Friday, July 30, 2010

"Whatever Happened to Modernism?"

Asks Gabriel Josipovici:
... according to one leading academic, leading contemporary British authors such as Salman Rushdie, Ian McEwan and Julian Barnes are unworthy of the accolades they receive.

In an outspoken attack, Gabriel Josipovici, the former Weidenfeld professor of comparative literature at Oxford University, condemned the work of the giants of the modern English novel as hollow. He said they were like "prep-school boys showing off" and virtually indistinguishable from one another in scope and ambition. * * *

"We are in a very fallow period," Josipovici said, calling the contemporary English novel "profoundly disappointing – a poor relation of its ground-breaking modernist forebears".

He said: "Reading Barnes, like reading so many other English writers of his generation – Martin Amis, McEwan – leaves me feeling that I and the world have been made smaller and meaner. The irony which at first made one smile, the precision of language which was at first so satisfying, the cynicism which at first was used only to puncture pretension, in the end come to seem like a terrible constriction, a fear of opening oneself up to the world.

"I wonder, though, where it came from, this petty-bourgeois uptightness, this terror of not being in control, this schoolboy desire to boast and to shock." Such faults were less generally evident in Irish, American, or continental European writing, he added.

Laurence Sterne's 18th-century novel Tristram Shandy remained more avant-garde than the so-called avant-garde today, Josipovici argued.

"An author like Salman Rushdie takes from Sterne all the tricks without recognising the darkness underneath. You feel Rushdie's just showing off rather than giving a sense of genuine exploration."

Currently a research professor at Sussex University, Josipovici hopes the criticisms – to feature in a forthcoming book, What Ever Happened to Modernism? – will spark a wide-ranging debate on the assessment of modern English literature.

While great novels deal with complex events beyond the full understanding of both the characters and the reader, too many contemporary works follow traditional plots with neat endings, he said.

Referring to graduates, like McEwan, of the University of East Anglia's famous creative writing course, Josipovici said: "They all tell stories in a way that is well crafted, but that is almost the most depressing aspect of it — a careful craft which seems to me to be hollow."

He singled out The Comfort of Strangers, McEwan's story of obsession, as easy to read but lacking "a sense of destiny, of other worlds suggested but lying beyond words", unlike that experienced through Proust or Henry James. McEwan's novel is read "to pass the time", he said.

Such novels had a "lack of vision and limited horizons".

"One finishes them and feels, 'So what?' – so very different from the gut-wrenching experience of reading Herman Melville's Bartleby or William Golding's The Inheritors," said Josipovici. * * *

Josipovici extended his criticism to one of the behemoths of modern US writing, Philip Roth.

"For all Roth's playfulness – a heavy-handed playfulness at the best of times – he never doubts the validity of what he is doing or his ability to find a language adequate to his needs. As a result, his works may be funny, they may be thought-provoking, but only as good journalism can be funny and thought-provoking."
Obviously one would want to see Josipovici's argument in his book, rather than rely on a newspaper account, but his argument seems to be that these novels lack sublimity, which he connects interestingly to literary "control" and mastery of language. The sublime is what appears beyond the ability of our thoughts and language to comprehend or describe.

I would be curious to know what Josipovici thinks of Gaddis, Pynchon, and Wallace ... and what James Wood thinks of Josipovici's criticism.

The bottom line, of course, is that the modernist has never been an award-winner. Proust, Joyce, Woolf, and even Lawrence never won the Nobel.

Thursday, July 29, 2010

"Panel hits Rangel with 13 alleged ethics charges"

Rangel, however, insists that they are actually ethics commendations.

Or maybe his side of the story is, they actually tased him?

(Yahoo! News.)

Judge ordered to recuse mid-trial

Something that many attorneys have dreamed of, but just as you have to be Brad Pitt to atract an Angelina Jolie, so likewise you probably have to be Patrick Fitzgerald to have the Seventh Circuit remove your judge sua sponte during a trial:
In an extraordinary maneuver, the federal appeals court in Chicago removed a judge from an ongoing criminal trial that has been marred by disagreements between the prosecutors and the judge.

The 7th U.S. Circuit Court of Appeals provided no explanation in its Tuesday order dismissing U.S. District Judge James Holderman from the jury trial of a man facing drug charges. The court said an opinion would be forthcoming.

The appeals court intervened after U.S. Attorney Patrick Fitzgerald took the unusual step of stopping the trial twice to ask the court to review the judge's decision to exclude critical fingerprint evidence against the defendant. * * *

Fitzgerald did not ask the appellate court to remove the judge from the case, only to find that Holderman erred in excluding the evidence.

A three-judge appellate panel ruled in Fitzgerald's favor and allowed the evidence and testimony related to the fingerprints.

However, the additional sanction of Holderman by U.S. Circuit Judges Richard Posner, Diane Sykes and Ilana Rovner stunned court watchers. The appellate court overturns rulings of Chicago federal judges all the time, but few could remember the last time a judge was removed in the middle of a trial.

"This is an extraordinary situation; it really is," said Len Cavise, a law professor at DePaul University who is a former criminal defense attorney. "Posner is one of those judges that if something happens procedurally that he doesn't like, he will take action immediately." * * *

Before the trial started July 6, Holderman excluded evidence of two fingerprints on drug packaging because the prosecutor had violated a court deadline for evidence gathering. The federal appeals court reversed the ruling, saying the exclusion was too harsh a penalty for missing a deadline.

Yet during the trial, Holderman found problems with the reliability of the same fingerprint evidence. He notified the prosecutors, prompting them to file an appeal with the appeals court July 14. Holderman responded in court papers that he had not made a final decision.

On July 22, the judge definitively excluded the evidence, leading to another trial stoppage. In the petition, Fitzgerald said Holderman had accused multiple prosecutors of lying and threatened to hold misconduct hearings. The judge fired back in court papers filed Tuesday that the government's petition contained "several deficiencies" and "false factual statements."
Looking forward to that opinion. (Via How Appealing.)

We don't love you, Pres. Funkenstein

Another Kevin Drum post on the liberals' discontents, or "funk":
Prior to 2008, what kinds of things had been on the lefty wish list? What made our hearts sing? A temporary tax cut and a one-time investment in infrastructure and energy projects? Nope. Bailing out General Motors? Nope. Financial industry reform? Nope. Before 2008, Wall Street reform was barely even on anyone's radar. It's purely a reaction to a crisis, not the culmination of a long campaign by populist liberals — and in any case the final result was watery enough that it's highly unlikely to change Wall Street in any serious way.

So that leaves healthcare reform. And watered down or not, that really is a big deal. But among big ticket items on the lefty wish list, that's it. That's all we got. And I hardly have to tell you that not every lefty is as enthusiastic about its final form as I am.

So in terms of setting liberal hearts aflutter, there's basically been just one thing — and not much hope of getting anything more for the rest of Obama's term. And to tot up against that, we've had an almost complete acquiescence to the Bush/Cheney vision of national security; an escalation of the war in Afghanistan; the reappointment of Ben Bernanke; a couple of very moderate Supreme Court picks; an obvious unwillingness to back a serious energy bill; and indefensibly slow progress in naming new appointments. All of these things can be justified individually, but if you put 'em together and weigh them against a single major piece of liberal legislation you don't get a very pretty picture. And that's the picture a lot of liberals are seeing.
Hence what Drum calls "the liberal funk." And that ain't the same as P-Funk, Da Bomb, y'all. This is the bad funk, where bad ain't good. And the source of all this bad funk is President Funkenstein.

So what's this "Thus Blogged Anderson" about, Mr. Anderson?

Via Emptywheel, news that Obama thinks you don't have shit for privacy:
The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history.
Wow. Just "wow."

Wednesday, July 28, 2010

Nietzsche contra Watson

Tyler Cowen reports that Peter Watson has a new book out on The German Genius. Perhaps by now, Watson has developed an understanding of Nietzsche less disappointing than in his claim-to-fame book The Modern Mind:
Nietzsche's concept of the "superman," the Ubermensch, lording it over the the underclass certainly sounds like evolution, the law of the jungle, with natural selection in operation as "the survival of the fittest" for the overall good of humanity, whatever its effects on certain individuals. But of course the ability to lead, to create values, to impose one's will on others, is not in and of itself what evolutionary theory meant by "the fittest." The fittest were those who reproduced most, propagating their own kind. Social Darwinists, into which class Nietzsche essentially fell, have often made this mistake.
This is the kind of thing that sends one straight to the notes, to find out where Watson got his notions about Nietzsche. Sure enough: one citation to The Will to Power (= N's notebooks as selectively edited after he went mad) and several to a secondary source (one Arthur Herman's The Idea of Decline in Western History).

Nietzsche was not a "Social Darwinist." He was not under the least mistake that there was any necessary tendency towards the evolutionary success of the "overman." Far from it. Had Watson left aside his secondary source and a book Nietzsche never published, and read just one book, Beyond Good and Evil, he would've been clearer on that. From section 203 (in the breathlessly caps-for-italics online version of the Zimmern translation):
There are few pains so grievous as to have seen, divined, or experienced how an exceptional man has missed his way and deteriorated; but he who has the rare eye for the universal danger of "man" himself DETERIORATING, he who like us has recognized the extraordinary fortuitousness which has hitherto played its game in respect to the future of mankind--a game in which neither the hand, nor even a "finger of God" has participated!--he who divines the fate that is hidden under the idiotic unwariness and blind confidence of "modern ideas," and still more under the whole of Christo-European morality--suffers from an anguish with which no other is to be compared. He sees at a glance all that could still BE MADE OUT OF MAN through a favourable accumulation and augmentation of human powers and arrangements; he knows with all the knowledge of his conviction how unexhausted man still is for the greatest possibilities, and how often in the past the type man has stood in presence of mysterious decisions and new paths: --he knows still better from his painfulest recollections on what wretched obstacles promising developments of the highest rank have hitherto usually gone to pieces, broken down, sunk, and become contemptible. The UNIVERSAL DEGENERACY OF MANKIND to the level of the "man of the future"--as idealized by the socialistic fools and shallow-pates--this degeneracy and dwarfing of man to an absolutely gregarious animal (or as they call it, to a man of "free society"), this brutalizing of man into a pigmy with equal rights and claims, is undoubtedly POSSIBLE!
Nietzsche is acutely aware that natural selection favors the herd, the "last men," for whom security and satiety is all. That is precisely why he thinks that artificial selection, the "creation of values," is essential if humankind isn't to degenerate and lose its capacity for greatness. One may disagree with Nietzsche as to the value of security and satiety; one may observe that, politically speaking, he hasn't the least clue what is to be done; but for God's sake, in an "intellectual history of the 20th century," don't confuse him with Herbert Spencer, whom Nietzsche classed with Darwin and Mill as a "respectable but mediocre Englishman." (Unfair to Darwin, but then, N. probably knew Darwin through Spencer, at best. One must remember how poor N's eyesight was by 1886; reading caused him eyestrain and headaches.)

The bookshelf

Been reading a good bit of Philip Kerr lately, especially his Bernie Gunther "Marlowe amongst the Nazis" novels. Obviously I like them enough to be on # 5 now, but I'm not sure how good they really are. The One from the Other had the best plot thus far, but Kerr is not as consistent as I'd like; Bernie gets all religious on us in A German Requiem but seems to've forgotten it in the next book. And particularly in the early ones, the Chandler wisecracks and similes seem to flow out of everyone's mouth, not just Bernie's, which gets a bit cute and misses the point of Marlowe's irony, which is part of what sets him against the rest of the world.

Also picked up his Hitler's Peace, which was well-plotted again but did not impress me with Kerr's research skills -- the first chapter has FDR making ultra-strong martinis. Uh, no: Roosevelt's 2:1 gin:vermouth recipe was notoriously nauseating.

... Robert Service, Trotsky: Not as good as his bio of Stalin, this book manages to be rather foggy about just what Trotsky did, and didn't. His collaboration in Lenin's use of terror is more assumed than discussed, and Service seems to have to strain a bit to let us know how bad a fellow Trotsky was. The book mainly left me wishing for a strong narrative account of the Soviet government's 1920s; how Stalin came out on top is a story worth telling well.

... Not sure how I forgot Peter Lyon, Eisenhower: Portrait of the Hero, a left-leaning bio covering both the Army and the White House, which makes it the only reliable full-length, full-dress Eisenhower bio now that Ambrose is more or less discredited. Lyon is more discursive than most biographers these days (the book's from 1974), but his judgment is good and he gives a fair-minded, bemused appreciation of Eisenhower's hits and misses.

Tuesday, July 27, 2010

Tory Blogged Anderson

Really, I keep looking at the new UK government covetously, like "I wish *I* had a government that talked like that." Latest instance, David Cameron in Turkey:
The Israeli attack on the Gaza flotilla was completely unacceptable. And I have told PM Netanyahu, we will expect the Israeli inquiry to be swift, transparent and rigorous. Let me also be clear that the situation in Gaza has to change. Humanitarian goods and people must flow in both directions. Gaza cannot and must not be allowed to remain a prison camp.
Then there's the fact that the Brits are actually using the occasion of a change of government to investigate how the Iraq war was promoted ... not to mention a torture inquiry.

The Dems are not even practicing good politics. All this seems likely to help keep Labour on the defensive, whereas by ruling out such proceedings up front, Obama has helped keep the GOP on offense against him.

... We must add that, even tho they won despite it, the Tories' "Cameron photo + text" poster should be a textbook example of how not to advertise in the Photoshop era.

Monday, July 26, 2010

The most influential Mississippian of the 20th century?

My money would be on Fox Conner:
Fox Conner (November 2, 1874-October 13, 1951) was a major general of the United States Army. He served as operations officer for the American Expeditionary Force during World War I, but is best remembered as "the man who made Eisenhower". * * *

Conner's most lasting contribution was his mentorship of a young Army officer named Dwight Eisenhower. Conner first met Eisenhower in 1919 at the Infantry Tank School at Camp Meade and the two men immediately developed a great mutual respect. When Conner took command of the 20th Infantry Brigade in Panama, he invited Eisenhower to join his staff. For three years, Conner instituted a systematic course of study for Eisenhower that ranged from extensive readings in military history to daily practical experience writing field orders for every aspect of the command. Finally, Conner pulled strings to get his protege admitted to the Command and Staff School at Fort Leavenworth, where Eisenhower graduated first in his class thanks in no small part to his comprehensive Panamanian tutelage.
IIRC, Conner met Eisenhower over dinner at George Patton's house.

It's of course possible that Eisenhower's talents would have been noticed otherwise, but I tend to doubt it; the Army's main use for Ike at that time seemed to be as a football coach. Would George Marshall have ended up commanding SHAEF? Would Taft have been the GOP nominee in 1952? Would Stevenson have won?

... I'm not sure whether Conner was "from" Slate Springs, which is on Hwy. 9 at the south edge of Calhoun County. I recall driving back from a hearing in Calhoun City and seeing a historical marker to Conner, but it seems to me I was driving to Grenada so it wouldn't have been so far south as Slate Springs. I will have to take a picture of the marker when I'm up that way again.

Sunday, July 25, 2010

Against self-conscious self-consciousness

Geertz has encouraged a whole generation of anthropologists to parade their real or invented inner qualms and paralysis .... They agonize so much about their inability to know themselves and the Other, at any level of regress, that they no longer need to trouble themselves too much about the Other .... Why waste too much time in the physical discomfort of the fieldwork situation? [C]ognitive impotence and angoisse can be felt just as well in Paris as in the Middle Atlas. Better, really.
-- Ernest Gellner.

Friday, July 23, 2010

Ex-MI5 chief's testimony on Iraq war

The recent head of the UK's Security Service has been testifying about her office's evaluation of terrorism and Iraq.
[Q. * * *] Can I just ask one final question, which is related to the things that Iraqis might have done, and this refers to the proposition that Saddam's regime were in some way responsible for providing support, potential support to Al-Qaeda, and even might have been involved in 9/11. Did you give any credence to these sorts of assessments?

BARONESS MANNINGHAM-BULLER: No. I think you have material suggesting that there had been intelligence on occasional contact in the past but I think -- I wrote this down when I was preparing for today -- there was no credible intelligence to suggest that connection and that was the judgment, I might say, of the CIA. It was not a judgment that found favour with some parts of the American machine, as you have also heard evidence on, which is why Donald Rumsfeld started an intelligence unit in the Pentagon to seek an alternative judgment. But there were tiny scraps suggesting contact, usually when Saddam Hussein felt under threat, and the danger was that those tiny scraps of intelligence were given an importance and weight by some which they did not bear. So to my mind Iraq, Saddam Hussein, had nothing to do with 9/11 and I have never seen anything to make me change my mind.

SIR LAWRENCE FREEDMAN: Were you given sight of some of the material produced by the Pentagon?

BARONESS MANNINGHAM-BULLER: I don't think I was. Probably a good thing; it would have made me cross.
Via Ricks, who also gives us this bit:
Lady M-B also mentioned that she went to see Paul Wolfowitz once to tell him that disbanding the Iraqi army and banning Baathists from public life was a mistake:

"SIR RODERIC LYNE: But you didn't convert him?

Snark aside, perhaps the most telling testimony is this:
Now, how significant in your view a factor was Iraq compared with other situations that were used by extremists, terrorists, to justify their actions?

BARONESS MANNINGHAM-BULLER: I think it is highly significant and the JIC assessments that I have reminded myself of say that.

By 2003/2004 we were receiving an increasing number of leads to terrorist activity from within the UK and the -- our involvement in Iraq radicalised, for want of a better word, a whole generation of young people, some British citizens -- not a whole generation, a few among a generation -- who were -- saw our involvement in Iraq, on top of our involvement in Afghanistan, as being an attack on Islam.

So although the media has suggested that in July 2005, the attacks on 7/7, that we were surprised these were British citizens, that is not the case because really there had been an increasing number of British-born individuals living and brought up in this country, some of them third generation, who were attracted to the ideology of Osama bin Laden and saw the west's activities in Iraq and Afghanistan as threatening their fellow religionists and the Muslim world.
Were they entirely wrong? Given the obviously trumped up nature of the Iraq war, foreigners could be forgiven for assuming that the stated reasons were false, which left lots of room for the true reasons.

We do pretty pretty good

Jon Chait notes that, for Title IX purposes at least, (one district court has held that) cheerleading isn't a "sport."

TBA would not mention this controversy, were it not that Chait has a photo of a cheerleading squad with his post. That of Hinds Community College, to be exact.

Let Mississippi revel in its national recognition!

Thursday, July 22, 2010

But baby, they think it's you

In the wake of the Shirley Sherrod debacle, Kevin Drum finds himself unable to imagine the conservative mindset, or heartset:
On an intellectual level, I can sort of get this. If I were a conservative Christian I'd be unhappy with the increasing secularization of society and the 60s-era Supreme Court decisions that largely removed it from the public square. If I were a white guy stuck in a sucky job and heard stories of blacks being given preference in promotions and school placements, I'd be pissed. If I were socially traditional and my school district insisted on a curriculum that endorsed tolerance of gay lifestyles, I'd be horrified. If I only heard the Fox News version of Climategate, it would seem like truly terrifying proof of a massive global conspiracy and fraud.

But on an emotional level, it just seems nuts. So I wish that I could figure out a way to feel it. To understand it. I wish I could somehow do the "Black Like Me" thing. (Explanation here if you're too young to remember this.) But how? What would it take to somehow enter this world and actually try to feel what so many conservatives apparently feel? Since I almost totally lack empathy I probably couldn't do it in any case, but could anyone? What would it take to truly understand what's going on here? Because, if anything, it seems to be getting even more virulent and I find myself increasingly unable to understand it.

I don't know why I'm writing this. I'm just feeling increasingly estranged from the political world these days, as if it's some kind of nightmare that's taken over our national psyche and refuses to let go — and I'm forced to participate and can't wake up no matter how hard I try.
I wonder if some gifted novelist, without descending into satire (very difficult to avoid), has managed to depict what it *feels* like to be a Palinite.

... Of course, being a liberal, Drum titles his post "My Empathy Problem." Had he been a conservative writing from the opposite angle, it would've been "Liberals Make No Sense Whatsoever." We on the left always blame ourselves first.

(Blog title per the undeservedly obscure Brenda Kahn: "You maybe think the world's gone mad / But baby, they think it's you." I have occasion to recall that line at least once a week.)

Wednesday, July 21, 2010

The decline and fall of America (a continuing series)

At some point, Rome no longer could maintain its roads and aqueducts, due in part to a declining tax base and the decay of central authority. Fast forward:
Paved roads, historical emblems of American achievement, are being torn up across rural America and replaced with gravel or other rough surfaces as counties struggle with tight budgets and dwindling state and federal revenue. State money for local roads was cut in many places amid budget shortfalls.

In Michigan, at least 38 of the 83 counties have converted some asphalt roads to gravel in recent years. Last year, South Dakota turned at least 100 miles of asphalt road surfaces to gravel. Counties in Alabama and Pennsylvania have begun downgrading asphalt roads to cheaper chip-and-seal road, also known as "poor man's pavement." Some counties in Ohio are simply letting roads erode to gravel.

The moves have angered some residents because of the choking dust and windshield-cracking stones that gravel roads can kick up, not to mention the jarring "washboard" effect of driving on rutted gravel.

But higher taxes for road maintenance are equally unpopular. In June, Stutsman County residents rejected a measure that would have generated more money for roads by increasing property and sales taxes.

"I'd rather my kids drive on a gravel road than stick them with a big tax bill," said Bob Baumann, as he sipped a bottle of Coors Light at the Sportsman's Bar Café and Gas in Spiritwood. * * *

Judy Graves of Ypsilanti, N.D., voted against the measure to raise taxes for roads. But she says she and others nonetheless wrote to Gov. John Hoeven and asked him to stop Old 10 from being ground up because it still carries traffic to a Cargill Inc. malting plant. She says the county has mismanaged its finances and badly neglected roads.
Barbarians, Tea Partiers, whatever. (H/t LGM.)

Because it's not like you read the Onion yourself

WASHINGTON—Barack Obama stands alone in the ruins of what was once his living room, calling out in vain for a dog that never comes. Less than 36 hours ago, his house stood proudly intact. But the violent tornado that tore through the region late Sunday night upended everything in an instant, scattering his belongings and leaving his family homeless and helpless.

"My God, just look at this," the 48-year-old government employee said as he surveyed the splintered furniture and mangled chandeliers that littered the 18-acre property. "Everything is gone. Our clothes, our family photos, the federal budget for fiscal year 2011—it's all gone."

Added Obama, "This was our dream home." * * *

While the Obamas acknowledge that regrouping from such a devastating tragedy will be a long and difficult process, they are drawing strength from the overwhelming outpouring of support and generous donations they have received from friends, neighbors, and lobbyists.

"When I heard the bad news, I figured I'd swing over with a few longnecks for Barry and some intimates for Michelle," said Joe Biden, one of Barack Obama's coworkers, referring to the six-pack of Budweiser and assortment of women's underwear and negligee that he hand-delivered to the family Monday evening. "Hope she's a size 10. Sure looks like a 10."
-- "Local Family Homeless After Tornado Destroys White House." The photo of Biden is really not to be missed.

Tuesday, July 20, 2010

"‘Lying together’ meant that a man placed his stomach against a woman’s and that it was a crisis when he warmed her"

Biography may have little to tell us about why a novelist writes well, but it can sometimes be helpful in understanding why a novelist writes badly. So it is not insignificant, in reading such a purple passage, to learn that at the time he wrote it--in his mid-twenties--Forster actually did not know how men and women had sexual intercourse. This is hard to credit, but Forster himself said so.
-- Adam Kirch, reviewing a new biography of E.M. Forster.

... I wrote long ago on Forster's Aspects of the Novel with regard to why he quit novel-writing. Kirsch:
Moffat argues, with support from Forster himself, that the reason he stopped writing fiction was his impatience with heterosexual romance as a subject. But Forster also gave other reasons--above all, his sense that the novel was intimately connected with a social order that was doomed in Europe.
My guess was closer to Moffat's, but not so predicated on "heterosexual romance." Forster just found the novel tedious. In Aspects he complains that the novel must tell a story, and I think he simply came to dislike the creaky causation of the traditional novel, without caring to strike off into experimentation like Woolf's. Consider his recurrent tendency to authorial digressions; Forster was perhaps an essayist trying to write novels. If the man had really burned to write gay novels, he could've gone expat and lived in happy homosexuality in the south of France or wherever. I think he really came to recognize that it wasn't in him.

Court of Appeals reading-challenged

The Mississippi Court of Appeals has held that a trial court isn't required to give notice of converting a Rule 12(b)(6) motion to a Rule 56 motion. That's interesting, since just recently in State v. Bayer Corp., the MSSC certainly seemed to think that was the case.

I am not impressed by the COA's inability to read Rule 12:
Although couched as one under Rule 12(b)(6), Enterprise’s original motion contained exhibits outside the pleadings. The instant case, therefore, resembles Davis rather than Sullivan; in Davis, the “conversion” stemmed not from the trial court’s decision to convert the motion in response to evidence offered at the hearing, but from the original motion itself.
Uh, no. Rule 12 says that the conversion takes place if additional matters are submitted and not excluded by the trial court. It's the trial court's action (or inaction), not any action of the parties, that converts the motion.

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.
Judge Griffis quite correctly dissents, but doesn't cite Bayer -- no biggie, since Sullivan v. Tullos makes it crystal-clear, but still, an odd omission.

The COA goes on to say that the parties *treated* the motion as if it were under Rule 56:
The original motion was filed on March 3, 2008, and a response from the Robisons followed on March 14. Although styled a response to the motion to dismiss, it too, in substance, was a response to a summary judgment motion. The Robisons attached additional exhibits outside the pleadings – an affidavit and excerpts from a deposition – and they urged the court to find a question of fact for the jury. Enterprise’s response, filed on March 24, again urged the Court to consider matters outside the pleadings. A notice of hearing on the motions was filed on March 31, and the hearing was set for and held on July 1, 2008, three months after the notice of the hearing and almost four months after exhibits outside the pleadings were offered with the initial motion. Two weeks after the hearing, the Robisons offered a supplemental response, purporting to enumerate undisputed facts and urging the trial court to find “genuine issues of material fact.” This is clearly addressed to a summary judgment motion; it does not
resemble a response to a motion to dismiss for failure to state a claim under Rule 12(b)(6).
That is just dumb. The Robisons' attorney doubtless was afraid that the court *would* convert the motion, but he had no way of knowing it *would* do so unless and until it gave notice, which it did not.


(1) Don't read any reviews of Inception before you see it.

(2) See Inception. Yes, it stars DiCaprio. See it anyway.

(3) Then marvel at reviews that find it "hollow emotionally." WTF???

The movie may not be perfect, but it's damn good -- better than Nolan's last non-Batman film, The Prestige.

Monday, July 19, 2010

Back, kinda

Returned from my pilgrimage, which involved some of the classic elements -- a long journey, a mountaintop, and an elevated level of consciousness.

Busy catching up on the day job however, so not much time to enjoy the internet. Tho I see that Randy Barnett is still as crazy as a libertarian bedbug.

Friday, July 09, 2010

"Ancient Greece looked more like someone crashed their LGBT pride parade into a Mardi Gras festival"

Six things from history that "everybody" pictures wrong.

Gone fishing

TBA is accompanying a religious pilgrimage to North Carolina from Sunday to Saturday, and does not expect to have any useful degree of internet access during that time.

How our readers will cope, we dare not imagine, lest we be driven to unmanly tears. Which however we'll probably be shedding anyway, after the second or third hike.

Thursday, July 08, 2010

Why torture is wrong

Why is torture wrong? I would like to think that “torture” itself connotes wrongness, like “murder” and “rape,” but evidently not. Most people seem to think that torture is okay some of the time. Let’s try to show why they are mistaken. Premise:

Causing gratuitous pain and suffering is evil.

– This seems easy to accept. I’m not addressing sadism, = causing pain for one’s own pleasure. Just causing pain to someone for no good reason. Prisoners of course suffer from being incarcerated, but that is not gratuitous suffering, and I think it’s widely believed that even prisoners should not be hurt beyond what their sentence requires.

Torture causes extreme pain and suffering.

– Or else we couldn’t call it “torture.” People have tried to argue that sleep deprivation, forced standing, waterboarding, etc. aren’t really “torture,” but that arises from ignorance about how miserable these make people. And that argument makes no sense – how are these supposed to be so awful that they make people confess to things they otherwise wouldn’t confess to, but not awful enough to constitute suffering?

So, then: if torture is not evil, then it must not be gratuitous. It must have a practical benefit.

If torture is preferable to another method of interrogation, then torture is not gratuitous.

- But we know from professionals who do interrogation for a living that torture is not the best way to interrogate someone. It’s not even close. People can be subjected to atrocious tortures and not confess. People can be tortured and say whatever they think the torturer wants to hear. And the “ticking bomb” scenario is refuted up and down the internet – most obviously because, on the premise that time is of the essence, the victim can frustrate the torturer by giving false information that makes the time run out. In real life, interrogators work by tricking their subjects (short-term) or building up a rapport that plays upon a captive’s ego and loneliness.

It also bears repeating that the methods we used in the Cheney Era were expressly patterned on NKVD/Chinese methods of extracting false confessions (such as the North Koreans used on our “brainwashed” POWs), which SERE was founded to help our troops deal with; our tortures were reverse-engineered from SERE training, with the limits removed of course.


Non-torture methods of interrogation are superior to torture.


Torture is gratuitous infliction of pain and suffering. Which gives us:

Torture is evil. Q.E.D.

... I think that's tight enough that someone has to deny one of the premises to deny the conclusion, though I assume that the only valid purpose of torture is interrogation.

Interestingly, the idea that there are separate "moral" and "practical" arguments against torture seems to collapse. If torture were, pragmatically, a good way to arrive at the truth, then it wouldn't be evil. It wouldn't even be illegal. We would torture suspects to find out the truth, like people did for centuries, the same way they believed in witches and astrology.

Candy for law nerds

TNR reposts a 1958 review by Alex Bickel of Judge Hand's Holmes Lecture of that year, discussing judicial review -- both Hand's doctrine of virtual abstention therefrom, and Bickel's effort to justify the Court's practice.

Difficult to summarize, but it's interesting to note one option not seriously on the table in 1958:
The origins of the power of judicial review in the intent of the framers of the Constitution are no doubt uncertain; but it is not universally recognized as true that the framers had in mind only the narrow need of preventing "the failure of the undertaking" by keeping the several departments of the government from stepping all over each other. Various opinions were held by the framers. None can be said to have been adopted to the exclusion of the others. Normally, since it is a constitution we are expounding, this is a condition that leaves posterity relatively free to meet its needs as they arise.
So one might think.

How torture became okay

Some researchers argue that there's no consensus in favor of torture, with only 30% of Americans opposed to torture and another 20% or so accepting it only "rarely."

Try this sentence out: "I think rape is rarely acceptable." You see the problem.

Yet they write:
Many journalists and politicians believe that during the Bush administration, a majority of Americans supported torture if they were assured that it would prevent a terrorist attack… .But this view was a misperception.
Really? I would think that torturing someone to prevent a terrorist attack would seem "rare" to most people.

Andrew Sullivan notes that whereas the way to support torture under Bush was to pretend it's not torture, the NKVD fan club has become more bold under Obama. He quotes Jonathan Bernstein:
... after the election, the emphasis shifted again, and while few have explicitly said that "torture" per se is good, the disclaimers are increasingly, as far as I can see, less and less prominent. The old debate about whether the revelations were true, a very live debate through the middle of Bush's second term, is long gone, and explicit torture supporters (explicit in supporting everything but the actual word) dominate conservative discussion of the issue.
Sullivan, as much an Obama supporter as anyone, doesn't confine the blame to the GOP:
President Obama signaled as much by his actions, if not his words. By declining to initiate prosecution of indisputable war crimes, he tacitly endorsed them as not that serious, and continued America's withdrawal from the Geneva Conventions (it is a breach of the conventions not to prosecute clear instances of war crimes).
The notion was that enforcing the laws against torture would jeopardize his domestic agenda. But how many Republicans voted for anything Obama's done?

It's the Democrats who have failed us here the most, with Obama leading them. And as Sullivan predicts, torture is now a partisan issue: a Republican president in 2013 would be likely to resume the use of torture, if only to prove he's tougher than those pansy-ass Democrats.

What rankles me most here, I guess, is that a crusade against torture is a really easy crusade to win. People's tolerance of torture (I judge from numerous internet threads) rests upon not understanding that sleep deprivation, forced standing, etc. really *are* torture, and not understanding that professional interrogators consider torture a mug's game. It would be really easy to marshal public opinion against torture -- TORTURE, fer chrissake. That is, if Obama cared to do so.

Cure light torts?

Thoreau at Unqualified Offerings muses on "TV, Movies and D&D." Do characters in adventure films map onto the D&D classes? He can peg the fighter, thief, and mage (= hacker/techie), but wonders where the clerics are?
Here’s where we have to go past game mechanics to role-playing: The cleric has allegiance to a higher authority, and can appeal to this authority. Often our hero will have a compatriot who doesn’t break as many rules and remains tied in to high-ranking government officials. This compatriot can intercede with the higher powers, and obtain favors that not even a techie mage can obtain. The techie mage can get you an access card to get into the building under a fake name (good until you are discovered) but the intermediary can get your name on the good list so you are able to enter under your own name and requisition things. The techie mage can get you into databases, but the intermediary can call in the cavalry (or, in religious terms, summon avenging angels to fight beside you). If your wounds are worse than any field medic can treat, the intermediary can get you officially recognized as a good guy so you can go to the hospital in an ambulance rather than a squad car (i.e. cast “raise dead”). And, ultimately, the friend who’s still in good graces can give you the most divine gift of all: Official forgiveness for your sins.
As I note in his comment thread, the etymology of cleric points us to the modern-day counterpart, the intervening figure who intercedes with the higher powers and obtains their forgiveness -- or, in the case of an evil character, summons them against the forces of Light.

The lawyer, of course. I feel better about my job already. (Though I'm pretty sure I've never had a cleric PC in my life ... maybe a magic-user/cleric once, briefly?)

Monday, July 05, 2010


That is the question I have after 137 minutes of my life spent watching Shutter Island. I encourage the reader to click through and absorb the spoilers, so's not to have any curiosity that would lead him or her to watch the film (or, I suppose, read the book, which I have not, and won't).

... Tho I confess not having known about the Dachau massacre. Which features gratuitously in the overwhelmingly gratuitous film.

One-sentence book review

It's interesting that all the folks that are buying it don't know they are reading a children's book.
-- Flannery O'Connor, on Harper Lee's To Kill a Mockingbird.

Friday, July 02, 2010

The whinging gets to me sometimes

From yet another Elena-Kagan comment thread at the Volokh blog:
It must suck to be a conservative. Evidently, you don’t just have to believe that liberals are destroying the Constitution, which is a scary enough idea — that the country teems with traitors, including everyone who voted for Obama.

No, the paranoia goes deeper: bunches of conservative law profs and judges, the very people who you think are the last ditch of resistance against the liberal-fascistic enemy, are rolling over on their backs and saying that the Kenyan Socialist’s nominee should be confirmed, despite the fact that she is, by definition, an enemy of the United States, devoted to the destruction of the Constitution, and thus no better than Osama bin Laden. Worse, when you think of all the fetuses whose lives she is sworn to end prematurely. 9/11’s got nothing on legalized abortion, right?

Frankly, I don’t know how y’all get through the day. Prozac? Alcohol? Blog commenting?

Thursday, July 01, 2010

But what if the apostles had blogs?

What harm can a book do that costs a hundred crowns? Twenty volumes in folio will never cause a revolution; it's the little portable volumes of thirty sous that are to be feared. If the gospel had cost twelve hundred sesterces, the Christian religion would never have been established.
-- Voltaire (apropos of Diderot's Encyclopedia)

Don't be afraid to tell the judge what to do

In a constructive-trust decision today, the Mississippi Supreme Court included an "appendix" I found interesting, having tangled with this issue at the administrative level.
The Estate asserts, incorrectly, that Brooks v. Brooks stands for the proposition that when a chancery court adopts and incorporates, verbatim, a litigant’s proposed findings of facts and conclusions of law, those findings must be reviewed de novo.

In Brooks, a divorce case involving allegations of adultery, the chancellor applied an incorrect legal standard, which triggered de novo review. Instead of the proper “clear and convincing evidence” standard, the chancellor used the lesser standard of “a preponderance of the evidence.” The chancellor adopted the proposed findings of fact and conclusions of law submitted by one of the parties, including the erroneous statement of the legal standard.

A trial judge is permitted to adopt a party’s proposed findings. * * *
Thus overruling City of Greenville v. Jones, 925 So. 2d 106, 116 (Miss. 2006). (And, they might've mentioned, Miss. Dep’t of Transp. v. Johnson, 873 So. 2d 108 (Miss. 2004).)

Brooks had ultimately relied upon Rice Researchers, Inc. v. Hiter, 512 So. 2d 1259 (Miss. 1987), but that case, as quoted in the "appendix," actually allowed adoption of PFFCL. Hiter at most justified the "heightened scrutiny" approach taken in later cases of verbatim adoption.

Anyway, pretty much inside baseball for lawyers, but to us it's a useful correction. It kinda sucks having a judge ask you to draft proposed findings and then wonder if that's going to bite you in the ass later.

When Jews go far enough to the right, what happens?

They defend Hitler.

Jeffrey Goldberg argues that the Iraq war was justified because the Kurds were in favor of it.

Glenn Greenwald says that proves nothing, because the Sudeten Germans favored the rape of Czechoslovakia in 1938.

Goldberg quotes alleged scholar Yaacov Lozowick:
Here's my input, on a point no-one else seems to be noticing: There was no Nazi invasion of the Sudetenland, no invasion of Slovakia, hardly one of Austria and even less of Bohemia. Nazi Germany brutally invaded many countries, but those weren't among them. Go check the history books and see if I know what I'm talking about. Glenn Greenwald surely doesn't.
This is ... very odd. As Brad DeLong notes. DeLong quotes Hitler on the subject; I'll settle for the Shorter OED:
invade: (2) Enter or make an incursion into (a place, a country, etc.) esp. in a hostile manner, in large numbers, or with armed force; attack.
Resistance to the incursion is not an element of invasion, any more than fighting one's attacker is an element of rape.

For the final ironic icing, Lozowick titles his post "Ministry of Truth" and observes that "George Orwell must be dancing in his grave" (whatever that means).

Kevin Jon Heller takes a nail gun to the coffin, as it were.

"Make a Bomb in the Kitchen of Your Mom"

Not, apparently, The Onion:
As the U.S. struggles to manage its efforts to influence opinion about Al Qaeda abroad, Al Qaeda on the Arabian Peninsula has produced its first English-language propaganda magazine.

It's called "Inspire," and you can read parts of it below. A U.S. official confirmed that the pages correspondent to the version its open-source collectors had obtained.

"Inspire" includes a "message to the people of Yemen" directly transcribed from Ayman Al-Zawahari, Al Qaeda's second in command, a message from Osama Bin Laden on "how to save the earth," and the cover includes a quotation from Anwar Al-Awlaki, the American born cleric who is believed to be directly connected to the attempt to destroy an airplane over Detroit by Umar Farouk Abdulmutallab on Christmas Day. (The director of the National Counterterrorism Center, Michael Leiter, made that disclosure at a security forum in Aspen, CO, Fox News reported.)

The table of contents teases an interview with the leader of AQAP who promises to "answer various questions pertaining to the jihad in the Arabian Peninsula." It includes a feature about how to "make a bomb in the kitchen of your mom."
Here's the cover; more page shots at the above link.

Given that the print media is supposed to be on the way out, this seems like a step backwards ... sort of like terrorism in general.

(Via 3QD.)