Afghanization?

Col. Sellin, whose op-ed and consequent firing we noted (don't miss Buhallin's corrective), is taking advantage of his newfound liberty to opine over at Tom Ricks's place:

Seriously though, I think it is time for the American people to hold the senior military leaderships' (colonels and up) feet to the fire. When they make their reports to Congress, one can be sure that it is the best possible scenario that they can justify without lying. The phrase "progress is being made" should not be accepted as an answer. It is like saying "the check is in the mail."

Everyone should remember that these are military careerists. War provides the opportunity for testing their skills, getting medals and promotions. A compromise peace without their definition of "victory" might be considered a failure. They all want to march down Pennsylvania Avenue like General Norman Schwarzkopf. Likewise, the contractors want to continue making their huge profits. It is the common soldiers, however, who are providing the sweat and shedding the blood.

We must stop treating the Afghans like children. They are not. It is their country and for better or worse, they should start taking responsibility for it. There is little reason not to begin turning over responsibility now. Regional Command West is possible because it is the most peaceful part of the country. That could be followed by Regional Command North. Between now and next July, the coalition can concentrate on Regional Commands East, South and Southwest.

After that no more blank checks. In my opinion, time's up.

Undoubtedly the right, although difficult, answer; Afghanistan may collapse, or threaten to, but we cannot keep it on life support forever, a sort of Terri Schiavo "vegetative State."

"Limited government," meet "government without limits"

The Heritage Foundation has hired a new vice-president: David Addington.

Conor Friedersdorf reflects:

In other words, The Heritage Foundation now employs a man who has done more than almost anyone else to advocate radical expansions in the power of the federal government, including torture and warrantless spying on American citizens. On its About Page, the organization claims to advocate for "limited government" and says it believes "the principles and ideas of the American Founding are worth conserving and renewing."

There are a lot of employees at Heritage who actually do believe in those principles.

Can any of them defend this personnel choice?

Probably not many of them have the financial security *not* to defend it.

Instant internet classic

Wow. Someone managed to search Facebook status updates for the misspelling "mosk" and gleaned the most incredible sample of public opinion on the "9/11 mosque" (not at the 9/11 site; not a mosque).

There's a long diatribe on Glenn Beck (all true, but you knew it already, so skip), and then the Facebook stuff about 1/4 of the way down. A fascinating glimpse into the minds of the people standing ahead of you in the Walmart checkout line. You may never dare to shop there again.

(H/t EOTAW.)

Jews Ruin Parties

That's the more informative title of The Sun Also Rises, as brought to you by Better Book Titles.

See if you can guess these other classics' original titles:

Never Flirt with a Veteran's Wife

A Zombie Learns French

A Quaint, Midafternoon Panic Attack

One Long Sentence About Handjobs

If only we *had* a socialist in the White House!

Since the start of the recession, the number of unemployed in the U.S. has doubled. Those who are fortunate enough to still have jobs are often working longer hours for less pay, with the ever-present threat of losing being laid off. But even before the recession, American workers were already clocking in the most hours in the West. Compared to our German cousins across the pond, we work 1,804 hours versus their 1,436 hours – the equivalent of nine extra 40-hour workweeks per year. The Protestant work ethic may have begun in Germany, but it has since evolved to become the American way of life.

Thus Salon, priming its chat with Thomas Geoghegan, who thinks what America needs is more socialism. A snip:

But the Germans have a lower GDP than we do. Doesn’t that mean that our quality of life is better?

One day we’ll get beyond that and see that the European standard of living is rising. You can pull out these GDP per capita statistics and say that people in Mississippi are vastly wealthier than people in Frankfurt and Hamburg. That can’t be true. Just spend two months in Hamburg and spend two months in Tupelo, Mississippi. There’s something wrong if the statistics are telling you that the people in Tupelo are three times wealthier than the people in Germany. Despite the numbers, social democracy really does work and delivers the goods and it’s the only model that an advanced country can do to be competitive in this world. I mean that not just in terms of exports, but in terms of being green at the same time. That we can raise the standard of living without boiling the planet shows how our measure of GDP is so crude.

What are we missing when we measure the GDP?

We don’t have any material value of leisure time, which is extremely valuable to people. We don’t have any way of valuing what these European public goods are really worth. You know, it’s 50,000 dollars for tuition at NYU and it’s zero at Humboldt University in Berlin. So NYU adds catastrophic amounts of GDP per capita and Humboldt adds nothing. Between you and me, I’d rather go to school at Humboldt.

So much of the American economy is based on GDP that comes from waste, environmental pillage, urban sprawl, bad planning, people going farther and farther with no land use planning whatsoever and leading more miserable lives. That GDP is thrown on top of all the GDP that comes from gambling and fraud of one kind or another. It’s a more straightforward description of what Kenneth Rogoff and the Economist would call the financialization of the American economy. That transformation is a big part of the American economic model as it has morphed in some very perverse directions in the last 30 or 40 years. It’s why the collapse here is going to take a much more serious long-term toll in this country than in the decades ahead.

Not sure where he got "Tupelo" from, but it's probably like many American cities in that respect: a few people doing very well indeed, and a lot of people struggling to get by. Anyway, I'm not competent to judge the pros and cons of the German economy, but take a look. (One complaint about Euro socialism, that it's unsustainable, no longer sounds as cogent; how sustainable is the American economy?)

Housekeeping

Yahoo!'s mail program was better than Hotmail when I switched -- Hotmail had no discernible spam filtering at the time -- and I was happy with it for years.

But in the past few months, its pages have been unbearably sluggish. I suspect their ads are to blame. It became ridiculous having to wait a few minutes to check off spam posts, for instance.

So, TBA is joining the lemmings' rush to Gmail: tbablogs -at- gmail -dot- com. I'll probably get mail forwarded from the Yahoo! account for a couple of weeks.

"This is going to be almost inconceivably ugly"

I’m finding it hard to read about politics these days. I still don’t think people in the administration understand the magnitude of the catastrophe their excessive caution has created. I keep waiting for Obama to do something, something, to shake things up; but it never seems to happen.

Here’s what I wrote in February 2009. It’s pretty rich that now the usual suspects are accusing me of having shared the administration’s optimism. But that’s a trivial point; the important thing is that all signs are that the next few years will be a combination of economic stagnation and political witch-hunt.

This is going to be almost inconceivably ugly.

-- Paul Krugman.

The stimulus was underpowered and destined to falter right when it has, before the mid-terms. The Fed is delusional (if not actually conspiring to hurt the Dems in the elections, as TBA is not above suspecting). Failure to aid state governments sufficiently has put our public-sector consumption behind even Germany's.

Krugman's blog has been one of the best pol-econ sites on the internet. Bookmark it. Unless, like Krugman, you too have an understandable reluctance to read about politics these days.

Comer plaintiffs seek writ of mandamus

Jonathan Adler notes that the plaintiffs in the "global warming --> Katrina" case, who got a 12(b)(6) dismissal reversed and then had their case tossed by an egregious procedural trick, have petitioned SCOTUS for a writ of mandamus to get their panel decision un-vacated.

I continue to be very skeptical of the merits of their case, but the plaintiffs deserve to have their panel op reinstated, and then perhaps the defendants can seek cert themselves on those merits.

"That fine line between good taste and unemployment"

Col. Lawrence Sellin crossed that line, and is no longer employed by the U.S. Army in Afghanistan -- tho happily for him, he's a reservist, so now he can go back to his real career.

His crime? Blowing the whistle on that notorious WMD, PowerPoint (Weapon of Mass Dullification):

I have been assigned as a staff officer to a headquarters in Afghanistan for about two months. During that time, I have not done anything productive. Fortunately little of substance is really done here, but that is a task we do well.

We are part of the operational arm of the International Security Assistance Force commanded by U.S. Army Gen. David Petraeus. It is composed of military representatives from all the NATO countries, several of which I cannot pronounce.

Officially, IJC was founded in late 2009 to coordinate operations among all the regional commands in Afghanistan. More likely it was founded to provide some general a three-star command. Starting with a small group of dedicated and intelligent officers, IJC has successfully grown into a stove-piped and bloated organization, top-heavy in rank. Around here you can't swing a dead cat without hitting a colonel.

For headquarters staff, war consists largely of the endless tinkering with PowerPoint slides to conform with the idiosyncrasies of cognitively challenged generals in order to spoon-feed them information. Even one tiny flaw in a slide can halt a general's thought processes as abruptly as a computer system's blue screen of death.

The ability to brief well is, therefore, a critical skill. It is important to note that skill in briefing resides in how you say it. It doesn't matter so much what you say or even if you are speaking Klingon. * * *

The start and culmination of each day is the commander's update assessment. Please ignore the fact that "update assessment" is redundant. Simply saying commander's update doesn't provide the possibility of creating a three-letter acronym. It also doesn't matter that the commander never attends the CUA.

The CUA consists of a series of PowerPoint slides describing the events of the previous 12 hours. Briefers explain each slide by reading from a written statement in a tone not unlike that of a congressman caught in a tryst with an escort. The CUA slides only change when a new commander arrives or the war ends.

The commander's immediate subordinates, usually one- and two-star generals, listen to the CUA in a semi-comatose state. Each briefer has approximately 1 or 2 minutes to impart either information or misinformation. Usually they don't do either. Fortunately, none of the information provided makes an indelible impact on any of the generals.

I'm certainly glad we're getting intelligent people like Sellin out of the military. (Via Drum.)

Mee-YOW-zah on the MSSC!

Justice Dickinson's dissenting pen is getting sharper and sharper.

Today brings a curious asbestos case, in which the scope of a settlement was at issue: did it cover certain plaintiffs, or not? On the basis of "conflicting affidavits" from opposing counsel, the trial court ruled that there was an enforceable settlement.

Writing for a three-justice plurality, Justice Graves (whose ticket to the Fifth Circuit has not been stamped yet) says that is just fine. Dickinson is not convinced:

Today’s decision (albeit a plurality) would grant to a trial judge the authority to decide whether or not the parties have settled and, if so, the terms of the settlement. Never mind that in this case, the only proof of a settlement (and its terms) before the trial court was a pair of conflicting affidavits from the lawyers. Never mind that – as far as one can tell from reading the record – the plaintiffs’ lawyer (whose affidavit apparently persuaded the trial judge) has never been in the presence of the trial judge. Never mind that there were no witnesses, and that the trial judge never even heard from the client who actually has to pay the money. And never mind that the terms of the alleged settlement were not reduced to writing – not even so much as bullet points scribbled on the back of a napkin.

So let me see if I have it straight. After today, the plurality’s logic would allow a plaintiff to sue one of our cities – let’s say Jackson or Tupelo – in a slip-and-fall case. The lawyers could then meet to discuss discovery and possible settlement. Plaintiff’s lawyer then could file a motion to enforce a settlement, claiming the city’s lawyer agreed to settle for $25 million. The city’s lawyer files an affidavit saying, “no, we didn’t.” Other than the conflicting affidavits, there is no evidence of a settlement.

Without consulting (or ever even meeting) the plaintiff’s lawyer who signed the
affidavits; and without hearing any testimony from the plaintiff or the city potentially on the hook for the $25 million; the judge ponders the credibility of the conflicting affidavits and finds the plaintiff’s lawyer’s affidavit more believable. So the judge enters an order enforcing the settlement, and the city is on the hook for $25 million. Delighted with the results, the plaintiff’s lawyer files another lawsuit the following week.

After diligent effort, I am unable to imagine a more absurd judicial process or result. I respectfully dissent.

Justice Pierce, "concurring in result only" (with no explanation of why -- Pierce has been weak on explaining himself), writes solely to rebut Dickinson:

I write separately to address Justice Dickinson’s twenty-five-million-dollar hypothetical included in his dissent. Simply put, his hypothetical has no application to the facts of this case. In other words, he compares apples to oranges.

Or peas to beans?

Dickinson shoots back at Pierce in a footnote:

My colleague’s bewilderment with my example reminds me of my college days taking differential calculus – the fact that one doesn’t understand it doesn’t mean it isn’t correct.

Pierce returns fire:

I agree with the dissent’s assertion in footnote number 11 that differential calculus can be extremely difficult. Likewise, some cases that come before this Court are extremely difficult. This case is a prime example.

If the case is so difficult, perhaps it's not too much trouble for the public to think that Justice Pierce could explain why he concurs?

Justice Lamar also writes separately, joined by Waller, C.J., Carlson, P.J., and Dickinson; alas, their four-justice opinion loses to Graves's three-justice opinion thanks to the completely unexplained vote of Pierce and the non-participation of Justice Randolph, so that a tie vote affirms the trial court. Lamar objects to the trial court's acting as finder of fact:

Contrary to the plurality’s assertion that trial judges “customarily make findings of fact” when presented with motions to enforce settlement, and that this Court has “not found such trial court action to be improper,” I find no Mississippi Supreme Court cases in which this Court actually has been presented with this question.

The Fifth Circuit is sure going to be an interesting place with Judge Graves on it.

(I'm not sure that going to a Holmes County jury would've done the defendant much more good, btw.)

... In another instance of apparent pettiness [but, see update below], Waller writes on a banishment case, and Graves specially concurs to say only this:

The majority correctly notes that the U.S. Constitution addresses the deprivation of liberty without due process of law. (Maj. Op. at ¶10). See U.S. Const. amends. V, XIV. Hence, the statement in the majority opinion that “the judge may not restrict the defendant’s personal liberty of free movement without following the due process which Cobb, McCreary, and Mackey established” is erroneous. (Maj. Op. at ¶26). These cases did not establish a right. They merely recognized one which already existed.

When he's right, he's right. This op is joined by all six of the other justices who joined Waller's op for the Court, but Waller apparently refused to amend his opinion to get the law right.

Based on my law-clerk observations of the Justice McRae days on the Court, I hazard a guess that this kind of contention on the printed page betokens a similar lack of good personal relations. It doesn't bode for confidence that one's case is being decided on the law.

UPDATE: Will Bardwell reads Waller more charitably:

Justice Graves is right, of course, but I took the chief justice's observation to mean that Cobb and its companions established the process governing restrictions of the right to movement and not the right itself. But at the end of the day, it's a pretty academic debate.

Good reading, but as I commented at Bardwell's post, there's being right, and then there's being right in such a manner that all the justices joining your opinion think you should've worded it differently. Just change the damn sentence, in the latter instance.

I mean, really, you thought there was *competent* government hidden somewhere?

Fictitious sources also confirmed that the so-called "masterminds" behind our country's security and strategic defense are in fact people of moderate to reasonably above-average intelligence just like us who perform their jobs with more or less the same degree of competence and zeal as any regular person with a job would.

"Obviously, it would be very comforting, and pretty cool, if there were stealth groups of resourceful, naturally gifted secret agents like me scouring the planet, rooting out terrorist sleeper cells, and tracking down Osama bin Laden," said a multilingual computer/ explosives/espionage expert who most Americans actually believe is a real guy out there. "I'm not denying that would be amazing; my only point is that it just isn't true."

"Believe me, I wish I existed, too," the fake man added. "I would probably be great."

-- "Smart, Qualified People Behind the Scenes Keeping America Safe: 'We Don't Exist,'" The Onion.

Statutes, regulations, and Chevron

We at TBA are puzzling over a recent Medicare reimbursement decision by the Fifth Circuit. The entire case is dull, dull, dull, but we will focus on just one dull part: Chevron analysis. (Non-lawyers who wish to make the mistake of continuing to read, might wish first to glance here.)

The case involves a Medicare statute and a regulation implementing part of that statute. The court held that the statute was ambiguous under the first Chevron step. Fine.

Then it says "The parties agree that CMS’s regulations are entitled to Chevron deference if the statute is ambiguous." Fine.

Then, referring not to the regulation but to what CMS actually did, the court says (slip op. at 12) "CMS’s decision to base reimbursements in 2003, 2004 and 2005 on the amount of the previous year’s reimbursement is not 'manifestly contrary to the statute.'" Okay, but why are we talking about CMS's decision -- what it actually did -- as opposed to its regulation, which is what we just agreed was entitled to deference? The court concludes:

Thus, although Providers may offer a “better” interpretation by taking into account the structure and purpose of the statute, CMS’s reading finds substantial support in the text ... and is backed by solid reasoning. CMS’s interpretation, therefore, falls within the range of permissible interpretations.

The kicker here is that, in the last part of the op, the court goes on to consider the above-mentioned implementing regulation -- and holds that it does *not* support what CMS did, and in fact requires CMS to reimburse on the providers' theory, not CMS's! Hence, reversal and remand to the district court that had ruled for CMS.

Our conceptual difficulty here is that, once the court found that (1) the statute was ambiguous and (2) the agency had issued a reg applying its understanding of the statute, why did the court pronounce on the reasonableness of CMS's "decision" instead of cutting straight to the reg? Back to Chevron, which says:

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.

Here, the providers wanted CMS to follow its own reg, and the court held that CMS must do so (hence "reversal"). But the court did not seem to grasp that the regulation just is the agency's interpretation of the statute.

Instead, the court appears to have been thrown off-track by the peculiarity that the agency was advancing an "interpretation" of the statute, in its actual practice and in its litigating position, that was contrary to its regulation.

... The issue, but not the Fifth Circuit's treatment of it, exposes a flaw in the routine application of "the Chevron two-step" by the courts. Step one is to analyze the statute for ambiguity, and if it's clear, then you stop there. Step two, if the statute is ambiguous, look to the reg or other interpretation.

The problem here is that courts risk finding the statute "clear" when it's not -- hey, no need to go to step two, case closed! -- without deferring to the agency's construction of the statute, itself a venerable principle expressly recognized in Chevron:

We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations

"has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations."

So really, where an agency has construed a statute, the analysis works more like "the agency's interpretation controls unless clearly contrary to the statute." If there's any doubt whether the statute is clearly contrary, deference requires going with the agency's interpretation.

The bookshelf

Robin Lane Fox, The Unauthorized Version: Truth and Fiction in the Bible: I couldn't finish his Pagans and Christians -- *enough* already about dream interpretation! -- but this one was more readable, as a classicist's look at the text and history of the Bible and what import that has for how much of it is "true" in any normal historical sense. He comes to some interesting conclusions, for instance that John's gospel is the most likely to be based on an eyewitness account of Jesus by one of his disciples. Not for the fideistically squeamish.

A.J.P. Taylor, The First World War: Somehow I'd never picked up Taylor's little essay on the war, which seems to've held up well in the past 50 years. The Amazon reviews are entertaining -- consensus being that it shouldn't be the *only* book one reads on WW1, but that one should definitely read it. I would disagree; if you're the kind of person who will read only one book, ever, on WW1, then you are much more likely to finish Taylor's book than any other.

Kenneth O. Morgan, The People's Peace: British History 1945-1990: Found this previously unsuspected book at Choctaw Books in Jackson, and have enjoyed my desultory way through it, being quite ignorant of postwar Britain. Mostly a political account.

Peter Longerich, Holocaust: The Nazi Persecution and Murder of the Jews: Saw this blurbed in the Atlantic as being "hailed as the definitive single-volume history of the development and implementation of the Final Solution," and the new English version updates the 1998 original -- was pleasantly surprised to find it on the shelves of the local Barnes & Noble. Longerich suggests that the intentionalist/structuralist divide is really two sides of one coin, which is probably correct but effectively a win for the structuralists: no, Hitler did not sit down with Goering and Himmler the night of January 30, 1933, and say "all right boys, now that I'm chancellor, let's work out how we're going to exterminate the Jews." Still in the "persecution" part of the book, but having high hopes.

... Pierre Goubert, The Course of French History: It's absurdly difficult to find a decent survey of French history in the bookstore, as opposed to half a shelf on events from 1789-1815. Goubert's 1984 volume (found in my library) needs to be about twice as long, but it's quite serviceable, beginning with the Capetians, not scanting the early centuries, and finding a nice balance between social history and personalities.

A vanished world

Via 3QD, 34 color photographs from Russia in 1910.

Jewish students in Samarkand:


A cathedral in Mozhaisk:


32 more at the link.

Barack Obama doesn't understand how to be President

The President of the United States heads the executive branch of government. This is a large organization which the President cannot personally direct in every detail.

Hence he must appoint people to assist him.

Obama sucks at that game (ignore whiny blaming of "system," which is same system we've always had). (Latest example.)

If you can't nominate people -- AND PUSH THEM THROUGH -- then you are not succeeding as President.

... NMC picks up on the same Yglesias post, and comes to a similar if less vehement conclusion.

Lucky we're not like those peasants!

Even now, all the agricultural production of Russia is not peasant production. We have, in places, large scale agriculture. The Government is already running big estates with workers instead of peasants, where conditions are favourable. That can spread. It can be extended first to one province, then another. The peasants in the other provinces, selfish and illiterate, will not know what is happening until their turn comes...

-- Lenin to H.G. Wells, 1920.

Wells added:

It may be difficult to defeat the Russian peasant en masse; but in detail there is no difficulty at all. At the mention of the peasant Lenin's head came nearer to mine; his manner became confidential. As if after all the peasant might overhear.

It is not only the material organisation of society you have to build, I argued, it is the mentality of a whole people. The Russian people are by habit and tradition traders and individualists; their very souls must be remoulded if this new world is to be achieved. Lenin asked me what I had seen of the educational work afoot. I praised some of the things I had seen. He nodded and smiled with pleasure. He has an unlimited confidence in his work.

"But these are only sketches and beginnings," I said.

"Come back and see what we have done in Russia in ten years' time," he answered...

Whatever one thinks about Lenin (and I am not a fan), I daresay Russia in 1930 would have appalled him in several respects.

When did world history begin?

In 1917 European history, in the old sense, came to an end. World history began. It was the year of Lenin and Woodrow Wilson, both of whom repudiated the traditional standards of political behaviour. Both preached Utopia, Heaven on Earth. It was the moment of birth for our contemporary world; the dramatic moment of modern man's existence.

-- A.J.P. Taylor, The First World War, at 165.

If the affidavit weren't self-serving, why would I attach it to my motion?

Plaintiffs' lawyer Dennis Sweet was a plaintiff himself when a company allegedly breached its contract to buy a building from him. After losing in the trial court, Sweet appealed and prevailed.

The chancery court ruled on the basis of an affidavit from the company's president, saying that hsi company had “attempted to obtain financing satisfactory to it from numerous financial institutions prior to the ... closing date ... [but] was unable to do so."

The MSSC took a dim view of this affidavit:

¶19. This Court has expressed disdain for conclusory, self-serving affidavits used to support summary judgment. Dalton v. Cellular South, Inc., 20 So. 3d 1227, 1234 (Miss. 2009). Such affidavits, unsupported by material facts relevant to the issue at hand, are not a sufficient basis for granting summary judgment. Id. at 1233-34 (citing Burton v. Choctaw County, 730 So. 2d 1, 9 (Miss. 1997)); see also Hubbard v. Wansley, 954 So. 2d 951, 965-66 (Miss. 2007); Lovett v. Anderson, 573 So. 2d 758, 760 (Miss. 1990); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996). * * *

¶21. We find Small’s affidavit analogous to the affidavit in Dalton. Small’s affidavit does not show when or how TCI attempted to obtain financing, or why TCI’s available options were unsatisfactory. With a conclusory, self-serving affidavit as its only support for summary judgment, TCI failed to meet its burden of production and persuasion. Accordingly, we find that the chancery court erred in granting summary judgment.

Justice Dickinson, joined by Randolph, J., dissented:

The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions . . . [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact – uncontradicted in the record. Accordingly, I would affirm the chancellor.

TBA reluctantly disagrees with Dickinson, right though he is about peas. The case hinged upon the company's obtaining satisfactory financing; it was not enough for the defendant simply to recite that he tried to obtain satisfactory financing, and failed. Details were needed to show *why* the financing was unsatisfactory.

Chances are, that would've been pretty easy (and Sweet may lose on remand) -- but TBA has noticed that lawyers tend to be a little lazy about drafting affidavits for their clients to sign, focusing too much on the legal result of the affidavit and not enough on the underlying facts.

UPDATE: TBA clarifies that we endorse Justice Dickinson's logic about peas, not the aesthetic sentiment expressed in his example. TBA yields to no one in our hunger for purple-hulled peas, crowder peas, field peas, black-eyed peas, and even those little green ones in the silver can.

... As regards NMC's doubts about the cogency of the MSSC opinion, we must admit it compares poorly with the radiant justice of this Fifth Circuit op.

The sense of an ending

Frank Kermode, grand old man of English lit-crit, has passed away. The Guardian obit notes:

He fundamentally changed the study of English literature in the 1960s by introducing French theory by post-structuralists such as Roland Barthes and Michel Foucault, and post-Freudians such as Jacques Lacan, into what Sutherland described as "the torpid bloodstream of British academic discourse". Speaking to Sutherland in 2006, Kermode admitted that the move had "attracted quite a lot of opprobrium".

Although he later moved away from theory, he told Sutherland that the time considering it was not wasted. "One of the great benefits of seriously reading English is you're forced to read a lot of other things," he said. "You may not have a very deep acquaintance with Hegel but you need to know something about Hegel. Or Hobbes, or Aristotle, or Roland Barthes. We're all smatterers in a way, I suppose. But a certain amount of civilisation depends on intelligent smattering."

The Telegraph gives us a glimpse at Kermode's war years:

On graduating in 1940, Kermode joined the Navy, spending much of the war making ever more futile attempts to lay booms off the stormy coast of Iceland. He also served as secretary to an increasingly lunatic series of superannuated captains.

One of Kermode's commanding officers attended the funeral of his first officer while drunk. He assured the widow that her husband was not really dead, otherwise he, the captain, would have been informed of the fact by the Admiralty. Kermode was later the last visitor to have lunch on Hood before she was destroyed by Bismarck.

Civics education in NY seems to be working

The new Siena Poll finds that New Yorkers (everyone in the state) oppose the mosque by a 63-27 margin; they defend the constitutional right to build it by a 64-28 margin.

-- Dave Weigel, via Sullyblog.

I'm disappointed that 63% would oppose it, tho given what they're hearing on the news 24/7, it's not a surprise. But they do grasp the difference between "do I want it" and "is it legal."

Economic progress, American-style

... in 1964, Radio Shack sold a stereo system nobody today would want for $379.95. 1964 also happens to be the year my parents started college at the University of Michigan. According to Michigan's Bentley Library, in-state tuition that year for freshmen and sophomores was $140 ($155 for juniors and seniors.) So, a stereo cost more than a year of college in Ann Arbor. Is life so much better now? Yes if you're a middle-class person who wants a stereo. No, if you're a middle-class person who wants a college degree.

-- Jon Chait

"The sheer stupidity of people"

Via Bookslut, the FT talks to Lydia Davis, whose translations we perhaps prefer to her, um, stories or whatever they are. The article informs us that her dad taught Sylvia Plath at Smith, and provides us with some smart thoughts from Davis, who's got a new Madame Bovary out soon:

I ask if she had a similarly emotional response to translating Madame Bovary; in the introduction she wrote to accompany her translation Davis notes that Flaubert often found himself weeping as he wrote it, and that he so identified with Emma during her last days that he was physically ill. She shakes her head. No, she says, she wasn’t at all moved by the book. In fact, when she first read Madame Bovary as a young adult, she was unimpressed; “I didn’t like her; I didn’t like the story; and I didn’t see all this wonderful style”.

Translating an author, Davis explains, is like living with them. Flaubert, she tells me, “despised his characters, despised their thinking and their way of being in the world. He concentrated a great deal, in his letters, too, on the sheer stupidity of people.” Translating Proust (whom she refers to as “my Proust”) was, she says, much more pleasurable – partly because she liked “rebuilding his long sentences”, but also because she sensed what she calls a “generosity” in his writing. “He was also very generous to his friends,” she says, almost as if speaking from personal experience: “He would bring them fruit baskets and pay them other little attentions.”

That was my takeaway from Bovary the last time I read it; Flaubert's sheer contempt for life is overpowering. "A Simple Heart" and Sentimental Education are not much better in that respect. William Gaddis, at least in The Recognitions, has much the same attitude. -- Whereas Proust, who rather enjoys talking about how misanthropic he is and how false every friendship proves to be, rarely seems to believe his own words.

Davis realises now that one of the main reasons she did not take to Flaubert when she read him as a girl was because she was, in fact, not reading Flaubert. Translators have tended to pad out Flaubert’s French, or to correct it. “He was so fussy about getting things just the way he wanted them – and the translators weren’t paying him the respect of reproducing those details. They were just treating Madame Bovary as a story.”

Several translators, Davis explains, ignore Flaubert’s pet-hates – repetitions and metaphors. In her own translation she has made an effort not to elaborate and has even preserved Flaubert’s own erratic capitalisations. “Some of this is very subtle,” she sighs. * * *

Davis [now on the subject of her Proust translation] tells me that she was saddened by the reviews but has concluded that people were simply enamoured with the Proust they were used to – the 1922 translation by CK Scott Moncrieff, who, according to Davis made Proust flowery, turning “said” into “remarked” or “murmured”, or “strange” into “strange and haunting”. “Anyone who loves Proust loves that one,” she says, “but it wasn’t Proust,” she insists – “it wasn’t close enough; it was a different book. I don’t want to rewrite what I’m translating, and I don’t want to bring my own style into it.”

I haven't read Scott Moncrieff's translations of Stendhal, fearing just such improvements.

Mississippi in boxing history

TBA, no aficionado, hadn't realized that the famous knockdown of John L. Sullivan by "Gentleman Jim" Corbett took place in the Big Easy, nor that Sullivan's previous championship fight had occurred in Mississippi:

Just three years earlier, on July 8, 1889, Sullivan had defended his title against Jake Kilrain under entirely different circumstances. The fight was held on turf, in a ring created for the occasion on the rural Mississippi Coast property of a sawdust proprietor named Charles Rich. Under the London Prize Ring rules, rounds lasted as long as both men stood, which meant they could “steal a few minutes to glare at each other, tacitly agreeing to slow down, return to their corners for a drink, and regain their strength,” Elliott J. Gorn tells us is his classic account, The Manly Art: Bare-Knuckle Prize Fighting in America, which appeared in 1986 and has just been republished in an updated edition by Cornell University Press with a new afterword by the author. Since the Mississippi governor had placed a $1,000 bounty for Sullivan’s arrest, the champion fled Mr. Rich’s land soon after dispatching Kilrain in seventy-five rounds. He was eventually brought back to the state to face charges for violating statutes forbidding prize fighting and assault and battery. Although the indictments would be quashed, Sullivan spent more money on legal fees that he had earned in the Kilrain fight. It is no wonder he was such a fixture in traveling variety shows, which made him a rich man and kept him out of legal trouble.

To be precise, the Kilrain fight was at Richburg, "just south of Hattiesburg" -- the "last bare-knuckle heavyweight title bout."

The continuing unraveling of Stephen Ambrose

Silbey posts a Military Carnival at EOTW, linking three posts arising from the news of Ambrose's fabricating many more meetings with Eisenhower than could have possibly taken place. Post III is particularly interesting; a grad student, Lori Clune, writes:

Another example comes from Ambrose’s discussion of the Rosenberg case in Eisenhower: The President, Volume Two (1984). On page 84 Ambrose writes that on the day of the executions Eisenhower “said he could not remember a time in his life when he felt more in need of help from someone more powerful than he.” Ambrose’s footnote reads Emmet John Hughes’ The Ordeal of Power: A Political Memoir of the Eisenhower Years (1962), 80; and Minnich, Cabinet, 6/19/53. Hughes, an aid and speechwriter for Eisenhower, quotes Minnich’s Cabinet meeting minutes and makes no mention of Eisenhower’s “need of help.” This sentiment is not in any of the versions of the June 19 Cabinet meeting agendas or minutes. One wonders why Ambrose felt compelled to imply that Eisenhower needed the help of a higher power when he decided to allow the execution of Julius and Ethel Rosenberg to proceed. Eisenhower “could not remember a time in his life” when he needed “help from someone more powerful.” Really? Not even D-Day?

I don't doubt that Eisenhower could have said something so platitudinous, but what's interesting is that the same claim appears in Peter Lyon's 1974 bio, at 526:

The affair troubled Eisenhower. He confessed as much to his cabinet, telling them on the Friday that he could not remember a time in his life when he felt more in need of help from somebody more powerful than he. But it was a matter of security.

There seem to be three possibilities:

(1) Ambrose plagiarized Lyon. Note the very close wording, with exactly the sophomoric changes -- "telling them" to "said," "somebody" to "someone" -- typical of clumsy plagiarism.

(2) Ambrose and Lyon used the same source. (Lyon mostly cites only for direct quotations, and doesn't give a source here.) But then, why didn't Ambrose cite to it?

(3) Ambrose cited correctly, and Clune missed it.

At the moment, I think (1) is the most plausible. Lyon was a liberal critical of Ike, and thus exactly the kind of biographer Ambrose was seeking to eclipse. Ambrose surely had read Lyon's book, and may well have found the higher-power line too good not to use. I'll have to glance at Ambrose's book and see whether he cites Lyon at all.

(Lifted in part from my EOTW comment at Silbey's post.)

The Constitution is not objectively pro-suicide

Apropos of The Most Abused Supreme Court Quotation Ever, Jackson's "the Constitution is not a suicide pact," CharleyCarp comments:

Whenever I see that Jackson quote, I recall that the Declaration of Independence was a suicide pact.

Great line.

... I see now that we've all been blaming Jackson, but damn if Wikipedia doesn't have an article on "The Constitution is not a suicide pact." Here's Jackson from his dissent in Terminiello v. Chicago:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The formulation closer to the common one in use today is actually the fault of Justice Goldberg, in Kennedy v. Mendoza-Martinez, which held that a statute automatically stripping citizenship from draft-dodgers was unconstitutional. Goldberg for the Court:

The powers of Congress to require military service for the common defense are broad and far- reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.

This in a decision which ultimately fell on the side of individual rights. Triple snob points for using that at your next cocktail party: "Well, as a matter of fact, that's closer to Justice Goldberg's formulation, not Justice Jackson's." Sure to impress the ladies.

It also bears remembering how *bad* Jackson's vote was in Terminiello. The Chicago ordinance prohibited speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." Talk about a suicide pact for democracy.

"Whoso would be a man, must be a nonconformist"

Julian Hawthorne's memoirs include reminiscences of Emerson. (Who Hawthorne? Nathaniel Hawthorne's son.)

We are told, for example, that Ralph Waldo Emerson, while he disapproved of laughter, did occasionally allow himself to smile, but he did so only with his eyes closed. "He disliked being conspicuous," Julian wrote, "and uniformly preferred conformity to anything conspicuous."

How much of Emerson's praise of non-conformity in his essays was meant to inspire himself?

Standing room only?

From a lawyerly POV, the most interesting thing about an appeal of the decision striking down Prop 8 is, can there even *be* an appeal?

Federal courts hear cases only where a party has standing to appear before the court, and while the Prop 8 proponents were allowed to intervene in the suit, that may not get them standing to appeal. Vikram Amar:

The Supreme Court has said that both plaintiffs and defendants need to have a particularized and direct stake in the outcome of a dispute for it to qualify as a "case or controversy" that is properly resolved in a federal court under Article III of the Constitution. In 1997, in Arizonans for Official English v. Arizona, the Court strongly suggested that the sponsors of an Arizona initiative that imposed English as the official state language lacked standing under Article III to defend the measure against constitutional attack.

As the unanimous Court observed, the sponsors "are not elected representatives [of the state], and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. . . . We thus have grave doubts" about whether the Arizona initiative sponsors have standing.

Amar concludes that if the proponents lacked standing to appeal, they also lacked standing to intervene, tho I'm not sure whether that's right; I think there's a different analysis for piggybacking on a proceeding vs. bearing the burden oneself.

Jonathan Adler rounds up some commentaries here and there. One of his commenters cites some pertinent authority:

By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court without a “case” or “controversy” between appellees and the State of Illinois. Cf. Princeton University v. Schmid, 455 U. S. 100 (1982).

Had the State sought review, this Court’s Rule 10.4 makes clear that Diamond, as an intervening defendant below, also would be entitled to seek review, enabling him to file a brief on the merits and to seek leave to argue orally. But this ability to ride “piggyback” on the State’s undoubted standing exists only if the State is, in fact, an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join.

Politically, I would think that the 9th Circuit would seize at any opportunity to avoid sending the merits of the case to SCOTUS (depending on the panel), and I would enjoy seeing the standing-conscious justices, such as Scalia, wrestle with their consciences on that issue.

The real injury however is to California's voters; I am no fan of their referendum process, but it's their law, and the whole point is for the people to bypass representative government. If their elected officials can then collude in a proposition's being stricken, by refusing to defend in court, that seems to defeat the whole purpose. Since the AG (the perennial Jerry Brown) is running for governor, it will be interesting how that works in the campaign.

... Another post on the standing issue:

Here’s the problem: The Supreme Court has yet to decide "whether a party seeking to intervene before a district court must satisfy not only the requirements of" Rule 24 as well as the Article III "case or controversy" requirement. See Diamond v Charles, 476 US 54, 68-69 (1986) (emphasis supplied). What is clear is that regardless of their ability to intervene under Rule 24 before the District Court, the Proponents must establish Article III standing if they are to appeal without the party on whose side intervention was permitted, in this case the State defendants. In other words, even if they could intervene under Rule 24 before the District Court, to maintain the appeal or continue the case they must fulfill the Article III standing requirements.

So it's at least an open question whether Rule 24 intervention gives Article III standing.

Non-crazy conservatives: Cordoba House edition

They're becoming increasingly noteworthy, aren't they?

Josh Barro at NRO:

What I find bizarre about some of the conservative response to Cordoba House is not just the objection to the construction of the mosque, but the conviction that it should be stopped by any means necessary—even if that means violating conservative principles about property rights, rule of law, and federalism.

Part of supporting limited government is understanding that sometimes, things you don’t like will happen, and the government (especially the federal government) won’t do anything about it. Getting to do what you want comes at the price of other people getting to do what they want—including build mosques where you’d prefer they didn’t.

* * * So much of the complaint about the mosque has centered around the idea that, because hijackers acting in the name of Islam attacked the towers, Muslims should maintain a respectful distance. But the developers of Cordoba House (why do I even need to say this?) are not terrorists and did not attack the towers. Placing a burden on all Muslims to keep their institutions out of the Financial District is unfair.

The first comment to his post has the utterly predictable "the Constitution is not a suicide pact" line, causing yet another dollop of molten lead to drip onto Robert Jackson's flesh down in Purgatory.

And Michael Gerson (via Chait):

A president is president for every citizen, including every Muslim citizen. Obama is correct that the way to marginalize radicalism is to respect the best traditions of Islam and protect the religious liberty of Muslim Americans. It is radicals who imagine an American war on Islam. But our conflict is with the radicals alone.

So you would think.

Really, it boils down to this: Some people like liviing in a free country. Some don't.

"Whatever that means"

Sass and counter-sass on the MSSC handdown today. We're presented with the always-interesting sight of the Court's affirming summary judgment for a corporate civil defendant -- interesting when Justice Graves writes the opinion, anyway. As you'd expect, the facts are pretty tight: plantiff brings wrongful-death suit, plaintiff signs release, plaintiff tries to sue third party released. Not much there.

Except that Waller, C.J., with Dickinson, Randolph, and Lamar, JJ., concurs in part and in result. Says Waller. Graves, however, thinks not:

¶12. We note that the separate opinion is labeled as concurring in part and in result with this majority opinion. However, the separate opinion fails to explicitly disagree with any part of this opinion. It merely adopts the findings and holding of this majority. Therefore, the separate opinion is, in fact, a specially concurring opinion.

Question: if 5 justices vote that a separate opinion is a specially concurring opinion and not a concurrence in part and in result, is that dispositive, whatever the author of the opinion may've thought? I am going to teach a whole hour of CLE one day on just that issue -- don't all sign up at once.

The Court's op points out in several places where it's saying what the separate opinion says. And tweaks the Chief. Waller wrote:

And if Thomas was not an employee of Crawford – but an independent contractor, as Crawford argues – then Crawford still could have been released by the settlement contract if Crawford was in “privity of interest” with Thomas, whatever that means.

(My emphasis.) I'm glad that I'm not the only one who finds these rote expressions confusing. Graves for the Court quotes the release of

Hosie Thomas, H.T. Trucking Company, and Progressive Gulf Insurance Company and all agents, servants, employees, representatives, attorneys, adjusters, investigators, officers, directors and successors and all persons, firms, corporations, and other entities in privity of interest therewith

and drops a footnote at that point to say

This is the language quoted in paragraph 16 of the separate opinion, although it adds, “whatever that means.”

Anyway, if you can figure out why a separate opinion was necessary, feel free to tell me -- the separate opinion doesn't say directly, and I confess to sympathy with Graves as to what the point was.

... In other news, back in June, the MSSC found that Miss. Code Ann. 15-1-36(5) and 15-1-36(6) "directly conflict with one another," and decided for (5) on policy grounds. TBA has on good authority that a motion for rehearing addressed whether, in that case, canons of construction required the Court to go with the latter-occurring provision, (6), since that's what the canon says to do with provisions that directly conflict. Today, problem solved! The MSSC simply omitted the first sentence of para. 14 (para. 13 in the original) that had mentioned the "direct conflict." No more conflict!

"Twenty percent of Pakistan is currently under water"

I'd noticed reports of flooding, but I didn't realize how bad it was. Link & post title via Yglesias.

"Top Ten Books to Read on 20th Century Europe"

It's Tony Judt's list, contributed a while back to the Omnivoracious blog. Worth a look; given his low opinion of Hobsbawm, Judt's praise for The Age of Extremes must be all the more sincere, and I am reminded yet again that I need to read Grossman's Life and Fate, despite the Woody Allen title. Via la Bookslut.

Death, prayer, Woolf

Professional atheist Christopher Hitchens is gravely ill with cancer, and is disavowing in advance any "deathbed conversion" he might make, prospectively attributing such to his future debilitation of mind and body. Damon Linker is reminded of a passage from Primo Levi:

I entered the Lager (Auschwitz) as a non-believer, and as a non-believer I was liberated and have lived to this day. Actually, the experience of the Lager with its frightful iniquity confirmed me in my nonbelief. It has prevented me, and still prevents me, from conceiving of any form of providence or transcendent justice. . . . I must nevertheless admit that I experienced (and again only once) the temptation to yield, to seek refuge in prayer. This happened in October 1944, in the one moment in which I lucidly perceived the imminence of death . . . naked and compressed among my naked companions with my personal index card in hand, I was waiting to file past the “commission” that with one glance would decide whether I should go immediately into the gas chamber or was instead strong enough to go on working. For one instance I felt the need to ask for help and asylum; then, despite my anguish, equanimity prevailed; one does not change the rules of the game at the end of the match, nor when you are losing. A prayer under these conditions would have been not only absurd (what rights could I claim? and from whom?) but blasphemous, obscene, laden with the greatest impiety of which a nonbeliever is capable. I rejected the temptation; I knew that otherwise were I to survive, I would have to be ashamed of it.

As Linker notes, this points up a fundamental difference between believers and nonbelievers:

Levi and Hitchens reside in the first camp, believing that they are most themselves when they are healthy and free--at the height of their human powers; whatever they may feel or say (or be tempted to say) in moments of weakness or degradation deserves to be dismissed as inauthentic. But the devout reside in the second camp, insisting that human beings are truest to themselves--most authentic--when they are most vulnerable.

This of course is the distinction Luther made in announcing his "theology of the cross":

It is certain that man must utterly despair of his own ability before he is prepared to receive the grace of Christ.

But what the Levi quote reminded me of was a pre-Auschwitz literary moment in To the Lighthouse, as Mrs Ramsay winds up her knitting before supper and thinks about "losing personality" in one of her spells of being half in love with easeful death, a mood which

... would lift up on it some little phrase or other which had been lying in her mind like that -- "Children don't forget, children don't forget" -- which she would repeat and begin adding to it, It will end, it will end, she said. It will come, it will come, when suddenly she added, We are in the hands of the Lord.

But instantly she was annoyed with herself for saying that. Who had said it? Not she; she had been trapped into saying something she did not mean. * * * What brought her to say that: "We are in the hands of the Lord?" she wondered. The insincerity slipping among the truths roused her, annoyed her. She returned to her knitting again. How could any Lord have made the world? she asked. With her mind she had always seized the fact that there is no reason, order, justice: but suffering, death, the poor. There was no treachery too base for the world to commit; she knew that. No happiness lasted; she knew that.

Now that I think of it, Mrs Ramsay's falling back in her annoyance on the problem of evil cuts into Linker's distinction. The moments which Linker pegs as most authentic from a believer's perspective are precisely those which lead a Mrs Ramsay to disbelieve in the existence of God.

Most overrated Jackson restaurant?

I would've said Broad Street (shredded lettuce??? gmafb), but lunch at CS's today has just changed my mind. I don't think I've been in there for 20 years, and I hope to wait that long for the next visit.

(1) Broiled burger tasteless and unappealing.

(2) Ordered cheddar on burger; got burger with GRATED cheddar added at last minute, not even melted. That was a first for me.

(3) Asked for beer. Selection: Bud Lite, Michelob Ultra, Heineken, Corona. This in a restaurant across the street from the most expensive college in the state, and with shelves displaying dusty, empty bottles of wonderful beers. After getting my food, I was depressed enough to need a second beer, and ordered another Heineken. Oops, that was the last one!

Against that, the waitress was pleasant enough, the fries were all right, and I liked the old Cat's Music bumpersticker on the door:
Someone who put some slight effort into decent burgers and a beer selection could work wonders.

What is a "Constitutional right," anyway?

The SSM debate continues to enliven the Volokh blog, with Orin Kerr interested in just when exactly gay marriage became a right.

An Interesting VC Reader Poll Result on Same-Sex Marriage

A Question for Readers Who Think The Constitution Required States to Recognize Same-Sex Marriage Before 1900

Explaining the Wide Range of Answers on When the Right to Same-Sex Marriage Was Created

Asking when a "fundamental right" became a right strikes me as wrongheaded, though my sorry grasp of the relevant theory of rights may mean that I'm the wrongheaded one here.

To mash up a couple of VC comments, I posted, my understanding of "rights" is that natural rights are a necessary hypothesis, along the lines of “the philosophy of as-if.” They can’t be held to be granted by the government, which is why Jefferson et al. made them “self-evident” and secured *by* government.

Plenty of people in Jefferson’s day and after, parallel to certain modern commenters best left unnamed, thought there was nothing “self-evident” about any rights to life, liberty, and the pursuit of happiness, or about all men’s being created equal. De Maistre comes to mind. But there are relatively few old-school conservatives like this, at least who will admit it.

When did all men became equal? And all women?

“Equality” seemed silly and by no means self-evident when applied to men without property, or to women, or to blacks. Now it seems silly when applied to gays.

Because rights are "self-evident," they are logically and legally prior to the Constitution, which was never intended to be an enumeration of all rights enjoyed by the people. The Framers expressly argued that no such enumeration was necessary, because rights were natural and prior to the Constitution. Even when a Bill of Rights was added, its proponents were careful to add the Ninth Amendment to avoid any positivist argument that rights are granted only by the government.

Therefore, when it’s a question of one’s right to do this or that, saying “but is it in the Constitution?” is a category error.

... "Philosophy of as-if" is a reference to Vaihinger's book of the same name, kind of a Kantian pragmatism if you will -- and if you think "Kantian pragmatism" is a contradiction in terms, well, you need to read Vaihinger, or read about him anyway. What is the Critique of Practical Reason if not an argument for pragmatism?

Seize it all, the Fourth Amendment knows its own?

TBA tries to understand criminal procedure, but the Fifth Circuit doesn't make it easy.

Texas cops searched a man's house for explosive devices, which he possessed because he was a licensed dealer in such. The man's Section 1981 suit against the city for Fourth Amendment violations alleged that the police chief was delegated policy powers by the city and that he had a policy of violating the Fourth Amendment. The Fifth Circuit agreed the chief was a policymaker, and then stated:

Upon finding a policymaker, we must next consider whether the allegedly unconstitutional action constitutes a “custom or policy” of the municipality. We have identified two forms that “official policy” may take. First, a plaintiff may point to a policy statement formally announced by an official policymaker. See Webster, 735 F.2d at 841. In the alternative, the plaintiff may demonstrate a “persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.” Id.

The problem with this analysis is that it seems to leave something out: an express admission of illegal policy. The court never considers, in its analysis, certain facts it had itself recited in the same opinion:

During the searches of Zarnow’s homes, police officers seized weapons, ammunition, currency, bonds, silver, band-aids, books, prescription medicines, and over-the-counter medications. Although a number of these items were not covered by the search warrant, police justified their seizure by citing to the “plain view” doctrine. Officers later testified that they understood “plain view” to permit the collection of any item that might be evidence of any crime. The police chief testified that it was his practice to seize more than was necessary during an initial search, so that he could later “rule things in or out.”

Leaving aside the egregious-seeming failure-to-train issue (the court says there's no evidence of failure to train, but I don't get how a general notion that the law says what it doesn't is not evidence of that), what about the chief's own admission that "it was his practice" to seize items not covered by a warrant?

Should we legalize straight marriage?

Yglesias observes Ross Douthat's struggle to make a rational point against gay marriage. Douthat:

lifelong heterosexual monogamy at its best can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition and support.

Yglesias leaves aside that this is ideological garbage, and makes an even more obvious point:

The natural thing to observe is that very little of our current legal architecture of marriage has much to do with this. Actual marriages in 21st century America aren’t required to be lifelong or monogamous. Douthat concedes as much:

Or at least, it was the Western understanding. Lately, it has come to co-exist with a less idealistic, more accommodating approach, defined by no-fault divorce, frequent out-of-wedlock births, and serial monogamy.

So at this point we’re upholding an ideal of lifelong heterosexual monogamy by legally requiring the heterosexual part, but not the lifelong or monogamous part. The unfairness of such a standard seems both obvious and overwhelming.

Banning gay marriage is how (some) straight people kid ourselves that we haven't reduced the legal incidents of marriage to, basically, a voidable contract.

... as Douthat’s piece makes clear, the status quo is really a cop out. Instead of holding heterosexuals up to a rigorous standard of conduct--no divorce, harsh & unforgiving attitude toward infidelity--we’re going to discriminate against the gay and lesbian minority and then congratulate ourselves on what a good job we’re doing of upholding our ideals.

Obviously, the real solution is to outlaw heterosexual marriage. Straight people have a grotesquely high divorce rate, and the phenomenon of stepparenting and single parenting among straights has become an epidemic. A child needs a mother and a father, and it's abundantly clear that this cannot be accomplished through the institution of straight marriage.

Tony Judt, RIP

Tony Judt, dead of Lou Gehrig's Disease at age 62. The NYRB links to some of his essays for them, includign "Israel: The Alternative," about which, see the NYT obit:

His views on Israel made Mr. Judt an increasingly polarizing figure. He placed himself in the midst of a bitter debate when, in 2003, he outlined a one-state solution to the Israel-Palestinian problem in The New York Review of Books, proposing that Israel accept a future as a secular, bi-national state in which Jews and Arabs enjoyed equal status. * * *

Leon Wieseltier, the literary editor of The New Republic, told The New York Observer at the time that Mr. Judt, on Israel, “has become precisely the kind of intellectual whom his intellectual heroes would have despised.” Mr. Judt’s name had been removed from the masthead of the magazine, where he had been a contributing editor, after his article on the one-state solution.

I think Judt will be read and valued longer than Wieseltier.

Kenneth Anderson, himself not a fan of Judt's views on Israel, has a nice appreciation at the VC.

Naturally, the Israel essay is more subtle than the Wieseltiers would have one believe. Judt sees three options: retreat to the 1967 borders, the one-state democratic solution, or ethnic cleansing. Judt sees Israel as the last example of the post-Versailles successor states, which used their independence to "set about privileging their national, “ethnic” majority--defined by language, or religion, or antiquity, or all three--at the expense of inconvenient local minorities, who were consigned to second-class status: permanently resident strangers in their own home." Read the whole thing (it's short), and the exchange of letters that followed, as part of remembering Judt for what he wrote, not for what was said about it.

It's not "intel failure" when it's deliberate

Over at the NYRB, one Fulton Armstrong weighs in on the debate between Robert Jervis and Thomas Powers over whether the intel establishment cooked the books on Iraq's alleged WMDs.

I was a member of the National Intelligence Council (NIC), as national intelligence officer (NIO) for Latin America, from 2000 to 2004. The NIC is the intelligence community’s senior analytical group responsible for preparing National Intelligence Estimates (NIEs), including the Iraq WMDNIE. At the time, it reported to the director of the CIA, George Tenet, in his “intelligence community hat” and was located at CIA headquarters. Although the NIC is an interagency body, the CIA has always dominated its staff and work. * * *

The National Intelligence Estimate produced by these NIOs on weapons of mass destruction in Iraq, with the participation of the CIA and other intelligence agencies, was not subjected to the customary “peer review” of the National Intelligence Council because, after delaying the project for months, the NIOs didn’t have a spare hour for the discussion and debate that the council’s review would have provided. But we knew what they were up to. During our closed-door council meetings, they would eagerly report their progress in dividing the fifteen coordinating agencies that had contributed to the NIE. They boasted how, after an obviously extensive search, they finally found an Energy Department employee willing to contradict his agency’s consensus position that Iraq’s missile tubes were not, as the administration and the NIOs asserted, centrifuge tubes.

The NIOs who were preparing the NIE also boasted how they found an Air Force analyst to dissent from his service’s position that Iraq’s little unmanned surveillance planes could not be armed. They were happy that challenges to their and the administration’s assumptions about Iraq’s chemical weapons and biological weapons capabilities were minimal; after all, who’s going to try to prove a negative?

The most back-patting, however, was reserved for their success in forcing the State Department’s intelligence shop, the Bureau of Intelligence and Research (INR), to take a “footnote”--a dissent at the bottom of the page--on a lesser judgment in the paper rather than on the overarching judgment that Saddam Hussein had WMDs. One of the NIOs smiled when he reported that INR couldn’t prove that Saddam did not have WMDs and that no one wanted to be seen as defending Saddam anyway. That was exactly the Bush administration’s political strategy as well. Instead of allowing INR to develop an alternative analysis in the main text of the NIE--the proper form for a different view when the information is so obviously weak--the NIOs humiliated the only agency at the table, the State Department’s INR, that dared to question the administration’s preordained conclusions.

When we on the National Intelligence Council finally got a full read of the National Intelligence Estimate on WMDs, after its publication, a couple of us expressed grave reservations about the fatally weak evidence and the obsessively one-sided interpretation of what shreds of information it contained. (We were not told at the time that “Curveball” was a solitary source of obviously questionable credentials, nor that contradictory evidence was actually suppressed from the intelligence collection and dissemination process.) One colleague said it was clearly a paper written to provide a rationale for a predetermined policy decision to go to war. When I challenged the lack of evidence and the lack of alternative explanations, including forcing the questions raised by the INR into a lowly footnote, one of the WMD-promoting NIOs leaned forward and bellowed: “Who are you to question this paper? Even The Washington Post and The New York Times agree with us.” The irony was complete: previously respected reporters, spoon-fed by Bush administration officials, were now being used to provide cover for the NIOs’ similar compromise in accepting the administration’s view.

Read the whole thing.

Scott Brown hacktacular moment

Elena Kagan confirmed, 63-37.

Her previous courtroom experience was limited and some Republicans cited her lack of time on the bench as a chief factor in their opposition, including Senator Scott Brown, the Massachusetts Republican, who on Thursday announced he would oppose the nomination of the woman he introduced at her confirmation hearings.

“When it comes to the Supreme Court, experience matters,” Mr. Brown said in a statement. “No classroom can substitute for the court itself, where decisions are made that affect the day-to-day lives of American citizens, and where one’s judicial character and temperament is shaped in favor of the fair and just application of the law.”

But Democrats dismissed that argument, with Senator Christopher J. Dodd, Democrat of Connecticut, saying that more than one-third of the 111 Americans who have served on the court were not previously judges, including former Chief Justice William Rehnquist, whose tenure was highly regarded by many Republicans.

So, Senator Brown, you would've voted against Rehnquist, right?

TBA will cease to despise Republicans when they cease to invite contempt.

Eerie

So, Kim Walker, who played Heather Numero Uno in Heathers, and uttered the memorable line, "What, did you have a brain tumor for breakfast?" ...

... died of a brain tumor.

Via the AV Club (comment thread). I suppose it's better than if someone really *had* tried to fuck her gently with a chainsaw, but still, damn.

And the percentage is probably higher where I live ...

Even closer than the poll reported by Vanity Fair, CNN reports 27% of Americans say Obama "definitely" or "probably" wasn't born in the U.S. One-fourth of the nation either

have worldviews which lead them to disagree with what you consider rationality even though they arrive at their positions through rational means, [or else] are the core of the Crazification -- either genuinely crazy; or so woefully misinformed about how the world works, the bases for their decision making is so flawed they may as well be crazy.

Thought experiment on gay marriage

(Lifted from my comment at the Kerr post below.)

The analogies between interracial marriage and gay marriage founder on the fact that the 14th Amendment covers race but not sexuality.

But that raises an interesting question. Suppose there *were* no 14th Amendment.

Would there be a rational basis for a law prohibiting interracial marriage? IOW, on this particular issue at least, is the 14th Amendment superfluous?

THAT to me is the much more interesting analogy between race and sexuality on the marriage issue.

What do you think, folks? Could Virginia or Mississippi state a rational basis, in 2010, for prohibiting interracial marriage in the absence of the 14th Amendment? And if so, what would that be, exactly?

The torture doctors (UPDATED)

So if I cared to spend $30, I could read the article in the AMA's journal about the CIA's torture doctors. (Does the AMA get any federal grant support? I firmly believe all public funding in future should carry a requirement of free internet access to published articles.) But I don't, for the time being at least.

So here's a quote:

The CIA Office of Medical Services

* purported to subject some techniques to "medical limitations," but those claimed limitations imposed no constraint on use of torture, e.g., allowing weight loss up to serious malnutrition, noise up to level of permanent hearing damage, exposure to cold water right up to development of hypothermia, shackling in upright sitting or horizontal position for 48 hours (and longer with medical monitoring);

* placed no medical limitations at all on the use of isolation, hooding, walling, cramped confinement or stress positions except in some cases avoidance of aggravation of pre-existing injury;

* ignored medical and other literature on effects of these forms of torture, and instead cited sources like NIH web site, wilderness manuals and WHO guidelines.

* recognized dangers of certain enhanced methods but nevertheless approved them, e.g., that waterboarding risks drowning, aspiration pneumonia, and laryngospasm; sleep deprivation can degrade cognitive performance, lead to visual disturbances and reduce immune competence acutely; prolonged standing can induce dependent edeme, increased risk for DVT, cellulitis.

Medical ethics.

... More from Scott Horton:

The duplicity in this affair is amazingly circular. The Justice Department’s torture lawyers relied on the CIA’s torture doctors for the conclusion that specific techniques did not produce “severe pain” that ran afoul of the criminal law prohibition on torture; the CIA doctors relied on the Justice Department lawyers for the same conclusion. It looks like a compact, and an alert prosecutor would no doubt call it a joint criminal enterprise: I’ll shield you, and you’ll shield me. But the conduct of the OMS involves laughable games with the ethics requirements. The obligation to “do no harm,” the physician’s foremost ethical injunction, is converted by OMS into an injunction to avoid “severe pain.” In other words, in the OMS’s book, anything that falls one iota short of prosecutable torture, including cruel, inhuman, and degrading treatment (which is also prosecutable) is just fine. It’s hard to see at this point whose behavior was the more ethically odious, though evidence suggests that both engaged in professional misconduct so egregious as to warrant formal disciplinary proceedings.

Torture -- the new "professional misconduct." Hell, I thought that was putting my client's funds in the wrong bank account.

Quote of the day

Judge Walker has, as expected, stricken Prop 8's ban on gay marriage in California. ("Has struck"?) The horse race will of course continue.

Quote of the day is from a Sully reader, making an observation on Walker's opinion:

What strikes me about Judge Walker's opinion is the amount of evidence he included there - numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can't say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed - as everyone knows it will be - he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.

Those not caring to peruse the 138 (or 136)-page opinion may wish to look at the "key language" flagged by Orin Kerr; those who wish to sample wingnut wrath, may wish to look at the comments to Kerr's post.

... Bryan Garner, Dict. of Modern Legal Usage: "stricken, though common as a past participle in much legal writing, is considered by the better authorities to be inferior to struck." Hmmm.

TBA endorses 14th Amendment crackpottery

Some GOP senators are calling for hearings on amending the 14th Amendment's provision for birthright citizenship. Pandering, Kevin Drum calls it.

At risk of agreeing with some disagreeable people, TBA asks: what's so sacred about birthright citizenship? We got along without it for 75 years. It was instituted for the evident purpose of reversing Dred Scott, which is not a terribly topical issue nowadays. And it's arguable that the framers of the amendment did not foresee the welfare state or its incentives to immigrants. Jus soli is by no means the rule amongst the nations.

TBA is at least open to hearing what would be so good, and so bad, about repealing or modifying the jus soli portion of the 14th Amendment. Let 'em have their hearings.

"Inception was stolen from Scrooge McDuck"

WWTDD breaks the news to us. The similarity extends to Donald's being sent into the dream to foil the Beagle Boys.

("Although the characters are obviously based on dogs, they in no way resemble the actual beagle breed." Thank you, Wikipedia. That's always annoyed me.)

Anne Rice is shocked, shocked!

Rice's spiritual journey took her from faith, to doubt, to vampires, then to faith again. And now she has left the Roman Catholics, reports Michael Schaub:

Rice says the final straw was when she realized the lengths that the church would go to prevent same-sex marriage.

"I didn't anticipate at the beginning that the U.S. bishops were going to come out against same-sex marriage," she says. "That they were actually going to donate money to defeat the civil rights of homosexuals in the secular society."

Um, yes. The Catholic church opposing same-sex marriage. Who could possibly have seen that one coming? That's like quitting a fraternity because you weren't aware they were going to be drinking alcohol.

As usual, TBA has nothing to add to Schaub's analysis.

Obama's priorities

It would be very wrong to waste the FBI's resources on investigating and prosecuting torturers, when there are much more important wrongdoers, like Wikipedia:

(CNN) -- The U.S. Federal Bureau of Investigation has threatened Wikipedia with legal action if the online encyclopedia doesn't remove the FBI's seal from its site.

The seal is featured in an encyclopedia entry about the FBI.

Wikipedia isn't backing down, however. The online encyclopedia -- which is run by a nonprofit group and is edited by the public -- sent a chiding letter to the FBI, explaining why, in its view, the FBI is off its legal rocker.

And yes, as the article notes, the dispute has already been recorded on Wikipedia's "Seal of the FBI" page. Your tax dollars at work, folks.

The end of incandescence

The hot filament of the incandescent bulb has illuminated our loved ones, our books, our rooms for so long that its glow has come to feel as natural as daylight — maybe more so, since most of us spend the majority of our waking hours indoors and accompanied by its light. But now the days of Edison’s bulb are numbered.

-- Jane Brox (via 3QD).

How about "most notorious of December 1944"?

I like Max Hastings' work, but sometimes he tosses off some ill-considered lines:

The Allies' failure to anticipate Hitler's assault [at the Bulge] was the most notorious intelligence disaster of the war.

Really? Ya think?

Nietzsche on the Green Lantern theory

Every thoughtless person supposes that will alone is effective; that willing is something simple, a brute datum, underivable, and intelligible by itself. He is convinced that when he does something -- strike something, for example -- it is he that strikes, and that he did strike because he willed it. * * * The will is for him a magically effective force; the faith in the will as the cause of effects is the faith in magically effective forces.

-- Nietzsche, The Gay Science, # 127.

... Cf. Matt Yglesias on the Green Lantern theory of international relations:

Hawks seem to have convinced themselves that American military might is like a power ring -- capable of achieving anything if only we have sufficient will. There are no objective limits to our capacities, no sticky situations that need to be handled cautiously, no awkward compromises to be brokered, and no stuff we're just going to have to live with in the hopes that things will change for the better down the road. There are only goals, force, and will, and the only relevant question in any situation is whether we have the will to achieve our goals with force.

The tragedy of this theory is that, like all the really bad theories, it's never refuted by events. Sane people are a bit chastened by Iraq. Having watched the country make a very high-stakes gamble in Mesopotamia only to have it blow up in our faces, we're disinclined to do it all over again on the hopes that this time we've correctly identified which leader is the "real problem" and whose population will welcome us with flowers and sweets. To the hawks, though, the answer to every problem is more will, more force. So it stands to reason that the current chaos shouldn't make us cautious about further destabilizing actions. Rather, the current chaos actually proves the need for the application of more force, more will. The massive fallout from Iraq is, to the hawks, not the fault of the war's architects but of its opponents, who've sapped the nation's willpower -- willpower we desperately need to recover in order to address the negative consequences of the last deployment of will (and high explosives).

Is there only coincidence that the party which identifies itself more strongly with supernatural guidance ("magically effective forces") is also the party which subscribes to the Green Lantern theory?

... Leaving aside the irony that Nietzsche, the man who analyzed "the will" out of existence, is today misremembered as the preacher of the "will to power." The will to power, properly understood, is the will to misunderstanding, to fiction, to interpretation -- the will to imagine that there's a "will." "Thus an occasional will to stupidity," as N. notes. Cf. BG&E # 230:

... a suddenly erupting decision in favor of ignorance, of deliberate exclusion, a shutting of one's windows, an internal No to this or that thing, a refuasal to let things approach, a kind of state of defense against much that is knowable, a satisfaction with the dark, with the limiting horizon, a Yea and Amen to ignorance -- all of which is necessary in proportion to a spirit's power to appropriate, its "digestive capacity" ....

Fundamentalism is just such a state of defense. As N. discusses in book 3 of The Gay Science, such a will served the human race (if not every one of its members) for millenia; the "will to truth," to analysis and contradiction and uncertainty, is much more recent and by no means either a definite improvement or guaranteed to last. The Sarah Palins may yet be on the winning side.