Friday, April 30, 2010

What is "the Left"?

The Left has no sense of what its own political success, if achieved, would mean; it has no articulated vision of a good, or even of a better, society. In the absence of such a vision, to be on the left is simply to be in a state of permanent protest. And since the thing most protested against is the damage wrought by rapid change, to be on the left is to be a conservative.
-- Tony Judt, "The Social Question Redivivus," in Reappraisals, p. 427.

... Judt's particularly discussing the European left, but I recognize the application to America as well. Compare this Crooked Timber post.

... Interview with Judt here. Ill Fares the Land is a short hardcover with few words per page, which for its ostensible purpose ought to've been published as a paperback original; but then, Judt probably needs the money, poor guy.

Wednesday, April 28, 2010

Dep't of Just Wow

The GOP demonstrates why immigration is not necessarily a winning issue for it:
“I think we should catch ’em, we should document ’em, make sure we know where they are and where they are going,” said Pat Bertroche, an Urbandale physician. “I actually support microchipping them. I can microchip my dog so I can find it. Why can’t I microchip an illegal?"
Uh, because he doesn't belong to you, Dr. Bertroche?

Bertroche is "one of seven Republicans running in the 3rd District Congressional primary" in Iowa.

Via Sullivan.

Silly voters!

Labour was already running 3d in the polls, but with some chance of retaining a majority/plurality of seats in the Commons, but Gordon Brown may have just handed Parliament over to his opponents, with his live-mike comment about a "Mrs. Duffy" with whom he'd just spoken about immigration:
Brown: That was a disaster. Well I just ... should never have put me in [with!] that woman. Whose idea was that?

Aide: I don't know, I didn't see.

Brown: It was Sue [Nye] I think. It was just ridiculous.

Aide: I'm not sure if they [the media] will go with that.

Brown: They will go with that.

Aide: What did she say?

Brown: Oh everything, she was just a sort of bigoted woman. She said she used be Labour. I mean it's just ridiculous.
That should be even better than "all of them" for the opposition.

Tuesday, April 27, 2010

A cure for wingnuttery

Departure from public office? Seems to've worked for Bill Frist:
Frist, a thoracic surgeon, told Time magazine back in October that if he were still in Congress, he would vote for the bill. And his support apparently hasn’t wavered. On Monday afternoon he said he would give an “A” grade to the provisions in the law aimed at expanding insurance to an additional 32 million people. Cost, however, is another matter. While most Republicans would likely slap a failing grade on the cost aspect of the law, Frist said he’d rank it a “C.”

“I like the bill,” Frist said during a panel discussion with former Democratic Senate Majority Leader Tom Daschle at the American Hospital Association’s (AHA’s) annual meeting. “I think it’s got lots of positive stuff in it, other than the costs."
Of course, lowering costs was not actually the goal of the bill. But leave that aside.

Frist also thinks little of the argument that the law is unconstitutional. Look for his excommunication to be broadcast live on Fox.

Seriously, though, Frist is merely giving qualified endorsement to National Romneycare. There is something unhealthy about a political party where *that* is something only a retired politician dares utter.
Emptywheel, who turns out to know something about oil rig safety (and evasions thereof) as well as about torture, posts on the BP disaster last weekend that left 11 dead, and notes that BP's rig safety has been wanting in the past. She relays this ...
BP Exploration & Production, which owns the deep water rig that exploded last week in the Gulf of Mexico, was cited in 2007 for inadequately training employees in well control, according to the US Minerals Management Service.

The conditions of the training are the same as those suspected in the possible blowout aboard the TransOcean Deepwater Horizon, which left 11 workers missing and presumed dead.

MMS slapped BP with $41,000 in fines in October 2007 after a series of violations related to a near-blowout five years earlier. In November 2002, the Ocean King rig, operated by Diamond Offshore Drilling, in the Gulf had to evacuate all 65 of its workers for nearly two days after operators detected a dangerous rise in gas pressure. The rig, which had been drilling at a depth of more than 5,000 feet, didn’t resume work for nearly a week, according to the MMS report.

Unlike last week’s disaster, workers were able to keep the well from leaking by using cement and mud to plug the well. The same subcontractor, Diamond Offshore, was also used when BP was fined $25,000 in 2004 for bypassing a gas detection system while drilling. A BP spokesman in London says the company still uses Diamond Offshore as a contractor.
... and shares this satellite image:
Looks to me that spill is about the size of NOLA.

One would think that this disaster, following on the heels of the West Virginia coal mine disaster, would suggest some need to review safety procedures in the world of fossil-fuel mining. But no.

Cause and fault

In a decision today (Lopez v. McClellan) reversing summary judgment for the defense in a multi-car accident, the Mississippi Court of Appeals waxes indignant:
We perceive that the problem presented in this case is the use and application of the term “apportioned causation” when the trial court considered whether Lopez had established the necessary element of proximate cause. Causation is not apportioned. However, damages may be apportioned based upon a percentage of fault. It is only in the apportionment of damages that the percentages of fault, i.e. percentage of causation, is to be considered.

* * *

Whether the element of proximate cause has been established in a case is like asking
whether you are a little pregnant. Either the plaintiff has established proximate cause or has not; you either are pregnant or you are not. There is no absolutely no consideration of “apportionment” when the court or a jury considers whether the element of proximate cause has been established.
Now, for such emphatic statements, one might have expected to see a citation to authority. But no.

It's not clear to me that the COA is making a distinction with a difference. Proximate causation is a necessary element in proving negligence, and once it's proved, one is on the hook for some part of the damages -- that part depending on how much one caused the accident. Compare City of Jackson v. Spann, 4 So. 3d 1029 (Miss. 2009):
To recover damages in a negligence suit, a plaintiff must establish that the damage was proximately caused by the negligent act of the defendant(s). Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (Miss. 2007); Miss. Code Ann. § 85-5-7(1), (5) (Rev. 1999) (fault is allocated only to the party(s) which proximately caused the injury to the plaintiff). * * *

We further find that the circuit court did not fail to address the comparative fault of Jenkins, but simply assigned one hundred percent fault to the City. The circuit court did not set forth specific percentages of fault either to the City or to Jenkins, but clearly held that the Officers were “the proximate cause[ ]” of the accident. By finding only one proximate cause, the circuit court implicitly assigned no fault to Jenkins.
I don't find it helpful to say "Causation is not apportioned." Nor, quite frankly, do I find this discussion at all relevant to the COA's holding in this case -- which is simply that a doctor's testimony that two separate collisions each contributed to a plaintiff's injuries, constitutes admissible evidence, even if he cannot say which collision caused which specific injury.

Dep't of Misguided Demonstrations

In reporting that Mexico's issued a travel advisory to its citizens visiting (lawfully, I'm sure) the state of Arizona, James Joyner notes another dire consequence:
The city of San Francisco, amusingly, is considering a boycott of Arizona as well.
Smooth move. There now should be about 20 states clamoring to enact identical laws to Arizona's.

John Yoo: "Obviously" our waterboarding was torture!

Meant to flag this excellent catch by Emptywheel a few days back, from her study of the OPR documents.
He told us during his interview: “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He added:

[T]he waterboarding as it’s described in that memo, is very different than the waterboarding that was described in the press. And when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.
As Emptywheel goes on to note, CIA and DOJ disagreed about whether DOJ was kept informed about the details of our waterboarding practice, with DOJ not recalling any such updates. (And waterboarding as described in the Bybee memos remains torture, for reasons widely discussed on the basis of those memos.)

But that's a handy reference for the next time someone tells you we didn't torture KSM or Zubaydah: "really? because John Yoo thinks we did."

Monday, April 26, 2010

Ron Chris Foster v. State

The involvement of former Miss. Supreme Court justice Kay Cobb in the "Tea Party" movement has been raising some eyebrows. Jim Craig, in a comment over at Ipse Blogit, has something good to say:
I have to say that I have great admiration for Kay Cobb; I first met her when she was a State Senator and pushed back against Governor Fordice's attempt to take sentencing in capital cases away from juries.

In the Ron Chris Foster case, she impressively marshalled the evidence that Mr. Foster was mentally retarded in a four-justice dissent in a 4-4 opinion. At the time, Foster was scheduled to be executed. Justice Cobb's independence and judgment was one of the factors that preserved Mr. Foster's appeal (and life) until the US Supreme Court held in a different case that offenders who committed capital crimes before they were 18 could not be executed. If not for Justice Cobb and Governor Musgrove (who entered a temporary reprieve/stay at the same time as the Cobb dissent), Mississippi would have had the dubious distinction of being the last government in the WORLD that executed a juvenile offender.

I'm no fan of the T.E.A. Party movement, and I agree with Matt and NMC that the C of CC is reprehensible. But despite the error of attending the C of CC conference, Kay Cobb is, I think, a high quality and formidable representative of the conservative position in Mississippi.
I can't find a public copy of the Cobb dissent nor find it on Westlaw -- because rehearing was granted, the previous opinion was "disappeared," an unfortunate but common result.

The opinion on rehearing does however state this, which I believe was an important part of the dissent:
The State relies on an IQ test it states was performed at Whitfield in 1990, where Foster was allegedly shown to have an IQ of 80. This test result has been cited by this Court, by the United States District Court, by the United States Court of Appeals, and by Foster himself in pleadings before this Court. At this point the source of this IQ score is a mystery, as it cannot be found in Foster's appeal record.
It's a little spooky to realize that a man's life hung in the balance on the weight of an IQ score that turned out not to even be in the record.

Existentialism, English-style

My dad had a framed copy of this poem for years, without the author. He's got dementia now and couldn't tell me the author if he tried, but it just now occurred to me -- the one who is supposedly in good mental health -- that I could probably google it.
The Laws of God, The Laws of Man

The laws of God, the laws of man,
He may keep that will and can;
Not I: Let God and man decree
Laws for themselves and not for me;

And if my ways are not as theirs
Let them mind their own affairs.
Their deeds I judge and much condemn,
Yet when did I make laws for them?

Please yourselves, say I, and they
Need only look the other way.
But no, they will not; they must still
Wrest their neighbor to their will,

And make me dance as they desire
With jail and gallows and hell-fire.
And how am I to face the odds
Of man's bedevilment and God's?

I, a stranger and afraid
In a world I never made.
They will be master, right or wrong;
Though both are foolish, both are strong

And since, my soul, we cannot flee
To Saturn or to Mercury
Keep we must, if keep we can
These foreign laws of God and man.

-- A.E. Housman

Did her degree come with a revocation clause?

Balloon Juice picks up a lovely example of contemporary education:
Kristia Cavere is the Tea Party and a Republican candidate for New York's 19th Congressional District seat held by Hall. Cavere thinks that the Democrats have co-opted Republican values and claims, among other things, that:

"The Republicans are the ones who liberated Europe in World War II."

She continued by saying that the Republicans have always initiated "every" advancement of freedom in our history.
Well, yes, I suppose "freedom" could be defined in some fashion that would make that technically true.

BJ has the malice to compare Cavere's historical creativity with a claim on Cavere's campaign site:
In May 2009, Kristia received a Masters in Science degree in “Defense and Strategic Studies” from Missouri State University, which is located in Fairfax, Virginia right outside our nation’s Capitol. She graduated summa cum laude and with a 4.0 grade point average.
(You also gotta click through for the glamour shots. No, really. Is she running for prom queen or Congress?)

... "Missouri State in Fairfax, VA??" you ask. Yes, the "Department of Defense and Strategic Studies" has its own campus there. With some proud professors, I can see.

Friday, April 23, 2010

Guy Fawkes? Wasn't he in that Wachowski Bros. movie?

Brad DeLong makes a great catch:
Remember, remember the fifth of November: gunpowder, treason and plot.

Remember: Guy Fawkes's goal was to blow up the legislature of the Kingdom of England--the equivalent of crashing a hijacked jetliner into the Capitol while the House and Senate were in session.

Michael Scherer writes about the Republican Governors Organization:

Republican Governors Pay Homage To Guy Fawkes: The Republican Governors Association has embraced the symbolism of Fawkes, launching a rather striking website,, with a video that showcases far more Hollywood savvy than one can usually expect from Republicans.... President Obama plays the role of King James, the Democratic leadership is Parliament.... The politics and substance aside, this strikes me as a remarkable bit of political messaging, not just for its cinematic quality. The RGA, under the control of Mississippi Gov. Haley Barbour, is clearly stepping out of the stodgy, safe territory it normally inhabits...
Haley Barbour, pro-terrorist ... when the victims are the Democratic-controlled federal government of the United States. How unsurprising. It's like he's carrying on the Confederate legacy.

Dep't of As Ye Shall Sow

Richard Barrett spent 30-odd years preaching the bestial inferiority of the "black race," so I can't help thinking that he derived some small satisfaction amid his agonizing last moments from the fact that his murderer was a black man.
Vincent McGee, 23, who lives with his parents on the same street as Barrett, was arrested around 5 p.m. Thursday at his sister's home in Pearl, Sheriff Ronnie Pennington said.

Barrett's body had multiple stab wounds to the neck and blunt-force trauma to the head; 35 percent of his body had been burned, Pennington said.

While McGee is African American, authorities have not said Barrett's racial beliefs were a motive in his slaying.

McGee had performed yard work for Barrett, Pennington said.

McGee had served five years of a six-year sentence for simple assault on a police officer and grand larceny when he was released on probation in February from the State Penitentiary at Parchman.
Note to white supremacists: if you make a career out of saying that black people suck, don't hire one to mow your grass.

Unfortunately, McGee has now reaffirmed the prejudices Barrett's fan club shared. Of course, Barrett could've been smitten down in front of Walmart by a four-winged angel with a glowing sword inscribed "HATE TO THE HATERS" in fiery runes, and those folks *still* wouldn't rethink those prejudices. They'd blame Obama.

... More arrests in Barrett's murder, which I think it's over-cautious to avoid calling a "hate crime."

... I can't find anything about his funeral arrangements, but in Madison just now I was passed by a short funeral procession with American Legion motorcyclists, which made me wonder whether that was Barrett's. He was by all accounts a decorated Vietnam veteran, so whatever good one can remember about him, so much the better.

... In an coincidental instance of cosmic balance, the world has also lost Whitney Harris, the last survivor of the American prosecutorial team at Nuremberg:
Whitney Harris, who was a member of the U.S. legal team that prosecuted Nazis at Nuremberg after World War II, has died. He was 97.

Harris was the last surviving of the three Nuremberg prosecutors, the St. Louis Post-Dispatch said. He died Wednesday at his home in the suburban St. Louis town of Frontenac * * *

Harris was lead prosecutor in the first of the Nuremberg war-crime trials in 1945 and tried Ernst Kaltenbrunner, the senior surviving leader of the Nazi Security Police. He also helped cross-examine Hermann Goering, Hitler's second-in-command, and helped get the confession of Rudolf Franz Ferdinand Hoess, head of the Auschwitz concentration camp.

In his later years, Harris was an author and gave speeches on human rights. In 1980, he established the Whitney R. Harris Collection on the Third Reich of Germany at Washington University in St. Louis. He also is the namesake of the university's Whitney R. Harris World Law Institute.

"He basically dedicated his life to trying to develop an international justice system to deal with war crimes against humanity and genocide," said his son, Eugene Harris, 45, of Olivette in suburban St. Louis.
A man who pledged himself to opposing and prosecuting the ideals Barrett stood for.

... Höss's middle name was "Franz Ferdinand"??? (1) Good lord, and (2) why is that in an AP obit?

... Kaltenbrunner's never gotten the press of some other Nazi leaders, which I guess is why I never knew he was president of Interpol. Interpol??? Yes:
Interpol was founded in Austria in 1923 as the International Criminal Police (ICP). Following the Anschluss (Austria's annexation by Nazi Germany) in 1938, the organization fell under the control of Nazi Germany and the Commission's headquarters were eventually moved to Berlin in 1942. It is unclear, however, if and to what extent the ICPC files were used to further the goals of the Nazi regime. However, from 1938 to 1945, the presidents of Interpol included Otto Steinhäusl (a general in the SS), Reinhard Heydrich (a general in the SS, and chair of the Wannsee Conference that appointed Heydrich the chief executor of the "Final solution to the Jewish question"), Arthur Nebe (a general in the SS, and Einsatzgruppen leader, under whose command at least 46,000 people were killed), and Ernst Kaltenbrunner (a general in the SS, the highest ranking SS officer executed after the Nuremberg Trial).

Wednesday, April 21, 2010

It was Galileo's *tone* that the Church objected to

Jon Chait notices an NRO blogger, Jim Manzi, actually taking on the Right's "epistemic closure" with a criticism of Mark Levin's Liberty and Tyranny, specifically the part on global warming:
I’m not expert on many topics the book addresses, so I flipped to its treatment of a subject that I’ve spent some time studying — global warming — in order to see how it treated a controversy in which I’m at least familiar with the various viewpoints and some of the technical detail.

It was awful. It was so bad that it was like the proverbial clock that chimes 13 times — not only is it obviously wrong, but it is so wrong that it leads you to question every other piece of information it has ever provided.
And then Manzi goes on to explain why.

As if to illustrate by personal example the whole "epistemic closure" thesis, noted NRO hacks Andrew McCarthy and K.J. Lopez attack Manzi for ... his tone. K-Lo:
There is heart and soul and years of experience in his book — and a heck of a lot more than cut-and-paste Google searching (!). He's heard a lot worse and can handle his own battles, but as one who has followed Mark's career, I found Jim's tone deeply disappointing.
There will be more to say about this, and I imagine I won't be the only one to discuss it when time allows. But for now I would just observe that Jim Manzi's post on Mark Levin's widely acclaimed book is beneath him. No one minds a good debate, but Jim's gratuitously nasty tone — "awful," "Trilateral Commission," "wingnuttery," etc. — is just breathtaking.
Neither finds anything to object to in Manzi's specific factual criticisms.

Let's see how long Manzi continues to be associated with NRO.

(And yes, I know that it was in fact Galileo's tone, as much as anything else, that got him in trouble.)

... UPDATE: Manzi retorts, off-site.

How many chickens can he trade in for a Mercedes?

Just the other day, I was accusing the GOP of having no ideas for health care reform, but I now stand corrected:
Let's change the system and talk about what the possibilities are. I'm telling you that this works. You know, before we all started having health care, in the olden days, our grandparents, they would bring a chicken to the doctor. They would say I'll paint your house. [That's] what people would do to get health care with their doctors. Doctors are very sympathetic people. I'm not backing down from that system.
That's "Sue Lowden (R), the front-running challenger to Sen. Harry Reid (D-NV)." Someone give that woman a vice-presidential nomination.

Zombie cockroaches

If you can bear to read about wasps and roaches, this is pretty interesting:
... let me just refresh your memory about what the Emerald Cockroach Wasp actually does.

* * * The Emerald Cockroach Wasp needs a live, tame cockroach to feed its babies.

When the female wasp is ready to lay her eggs, she seeks out a cockroach. Landing on the prospective host, she delivers two precise stings.

The first she delivers to the roach’s mid-section, causing its front legs to buckle. The brief paralysis caused by the first sting gives the wasp the luxury of time to deliver a more precise sting to the head. The wasp slips her stinger through the roach’s exoskeleton and directly into its brain.

She injects another venom that robs the cockroach of the ability to start walking on its own. The wasp takes hold of one of the roach’s antennae and leads it, like a dog on a leash, to its doom: the wasp’s burrow. The roach creeps obediently inside and sits there quietly as the wasp lays her egg on its underside. The wasp leaves the burrow, sealing the opening behind her.

The egg hatches, and the larva chews a hole in the side of the roach. In it goes. The larva grows inside the roach, devouring the organs of its host, for about eight days. It is then ready to form a pupa inside the roach. After four more weeks, the wasp grows to an adult. It breaks out of its pupa, and out of the roach as well. Only then does the zombie cockroach die.

The zombifying sting has long fascinated scientists. It does not paralyze the roach. It does not put it to sleep. If the zombie roach is frightened, it jumps in the air like a normal roach, but then it fails to run away. What does the wasp understand about the nervous system that we do not?
Answer at the link, plus lovely cockroach photos. Via 3QD.

Tuesday, April 20, 2010

Not that he's going to surpass Sarah Palin over there

Over at Sullivan Inc., the ethics of Epicurus are undergoing lively debate.

Which is kinda cool, and an example of why I love the internet. No one in my office is going to have an opinion on Epicurus.

Stephen Ambrose, fabricator

I recalled the plagiarism scandal, which suggested to me that Ambrose was farming out "his" later "works" to grad students, but apparently he's always been a fake:
... Ambrose spoke often, on C-SPAN or “Charlie Rose” or in print interviews, about how his life had been transformed by getting to know the former President and spending “hundreds and hundreds of hours” interviewing him over a five-year period before Eisenhower died, in 1969. * * *

Access to Eisenhower in his retirement years was tightly controlled and his activities were documented by his staff, particularly by his executive assistant, Brigadier General Robert L. Schulz, who kept meticulous records of his boss’s schedule and telephone calls (now part of the Abilene archive). These records show that Eisenhower saw Ambrose only three times, for a total of less than five hours. The two men were never alone together. The footnotes to Ambrose’s first big Eisenhower book, “The Supreme Commander,” published in 1970, cite nine interview dates; seven of these conflict with the record. On October 7, 1965, when Ambrose claimed that he was interviewing Eisenhower at Gettysburg, Ike was travelling from Abilene to Kansas City. On December 7, 1965, another of the purported interview dates, Eisenhower was at Walter Reed Medical Center, in Washington, D.C., and saw only General Arthur Nevins, his neighbor and farm manager; George Allen, a golf and bridge pal; and Gordon Moore, his brother-in-law. He dined that evening with his son, John Eisenhower. On October 5, 1967, rather than hobnobbing with his young biographer, Eisenhower met with General Lucius D. Clay, the former military governor of occupied Germany and a close friend, and, after Clay left, he talked politics over the phone with Walter Cronkite and called his attorney to discuss a trust fund for his grandchildren. The former President was very busy that day, but he didn’t meet with Stephen Ambrose. On October 21, 1967, another footnoted Gettysburg date, Eisenhower was on vacation at Augusta National Golf Club. He was still there on October 27th, when Ambrose claims that he again interviewed his subject in Gettysburg.
I've always mistrusted Ambrose's biographies of Eisenhower and Nixon, more for fear they were too rah-rah than because I thought he was just making stuff up. ... Via Silbey.

... Hell, he was plagiarizing in his own dissertation, notes a Silbey commenter.

"Seek zeroes!"

While I'm visiting DeLong's place, let me pass this along. Here's Senator Coburn of the world's greatest deliberative body, the United States Senate:
Sen. Tom Coburn, Oklahoma Republican, said he is going to make “waste, abuse, fraud and inefficiencies” in Medicaid a priority issue and will make sure it gets attention in commission meetings. “Nobody else is going to focus on that,” Coburn said. “Nobody else thinks the $300 billion that we waste every year is important. Over 10 years that’s $3 trillion. So we’re going to look at that aspect of it.”

Total Medicaid spending this year is currently pegged at $280 billion. How Coburn can think that all $280 billion that will be spent this year on Medicaid is waste--plus an extra $20 billion in waste even though we do not spend it--is beyond me.
Commenters suggest that Senator Coburn thinks spending *any* money on Medicaid is waste, but I believe that gives him too much credit. He simply does not know what he is talking about.

Ladies and gentlemen, that was Senator Coburn, of the United States Senate.


While I'm trying to decide whether I can really bill my client for sitting from 9:00 a.m. to 6:45 p.m. waiting to have a motion called up, I'll pass along what I sincerely hope is the weirdest thing you read this week:
and did that beak, in eldritch times,
crunch upon shapeless forms unclean?
and was the holy ceph'lopod
in r'lyeh's dark abysses seen?

and did that wrathful visage frown
down on its hapless mortal prey?
and was cthulhusalem builded here
where miskatonic freshmen play?

bring me my nameless ones of old!
bring me my suckers of desire!
bring me my ink! o, clouds, enfold!
bring me my tentacles of fire!

they will not cease from undead life,
nor shall their aeon's sleep be spanned,
till we have built cthulhusalem
on arkham's drowned and lifeless land.
-- Kid Bitzer, via DeLong. Never trust an economist who hasn't read Lovecraft, because if that's the case, he's not familiar with the worst-case scenario.

Friday, April 16, 2010

Sexual perversity, executive/judicial edition

Anyone curious what Eliot Spitzer threw away a political career for, could do worse than view the Playboy pix of Ashley Dupré at WWTDD. As the word "Playboy" indicates, these are NSFW, unless you work in the sex industry.

Of course, it's a good thing Spitzer wasn't gay, or else he might have let his sexual preferences get him into trouble. I mean, just imagine if he'd been gay, and a judge!
With an active homosexual on the bench, Lady Justice will no longer even pretend to be blind. She will be peeking out from under her blindfold to determine the sexual preference of those standing before her, then will let the fold slip back into place before ruling in every case to legitimize sexual deviancy.

Bottom line: the American ideal of absolute equality before the law will inevitably be shredded by a homosexual judge. Neither the Constitution nor the American people should be subjected to that kind of judicial malpractice. We can and should expect more from those who occupy seats on the highest bench in the land.
Thus says the American Family Association (via Sully). You could probably fill a 50-minutes civics class with everything wrong in that AFA screed, but the immediately striking aspect to me was the evident assumption that heterosexuality is not a "sexual preference." Indeed, the AFA appears to have proved that homosexual judges are *required* for cases involving homosexual litigants. I suppose we will have to have panels, with bisexual jurists rounding out each menage a trois.

Should he be citing Dworkin, or Maxwell?

The following sentence is remarkable in Mississippi jurisprudence for at least two things:
We give to a statute (or any other rule of law, for that matter) that meaning which best fits its language, history and spirit recognizing the electromagnetic force of positive principles embedded in other rules. See Dworkin, Law's Empire 313-54 (1986).
First, it's a rare citation by the Court to anything by Ronald Dworkin; and second, it's the only decision to discover, not merely penumbras, but electromagnetic forces in our law. Indeed, that's only the first use of the expression in that opinion.

The case is Warren County v. Culkin, 497 So. 2d 433 (Miss. 1986); I daresay that connoisseurs of that era's caselaw will be able to guess which justice wrote those words for the Court. There are other citations to Dworkin's work in our caselaw, but all by the same justice.

Thursday, April 15, 2010

Taken out of context, it might look like torture or something

The NYT has some tidbits on CIA's destruction of its videotapes of "enhanced interrogations":
Shortly after the tapes were destroyed at the order of Jose A. Rodriguez Jr., then the head of the C.I.A.’s clandestine service, Mr. Goss told Mr. Rodriguez that he “agreed” with the decision, according to the document. He even joked after Mr. Rodriguez offered to “take the heat” for destroying the tapes.

“PG laughed and said that actually, it would be he, PG, who would take the heat,” according to one of the document, an internal C.I.A. e-mail message. * * *

According to former C.I.A. officials, Mr. Rodriguez ordered the tapes destroyed in November 2005 because he feared that if the tapes were to become public it would put undercover C.I.A. officers in legal and physical jeopardy.

According to one of the e-mail messages released Thursday, Mr. Rodriguez told Mr. Goss that the tapes, taken out of context, would make the C.I.A. “look terrible; it would be devastating to us.”
"Context"? What possible "context" could that be? ... And shouldn't there be a "but" between those two "According to ..." sentences?

Major party seeking ideas -- please send postcard

Kevin Drum relays an awkward moment for Scott "Made the Dems Lose Their Collective Minds" Brown:
, Steve Benen finds Sen. Scott Brown (R–Mass.) explaining that he can't support financial reform because it's "going to be an extra layer of regulation." Which is like saying that you don't want better brakes on your car because "they're going to slow me down." And when the reporter followed up to ask what he wanted fixed in the current bill, he just got completely flummoxed: "Well, what areas do you think should be fixed?" he said. "I mean, you know, tell me. And then I'll get a team and go fix it."
Almost the exact same thing happened to Gregg Harper when he was running for the House here in Mississippi. He came by my firm to meet & greet, and was holding forth on the terrible health care plans of the Dems, etc., when a secretary asked him -- okay, maybe you're right, but I'm a single mom, I can barely afford health insurance, what's the GOP plan for healthcare reform? An obvious campaign-trail question. And according to the witness (himself a Repub) who told me about it, Harper was caught like a deer in the headlights. Literally at a loss for words. He ended up by lamely suggesting that she send him a postcard if *she* thought of something.

The GOP doesn't want to fix anything; they just want to continue profiting from the status quo, and to regain the White House. That's it.

An old lawyer trick bites the dust

The Mississippi Supreme Court unanimously reversed in State v. Bayer Corp. today -- not a surprising vote count, in view of the oral argument. This was part of the State's litigation over Average Wholesale Pricing in the pharma industry -- essentially a scam to defraud Medicaid, says the State. The chancery court had held that, because Bayer had settled similar claims about particular drugs in 2001, the investigation at that time surely would have turned up any similar claims about other drugs -- this on a 12(b)(6) motion. Yes, really.

A bit curiously perhaps, the Court takes up the issue of whether Bayer's motion to dismiss was improperly converted to a Rule 56 motion when it considered the 2001 settlement agreement and alleged facts pertaining thereto. I say "curiously" because, IIRC, Bayer's counsel expressly disavowed any such conversion at oral argument. Possibly the Court went en banc in part to lay this issue to rest, and wasn't going to be deterred by any trifling admissions.

Anyway, it seems to me that we now have a bright-line rule, though the Court could be a bit less coy about it:
Notwithstanding this Court’s longstanding application of Rule 12(b), Bayer relies on Sennett v. United States Fidelity and Guaranty Company, 757 So. 2d 206 (Miss. 2000), asserting that a trial court may consider matters outside the pleadings when ruling on a Rule 12(b)(6) motion. In Sennett, the core issue was whether the trial court had erred in granting a dismissal pursuant to the defendant’s Rule 12(b)(6) motion after considering an insurance policy that was attached to the defendant’s motion. Id. at 209. This Court joined the ranks of several federal courts of appeal in holding that, in rare circumstances, a trial court may consider documents attached to a defendant’s Rule 12(b)(6) motion to dismiss without converting the motion to dismiss to a Rule 56 motion for summary judgment, as long as the “plaintiff has actual notice of all of the information in the movant’s papers and has relied upon these documents in framing the complaint.” * * *

However, rather than adhering to the reasoning in Sennett, this Court has affirmed its allegiance to the rule limiting review of a Rule 12(b)(6) motion to the face of the complaint. In Wilbourn, 998 So. 2d 430 (Miss. 2008), the trial judge granted the defendant’s Rule 12(b)(6) motion after considering the effect of a whole-life insurance policy on the plaintiff’s complaint. Upon review, this Court held that Rule 12(b) expressly notes that when “matters outside the pleading are presented . . . the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Id. (quoting M.R.C.P. 12(b)). * * * Similarly, in Sullivan v. Tullos, 19 So. 3d 1271 (Miss. 2009), this Court held that failure to give a party ten days’ notice after a Rule 12(b)(6) motion has been converted into a Rule 56 motion will result in a reversal of the judgment by this Court. Id. at 1276.

Here, as in Wilbourn and Tullos, the trial court considered matters outside the pleadings when it took into account the 2001 Settlement Agreement. Having done so, the trial court was required to convert Bayer’s Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. The record shows that the trial court failed to do so, depriving the State of actual notice of its intent to rule on the matter as a motion for summary judgment. This Court’s recent interpretation of Rule 12(b)(6) and Rule 9(b) in Wilbourn and Tullos and a plain reading of Rule 12(b) establish this as error.
They don't come out and say Sennett is overruled, but that seems to be the only plausible reading. That reading is bolstered by a concurrence in which Waller and Dickinson argue that Sennett is good law, but that the lower court's consideration of alleged facts about the pre-settlement investigation is what brought the case under Rule 56 and required notice of conversion.

Attaching docs to a motion to dismiss and having it magically turn into a motion for summary judgment is a favorite old lawyer trick, so the bright-line rule is probably best. "Actual notice" means that the court actually has to tell the parties what it's doing, I think, as opposed to "constructive notice," where the parties are supposedly able to figure out what's happening with their own sweet little heads.

... Bardwell has the best post title I'll see in a while: "Ronnie Musgrove, Bayer Slayer." In comments, Bardwell disagrees that Sennett is effectively overruled, which just goes to show that the MSSC is going to have this question back on its plate sooner or later.

Wednesday, April 14, 2010

Another should-be indictee leaves the government

Remarkable. Steve Kappes, "who had signaled a desire to step down as long as two years ago" and whose "departure ... had been expected for some time" [/Postspeak], is resigning as no. 2 at CIA, shortly after a sharply critical profile of Kappes appeared. Coincidence, according to the news article press release in the WaPo. Via Sully.

I thought I'd posted on that profile, but apparently not.
When Obama’s intelligence transition team had visited Langley, it had gotten a pitch from Kappes and other CIA officials to “retain the option of reestablishing secret prisons and using aggressive interrogation methods,” according to an anecdote buried in a Washington Post story.

“It was one of the most deeply disturbing experiences I have had,” David Boren, the moderate Oklahoma Democrat and former Senate Intelligence committee chair who led the transition team, told the Post.

“I wanted to take a bath when I heard it,” said Boren, now president of the University of Oklahoma, adding that “fear was used to justify the use of techniques that violate our values and weaken our intelligence.”

That made Kappes as unconfirmable as Brennan--perhaps more so. But Senate-committee Democrats were perfectly happy to have Kappes quietly run the agency for Panetta.

Evidently they still are, despite a string of embarrassments over the past year, from the CIA’s continuing failure to capture Osama bin Laden to conflicting accounts over what the agency told Congress about waterboarding, the conviction of 23 of its operatives on kidnapping charges in Italy, and a suicide bomber’s deadly penetration of the spy agency’s most important field office in Afghanistan.

The bombing of the CIA station in Khost, Afghanistan, on December 30 by a Jordanian double agent wearing an explosive vest was a heavy blow to an agency that has struggled to navigate the post-9/11 world. When the Jordanian was escorted into the CIA’s secret compound in Khost, he hadn’t been frisked, according to news accounts. The explosion killed seven CIA officers, including the chief of base, a mother of three who was the agency’s top expert on al-Qaeda.

Old CIA hands were appalled at the security lapse. One attributed the disaster to having left the arrangements in the hands of an intelligence analyst—a person who pores over reports at a desk—instead of an experienced field-operations case officer.
Plenty more at the link.

Harry Potter and the Op-Ed of Disdain

J.K. Rowling for one is not planning to vote Tory:
I had become a single mother when my first marriage split up in 1993. In one devastating stroke, I became a hate figure to a certain section of the press, and a bogeyman to the Tory Government. Peter Lilley, then Secretary of State at the DSS, had recently entertained the Conservative Party conference with a spoof Gilbert and Sullivan number, in which he decried “young ladies who get pregnant just to jump the housing list”. The Secretary of State for Wales, John Redwood, castigated single-parent families from St Mellons, Cardiff, as “one of the biggest social problems of our day”. (John Redwood has since divorced the mother of his children.) Women like me (for it is a curious fact that lone male parents are generally portrayed as heroes, whereas women left holding the baby are vilified) were, according to popular myth, a prime cause of social breakdown, and in it for all we could get: free money, state-funded accommodation, an easy life.

An easy life. Between 1993 and 1997 I did the job of two parents, qualified and then worked as a secondary school teacher, wrote one and a half novels and did the planning for a further five. For a while, I was clinically depressed. To be told, over and over again, that I was feckless, lazy — even immoral — did not help.

* * * The 2010 election campaign, more than any other, has underscored the continuing gulf between Tory values and my own. It is not only that the renewed marginalisation of the single, the divorced and the widowed brings back very bad memories. There has also been the revelation, after ten years of prevarication on the subject, that Lord Ashcroft, deputy chairman of the Conservatives, is non-domiciled for tax purposes.

Now, I never, ever, expected to find myself in a position where I could understand, from personal experience, the choices and temptations open to a man as rich as Lord Ashcroft. The fact remains that the first time I ever met my recently retired accountant, he put it to me point-blank: would I organise my money around my life, or my life around my money? If the latter, it was time to relocate to Ireland, Monaco, or possibly Belize.

I chose to remain a domiciled taxpayer for a couple of reasons. The main one was that I wanted my children to grow up where I grew up, to have proper roots in a culture as old and magnificent as Britain’s; to be citizens, with everything that implies, of a real country, not free-floating ex-pats, living in the limbo of some tax haven and associating only with the children of similarly greedy tax exiles.

A second reason, however, was that I am indebted to the British welfare state; the very one that Mr Cameron would like to replace with charity handouts. When my life hit rock bottom, that safety net, threadbare though it had become under John Major’s Government, was there to break the fall. I cannot help feeling, therefore, that it would have been contemptible to scarper for the West Indies at the first sniff of a seven-figure royalty cheque. This, if you like, is my notion of patriotism. On the available evidence, I suspect that it is Lord Ashcroft’s idea of being a mug.
It's a close election, I understand; it will be interesting to see how this plays out.

Can you have sex with a sleeping spouse?

Or is it automatically rape?

This Canadian case (h/t Bashman) involves unmarried partners (who were raising two kids together as well), but the issue isn't limited by their being unwed.
The Court of Appeal majority reasoned that an individual who consents to being sexually manipulated once unconscious has exercised “personal autonomy.” The majority noted that the possibility of withdrawing consent does not exist once one slips into unconsciousness: “The only state of mind ever experienced by the person is that of consent.”

Writing in dissent, Mr. Justice Harry Laforme countered that the complainant's consent was negated the moment that she passed out.

“Consent ends when the active, independent, operating will ceases,” he said.
On the dissent's theory, one's wife simply cannot, as a matter of law, say "I want you to have sex with me while I'm asleep" -- or rather, that doesn't amount to consent. I appreciate the practical problems raised by feminist critics of the Canadian court's decision, but that just doesn't sound like it can be the right answer.

"I couldn't put it down, even with the holes in my hands!" -- J.C.

I must say, if you write a one-volume history of Christianity, you can do worse than to cop a favorable review from the Archbishop of Canterbury.

(H/t Cowen. I've read MacCulloch's Reformation volume, which is solid; probably I have read too many one-volume histories of Christianity, but I may read one more.)

Tuesday, April 13, 2010

The undeserving sick

Via Jon Chait, here's Roy Blunt, who apparently was elected to the House of Representatives by some Republican voters in Missouri, and who says:
but access for adults who've done nothing to take care of themselves, who actually will have what I have described every incentive not to get insurance until the day you know you're going to have medical expenses, that's a very different kind of story.
This apropos of why preexisting conditions shouldn't be covered.

The obvious retort is that, contrary to Rep. Blunt's understanding of the cosmos, some people do get sick without it's being their fault.

But the more interesting retort, I think, is the part I've bolded. Because that approaches the level of having an actual thought -- a dangerous course of action, one that might lead Rep. Blunt to conceive of the necessity of requiring everyone to buy insurance. And as we all know, fascism and genocide are the inevitable consequences of that train of thought. Best stick to the talking points, Roy boy.

... At Chait's post, commenter Blackton draws an inescapable conclusion:
Dick Cheney's 6 heart attacks is obviously a sign that he is a very, very bad man.

Favorite sentence of the day

Margalit keeps coming back to the great laboratory of wickedness that was the Second World War, which he describes as being to morality “what the supercollider is to physics: extreme moral experiences and observations emerged out of the high energy clashes”.
-- David Runciman, reviewing Avishai Margolit's On Compromises and Rotten Compromises (via 3QD).

Monday, April 12, 2010

You say "slavery," I say "diddly"

Diff'rent strokes for diff'rent folks, right? Via Sully, Jon Meacham:
If the slaves are erased from the picture, then what took place between Sumter and Appomattox is not about the fate of human chattel, or a battle between good and evil. It is, instead, more of an ancestral skirmish in the Reagan revolution, a contest between big and small government.

We cannot allow the story of the emancipation of a people and the expiation of America’s original sin to become fodder for conservative politicians playing to their right-wing base. That, to say the very least, is a jump backward we do not need.
And then there's Haley Barbour:
CROWLEY: The [Virginia] Governor didn’t even mention slavery in his proclamation. Was that a mistake?

BARBOUR: Well, I don’t think soI don’t know what you would say about slavery, but anyone who thinks that you have to explain to people that slavery is a bad thing — I think it goes without saying. * * *

To me it’s a sort of feeling that it’s just a nit. That it is not significant. It’s trying to make a big deal out of something that doesn’t matter for diddly.
Barbour also refers to "my Democratic legislature, which has done exactly the same thing in Mississippi for years." Not sure what he means by this, but if he's referring to Confederate Memorial Day, ThinkProgress links a 2009 proclamation issued by Barbour himself, which omits slavery but mentions "gain[ing] insight from our mistakes [Pickett's Charge? -TBA] and successes." Miss. Code Ann. 3-3-7 lists Confederate Memorial Day as one of the state's legal holidays, but I would have to do a little digging to find the enacting legislation and whatever it might say.

... Some reax to Barbour. Ta-Nehisi Coates: "The notion that slavery shouldn't be mentioned, because everyone knows its bad, but Robert E. Lee should be because, apparently, no one knows he was a great general, is, well, ignorant."

"Obama's Diverse Shortlist"

Now that we are already inundated with tea-leaf readings and amateur punditry on "who will replace Justice Stevens," Orin Kerr provides some much-needed comic relief.
Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.
... Kevin Drum supplements Kerr's post with a visual aid.

Friday, April 09, 2010

The other side of the, um, jungle?

Following a link to Spencer Ackerman's "Open Letter To The Washington Embassy Of The Bolivaran Republic Of Venezuela,", I found Ackerman's January 2010 open letter to the Center for a New American Security:
It has been brought to my attention that one of the greatest military geniuses of the 20th century, Gen. Vo Nguyen Giap, is still alive. This is a man from whom the American people, and the U.S. defense community, can learn a ton. You know who Gen. Giap is, of course, but for the uninitiated, he’s the Vietnamese general who patiently and persistently and cunningly won two Vietnam wars against major western powers and ultimately achieved his nation’s most important strategic objective of unifying Vietnam on Communist terms.

There has been much wise talk from the counterinsurgency community about the need to understand a given host-nation population on its terms. Far less discussed, because of the obvious controversy that results, is the need to understand how an enemy competes for the population’s active or passive support. We tend to reduce our insurgent enemies to their brutality or their barbarism; and exalt our own operations as providing security to thwart their rampage. And there’s truth in that. But it neglects the enemy’s strategy; its sophistication; and its advantages in sharing cultural, linguistic and historical bonds to the populace. Who better to challenge those assumptions than a man who actually defeated the U.S. in a war?
That is ... a very good idea. Giap is 98 years old, so I don't know how mentally acute he is, but would you be interested in Napoleon's senile remarks, had he lived to make some? Sure you would.

... In comments, PMS_CC provides some links to interviews etc. w/ Giap. (Thanks!)

The bookshelf

Between spring break in Vermont and Easter in NOLA, I think I can safely refrain from buying any more books for the rest of the year.

Gordon S. Wood, The Creation of the American Republic. For some reason, this is not in every history section of every general-interest bookstore in America. (Though B&N has plenty of Mein Kampf.) A classic I'd been meaning to get to, and Jacob Levy's mention of it put me over the edge.

Henry James, The Wings of the Dove. Late James is my favorite James, but I've probably read The Golden Bowl thrice for one time through this superb novel. The great opening chapter is so dramatic, you can see why James thought he could write for the stage; but the drama's 95% in the narration, not the dialogue. The only great book I can think of offhand where the "villain" is the protagonist.

Elizabeth Longford, Wellington: Pillar of State. The post-Waterloo career of the great general and less great statesman, sympathetically told by Longford, who turns out not only to've been a socialist, but also Antonia Fraser's mother.

Richard Reeves, John Stuart Mill: Victorian Firebrand. I had avoided this because, rightly or not, I've thought of Reeves as a rather loose biographer (perhaps that's my assumption about anyone who writes about JFK); but I picked up Mill's Autobiography and was so struck by the omissions, I had to turn to Reeves's book. Quite competent-seeming thus far, though since the same subtitle's been used for a life of Thorstein Veblen by a different author, I hope it will now be retired.

Lies, damned lies, and Sarah Palin

Sarah Palin literally wouldn't know the truth if it bit her in the butt:
"It's unbelievable. Unbelievable. No administration in America's history would, I think, ever have considered such a step that we just found out President Obama is supporting today. It's kinda like getting out there on a playground, a bunch of kids, getting ready to fight, and one of the kids saying, 'Go ahead, punch me in the face and I'm not going to retaliate. Go ahead and do what you want to with me.'"
This in response to Obama's announcement that the U.S. won't nuke countries that comply with the Nuclear Nonproliferation Treaty in the event of their attacking us with chem/bio weapons.

IOW, those countries -- and who are they, exactly? -- would merely be subject to retaliation by the most overwhelming conventional military in the history of the planet Earth.

Daniel Larison has been sighing over right-wing hysteria on this non-issue all week:
* * * there’s something about the irrationality and alarmism in the reactions to Obama’s foreign policy and national security decisions * * * The number of states exempted from nuclear retaliation and both willing and able to launch biological or chemical weapons attacks on the United States and our allies is zero. If there are any states capable of doing this, the massive conventional retaliation they would inevitably face would be more than enough to prevent them from making the attempt. All that the review does is commit the U.S. to not nuking non-nuclear states we are most likely never going to fight in the highly unlikely event that one of them launches an unconventional attack on us.
That is to say, it's pure PR by Obama. And pure lies from Palin and her ilk.

... Btw, this post headline is not only unoriginal, but has 160,000 Google hits. Sub "Barack Obama" and you get 44,500.

"Pope Forgives Molested Children"

"Though grave and terrible sins have been committed, our Lord teaches us to turn the other cheek and forgive those who sin against us," said the pope, reading a prepared statement from a balcony overlooking St. Peter's Square. "That is why, despite the terrible wrongs they have committed, the church must move on and forgive these children for their misdeeds."

"As Jesus said, 'Let he who is without sin cast the first stone,'" the pope continued. "We must send a clear message to these hundreds—-perhaps thousands-—of children whose sinful ways have tempted so many of the church's servants into lustful violation of their holy vows of celibacy. The church forgives them for their transgressions and looks upon them not with intolerance, but compassion."
Perhaps the most righteously vicious Onion story ever, and -- as Andrew Sabl notes -- dating from 2002. The church having done absolutely nothing to reform itself over the past eight years, the story remains on-point. I wish I could read it aloud to Benedict XVI personally.

Thursday, April 08, 2010

Enlightened despotism vs. the judiciary

... on 3 June 1740, only three days after his father's death, Frederick ordered that torture was no longer to be used, except in a small range of extreme cases involving crimes against king or country, or instances of multiple murder where robust interrogation was required to secure the identity of unknown accomplices. In a further order of 1754, Frederick extended this ban into a blanket prohibition, on the grounds that torture was not only "cruel" (grausam) but also unreliable as a means of getting at the truth, since there was always the danger that suspects would implicate themselves in order to avoid further torture. This radical measure left many judges and legal officials complaining that there now existed no means of extracting a confession -- the queen of proofs under all the ancien regime legal systems -- from recalcitrant offenders. A new evidential doctrine had to be improvised to cover cases where there was a plenitude of evidence, but no confessions.
-- Christopher Clark, Iron Kingdom: The Rise and Downfall of Prussia, 1600-1947, p. 253.

... Some reformers today advocate eliminating confessions altogether, since the police have become adept at extracting them without the rack and tongs.

All of a sudden, Blue Cross doesn't seem quite as bad

The basic picture of the federal government you should have in mind is that it’s essentially a huge insurance company with an army.
-- Paul Krugman, on the American government as characterized by its spending.

This is what you get when you elect district attorneys

I know I should quit posting today, but people just keep on being stupid:
District Attorney Suggests That It May Be a Crime for Teachers to Follow the New State Law Mandating Certain Forms of Sex Education

The letter, from Juneau (Wisconsin) County District Attorney Scott Southworth, is here. The D.A. is complaining about the new state statute on sex education; some of his objections:

[T]he new law ... [p]romotes the sexual assault of children — §118.019(2)6 requires schools to provide instruction on how to utilize contraception. However, it is a crime to engage in sexual intercourse with any child under the age of 18.... Forcing our schools to instruct children on how to utilize contraceptives encourages our children to engage in sexual behavior, whether as a victim or an offender. It is akin to teaching children about alcohol use, then instructing them on how to make mixed alcoholic drinks. While it is true that some children will wrongly choose to engage in sexual behavior before entering adulthood, our school districts should never promote illegal activity.
More from Mr. Southworth, and Prof. Volokh, at the link. I'm just so pleased this particular moron hails from so far north of the Mason-Dixon Line.

-- And why does he think that mixed drinks are comparable to condoms? Cocktails make it easier to get drunk.

When politicians sound like porn scripts

"I knew that we'd be buddies when I met her when she said, 'Drill here, drill now.' And then I replied, 'Drill, baby, drill' and then we both said, 'You betcha!'"

-- Sarah Palin, quoted by the Wall Street Journal, recalling a previous meeting with Rep. Michele Bachmann (R-MN).
-- Political Wire.

"Aristotle was not Belgian"

"And Nietzsche was not a socialist." Yeah, it really does sound like a line from A Fish Called Wanda. But then, Glenn Beck is a lot like Otto:
Glenn Beck is wrong is kind of a dog-bites-man story, but some of the evidence he’s offering here as proof that Barack Obama is secretly a socialist is just laughably bad. It starts with bullet points about Obama’s dad, including the fact that he was a “Harvard educated economist.” Then we get bullet points about Obama’s mom, including the fact that she was “Influenced by Nietzsche and Freud.” Presumably the idea here is that since Nietzsche has a funny foreign name, he must be a socialist. But here’s Nietzsche on socialism from Human, All-Too-Human:

Socialism is the fanciful younger brother of the almost expired despotism whose heir it wants to be; its endeavors are thus in the profoundest sense reactionary. For it desires an abundance of state power such as only despotism has ever had; indeed it outbids all the despotisms of the past inasmuch as it expressly aspires to the annihilation of the individual, who appears to it like an unauthorized luxury of nature destined to be improved into a useful organ of the community.

In other words, Nietzsche’s views on socialism are a lot closer to Glenn Beck’s than to Barack Obama’s.
On the other hand, do we really want Beck to start reading Nietzsche?

I'm reminded of Walter Kaufmann's remark that Hitler's reading of Nietzsche never got much beyond the titles.


Virginie Despentes, who crossed the periphery of the American consciousness with her film (from her novel) Baise-Moi, has a new book out, King Kong Theory. She gives good interviews, as Bookslut notices:
I'm surprised men barely question masculinity. I'm amazed, for example, that no male Hollywood actor complains that he has to carry guns or play soldiers, rapists, serial killers, stupid macho men. . . . Are they not fed up? Don't men want to show their legs in miniskirts and on high heels? Don't they want to dance like creatures on MTV? Don't they want to use the anus they've been gifted with for better sexual intercourse? Are they that happy to die for countries that won't give a goddamn fuck for them once they're back home? Most of them don't even enjoy the privilege of their gender. . . .

In this narrow frame, of course, gay men are the few. The elite. Trying something different. And lesbians, also, are the elite of womanhood. Obviously. Because who wants to have to deal on an intimate level with regular straight men? It can only be interesting if they might help you with money or your career. Otherwise, how depressing. Then, of course, gays and lesbians are still human. . . . We all live in the same shitty world. I guess only really hard drugs or death can be radical exits.

Your reading of Peter Jackson's film King Kong is quite unexpected. What made you see this latest version as a feminist fable?

Because I was working on the book when King Kong was released in France. . . . It struck me that any article I read about the movie would start from the point of King Kong being a male character, when nothing in the picture itself says so. It could be an asexual creature. And it could be female. Kong makes no particular reference to masculinity except that the creature is strong and the blonde is weak.

What effect do you think pornography has on desire? Does it make us believe that all of our sexual fantasies can come true?

Pornography feeds desire, helps the imagination, and lowers anxiety. The advertising we endure daily is more likely to make us believe that all our fantasies can come true. Pornography, I believe, does not: It's a message you can hardly confuse with reality. It's inconvenient that pornography has been kept in an economic ghetto, so we can hardly see quality porn. We could so much enjoy a huge-budget sodomic orgy filmed by Hollywood. Violence is good on the big screen, but nothing is better than sex.
Another interview:
3:AM: You say you speak on behalf of the “ugly” ones – is this not perhaps creating another cage by which to define women?

VD: Do you think I created this cage? Do you have any male heterosexual friends? Have a talk with them: the cage is already there. It’s not a cage, actually, it’s our main field. If you have any really fat friend, you should also have a talk with her or him: the cage is pretty tough to escape.

I am not creating anything, the space is already created. I am just standing from there to express what I have to express. Because I felt that the most important reaction to any feminist work in France is: she is so ugly that she can not provoke male’s interest, so she is angry and feminist. So I thought that was the good starting point: yes I am, and so what?

3:AM: OK, to you, who is the most important woman in existence, either living or dead?

VD: Is Jesus Christ a correct answer ?
FWIW, any notion that VD (heh) is "so ugly that she cannot provoke interest" is misplaced.

The End of Influence

Liaquat Ahamed, whose Lords of Finance you really should read, reviews The End of Influence by Cohen & DeLong, and since it's a favorable review, DeLong posts it. Short enough to read the whole thing, but too long to quote entire; here are some snippets:
* * * Berkeley professors Stephen S. Cohen and Brad DeLong argue in The End of Influence: What Happens When Other Countries Have the Money, that since the end of the Second World War, it has been the locomotive of the United States that has propelled the global economy and kept it on its tracks.

The basic pact was that America would act as the underwriter of world prosperity, allowing other countries to keep their currencies undervalued and thus promote economic development through export-led growth. Foreign countries were not only granted access to the enormous U.S. market, they were provided with liquid markets and a reasonably stable currency in which to invest their excess savings. The United States used its financial muscle to push free-market policies like open trade on the rest of the world. It was this economic Pax Americana that enabled Europe to rebuild after World War II, Japan and the countries of East Asia to industrialize, and China to take off.

In return, Americans got a lot of cheap goods from abroad and were collectively allowed to live beyond their means. For in order to provide a market for all these export-heavy countries, someone had to do the importing. The United States was thus constantly compelled to run current-account deficits, driving it further and further into debt. It was only a matter of time before this economic engine ran out of steam. * * *

At one point in their book, the authors draw a comparison between the position of Britain in the early twentieth century and the current position of the United States. I was surprised that they did not make more of the parallels. Through much of the nineteenth century Britain was the linchpin of the world financial system. It was the capital supplier of last resort during crises and acted countercyclically as the economic locomotive for the world. But, almost bankrupted by the First World War, it was no longer able to fulfill that function after 1919. The mantle of leadership should have passed to the United States. But American leaders were too parochial and insular to seize the opportunity. Thus, during the 1920s and 1930s, the United States was unwilling to lead and Britain unable.

American economic historian Charles Kindleberger used to argue that ultimately the Great Depression happened because of this failure of economic leadership on the world stage. He believed that a well-functioning global economy required one country to act as the leader, in effect to do more than its fair share of keeping the global economy moving, fully recognizing that smaller countries will freeload off of its efforts. If we are at a similar transition point in world leadership, if the United States has indeed been knocked off its pedestal in much the same way as was Britain in the early twentieth century, it does not bode well for the ability of the global economy to navigate its next storm.

Torture, utilitarianism, and The Aristocrats

Plus: What's *really* wrong with the Ticking Bomb argument!

... In a bizarrely long thread at Crooked Timber, various worthies argued that Orin Kerr is, at best, an unwitting supporter of Bush-era legal abuses, and at worst, a hack. The thread was enlivened by Prof. Kerr's interventions, and lowered a bit by TBA's.

Anyway, so long as the original topic of surveillance law and civil procedure was adhered to, Prof. Kerr held his own; but when someone (not me!) changed the subject to whether Prof. Kerr opposed torture where it arguably might save lives, he came back with this question, which I guess I'd better quote in full:
I think torture is horrible, evil, terrible, bad, wrong, and awful.

I understand the next question to be (at bottom) about whether I am a utilitarian. Let’s be more specific about the hypo, and then turn to the answer. Assume we have a known terrorist mastermind who we know has information about a plan to capture and then torture to death Rich Pulasky, ScentofViolets, LizardBreath, and politicalfootball, together with their spouses and all of their children.

Let’s assume, just for the sake of argument, that if we waterboard the terrorist, we are pretty sure that we can learn about the plot and save Rich Pulasky, ScentofViolets, LizardBreath, and politicalfootball, together with their spouses and families, from, being caught and tortured to death. Also assume that when the terrorists torture a person to death, it is a particularly and astonishingly cruel form of torture. And assume, as Rich suggests, that waterboarding is legal.

So the question is, do we decide not to waterboard the terrorist? That is, do we let Rich, Scent, LizardBreath, and political football, together with their families, die an extraordinary horrible death at the hand of torturers? Or do we waterboard the known terrorist (which is lawful in our hypo) and save Rich, Scent LizardBreath, and politicalfootball, together with their spouses and children?

I say we waterboard, and I’m curious what Rich, Scent LizardBreath, and politicalfootbal would say we should do. (Seriously, I would be interested in your answers, if you’re still in the thread.)

Incidentally, some might try to fight the hypo, and say that it’s unrealistic, or that we wouldn’t know all these things. But that objection would bring to mind the old story attributed to Churchill and the socialite:

Churchill: “Madam, would you sleep with me for five million pounds?”
Socialite: “My goodness, Mr. Churchill… Well, I suppose… we would have to discuss terms, of course…”
Churchill: “Would you sleep with me for five pounds?”
Socialite: “Mr. Churchill, what kind of woman do you think I am?!”
Churchill: “Madam, we’ve already established that. Now we are haggling about the price.”
My analytical skills were fading by this point in the evening, so I came back with this:
Prof. Kerr’s response to RP raises the issue of whether torture is wrong because it doesn’t work, or wrong because it’s Just Wrong.

I think that if torture were a reliable method of obtaining information, we would have fewer qualms about it, and our discussions would center more upon whether we were torturing the right people, with no permanent ill effects, etc.

But common sense, plus centuries of experience, have taught us that torture is not reliable. Which is why the hypo, like the ticking-bomb example (which it basically amounts to), rests on a false premise: that torture will allow us to save people. And why the possibility of obtaining good intel by torture is sufficiently small that, combined with its repugnance, civilized nations have been comfortable with a ban on torture (even if the UK, Israel, and the U.S., for instance, have proved themselves willing to torture anyway).

That distinguishes torture from the Churchill anecdote (a fav of mine, tho this is the first time I’ve seen it attributed to WSC). Conceding that one would torture if torture worked differently than it does in real life is not conceding anything about torture in the real world; we are not haggling over price. It’s like saying I would cheat on my wife, if I were married to a woman who not only tolerates cheating but downright insists on it. That science-fiction scenario tells me nothing about whether it’s okay to cheat on my real wife.
Which I think is okay, actually, but doesn't cut to the problems with Kerr's example (a version of the Ticking Bomb).

(1) All that the example proves is that people will do bad things under duress or necessity.

(2) It therefore proves too much, which is where The Aristocrats comes in. To save the human race from painful destruction, would you fuck your mother up the ass while defecating into your daughter's mouth and fellating your father, who is crouching on your mother's back and defecating himself, etc., etc.? ... You would? Then incestuous coprophagia must not be wrong, then!

(3) That really should suffice, but here's the kicker. We turn to the Torture Act, 18 U.S.C. 2340(1)-(2):
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ....
The Ticking-Bomb scenario, certainly in the grandiose version presented by Prof. Kerr, may itself violate the Torture Act. Threatening people with the imminent death of others to compel them to do things they wouldn't otherwise do, is one of the things torturers do.

Now, whether waterboarding someone would cause "prolonged mental harm" is arguable, but there's good evidence that it does. Alistair Horne on French torture in Algeria:
one should also note France’s painful discovery that, fifty years on, many former “torturers” in the armed services were having to resort to psychiatric “counselling.” The inflicters of torture as well as their victims remain grievously impaired.
Framing the issue of whether torture is morally permissible, in a scenario that itself amounts to an act of torture, strikes me as self-refuting somehow.

Wednesday, April 07, 2010

Nothing new under the sun

TBA was just packing up for a couple of days in NOLA when NMC posted about what happened to Constance McMillen: the "prom" she was invited to turned out to be a sham, while the real prom was held elsewhere.

The ever-classy parents and students, who apparently thought that Mean Girls was a how-to video, didn't just take the opportunity to exclude their lesbian classmate:
Two students with learning difficulties were among the seven people at the country club event, McMillen recalls. “They had the time of their lives,” McMillen says. “That’s the one good thing that come out of this, [these kids] didn’t have to worry about people making fun of them [at their prom].”
NMC also links to La Figa, which notes that the same trick was used 45 years ago in Birmingham to keep a black student away from the prom.
She spent all Saturday getting ready, fixing her hair, slipping into the pink floral dress her mother finished the week before. Her father, a Baptist preacher, helped pick her date, a respectable young man worthy of escorting his daughter, the first and only black student at Jones Valley High School.

She and her date drove that 1965 night with her father and a retinue of supporters and protectors toward the high school gym. They turned the corner.

The gymnasium was dark, empty.

"They had fooled us," Carolyn Tasmiya King-Miller said. "I remember going home that night in tears. I sat on the sofa in my prom dress, lying on my mother's breast and crying all night...."
I hope some of the Itawamba students grow up to be ashamed of what they participated in, but it's likely too late for their parents.

Saturday, April 03, 2010

Happy Easter

We have seen that the conception of the dying and risen God was no new one in these regions. All over Western Asia from time immemorial the mournful death and happy resurrection of a divine being appear to have been annually celebrated with alternate rites of bitter lamentation and exultant joy; and through the veil which mystic fancy has woven round this tragic figure we can still detect the features of those great yearly changes in earth and sky which, under all distinctions of race and religion, must always touch the natural human heart with alternate emotions of gladness and regret, because they exhibit on the vastest scale open to our observation the mysterious struggle between life and death.

But man has not always been willing to watch passively this momentous conflict; he has felt that he has too great a stake in its issue to stand by with folded hands while it is being fought out; he has taken sides against the forces of death and decay -- has flung into the trembling scale all the weight of his puny person, and has exulted in his fancied strength when the great balance has inclined towards the side of life, little knowing that for all his strenuous efforts he can as little stir that balance by a hair's-breadth as can the primrose on a mossy bank in spring or the dead leaf blown by the chilly breath of autumn.

Nowhere do these efforts, vain and pitiful and pathetic, appear to have been made more persistently and systematically than in Western Asia. In name they varied from place to place, but in substance they were all alike. A man, whom the fond imagination of his worshipers invested with the attributes of a God, gave his life for the life of the world; after infusing from his own body a fresh current of vital energy into the stagnant veins of nature, he was cut off from the living before his failing strength should initiate a universal decay, and his place was taken by another who played, like his predecessors, the ever-recurring drama of the divine resurrection and death. * * *

A chain of causes which, because we cannot follow them, might in the loose language of daily life be called an accident, determined that the part of the dying god in this annual play should be thrust upon Jesus of Nazareth, whom the enemies he had made in high places by his outspoken strictures were resolved to put out of the way. They succeeded in ridding themselves of the popular and troublesome preacher; but the very step by which they fancied they had simultaneously stamped out his revolutionary doctrines contributed more than anything else they could have done to scatter them broadcast not only over Judaea but over Asia; for it impressed upon what had hitherto been mainly an ethical mission the character of a divine revelation culminating in the passion and death of the incarnate Son of a heavenly Father. In this form the story of the life and death of Jesus exerted an influence which it could never have had if the great teacher had died, as is commonly supposed, the death of a vulgar malefactor. It shed round the cross on Calvary a halo of divinity which multitudes saw and worshiped afar off; the blow struck in Golgotha set a thousand expectant strings vibrating wherever men had heard the old, old story of the dying and risen god.
--Frazer, "The Crucifixion of Christ," The Golden Bough (Oxford abridgement 1994), pp. 675-76 (paragraphing altered).

... I note that the hymn echoed in the last sentence quoted, did indeed precede The Golden Bough by some 20 years, and we may infer that Frazer had it in mind.

... May we credit some ironical typesetter for commencing this chapter on page 666 of the Oxford World's Classics edition?

Thursday, April 01, 2010

April 1, without a fool

Y'know, it's refreshing to be able to read a carefully reasoned Mississippi Supreme Court opinion, reversing a felony conviction, that's signed by all nine justices instead of 8-1 with Easley, J., dissenting.

Good riddance.

(And props to Will Bardwell, who took an extremely unpromising-looking case and came out on top with it.)