante. Better luck next time.

2. Former U.S. Ambassador to the United Nations John Bolton: If Israel fails to launch an overt military strike on Iran within eight days, the Iranians will achieve a nuclear weapon, August 17, 2010. The Israelis (presumably) used a computer virus instead.

1. Russian Foreign Ministry Diplomatic Academy Dean Igor Panarin: "There is a high probability that the collapse of the United States will occur by 2010," March 3, 2009. Sharp political differences over seemingly vapid causes should not be mistaken for the imminent collapse of a common national identity.

...Stay tuned for my fearless predictions for 2011, some of which will be based on sober analysis and some of which I'm pulling straight out of um, parts of my body.

Prosecco And Auguri

2010-12-31T19:39:00.000-08:00

To open a bottle of sparkling wine, the trick is to not let in too much oxygen all at once or else it froths out and spills everywhere, creating a sticky mess and wasting perfectly good bubbly. This is great if you're celebrating winning a major sporting event but a crying shame for when you actually want to drink the stuff -- especially if you spent the money (as you should, this is an indulgence) to get quality.

I use a clean tea towel as my accessory to avoid this. Remove the foil and undo the wire cage to expose the cork. Then surround the neck of the bottle and the cork with the tea towel, and through the towel, gradually worry and twist the cork up, milimeter by milimeter, which should take about twenty seconds, until the pressure in the bottle takes over and does the rest of the work for you. The tea towel both arrests the inflow of air into the system, and it catches the cork and bounces it back quickly to shut off the intake of air. It only takes a second or to to arrest the overflow reaction of sudden carbonation, and your entire bottle can be used as it was intended -- to pour into flutes and be consumed by human beings, not shot in a foamy trail all over the floor to scare the hell out of your cat and to acquaint your dog with a taste for expensive fizzy wine.

In fact, I've been sleeping poorly these past several days so chances are excellent that after wrapping up my prediction posts timed for around midnight, I'm going to wrap things up early and go to bed well before midnight. I've not stayed up to ring in the New Year more than two times in the last decade and neither this year nor the upcoming one seem to offer much reason to make it the exception to the rule. Besides, we have a nice bottle of prosecco in the refrigerator which we'll have tomorrow -- to be mixed with fruit juice along with the rest of our breakfast.

Auguri, loyal Readers.

Pennies...

2010-12-31T19:13:00.000-08:00

...should be abolished. They cause more trouble than they're worth, and a penny has become a trifling amount of money. If everything were priced in nickels, it would only be a few weeks before no one would notice the difference.

The Constitution Deserves Better Than Rote Recital

2010-12-30T12:37:00.000-08:00

You would think that I would applaud the reading the Constitution in order to open a session of Congress. But I'm not doing that.

I used to be a Roman Catholic. Part of the Roman Catholic Mass involves collective recital of a variety of prayers. As children and teenagers, Catholics go to class to learn the appropriate responses to various phrases recited by the celebrating priest during the various rituals within the Mass -- when to stand down, sit up, or genuflect; when the priest says "X" you say "Y," and so on. And then you go to Mass and you do these things and you do them so much that they become automatic.

Although I haven't been to a Mass at all for at least five years and I haven't really meant it for over twenty,* I'm quite confident that if I walked in to a church, alone, right now, I could recite all the congregation's responses to a priest's saying the Mass without use of a Missal (those little guidebooks they distribute on the back of the pews). Such is the power of memorization and imprinting, especially on an impressionable young mind.

While the classes Catholics take are supposed to teach the young students the importance of the words they are saying, the fact of the matter is they don't do that very often, and even the ones who do absorb these lessons and take them to heart often find themselves just going through the motions, and in candid moments they will admit this. Their minds are not engaged on what they are saying; their statements are automatic and even reflexive while their thoughts, if any, are elsewhere than the subject matter of the Mass.

The Pledge of Allegiance is a more universal example of the same phenomenon: through heavy rote repetition, intellectual meaning is lost. My guess is that only rarely are people given instruction in the meaning of the words of the Pledge of Allegiance, and even if they are, if they are made to recite it, every day, they just do it on autopilot and don't think about what they are saying. They go through the motions, conform to peer pressure, and make an outward show of patriotism without actually feeling particularly patriotic -- the emotional experience becomes that of a duty discharged or an affirmation that they are within the "in-group".

They don't consider that the Pledge is essentially a military exercise. Why are there flags in the first place? So soldiers on the battlefield can identify which combatants are friendly and which are hostile. Pledging allegiance to a flag is stating which side of a fight you're going to be on.

They don't consider what it means to say that the flag "stands for" a Republic. They aren't thinking about the fact that the United States has a republican form of government, a representative federal democracy with a division of powers; they are very likely not thinking about what alternatives to republican forms of government might exist, such as monarchy or military dictatorship or theocracy or policies selected through the mechanism of chance.

At least in the early twenty-first century, it strikes me as unlikely that they are really reflecting on the inclusion and origin of the word "indivisible" in the Pledge. If they did, they would have to intellectually confront the fact that the Pledge is a relic of the aftermath of the Civil War, and that none of the original Founding Fathers ever recited it or anything like it; it is not nearly so ancient or immutable as they might feel comfortable believing.

The final clause of the Pledge is quite ambiguous in meaning, an articulation of a high national ideal and one to which we as a nation hope to strive for but no one should have much difficulty coming up with examples of how we fall short of achieving it. People who engage in rote recital of the Pledge certainly are not going to pick up on the challenge inherent in that phrase to help the nation do better, to be freer, to extend liberty and justice in a more universal way, than we already do.

That's because rote repetition of a series of words is not about encouraging critical thought. It's about producing an outward conformity on the part of those who engage in the ritual. Individual critical thought is not necessary and often detrimental to this sort of conformity.

Someone who thinks that maybe the secession question hasn't really been settled by now, and that it remains a theoretical possibility for a state to lawfully secede from the Union, ought not to recite the Pledge of Allegiance, because the Pledge insists that the nation is "indivisible." Someone who thinks that an individual state is a sovereign nation participating in some sort of a grand Constitutional alliance with forty-nine other sovereign nations -- and yes, there are those who think this way, and some of them hold high office -- ought not to recite the Pledge of Allegiance with its insistence that the United States is "one nation" rather than "several nations." Someone who thinks that certain people in the United States are not entitled to the same kind of liberty and justice afforded to other people -- if they think that enemy combatants seized on the field of battle and imprisoned by the American military are not entitled to due process of law, access to counsel, or the ability to peacefully walk away from their American captors -- ought not to recite the Pledge of Allegiance because they don't really believe in "liberty and justice for all;" at best, they believe in "liberty and justice for some." I think my position on the "under God" clause is already well-known.

But of course the failure to recite the Pledge of Allegiance in a setting where others do so is a rather dicey proposition. Not reciting the pledge when others do so is very likely to be interpreted as an expression of contempt for the United States. When everyone around you stands and places their hands on their hearts† and you don't, they're going to look at you funny. They're going to think less of you. And you're identifying yourself as "not a part of your group." So that's the reason people recite the Pledge -- to conform, not to actually express fidelity to anything.

So when I see that the incoming Congress is making a public spectacle of having a ceremony in which the Constitution is read out loud to the House of Representatives at the start of the session, I start to wonder:

How many Members of Congress are going to be in the Chamber when the reading takes place?
Of those Members, how many are going to listen to the reading instead of doing other kinds of work like, say, talking to one another about the government?
Of those Members who really do listen, how many are going to take the time to understand what is being read to them?
Will any single Member of Congress change his or her behavior in office one bit as a result of participating in this ritual?
Can't the same purpose be achieved by distributing physical copies of the Constitution to each Member?
Members of Congress are already Constitutional officers of the United States and supposed to be possessed of at least average intelligence -- haven't they read the Constitution already? Weren't they all taught this stuff in high school?
Has anyone given thought to the fact that the Constitution is susceptible to multiple reasonable interpretations by people of strong intellect and good faith?
Will this ceremony be repeated in future Sessions of Congress, and if so, to what effect?
If reading of the Constitution becomes a de rigueur ritual, will its substantive meaning atrophy with repetition, the way the vitality of the Pledge and the Mass has done?
The initiation of this ritual seems to be strongly associated with the incoming Republican majority; will this ritual therefore evolve into a political football, an expression of partisanship rather than one of unity and common citizenship?

The likely answers to these questions displease me so much that what seems on its face, to be a good idea and a nice thing to ritualize, has a real danger, at least over time, of diluting the importance of that which it seeks to buttress. The Constitution is too important to all of us to use as a political football.

So I'm calling this a nice idea but it's not one that we should allow to become an intellectually-dead ritual, so it should be something that if done again at all, is only done rarely.

Now, I do like the idea of all bills needing to include a claim to Constitutional authority in principle, but again, there is more symbolism than substance here and I suspect that this will result in a lot of verbiage but not a lot of actual thought. It will be easy for a Member to include one line in every bill saying "Congress has authority to enact this legislation under the Commerce Clause of Article I, Section 8 of the Constitution," and that will be that. On the off chance that Commerce Clause authority is later found to be wanting in a judicial challenge to the Constitutionality of the law, a Court should be able to examine other sections of the Constitution for authority supporting the legislation whether or not they are cited.

But at the end of the day, rhetoric and ceremony about the Constitution is not the same thing as respecting and following it. Congress can talk the talk, but the measure of its action must ultimately be in deeds, not words.

* Surprise! Nonbelievers attend religious services all the time. Sometimes they even participate. Why would they do this? I won't speak for others, but in my case, it was to please religious family members. There is an element of dishonesty in so conducting oneself, but I maintain that it is equivalent to the dishonesty that is found when one meets an acquaintance for the first time in several months and says "You look great!" instead of a more truthful observation like "You've gained weight!"

† Legend has it that the flag salute used to be an extension of the right arm, with elbow locked at full extension, hand fully extended toward the flag. That form of salute changed in the 1930's because Congress thought it too closely resembled the salute used by Fascists in Europe and Japan.

The Internet - Destroying Justifiable Faith In Humanity Since 1993

2010-12-30T06:56:00.000-08:00

It's one thing to read comments to YouTube videos, which have acquired something of a reputation for being particularly inane and intelligence-free. But one hopes for better when one reads comments to an article in Scientific American.

I Once Claimed California Was Over-Regulated

2010-12-28T13:34:00.001-08:00

It took me sixty seconds on the internet and $6.99 to become ordained as a minister and become empowered to officiate over and solemnize wedding ceremonies. I didn't even have to profess a religious creed. Truly, I live in a libertarian paradise.

Published with Blogger-droid v1.6.5

Closing Guantánamo Bay: The Buick Solution

2010-12-28T07:40:00.000-08:00

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.

* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

My Breaking Point: A Haiku

2010-12-27T21:08:00.000-08:00

"Holy communion"

Is why I'm an atheist:

It's not human meat.

Double Feature

2010-12-25T09:37:00.000-08:00

It was double feature Christmas Eve yesterday after The Wife got off work early (I had the day off). The selection at the theaters was Tron Legacy in 3-D and Black Swan.

There is no point in seeing Tron in 2-D, as far as I am concerned. The "real world" sequences are in 2-D, while the "in the Grid" sequences are in 3-D, which is supposed to make you ask yourself which of the two worlds is more "real."

The point of the movie is the computer-game action sequences; they are supposed to be faster, more dangerous-looking, more fluid, and generally updated and cool from the original movie. They are everything you would want them to be -- except plentiful. At the end of the film, I was left with the impression that there were only four action set-pieces in the whole movie, and of them, two were updates (albeit really cool ones) from the 1982 original movie. The light-bike sequence, predictably but gratifyingly, was the best. The CGI "youthening" of Jeff Bridges was impressive and believable; I was confused as to why the producers did not choose to do the same thing for another one of the characters too. When they did the action and fighting I enjoyed myself immensely and was tense and scared for the light-bike fight.

The rest of the movie did disappoint, though. I could tell that the younger stars (the linsome Olivia Wilde and the athletic Garrett Hedlund) were trying hard to breathe life into shallow characters; Jeff Bridges seemed less interested in anything other than the paycheck. But the real disappointment was the story. A movie rises and falls with its script and this one was at once too complex and confusing, and yet at the same time too contrived. In order to explain everything and render the bad guy a real bad guy, and the good guys really good guys, there was far, far too much exposition -- without it, the story would have been even more confusing, but with it, the movie far too slow.

The soundtrack by Daft Punk was perfect. A cameo by Cillian Murphy sets his character up as a likely bad guy should there be another sequel (which I would title Tron: End of Line). Michael Sheen was over-the-top and therefore not particularly credible in his role; he seemed to by trying at once to mock the colorless and superfluous character of The Merovingian in the Matrix sequels, while also trying to marry John Hurt as Caligula from I, Claudius and David Bowie as Ziggy Stardust. At the end of the day it did not work and I was not sorry that the role was so small despite the waste of such a fine actor in it.

I don't regret having spent the money to see the movie at all; it was a great audio and visual spectacle, entertaining and thrilling in places. But I won't see it again; the murky, talky story isn't worth wading through twice. A good thrill ride, which need not be repeated.

Black Swan was The Wife's selection for our double feature and walking out of the theater, I felt like I had I enjoyed it about as much as I had the first movie; the numerous realistic hallucinatory scenes left me confused about what had been real and what had been imagined by the heroine throughout the entire film. But the more I think about that movie, the more I find I enjoyed it and it keeps on sitting nicely in my mind; that confusion was of course intended all along.

As one would hope for in a thriller like this, the acting is really good. Natalie Portman plays an intense, not particularly likeable, but technically talented and full of potential ballerina. Barbara Hershey is really outstanding as Portman's overbearing mother. Each of these characters is a fascinating psychological study. Mila Kunis (a real-life social friend of Natalie Portman) is less interesting as a character than as a symbol of a less dedicated and ambitious, but freer and more enjoyable, way of life than the one Portman's character finds herself tracked for. European star Vincent Cassel ought to earn greater notice in the States for his turn as the demanding, manipulative, and ambiguous director of the ballet.

Winona Ryder struck me with the pathos she was able to put in to a relatively small role. The role itself must have been a bit of a challenge for her on an emotional level; she plays the older ballerina displaced by the younger, now-prettier up-and-comer represented by Natalie Portman. Maybe I felt special sympathy for this character because Winona Ryder is close to my own age and Hollywood is notoriously age-discriminatory, particularly for its leading women -- as she approaches her 40's, Ryder is still very attractive but it seems that many of the better opportunities go to women about ten years younger than that. Playing a character who represents that phase of the business for someone who actually is in that phase of the business must have seemed particularly poignant.

And at the end of the day, Black Swan is about not just the ballet but show business entirely. The question it asks to others who would pursue a career in any of the performing arts is, how far are you willing to go to deliver a good performance and earn the accolades of the audience? It's clear by about halfway through the movie that Natalie Portman's character is sacrificing (whether willingly or not) her mental stability in order to achieve that goal.

Portman does a fine job portraying the material and emotional sacrifices that a life at the elite level of the performing arts demands; but it's clear that she can only do so because she has never seen that there are any real alternatives. Portman is on screen, or her character is within the staging, for almost every moment of the film. She is frequently silent, in part because her character is exhausted and out of breath from the athletically demanding activities of a ballet dancer. The makeup artists did a great job of making it look like she was not wearing makeup, sweaty, and looking decidedly unattractive.

Kunis' character shows her that it is possible to still be in the game but, at the cost of maybe not having the personal discipline to reach the very top, can still enjoy life. Kunis plays a ballerina from free-spirited San Francisco who eats cheeseburgers, takes Ecstasy before a night of club-prowling leading up to casual sex, and sasses off waiters hitting on her before she's ready for male companionship. Portman's obvious jealousy at Kunis' liberated lifestyle reveals the tension and ambiguities in her character which ultimately prove the decisive issues within her character.

Portman also has two scenes of frank sexuality, one of which is an encounter with Mila Kunis that generated a lot of buzz. At the end of the day I'm not entirely sure if that scene couldn't have been done effectively with a man instead of a woman, although I suppose on balance having it between these two attractive women actually did contribute to the narration as well as generate titillating buzz that will attract men as well as women to a story about ballet dancers.

You wouldn't think that a movie about ballerinas would rely much more heavily on costumes than special effects. But the effects were a critical part of the film. The motif of mirrors and Portman's periodic hallucinations -- some of which were so gruesome that they left me squirming in my seat -- are probably the most important part of the whole film. They provide the visual clues to the viewer about what is being seen and whether it relates to objective reality or something different.

But the ambiguity I remain dissatisfied with at the end of the day is that I cannot decide whether Portman's character chose the path she did or whether circumstances forced her to do as she did. This parallels the story of the ballet, Swan Lake, which provides the thematic track upon which the movie proceeds.

You should see the movie for yourself and draw your own conclusion about whether what you're seeing is a tragedy (a story about a character's destruction resulting from an internal character flaw or a conscious choice), or a pathedy (in which large forces well out of the control of any character conspire to utterly crush a helpless heroine). The final line of the movie suggests to me the former, but your mileage may vary and I can't be certain about that either. The fact that I'm still ruminating about it the next day is the best signal I can imagine that there was a pretty solid story here, which makes this movie worthy of a second viewing.

Time To Change My Job Description

2010-12-23T13:48:00.000-08:00

Take two hypothetical people. And when I say "people," what I really mean is "taxpayers." Let's call these folks "Attorney Alice" and "Minister Mike."

Attorney Alice works for the law firm of Nasty, Poor, Brutish & Short LLP, which pays her $105,000 a year in salary and structured bonuses.

Minister Mike works for Innocuously Bland Protestant Ministries of Springfield, which pays him $105,000 a year, in the form of a $40,000 annual salary and a $65,000 annual "housing allowance."

Neither of these hypothetical characters receive any additional benefits like contributions to retirement accounts or health insurance; both are the sole breadwinners for families of four; both are homeowners; and the above exhaustively describes the money coming in to both of their households.

What's the result? Attorney Alice pays $24,576 in state and federal income taxes. Minister Mike, who you will recall brings home the exact same amount of money, pays only $1,540 in federal and state income taxes -- one-sixteenth of Attorney Alice's tax burden.* Read all about it from the tax preparer's perspective. (Via.)

I'm sure you can guess which one of the two asked for a discount on the tax preparer's fee.

You don't need to be an atheist to see that this result is unfair. It might help to be a lawyer or an accountant, though, to see a Constitutional problem. See, in law school, I was taught that the tax code is written the way it is so that the government can encourage certain behaviors and discourage other behaviors. This example illustrates a powerful incentive for people to pursue careers in religious ministries. That, in turn, would seem to represent a clear preference by the government for religion over non-religion, which when expressed thusly rather clearly violates the Establishment Clause. (See, e.g., Board of Education of Kiryas Joel Village School District v. Grumet (1994) 512 U.S. 687, particularly the phrase "...a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion.")

Now, I don't really have a problem with the government choosing to say that the ministry is a public service profession. I'd readily agree that most ministers, in most settings, provide a variety of benefits for their communities. That they could do so in a secular fashion is irrelevant; they can do so in a religious context and they may express their professional activities as being part of a set piece inseparable from their faith and theological beliefs if they so desire. I don't get to choose your religious ideas for you and if your faith gets you to behave in a noble, morally good fashion that benefits your community, I've no cause to object.

What I want, though, is equality before the law. I, too, am engaged in a public service profession; I assist people with their social problems; I guide them through tough times, I hold their hands while they cry, and I give them advice to help resolve disputes. I am significantly more accountable to the public and significantly more regulated by the public in the practice of my profession than the minister is in his; I am thus even more burdened in the practice of my profession than the minister, all other things being equal (the key equality here being gross income).

So if a minister gets to knock more than half his income out above the line and double-deduct things like mortgage interest, property taxes, and homeowners' insurance, then I should be able to do that, too. It's not fair that because I base my guidance in dispensing that advice from books of law, and the minister bases his guidance on an ancient holy book, the government should treat him better than it treats me when it comes time for us to pay our taxes.

Maybe I should call myself a "minister of judicial dispute resolution" instead of "attorney."

And while I'm on the subject of Establishment Clause violations, I just have to recognize and give thanks to Dan at Bleakonomy for a very amusing shout-out. Merry Christmas, dude.

* To be fair, Minister Mike in this example opted out of Social Security and Medicare taxes, and therefore will not be entitled to participate in those benefit programs upon his reaching retirement. Attorney Alice is legally required to participate in Social Security and Medicare.

But Weren't The Southerners Good To Their Blacks?

2010-12-22T18:56:00.000-08:00

As neo-confederates celebrate the sesquicentennial anniversary of South Carolina's act of treason in defense of slavery, I am grateful for a link to Ta-Nehisi Coates of The Atlantic.

Coates tells the story of Robert Smalls, an escaped slave who commandeered a confederate warship, four pieces of artillery, and a naval code book and turned them over to the Union Navy, and then went on to accept a commission in the Union Navy, to take command of a vessel under heavy enemy fire and steer it to safety. Captain Smalls was the first Black man to command a ship in the United States Navy, and received a medal for his bravery. He also received a $1,500 share of the prize money for the captured Confederate ship, which it seems he plowed into a successful campaign for the U.S. Congress, where he served for at least three terms.

Go read the whole thing. Then wonder as to why it is that he did what he did if the Civil War wasn't about slavery, if the Confederate propaganda about how good the southerners were to their darkies was worth any credibility.

You've never heard of Captain Robert Smalls before. This guy is a massive American hero and what he did must have took some massive stones.

This Is Why There Are Sports Blogs

2010-12-22T13:42:00.000-08:00

Correspondence from 1974 between an attorney who is a Cleveland Browns season ticket holder and the response turns out to be 100% pure awesome. If it's not genuine, it ought to be.

Lame Duck Congress

2010-12-22T13:02:00.001-08:00

Is it just me or has the lame duck session of Congress this year been more productive than the entire regular session? Whether you like the results or not, it's undeniable that a lot of stuff got done on both sides of the aisle and in both houses. Why weren't our Congresscritters working this hard all year?

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Is It Really Good News?

2010-12-22T09:35:00.000-08:00

Yesterday while discussing the news of the new Congressional apportionments with a friend, I grew reflective:

"Time was, I would have greeted this as good news. Now I'm not so sure."

"Really, why?" my friend (a fellow moderate Republican) asked me.

"I don't trust the Congressional Republicans anymore. They only do weird social stuff and don't cut spending."

When he got done laughing (a combination of mirth and bitterness), my friend agreed with me that I'd pretty much nailed it.

Call This Man The Waaahmbulance

2010-12-22T01:28:00.000-08:00

Doug Mataconis at Outside the Beltway points out a case in which a recently-defeated Congressman (Ohio Democrat Steve Driehaus) is suing a political advocacy group (in this case a pro-life group called the Susan B. Anthony List, hereinafter "SBAL") for defamation:

The group claims Driehaus, who has campaigned as an anti-abortion candidate, supports taxpayer-funded abortions because he voted for the national health care law. Driehaus said the claim is false and that the law bars any federal funding of abortion.

“A lie is a lie,” Driehaus’ lawyers wrote in his federal defamation lawsuit. “The First Amendment is not and never has been an invitation to concoct falsehoods aimed at depriving a person of his livelihood.”

My initial reaction is -- boo frickin' hoo for you, Congressman. If you're going to play hard ball, expect fast pitches. If you're going to run for elective office in the United States of America in the early twenty-first century (or indeed at any time to date in our nation's history) you need to prepare for someone to deliberately and maliciously misrepresent your record and to fight fire with fire. You aren't entitled to a livelihood in Congress, you have to earn it. "It's the peoples' seat," remember?

The law would seem to support my initial reaction: New York Times v. Sullivan (1964) 376 U.S. 254, says that a public official will not prevail in such a suit based upon "...a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." So here's his theory -- given that functionally no one in Congress had actually read the healthcare reform bill before voting on it, it's a reasonable bet that the SBAL had no real way to be certain whether the bill supported or did not support abortion, either, and that constitutes "reckless disregard of whether [the claim] was false or not."

So what this means is that in politically-charged litigation (SBAL is already suing Driehaus; Driehaus' defamation claim is part of a countersuit) both sides will get to argue about what is or is not in the healthcare reform bill for which Driehaus voted, thereby giving Driehaus' political enemies a platform upon which to continue spreading their message. And if there is even a colorable argument that under the new law federal money does go to fund abortions, then he's guaranteed to lose in court even if it turns out that, upon close examination, the law really does exclude funding for abortion.

Poorly played, soon-to-be-former Congressman Driehaus.

Whatever it was that the SBAL said about Driehaus, though, it's quite likely that it made little difference at all in the election. 2010 was a bad year to be a Democrat and a worse one to be a Democrat from a non-secure district who voted for the healthcare reform bill for reasons having nothing whatsoever to do with abortion.

Driehaus has only himself to blame for not responding appropriately to campaign lies, he has only himself to blame for the voters growing dissatisfied with his performance in office and choosing to replace him, and he will have only himself to blame for the situation in which he will soon find himself -- paying for lawyers to continue fighting over the last campaign in court.

One would think that he has better things to do with the remainder of his life than this. The evidence, however, suggests that the contrary is true.

New Apportionment

2010-12-21T19:01:00.000-08:00

With new census results out, seats will be reallocated in the House of Representatives and with that, the map of the Electoral College and thus the calculus of electing the President in 2012 will change. Had the last election been run with the future allocation, the result would have been Obama 353, McCain 185, a shift of twelve votes from "D" to "R."

Happy Solstice To All

2010-12-21T18:06:00.000-08:00

The winter solstice has been an occasion for celebration around the world and throughout time.

So whether you celebrate Inti Raymi, Sanghamitta, Jul, Hogmanay, Shab-e Yaldâ, Modranicht, Lenæa, Karachun, Chanukkah, Beiwe, Ameratsu, Zagmuk, Montol, Sviatki, Dongzhi, Makara Sankranti, Meán Geimhridh, Şeva Zistanê, Ghambar Maidyarem, Soyal, Chronia, Natalis Domini, Dzon'ku 'Nu, Choimus, Perchta, Blót, Goru, Sol Invictus, Ziemassvētki, Lohri, Brumalia, Rozhanitsa, Maruaroa o Takurua, We Tripantu, Lá an Dreoilín, or Lussi,* have a happy, safe, and joyous solstice-related celebration–along with the rest of humanity.

* Kwanzaa is not included in this list because to my knowledge they are not intended to coincide with the winter solstice. Islam has no winter holiday because it uses a lunar calendar and thus the solstice is not important to Muslims. Kwanzaa celebrators and Muslims are welcome to educate me if I am incorrect.

Answering The Christian Science Monitor

2010-12-21T17:56:00.000-08:00

Asks the confused reviewers at the CSM: "Why did 'Tron: Legacy' do so well at the box office?"

I recall predicting about this time last year that it would disappoint; if I am proven wrong that will not bother me particularly. An opening weekend of over $44,000,000 is a good start to the movie making back its purported $300,000,000 budget, but it would still have a long way to go before the movie can be called a success in financial terms. There seems little doubt, though, that when merchandising and spinoff video games are factored in to reviving this movie, Disney will be getting lots of Tron dough.

So why did this movie do even this well, mystifying curmudgeonly reviewers who hated the 1982 original film? The answer is that there are a lot of people more or less my age who watched this movie as teenagers (or in my case, as an almost-teenager) who were visually amazed by the video-game-brought-to-life, or rather life-brought-to-video-game, look of the original Tron. Being digitized into a video game was a primal fantasy for kids of the early 1980's and it has remained a primal fantasy for kids ever since. So that's an entire demographic bracket for whom the movie promises to bring such a primal fantasy to the silver screen. In 3D, for which the audience will pay extra at the box office.

That's why Tron: Legacy did so well at the box office.

The Death Of A Nation: A Case Study Of Anxiety Projection

2010-12-21T07:56:00.000-08:00

Paging Doctor Freud!

It would seem that institutionalized prejudice against homosexuals is more important to some people than patriotism and love of country. When men who have devoted enough of their lives and professional careers to achieve the very respectable rank of Colonel publish remarks such as this, one has to ask whether the very idea of a common national identity has suffered some sort of awful erosion:

I ask you, fellow citizen, after Saturday’s vote, would you give your life for our Senate? Would you give your life for our president? Or, would you go home to your family? Sadly, you know the answers already. If you never made a phone call or never entered the debate on this issue, it’s too late to care now.

Hat tip to Jim Burroway for this astonishingly sour grapes quote.

Now, I'm reminded of a few other things, both historical and demographic, which cause me to react to this sentiment with something other than despair. Unlike other advocacy groups, I tend to think that the young people who are doing the real, on-the-ground work of our military, are much more concerned with whether their brothers and sisters in arms can shoot straight than whether they are straight. There is little reason to think that recruitment will suffer so badly that this will happen:

This looks beyond conservative to me; it looks reactionary -- resistance to change for the sake of resisting change. When National Review offered as a slogan and image the idea of conservatism as a force which "stands athwart history, yelling Stop", the idea was "Hey, let's think this through before we do it."

But we have thought about allowing gays and lesbians to serve openly in the military. We've studied it. We've looked at other nations' experiences in their military. We've determined that the great majority of servicemembers and the great majority of citizens whom they serve are unconcerned with the sexual orientation of soldiers, sailors, and airmen. Resisting change for the sake of resisting change is not really aimed at improving anything. And the military is a uniquely adaptable institution within our society, precisely because it is so hierarchical, so driven by orders from above. A conservative (in the mold of a William F. Buckley, at least) can eventually be persuaded to try something new -- they're cautious about it, but sufficient data and study and relation of the new idea to timeless principles that work to make society stronger can overcome that caution and be embraced as welcome developments.

Contrary to the claims of some that laws reflecting evolving social realities irresponsible render the military into a political football, the truth of the matter is that while there is resistance to change, change happens and the military needs to adapt to that change and is possessed of a sufficiently supple internal social fabric to do so:

Now, I'll grant you that the last clip is fiction, but like most good fiction it makes an important point about reality: the military has been socially engineered before, and it came out stronger for it.

That there is lingering paranoia over homosexuals serving in the military is entirely understandable -- paranoia is founded, in many cases, upon fear of homosexual tendencies within oneself. Some refer to this as "repression of homosexuality," but it looks to me like it is more exact to say it is unresolved anxiety about the possibility that one might be homosexual, rather than anxiety about actual homosexual feelings in one who identifies as heterosexual. Regardless, paranoia is the result of not resolving that anxiety in a healthy way. What we're seeing is not really the erosion of our national identity, it's people being forced to confront their unresolved, or ill-resolved, internal anxieties, and projecting them out onto the larger world. In this projection, what starts out looking like a logical syllogism progresses into something at once darker and more irrational.

I'm afraid that I might be gay. Being gay is bad.
I identify with, or at least I like, the military.
If the military accepts gay people, that means being gay isn't bad.
But being gay is bad, so if the military accepts gay people, that means the military is bad.
If the military is bad, the military must be gay.
If I identify with, or at least like, the military which I now know to be gay, that must mean I am gay myself.
Therefore now I'm gay and I don't want to be gay because that's bad!

That such a line of thinking is obviously irrational and fraught with all manner of structural errors is beside the point. When you peel back the thought process of those who see some sort of fundamental, existential threat in the repeal of Don't Ask, Don't Tell, you're going to see something that looks a lot like that.

Nationalism isn't dying and the military will adapt to including openly homosexual members within its ranks. We shouldn't let the irrational psychological anxieties of some get in the way of moving our nation, and its essential institutions like the military, into the twenty-first century. The military has had gay people within its ranks for generations, of course, and somehow it functions well, as it always had. There are lots of old, old jokes about how back in the day when only men served in the military and especially in the Navy, sailors passed the time out at sea by coupling up, but somehow none of those jokes ever related what happens in the minuscule sleeping quarters of a ship with the ability of that ship to function in combat. There has always been recognition that even if those sailors turned gay when the ship lost sight of the horizon, they were still tough, capable fighting men serving America.

The only thing that's different now than what was in those old jokes is that soon, those soldiers and sailors won't have to pretend their straight if they aren't -- they won't have to lie in order to serve honorably. This will results in less cognitive dissonance, less anxiety, less lying to oneself and others. In the long run, our military will be stronger for it.

Fantasy Football Woes

2010-12-20T18:56:00.000-08:00

It's time to hang 'em up. Our league is quarterback driven. This week our options for quarterback were:

Aaron Rodgers
Kyle Orton
Donovan McNabb
Tarvaris Jackson
Jimmy Clausen

What's worse, we had to pick two of those by Thursday.

Of these, it's a guarantee that three won't be playing again this season, and if da Bears beat Minnesota tonight (they're leading 17-7 as I write and are being ball hogs), that occludes the possibility that Green Bay can make the postseason, so why wouldn't Green Bay coast out the last three games by letting Matt Flynn get some experience?

This will leave us with one starting QB -- Jimmy Clausen of the Carolina Panthers. Something of a letdown after having had Aaron Rodgers all season.

Standalone DADT Repeal Gains Cloture

2010-12-18T10:35:00.001-08:00

Even away from the internet while out and about news that cloture on DADT repeal was invoked earlier today has reached me. For all the missteps and display of poor organization exhibited by Congress this year, and despite the myriad of bad ideas wafting out of the corridors of power, we can take heart that at least they got this one right.

Formal repeal by the Senate should be early next week and unless the President waffles, our military will cease its most overt form of discrimination soon.

We are now another step closer to living up to our national ideals. Today is therefore a good day in American history.

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Work Product From The Questionable Methodology Department

2010-12-16T21:53:00.000-08:00

I'm quite uncertain about the methodology reported upon here leading to the conclusions thus claimed. The results are interesting but I'm not entirely sure what they really prove -- and I doubt very much that they prove what is claimed. Nor am I at all confident that a study of Asian-Americans' cross-cultural identities first "primed" with respect to work ethics and then "tested" with respect to sexual ethics proves that all these Asian-Americans are somehow neo-Puritans.

Culture matters; the culture we create today will still echo hundreds of years into the future. I didn't need word-association experimental psychology reaching shaky conclusions to tell me that. Puritan culture survives in such a fashion today -- we are much more comfortable with violence than sex in our entertainments and quicker to identify sexual behavior as raising moral issues than almost any other kind. Puritans did not have a monopoly on the association of hard work with good moral behavior, however; nor did they have a lock on personal propriety being a profound virtue.

Biking Through The Central Valley

2010-12-16T07:30:00.000-08:00

Hoover Institution Senior Fellow Victor Davis Hanson took a self-guided tour throughout the southern half of California's San Joaquin Valley and reports on what he saw and found. Some of his observations appear to be oddly ignorant of what seem like obvious facts, and for someone whose claimed intent was to "get the pulse" of the area, he seems to have done very little talking to people.

Nevertheless, much of what he has to say rings true and the critiques of both social and governmental trends are worthy of attention, and dovetail with my own observations of members of the Third Class.* For instance:

In two supermarkets 50 miles apart, I was the only one in line who did not pay with a social-service plastic card (gone are the days when “food stamps” were embarrassing bulky coupons). But I did not see any relationship between the use of the card and poverty as we once knew it: The electrical appurtenances owned by the user and the car into which the groceries were loaded were indistinguishable from those of the upper middle class. [¶] By that I mean that most consumers drove late-model Camrys, Accords, or Tauruses, had iPhones, Bluetooths, or BlackBerries, and bought everything in the store with public-assistance credit. This seemed a world apart from the trailers I had just ridden by the day before.

Prof. Hanson seems to ignore that the consumer electronic devices have become very, very affordable; technologically, cell phones have in many cases supplanted old land lines completely; and used exemplars of the vehicles he saw these consumers driving are, by operation of supply and demand, easily affordable. How much would you pay for an '02 Taurus? Less than $4,000, I'll bet.

But the quality of a 2002 car in 2010 is much, much greater than the quality of a 1972 car was in 1980, and Hanson seems to recognize this. So it seems that the rural poor who drive around in 2002 Tauruses and Camrys are better off than the rural poor who used to drive around in El Caminos and Darts. Which is true, but nevertheless unremarkable as a matter of economic reality; these are still people living in American rural poverty. It's just that contemporary rural poverty includes things that used to be considered luxuries and conveniences affordable only by the wealthy. This observation resonates in harmony with George H.W. Bush's astonishment at the use of laser scanners in grocery stores during the 1992 election campaign -- somehow, Prof. Hanson got out of touch with the economic realities of 2010 and seeing them played out in a rural, impoverished area seems dissonant to him. It does not seem dissonant to me.

It does, however, suggest that rural poverty in America is not nearly as bad as rural poverty in other parts of the world.

Where I think Hanson really strikes home is looking at the irregular effects of regulation. In his experience -- and that of many of my middle-income clients -- state and local regulators in this state intrusively meddle in aspects of daily life. I have a friend who has made all manner of interesting improvements to a formerly-modest house, but who has a deep fear that a county building inspector will come by and find the literally dozens of building code violations inherent in the now-expanded structure. Not that the improvements are bad or shoddy -- but they are not permitted, they use some non-standard building materials, and they are unconventional in appearance (for instance, an indoor koi pond adjoining the master bedroom, or the conversion of a bedroom into a home theater using old movie theater seats he found abandoned in a field). My friend is right to be worried about this; I have clients who have been inspected and found in violation of housing codes, and had to pay thousands of dollars in fines and invest tens of thousands of dollars in upgrades and permit fees to bring their homes into compliance. I have landlord clients who are cited by their municipalities for what seem like trivial violations (the one that comes to mind is an uninsulated flex-tube hooking up a hot water heater to the natural gas line, which violation my client's tenant appears to believe entitles her to $12,000 worth of free rent because she was living in "mortal danger").

Yet out in the Central Valley, Hanson observes uninsulated wiring on obviously substandard mobile housing and sees no effort by the government to enforce even basic standards of livability. Some of this might be explained by the fact that here in Los Angeles County, the county and local governments have comparatively more resources available for enforcement than in Fresno, Kings, and San Joaquin Counties where Hanson did his survey. But some of it may have to do with what he suggests is true (I take Hanson's denial of editorializing as sophistry; virtually all of his article is commentary rather than reportage) and that is the fact that regulators and other public officials have varying expectations for the kinds of conditions that are appropriate and reasonable for the Latino rural poor in the Central Valley and the kinds of conditions that are appropriate for urban and suburban dwellers elsewhere.

It is also worthwhile to note that available farmland is sitting fallow. Hanson does not identify a reason; correctly so because the reasons are likely complex when viewed systemically and too varied when viewed particularly -- one property owner may have credit problems, another may have legal issues, another may have failed to have complied with regulations needed to gain access to water, another may be in bankruptcy, and so on. But agricultural land in the San Joaquin Valley is among the best in the world, and if that land is resting fallow instead of producing food or otherwise being used, there ought to be both a reason and a solution to that.

Some of the issues Hanson confronts are, like the riddle of fallow farms, difficult to diagnose and will undoubtedly prove even more difficult to fix. But if it were easy, we can presume it would have been done already. Some of the issues he identifies -- the effects of racial homogenization, for instance -- are both volatile and ambiguous. The fact that it is hard to deal with these issues, though, does not mean they can be left alone forever.

* My theory is that there are three economic classes in the United States. The classifications are derived from the manner in which money and other goods are obtained, and have little to do with how much money one spends or the quality of one's circumstances in life. The First Class are those whose circumstances are such that they do not need to work; family or other capital provides for them. The Second Class are those who exchange their labor for money. The Third Class are those who receive money from the government in the form of entitlements. Within each class, there is a spectrum of wealth and poverty measured by not how much money comes in to the household but rather by how much consumption occurs; some people within each of the three classes live very well, driving high-end vehicles, wearing new and fashionable clothing, and eating in restaurants most of the time; others live in Spartan circumstances either by choice or out of necessity. Wealth mobility and class mobility are both possible, but difficult and rare. You can imagine a poor First Class person as a trust fund baby plagued by addiction; a wealthy First Class person as a socialite. A poor Second Class person might be a starting wage earner sharing an apartment while working for a single-digit hourly wage; a wealthy Second Class person might be a doctor or a lawyer. A poor Third Class person might be a recipient of Social Security disability payments, receiving no other public aid and unable to pay the rent; a wealthy Third Class person might be someone receiving a panoply of various welfare benefits, lives in deeply-subsidized housing in a good neighborhood, who drives a leased one-year-old Escalade, and shops at Trader Joe's. Members of all three classes, from a variety of points along the parallel wealth spectra, may be found here in my own community. I'm not yet done fleshing out this concept in my mind but I'm convinced there's something to it.

Flunking Gandhi's Test

2010-12-15T22:20:00.000-08:00

"A nation's greatness is measured by how it treats its weakest members." -- Mohandas K. Gandhi.

A prisoner is utterly and completely at the mercy of the government which has imprisoned him. He relies upon his jailers for food, for safety, for medical care, and every other necessity of life. Any comforts or personal items given to him from the outside are subject to immediate confiscation and thus private possessions are, as much as anything else, dependent upon the fiat of the guards and wardens who run the institution. Prisoners lack nearly every civil liberty which you and I, as free people, take for granted. A prisoner may easily counted among the weakest members of a society. How we as a society treat our prisoners is a measure of our moral worth.

By this yardstick, we are a badly deficient society. Since May, a man who has been accused of a crime but not yet convicted is being held in solitary confinement in a military prison. Now, there is no particular reason to love PFC Bradley Manning; if he is guilty as charged, he was personally responsible for the leaking of all sorts of classified documents, many of which wound up on Wikileaks and have caused our nation no end of embarrassment and, at least temporarily, weighed down our ability to engage in diplomacy. If he is convicted of these crimes, he should be punished.

But he hasn't been convicted yet. Of anything. As of right now, PFC Manning is an innocent man. Our legal system, ostensibly, presumes his innocence until such time as a verdict is entered against him. And yet this is how a citizen of the United States who has, as of yet, been convicted of no crime and has demonstrated no propensity to violence is being treated by the government:

For 23 out of 24 hours every day -- for seven straight months and counting -- he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he's barred even from exercising and is under constant surveillance to enforce those restrictions. ... [Bradley is] denied ... a pillow or sheets for his bed (he is not and never has been on suicide watch). ... [T]he brig's medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.

I'm no prison warden, but I understood solitary confinement to be appropriate for prisoners who are violent to other prisoners or to prison personnel. And bear in mind that, at this point in time, PFC Manning is entitled to a presumption of innocence. The government has not proven, beyond a reasonable doubt in a court of competent jurisdiction, that PFC Manning has done anything wrong.

Let us presume, however, that Manning had been convicted already. Let us presume further that we could prove that what Manning did -- leaking thousands of documents in violation of secrecy orders -- had serious consequences like people getting killed, wars being prolonged unnecessarily, and human misery around the globe extended where it could have been ameliorated. Again, I'm not suggesting that criminals like that should not be punished.

We seem to have lost sight of the fact that incarceration, without any particular enhancements, is already a really bad, nasty, punitive thing to do to a person. Prison is a Very Bad Place. Being deprived of one's liberty is a Very Bad Thing. What's more, prison causes one to involuntarily associate with a society of nearly exclusively other criminals and prison guards. No loving family, few friends, boring work, and a soul-crushingly institutional environment.

This would be awful even without the fear of violence and prison rape about which society at large is already is far too cavalier. PFC Manning would also earn himself a dishonorable discharge from the military, a permanent stain on his character and reputation which he would carry for the rest of his life even after completing his prison sentence. He will have lost his future.

You would not voluntarily submit to this, nor would I. This is the price, and the threat, for violating society's standards of minimally acceptable behavior. It is the penalty for betraying one's country, one's word, one's honor. And if Manning is convicted of his crimes, we will be justified in doing these things to him.

What's more, there are good reasons to hold accused prisoners in confinement. Some are flight risks. Others may be difficult to relocate by the time of trial. Others have demonstrated that they are dangerous or are likely to engage in conduct contrary to the interests of justice, like by intimidating people who might be witnesses against them at trial. Some just plain can't post bail. So I have no particular beef with the idea that PFC Manning should be incarcerated pending trial.

So it's not that Manning needs to be treated with kid gloves; I'm not saying that we should put him up in the Hilton or even let him go free. But when a legitimate question can be raised that a man is being tortured, we've crossed the line from acceptable to unacceptable behavior.

"Torture?" you ask. "Is solitary confinement really 'torture'"? Maybe yes, maybe no. You may recall that the term "torture" is defined by law:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ... .

Anti-depressants are mind-altering substances. Granted that in many instances they are administered for therapeutic rather than punitive purposes and many people take them voluntarily. Prolonged isolation from social contact may, and often do, have the effect of "disrupting profoundly the senses or personality" of the person so treated; prolonged confinement and deprivation of interaction with other people very often has the effect of causing depression on the person so deprived.

Solitary confinement of a prisoner need not be "torture" if it is imposed as a "lawful sanction" for something. "Sanction" indicates that someone has done something wrong to earn this treatment; it is a phrase laden with implications of punishment. The government is not yet in a position to impose a "lawful sanction" on PFC Manning because PFC Manning has not yet been convicted of any crime; he has not shown any propensity to violence while in confinement.

So is this "torture"? What I don't know is the intent of Manning's jailers; this is not readily ascertainable and I hesitate to rely on Greenwald's article alone to determine this. But the objective, verified* facts of Manning's treatment are not in substantial dispute; he is, in fact, being treated this way. Using the definition of 18 U.S.C. 2340, it sure looks like torture. If the intent is to make Manning's life behind bars uncomfortable, then yes, this is torture.

Once we started saying "Sometimes torture is morally justifiable," that led to us saying "Some prisoners have done things so bad that they deserve to be tortured," and now, we're at the point that there is a massive shrugging-off of the fact that a man who has been convicted of no crime, a man we ought to presume is innocent, is being treated thus for no apparent good reason.

I have said for a long time that we ought not to torture our prisoners -- not because they don't deserve it, and not because we would expect to be treated so well were positions reversed, and not because torture is ineffective (although that is subject to at least reasonable debate), but because torture is contrary to our own collective moral standards. We should not torture, because we are better than that and for no other reason.

When we betray our own standards once, it becomes easier to betray them later. Society's disregard of such treatment of a presumptively innocent man is the next step down that road. That is why the rule should be simple and absolute: no torture, ever.

Again, this might not be torture as that term is legally defined. But it is also not a good example of how we ought to treat someone who has not yet been convicted of any crime. Whether it's torture or not, we have a Constitutional prohibition on cruel and unusual punishments. I rather doubt that most other prisoners in this brig are getting treated the way Manning is. I rather suspect that his treatment is motivated by a desire to inflict suffering for the sake of inflicting suffering -- the very definition of cruelty.

Let PFC Manning be treated like any other accused but as-yet-unconvicted military prisoner. Let him stand trial, and if convicted, let him then receive the full punishment specified by law. But let us not, in our zeal to see a crime punished, lose sight of our own ideals.

* Greenwald's article linked above accuses the military prison of denying Manning access to news and other current information in the one hour per day of relief from solitary confinement allowed to him. Manning's jailers dispute this, and only this, portion of Greenwald's factual reporting; they also dispute Greenwald's characterization of the solitary confinement as "torture."

Stuxnet Triumphs

2010-12-15T10:39:00.000-08:00

A computer virus (or more accurately, a worm) called Stuxnet has somehow infected the Iranian nuclear weapons program's computers. This is remarkable because the Iranians had apparently gone to extraordinary lengths to isolate their nuclear weapons development computer system from every other computer in the world; no hacker could have found a way in to that network from his living room in Yaroslavl or Philadelphia because there were no physical or ethernet connections between those computers and the internet. Yet somehow the virus got there.

And according to the Jersualem Post, this has set the Iranian nuclear weapons development program back by two solid years. Stuxnet has been as effective as an overt military strike against the weapons development program, and was somehow done without anyone firing a shot or anyone being killed.

No one will take credit for Stuxnet. There is speculation that it was developed by or at the behest of the Pentagon, or maybe by the Israeli Defense Forces, or who knows who else. But there is no doubt that Stuxnet was targeted directly at the Iranian nuclear program and whoever is responsible for it had conclusively demonstrated that the age of cyber-warfare is upon us.t

Do Judges Talk Too Damn Much?

2010-12-14T21:39:00.000-08:00

This column suggests that judges should say nothing outside of the four corners of their opinions. But it levies its criticism at John Paul Stevens, David Souter, and Sandra Day O'Connor -- three retired Justices of the Supreme Court. I say, once they've retired, they're private citizens and have the same First Amendment rights as anyone else. Now, retired Justices occasionally still serve in a variety of judicial capacities and then should respect the canons of judicial ethics about public statements. They should also point to their opinions in cases that they had decided as the primary articulation of their reasoning and intent. But aside from that, yes, they should be free to comment on whatever they wish.

Celibate World Cup

2010-12-14T13:54:00.000-08:00

It's still twelve years in the future, but I can't understand how the World Cup in Qatar could possibly be a success. I'm already baffled that a sport whose biggest fans come from Western Europe and South America -- none of whom are shy about drinking booze while partying and cheering on their teams -- would be asked to go to Qatar, a tiny nation dominated by Puritanical moral laws concerning alcohol to watch the World Cup. These are people who are going to want to drink while they party and cheer and sing.

And it gets worse -- gay fans have just been asked by international soccer's governing body to refrain from having sex while in Qatar to cheer on their teams. Which brings to mind the fact that Qatar's next door neighbor, Saudi Arabia, still has the death sentence on the books for sodomy -- a punishment which is still actually enforced from time to time. I don't know if Qatar imposes the death penalty for sodomy and it's reasonable to assume that Qatar's morals police will be asked to relax their enforcement during the tournament. But what's going on here is not soccer expanding its audience into a new region; it's shining a spotlight on the shortcomings of the nations in question.

Now, Qatar beat out other nations, most notably including the United States, for hosting the Cup. I hate being a sore loser about that despite the fact that our bid was clearly superior to Qatar's, but here's the fact: gay soccer fans from around the world, you're obviously not welcome in Qatar. But you (and your money) are welcome here in the USA! Please plan on coming in 2022. You'll find plenty of friendly fellow soccer fans here,* some great places to eat, and lots of fun things to do in between games. Your money is welcome here; if you're over 21 years of age, you can have a beer or wine or a cocktail if you feel like it; and unlike your would-be Qatari hosts, our law enforcement authorities don't care what you do behind closed doors with other consenting adults.

* Yes, we call football "soccer," which is what the English used to call it. We have our own kind of football, too, which if you learn a thing or two about it, you might enjoy. Some Brits, however, think of themselves as very clever for claiming that our sport should be called "hand egg." They are incorrect.

Wisdom From The Founders

2010-12-14T03:53:00.000-08:00

Thanks to American Creation, we can credit a holiday recipe for eggnog to George Washington himself:

One quart cream, one quart milk, one dozen tablespoons sugar, one pint brandy, 1/2 pint rye whiskey, 1/2 pint Jamaica rum, 1/4 pint sherry—mix liquor first, then separate yolks and whites of eggs, add sugar to beaten yolks, mix well. Add milk and cream, slowly beating. Beat whites of eggs until stiff and fold slowly into mixture. Let set in cool place for several days. Taste frequently.

Sounds rich, Mr. President. And intensely alcoholic; by volume this eggnog is more than one-third booze. Not that those are bad things. My only criticism is that it looks like it lacks spice; a little cinnamon, ginger, and nutmeg would do it good.

This Is Why Textualism Is Better

2010-12-14T03:50:00.000-08:00

Original intent is not a great primary approach to Constitutional interpretation. When you have a Justice of the Supreme Court seriously arguing that the Framers somehow didn't mean it when they amended the Constitution to guarantee individual rights and therefore we can, apparently, simply disregard the words they used, you're too far down the rabbit hole. Discerning original intent is very hard to discern from the historical record, and sometimes even counterproductive -- a look at how Title VII came to include women as a protected class is a good example of that.

You start with the words of the law. You understand what those words mean. If that's still not clear, then original intent is one thing you look to in order to flesh out ambiguities -- you also try to understand the policy objectives, the relationship of the government to the individual, and the goal of maximizing personal liberty.

Besides, I kind of think that Madison did mean it when he introduced and advocated for the Second Amendment. Justice Breyer's mistake is suggesting that Madison was of one mind on the issue; Madison, like everyone else, suffered from intellectual inconsistencies, blind spots in his thinking caused by his personal preferences clashing with his overarching philosophy, and was even capable of changing his mind or accepting compromises when the situation warranted it. Rare indeed is the person whose views do not evolve over time and Madison, who was first and foremost a politician, had a more supple ideology than he is widely given credit for.

Someone Would Have Greenlit This

2010-12-14T03:37:00.000-08:00

In a world where television series inspire movies...

Movies can inspire a TV series!

Thing is, I have no doubt that were Desmond Llewelyn still alive, someone would have pitched this by now. Indeed, it's only the dark, serious reboot of the James Bond franchise (and hopefully John Cleese's good taste) that is stopping it from happening right now.

Moral Vigilantes

2010-12-14T03:35:00.000-08:00

This is what happens when a society succumbs to the pressure of fanatic religious moralism to the point that the ethic of minding your own business is discarded. Granted, Indonesia does not have a profound cultural or political tradition of privacy. But what we see here is a case of a religious majority imposing its ethics on those who do not share their beliefs -- and it is violent, cruel, and harmful to the society's economic and political growth. We should remember that in a free society, moral repugnance is not a good enough reason to outlaw something.

Why I Hate Wrong Numbers

2010-12-13T21:33:00.000-08:00

The Wife goes to sleep pretty early most nights -- generally before 8:00.

Often, when she or someone else calls me on my cell phone, I can't hear it, so I turn the volume up as loud as it will go. Only The Wife has a special ringtone; everyone else rings in with the Miami Vice theme because I think it's a cool piece of music and it seems to induce smiles in people of my generation.

I try, as hard as I can, to remember to silence the phone at night when I put the it away to charge up. But I'm not perfect and forget to do this sometimes. And of course, only on the nights when I forget to do this does someone misdial the phone and call me at 9:00. So then I have to leap out of my chair and spill the computer dangerously on the floor, go running for the phone, and try to silence it as soon as I can.

Of course I never get there in time to prevent The Wife from waking up and asking me if I hate her. And then I feel guilty the rest of the night. Because someone I don't know dialed a wrong number.

Hudson On Healthcare

2010-12-13T21:19:00.000-08:00

U.S. District Judge Henry E. Hudson of the Eastern District of Virginia has found that the "individual mandate" portion of the healthcare reform act is unconstitutional. His is sure to not be the last word on this issue. What makes it interesting is the grounds -- not buying health insurance is not interstate commerce and therefore beyond the ability of Congress to regulate under the Commerce Clause.

To my knowledge, only two other kinds of human activity have been found to not be interstate commerce in the modern era. Those things are 1) a high school student carrying a concealed pistol while at school, absent specific Congressional findings about the effect on commerce of such activity (United States v. Lopez (1995) 514 U.S. 549) , and 2) a Federal civil lawsuit for nonconsensual sexual contact (United States v. Morrison (2000) 529 U.S. 598). Note that the state court grand jury found insufficient evidence to authorize a charge of rape in Morrison, denying us the ability to describe what sounds like "rape" with that word. More importantly, note how these two kinds of activities are criminal and indeed likely violent in nature.

Compare this to growing and eating wheat rather than selling it under a comprehensive scheme of economic regulation (Wickard v. Filburn (1942) 317 U.S. 111) and smoking marijuana given away for free for medicinal purposes (Gonzales v. Raich (2005) 545 U.S. 1), which the Court has ruled do affect interstate commerce, under the "aggregation theory" -- the idea be being that while an individual transaction has no perceptible economic effect on commerce, if everyone did it, there would be a significant effect on commerce.

As between these four seminal cases, I would have thought that not buying health insurance in the 2010's was most similar to not selling wheat in the 1930's. But Judge Hudson's key reasoning is this:

The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. Gonzales, 545 U.S. at 22, 125 S.Ct. at 2209. This even extends to noneconomic activity closely connected to the intended market. Hoffman v. Hunt, 125 F.3d 575, 587-88 (4th Cir. 1997). But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.⁷ In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

Slip op. at 23-24. By Judge Hudson's logic, then, noneconomic activity closely connected to the intended market, triggered by some sort of self-initiated action on the part of the person thus regulated, is a valid thing for Congress to regulate -- which would seem to suggest that taking a gun to school ought to be within Congress' powers to regulate. There is little doubt that Lopez "self-initiated" bringing his gun to school and there seems little doubt that if a teacher is thus deterred from going to school for fear of being shot by Lopez, there is an economic effect (the teacher isn't paid) which if repeated and aggregated over a large pool of people, would drag on the economy.

What's more, footnote 7 in the opinion reads: “The collective effect of an aggregate of such inactivity still falls short of the constitutional mark.” Here, I just can't see where Judge Hudson is coming from. The larger the pool of insured in an insurance market, the more diluted individual risks become and thus the amount of premium per policyholder needed to cover claims decreases. If large numbers of people voluntarily abstain from purchasing a particular kind of insurance, the premium per policyholder rises. This is not a hugely complex concept -- and even if it is ultimately proven incorrect, Congress is clearly within its discretion and authority to be thus incorrect because the idea is not so far out of left field as to be "irrational."

As an alternative, the Government argued that the individual mandate is enforced by a "penalty" that should be considered a "tax," but Judge Hudson looked at the exact meaning of those phrases -- a "penalty" is levied in response to an unlawful act or omission, while a "tax" is a burden imposed to generate revenue for the government -- and concluded from legislative history, legislative text, and political statements of both Congressional leaders and the White House that the claim that this enforcement mechanism is a "tax" is a "transparent afterthought" and therefore not to be credited. It is a penalty, according to the Court, a penalty designed to punish conduct deemed undesirable by Congress, viz., not buying health insurance -- and since the conduct deemed undesirable is not itself something that Congress can regulate, Congress lacks power to impose a penalty for it. This portion of the reasoning seems sound to me.

As I noted above, this is not the end of the road for the individual mandate provision of the healthcare reform act. It does demonstrate that the idea that the law exceeds Federal power is not a crazy one, it is persuasive and serious and should be carefully weighed. To damn modern commerce clause jurisprudence as "unprincipled" is only to say that it is like much other Constitutional jurisprudence, in that much depends on the policy desirability of the law, the political mood at the time of the decision, and the general philosophical cast of the nine Justices who eventually and inevitably will render a final decision.

I don't particularly want the individual mandate to be Constitutional. And I'm pleased that the bench is taking seriously the notion that there are Constitutional limits on Congress' powers. But I have a hard time squaring Judge Hudson's reasoning with the outstanding jurisprudence. Unless there is going to be a new contour in Commerce Clause jurisprudence written in by this case, I would have ruled that this was near the limits of, but still within, Congress' Commerce power.

One Game Of Pictionary

2010-12-13T20:14:00.000-08:00

One game of Pictionary is all it took to remind me that my head is so full of esoteric, strange, random knowledge and/or trivia that it can be difficult at times to communicate with others who have more mainstream sorts of daily activities. I need that sort of grounding from time to time because the critical skill for my work is explaining esoteric, strange, sometimes counter-intuitive concepts to people who think in the mainstream nearly all of the time. Fortunately, this reminder can sometimes be delivered in a safe, humorous environment, by friends and a lovely Wife who mean well. May all of your course corrections come in such a way, Readers!

Tuition Riots

2010-12-09T18:46:00.000-08:00

I suppose in one sense, it's inspiring that people are willing to protest tuition hikes in the UK; it suggests that access to higher education is important to people. I'm not real sure what rioting around Prince Charles' car is going to do that's productive, though. It's also a bit disappointing that Winston Churchill's statue in Parliament Square was vandalized. Neither the Prince nor Sir Winston are in any way at fault for an unpopular vote by Parliament and troubled financial times do call for difficult fiscal measures. Lighting the Christmas tree in Traflagar Square on fire sounds downright dangerous.

I'd had no idea that university tuition in the UK was so low -- according to the BBC article, it's being trebled to an "upper limit of £9,000 a year." At current exchange rates, that's about $14,200 -- which isn't all that much more than public universities charge here in the U.S. Consider resident tuition at UCLA: next year, California residents will pay $12,690 in tuition, fees, and mandatory mandatory enrollment in the UC health plan. No one is rioting about paying the equivalent of just over £8,000 a year here to go to one of the nation's premier public universities.

So does this mean that the rioters are a bunch of yobs, whining about nothing and scaring the thoroughly innocent Camilla the Duchess of Cornwall and Rothesay for something beyond her control? Well, yes to the second half of that, but education is important and providing it at a reasonable cost is important. Violence doesn't seem like a good way to solve the problem, though.

Sequel

2010-12-09T15:10:00.001-08:00

This Is Why You Got A "C"

2010-12-09T13:51:00.000-08:00

Professor Mondo explains it all. Oh, how I wish I could actually be so honest as he.

Caesar Salad

2010-12-09T07:11:00.000-08:00

When you really want your umami, there's no substitute for this.

2 heads romaine lettuce, limp outer leaves removed
1/3 cup Parmigiano-Reggiano cheese
1/3 virgin olive oil (or extra virgin olive oil)
1 egg
1 tsp. Worcestershire sauce
3 tbsp. lemon juice
1 large clove garlic
½ tsp. pepper
4 anchovies
1 tsp. capers
1 tsp. brown mustard seed
a pinch of sea salt

Step 1: Coddle the egg
Bring a small saucepot of water to a rolling boil. Immerse the egg in the water for 45 seconds, holding it in a slotted spoon. Place the egg in the refrigerator until ready for use.

Step 2: Assemble the dry spice base
In mortar and pestle, grind the pepper and mustard. Thoroughly crush the garlic clove under the flat of a knife. Add salt, pepper, and crushed garlic to mustard powder.

Step 3: Prepare the liquid ingredients
Finely dice the anchovies and capers. In mixing bowl, combine the lemon juice, Worcestershire sauce, diced anchovy, and diced caper. Mix well. Separate the yolk out from the coddled egg. Thoroughly mix all liquid ingredients until smooth using a wire or silicone whisk, then whisk in dry spice base.

Step 4: Whisk!
Very slowly -- about an ounce at a time -- pour in the olive oil. Whisk continuously while the oil is poured in until it combines before adding more oil. Ideally, the pour of oil is very slow and continuous during vigorous whisking. After all the olive oil is added to the dressing, then whisk in grated cheese.

Step 5: Adorn
Chop the lettuce into medium-sized chunks, separating out the cores. Drizzle the dressing on the lettuce and toss. If desired, shave additional cheese or add additional whole anchovies to dressed salad.

Coddling the egg first produces a creamier, better-mixed dressing than a raw egg yolk. You will not use the albumen of the coddled egg but may retain it for use in some other dish (say, a quiche or a pie) if you wish; refrigerate it promptly.

If the idea of eating an anchovy repels you as it does many Americans, my first reaction is, "get over it," because what most people dislike about anchovies is their texture, and you should be chopping these little fishies almost into a paste. But if that is not enough to induce you to deal with the mere presence of the delicious fish, then you can swap out more capers for the anchovies. Doing so renders the salad truly vegetarian. I know of no substitute for Parmigiano-Reggiano which would then render the salad vegan -- and I can tell you that tofu won't do it because it's mainly protein and the cheese has a high fat content.

The original Caesar salad was invented by Caesar Cardini, a famous Italian immigrant who became a restaurateur in California during the early days of Hollywood. Cardini moved his restaurants from Los Angeles and San Diego to Tijuana, Mexico during prohibition, and the Cardini's restaurants, featuring Cardini's signature salad, became one of Tijuana's high-end tourist attractions during this time. His waiters would develop an elaborate show of making the dressing while telling jokes or describing their activities, particularly while pouring in the oil into the mixing bowl from a great height with one hand and whisking with the other. When you make the original Caesar salad as I've described here, you're re-creating a bit of Hollywood's golden age in addition to making a much, much better dressing for your salad than anything you could possibly buy in a bottle.

Did You Notice This

2010-12-08T11:34:00.001-08:00

Crude oil is going for $90 a barrel. Remember in 2008 when it topped $100 a barrel and 89-octane unleaded cost over four dollars a gallon? Yeah, that looks like it's about to happen again.

Happy Holidays!

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A Better Way Of Life In The World Of Tomorrow

2010-12-08T07:29:00.000-08:00

From How To Be A Retronaut, a Disney movie from 1958, The Magic Highway:

It's now more than fifty years since the animated film here. It was broadcast on a television program; I can't find evidence as to whether it was shown at Disney Land in an exhibit at Tommorowland or not.

A couple of things stand out for me. Perhaps the most interesting thing is the style of the art in the movie; the stylized images and the music still retain their distinctive style. I rather enjoy those. I probably wouldn't listen to the jazzy orchestral music for recreation, but in context, it's perfect.

To be sure, some of the ideas in the movie seem silly with the benefit of hindsight; the idea of atomic-powered cars now seems risible in its irresponsibility. But of course the point of the movie was not to say what would happen but rather to generate wide-eyed wonder at what could happen. The movie is about possibilities.

And some of them are still good ideas -- the unified emergency-response vehicle, combining police, paramedic, and vehicular cleanup and repair services would still be a good idea today. Especially if it could fly over traffic, although I'm not going to be the be first or last person to (facetiously) whine that Disney promised us flying cars by the 21st century and we still don't have them.

It's relatively uninteresting to me that most of the movie's fanciful predictions haven't come true. Of course they haven't and I doubt that the producers of the movie would have believed that even a quarter of what they were illustrating would ever become reality even at the time they were making it. Predicting the future is highly speculative.

What is interesting, though, is what the movie reveals about the ethics of its makers, abut the ethics of the late 1950's when they made the movie. The most profound expression of values that comes out of the movie is faith in the ability of technology to endlessly improve the quality of life. Better highways, better cars to travel on them, and perhaps most of all the panacea of television, will make us all richer, give us all more leisure time, and literally lead to world peace.

The second thing that stands out for me is the utter disregard for economic limits and environmental degradation. The idea that preserving the natural beauty of all the canyons, mountains, cliffs, seashores, and open spaces is something that possesses value never even entered the brains of anyone involved in the project. It doesn't matter what the mountain looks like with a tubular highway running across it at improbable angles, since the only time anyone is going to look at the mountain will be from their super-cars within the highway in the first place. And despite the expansion of core cities into "vast urban spaces," there is no thought at all that there is only so much space left over for the agricultural areas that will be needed to generate the food which all these people will eat.

And third, social roles remain totally unchanged from the late 1950's. Notice that Father goes to work and is apparently the sole breadwinner for the family providing all the income necessary for an affluent and comfortable lifestyle. Meanwhile, Mother takes care of the son and goes shopping; her primary jobs are childrearing and homemaking. Notice that Father is the one who "drives," meaning he's the one who programs the car to do what its sophisticated electronics will do. Notice that Father sits up front while Mother and children enjoy the leisure activities available in the remainder of the vehicle, Father joins them except when driving duties take over.

The threshold of 2011 is a very different world than what the producers of this film envisioned in 1958 (of course). But the most important differences between then and now are not the technological ones. The advance of time has changed the way we think, and the gee-whiz factor of the technology we do have -- which would have seemed as miraculous to the residents of 1958 as the miracles in the movie -- is the result of both the real scientific and technological advances between then and now, more importantly the product of the kinds of tools we demand to do the things that are really important to us, and most importantly a function of the kinds of limits and challenges that we actually face.

The naïveté of the movie is not in its gee-whiz vision of super-cars, magic highways, and benevolently omnipresent televisions. While those are charming, the real lesson here is that economics drives innovation, and not just technological innovations but also in the way we think, in our ethics and social arrangements and the areas in which we choose to place effort to innovate further. It is in the assumption that technology would eliminate functionally all the economic limits of life. If that prediction of the movie had come true, its prediction that social roles would freeze to be what they had been in 1958 might also have been accurate.

The Tax Compromise

2010-12-07T19:48:00.000-08:00

Greg Sargent has an interesting observation about yesterday and today's political developments:

Obama's strategy going forward will be to position himself as Washington's lone resident adult in a town full of squabbling children on right and left ... Obama was as visibly frustrated and angry as he's perhaps ever been in public, and some folks are pointing out on Twitter that he seems more angry with the left than he is with Republicans. In fairness to Obama, though, he directed harsher rhetoric at Republicans, implicitly comparing them to hostage takers at one point ...

Wow. He compared the Republicans to hostage takers but was even more mad with the Democrats? If I really believed that Obama were the lone adult in a town full of squabbling children in both camps, I might like him more. But part of being an adult means demonstrating leadership. The compromise was made for the sake of compromise, for the sake of resolving a dispute that was raised strictly for the purposes of raising a dispute.

After all, the part of the deal that Obama got in return was a 13-month extension of unemployment benefits. We can argue about whether that was a good idea or not. But the result is lower taxes and more spending, which is just what both parties really wanted all along. All the angst about Obama betraying his base, about the Republicans putting one over on him, is silly -- this is what everyone in the Statist Party really wanted.

Remember, it's spending, not revenue, that is driving the deficit. The lower taxes aggravate the situation, but the deal delays entitlement reform for more than a year, and without looking at entitlement reform, no substantive deal can be made about spending. The reality of what we get with this deal is more of the same from big-government budget-busting Democrats compromising with big-government budget-busting Republicans about how the big government is going to bust its budget.

So while I like the face of the strategy of Obama being the adult who understands that compromise is a part of governance (yes, it is) the compromise this deal represents isn't much of a compromise at all. I'm unimpressed with everyone involved. This is pretty much what Congress would have done left to its own devices anyway.

Which makes sense -- we don't have a President providing leadership through this fiscal crisis, we have a Prime Minister.

Julian Assange, Beta-Male Writ Large

2010-12-07T07:51:00.000-08:00

In law, we make an exception to he hearsay rule for "dying declarations." The idea is that when someone is conscious of their own impending death, they attach special importance to the things they say, so that we may rely upon the truth of what is said.

One of the authors working today whom I admire the most is Christopher Hitchens. Hitchens is dying of esophogeal cancer. It sounds icky and awful. Hitch looks worse than he ever did even when on a bender.

But the thing about Hitch is that he will not go quietly into his good night. He is writing, speaking, communicating, at the same furious pace he did before he fell ill, and is not only candid about the effects of the disease which will inevitably fell him, but candid about the world around him. His legacy will be that he is The Man Who Told Us The Truth. And here is a particularly vicious yet satisfying truth from Hitch.

All you need to know about Assange is contained in the profile of him by the great John F. Burns and in his shockingly thuggish response to it. The man is plainly a micro-megalomaniac with few if any scruples and an undisguised agenda. As I wrote before, when he says that his aim is "to end two wars," one knows at once what he means by the "ending." In his fantasies he is probably some kind of guerrilla warrior, but in the real world he is a middle man and peddler who resents the civilization that nurtured him.

Assange is no hero. He is something very close to an anarchist, someone who believes that the U.S. government is a force for unmitigated evil in the world and which requires secrecy to operate effectively. Assange is wrong on both counts. The U.S. government is a force for great good.

Yes, it is periodically guided by imperfect people who lose sight of their objectives, and it employs imperfect people who sometimes are willing to cut moral corners to achieve their objectives. It is too often corrupted by money, it is periodically steered by stupid policies motivated by cynical political gain, and it is an evolved mishmash of those bad policies and periodic attempts to reform them. But at the end of the day, it is a government that follows the direction and the will of a large, empowered citizenry made up of fundamentally decent and good people, people who want to work hard and be left alone, a people who want to see the world around them become peaceful, wealthy, and democratic not only because that is in their own best economic interests but because it's the best way to be.

Assange can't see that, for some reason, perhaps because he's too busy reading the mythology he's written about himself. His attitude towards Western governments, particularly but not exclusively the U.S. government, is kind of like seeing a very pretty girl who has a small flaw (say, a gap between her front teeth). Because she isn't perfect, he turns up his nose at her and treats her with scorn, classic Beta behavior.

What's more, the U.S. government is one of leakiest in world history and becoming more so every day. It's operated in an atmosphere of very spotty secrecy for most of its existence because of our First Amendment, the same fundamental part of our government which would protect Assange even as he sneers at it; a protection we would extend to him not because of any love for the man but rather because it is a part of our own morals and ideals. That First Amendment has created a healthy and free press, it has created a culture of openness and disclosure and truth, it forces our government to do what it does out in the full light of day for everyone to see. Wikileaks is a flashlight shone in the eyes of someone trying to operate in broad daylight. The recent diplomatic leaks are no different -- they disclose nothing of interest that was not known already. From a macro-perspective, it is an inconvenience, nothing more.

Assange's delicate ego is seen in a question-and-answer session he did with The Guardian. He responded to a bunch of questions that described him as a heroic figure and Wikileaks as a noble cause, but when someone raised an issue of potential harm that might come about because of its activities, he simply dismissed and did not answer the question:

JAnthony

Julian, I am a former British diplomat. In the course of my former duties I helped to coordinate multilateral action against a brutal regime in the Balkans, impose sanctions on a renegade state threatening ethnic cleansing, and negotiate a debt relief programme for an impoverished nation. None of this would have been possible without the security and secrecy of diplomatic correspondence, and the protection of that correspondence from publication under the laws of the UK and many other liberal and democratic states. An embassy which cannot securely offer dvice or pass messages back to London is an embassy which cannot operate. Diplomacy cannot operate without discretion and the protection of sources. This applies to the UK and the UN as much as the US.

In publishing this massive volume of correspondence, Wikileaks is not highlighting specific cases of wrongdoing but undermining the entire process of diplomacy. If you can publish US cables then you can publish UK telegrams and UN emails.

My question to you is: why should we not hold you personally responsible when next an international crisis goes unresolved because diplomats cannot function.

Julian Assange:

If you trim the vast editorial letter to the singular question actually asked, I would be happy to give it my attention.

Contrast this question, which is critical in tone of Assange, to the rest of the questions in the published session, and you may get an idea of why Assange didn't want to answer it. JAnthony asked a legitimate question. Yes, he was a bit verbose about it, but Assange claimed the ability to have understood "the singular question actually asked" but nevertheless failed to answer it. He can dish it out, but he can't handle criticism at all. The exchange could have been phrased thus:

Q: Although you point to things that diplomats have done that are bad, diplomats also do good things like preventing wars, facilitating change in bad governments, and encouraging economic development. Diplomats need secrecy in which to operate effectively, whether for good or for ill. By taking that secrecy away, aren't you really destroying all diplomacy, not just the bad stuff?

A: I refuse to answer that question on the grounds that it tends to make me look bad.

Which is why his recent arrest and imminent deportation to Sweden is probably causing him to have an existential crisis which will be reconciled in his mind by the idea that he is really being prosecuted for his Wikileaks activity by the vindictive U.S. government using Sweden as a puppet. It couldn't possibly be that he did something wrong (albeit something that seems rather petty to most of the world) or that the reason he has been singled out for prosecution is the very notoriety he has so carefully cultivated about himself.

Point is, Assange isn't telling the truth for the sake of the truth. He is something close to an anarchist; he wants to see western governments destroyed because they sometimes do bad things and has blinded himself to both the good that they also do and to the inevitably worse consequences that would follow if his agenda were successful. He is not the man who is telling us the truth; he is the man who is exposing ugliness for the sake of making the world an uglier place, because he is so enraged and threatened by its mere imperfection.

Give me Christopher Hitchens over Julian Assange any day of the week.