Monday, April 23, 2012

New digs?

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

So, TBA has a new look at a new home: http://thusbloggedanderson.wordpress.com. (Warning: same crappy content as always.)

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

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

And you thought the IRS was merciless!

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

Bad Bad Religion

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

Saturday, April 21, 2012

Words to live by

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

- Baljeet

Friday, April 20, 2012

David Hume on legal research & writing

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

(H/t DeLong.)

When is an opinion not an opinion?

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

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

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

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

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

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

Baby oak

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


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

Thursday, April 19, 2012

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

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

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

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

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

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

Ezra Klein explains why America isn't Europe

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

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

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

QOTD

Fascism is psychoanalysis in reverse.
—Adorno.

More on the Pulitzers

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

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

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

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

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

Republican self-parody

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

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

Wednesday, April 18, 2012

Also exfoliates your teeth!

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


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

Ingredients:


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


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

Tuesday, April 17, 2012

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

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

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

—Barney Frank, interviewed by Jason Zengerle

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

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

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

Geneva Conventions "quaint" to Obama?

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

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

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

Monday, April 16, 2012

Pulitzer board to fiction jury: why did you give us this crap to read?

NMC notes that the Pulitzer Prizes are out, and for the first time since 1977, the board has refused to make an award.

The way it works is, a jury picks three finalists and then the board votes. This year's finalists were Train Dreams by Denis Johnson, Swamplandia! by Karen Russell, and The Pale King by DFW. (I can't imagine that last was a good book, and know nothing of the other two.) No word whether the board had a hung vote, hated all three, or just what.

... Hung vote, it's said:
"The main reason (for the fiction decision) is that no one of the three entries received a majority, and thus after lengthy consideration, no prize was awarded," said Sig Gissler, administrator of the Pulitzer Prizes. "There were multiple factors involved in these decisions, and we don't discuss in detail why a prize is given or not given." * * *

Susan Larson, chairwoman of the Pulitzer fiction jury, stressed that it wasn't up to the jury to select the winner. Rather, she said, its job was to submit three finalists to the board. "The decision not to award the prize this year rests solely with the Pulitzer board," she wrote in an email to the AP.
The board has 20 members, including such luminaries as Thomas Friedman (himself heavily favored to win Wanker of the Decade) and a co-founder of Politico - heavy with newspaper editors, which perhaps suggests part of the problem: a single board that evaluates journalism, fiction, poetry ....

UPDATE: Aaaaand it's Friedman.

Annals of finding the glass half-full

Democrats are taking cheer in the fact that Mitt Romney is a pretty unpopular guy:
A new ABC News-Washington Post poll finds Mitt Romney has emerged from the Republican primary season with the weakest favorability rating on record for a presumptive presidential nominee since 1984, trailing President Obama in personal popularity by 21 percentage points.

Romney is the first likely nominee to be underwater - seen more unfavorably than favorably - in eight presidential primary seasons across the past 28 years.
An unpopular guy, that is, who's edging Obama in the polls (or at least is statistically tied).

If Obama is neck-and-neck with the least popular candidate since Walter Mondale, that does not bode well.

Money and justice

In welcome news, Judge Primeaux reports that the judicial pay-raise bill, which raises some filing fees to fund long-overdue salary increases for the state judiciary, has been signed into law. Yay!

You get what you pay for, and what you don't pay for, you don't get—as Justice Dickinson is reminding folks in Washington:
Mississippi Supreme Court Presiding Justice Jess H. Dickinson will participate in the White House Forum on the State of Civil Legal Assistance at 1 p.m. Tuesday, April 17, at the White House. * * *

The forum will focus on access to civil justice, benefits of legal aid for the judicial system and the effect on courts when they risk being overwhelmed with unrepresented litigants.

Justice Dickinson said, “I view this as an incredible opportunity to provide information to people who make decisions about funding this critical program. I hope that it will help the President and Congress formulate reasonable budget priorities.”

Funding for the Legal Services Corporation has been cut in recent years. Legal Services Corporation funding in Mississippi is currently $4.7 million. The state’s two Legal Services organizations currently have 21 attorneys, and have cut back staff and closed offices. In 1985, there were 259 lawyers working for Legal Services offices in Mississippi, with a $6.8 million budget.

“We are going backwards,” Justice Dickinson said. * * *

“The primary message that I hope to get across is that the principle of access to justice and fairness in the courts is not at the same level as other spending priorities,” Justice Dickinson said. “The right to fairness in our courts is not only a basic, fundamental, Constitutional right of every citizen, but it is one of the government’s absolute obligations.”
I am guessing those dollar figures aren't adjusted for inflation. $6.8M in 1985 equates to $14.5M in 2012, which would mean today's budget in real terms is one-third what it was back in the heyday of the Reagan years.

Pet peeve: "M.I. Self, Esquire"

At some point in law school, students should be informed that, should they ever practice law, "Esquire" is not something one calls oneself. Cue Bryan Garner:
"Esq. is ... not used on oneself, e.g. neither on a card (which bears Mr. [sic]) nor on a stamped-and-addressed envelope enclosed for a reply * * *" Alan S.C. Ross, "U and Non-U: An Essay in Sociological Linguistics," in Noblesse Oblige (Nancy Mitford ed., 1956). But somehow, the idea has gotten out that Esq. is something you put after your own name ....
—Garner, A Dictionary of Modern Legal Usage (2d ed.). Don't do this, folks. Not every reader will infer that you are ignorant, naive, or self-important, but in a profession where image counts, it's a silly mistake to make.

... Nancy Mitford? Yes, Nancy Mitford.

Norway killer claims self-defense

OSLO, Norway (AP) — With a defiant closed-fist salute, a right-wing fanatic admitted Monday to a bomb-and-shooting massacre that killed 77 people in Norway but pleaded not guilty to criminal charges, saying he was acting in self-defense.
Fortunately, Norway's statutes do not mirror those of Florida, or else the courts would probably be forced to acquit. [Rimshot.]

Is the judicial counterrevolution underway?

It's difficult to believe that Jerry Smith of the 5th Circuit would've been so bold as to call out the President of the United States over a press conference Q&A had the ACA oral arguments at the Supreme Court not put the scent of blood into the water.

Now some other judges are happily anticipating the judicial counterrevolution:
In a concurring opinion today in Hettinga v. United States, Judge Janice Rogers Brown (joined by Judge Sentelle) contends that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations.
Orin Kerr confines himself to tsking that such an op-ed piece was placed in a judicial opinion, but the merits of the position are catnip to the conservatives who have thought for 80 years that the country went wrong in the New Deal and have longed to return America to the Gilded Age.

The ACA opinion(s) will be meaningful for a lot more than whether or not the individual mandate or Obamacare get overturned. The rationale will be the real story. Will the Court contrive some Bush-v.-Gore one-shot rationalization for a nakedly political act? Or will the Court actually establish its decision on case law by overturning, or "distinguishing" so as to effectively overturn, the modern understanding of the Commerce Clause? Are the Randy Barnetts and Janice Rogers Browns the wave of the future?

Friday, April 13, 2012

Pop quiz on professional ethics!

Inspired by this Philip Thomas post ....

PREMISES: You're a trial lawyer with considerable success in premises-liability cases in a particular venue. A potential client wants to hire you to file such a suit for him in that venue.

The facts strike you as dubious at best, and on the one hand, you don't really think he's entitled to any significant relief.

On the other hand, you've won six- and seven-figure verdicts in this venue for some pretty dubious plaintiffs. You can predict that, with a little luck on the judge assignment and jury pool, you can do the same for this guy. It may not stand up on appeal, but then, the insurer may settle rather than risk your going to a jury.

If you haven't accepted the client, is it unprofessional to take his case?


... My answer in the comment thread.

Thursday, April 12, 2012

The bookshelf

Haven't done one of these in a long time, so I've forgotten a good bit of reading. Not that it matters. Anyway:

Larry McMurtry, Lonesome Dove series: I read these in story order, not publication order. They're page-turners, though I question whether I'll read any of them again. No, I never saw the mini-series.

Ross Macdonald, Lew Archer series: found a good many of these at Choctaw Books and have been consuming them like potato chips. Macdonald may be more clever at plotting than Chandler, but Chandler is the better stylist and Marlowe is the more memorable character. OTOH I'm only on, what, book # 7.

Michael Grant, Saint Peter: picked this up re: the class on Acts that I'm trying to lead. No one should ever have high expectations from Grant, but the book was weak even from that limited perspective. I'm sufficiently aware of some of the debates around the history of the early church and of the New Testament's composition to catch Grant when he simply takes some fact for granted (heh) without mentioning that anyone might think differently.

A.N. Wilson, Paul: The Mind of the Apostle: thus far a much better book than Grant's. Written from the same relentlessly secular perspective, but with a richer appreciation of the debates and the context - lots of context (what did Paul's near-contemporaries write about Tarsus? etc.). The only thing I've wondered about is Wilson's assumption that Paul really did study under Gamaliel the Elder, which I recall Garry Wills' being unconvinced of ... for some reason ... that I'll have to go back and check ....

Dashiell Hammett, Red Harvest, The Glass Key, The Dain Curse: these are books I'd read a long while back but had forgotten in large part. It would be interesting to think about how each novel fails in some respect, though Red Harvest, the best of the three, may not. Ned in The Glass Key never quite comes together as a character in the way that, say, Sam Spade does. And The Dain Curse is just an implausible mess. But bad Hammett is still better than good lots-of-other-people.

J.E. Neale, Queen Elizabeth I: presumably not the title it bore when published in 1934? The classic biography, judicious and never dull.

Peter Longerich, Heinrich Himmler: everything you will ever want to know about Himmler, for whom the tidying-up of Europe's Jews was simply a preliminary to the wonderful future Germania, an empire defended by stalwart, micro-managed SS knights. In a better universe, Himmler would've been the slightly nuts proprietor of the health-food store down the street, who would detain unwary or like-minded shoppers with his theories about "ice people" and the Pyramids. As it turned out, he became the most feared man in Europe and one of the darkest criminals ever. History's a bitch.

But please, please, don't combine the two

Just as future historians will conclude that the internet was invented for the distribution of pornography, they will likely also decide that the purpose behind the invention of photography was to record images of cats.


... Really, it's a little mindboggling:
To put that 800Gbps figure into perspective, the internet only handles around half an exabyte of traffic every day, which equates to around 50Tbps — in other words, a single porn site accounts for almost 2% of the internet’s total traffic. There are dozens of porn sites on the scale of YouPorn, and hundreds that are the size of ExtremeTech or your favorite news site. It’s probably not unrealistic to say that porn makes up 30% of the total data transferred across the internet.

Evidence of incompetence

Judge Primeaux relays the news that Ole Miss Law [EDIT: like MC Law as well] no longer requires its students to take the Evidence course.

I suppose one could debate whether to have any required courses in law school, but any sane list of requirements would have to include Evidence. I don't care what kind of law a student thinks he or she is going to practice - Evidence is too fundamental to omit.

If any of you happens to run into the new law dean, you might ask him what the heck his school thinks it's teaching. But more polite-like.

Character is fate

He was always writing, and even then he wrote long. His sixth-grade essays dwarfed everyone else’s. His senior thesis at Princeton — on existentialism in Hemingway — was so long, he was told, that the college’s English department subsequently instituted a rule limiting the number of pages a senior could turn in.
The New York Times has a long profile on Robert A. Caro, who " is now spending more time writing the years of Lyndon Johnson than Johnson spent living them, and he isn’t close to being done yet." Long, but not as long as Caro would've written it.

Wednesday, April 11, 2012

Mark Twain and the hard-boiled style

Stumbled upon a lecture of Twain's on the prose style of James Fenimore Cooper. Summary would be invidious:
Here is a passage from Chapter xi of The Last of the Mohicans, one of the most famous and most admired of Cooper’s books:
Notwithstanding the swiftness of their flight, one of the Indians had found an opportunity to strike a straggling fawn with an arrow, and had borne the more preferable fragments of the victim, patiently on his shoulders, to the stopping-place. Without any aid from the science of cookery, he was immediately employed, in common with his fellows, in gorging himself with this digestible sustenance. Magua alone sat apart, without participating in the revolting meal, and apparently buried in the deepest thought.
This little paragraph is full of matter for reflection and inquiry.
And he goes on to pick it apart, sentence by sentence, needless word by needless word, until he arrives at what he thinks Cooper should have written:
During the flight one of the Indians had killed a fawn and he brought it into camp. He and the others ate the meat raw. Magua sat apart, without participating in the revolting meal.
Though Twain has some qualms about "revolting," since it's vague who is revolted - presumably not Magua.

And that seems nicely to illustrate how we get to Hemingway and Hammett.

The PDF is excellent for distribution to a composition class, as Twain illustrates the editor's mind in action.

Tuesday, April 10, 2012

Hillary turns out to be kinda cool actually

Hillary Clinton is apparently a big fan of “Texts From Hillary,” the viral site imagining the Secretary of State messaging various celebrities and politicians on her Blackberry. So much so that she invited the creators, Stacy Lambe and Adam Smith, who TPM interviewed this week, to join her at the State Department for an in-person meeting. She even came up with her own“Text With Hillary” and signed it
- TPM. 2016! 2016! 2012!

Let the (general) games begin!

As Santorum goes back to being a frothy mixture of semen, feces, and lubricant, Political Wire gives us a look at that folksy master of charm, Mitt Romney:
A mole gives Gawker video of Mitt Romney and Sean Hannity bantering before the taping of a Fox News interview in February.

"Of note: Romney professes his and his wife Ann's well-known love of horseriding, praising the qualities of the 'Austrian Warmbloods' that his wife rides -- they are 'dressage' horses, he notes -- while maintaining his own preference for the 'smoother gait' of his own 'Missouri foxtrotter.' Now there's nothing wrong with Mitt and his wife loving horseback riding. But remember this video next time Romney attacks Obama for golfing. The inherent elitism and snootiness of golf is NOTHING compared to competitive horseback riding. And I think Mitt loses points with the GOP base for his correct pronunciation of dressage. To GOP-voter ears it sounds not only gay, but even worse, French."

BuzzFeed isolates the part where Romney tries to do an impression of a gay man asking for a pink tie.
Though as Walter Kirn points out, empathy ain't Obama's strength, either:
Thanks perhaps to his peripatetic childhood and his absent father, Obama seems both hungry for crowd approval and limited in his ability to reach out to others. He's a bright, lonely boy who needs a lot from us but can't always return the favor, and he really only expresses public emotion when talking about Michelle, Malia, Sasha, or March Madness. The mythically cool and diffident figure whose blood supply goes mostly to his forebrain to oxygenate and nourish his IQ does make Romney, at moments, seem positively small-town, like a well-dressed Gomer Pyle on an especially great hair day. And Obama is also slightly better than Romney at dumbing himself down for humble occasions (he talks hoops more convincingly than Romney talks hunting and he bothers to drop his Gs when touring the heartland, a trick that is woefully willed-seeming and obvious although he appears to think he does it masterfully, the same way he thinks he does everything masterfully). But in the end he's just brittle where Romney's leaden, and twisty-quick where Romney's straight and plodding. Neither man shares your burdens; they both have the springy, tensile, perfect postures of students who like to get their hands up fast, expect to be called on, always are, and never fail to offer the right answer, or at least a convincing rationale for how their wrong answer was properly arrived at given the flawed information they had to work with.
I suppose the "rather have a beer with ______" is foreclosed by Romney's being a Mormon abstainer from such things. Of course, Dubya was supposedly on the wagon, and he still won that test.

Monday, April 09, 2012

Mike Wallace

"The debate between atheists and Christians is rather stale to me.... It's as difficult to get charity out of piety as it is to get reasonableness out of rationalism."
--Reinhold Niebuhr to Wallace, April 27, 1958, "The Mike Wallace Interview."

"The people who emerge in leadership positions in this country usually come from a lifetime of experience which doesn't prepare them for the conduct of foreign policy."
--Henry Kissinger to Wallace, July 13, 1958, "The Mike Wallace Interview."

"That's a question [i.e., segregation] of where every amateur is an expert and where experience counts for naught. We've worked out a system that is harmonious."
--Sen. James Eastland to Wallace, July 28, 1957, "The Mike Wallace Interview."

... Tim Noah marks the passing of Mike Wallace by posting some quotes from his pre-60 Minutes career. N.b. our own Senator Eastland on Mississippi's "harmonious system."

When I was in fourth grade, no less.

Kingfish reports that Gov. Phil Bryant has evidently decided that stronger beer is not a victory for Satan.

In honor of this event, here's an old drinking song that I can't find on the internet with the lyrics exactly as my mother (yep) taught them to me, so I will present that version here:
Drunk last night, drunk the night before,
Gonna get drunk tonight like I've never been drunk before;
For when I'm drunk I'm as happy as can be;
For I am a member of the Soused family.

Now the Soused family is the best family
That ever came over from Old Germany.
There's the Amsterdam Dutch, and the Rotterdam Dutch,
But the best Damn Dutch are the God-Damn Dutch!

Glorrr-i-ous!
Glorrr-i-ous!
One keg of beer for the four of us!
Glory be to Heaven that we're not ten or eleven,
For one of us can drink it all alone - all alone! HIC!
... A friend advises me of what beers we've been missing. I'm pretty sure I can do without the Russian Imperial Stouts, but the Scottish ales sound inviting. And a whole lotta Belgian brews that aren't Stella Artois. (Which, amusingly, is sold as ultra-classy over here and regarded like Budweiser in Belgium.)

Sunday, April 08, 2012

Decline & Fall, chapter 41

According to the testament of the founder, the African kingdom had lineally descended to Hilderic, the eldest of the Vandal princes. A mild disposition inclined the son of a tyrant, the grandson of a conqueror, to prefer the counsels of clemency and peace; and his accession was marked by the salutary edict, which restored two hundred bishops to their churches, and allowed the free profession of the Athanasian creed. But the Catholics accepted, with cold and transient gratitude, a favour so inadequate to their pretensions, and the virtues of Hilderic offended the prejudices of his countrymen. The Arian clergy presumed to insinuate that he had renounced the faith, and the soldiers more loudly complained that he had degenerated from the courage, of his ancestors. His ambassadors were suspected of a secret and disgraceful negotiation in the Byzantine court; and his general, the Achilles, as he was named, of the Vandals, lost a battle against the naked and disorderly Moors. The public discontent was exasperated by Gelimer, whose age, descent, and military fame, gave him an apparent title to the succession: he assumed, with the consent of the nation, the reins of government; and his unfortunate sovereign sunk without a struggle from the throne to a dungeon, where he was strictly guarded with a faithful counsellor, and his unpopular nephew the Achilles of the Vandals. But the indulgence which Hilderic had shown to his Catholic subjects had powerfully recommended him to the favour of Justinian, who, for the benefit of his own sect, could acknowledge the use and justice of religious toleration; their alliance, while the nephew of Justin remained in a private station, was cemented by the mutual exchange of gifts and letters; and the emperor Justinian asserted the cause of royalty and friendship. In two successive embassies, he admonished the usurper to repent of his treason, or to abstain, at least, from any further violence which might provoke the displeasure of God and of the Romans; to reverence the laws of kindred and succession, and to suffer an infirm old man peaceably to end his days, either on the throne of Carthage or in the palace of Constantinople. The passions, or even the prudence, of Gelimer compelled him to reject these requests, which were urged in the haughty tone of menace and command; and he justified his ambition in a language rarely spoken in the Byzantine court, by alleging the right of a free people to remove or punish their chief magistrate, who had failed in the execution of the kingly office. After this fruitless expostulation, the captive monarch was more rigorously treated, his nephew was deprived of his eyes, and the cruel Vandal, confident in his strength and distance, derided the vain threats and slow preparations of the emperor of the East. Justinian resolved to deliver or revenge his friend, Gelimer to maintain his usurpation; and the war was preceded, according to the practice of civilized nations, by the most solemn protestations, that each party was sincerely desirous of peace.
--Gibbon

... Regardless of his historical accuracy, Gibbon must be read for his rhetoric.

Friday, April 06, 2012

Too cute not to post


The 7YO with his cousin, who appears to have tattooed her lips with something blue and frozen.

Thursday, April 05, 2012

The lost history of the Jewish Christians

A.N. Wilson:
Paul’s letters are the first Christian documents, and they reveal two things. First, that there is a lively cult of the Messiah among the fledgling gentile congregations of Asia Minor; second, in the Letter to the Galatians, we discover that there is an all but irreconcilable rift between Paul and his gentile followers on the one hand, and, on the other, the Jerusalem “church”, which insisted that the followers of Jesus continue to observe Judaism with regard to the dietary laws, circumcision and so forth.

Time passes, and what scholarship slowly realizes is that the Pauline, gentile “church” – destined to separate itself entirely from Judaism after the destruction of the Temple in ad 70 – is also destined to rewrite history. The Jews protesting at Paul’s activities in Galatia in ad 51 are Trotsky sitting beneath the strutting figure of Lenin. They are about to be airbrushed out of the story.

Only as the Ebionite sect does later history know, or guess, very much about those who took an entirely different view of Jesus from the one that developed as orthodoxy – with the definitions of the Councils of the Church, Christ’s status as Second Person of the Trinity, Christ as an incarnation of the godhead, and so forth.
I'm endeavoring to lead a Sunday School class on the book of Acts, and Wilson's observation (stylishly made but academically commonplace) is what strikes me in reading the book. It's an irenic, smooth-over-the-differences account by the early Christian equivalent of those early American historians who depicted the founding generation as the best of friends.

To the reader whose notion of the founding Church is based on childhood storybooks, the strangeness of Acts is so pervasive that it takes some time to sink in - like the disappearance of Peter in the second half of the book, which becomes merely an account of Paul's doings. Peter, rewritten as an advocate of the mission to the Gentiles, simply ceases to be a necessary part of the story.

Only two and a half pages! SANCTIONS!

DOJ has filed in the Fifth Circuit its homework assignment on judicial review. Sections 2 and 3 tweak the court just a bit.

Orin Kerr: "I assume this will satisfy the Fifth Circuit judges, although at this point nothing would surprise me."

Trivia

Who was the only U.S. president to have served as Solicitor General?

(Hint: kinda obvious, when you think about it.)

Wednesday, April 04, 2012

Every year I wonder ...

Who gives their kid a basket like this for Easter:

Stories of the absence of love

Eudora Welty -- a ___________ fan, friend, and influential booster -- described his novels as stories of "the absence of love." His signal, said Welty, is "simple and undisguised: find the connections; recognize what they mean; thereby, in all charity, understand."
Fill in the blank; the answer's at the link to this article (which liberally splashes spoilers, dammit).

Tuesday, April 03, 2012

And you thought Scalia jumped the shark last week

Dig this from Judge Jerry Smith of the Fifth Circuit:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. * * *

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."
Whoa. Somebody needs to quit reading FoxNews.com in his chambers. (H/t.)

... Found that link at a blog thread, from which I must quote this comment:
Judge Smith pwned Obama! Ha! Judge Smith now rulez the internet! He is now the greatest internet troll in Article III history.
... More on this story:
Judge Smith's ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama's recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.
This has an April Fool's quality - how can the court require a three-page single-spaced letter? Is Smith senile? Did the rest of the panel sign off on this?

... All PACER has is a clerk letter:
Dear Ms. Kaersvang:
As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.
Wow.

... Orin Kerr calls this report, if true, "extraordinarily embarrassing to the federal judiciary." Word.

... Commenters at his post note that the court neglected to specify a maximum font size, so the three pages should consist entirely of "YES," one letter per page.

... Balkinization: "In response to the President's comments about the Affordable Care Act yesterday, Judge Smith of the Fifth Circuit decided to beat up a lawyer for the Government." Yep.

... Audio here (haven't listened; am told it's around 18:00 mark). Partial transcript:
SMITH, J.: Let me ask you something a little bit more basic. Does the DOJ recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.

A: Yes your honor, of course, there will have to be a severability analysis.

Q: I am referring to the statements by the President from the past few days, to the effect .. . I'm sure you've heard about it, that it's somehow inappropriate for what he termed "unelected judges" to strike acts of Congress that have enjoyed . . . what he termed broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority, or to the appropriatness of the concept of judicial review. And that's not a small matter. I want to make sure that you are telling us, and that the DOJ do recognize the authority of the federal courts through unelected judges to strike acts of congress or portions thereof in appropirate cases.

A: Marbury v. Madison is the law . . .

Q: Okay, well I would like to have from you by noon on Thursday, about 48 hours from now, a letter stating what is the position of the AG and the DOJ in regard to the recent statement by the President, stating specifically and in detail, in refenreces to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single spaced, no less, and it needs to be specific. It needs to make specific reference to the President's statement and the position of the AG and the DOJ.

[very long pause]

A: Okay, and that's our position regarding judicial review?

Q: Judicial review as it relates to the specific statements of the president in regard to Obamacare and the authority of the courts to review that legislation.

A: Yes, your honor.
"Very long pause" as in "oh my god, is this really happening or am I about to wake up?"

Right to jury trial vs. The Totality of the Circumstances

The Fifth Circuit tossed Tyler Edmonds' § 1983 claim last week, in which he and his mother had sued on the theory that the state coerced his confession when it separated him from his mother. (Edmonds was the 13-year-old whose adult sister convinced to share the rap when she murdered her husband—the infamous "two fingers on the trigger" case.)

Note to potential plaintiffs: don't go on the Dr. Phil show first. The opinion quotes from Edmonds' TV appearance:
A. I was coerced by my sister.
Q. By your sister, but not by the police.
A. Uh, no, not by the police.
I am mildly surprised Jim Waide took the case on those facts.

The court's holding that "[i]mproper police tactics did not implant that desire [to confess]: In all likelihood, Fulgham’s manipulation did" is a bit odd to me, given that (1) the police dragged the boy's mother away and then put him in a room with the murderer where she could and did (as the police hoped) manipulate him, and (2) that sure sounds like a jury question to my untutored brain. But, we are told, the question of coercion is ascertained "by examining the totality of the circumstances." Oh all right then.

Civil War sucked more for South than previously thought

Via LGM, a new analysis of the Civil War's body count:
America's most devastating war was far deadlier than textbooks say, according to a historian whose conclusions are finding support among experts.

The true death toll was probably about 750,000 - 20 percent higher than the traditionally quoted figure of 620,000 - and might have been as high as 850,000, according to J. David Hacker of New York's Binghamton University.
The excess is largely due to undercounted Confederate dead:
The old estimate assumed similar death rates from disease for Union and Confederate soldiers, even though the North probably had better medical care.

Hacker arrived at his conclusions after studying improved census data released mostly in the last decade, the news release said.

After looking at reported male and female survival rates from 1850 to 1860, and from 1870 to 1880, he developed a baseline for typical death rates.

Then, looking at the data from 1870 - the Census after the war - he realized a lot more men were missing than the old death estimate could explain.

His new estimate suggested at least 650,000 died, and perhaps as many as 850,000.

"Roughly two out of three men who died in the war died from disease" - everything from diarrhea and measles to typhoid and malaria, Hacker said. "The war took men from all over the country and brought them all together into camps that became very filthy very quickly."
Hacker concedes however that the 1870 census of the South was unreliable, a factor he's tried to allow for in crunching his numbers. See also his post at the NYT "Disunion" blog.

How trying to be bipartisan bit the Democrats in the ass

Ezra Klein provides some of the backstory behind how the individual mandate came to be:
Chuck Grassley, the ranking Republican on the Senate Finance Committee, was saying things like “I believe that there is a bipartisan consensus to have individual mandates,” and “individual mandates are more apt to be accepted by a majority of the people in Congress than an employer mandate.”

And it wasn’t just Grassley. A New York Times columnist by the name of Ross Douthat praised Utah Sen. Bob Bennett for “his willingness to co-sponsor a centrist (in a good way!) health care reform bill with the Oregon Democrat Ron Wyden.” That health-care reform bill was the Healthy Americans Act which included, yes, an individual mandate. * * *

The Healthy Americans Act, meanwhile, had been cosponsored by a bevy of heavy-hitting Senate Republicans, including Lamar Alexander, Mike Crapo, Bob Corker, Judd Gregg, Norm Coleman and Trent Lott. And it’s not like they were off the reservation in some significant way: In 2007, both Sen. Jim DeMint and the National Review endorsed Mitt Romney, who had passed an individual mandate into law in Massachusetts. In their endorsements, both icons of conservatism specifically mentioned his health-care plan as a reason for their endorsement. DeMint, for instance, praised Romney’s health-care plan as “something that I think we should do for the whole country.”

Avik Roy points out that many liberals — including candidate Barack Obama — were historically skeptical of the individual mandate. And that’s true! There was a robust debate inside the party as to whether Democrats should move from proposing a government-centric health-care model to one Republicans had developed in order to preserve the centrality of “personal responsibility” and private health insurers. Many liberals opposed such a shift. But they lost to the factions in the party that wanted health-care reform to be a bipartisan endeavor.

Roy tries to use this to draw some equivalence between the two parties. Both Democrats and Republicans changed their mind on the individual mandate, he argues. But there’s a key difference: The Democrats changed their mind in order to secure a bipartisan compromise on health-care reform. Republicans changed their mind in order to prevent one.
Klein thinks that the lesson, if the mandate's stricken, will be zero compromise on healthcare reform in future:
If Obamacare is overturned, and Obama is defeated, who will win the Democratic Party’s next fight over health care? Probably not the folks counseling compromise. Too many Democrats have seen how that goes. How much easier to propose a bill that expands Medicaid eligibility to 300 percent of the poverty line, covers every child through the Children’s Health Insurance Program, and makes Medicare availability to every American over age 50. Add in some high-risk pools, pay for the bill by slapping a surtax on rich Americans — indisputably constitutional, as even Randy Barnett will tell you — and you’ve covered most of the country’s uninsured. Oh, and you can pass the whole thing through the budget reconciliation process.
He may exaggerate Charlie Brown's learning curve about letting Lucy hold the football, but it's a thought.

Carter Phillips on the SG and the Obamacare suit

Always worth hearing from.
Don, I don’t know exactly what happened in terms of the start of the mandate case. I don’t know if he got something caught in his throat or exactly what was happening, but he started off slow. But ultimately, I thought Don made all the points he had to make and answered the tough questions effectively. It’s always hard when you compare two people and one has a lights-out couple of days. You look bad by comparison, but the truth is if you were comparing to 99 percent of the lawyers in the country, he still would have been at the top of that heap. It’s just when you’re up against one of the absolute best, it sometimes looks worse because of the comparison.

Monday, April 02, 2012

Issuing temporary emergency decisions?

I hadn't previously heard of the Temporary Emergency Court of Appeals.

Tho it's been in my Bluebook all along: (Temp. Emer. Ct. App.).

We'll take your word for it, Ann

Asked about criticism that Romney is "too stiff," Ann Romney laughed and replied, "I guess we'd better unzip him, and let the real Mitt Romney out because he is not."
Ann Romney, on perceptions that Mitt Romney is "stiff," personality-wise.

... Are Mormons just sheltered in general, or is Ann unusually so? Or is the answer, as so often, TBA's gutter instincts?

UPDATE: Alec MacGillis caught that one, too.

... In other news, towards a quantum-mechanical theory of Romney:
The basic concepts behind this model are:

Complementarity. In much the same way that light is both a particle and a wave, Mitt Romney is both a moderate and a conservative, depending on the situation (Fig. 1).


Fig. 1: The famous “Schrödinger’s candidate” scenario. For as long as Mitt Romney remains in this box, he is both a moderate and a conservative.

It is not that he is one or the other; it is not that he is one and then the other. He is both at the same time.

Probability. Mitt Romney’s political viewpoints can be expressed only in terms of likelihood, not certainty. While some views are obviously far less likely than others, no view can be thought of as absolutely impossible. Thus, for instance, there is at any given moment a nonzero chance that Mitt Romney supports child slavery.

Uncertainty. Frustrating as it may be, the rules of quantum campaigning dictate that no human being can ever simultaneously know both what Mitt Romney’s current position is and where that position will be at some future date. This is known as the “principle uncertainty principle.”

Entanglement. It doesn’t matter whether it’s a proton, neutron or Mormon: the act of observing cannot be separated from the outcome of the observation. By asking Mitt Romney how he feels about an issue, you unavoidably affect how he feels about it. More precisely, Mitt Romney will feel every possible way about an issue until the moment he is asked about it, at which point the many feelings decohere into the single answer most likely to please the asker.

Noncausality. The Romney campaign often violates, and even reverses, the law of cause and effect. For example, ordinarily the cause of getting the most votes leads to the effect of being considered the most electable candidate. But in the case of Mitt Romney, the cause of being considered the most electable candidate actually produces the effect of getting the most votes.
Possibly worth one of your ten monthly clicks to read the whole thing.

Friday, March 30, 2012

Why the Court will strike down the healthcare law

Some desperate liberals are trying to make themselves believe that fear for its "legitimacy" will prevent the Court (by which I mean, the five Republican justices in the majority) from striking down Obama's signature legislative accomplishment a few months before a presidential election.

Nonsense, says TBA. Look at the nine justices and their 5-4 split. It's like a pencil balanced on its point: it can't last forever. Which way will it fall?

If Roberts et al. can throw this decision and help get Obama out of office, Romney will likely get to replace Ginsburg and perhaps even Breyer, as well as assure right-wing replacements for Scalia and Kennedy if they step down. They have the chance to keep the Court on the Republicans’ side for at least another generation.

Versus the likelihood that Obama would get to appoint at least one replacement for a Republican justice in a second term, and tilt the Court’s balance with incalculable effects.

With the stakes so high, do you think Roberts et al. care about "legitimacy"? Of course they don't.

Your powers are weak, [liberal] man

Jon Chait is not buying that there's a silver lining to the Court's striking down Obamacare:
In any case, the political ramifications of an adverse ruling seem more harmful than helpful. Yes, liberals will be charged up against the Court, though also more despondent that winning an election matters. Meanwhile, the ruling would be a powerful confirmation to swing voters of the central Republican indictment of Obama. See how far his big government plans went? So far that the Supreme Court said they violated the Constitution! The prospect of handing Mitt Romney the chance to attach the epithet “unconstitutional!” to his opponent would seem to overwhelm any potential benefit.

A somewhat more plausible source of comfort is the prospect that, with the moderate, Republican-designed plan now off the table, Democrats can focus on the one remaining legal avenue to solve the health-care crisis: a single-payer system, like Medicare. This is sort of the liberal Obi-Wan Kenobi option...



In assessing this option, it’s worth bearing in mind that the dead Obi-Wan did not, in fact, become more powerful than Darth Vader could possibly imagine. His new powers seemed limited to appearing as an apparition offering inscrutable advice to Luke Skywalker, whereas the previous, alive version featured the power to slice people’s arms off with a lightsaber.
He does however notice something I hadn't:
The hurdles to passing Obamacare were that Democrats needed to have a majority in the House, the presidency, and 60 senators. The good news to passing single payer is that they probably would only need 50 senators. (Single-payers could be done simply by expanding Medicare, a pure fiscal change that could be accomplished through a budget bill that can pass the Senate with a majority vote.)
Obstacles include a Supreme Court that might strike that down, too (because, hey, the LAW has nothing to do with anything) and the difficulty of getting 50 Dem senators to blow up the insurance industry.

Thursday, March 29, 2012

Progress

The complexity of this legal system [in the later Roman Empire] was such that experts (iuriconsulti) were needed in every court, and sometimes just to draw up documents, but they may not always have been available or been fully reliable if they were. Even if legal help was accessible, courts did not necessarily judge justly, and the rich often benefited from judicial corruption and patronage .... In Egypt, papyrus documents recording the settlement of civil disputes in the fourth to sixth centuries show a strong tendency to avoid courts altogether, given their huge expense and danger, and to go directly to private arbitration.
—Chris Wickham, The Inheritance of Rome: A History of Europe from 400 to 1000, 31-32. Sounds, uh, completely unfamiliar.

... But does Wickham do more there than rewrite the famous passage from Gibbon?
The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.

Topsy-turvy justices?

This week's appalling oral arguments on the ACA in the Supreme Court are all over the internet, so they don't require much comment from me; see the How Appealing link in the sidebar if you want a roundup, and Balkinization is also doing good work.

But this from Jonathan Zasloff is too good not to mention. N.b. emphases his:
To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.

The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.

Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.” It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.

No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce. That is the quintessential form of regulation of interstate commerce. And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.

So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.

This, in short, is a revolution from above.

If the Act falls, it will not be because the Obama Administration did something wrong. It will not represent a “crisis of liberalism.” It will not be because the Democratic Party cannot govern. It will not be cause for any recriminations or hand-wringing.

It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.

Wednesday, March 28, 2012

Death of a poet

Adrienne Rich, 1929-2012. Never personally cared for her anthology pieces, but a great feminist and poet. Plath, a few years younger, saw her as the (female) poet to beat, and jealously diarized Rich's prizes etc.

NMC notes the parallel death of Earl Scruggs, causing one to ponder the aesthetic juxtaposition as well as to wonder whether the angel of death took the wrong Scruggs.

... 3QD posts a 1968 poem by Rich:
I Dream I'm the Death of Orpheus

I am walking rapidly through striations of light and dark thrown
under an arcade.

I am a woman in the prime of life, with certain powers
and those powers severly limited
by authorities whose faces I rarely see.
I am a woman in the prime of life
driving her dead poet in a black Rolls-Royce
through a landscape of twilight and thorns.
A woman with a certain mission
which if obeyed to the letter will leave her intact.
A woman with nerves of a panther
a woman with contacts among Hell's Angels
a woman feeling the fullness of her powers
at the precise moment when she must not use them
a woman sworn to lucidity
who sees through the mayhem, the smoky fires
of these underground streets
her dead poet learning to walk backward against the wind
on the wrong side of the mirror.

Great minds think alike - UPDATED

Or is it fools? I forget.

Anyway, y.t. in a comment thread at LGM yesterday:
That to me is why this case is about the N&P Clause, not the Commerce Clause. (NOTE: I am an expert in neither.)

It’s difficult for me to accept that any problem of interstate commerce could justify a Broccoli Mandate.

But we *know* that the ban on excluding preexisting conditions is within the Commerce Clause. It’s a no-brainer.

To make the ban feasible, however, Congress has to make everyone opt into the insurance market. Straight N&P stuff – you just stand there and quote McCulloch v. Maryland until the other side starts to cry.
And well-known constitutional scholar Akhil Reed Amar, today:
The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it.
Alas, neither of us was called upon to argue the feds' case this week.

... Charles Fried is worth a look. He ends on a disheartening note about the apparent views of the conservative justices this week:
Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else.
... In comments, Just Thinking suggests that the democratic check on abuse of the N&P Clause, throwing the bums out, doesn't work. I think maybe that means "doesn't work well enough to suit some people." Regardless, Amar has good support for his position, as both Hamilton and Madison identified the same check in the Federalist. Hamilton in No. 33:
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
Madison in No. 44:
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.
The "limiting principle" as Amar notes is not a requirement imposed on other powers, like taxation ("but what if you tax at 100%?"). Some checks are political, not judicial (as we observed re: the pardon power under the Mississippi Constitution).

The ACA case, we had thought, was resolved 200 years ago in McCulloch:
Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.
It appears that the Roberts Court, unlike the Marshall Court, may indeed pretend to that power. That will be John Roberts' legacy.