Monday, April 23, 2012

New digs?

In its neverending quest to foul up perfectly good free stuff, the overlords at Google have turned poor innocuous Blogger into a platform not only hideously ugly, but even less functional than it was previously.

So, TBA has a new look at a new home: (Warning: same crappy content as always.)

We're leaving this blog up for now, in case, WordPress manages to annoy us even more than Blogger, but unless and until that happens, this blog will not be updated. We've imported the damn thing once and hope not to do it again. Likewise, any comments need to be made at the new site.

It has never been reasonable that you should employ your leisure on a topic so frivolous and so vain as reading this humble blog. But if you wish to persist in your irrationality, we hope to see you at the new, unimproved TBA. Thanks!

And you thought the IRS was merciless!

Been studying the Acts of the Apostles for Sunday school (yes, it tickles me too, sometimes), and even the commentary I was using was repulsed by the tale of Ananias and Sapphira (chapter 5):
But a man named Ananias, with the consent of his wife Sapphira, sold a piece of property; 2 with his wife's knowledge, he kept back some of the proceeds, and brought only a part and laid it at the apostles' feet. 3 "Ananias," Peter asked, "why has Satan filled your heart to lie to the Holy Spirit and to keep back part of the proceeds of the land? 4 While it remained unsold, did it not remain your own? And after it was sold, were not the proceeds at your disposal? How is it that you have contrived this deed in your heart? You did not lie to us but to God!" 5 Now when Ananias heard these words, he fell down and died. And great fear seized all who heard of it. 6 The young men came and wrapped up his body, then carried him out and buried him. 7 After an interval of about three hours his wife came in, not knowing what had happened. 8 Peter said to her, "Tell me whether you and your husband sold the land for such and such a price." And she said, "Yes, that was the price." 9 Then Peter said to her, "How is it that you have agreed together to put the Spirit of the Lord to the test? Look, the feet of those who have buried your husband are at the door, and they will carry you out." 10 Immediately she fell down at his feet and died. When the young men came in they found her dead, so they carried her out and buried her beside her husband. 11 And great fear seized the whole church and all who heard of these things.
Yes, I bet it did! Why no chance to repent? Jesus said to forgive your brother who sins against you not seven times, but 77 times. The pitiless quality of the story has led some scholars, following a time-honored principle of biblical hermeneutics, to adjudge that a tale so repulsive cannot have been historically accurate or part of the original work.
Oddly, however, none of my three commentaries picked up on "lie to the Holy Spirit" and its echo of Luke 12:10: "whoever blasphemes against the Holy Spirit will not be forgiven." The Unforgivable Sin, in other words.
The parallel is more striking when we look at what use Luke has made of this saying. Mark, and Matthew following him, put the Unforgivable Sin in the context of Jesus's critics' saying that he casts out demons only because he himself worships demons; Jesus retorts that "a house divided against itself cannot stand" and invokes the Unforgivable Sin, which I believe is generally interpreted, by this context, to mean being so far gone as to attributed the good works of God to Satan.
But that's not what Luke—the author of Acts as well, recall—does. I don't want to dump all of Luke 12 here, but look at these snippets. The scene is set thus:
Meanwhile, when the crowd gathered by the thousands, so that they trampled on one another, he began to speak first to his disciples, "Beware of the yeast of the Pharisees, that is, their hypocrisy. 2 Nothing is covered up that will not be uncovered, and nothing secret that will not become known. 3 Therefore whatever you have said in the dark will be heard in the light, and what you have whispered behind closed doors will be proclaimed from the housetops.
How on-point is that with Acts 5? And then, immediately after verse 10:
11 When they bring you before the synagogues, the rulers, and the authorities, do not worry about how you are to defend yourselves or what you are to say; 12 for the Holy Spirit will teach you at that very hour what you ought to say."
That could be the epigraph for the book of Acts, where the Spirit is continually giving the apostles brave words in the face of hostile authorities.
And then Luke 12 goes into the evils of wealth and how one should give alms and share one's possessions, which is just what the early Christians in Jerusalem were described as doing in Acts 4, as the set-up for the Ananias story.
As one commentary (without picking up on the Luke 12 parallel) notes, the sin described in Acts 5 amounts to denying the Holy Spirit by denying its efficacy in the church.
There are certainly problems with construing the sin of Ananias and Sapphira with the sin against the Holy Spirit, if we take it that hiding part of the money indicated a lack of faith that God existed and would note the misdeed. Isn't that true of any sin committed in secret, in the hopes of escaping (earthly) punishment? Then again, the theology of Acts is not airtight in every respect. But perhaps the sin against the church itself—the word is used for the first time in Acts in the last-quoted verse from Acts 5 above—takes ab all-too-typical sin to the next level. At least, it must be said that had Luke desired to write a passage in his gospel to provide support for the just punishment of Ananias and Sapphira, he couldn't have done much better than Luke 12.

Bad Bad Religion

Sometimes a negative book review will start off coy and then slip the knife between the ribs. But sometimes, the very first sentence is a bitchslap:
ROSS DOUTHAT’S ANALYSIS of religion in America is more sophisticated than the analysis of, say, Rick Santorum—but not by much.
The best metaphor for what Michael Sean Winters does to Ross Douthat's new book would refer to an act staunchly forbidden by their church. Just one more:
My problem with Douthat’s book is not that his opinions differ from my own. My problem is that he does not seem to have any idea what he is talking about.

Saturday, April 21, 2012

Words to live by

"Oh, no, I knew I should not have forsaken the rigid beauty of my candy-colored schedule."

- Baljeet

Friday, April 20, 2012

David Hume on legal research & writing

Abstruse thought and profound researches I prohibit, and will severely punish, by the pensive melancholy which they introduce, by the endless uncertainty in which they involve you, and by the cold reception which your pretended discoveries shall meet with, when communicated.
—Hume, Enquiry Concerning Human Understanding, § 1. (Nature is speaking.)

(H/t DeLong.)

When is an opinion not an opinion?

When it's an order, I guess. Yesterday, the MSSC granted an interlocutory appeal on venue, via a 5-4 order instead of a published opinion.

Buddy Craft allegedly bought a part for his car from AutoZone in Scott County, which he claimed malfunctioned and damaged his car in Smith County, where he filed suit. AutoZone moved to change venue and appealed the denial.

The order (Lamar, J.) quotes MCA 11-11-3:
Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
The Court held that the "act or omission" was in Scott, and summarily stated that "Craft failed to allege in his Complaint that a substantial event that caused the injury occurred in Smith County."

Chandler (joined by Randolph, Kitchens, & King) dissented—er, I mean, objected to the order with a separate written statement:
Craft’s complaint alleged that a “substantial event that caused the injury” occurred in Smith County. Craft resides in Smith County, and he used the computer in Smith County, where the computer malfunctioned and caused injury by destroying his transmission. His use of the malfunctioning computer was “a substantial event that caused the injury” in the county of his residence. The complaint also alleges that the continuing malfunction of the computer has caused continuing damage to his new transmission. Clearly, the continuing malfunction in Smith County is a substantial event that caused injury to his new transmission.
Based on that description of the complaint, the Court's holding is a bit mysterious to me. I wish they'd explained it better ... maybe even in an "opinion." (UPDATE: I'm not saying I can't see it: putting a part out into the stream of commerce suffices for jurisdiction, but a car part could malfunction anywhere, making venue possible in any of our 82 counties. But if that's the logic, then why not say so?)

More mysterious, however, is why this was done in an "order." The only reason I can think of is that it's not immediately clear that an "order" can be cited as precedential authority. But it seems less than judicious to issue a one-off "order" in this manner, as if the majority doubted the validity of its legal reasoning—particularly in a field as vexed as the law of venue. Sucks to be Mr. Craft, I guess.

... The MSSC docket shows Keith Obert and Gene Tullos for AutoZone and Mr. Craft pro se. Being familiar with the recurring inaccuracies of that website's attorney information, I would venture a guess that Tullos is Craft's counsel, though it might be that Obert thought it prudent to get a Tullos at his table. The trial judge was Eddie Bowen, of recent fame, and changing venue will change the judge as well.

Baby oak

Pulling up weeds from the crevices in my front walk, I found this one came up still attached to its acorn:

Haven't had time to look into whether this deed exposes me to criminal prosecution under one of the bills Gov. Bryant signed into law.

Thursday, April 19, 2012

Post terrorist pamphlet online, get 17 years in prison - UPDATED

The First Amendment apparently has a 9/11 exception.
... on April 12, a 29-year old citizen from Sudbury, Massachusetts named Tarek Mehanna was sentenced to seventeen and a half years in prison for translating “39 Ways [to Serve & Participate in Jihad]” and helping to distribute it online.

As Anthony Lewis was wont to ask in his New York Times columns, “Is this America?” Seventeen and a half years for translating a document? Granted, it’s an extremist text. Among the “39 ways” it advocates include “Truthfully Ask Allah for Martyrdom,” “Go for Jihad Yourself,” “Giving Shelter to the Mujahedin,” and “Have Enmity Towards the Disbelievers.” (Other “ways to serve,” however, include, “Learn to Swim and Ride Horses,” “Get Physically Fit,” “Stand in Opposition to the Disbelievers,” and “Expose the Hypocrites and Traitors.”) But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document? After all, news organizations and scholars routinely translate and publicize jihadist texts; think, for example, of the many reports about messages from Osama bin Laden.
Thank goodness Obama won the election, so civil liberties are safe again.

... Brandenburg v. Ohio:
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Hess v. Indiana:
at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech.
Holder v. Humanitarian Law Project:
All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.
Abrams v. United States (Holmes, J., dissenting):
In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possible could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
"A republic, if you can keep it," said Franklin.

(I have always loved that last line of Holmes's dissent.) ... In comments, NMC notes that at least part of the basis for the prosecution rested not on speech alone, but on a bungled attempt to join the Iraq insurgency. And Jane provides a link to Andrew March in the NYT:
As a political scientist specializing in Islamic law and war, I frequently read, store, share and translate texts and videos by jihadi groups. As a political philosopher, I debate the ethics of killing. As a citizen, I express views, thoughts and emotions about killing to other citizens. As a human being, I sometimes feel joy (I am ashamed to admit) at the suffering of some humans and anger at the suffering of others. At Mr. Mehanna’s trial, I saw how those same actions can constitute federal crimes. Because Mr. Mehanna’s conviction was based largely on things he said, wrote and translated. Yet that speech was not prosecuted according to the Brandenburg standard of incitement to “imminent lawless action” but according to the much more troubling standard of having the intent to support a foreign terrorist organization. * * * Citing no explicit coordination with or direction by a foreign terrorist organization, the government’s case rested primarily on Mr. Mehanna’s intent in saying the things he said — his political and religious thoughts, feelings and viewpoints. The prosecution’s strategy, a far cry from Justice Roberts’s statement that “independent advocacy” of a terror group’s ideology, aims or methods is not a crime, produced many ominous ideas. For example, in his opening statement to the jury one prosecutor suggested that “it’s not illegal to watch something on the television. It is illegal, however, to watch something in order to cultivate your desire, your ideology.” In other words, viewing perfectly legal material can become a crime with nothing other than a change of heart. When it comes to prosecuting speech as support for terrorism, it’s the thought that counts.

Ezra Klein explains why America isn't Europe

There's this ocean, for one thing ... No, but seriously: as is his wont, Klein explains concisely and clearly the key distinction that makes "deficits will turn America into Europe!" mere blather:
Investors had previously thought that the European Central Bank and the richer countries in the euro zone would, if push came to shove, cover the debts of the poorer countries. They thought the euro zone was a sure thing.

They thought wrong, and have now come to see the underlying structure — a currency union without a fiscal union, a committed central bank or economic parity among the members — as inherently flawed and perhaps unsalvageable. The euro zone doesn’t have a debt problem. It has a continued survival problem.

America’s got a debt problem. But we’ve been around for hundreds of years. Our political system, for all its inanities and disappointments, is fairly well understood, and quite widely trusted. The euro zone has only been around since 1999, and Greece didn’t join until 2001. There’s nothing obvious that could force a rethinking of America as a continuing, surviving enterprise in the way that we’ve seen in Europe.
Well, nothing except the Tea Party, and I think America will outlive them too.


Fascism is psychoanalysis in reverse.

More on the Pulitzers

The fiction jury is miffed.
Maureen Corrigan, one of three jurors for the fiction prize, said she was just as shocked as everyone else when she learned Monday that there would be no fiction winner. “Honestly, I feel angry on behalf of three great American novels,” said Corrigan, a critic in residence at Georgetown University and a book critic for NPR’s Fresh Air.

Corrigan, along with Susan Larson, former books editor of The Times-Picayune and host of The Reading Life on WWNO-FM, and Michael Cunningham, author of the 1999 Pulitzer winner The Hours, read about 300 novels each over the course of six months. * * *

Cunningham also agreed that the board should think about revising the selection process. “I think there's something amiss in a system where three books this good are presented and there's not a prize,” he said. “So, yeah, they might want to look into that.” * * *

“We’re getting some suggestion from some of these articles that maybe we were scraping around, desperately trying to find novels, but that was not the case,” Corrigan said, adding that she will never again be on the jury. “Only if the rules were changed,” she laughed.
300 novels in 6 months is a whole lotta reading, even if some books are so bad they don't need to be finished. I wonder whether jurors are paid.

Anyway, the Pulitzer folks are a bit hampered by confidentiality, but we are urged against drawing the obvious conclusion:
“They could have been passionate admirers of all three books,” said Harold Augenbraum, executive director of The National Book Foundation, which administers another of America’s major book prizes, The National Book Awards. “And because the Pulitzer board has to vote in a majority, and so if you have 18 members, if you’ve got seven, seven, and four, that means that there’s not going to be a prize. It doesn’t necessarily mean they didn’t think one of the books was worthy.”
Not necessarily, no.

Republican self-parody

You can't make up anything more embarrassing than what these people actually say:
West Virginia U.S. Senate candidate John Raese (R) compared no smoking laws to one of Adolf Hitler's most notorious policies.

Said Raese: "I don't want government telling me what I can do and what I can't do because I'm an American. But in Monongalia County you can't smoke a cigarette, you can't smoke a cigar, you can't do anything... I have to put a huge sticker on my buildings to say this is a smoke free environment. This is brought to you by the government of Monongalia County. OK? Remember Hitler used to put Star of David on everybody's lapel, remember that? Same thing."
One might weigh the policy of requiring Raese to wear a badge identifying himself as a jackass, but it seems his mouth is doing just fine on that.

Wednesday, April 18, 2012

Also exfoliates your teeth!

So I picked up a container of "Salt Sense" in the office kitchen:

Real salt, but 33% less sodium—how do they do that?


Silicon dioxide being, of course, better known by a more common name:

Why, yes: if you sprinkle sand on your food rather than salt, you will ingest less sodium.

Tuesday, April 17, 2012

In which Barney Frank rebukes the RIght for insufficient attention to Hayek

You were talking about the Republicans and not being able to work with them. But isn’t your ultimate beef with the voters, since it’s the voters who reward that behavior?
I’m glad you said that, you’re very smart. These days, in developed countries, everybody says you need a private sector to create wealth, you need a public sector to create rules by which wealth is created. Sensible people understand that. The tension between left and right has been where you draw that line, but it’s been a contest between people who see maybe a 20 percent overlap. Let me read this to you. [Picks up copy of Friedrich von Hayek’s The Road to Serfdom.] “In no system that could be rationally defended would the state just do nothing.” ­[Closes book.]

Do you read Hayek a lot?
For these purposes. For the first time in American history, we have people in power now who reject that idea. If they knew it was Hayek, they might think, Well, maybe.But they reject the public sector. That’s why we can’t work together.

—Barney Frank, interviewed by Jason Zengerle

... I liked this part at the end:
some people in the media act like Washington is some autonomous entity that’s operating with no connection to the public. I had a woman stop me the other day, she said, “I’m very angry about Congress. What are you guys doing?” I said, “Who’s your congressman?” “Oh, I don’t know,” she said. “Well, see, I vote for me,” I said. “I’m happy with me. Why are you blaming me for the people you vote for?”
That always drives me crazy: numbskulls who complain about being tyrannized by Congress as if "Congress" were some Martian overlord who descended in a giant Neoclassical marble spaceship.

... Context:
To create conditions in which competition will be as effective as possible, to supplement it where it cannot be made effective, to provide the services which, in the words of Adam Smith, "though they may be in the highest degree advantageous to a great society, are, however, of such a nature, that the profit could never repay the expense to any individual or small number of individuals"—these tasks provide, indeed, a wide and unquestioned field for state activity. In no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other. Even the most essential prerequisite of its proper functioning, the prevention of fraud and deception (including exploitation of ignorance), provides a great and by no means yet fully accomplished object of legislative activity.
I hadn't ever thought that LBJ's "Great Society" got its name from Smith. Richard Goodwin gets the credit, but I daresay he'd read Smith (or Hayek)—the context of Smith's sentence is too relevant for coincidence.

... Btw that last parenthetical sets Hayek apart from contemporary libertarians, who argue that the ignorant are pretty much there to be exploited.

Geneva Conventions "quaint" to Obama?

Via NMC, an article on the use of drones to kill ... well, somebody, and we hope they're terrorists, but HEY we have a country to defend here!

I supose the VC's Kenneth Anderson (no relation, trust me) will post some Yoo-esque rationalization of how this isn't a war crime:
the CIA's more common use of drones – known as "signature strikes" – involves attacks on groups of alleged militants who are behaving in ways that seem suspicious. Such strikes are reportedly the brainchild of the CIA veteran who has run the agency's drone program for the past six years, a chain-smoking convert to Islam who goes by the code name "Roger." In a recent profile, The Washington Post called Roger "the principal architect of the CIA's drone campaign." When it comes to signature strikes, say insiders, the decision to launch a drone assault is essentially an odds game: If the agency thinks it's likely that the group of individuals are insurgents, it will take the shot. "The CIA is doing a lot more targeting on a percentage basis," says the former official with knowledge of the agency's drone program.
Civilians bearing arms against military targets, and the article implies that, by contrast with the "personality strikes" against named targets, or the Pentagon's use of drones pursuant to legal counsel, these "signature strikes" aren't carried out with any guidance as to international law.

Back when Bush violated the Geneva Conventions, there was at least kinda sorta a political party opposed to that. Now that Obama violates them, neither side cares.