February 27, 2010

Geopolitical Strategy of the Byzantine Empire

One of the most fascinating, if not the most fascinating, books I have ever read about the ancient world was a rehash of Edward N. Luttwak's Grand Strategy of the Roman Empire.  Most military historians find the ancient world of only limited utility -- the bravery of the Spartans at Thermopylae remains remarkable and it is interesting to demonstrate the utility of restricting the enemy's ability to maneuver, but the world of modern combat will have few cognates to that tactical situation.  Strategically, there are a few interesting lessons that are studied with interest -- Scipio's gamble to end the Second Punic War has many interesting parallels with the Inchon Landing of 1950, for interest.

But when we think about large-scale strategy and the intersection of military activities and politics, it is easy to act like the world began when the Seven Years War ended, because that war and the earlier conflicts of the European Reformation were dominated by religion rather than what we think of today as geopolitics or economics.  Which is complete nonsense.

So Professor Luttwak rightly points out that it is insufficient to admire Rome's military might -- Rome lasted as long as she did, and was as dominant as she was, not because she had the strongest or the bravest soldiers or because the legions had the best armor, weapons, and training.  To be sure, legionnaires were strong and brave, but so were their opponents -- and a study of Roman history can tempt one to flippantly note that for much of the history of Rome, the legions fought other Roman legions rather than foreign enemies of the empire.  (This would be an exaggeration, but perhaps not all that great of one.)  And certainly the two-javelin, gladius, large shield, and the solid curiass cuirass makes for a good balance between deadliness, mobility, and defensibility for the individual infantryman in a pre-gunpowder set-piece battle.  But it wasn't the only good balance; the Greek phalanxer and the Persian cataphract also rightly survive as examples of powerful and feared ways for ancients to have fought.  Legionnaires were never invulnerable and after about the year 250, both Roman military technology and tactics were well-known to Rome's adversaries from the Atlantic to the Euphrates.

Rome was as powerful and durable as she was not because her soldiers were necessarily better than anyone else's (although for a time, they were) or because Rome had enough money to field huge armies (although that didn't hurt, either); Luttwak argues that Rome won for as long as she did because she was smart about deploying her resources.  He makes the case that Rome went through three large-scale methods of arraying her military to address challenges from outside the empire.

First, during the Julio-Claudian era, she took a forward-aggressive posture -- taking war to the lands of potential enemies and conquering them either before or during the time that they could coalesce into regional powers strong enough to resist Rome.  In the one case of an enemy far enough away that Roman logistics could not support such efforts -- against the Parthians in what is today Iraq and Iran -- a form of detente sufficed to keep conflicts minimized.

About a century later, under the Antonines (think Marcus Aurelius), the empire turned in to Fortress Rome, with a lengthy and well-supported network of fortress cities near easily-defensible features like the Rhine, the Danube, and the Zabros mountain range.  Where such defense-assisting geography was absent, the Romans built what they needed from stone and concrete -- Hadrian's Wall at the northern frontier of Roman Britain being perhaps the most dramatic example of this.  The point was to concentrate the firepower at all available points of entry and make breaching the borders of the empire as expensive and bloody as possible, which did a remarkably good job of deterring and, when necessary, defeating those groups that would have taken land from the Caesars.

The final phase of Roman defense strategy is easy to condemn but in fact made a great deal of sense at the time -- as Roman infantry tactics and technology became disseminated throughout Europe and Asia, forcing a major battle to defend against invasion proved gradually more difficult and eventually impossible.  The crisis year of 271 precipitated the decision to reform the way Rome defended herself.  Internal threats of the two breakaway empires required wider dispersal of the troops through what had been the unarmed interior of the empire, and thus, the hardened shell around the empire had to change -- now the borderlands would be easier to initially enter, but the deeper one tried to penetrate towards the heartlands of Greece, Italy, and Gaul, the more resistance one would find.  Attrition of the enemy through strategic-level swarming of multiple smaller defensive units along the way.  This worked pretty well, until eventually it didn't -- not because the strategic doctrine was bad, but because the individual units eventually became underpowered and gave their loyalties to their immediate commanders and not the central government.

The point is, the Romans found a way to adapt their strategic assets to survive a lot of crises and dispose of a lot of existential threats.  They were smart and they had a relatively continuous and intelligent doctrine.  While it's difficult to find any individual writer, imperial or otherwise, who would have described contemporary events like Luttwak does today, the archeological and documentary evidence demonstrates that these three phases of Imperial strategy were pretty consistent regardless of the identity or capability of the Emperor theoretically in charge of it all.  This suggests that while Rome didn't have an equivalent of West Point or the War College, the various generals and high-tier ministers in charge of the nuts and bolts of defense and diplomacy got their heads together, took a realistic assessment of the threats they had to deal with, came up with good answers to the challenges they faced, and most importantly, trained their successors in how they went about doing it.

Anyway, by way of previewing his long-awaited follow-up to Grand Strategy of the Roman Empire, Professor Luttwak offers in Foreign Policy:  Take Me Back To Constantinople, in which he analyzes the military and diplomatic strategies of the Byzantine Empire.

Let's set one thing aside right here.  The Byzantine Empire was not the "successor" to the Roman Empire.  It was the Roman Empire.  We think of Rome as "falling" in 476 when the Emperor's "Master of the Horse," meaning the guy who ran the military for the child-Emperor of the West Romulus Augustulus, decided that things would pretty much work better if he were simply in charge and made lil' Romulus an offer he couldn't refuse -- either abdicate and accept a retirement in a luxurious country estate, or get a sword through his liver after watching the rest of his family get the same treatment.  So the "fall" of Rome was really a transition from the Roman system of government to a model more closely resembling an early medieval monarchy.  And in fact, the Kingdom of Odoacer was really not all that different than the Empire it displaced.

But Romulus was the Emperor of the West.  What about the East?  In fact, the cultural, economic, military, and political heart of the Roman Empire had been relocated to Byzantium, renamed and rebuilt as Constantinople, for over a hundred years, by the time of Odoacer's coup d'etat.  Constantinople, not Rome, had become caput mundi and the loss of Italy from direct Roman political command was, for the still-existing Roman Empire, actually more of an inconvenience than anything else.  The citizens of this Empire called themselves Rhomani, taught their children to quote Virgil (even if Greek was their first language), and were ruled by a line of emperors who traced their line of succession back to Julius Caesar.  Even in 1453, as the walls were falling to the cannon bombards of the Ottoman Turks, the Emperor himself plunged in to battle to lead his troops shouting lines from the Aeneid to inspire the soldiers to fight as hard as they could and, if the odds were overwhelming, to at least make a claim for glory.  (Chilling.)  And where the unified and later Western Empire cleverly deployed its military and political resources to survive through four centuries of daunting challenges, the Byzantines used their military and political resources to last ten centuries longer than their counterparts in the West -- resources which over time became relatively more limited as compared with what the larger empire could have supported.

The immediacy of the example should be obvious.  As challenges and circumstances change, so should a dominant power's manner of dealing with them.  Luttwak identifies seven principles to Byzantine geopolitical and military strategy, and suggests that the US could learn a few lessons from what they did.  Like the Byzantines, our military is very expensive relative to those of our adversaries; like the Byzantines, we hold technological mastery over our adversaries but we hold our blood and treasure much more dearly than they.  So the Byzantines adopted a pragmatic, play-them-against-one-another strategy, placing great value in maneuvers in both the diplomatic and military spheres to corner the enemy and only unleashed the full strength of its army (or navy) when the advantage could be certain.  Espionage and political subversion of rival states were primary weapons, and questions of "honor" about using tactics like these were not allowed to reach a point that they were allowed to keep the Empire from doing what it needed to do to survive.

Of course, in the end, it was exactly this reaching for a new ally to play off against yesterday's-ally-turned-today's-rival that planted the seeds of the blow which ended the Empire as a geopolitical power, which was inviting the Franks and the Holy Romans into a religiously-based alliance against the Seljuk Turks to recapture Byzantine holdings in Syria and Palestine, using the ostensible goal of recapturing lost Jerusalem as the goal to trigger the religious fervor of the Europeans.  Strategically and economically, Jerusalem itself was nearly irrelevant to the Byzantines, but its cultural cachet was useful.  Unfortunately, the Europeans didn't play along with the Byzantines and kept the reconquered lands for themselves, and eventually turned on their former allies in a highly questionable military, diplomatic, and ethical decision to sack Constantinople in 1204.  While eventually Byzantium recovered and recaptured the urban jewel in its crown, it was never the same after that and by 1453, Rome ended for real.

But that does not mean that we could not learn from the examples set by the Byzantines.  There is wisdom in the past, the lessons of history are there for all who have eyes with which to read and minds with which to think.  I'll look forward to Luttwak's follow-up book very much.

But I Don't Think Of Myself As Liberal!

And here I was today beginning to question the limits of my intelligence.  Not so fast. TL!

February 26, 2010

Well-Motivated Customer Service

Yesterday, I knew I'd have a long wait in court before my case was called, so I brought my Kindle with me to pass the time in the hallway.  Just as I was folding it up to go in to the courtroom, a guy walked past me, brushed up against me, and it fell to the ground.  Well, it wouldn't turn back on.  And there were these funny, faded horizontal lines coming from the midpoint of the bottom of the screen, and every time I pressed a button or tried to turn the thing on again, another pixel of the fading lines appeared.

When I called customer support, I had to get bounced through three people, but eventually found someone who knew something about how Kindles work, and he said "Nope, it's busted and you can't fix it.  Let me verify your address."

A sinking feeling set in at the pit of my gut.  "Wait!"  I said.  "I can't fix it?"

"Yep.  That's why I'm going to send you a replacement.  You'll have it tomorrow.  No charge."

"I...  I...  Wow!"  I confirmed my address and sure enough, the replacement Kindle came today, and it took me less than two minutes to log back on to the website and download the approximately fifty books and twenty magazines that I had on the old one.

So -- that's about 28 hours I had to do without my Kindle.  And if I'd really wanted to read something, I could have logged on to Kindle for PC and read it there in the meantime.  The replacement came to me free of charge, and I have a box to send back the old, busted product for Amazon to refurbish and re-sell later, also at no charge to me.  By the time I got home, I'd already had the thing charged up and now it's like the whole thing never happened.

What's sad about this is that this counts as an exceptionally good customer service story -- something rare and wonderful in its pleasantness, reasonability, and ease of use.  And that I was deathly afraid that Amazon's reaction would be, "Oh, too bad, so sad, customer mistakes are out of the warranty so you'll have to buy a replacement."  Indeed, that was my presumption, and the cause of the sick, sinking feeling I experienced when the tech guy said the Kindle couldn't be fixed.

Indeed, we can contrast this with my recent ordering of a replacement AC adapter for my laptop -- HP charged me an unreasonable amount of money for the spare part -- there's no way this thing costs eighty dollars.  Back when I had the Gateway Ultra-Heavy model, a replacement AC adapter for that cost three dollars.  I only agreed to pay the $80 demanded by HP because I want to make certain that whatever replacement I get will work.*  What's more, HP wanted to charge me an additional twenty dollars for next-day delivery.  Here is a company that just plain doesn't care whether I have a working computer or not.  They sold me the unit, and now they'd just as soon not support it -- and the misfortune of my cat deciding to use the power cord like the way the dogs use their chew toys is, for HP, an opportunity to earn more profit rather than an opportunity to generate goodwill.

Amazon treated me much better than HP did.

Now, you'll notice that Amazon has every financial reason in the world to want to do this.  The Kindle they sold me doesn't produce a revenue stream for them unless I'm using it and buying more books and getting more magazines.  So they want me to have a working device for the very good reason that a) I paid for it, and b) the more I use it, the more money they make.

But it's also a model for other companies to look at -- when you care about providing good service, when you care about making sure your customer has a working product they're happy with using, when you have to put your money where your mouth is in terms of keeping your customers happy, this is how customer service can work.

* I'm sure that there are plenty of tech-heads out there who will tell me that there were way cheaper ways I could have solved this problem.  I'm happy to hear them for next time, but I did what I did and it seemed like a reasonable thing to do, and most of all, I can't go back in time and change what I did.


This doesn't look quite like the movie about Hypatia of Alexandria that I would have made...
...but then again, it's impressive that a movie about Hypatia has been made at all. And that they had the very good sense to cast smouldering hottie Rachel Weisz in the lead. While Hypatia of Alexandria existed, it may be overreaching by the promoters to call this a "true story."

Given what looks like a rather overtly anti-Christian theme, I'd predict that this movie will have as much trouble finding a U.S. distributor as did CreationNo U.S distributor has been found yet, and it's not clear whether the movie made money in European release last year.
The historical reality was a good deal more complex and nuanced than what looks like they're depicting in the film, which I guess is okay for movie purposes but the reality of it was that Hypatia would have presided over what we would today call a university rather than a library, and its scholars were a mixture of pagans, Christians, Mithraists, and Jews. As were the people who destroyed it, a destruction that probably did not happen over the course of a few days or in a single violent riots.

They Was Jess Representin'

Hey, International Olympic Committee. 

Cut the Canadian Women's Hockey team a slackburger with cheese, huh?  They played a super-tough game against a really good U.S. squad and won the gold medal.  That's the top of the universe for women's hockey since there is no professional women's hockey league.  After the crowd went away, they went back on the ice and smoked some stogies and had a few brewskis.  Just like the boys do when they win.  Come on, IOC, look at the picture and tell me these women aren't providing the world a perfect representation of what Canada is all about

Okay, so sone of the women on the team was 18, maybe she had some beer, and drinking age in British Columbia is 19.  Let the police write her a ticket if they think it's worthwhile.  That's not your job.  Your job is to provide the world with interesting Olympic games.  But when the competition is over and the cameras are (mostly) away, that's for the athletes themselves to celebrate.  Let these women have a moment to bask in their victory.  They earned it -- they didn't even cheat this time

Congrats to the U.S. team, which played really well -- and taking a silver medal against the Canadians is no dishonor at all.

Self Affirming World Views

You are not immune to this.  Neither am I, neither is anyone.  Your cultural world view shades, often overtly and powerfully, what you think is real.  In other words, facts have ideologies.  But it's more than that.  Nudge-like, the manner and context in which information is presented will influence the way you rate a fact's ideology.  Particularly in the U.S., there are two dominant world views, with ill-defined but widely-intuited constellations of positions on issues, which are largely diametrically opposed to one another.  Depending on which camp you are in, this will tell you what is true and what is not.

Take global warming. If the policy proposal is limits on industrial growth or caps on carbon emissions, a conservative person is likely to suggest that anthropic global warming is an unlikely and unproven hypothesis.  But if the policy proposal is more nuclear power plants, that same person is likely to cite the risks of global warming as a serious issue.  The converse would be true for (some? most?) liberals.

How do you make decisions on their merits, then?  Well, that's the rub, isn't it!  You have to shed your ideology, remove yourself from party and tribe and personal prejudice.  And guess what, that's really difficult.  Some of your ideology comes from your education, which itself taught you how to reason and evaluate and make judgments.  You can't shed those skills.  So that means you also need to teach yourself how to separate fact from opinion, how to distinguish the objective from the normative.  At this point, we've reached a high enough level of abstraction, level of meta-analysis sophisticated enough that the vast majority of people are simply never going to bother to complete it.

Which means that if you are trying to get people to agree with you about something, you're going to have to do that meta-thinking for them. For politicians, lawyers, policy advocates, and anyone else who wants to simultaneously inform and persuade others, care and thought should be given to the manner of presentation and the way in which the proffered information will fit in to both likely constellations of opinions.

February 25, 2010

True Stumble

I've literally no idea how I found this story.  But it sent chills up my spine.

Norwegian Curling Pants

I want me some Norwegian curling pants,
'Cuz then I could go for the gold.
They got room to do the M.C. Hammer dance,
I got moves that never get old.

I love the argyle of white, blue, and red,
And fame from using a broom.
I'll let my ancestry go to my head,
And wear them from Oslo to Khartoum.*

With those pants, I could dress like a king
And no one would notice my mole.
The dry cleaner would always know they're my thing,
And my wife says they'd be great birth control.

* "Khartoum"?  Really?  You don't think you could have come up with a more artificial rhyme than that, TL?

Sending A Clear Signal

Via Bleakonomy, I see the deeply saddening and deeply disturbing case of Dr. Earl Bradley, a small-town pediatrician from suburban Delaware.  Dr. Bradley was arrested and has been formally accused of thirty-three counts of molestation of children, some of them very, very young.  The number of informal accusations will probably top a hundred by the time the case gets wrapped up. 

Dr. Bradley's M.O., according to the news report, involved getting the child into an examination room in the basement of his office building with no parents or other chaperones (read: witnesses) in attendance.  He would then allegedly rape the children and video himself doing it.  I assume that the prosecution is based on the authorities somehow getting hold of this video.  I can only assume further that Dr. Bradley's attorney has seen the videos.  There is no other explanation for this comment to ABC News:
It seems to me that we need to do a very rigorous exploration of his mental health and see if there's any pathology there ... This case kind of cries out for that kind of analysis.
I can think of one, and exactly one, reason why I might want to say something like that about my own client.  That reason, of course, is that I know good and damn well that I cannot possibly defend the case on the merits and I need to start steering for a diminished mental capacity (commonly known as "insanity") defense immediately.  The only other explanation for such a comment would be a colossal mistake on the part of the attorney because such a statement pretty much presumes that the actus reus is exactly what the prosecution says it is.

Actually, I hope that the defense attorney is right.  The idea that someone might do this sort of thing while not suffering from a profound mental defect is simply too terrifying to contemplate.

Antonin Scalia, Judicial Policymaker

There is a fourteen-day limit on the Miranda rule.  You didn't know that?  Neither did I, and neither did anyone else, not until this new interpretation of the case interpreting the Fifth Amendment got handed down with this fine piece of originalist, true-to-the-text Constitutional reasoning by none other than the King of Textual Literalism himself, Justice Antonin Scalia:
We think it appropriate to specify a period of time [after a suspect invokes his right to an attorney to allow police interrogation without the attorney present]. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.
From which clause, you may ask, does the arch-textualist Antonin Scalia derive this 14-day rule? None. None at all. He pulls the 14-day period straight out of his ass the air and bases it on his own assumptions, academic knowledge, and personal experience about what it's like to be arrested and interrogated by the police. (Did I just say "experience?" Hmm, bad word choice there, TL, it's quite unlikely that Justice Scalia has ever been under suspicion by the police for anything in his entire life.)

In any event, if within the 14 days the suspect's lawyer hasn't instructed him on Popehat Rule #1, the lawyer should nevertheless have required her client to watch this video and its sequel.

Here's the take-away, the real rule that you should bear in mind if you are ever involved in an investigation of a crime:

Don't talk to the police. Ever. About anything.

This rule applies even if you know for sure that you're absolutely innocent and the only thing you're going to say is 100% exculpatory and no sane person could possibly interpret anything you say as incriminating in any manner and that nice, polite, courteous cop assures you that he just wants to "clear your name" so he can move on and look for the "real criminal."

Why?  Nothing good* can possibly come of it.

You have a Constitutional right to not talk to the police. A right that you will benefit from exercising.

They'll have plenty of opportunity to gather other kinds of evidence to do their jobs without your assistance, don't you worry your pretty little head about that. A healthy distrust of those in positions of authority is a deeply American character trait, so don't be afraid to exercise your rights, especially this one.  That right is there, after all, to protect the innocent.

And it's pretty safe to assume that the passage of fourteen days after you've invoked your rights will not cause the police to suddenly change their attitude towards you or the way they do business.  So even if the Miranda rule does have a 14-day limit, Popehat Rule #1 does not.
* Nothing good for you, that is.

Hat tips to Orin Kerr, Web, and Ken.

February 24, 2010

The Beast Is Dying Of Starvation -- Now What?

Assemblywoman Diane Harkey (a Republican, representing southern Orange County) joins Democratic Attorney General and likely Gubernatorial nominee Jerry Brown in saying that the state is "bankrupt."  Which is about right -- we're missing a quarter of our anticipated state budget and between now and the end of the upcoming fiscal year, we have to come up with a combination of either new revenues or spending cuts that total $20,000,000,000.  That's twenty billion dollars.  And we've got a sixteen billion dollar bill coming due, this year, for healthcare premiums to be paid for retired state and municipal workers.

But, not so far, say Controller John Chiang and a spokesman for Treasurer Bill Lockyer.  Chiang says that should the state have to miss a debt service payment, it will seek judicial restructuring of its debt repayment plans.  Which would be, it seems to me, exactly what happens in a Chapter 11 bankruptcy.  And according to Lockyer's office, Harkey and Brown are guilty of causing a harmful panic by even talking about this:

You might score some political points by saying the state is bankrupt, but you're hurting taxpayers when you do that. We are not basically bankrupt ... When you have that kind of talk out there and it makes it into the papers, it poisons the market when you go to sell bonds.

Quoth Stephen Green, "Lockyer is worried California might have trouble borrowing its way out of its spending crisis." A pithy assessment of the proposed "solution" to this problem indeed.

Harkey and Brown are not just scoring political points.  Chiang doesn't like the word "bankruptcy" but that's what he's talking about as a functional matter.  And Lockyer is, well, living up to the sterling reputation for principled, intelligent governmental service that he built up for himself in the Assembly and the Attorney General's office.  Maybe Lockyer is a good lawyer and a good prosecutor; I wouldn't know, but there's a reason the Democrats are not looking to Lockyer as their guy for Governor this November.

Because Brown is right and Lockyer is wrong.  Harkey is right and Chiang is wrong.  The state is bankrupt.  The beast has been starved.  When obligations and debt outweigh available assets and cash flow this powerfully for a business, the decision is between Chapter 7 and Chapter 11.  For a state, as a realistic matter, Chapter 11 is the right way to go because the state has fundamental obligations under its own Constitution and under Federal law to continue providing a large number of services, and there is still an impressive cash flow.

And there is no equivalent of Chapter 7 bankruptcy for a state, something I made a bitter joke about nine months ago.  A state, once created, cannot be dissolved or altered as a sovereign political entity without not only its own consent but also an Act of Congress.  No such thing has ever happened in our history.  Such a thing happening now would kick all of California's problems off to Washington, and Washington doesn't want these problems, so there is no realistic way that Congress would agree to a proposal to place California in Federal receivership.

But someone needs to cut spending.  And it's going to sucksucksuck I mean megasuck, with good people losing their jobs and more good people taking painful cuts in pay, and all sorts of social services, including schools and prisons and courts, getting reduced in staffing and effectiveness.  I'm seeing it now in the courts as they prepare for the inevitable -- we're losing a judge up here at our local courthouse and come Monday, one in eight of the support staff (clerks, baliffs, courtroom attendants, and the rest) are going to be laid off.  Our income and sales taxes are already the highest in the nation, beating out even the traditionally heavy-footed governments of the New England states.  So there isn't much practical room for further taxation.

If the Legislature and the Governator can't or won't do it, the job of cutting state spending is going to eventually fall to a judge.  A judge who really, really doesn't want the job but will have to do it anyway, because judges, unlike elected politicians, have an obligation to actually resolve the issues that come before them.  I can confidently predict that in exchange for doing this job, the unlucky judge to whom this unenviable task falls will face the most profound political criticism any judicial officer has faced since Clarence Thomas first opened a can of Coca-Cola.  That's simply an unfair thing to do to an innocent judge, but that is what is looking to me like the inevitable means of resolution.

What that judge will do to earn this obloquy, though, is what the Legislature is too spineless to do on its own -- slash spending and demand that the California Constitution and a library full of laws containing spending mandates be re-written.  It will be profoundly undemocratic and it will open up political problems to solve for years afterwards.  And since we've populated the high ranks of our state government with invertebrates like Lockyer and Chiang, I don't see any realistic way to avoid it.

Enemies Who Deserve Each Other

OPEN SCENE:  Southaven, Mississippi.  An AGNOSTIC and the MAYOR are debating.
A:  Hey, when I go to court, I notice that the seats in the gallery are church pews!  Complete with crosses engraved in the side!  That makes me feel unwelcome in the court when I go to defend myself from a wrongful accusation of shoplifting!

M:  But we bought those pews from a church that closed, so we could provide seating in the court for the public cheaply.  No one ever mentions them and you're the first person in years who noticed them, and your religion or lack thereof has nothing to do with your guilt or innocence.

A:  Well so what?  I want to sue you for violating church and state separation if you don't remove the pews altogether!

M:  "I welcome the challenge ... Maybe it’s time the religious right stands up to the liberal left and says enough is enough. Where do you stop? Where’s the common sense? I’m not taking them out."

That last line is an actual quote, not a paraphrase.

The agnostic in this story is right in principle but wrong in approach.  To be sure, you shouldn't have to see religious symbology in a neutral court.  A court must not only be actually fair but labor to avoid even the appearance of impropriety.  Christian crosses on seats in the courtroom create the appearance of impropriety.

In the meantime, the mayor is wrong as to the law but right to resist the lawsuit.  A lawsuit is not the answer here, but the mayor's desire to preserve the crosses has blinded him to the real solution.  Which is this:  judicious application of a router on the sides of the pews, and about $500 worth of painted ceramics and glue to put the seal of the City of Southaven or that of the State of Mississippi in place of the crosses.  Now, suddenly, the pews become "benches" decorated with secular, governmentally-appropriate symbols to which there can be no objection.  No claim of church-state violation; the city continues to save money, and the court can get back to the serious business of deciding whether the agnostic was guilty of shoplifing from Wal-Mart or not.

See, we don't always need to go to court to solve our problems.  But when everyone digs their heels in and insists that they must be 100% right, easily-resolvable disputes become intractible lawsuits.  Same thing if people insist on turning everything they do into political theater.  Then, only the lawyers win.  Which is okay with me, I guess, but there are better global solutions available here.

Hat tip to Friendly Atheist.

Haughty Much, Mr. President?

I can't look at this picture of the President from today's Gray Lady without being struck by the utter disdain on his face.  It's deeply unflattering and plays right in to the right-wing narrative of Obama as an arrogant autocrat -- a narrative which contains a germ of truth but also a very healthy dose of exaggeration.

Maybe the photographer just caught him at a really bad moment.  But never let it be said again that the New York Times is unwilling to print an unflattering picture of Barack Obama.

February 23, 2010


Hat tip to Common Sense Atheism.

Turkish Democracy

One of the countries I keep a close eye on internationally is Turkey.  It's not just that there are plenty of predictions that Turkey will rise to global prominence over the course of this century, or that as one of the few NATO members (and possible EU members) that is primarily Muslim its existence is a powerful signal that the West is not engaged in a religious crusade.  Or that the political relationship between Turkey and my own nation is a murky, complicated stew of social tensions and affinities.  It's also that Turkey is a crossroads of visions for the future -- it straddles the competing impulses of secular liberalism and theocracy, and if it goes down the second of those roads, it will do so by democratic means.

So it's big news to hear that an alleged coup by the secularist military seems to have been suppressed with the simultaneous arrest of more than fifty top commanders of the Turkish military.  Obviously, these generals and admirals haven't had a chance to give their side of the story yet, and some of the claims are more than a little bit wild, like the one that they were planning to shoot down a Turkish jet and blame it on the Greeks to incite a war and thus seize power.  It's no secret, though, that the military would have preferred a more secularist government to take power; the current Prime Minister of Turkey is from an openly religious political party.

Seems to me that the best way to do that would be to win an election rather than stage a coup.  Which may be a factor in the decision to arrest these men -- the incumbents may be trying to discredit their opposition rather than out-argue them in the political arena. 

There has been some silly talk of military action in the political arena here, but it's been mostly fringe stuff and the promise of the political pendulum's incipient swing back to the right in this year's elections seems to have silenced that stuff.  That's because we are fundamentally committed to democracy in the U.S. and we hope that our allies, like Turkey, are too. 

It's interesting to note, though, that both sides of this dispute in Turkey will claim to have been acting in the interests of a democratic Turkey despite both being basically non-democratic in their thinking.  A religious party ultimately winds up advocating the adoption of theocratic rules and principles to underlie its lawmaking and bolster its claim to legitimacy.  But like the western Bible, the Koran is a fundamentally non-democratic document.  And of course the military is a fundamentally non-democratic institution.  "Democracy" may well be a gloss on the more abstract political idea of "legitimacy."

At the end of the day, though, Turkey must choose for itself a path for its future.  While it is not clear that Turkey can be integrated into the EU, the potential for that as a means to solidify Turkey's commitment to the west and the rule of law and democratic government and ultimately secular government is tremendous.  We should wish Turkey well in those efforts.  Along the way, Turkey will become enriched and the lives of ordinary Turkish people will improve, but the Turks' historical rivalry with Greece will need to be reduced to soccer matches and the occasional international lawsuit over control of Aegean islands used mostly for tourism.  Down that path is a Fukuyama-ist future of long-term economic prosperity highlighted mainly by rather dull trade disputes and political balancing of environmental protection against the expansion of industrial and service-sector economic growth, a world in which big decisions will be resolved by lawyers and businesspeople and but for language differences, Turkey looks a lot like the United States or France or Germany.

But there is another path, one that looks east of Ankara rather than west of Istanbul.  Down this road, Turkey cools and ultimately severs its military relationship with NATO and decides to go its own way economically outside of the EU.  Instead, it enters into a de facto but unannounced partnership with Iran and Russia to contain expanding U.S. power in the middle east, centered in a democratic Iraq and a democratizing Jordan, seeking to eclipse Saudi prominence in wealth and religious prestige, while using diplomacy to dance around the military power of Israel.  The ultimate goals in this path is to first become the open regional leader and then to lure Iraq out of the geopolitical orbit of the U.S. and create a coalition of nations between the Mediterranean and the Persian Gulf such that supported by this regional alliance, Turkey becomes not just a regional leader but a global power in its own right.  Down that path ultimately lies a significant war once this coalition sufficiently contains its back doors in Arabia, North Africa, and Persia, and looks to southeastern Europe as its final avenue of expansion.

February 22, 2010

On Misuse Of Powerpoint

If this isn't exactly right I don't know what else is. A good powerpoint presentation is the exact opposite of reading the slides out loud. Yet again and again I find myself in presentations where people do exactly that.  It's a reminder to me that Powerpoint, intended as an aid to presentations, is much more frequently used in what can seem like a conscious effort to obfuscate.

For instance, don't ever show anyone whose respect you want a slide that looks like the one to the left.  This is way too busy, way too much by way of graphics, and not nearly enough explanation to figure out what in the hell is going on.  A graphic image on a powerpoint slide should be simple, direct, pertinent, and not distracting.  And it should obey the Rule of Thirds -- the focus object within an image should take up about one-third of the total space being viewed; it should be centered along lines to which which the eye instinctively gravitates.  So give some thought to what, exactly, you want your audience to see because the combination of whatever it is that you're saying along with your visually sparse (and therefore beautiful) slide will drive that point home much more effectively than something so busy it causes retinal fatigue that will literally put your audience to sleep.

What's more, bad background and color choices can ensure that your audience is completely unable to read whatever it is that you wrote and intend to read out loud to them.  Take, for instance, the example to the right.  The varying cloud background might look pretty but when you're putting together a slide you need to be much more utilitarian than that -- the title of the slide is nearly invisible and the sentences are so long that they can't be useful for anything.  They certainly don't reinforce whatever point is being made by the presenter -- which, I presume, are the sentences themselves.

And, of course, while we're looking at crowded, unintelligible powerpoint slides, let's not forget that a really good way to make sure that your audience hasn't a f-ing clue what you're talking about is to offer them a slide that is so dense with fine-print text that they spend the entire time squinting at it trying to make out what's there and zero attention to what it is that you're saying.  Although I've picked two medical presentations slides, there is certainly no particular reason why lawyers, technies, stockbrokers, investment analysts, or anyone else could not fall into this trap -- it's another case of expertitis, in which one's expertise in a particular field becomes much greater than one's ability to communicate useful information about that expertise to someone who is not also an expert.

Don't be afraid of blank space.  Don't read your slides out loud; use them to underline a few key concepts and keep the focus on the speech you make.  The slides supplement the speech, not the other way around.

Hat tips for bad powerpoint slides to Tim's Blog, ThugMed, and Neurodiversity.  And of course to Dilbert for the comic.

Depressing Reality

The cover story from this month's Atlantic is deeply depressing.  And, I can tell you from my (comparatively) brief experience with unemployment, based on a very real psychological phenomenon.

Back after The Wife and I moved to Tennessee and discovered that what we'd thought was the promise of a good job was actually nothing but hospitality, it took a long time for me to find new work.  Not having productive work and not contributing much to the household led me to sink into a pretty deep funk, from which I had difficulty summoning the energy and hope to go out and take the necessary pro-active steps to get out from underneath our problems. 

And it took a toll on my marriage; The Wife and I had many more conflicts, and much more serious conflicts, than we had at any other point in our relationship either before or since.  We managed to stay together and get through our tough time, and now hopefully we have the roughest waters behind us.  At least, now I can have the optimism to seriously think such a thing even if the realist within me knows that there are no guarantees about anything important in this life other than that it will eventually end.  After many years together, I've never felt closer or more in love with my wife than I am now and I'm certain that both of us having productive careers and a sufficient level of material comfort is a factor in that.  But I remember what it was like when things went unexpectedly bad and how frustrating it was to feel like we were powerless to change them, so when I read in the Atlantic that prolonged unemployment can cause significant and lasting effects on family dynamics, it doesn't take much convincing at all to tell me that this is something real.

I'm also reminded of an old discussion from a few years ago at the firm.  One of the attorneys had read that there is a seventy to eighty year "long cycle" in economics, which the author of the book thought was approaching its end.  The end of the previous long cycle was the Great Depression beginning in 1929, and before it, the Crash of 1873, which led to a six-year depression and a wobbly economy for a twenty-five years after that, and the long cycle that at the time was thought to be coming to an end would have started a few years afterwards.  I sure hope we aren't re-creating 1873.  Re-creating 1929 would be bad enough.

Now, the bit in the Atlantic about how unemployment depresses one's future earning arc may be true for most but unless you're on a Biglaw career track, attorney incomes often rise and fall according to a set of rhythms within which simple employment longevity is often not a significant factor.  But that's more important in terms of setting long-term fiscal policy for the government than anything else; the marketplace will take care of consumers getting things like food and insurance even if incomes do not rise as much as they have for the previous generation.

What I'm saying is that it's right to take a close look at the social effects of extended periods of unemployment.  They're real and they will change our society whether we like it or not.

Mock Trial: The Next Generation

The kids -- lots of freshmen and sophomores -- did all right tonight.  Not great; they need to acquire some presence of mind, learn how to work without notes, and summon up the gumption to actually make objections.  But they got through their case-in-chief and were able to conduct effective cross-examinations.  So we're on our way.

Happiness is Found Money

Well, okay, "happiness" might be too strong a word for it, but it's certainly a surprising pleasure.  Now, how to deal with The Wife wanting to do one thing with it and me another.

February 21, 2010

How's The Weather Where You're At?

I mowed the lawn today.  It really needed it since the grass has grown quite long over the past several weeks.

I wore short sleeves and cargo pants when I did it.  I worked up a decent sweat, too.  It's been several hours since I finished and my feet are still unreasonably sore from it.  There were still autumn leaves on the ground, nearly all of which I vaporized with the lawn mower.  The back yard needs another round with the rake, though; the leaves were damper there and did not vanish into dust and fibers so nicely.

I got the job all done before the rain hit and The Wife and I had to make an appearance at a memorial service.  Where I was quite warm in a suit.

Eat your heart out, D.C.  But don't worry -- I'll get my comeuppance in a few weeks when I'm in Milwaukee.

February 19, 2010

Taking Avatar Way Too Seriously

Apparently, there are people who have become genuinely depressed that the real world is not more like the world depicted in the movie Avatar. They want to live in a world of pristine beauty with a simple way of life and to experience harmony with nature.

And then there's this:

I would like to think that the behavior in the video above is fiction, a scripted bit for some sketch comedy show on TV or the net. But like a Poe, it is actually somewhat difficult to tell whether I'm seeing a glimpse of reality or satire.

Nor do I think that a reminder that "It's only a movie" will do any good. What these folks are doing is projecting their desires and hopes, and those are real enough. Longing for a simple life and wishing to be surrounded by beauty are perfectly understandable things. What disturbs me is not that people would want that or even that they might engage in fantasy role-play based on it. It's off-putting, though, for people to describe suicidal ideation and insist that what is depicted in the movie is real.

For the record, the image of the noble savage who lived in harmony with nature is an idealized fiction. The reality of Native American life was that Native Americans deforested most of the Rocky Mountains and surrounding plateaus in what is today the southwestern United States, with ecological effects that last to this day; early Native Americans hunted their best available food and clothing source, the wooly mammoth, to extinction; and left to their own devices, native peoples like the Aztecs, Incas, and Anasazi urbanized and formed stratified, monetized, slave-based economies that included ritualized human sacrifice as a significant part of their social fabric. Which is not to say that they were worse than the Europeans who supplanted them, only to point out that what you are looking at in the movie is a fictional analogue to a vision of history that has intentionally had all of the unpleasant bits edited out from it in the name of "dramatic license." The real-life Native Americans were people just like us, no more and no less than human beings, with all of the same moral falliability and short-sightedness that goes along with being a human that people experience today and that they have always experienced for as long as there have been people.

And there is no way to connect oneself neurologically with a "tree of life" and acheive communion with an actual, physical, living god-who-is-also-the-entire-planet. Like it or not, you are human beings and you lack those nerve endings at the end of a tail that the entirely fictional Na'vi characters in Avatar had -- and which, by the way, they completely ignored when they had sex.  A signfiicant error in storytelling, if you ask me -- if such a thing existed, wouldn't that be the ultimate form of intimacy, the ultimate expression of love and interpersonal union?  But it's not what happened; instead, we got about fifteen seconds of PG-13 level heavy petting.  So let's not fool ourselves into thinking that the Na'vi represent an ideal society because they really dropped the ball there.

If you're among the number of people who have seen Avatar and think it depicts and idealized, better world, great.  I think that rather than sighing into your webcam about how you wish you could fly one of those pterodactyl-looking dealies while shooting arrows (note that the Na'vi practice chemical warfare in total violation of the Geneva conventions) you'd be better off finding some way to work to make the world that you actually live in become a better place in some way.

Oh, sure, go have fun painting yourself blue and practicing archery for some escapist recreation, if that's your idea of a good time.  But adults ought not to mistake fantasy for reality -- that's one of the very definitions of being an adult.

Hat tip to Stephen Green for the video.

February 18, 2010

Terrorism in Austin

It appears that a 53-year-old Texas man named Joseph A. Stack had some serious and perennial tax troubles and had come to greatly resent the government for pursuing him to pay back taxes (and interest and penalties).  If that were the end of the story, it would not be news.  Quite unfortunately, this is news, because of what happened next.

Stack's house was set afire either yesterday or today, and today he posted a suicide note on the internet that read: "Violence not only is the answer, it is the only answer ... Well, Mr. Big Brother IRS man, let’s try something different; take my pound of flesh and sleep well."  Then, someone who seems to have been Stack flew a small plane into a seven-story office building in Austin which houses the IRS.  There are many injuries but as of the time I write these words no fatalities and only one person unaccounted for (who may well have simply not been at work today for some reason).

Now, here's the thing -- excerpted from the Business Week story linked above:
Spokesmen for the Federal Bureau of Investigation and the Department of Homeland Security said that initial indications show no ties to organized terrorism.
"It does not appear to be terrorism," White House spokesman Robert Gibbs told reporters traveling with President Barack Obama on Air Force One today. The Department of Homeland Security "is looking at all angles," he said.
"It does not appear to be terrorism," Mr. Gibbs?  Really?  Flying a plane into an office building trying to kill employees of the U.S. government isn't terrorism?  So how exactly are we defining the term "terrorism" these days?

I presume here that Stack was the suicide pilot.  In quantitative terms like scale and effect, Stack's suicide attack has fallen far short of achieving what al-Qaeda's strike on September 11, 2001 did.  But qualitatively, I have a difficult time distinguishing this from 9/11.

Can a lone actor be a terrorist?  Of course.  One does not need to be supported by a large network of like-minded individuals to be a terorrist.

Can a person be a terrorist acting against his own government, his own nation?  To be sure.  Timothy McVeigh is reviled as a home-grown terorrist.  Anthony Padilla has been held by the U.S. government despite his U.S. citizenship.

Does a terrorist need to have some kind of an announced or discernable political objective?  Stack presumably had one -- to get the IRS to change the way it does business, to leave people like him alone lest its offices be attacked in this fashion again.  Or at least to revenge himself on the IRS, which he seemed to view as some sort of oppressor.  Stack thought that achieving this goal, a goal detrimental to the strength of the U.S. government, was something worth exchanging his life for.

Now, my heart goes out to the families of the injured, and to the family of Mr. Stack -- his family should not be penalized morally for a crime that they did not commit, and they did lose a loved one today and may well be homeless and in serious financial trouble on top of that. I hope people can see that without getting blinded by anger at Stack himself. It's easy, too, to understand how a guy in Stack's position could feel like he was at the end of his rope, particularly if you've been through tough financial times yourself. So that makes the attack in Austin today a deeply saddening event.

But it's also one that really brings home the point that attaching labels like "terrorism" or "criminal" to a particular act is a very subjective thing -- and one that winds up having not just nomenclature but philosophical, political, and legal consequences.  This incident, to me, illustrates how smoothly-graded the shading between "terrorist" and "criminal" really is.  Which is why we need to be on our guard against turning a blind eye to the government eschewing Constitutional safeguards.  Like, say, Mirandizing a suspect, or arraigning him after he is arrested.  It's also a reminder that threats come from within the country as well as from without.

Am I Just Phrasing The Concept Badly?

To call something an inherent good is to say, at some level, that an intellectual examination of a moral value has reached a stopping point.  But it is certainly possible to at least try to explain why something is held to be an inherent moral good.  One could argue in terms of consequence -- to give money to charity is morally good because it relieves another human being's suffering, and the lack of suffering is to be morally preferred to suffering.  Or one could argue in terms of reciprocal duty -- to give money to charity is morally good because were one to be in a position to have to rely on charity, one would prefer that others had made donations so that the charity could be effective.  Maybe I've picked a bad example here -- perhaps I should be examining why the lack of suffering is morally preferable to the presence of suffering, or why I should care about a hypothetical role-reversal situation.  But even so, you can get at least a shadow of an idea from these two explanations about why giving to charity is a moral good.

What's the point of that concept?  I've noticed that whenever I get into a discussion with an apologist, I am never, ever told that worshiping Jehovah is an inherently moral thing to do.  Nor will the apologist ever react to my contention that his or her claims are based on the idea that worship or belief are inherently morally good.  Instead, the apologist usually (at least to my impression) winds up tied in knots trying to explain why things which are obviously morally bad are, in fact, morally good so as to avoid the undesirable result of concluding that [pick one or more: Jehovah, Allah, Jesus, the Bible, religion, faith] are sometimes morally bad.

Am I just not expressing myself well?  Is the concept of "inherent moral worth of belief" too obscure or too abstract an idea?  Or has it just been a coincidence that dozens of apologists over the years have been so concerned about responding to other parts my arguments that they've let this one fly by?  That seems unlikely.

Well, I want to take on that point directly.  Believers -- do you contend that worship and/or belief, by itself and with all other factors of human behavior being equal, elevates the moral worth of the believer?  If so, can you offer up at least some idea of why that should be the case?

February 17, 2010

Don't Believe Everything You Read

Like that if you enroll at that for-profit online university, you'll be getting a beneficial and innovative education packed with quality learning and appropriately-qualified classmates, or that you'll have good luck getting employment in your field of study after you download the pdf of your sheepskin. 

My experience and The Wife's suggests that the contrary is probably the reality of the situation.  At least at the for-profit school where I teach now, I know that my students are already employed in the field where they will make their careers; they have a credible chance of advancing within already-established careers so I can feel better about taking their money.

And even if The Chronicle of Higher Education says glowing things about such institutions of "higher learning" which in practice seem to demonstrate remarkable aptitude for marketing and streamlining student loan applications, but only minimal ability to engage in student and faculty selectivity, claims that the degrees being thus sold still might not be true -- and there might be some hints of financial bias on the part of the Chronicle itself.

Hat tip to eric at Edge of the American West.

Christopher Maloney is a Cowardly Quack (UPDATED)

It's never a sign of the strength of your scientific idea when you have to resort to censorship to prevent criticism of it.  Which is the first clue that perhaps elderberries do not actually provide any material protection against the H1N1 virus, despite the spurious-sounding claims of a "naturopath" to the contrary.  If you want to claim that elderberries are effective against H1N1, great.  Go round up some pigs, set up a double-blind test, and publish your results in a medical journal -- the way a real scientist would do it.

More importantly, the bigger picture is that these dispensers of so-called "alternative medicine" consume money and resources that could better be spent on actual medicine, grounded in real science, and not inducing a false sense of confidence and well-being that conceals a real problem.  As a commenter on P.Z. Myers' blog inspiring the title of this post points out:
Naturopaths divert people from seeking proper medical attention. If that vague unease and intestinal distress you're feeling is cancer then the time you wasted taking herbal supplements just might mean your death. The anti-vaccine nonsense has killed or disabled how many children? Naturopaths are no better than homeopaths.
Which is exactly right.

While I hesitated to title the post as I did for fear of defaming this Maine naturopath responsible for that oddly-colored video linked above, in fact the contents of the title suggested by Prof. Myers are true.  Christopher Maloney misused the law to censor someone who had offered legitimate scientific criticism of his proposal, rather than to defend his claim on its merits, which makes him a coward.  And hHe sells woo instead of medicine, which makes him a quack.  And even if those are not objectively-verifiable facts, they are well within the scope of legitimate expression of opinion.  So I think I'm good here.  Sue me, dude.  I dare you.  And remember, you have to come to my forum to do it, so you probably ought to read this before you talk with the clerk of court.

UPDATE (complete with actual science goodness):  Maloney responded to Prof. Myers, which response is reprinted in full, here. Most of it is whining, but as to the scientific merits of his claim, he says:
In terms of poor maligned elderberry, the medline citation is "The H1N1 inhibition activities of the elderberry flavonoids compare favorably to the known anti-influenza activities of Oseltamivir (Tamiflu; 0.32 microM) and Amantadine (27 microM). (Phytochemistry. 2009 Jul;70(10):1255-61) While this is a test tube study only, please keep in mind that we had no vaccine and were at the peak of the pandemic here in Maine. I never suggested elderberry as a vaccination but as a possible home treatment for sick children.
Prof. Myers responds by pointing out that a single test-tube study is simply insufficient evidence for prescribing treatment regardless of the level of desparation; at most a single study "shows promise" for future kinds of treatment.  But there is some suggestion that a third party from South Carolina, and not Maloney, was the person who got the original critical blog pulled off the internet rather than Maloney himself, so for now, I'm striking out the references to the "cowardly" bit -- because it's not clear whether this person was Maloney himself, an agent or a proxy for Maloney, or was a true officious intermeddler.

Judicially-Enforced Indoctrination

Divorced couples use their children as pawns in power plays against one another all the time.  It's despicable.

Parents and adults of all sorts also believe that they have a religious duty to indoctrinate children into their weird religions, and that it is imperative that they do so before the child attains the age of reason and critical thinking skills.  And indeed, the Constitution of the United States gives them the right to do so, in possibly the only two substantive due process cases that social conservatives familiar with the law actually like, Pierce v. Society of Sisters (1925) 269 U.S. 510, and Meyer v. Nebraska (1923) 262 U.S. 390.  Now, as I've discovered in my own practice, the scope of the parental rights articulated in Pierce and Meyer are probably limited to a very close orbit around the facts of those particular cases.  But that doesn't mean that this substantive due process right doesn't come up.

Which is how we get results like this -- Catholic guy marries Jewish girl, ostensibly converts to Judaism, has baby with Jewish girl, then divorces her and reverts to Catholicism, and then he pours some water over the baby's head and mumbles a few ill-understood words, with the result that he faces charges of contempt of court because he used the child in an utterly meaningless ritual that she is far too young to even be able to remember much less understand, in violation of the wishes of the custodial mother who would prefer that the infant be used in different but equally meaningless rituals that she will still be far too young to even be able to remember much less understand.  A man could easily be going to go to jail for doing that and is presently under a court order to not expose the girl to any religion but the Jewish faith.

In The God Delusion, Richard Dawkins argues passionately that the indoctrination of children into religions before they are able to decide about the supernatural for themselves is a form of child abuse which people of morality ought to oppose.  I'm not entirely sure if I buy that, because whatever else we might say about indoctrinating children into religions, it is pretty clearly a well-intentioned act.  That doesn't necessarily mean that we should exonerate it morally, of course; it's not too hard to think of other things that parents do, or used to do, with the intent of benefiting or at least educating their children which we now think of as morally indefensible.  And I also do think that parents have a presumptive right to raise their children as they see fit and are presumptively the best judges of their childrens' best interests.  It should take a heavy burden to overcome that presumption.  Which, of course, is what the Constitutional cases I mentioned before are all about, and why whatever the merits of Dawkins' quite well-grounded idea that there are no "Christian children," just children of Christian parents, can't realistically ever be anything more than an intellectual exercise in this country.

If this seems like an uncomfortable concept to you, take a moment to imagine a bizarre cult.  One that advocates communion with spirits through the ritualized use of mind-altering drugs, the mutilation of children' genitals, and preaches the moral imperative of adhering to the literal translation of nonsense poetry from an age before gunpowder.  You'd probably think that raising children in that environment was dangerous.  You'd be right, too, because when you put nutty religious beliefs and children together, sometimes children dieI'm not just making this up -- religion kills children.  Of course, the ritualized use of mind-altering drugs, the mutilation of children' genitals, and preaching the moral imperative of adhering to the literal translation of nonsense poetry from an age before gunpowder are all things that one could attribute to any of a number of  flavors of Christianity, Judaism, or Islam.

So I look at a case like this one from Chicago, and I have to wonder about the just how worthy of respect concepts like a parent's Constitutional right to raise her child as she sees fit, the automatic assumption of respect and tolerance for religious beliefs, and the idea of governmental neutrality towards religions really are when they play out to their extremes like this.  Here, the little girl's primary custodial parent is her mother, who will indoctrinate the girl to be Jewish.  But her father hasn't lost his rights under Meyer and Pierce because of the divorce.  So I think the judge exceeded the Constitution in issuing her restraining order and will probably wind up jailing the father in violation of those Constitutional rights in a couple of weeks.

But here's the thing -- the little girl in this story is three years old.  The baptism ceremony can't possibly mean anything to her.  The court is not really addressing about the girl's religious beliefs here -- a three-year old doesn't have any religious beliefs; at most, she will parrot things she can't possibly understand in order to please whatever adult she is with.  What this case addresses is the right to brainwash the child into religion A or religion B.  After all, there is no objective reason to choose Judaism over Christianity.  They are equally fanciful mythologies.  And the court cannot favor one over the other.  Later in life, the girl is going to grow old enough to look at different religions and compare them on their merits.  But it's very difficult for someone to do that objectively when they have been brainwashed their whole lives into accepting as true the myths of whatever religion their parent chose to tell them were the right religion -- which is why the children of Christians tend to become Christian themselves, why the children of Jews tend to become Jews themselves, the children of Muslims tend to become Muslims themselves, and so on.

It is vexing indeed that a court should have to be tied up in these legal knots about how to soften a child's mind so that when she becomes an adult, her powers of reason will be handicapped in this fashion -- picking and choosing between religions, picking and choosing between parents who have equal rights as compared to one another.  It is intensely aggravating that the Constitution I am sworn to protect and uphold enshrines the right to do this to a child as a fundamental right, and both mother and father are to be condemned for their immature and unnecessary actions compelling the court to wade into these treacherous waters in the first place instead of behaving like the adults they are supposed to be.

Just think of all the resources that have been wasted on this.  Hours of the court's time that could have been spent handling other cases, forcing judges and law clerks to dig deep into complex, murky, and difficult Constitutional territory (and probably coming up with the wrong answer despite what I'm sure were their best efforts).  Thousands, possibly tens of thousands, of dollars on lawyers.  All the anger and anguish.  A man's freedom.  All over something that has no objective meaning and which the girl herself will barely remember.  (Although when she's old enough to find out about this, she'll be able to research the issue and no doubt be utterly humiliated.  Good job, mom and dad!)

Far better would have been a recognition on the part of everyone involved -- mom, dad, and judge -- that the girl is going to figure things out for herself one day anyway.  If dad thinks a particular ritual on a three-year old is important to do, and it doesn't hurt the girl to do the ritual, then so be it.  Where's the harm?  It doesn't really make her a Christian.  It doesn't make her any less Jewish.  It doesn't make Christianity true or Judaism true.  But it does expose some rather thorny facts, including the fact that the Constitution protects a parent's right to brainwash her child and honoring that right means sending a man to jail for harmlessly splashing some water on his own daughter's head.

Legal Xenophobia In Arizona

From Eugene Volokh, I see an interesting and highly questionable piece of legislation pending in Arizona:
A. A court shall not use, implement, refer to or incorporate A tenet of any body of religious sectarian law into any decision, finding or opinion as controlling or influential authority.

B. A court shall not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the United States and its territories in any decision, finding or opinion as either:

1. Controlling or influential authority.

2. Precedent or the foundation for any legal theory.

C. Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is null and void, is appealable error and is grounds for impeachment and removal from office.

D. This section applies to a federal court sitting in diversity jurisdiction.

E. This section does not apply to:

1. A statute or any case law developed in the United States and its territories that is based on Anglo-American legal tradition and principles on which the United States was founded.

2. A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article.

3. The recognition of a traditional marriage between a man and a woman as officiated by the clergy or a secular official of the matrimonial couple’s choice.

F. For the purposes of this section:

1. “Foreign Body” includes the United Nations and any agency thereunder, the European Union and any agency thereunder, an international judiciary, the International Monetary Fund, the Organization of Petroleum Exporting Countries, the World Bank and the Socialist International.

2. “Foreign Law” means any statute or body of case law developed in a country, jurisdiction or Foreign Body outside of the United States, whether or not the United States is a member of that body, unless properly ratified as a Treaty pursuant to the United States Constitution.

3. “Religious Sectarian Law” means any statute, tenet or body of law evolving within and binding a specific religious sect or tribe. Religious sectarian law includes Sharia Law, Canon Law, Halacha and Karma but does not include any law of the United States or the individual states based on Anglo American legal tradition and principles on which the United States was founded.

The sponsors of this legislation are, in my opinion, pointing their law at application of Sharia in judicial confirmation of arbitration agreements.  I've written about this issue before, as has Professor Volokh and his co-conspirator David Kopel.  The vast bulk of cases involving Sharia law enforced by U.S. courts deal with family law situations in which all the parties to the divorce are Muslim and all have agreed in advance to submit to Sharia law as a result of deep and heartfelt religious conviction. And of course, it is the mere fact that such people exist in the first place which motivates a bill such as this -- a motive that I will shorthand as "bigotry."  All of the rest of the cases found in this category involve international commercial disputes in which the parties have agreed to apply the law of a foreign nation in their contracts and the law of the nation thus selected incorporates Sharia.

The only other thing that I can imagine motivating a bill like this is a generalized fear based on a misunderstanding of the interest of certain jurists, most prominently Supreme Court Justice Anthony Kennedy, in looking to the laws of other nations for guidance when considering questions of U.S. law.  That fear is unfounded and I would challenge anyone who raises this as a serious concern to show me a case in which U.S. law was suborned to the law of some other nation absent either affirmation of that law through a treaty properly ratified by the Senate, or the effect of a choice-of-law clause in a private contract.  Neither of those situations can possibly represent an erosion of U.S. sovereignty because they all arise out of the voluntary choices made by private parties.

This leaves me wondering several things about this legislative proposal.

First, aren't they using a sledgehammer to swat a fly?  How many arbitration agreements with Sharia choice-of-law provisions are Arizona courts being asked to affirm every year?  This can't possibly be high on the list of problems pressing on the state of Arizona or even the civil justice system of Arizona's judiciary.  I looked around and a bunch of academics looked around and we found a handful of cases involving Sharia law confirmed by various courts out of the tens of thousands of cases decided every year.  We've got to be talking about a minute amount of lawsuits here -- and this law would have the tendency to increase, rather than decrease, the burden on trial courts because it would require a trial court to throw out a resolution of a dispute reached after private arbitration.

Second, and possibly fatally for the bill, doesn't this restrict the free exercise of religion?  The single largest religious denomination in Arizona is Roman Catholicism.  A devout Catholic might consider principles of Catholic Canon Law to be important for any number of legal issues.  For instance, whether or not Catholic Charlie and Catholic Cathy get a civil divorce might depend on whether or not Canon Law will permit a religious annulment of their marriage.  While I personally think that Canon Law is a remarkably silly thing to consider when deciding how to plan one's life, I also have to respect that others might feel differently and want to take this elaborate and well-developed  body of law and the ethical concepts incorporated in that body of law into account -- and to bind themselves to it for a higher good. 

Third, there are lots of Native Americans in Arizona and they have lengthy legal traditions and court systems of their own.  Would an Arizona state court be bound to reject decisions based on those bodies of law, too?  The definition of "Foreign Law" is, at best, ambiguous in that respect.  Certainly Navajo law has nothing to do with the "Anglo American legal tradition and principles on which the United States was founded" (more about that in a few moments).  But a significant number of Arizona's citizens have those laws as part of their own cultural traditions and there are special courts, chartered by the Federal government, that enforce provisions of those laws.

Fourth, what exactly is wrong with people privately agreeing on a set of rules to control their relationship and a court then enforcing those rules?  That is something I would call a "contract" and one would tend to think that the sort of legislator who is concerned about a state's court only enforcing U.S. law would recognize that the ability of people to make their own contracts is a bedrock principle of U.S. law.  Indeed, it's a good bet that these legislators were more than a little bit enthusiastic about the potential revival of the Privileges and Immunities Clause urged in the respondent's brief in McDonald v. Chicago -- the fundamental Privileges and Immunities freedom being the "freedom of contract" so roundly condemned by the Court's rejection of Lochner v. New York in West Coast Hotel v. Parrish (1937) 300 U.S. 379.

Fifth, if the concern is not about Shaira specifically but foreign law generally, the concern is founded in the fear that the reliance on foreign law represents an erosion of U.S. sovereignty.  But failure to allow parties to engage in choice-of-law clauses does restrict their ability to make contracts and do business -- and thus, potentially violates not only property rights but also treaties (like, say, NAFTA) that the U.S. has ratified.

Sixth, I really have got to look closely at what kinds of laws are and are not affected by this bill.  Section (E) of the bill contains three exceptions, each of which reveals something rather telling about the authors' ideas about what are good laws and bad laws for Arizona courts to endorse through the act of affirming private arbitration agreements.

The "Anglo American legal tradition and principles on which the United States was founded" are exempted from the condemned, impeachable laws.  But "Canon law" is not.  So the law of the Catholic church, which was certainly considered heavily in heavily Catholic colonies like Maryland before the Revolution, is not a part of the "Anglo American legal tradition and principles on which the United States was founded."  One wonders if Protestant takes on the legal procedures and principles set forth in the Bible are or are not within that body of "Anglo American legal tradition and principles on which the United States was founded." 

Then, I see that "A statute or any case law or legal principle that was inherited from Great Britain before the effective date of this article" is also exempt.  Certainly we would want a court enforcing contracts to be able to consider, for instance, Hadley v Baxendale (1854) 9 Exch. 341, possibly the most important case in Anglo-American law about the issue of consequential damages.  (The influence of this case is also an example of why Justice Kennedy's interest in foreign law as a guide is really nothing new at all.)  But Hadley is clearly not binding authority in any way and not a part of the legal legacy taken by U.S. courts from England -- U.S. law branched definitively from British law at some point between 1775 and 1787 when the U.S. became a sovereign nation.  Since then, British common law has not been a part of our legal tradition here in the States.  Influential, persuasive, and interesting, but not binding here. 

Finally (as to this point), the author of the legislation is perfectly happy to allow a judge to recognize "a traditional marriage between a man and a woman as officiated by the clergy or a secular official of the matrimonial couple’s choice" even if that marriage was conducted under the authority of another body of laws. Well, that's swell, but note that it is limited to "a traditional marriage."  Like, say, mother-son incest, pawning off your maid on your husband to deal with his incessant demands for sex, or a man and his eight wives, just like the Bible said.

Seventh, judges in Arizona are selected in a manner similar to that of California -- they are initially appointed by the Governor after going through a bar-and-bench screening process, and thereafter they must stand for election every four years.  If applying Sharia law (in the form of confirming an arbitration award) is really that unpopular, can't the political process be left to its own to sort that out?  And if Arizona's constitution and laws are anything like California's or Federal law, then there is no specific definition anywhere of what constitutes an "impeachable offense" anyway; the exact definition of phrases like "high crimes and misdemeanors" are left by the judiciary to be political questions.  They are also apparently subject to recall, just like any other elected official.  So this law is hardly necessary if what the authors want to do is actually remove judges from office for this reason.  They could just go ahead and do it right now.

But of course, the authors of this law don't actually want to remove any judges from office.  They want to engage in political theater.  And they also want to claim that they aren't being bigots when they do it, so that's why they have to dress it up in broad-sweeping, allegedly non-discriminatory language when they do it.  With the result that we have this complicated mishmash of restrictions on a judge's conduct over a ridiculously tiny number of cases of importance to no one but the private parties, threatening to erode the concept of an independent judiciary buffered from political pressure, and which makes a mockery of the Constitution along the way.

If these guys can't think of anything better to do with the time and money of the citizens of Arizona, I suggest that they recess and go home instead -- before they do any more harm than this.

Why The Tea Party Movement Is Doomed

Like it or not, the United States of America has a two-party political system.  Eventually, any political movement that gathers any steam, any appreciably number of followers, or any recognized intellectual force, becomes a plum for one or another of the parties to grab.  That party will gain votes if it can show that it can make common cause with the new movement, and fields candidates who say things that are sympathetic to that movement.  That is what is happening with the Tea Party movement now.  When Sarah Palin tells Tea Partiers that the time is coming very soon to pick a "D" or an "R," she's quite right -- and no one has done more than her to court the Tea Party votes to the GOP than any other mainstream politician.  Not that this would have been a difficult sell -- while Tea Partiers certainly had criticism of the free-spending ways of the Bush Administration, the focus of their invective was always aimed at the Obama White House and the Democratic-controlled Congress, and the anger did not coalesce into political action until after the 2008 elections.  Gov. Palin was always pretty popular with the Tea Party crowd anyway, and she never left the GOP.

So that's why the Tea Party movement is doomed -- not that it has failed to articulate something or to meaningfully affect in the political discourse.  Indeed, it is its very success and energy that dooms it to become co-opted and assimilated into the GOP.  The only real question is whether it becomes an identifiable faction within the party the way gun rights advocates, pro-lifers, budget hawks, and religious conservatives are, or rather stands for a set of generalized and somewhat indefinite concepts.  I tend to think the latter.

February 15, 2010

Tourism In The High Desert

I've been doing stuff, and not spending a lot of time blogging.  While my in-laws were in town, I logged 800 miles on my car.  This involved:
  • Soffit House to LAX to pick up the in-laws
  • LAX to Chinatown for dim sum
  • Chinatown to Glendale for Pinkberry (for which I am currently feeling a cocaine-like impulse to get more of despite the unreasonably long drive to the nearest store)
  • Glendale to home and then to the Persian restaraunt for belly dancing
  • Breakfast at Crazy Otto's for omelets bigger than our heads
  • A trip to see the solar power plant all aglow
  • Driving down the only musical road in America
  • Seeing the big cats at the Exotic Feline Breeding Compound
  • A drive through Southern California's largest operational wind farm
  • Visiting the Mojave Spaceport to see the Rotary Rocket display (no tours at Scaled Composites, as it turns out)
  • Seeing the Tehachapi Loop, with return trip through the Grapevine
  • A visit to the plane museum and Blackbird Park so my father-in-law could spend about half an hour talking to a retired U-2 pilot
  • Bad Movie Night at our friends' home theater (the feature flick was Robot Monster In 3-D! which was really really bad. And in 2-D. And hilarious.)
  • Dropping off the in-laws at their cousin's house in beautiful Fontana, including a stop at the local kitsch emporium.

And we've done some cooking and playing of games and generally gabbing with the in-laws.  So I've barely had time to myself.  In fact, I'm astonished to consider all the food we've eaten over the past four days.  And tonight I need to finish writing my class for tomorrow night, which means I've precious little time to comment on recent political or legal developments.  Stay tuned, though, because I expect I will be back Wednesday.