Put on your specs

The price of a red herring

2005-07-21T20:38:00.000-05:00

President Bush's nomination of Judge John Roberts to the Supreme Court came as a surprise to court watchers. First President Bush was going to nominate Alberto Gonzales, then it was going to be a woman, and the morning before the announcement, everyone thought it was going to be Judge Edith Clement.

What has really amazed me about the process is how completely by surprise this summer's developments have caught everyone. I don't think anyone expected Justice O'Connor to retire. Everyone thought Justice Rehnquist would retire, and the speculation had become a death watch before he squelched the rumors. And few expected President Bush to name Justice Roberts. I know I didn't. I thought he would name a woman or a minority or else go for a hardcore conservative like Judge Michael Luttig.

To give an example how completely unpredictable this process has been, there is a website called TradeSports for betting on events of every kind, including who President Bush would appoint to the Court. The idea is that the betting site will reveal the "truth" because people "in the know" will bet up the price of the person to be appointed. The site, as I understand it, returned $100 if your choice was actually nominated. People were so sure it was going to be Clement that her "stock" traded in the $70 range the morning of the Roberts announcement. The highest I saw it trade at was $77. Another woman judge, Edith Jones, traded in the $20 range. I don't recall what Roberts traded at earlier that day, but it must not have been more than $1 or $2 a share, if not for pennies a share. (Now that the betting over who President Bush would nominate is over, there is betting over whether Roberts will be confirmed. Last I checked, his confirmation was trading at $89 a share.)

Why did Clement's stock go so high the morning of the Roberts announcement? The first that I heard it was "going to be her" was that morning. The previous day, who it would be had been anyone's guess. Because people were so sure it was Clement and for so long (the whole morning and the whole afternoon), I'm convinced that the Bush Administration put out a false leak to detract from Roberts while President Bush prepared to make the announcement that evening. It worked. The false rumor bought time for the administration to allow Roberts to make a good first impression and President Bush got the last laugh over the media, a day after personally thanking a reporter for telling him where in the nomination process President Bush was at the time.

I can only suppose that Judge Clement, being a good sport, agreed to go along with the ruse. At least she revealed to us the price of a red herring: $77/pound.

Chief Justice Rehnquist

2005-07-09T22:25:00.000-05:00

I really thought Chief Justice Rehnquist was going to resign yesterday. But then columnist Bob Novak went on CNN saying he had one good source that Rehnquist was going to submit his resignation letter when President Bush returned from Europe. Matt Drudge amplified Novak's speculation and all Washington was just waiting for the final word.

This has to be kind of demeaning for Rehnquist. Not to be too crude, but I mean, when you are going to croak, you want to do so on your own terms, not when everyone is waiting for you to drop dead. I think Rehnquist wants to surprise, just to show that he will go out on his own terms, when he is good and ready.

Witness his words to a reporter on Friday when the reporter asked him if he really was going to resign: "That's for me to know, and for you to find out."

Supreme Court vacancy

2005-07-07T23:36:00.000-05:00

Put on your specs nodded. I blame the hours at the unspecified law firm. Consequently I can’t promise that I will post regularly until school starts again. The best way to know when I post is to download the RSS feed. Or you can send me an e-mail asking me to let you know when I post.

But for now, I must say something about the new Supreme Court vacancy. If Justice O’Connor was going to step down, I would have preferred she retired next year instead. The ensuing confirmation battle would have occurred right before the midterm elections and Republicans would have been under greater pressure not to appoint a hardcore conservative. Democrats would have scored political points with the argument that Roe v. Wade was in danger with only five votes. This worked in the past: they won the elections following a late 1980s case that chipped away at Roe and several senators suffered severe repercussions for voting to confirm Justice Thomas.

But now isn’t such a terrible time for Democrats for her to retire either. Although midterms are 16 months away instead of 4 months away, I think that if the nominee to replace her is controversial enough, it could cost the Republicans. But if they appoint someone too liberal, Christian conservatives could stay home during midterms. My mother asked if Gonzales was really Spanish for Souter. Just imagine if Chief Justice Rehnquist stepped down next summer. Then Republicans would really be caught between a rock and a hard place.

I think President Bush and Senate Republicans are all too aware of the dilemma they face. If they could get Chief Justice Rehnquist to step down now, they would have a much easier time of it. They could split the ticket, so to speak, in appointing a moderate conservative and a staunch conservative to try to make everyone happy and emerge unscathed.

In case there was any doubt, President Bush’s Social Security plan is officially dead now. No one is paying attention anymore.

Political soap

2005-06-18T20:39:00.000-05:00

Having followed politics for some years now, I thought I had seen everything. Until I saw a CNN report that a bar of soap purportedly made from Italian Prime Minister Silvio Berlusconi's fat, removed during liposuction, sold for $18,000 at an auction.

Last year, Cheney uttered obscenities at a Democratic senator on the Senate floor. Perhaps clean out his mouth with Bubba's fat?

Lost in outer space

2005-06-14T20:01:00.000-05:00

You may recall the infamous photo of John Kerry in a space suit that ran during the presidential campaign last year:

About two weeks ago, Tom DeLay visited NASA and only partly avoided the mistake Senator Kerry made:

A better instinct for photo-ops may be one reason why Republicans are in power and Democrats are not (Dukakis in a tank, anyone?). Then again, with DeLay under a cloud of scandal, it may be best to avoid space walks altogether. He and Kerry would have been better off if they kept themselves grounded in political reality.

Genetic studies

2005-06-03T22:43:00.000-05:00

The New York Times today reported the results of two very different genetic studies, one fairly straightforward and the other totally shocking if true.

First, the straightforward one. Researchers isolated the gene that determines the sexual orientation of fruit flies. Simply by turning on or off a single gene, the researchers could make a female fruit fly perform an elaborate mating dance before another female fruit fly. This is a neat experiment, all the more so because researchers had long known the genes responsible for mating but no one had ever thought to try this particular experiment.

My only quibble is with what one researcher said when interviewed for the article:

Hopefully this will take the discussion about sexual preferences out of the realm of morality and put it in the realm of science.

The problem is that the moral debate about homosexuality was never really about what causes homosexuality. The conservative premise, as I understand it, is that there is a distinction between having homosexual tendencies and engaging in homosexual sodomy, with the former perhaps beyond our control, but the latter very much so. For these conservatives, it is like saying that some people have a greater tendency than others to think murderous thoughts, but that does not make murder any less wrong. Whatever the science yields on the origins of homosexuality, it will do nothing to settle the cultural debate about gay marriage.

The second study is just plain stunning. Some researchers published a paper suggesting that certain genetic diseases long associated with Ashkenazi Jews, such as Tay-Sachs, exist as a byproduct of genes that make Jews smarter on average. The theory goes that when Jews were persecuted and could only work in commercial trades requiring some level of intelligence, there was intense evolutionary pressure to become smarter, and Tay-Sachs was an unfortunate byproduct of this rushed evolutionary product. Sort of how sickle cell anemia is a byproduct of evolutionary resistance to malaria.

I’m at a loss for words as to what to say about this, if it is in fact true, not just because it is utterly politically incorrect but also because of its implications about the interplay between genetics and culture and even between evolution and bigotry. There are so many politically incorrect ways that one could go with this, and not just with the Jewish people. Does ths study imply that black people dominate in athletic and not academic achievement because they were once slaves working the fields? This is all just so troubling because it seems to bring back social darwinism with a vengeance. The study also just seems wrong because I always thought it was about cultural values. Jewish people seem to have that Protestant work ethic that places great value on education and working hard to get ahead in life, and I had always assumed that these values were the reason why Jewish people have always seemed to succeed wherever they go.

Canonizing John Paul

2005-05-30T12:39:00.000-05:00

Shortly after Pope John Paul II passed away, I blogged about the talk of canonizing him. I wrote that I thought it was premature. Here is part of what I wrote at the time:

Whatever the merits of John Paul as a saint, I do not believe that the process should be accelerated for him. I like the idea of a five-year waiting period because there can be an upsurge of emotions when a person dies and there is no doubt that this grief can color the decisionmaking process, perhaps causing people to exaggerate how wonderful a person was or to go about the canonization process in semi-irrational fashion. This is not to say that John Paul was not a wonderful person or that he should not receive consideration; only that the canonization process should follow thorough investigation.

The Boston Globe reports that the beatification process is officially underway two weeks after Pope Benedict XVI waived the normal five year waiting period. I still think it is too much too early, that we are stlil affected by the immediate afterglow of affection for John Paul after he passed away to really make the decision in considered fashion.

Nuclear Bolt?

2005-05-26T20:40:00.000-05:00

I'm subbing for POYS today.

Well, just when we thought the week couldn't get any worse for Senate Majority Leader Bill Frist, the Democrats were right back at it today filibustering President Bush's nominee for UN ambassador, John Bolton. Rumor had it earlier in the day that the Democratic Leader, Harry Reid, had promised Frist the necessary votes to cut off debate, a claim that Reid denies. Either way, whatever feelings of good will there were after Monday's compromise to head off the nuclear option are clearly gone. Frist and his whip, Mitch McConnell, might want to check their head counts in the future before holding embarrassing votes like this one.

(Reid insists that the Democrats aren't actually filibustering Bolton, just trying to delay a vote until they get more documents from the State Department. Does this line remind anyone of what they said about Miguel Estrada?)

The Democrats have already promised to filibuster two of Bush's remaining judicial nominees - Myers and Saad - who weren't covered by Monday's agreement. Suffice it to say that if they persist with the Bolton and judicial filibusters, the nuclear option will be back faster than it took to elect Ratzinger as pope.

One odd twist in the whole affair is the irascible Senator Voinovich of Ohio. After nearly breaking down in tears on the Senate floor yesterday in a speech opposing Bolton, Voinovoich voted for cloture today. While he argues that Bush is entitled to an up-or-down-vote on his nominee, one would think that if Voinovich felt so strongly about Bolton he would vote against cloture.

In any case, Frist has been badly damaged by this. Is it possible that a Lott comeback is in the making?

Confirming Judge Owen

2005-05-25T18:48:00.000-05:00

The filibuster is safe for now, after moderate Republicans and Democrats reached a last-minute deal that allowed some contested judicial nominees to go through while supposedly reserving the filibuster and nuclear option for extraordinary circumstances. Conservative groups are furious with Republicans for compromising (and liberal groups with Democrats for allowing the contested nominees through). Because a good compromise leaves no one happy, don’t expect this one to last long.

I never thought that the judicial nominees the Democrats were blocking were really that objectionable. Sure the nominees are conservative, but what else do you expect from President Bush? I’m far more concerned about the swamping of the judiciary with the more than 200 conservative judges that President Bush has appointed so far, but party control of the judiciary comes with party control of the White House and it was inevitable after President Bush was elected in 2000 and again in 2004.

I think Senate Minority Leader Harry Reid knows that the judges long under scrutiny are not really that objectionable. After Priscilla Owen finally won confirmation after a four year wait, here’s what he had to say about her, in case Judge Owen isn’t the nightmare liberals have made her out to be:

I hope she surprises those of us who have fought her nomination. Perhaps her experience as a judicial nominee has exposed her to a broader range of views, and that experience may make her more sensitive to concerns regarding privacy, civil rights and consumer rights.

I don’t think Judge Owen will be any worse than your average conservative judge and I wouldn’t be surprised if she decided cases the “liberal” way on many, many occasions over the years, even if in the aggregate her opinions have a conservative bent to them.

Betting on law review

2005-05-21T11:21:00.000-05:00

Red and Blue reports that one section has an "elaborate pool -- Vegas-line style odds and all -- for students to gamble on who will make law review."

I find this pool deeply troubling for several reasons. First, it encourages students to make explicit how smart they think their peers are. I’d hate to find out that my peers think I’m one of the dimmer bulbs in the class. No good can possibly come out of this. (If betting is restricted to those students who voluntarily participate, as could be the case, my objections are somewhat less.)

Second, I don’t think that odds can be calculated with any sense of accuracy. All the people from my section who made law review were worthy, but they seemed to be picked at random. Even for what grades are worth, and they are only a minor factor in the process, there are serious informational asymmetries. How to calculate the odds of those who never speak in class? What about the majority who never talk about their grades?

This whole betting thing strikes me as an effort to divine who the smartest people in the class are, and it is likely to be wildly inaccurate and accomplish nothing except hurt feelings. If I were Dean Kagan, I would ban these gambling pools even though I wouldn’t have the ability to enforce such a ban.

Keeping things in perspective

2005-05-17T19:53:00.000-05:00

As the showdown over the filibuster reaches a climax, two thoughts to keep things in perspective:

1. Democrats and Republicans are playing up the issue to gain political advantage with their constituencies. But by the time elections roll around in November 2006, this issue will be long forgotten. Over the next 18 months, we will see at least one vacancy on the Supreme Court, and likely more. Scandals will come and go. A global conflict of some scale will occur. If nothing else, the mere passage of time will make the filibuster a non-issue in the next election cycle despite Republican efforts to play up the issue in Republican-leaning states with Democratic senators.

2. For all the hype about how much it matters who our judges are, the importance is of limited degree. To be sure, Republican-appointed judges may be somewhat more likely to decide cases in conservative fashion than Democratic-appointed judges, but generally not by a shockingly large margin. The rule of law has some meaning, even if there is play in the joints. Further, judges lack power to reshape society without the consent of the people because they do not have the power to enforce their decisions. Take for example three important cases for which May 17 is an anniversary. Each demonstrates that even when it comes to explosive civil rights issues, the courts have been either limited or empowered by popular opinion.

May 17, 1954. Brown v. Board of Education has a mixed legacy 51 years after it was decided. On the one hand, there is universal agreement that Brown was correctly decided, and its symbolic importance in breaking down formal barriers in society is unparalleled. On the other hand, schools today are more segregated than they were when Brown was handed down. The Supreme Court tried for 20 years to enforce Brown before it gave up. Changing demographics and resistance had made it too difficult for the Court to desegregate the schools of its own accord.

May 17, 2004. Massachusetts began recognizing gay marriages six months after the state supreme court held the state constitution required it. Massachusetts voters endorsed the decision in the next election by giving control of the state legislature to pro-gay marriage forces, ensuring the defeat of the movement to amend the state constitution. However, the fallout outside Massachusetts almost certainly cost Senator Kerry the presidency and voters elsewhere passed state constitutional amendments banning gay marriage in their states. The Supreme Court won’t dare touch this issue for years to come because if it did, the people would immediately pass a constitutional amendment superseding the decision.

May 17, 2004. On the same day that Massachusetts began recognizing gay marriage, the Supreme Court handed down Tennessee v. Lane, upholding the constitutionality of the Americans with Disabilities Act (ADA) as applied to the states. The decision was a rare victory for ADA supporters; the courts have been aggressive in scaling back the reach of the ADA since its enactment 15 years ago. The courts have been able to get away with it because the ADA is deeply unpopular with business and conservatives and Congress has made no effort to defend the statute.

Because the filibuster promises to be a non-issue in the elections 18 months from now and the filibuster is not going to have much impact, if any, on how cases come out, the real question should be whether the time has come to change the rules of the Senate for their own sake.

Taking stock

2005-05-15T01:09:00.000-05:00

After some thought, I've decided to post on a semi-regular basis this summer, instead of daily as has always been the case. Most of it is because I won't have regular internet access (you heard what the Office of Career Services said about viewing porn on the client's time). Some of it is that there is only so much to say and it's probably been pretty obvious that I haven't had much insightful to say lately.

But this blog shall roll on! I want to hear from you about where this blog has been and where it should go. I know what the regular commenters think. I want to hear from those of you who have never posted. Whether you think this is a pointless blog or you find yourself agreeing with everything I've ever said, I want to hear from you.

Do you like it when I am worldly in my views, or when I stick closer to the law school experience? (I'm only a law student, what do people care what I think about politics?) Have I shown myself to be a political hack artist? Did I tend to ramble about the superficial? Have I made a fool of myself? What about the guest bloggers? Spare no feelings!

I've tried to keep things on the lighter side, harkening back to Abraham Lincoln's appreciation of the comic. I don't know if I've always succeeded, but I like to think that I exposed a some buffoonery along the way.

Landslide

2005-05-14T12:04:00.000-05:00

Thanks to those who filled in while I was finishing up exams and relocating for the summer. When driving home, I missed the scene below on the Henry Hudson Parkway in Upper Manhattan by about two hours:

Naturally, New York City claims it had just inspected the wall and was going to begin repairs on Monday. You may know that Mayor Bloomberg is up for re-election this year. Perhaps this is the landslide that will sweep him out of office?

Base Realigment and Closing

2005-05-13T13:10:00.000-05:00

I'm subbing for POYS today, who is recovering from his unexpected detour into upstate New York as he tried to travel from Boston to New Jersey yesterday.

The Pentagon announced today its recommendations for which military bases to close or realign over the coming years. When I was watching New England local news this morning, the commentators noted that the region stands to lose some 14,500 jobs and were openly speculating that the Bush administration wanted to hit the bluest of blue states hard. It seemed plausible enough to me, and I would have bet the store that Florida and Ohio would see the biggest job gains in this round of restructuring. According to the Pentagon's list, however, Maryland - quite a blue state if I may say so - is actually in line to gain the most jobs at 9,293. Perhaps not surprisingly, Texas is next at 6,150 projected job gains. Ohio, on the other hand, is slated to lose 241 jobs and Pennsylvania is slated to lose 1,878. But the biggest shocker has got to be South Dakota, which under the proposal would lose its Air Force base and a whopping 3,797 jobs out of a total state population of 764,309. This is quite embarrassing to freshman Republican Senator John Thune, who promised in his campaign against former Democratic Leader Tom Daschle that he would be able to save the base. Aside from Texas, then, it doesn't seem like the Pentagon proposal is egregiously political.

While I’m no military strategist, this whole episode seems a bit strange to me. The savings are estimated to be $48.8 billion over the next 20 years, which works out to about $2.5 billion annually, or approximately 0.5% of the total Pentagon budget. I think that buys you about one top of the line airplane nowadays. Numerous small communities will be devastated by the loss of their military bases, and that seems like a high price to pay for an extra 20 planes over the next 20 years. Perhaps Rumsfeld can now spare a few more dollars for body armor?

France, Please Apologize Already

2005-05-12T21:58:00.000-05:00

I am subbing for the usual POYS editor today as he is too exhausted from finishing his last final today.
-sling

Recently, the Associated Press published a short article regarding France’s refusal to apologize for Algerian deaths which occurred on V-E day. On that day an Algerian uprising began which would eventually result in the deaths of 15,000 to 45,000 people, depending on which sources you want to believe. I was even surprised to learn how so many people died during a short period of time after the end of World War II, most of whom I assume are civilians. I am also surprised France even had colonial troops and a war ship. Shouldn’t those troops have been helping to fight and liberate France? The Allies had already reconquered Northern Africa by early 1943, and proceeded to launch an invasion to Italy later that year. Any French soldiers still in Africa should have joined in the fight to join the soldiers from other countries who were willing to die to help liberate France.

Although, I may not be aware of the whole situation, I find France to be at fault. While France did have a “legal” claim to occupying territories such as Algeria and Indochina based on the agreements that the Allies worked out, such claims should not be merely accepted as being just simply because the international community accepts them. The Allies were merely trying to help their good old buddy France, restore her status as a world power, even though she essentially had little or no power the previous 5 years. They even awarded France with a sector in Germany for being one of the four main “victorious powers.” I find it hypocritical that the Allies in liberating Europe from tyranny would not choose to liberate other countries that France occupied. We condemn Stalin for what happened with Eastern Europe. But, perhaps we should also condemn the other Allies for not setting a better example.

Personally, I don’t see France’s point of view in refusing to apologize. What right did they have to be occupying Algerian soil? Even if Algeria was at fault for killing two dozen French citizens, how can France today still justify the killing of tens of thousands? The French need to make a strong apology not just for the events following WWII but for her past colonization, which was done for the purpose of exploitation, if they hope to mend ties with Algeria. I’m not convinced the French have it in them to rise to the occasion.

LeBron

2005-05-11T18:04:00.000-05:00

According to news reports, Cavaliers star LeBron James has dropped his agent and turned over duties to a high school teammate and friend. If I've learned anything in law school, it is that this type of relationship is a recipe for disaster. I would not be surprised if this ended up in court, especially if LeBron and his friend cut corners when contracting and then something goes horribly wrong. Perhaps 1Ls will be reading about this case in contracts class 5 years from now?

Keeping it real

2005-05-10T14:49:00.000-05:00

According to the Harvard Crimson , Ian Nichols, the vice president of the undergraduate student council, resigned after incurring the wrath of council members for lackluster attendance at meetings. Nichols had served on a split ticket with the president after each won their respective seats despite campaigning with running mates against each other.

In what promises to be one of the more memorabls speeches, Nichols spoke for less than a minute, and then walked right out. His entire speech apparently consisted of the following:

I don’t feel I’ve really made the UC my number one priority this semester and I don’t know if this whole split ticket thing is working out. Take care guys, it’s been real.

Can you imagine Dick Cheney keeping it real? Or Al Gore for that matter?

Summer associate success

2005-05-09T19:53:00.000-05:00

Today, I received an e-mail from the Office for Career Services with an attachment: "Tips for Succeeding as a Summer Associate." Over the next several weeks, 2Ls will be swarming large metropolitan areas, paid insane amounts to do clerical work, and as the memo makes painfully clear, be on our best behavior lest we not be invited back after graduation.

Some of the more memorable tips:

Record all of the time that you actually put into your assignments (not how long you think it should have taken you). It is the partner’s job, not yours, to determine when and how to discount your billable hours for the client. Do not lose credit for all the hard work that you are putting in.

Why would I bill less hours than I actually worked?

Limit your internet use and be sure to avoid even questionable sites. Remember, the firm can track your use. Resist the urge to procrastinate by downloading games, shopping, surfing, emailing, or IMing with friends.

So much for viewing porn on the client's time.

A perceived attitude of entitlement or arrogance (especially from a Harvard student) could easily cost you an offer.

I'll leave this one to Bum from Jersey and JTerpsLaw to comment on.

Meet every deadline, even if it means skipping the ballgame from the firm's box seats!

Allegedly, one of my interviewers had tickets to game seven of the Yankees-Red Sox last fall. Would you have missed that one to make a deadline?

Always bring a pen or pencil and paper to an assigning attorney’s office and make sure you understand what he or she is asking you to do.

What if I embroidered his or her words? Would that make him or her feel important enough?

On the other hand, I'm told I don't want to go too far in that department:

[R]esist the urge to date or “hook up” with another summer associate, attorney, or staff person. As much as you do not want to spread gossip, you certainly do not want to be the subject of it, or risk the fall-out of a romance gone-bad.

And now for my favorite:

Watch your alcohol intake and limit yourself to one or two drinks at an event, depending on your tolerance. Getting drunk or even “buzzed” will impair your judgment and loosen your tongue. . . . And, it should go without saying, avoid the use of illegal drugs under any circumstances.

If it goes without saying, why say it? Are there really people that dumb?

Corporate law

2005-05-08T22:03:00.000-05:00

I came straight to law school from college without any practical experience, odd-end internships aside. For most of my courses, this hasn't been a problem. Constitutional law was relatively easy for me to understand because it is among the more political areas of the law and gets regular newspaper coverage. Everyone has an opinion on the constitutionality of abortion and affirmative action or is at least vaguely familiar with those issues.

But there are times when going straight through hurts. Corporate law is one of them. I think that a lot of my classmates had experience working for investment banks or consulting firms in New York and they probably already know much of corporate law cold. I have no idea what I'm reading about in large part because I don't have any familiarity with the issues. I just finished reading a case about the obligations that controlling shareholders owe other shareholders when making tender offers, and it was painful to read I think because I didn't have any appreciation for how important this issue is. My imagination can only go so far.

Then again, if I had taken time off, I still wouldn't have gone anywhere near investment banking or consulting. I'm not sure what I would have done, though. Maybe that's why I went straight through.

Frist filibuster

2005-05-06T23:59:00.000-05:00

The student center at Princeton is called Frist Campus Center in honor of Senator Frist's family who donated the money to build it. Starting on April 26, students have launched a "Frist filibuster" (live blog here) to protest Republican plans to eliminate filibuster when it comes to judicial nominations. I've followed it from the first, but hadn't thought that it would amount to any more than your standard campus protest. But it has garned national coverage and has proven a great embarassment for the senator.

One thing that drives me crazy about the filibuster talk is about how both sides claim that their side is more majoritarian than the other. Republicans hold a 55-45 edge in the Senate and claim that it is only fair that the majority prevail. Democrats observe that despite having 10 fewer seats, Democratic senators actually represent about 30 million more Americans than Republican senators do, which I was surprised to learn.

But both sides miss the point. The Senate never was intended to be a majoritarian institution and never will be. Born of a great compromise during the 1787 convention to appease smaller states that feared they would be drowned out by larger states, the Senate was supposed to be the more reasoned institution while the House was home to the majoritarian mob. In fact, the Constitution explicitly forbids even amendments that would makethe Senate majoritarian; states must have equal number of senators.

Conservative environmental attorneys

2005-05-05T23:46:00.000-05:00

Earlier this week, the Federalist Society passed along information about a job opportunity for after graduation. The first line of the e-mail says it all (caps in original):

CONSERVATIVE ENVIRONMENTAL ATTORNEYS WANTED!

If you know a conservative environmental attorney, I have a unicorn to show you.

Constitutional formula

2005-05-05T01:07:00.000-05:00

There is an inexplicable line of cases in constitutional law. One example of this line of cases is Plyler v. Doe, where the Court said that a statute denying public education to the children of illegal immigrants was neither a violation of the Due Process Clause alone (because there is no right to education) nor a violation of the Equal Protection Clause alone (because illegal aliens are not a suspect class) but somehow violated the two clauses put together. Critics charge the Supreme Court with substituting its judgment for the people. At minimum, the judicial opinion is totally incoherent. But long last, after reading and rereading this opinion, I have come up with the formula that explains it all:

DP + EP = CTP

(due process plus equal protection to cheat the people)

A Historic Undermining of Taiwanese Leadership

2005-05-04T15:08:00.000-05:00

I am subbing for the usual POYS editor today as he is surely busy studying for his finals.
-sling

For the first time in over half a century, Taiwan Nationalist party leader, Lien Chan, met with Chinese President Hu Jintao last week for the purpose of easing tensions between the two long-time rivals. Although this was a historic meeting, the first since a meeting between Chiang Kai-Shek and Mao Zedong back in 1945, one must not place too much emphasis on the results of such a meeting. After all, the Nationalist party is no longer the ruling party in Taiwan after losing for the first time back in 2000 and again in 2004. This would be like Howard Dean holding negotiations with Al Qaeda, an enemy who threatens to attack the United States. Then, it would be like Al Qaeda treating Howard Dean as if he were the president of the United States, in hopes of showing that the Democrats can effectively negotiate a peace that will ensure no more terrorism in the United States for the purpose of getting back at the Republicans. The notion is ridiculous. But this is the game that China and the Nationalist Party are playing.

This meeting is a ploy to undermine the ruling Democratic Progressive Party (DPP) in Taiwan. In recent times, China has hated the DPP more than the Nationalists for the DPP’s refusal to acknowledge that Taiwan is even a part of China, even though in reality Taiwan and China are sovereign nations with different governments. The Nationalists' hate the DPP simply because they are the Nationalists' main opposition and have taken their power away. Lien Chan is hoping to gain popularity with the Taiwanese people in showing that he can improve relations with China and avoid a war in the future. China, on the other hand is hoping that she will not have to make good on her threat to invade Taiwan, should Taiwan declare independence, and can eventually acquire Taiwan through peaceful means as she did with Hong Kong.

I cannot help but think that the Nationalists are betraying the Taiwanese government and the Taiwanese people. Clearly, the popularly elected government of any nation should be the one to represent the nation in talks of this magnitude, especially if such talks have not occurred in 60 years. Chan’s desperation play could hurt his own party’s credibility in the long run as a party that is willing to negotiate with the enemy to preserve its own power and perhaps more significantly, hurt Taiwan’s chances for becoming an independent democratic nation, one that is formally recognized by the rest of the world.

Summing the last 10 years

2005-05-03T00:40:00.000-05:00

The New York Times reports that a firefighter who suffered brain damage when a burning roof collapsed in 1995 and who had been virtually silent until suddenly asked for his wife and was surprised to learn that it was now 10 years later. Compared to what happened with Terri Schiavo, his story is a heartwarming one, including the moment when the nurse told him that his son was on the phone and he said that couldn't be beacuse the son was just a baby.

I once heard about a movie about an East German woman who went into a coma and awoke after the fall of the Berlin Wall and her family did not want to upset her so they pretended there was still an East Germany. This has me wondering how the firefighter's family can possibly try to explain what happened in the last ten years, how we got from Clinton to Bush and what happened on September 11 and how that led to Iraq. How the Yankees won the World Series for the first time in 18 years and then how the Red Sox won for the first time in 86 years.

And somehow, it seems that those things are all that one really needs to know to be fully up to date . . .

Finals

2005-05-03T00:19:00.000-05:00

I admit that recent posts have been less than scintillating, with finals near. You know you have had too much corporate law when Revlon is no longer a cosmetic brand but a type of legal obligation corporate boards owe their shareholders.

Mr. VOINOVICH of OHIO

2005-05-02T11:35:00.000-05:00

Filling in for POYS today. Some of the GOP moderates in the Senate are at it again, balking over things like the Bolton nomination. One of them, George Voinvoich of Ohio, singlehandedly cut in half the size of President Bush's 2003 tax cut. Perhaps this tells us why?

George Voinovich is not your typical Bush loyalist. A self-styled deficit hawk, the former Cleveland mayor and Ohio governor is so frugal that he once fished a penny out of a urinal in the Statehouse.

Bedtimes

2005-04-30T23:32:00.000-05:00

The First Lady to the President, on his notoriously early bedtimes:

"If you really want to end tyranny in the world you're going to have to stay up later."

Governor Schwarzenegger

2005-04-30T11:01:00.000-05:00

Governor Arnold Schwarzenegger is now as unpopular in California as was his recalled predecssor Gray Davis. This development presents several possibilities for Californians:

1) Terminate him at the next election.

2) Have President Bush make him ambassador to Austria to determine exactly when and where the Soviet occupation of Austria occurred. (Credit to Ha ha hit him again for this one.)

3) Get rid of Arnold by launching a national movement to amend the Constitution to permit foreign-born presidents.

4) Recall Arnold and replace him with Gray Davis.

President Bush as role model?

2005-04-29T13:01:00.000-05:00

President Bush held a press conference last night in an effort to revive his sagging efforts to reform Social Security. During the course of the question and answer period, which ranged across many topics, President Bush had the following to say:

Role of religion in our society? I view religion as a personal matter. I think a person ought to be judged on how he or she lives his life or lives her life.

And that's how I've tried to live my life: through example.

But exactly what sort of example has he set? All I can think of is that he hasn't cheated on his wife or lied under oath. Other than by comparison to Clinton's obvious flaws, I can't think of any positive examples that Bush has set for the rest of the country by how he has led his personal life. I'm interested in hearing what you think.

Communist capitalists

2005-04-28T01:02:00.000-05:00

There are two popular epithets for Jewish people. One is that they are all communists. The other is that they are all capitalists. Goes to show that the Jewish people can't win no matter what they do.

Nonetheless, a communist capitalist, now that is something. It turns out that communist capitalism is exactly what the Chinese are trying to do, embracing a market system under the rubric of communism.

You tell me if any of this makes any sense.

The big bucks

2005-04-27T11:34:00.000-05:00

Today, at 5 pm, the Office of Career Services is offering a seminar called: "They Have Shown Me the Money, Now What Do I Do With It?"

More to the point, do attorneys at big law firms even have time to spend it?

Reforming the course selection process

2005-04-26T00:33:00.000-05:00

This week, we have to pick all of our courses for next year. The way the lottery is done, we rank our top 30 courses. The computer randomizes the order of students and then goes down the list, assigning each student the highest available course on his list. After each round, the computer rerandomizes, giving higher priority to those who placed low the previous round and perhaps did not get his or her preferred course. The idea is that doing the entire academic year in one shot is more equitable because it balances out over more courses; were the lottery to go by semester only, some students might be more likely to get lucky both semesters.

But doing the entire year in one shot means that some students can end up with more courses one semester than the other -- as happened to me last year, though I was able to balance things out a bit. It also means that students can end up with at least one course that they had no intention of taking. I ended up with a course on choice of law doctrine that was #26 on my list; after the first 15 courses, I had just picked the rest at random. Although choice of law doctrine is useful to know, it was not high on my list of interesting courses and I was able to switch out. This year, for fun, I listed a seminar on art law as #30 on my list.

Here's a better way to do it. Throw out the lottery system and institute a market system. Assign students a fixed number of points to bid. For example, students could be given 100 points to bid, and they can assign the points however they want. If a student really wants to take constitutional law with Larry Tribe and the course has 100 spots, he can bid 50 points on that course and get into the course if there are less than 100 other students who bid 50 points or more. In the event of ties, 3Ls could win out over 2Ls, and among students the same year, chance might have to do. If we wanted to further privilege students on the basis of seniority, we could assign 3Ls more points to bid than 2Ls. The market works for almost everything, and I don't see why it wouldn't work here as well.

UPDATE: I thought about this some more, and now propose that students see what other students have bid, so that they have perfect information about the market and can adjust their bids accordingly. The market would "close" at some predetermined date when courses would finally be assigned. Either that, or students would need information about how students bid for particular courses in past years. That would present two obvious problems: how to do this the first time around, and how to do it for courses offered the first time in later years. Although there is something to be said for uncertainty, I think that if students had access to the market information at all times, there would be more consensus that the system was "fair."

Pressing question

2005-04-25T16:20:00.000-05:00

President Bush with the Saudi Arabia's Crown Prince Abdullah, asking how much gas a gas pump could pump if a gas pump could pump gas, if only OPEC would allow it.

Silence on Connecticut civil unions

2005-04-24T17:53:00.000-05:00

Last week, I blogged that the Connecticut bill recognizing civil unions for gay couples as a "huge triumph" for the gay rights movement because it was the first time that a state recognized some form of same-sex union without being forced to do so by its courts. I also noted in a comment following the post that there was surprisingly little media coverage of the historic bill, something that others in the blogosphere such as Angus Dwyer have also noticed.

Why the silence? Gay rights opponents have long relied on the argument that court-ordered recognition was anti-democratic and that a constitutional amendment was needed to rein in out-of-control judges. Either their silence suggests that as long as legislatures and not the courts recognize same-sex unions there is no problem, or they simply don't know how to respond to the new bill and are hoping that if they keep quiet, no one will notice. Or maybe they're just chalking it up to Connecticut being in the Northeast, with a sort of 'what else did you expect' reaction.

Even if all those possibilities help to explain the silence, I'm still surprised because I would have guessed that Connecticut would have motivated gay rights opponents to redouble their efforts to enact a constitutional amendment defining marriage as between a man and a woman now that state legislatures apparently can no longer be trusted to hew the line. I'm genuinely puzzled by the lack of response, though frankly I welcome this silence because if Connecticut's bill is not challenged, it could set a precedent for other "blue" states to follow. Who said federalism was for conservatives only?

Musical chairs

2005-04-24T17:44:00.000-05:00

The Boston Globe reports that William Weld, former governor of Massachusetts, is considering running for senator or governor -- of New York. Weld, a Republican who narrowly lost to John Kerry in the 1996 Senate election, has lived in New York since 2000. If he runs, he would face a formidable Democratic opponent against either Senator Hillary Clinton who is up for re-election or Eliot Spitzer, who announced earlier this year that he is running for governor.

Perhaps Governor George Pataki, who has served as governor of New York for 12 years, can move over to New Jersey? But then again, he wouldn't have lasted 12 years -- in the corrupt world of New Jersey politics, he would have been led away in chains long before then.

Filibuster showdown

2005-04-23T20:59:00.000-05:00

Republicans are rapidly setting the stage for a final showdown on the filibuster. After having talked about ending the filibuster for some two years now, they may schedule a vote as soon as next week. Because Republicans have talked about this issue for so long without acting, the timing suggests that they either want to distract from scandals surrounding Tom DeLay or their failure to make headway on the rest of their policy agenda, or both. I would bet my money that if and when this vote takes place, we will have seen the last of the filibuster in judicial confirmation process because Republican leaders would not dare bring this to a vote only to suffer embarrassing defeat.

Democrats can howl all they want about the need for a more bipartisan process, and they're probably right. But as I've blogged about before here and here, the Senate confirmation process is about pure politics and riven with hypocrisy. If Democrats and Republicans switched roles, Democrats would be doing what the Republicans are doing now. They just never had the control of the Senate necessary to do it under Clinton.

However, in the final analysis, I don't think that ending the filibuster now will make all that much of a difference. President Bush already gets through a vast majority of his judicial nominees and the few that the Democrats have held up do not strike me as particularly different from the ones that have gotten through. And over the long run, this will come back to bite the Republicans because Democrats one day again control both the White House and the Senate, even if that doesn't happen again in our lifetimes. The filibuster, once gone, won't come back because what majority would want to restrain itself?

Embattled nominee

2005-04-23T00:30:00.000-05:00

What do you do when your nomination to be U.N. ambassador goes down in flames? You put on your specs.

Random scholarship

2005-04-22T15:36:00.000-05:00

A few months ago, three MIT graduate students designed a computer program to write a "scholarly" paper. The program used an algorithm that borrowed from existing scholarship and inserting buzzwords at random. Then they submitted the paper, and it was accepted at a conference. The paper was titled: "Rooter: A Methodology for the Typical Unification of Access Points and Redundancy." Its introduction begins: "Many scholars would agree that, had it not been for active networks, the simulation of Lamport clocks might never have occurred." (The conference withdrew its acceptance after the fraud was publicized.)

I bet the same thing could happen in legal scholarship. At least until recently, law reviews seemed to signal that the longer an article and the more footnotes it had, the better. I bet that a reasonably long article on an arcane subject with tons of footnotes would be accepted somewhere. In particular, I wouldn't be surprised if someone randomly generated a piece in the utterly indecipherable field of critical legal studies (I'm still not quite sure what it is) and the resulting paper were accepted somewhere. Actually, that may have been why critical legal studies died out -- no one could understand anything anymore and decided to just move on.

Civil unions in Connecticut

2005-04-21T12:07:00.000-05:00

Yesterday, Connecticut passed a law permitting same-sex civil unions. Although not quite gay marriage and discriminatory in some aspects, the new law is a major step forward for gay rights. Although Vermont and Massachusetts recognize some form of civil unions or gay marriage, both did so only after their state courts ordered them to do so. In Connecticut, however, the state legislature passed the bill and the governor signed it into law, all without the prodding of the courts.

With states like Connecticut now on the horizon, a constitutional amendment prohibiting same-sex unions would be decidedly anti-democratic. This turns the anti-democratic argument back against gay rights opponents, who had argued that court-ordered recognition of same-sex unions is anti-democratic. That is why the Connecticut law is such a huge triumph for the gay rights movement -- it sheds what was long their weakest point, that the courts seemed to be their only friend. But now that they are starting to get state legislatures on their side, their position suddenly looks a lot stronger.

The end of history

2005-04-21T00:53:00.000-05:00

The popularity of The DaVinci Code and The Rule of Four suggest a fascination with medieval mysteries riven with religious implications. There is a prophecy concerning the popes that is just as fantastic and, if not an elaborate forgery, scary. In the twelfth century, St. Malachy prophesied the next 112 popes, and the new pope happens to be the 111th pope since. After the 112th pope, "Peter the Roman" would be pope during the Apocalypse.

Each pope in the prophecy had a short epigram that allegedly has been fulfilled. For example, the 110th pope -- John Paul II -- had the motto "de labore solis" which suggests solar eclipse. John Paul was both born and buried on days with solar eclipses. The 111th pope has the motto "gloriae olivae" or the "glory of the olive." Because the Benedictine order featured the olive branch as a symbol, the new pope may have fulfilled the prophecy by taking on the name Benedict (or may have consciously chosen the name for that purpose, an intriguing suggestion over at Balkinization). There are several other possible interpretations that also find the "fit" and I encourage you to read the two sites that I link to in this post for more.

According to one interpretation of the prophecy, "Peter the Roman" is Satan walking on Earth. Given Benedict XVI's age and the likelihood that the next pope would also be an older man, Satan could well be walking on Earth now. Any guesses that Republicans think his name is Ted Kennedy?

The pope's Nazi past

2005-04-20T11:05:00.000-05:00

Some commenters observed following my last post that the new pope, a German, was drafted into the Nazi army and was ultimately an American prisoner of war. However, there is evidence to suggest that he was drafted against his will and that he deserted the Nazi army. I'm inclined to give him the benefit of the doubt.

Benedict XVI must move swiftly to reach out to the Jewish community to make crystal clear that he denounces anti-Semitism and will work as a friend of the Jewish people. John Paul II made history as the first pope to set foot in a synagogue; hopefully this trend will continue under the new pope. It cannot be otherwise if Benedict wants to stamp out any concerns about his past.

Incidentally, April 20 was Adolf Hitler's birthday; although Germany was defeated 60 years ago, Nazism remains alive. This is all merely to observe that the concern about Benedict's past is no idle speculation but very real concern about what it portends for today's times.

The new pope

2005-04-19T12:02:00.000-05:00

I watched the papal proceedings on television and there was a lot of suspense watching the window for any sign that they would soon come out to announce the new pope. My first reaction was one of disappointment when they announced it was Joseph Ratzinger. My second reaction wsa that at least he's not Italian. Ratzinger's selection of the name Benedict XVI gives some hope, though I'm not convinced that it means he will be a moderate.

From what I heard, Benedict XV tried to put an end to ideological divisions in the Church; though the announcers said Benedict XV was a moderate, implying that perhaps the new pope will seek to reach compromise, I can't help but feel that "putting a stop" to division will mean a crackdown on liberalism within the Church.

But it will take some time before we know for sure what kind of pope Benedict XVI will be. It may well be that he was enforcing the hard line because that was what John Paul II wanted him to do. Hopefully now that he is his own man, he will surprise us.

The white smoke

2005-04-19T12:00:00.000-05:00

Senator Clinton

2005-04-18T23:42:00.000-05:00

Either the years of fighting the vast right-wing conspiracy is finally taking its toll, or she missed her latest Botox shot.

Nuclear Option - For Popes!

2005-04-18T13:59:00.003-05:00

As the conclave gets underway in Rome, POYS asked me to post a little something regarding the rules of election. Initially, it takes two-thirds of the cardinals eligible to vote in order to select a new pontiff. After eight days, however, if no pope has been selected, the margin shrinks to a bare majority. Sounds eerily simliar to what the Republicans are proposing in order to get President Bush's judicial nominees confirmed, doesn't it? Well, Cardinal Ratiznger - known affectionately on this side of the pond as the Tom DeLay of the Vatican - apparently has close to a majority locked up already. Needless to say, if his supporters hold out long enough for the "nuclear option" to be invoked, his election is assured. Perhaps the white smoke will go up in the form of a mushroom cloud?

A direct hit

2005-04-17T12:49:00.000-05:00

During the 1858 debates between Abraham Lincoln and Stephen Douglas, "ha ha hit him again" was a popular crowd chant whenever Lincoln or Douglas scored a punch on the other. But I never thought that this phrase would come to incude what happened this weekend.

Last month, I passed along the news that Garry Kasparov, the top-ranked chess player in the world, had retired in order to focus on politics. Today, Sports Illustrated reports that Kasparov, in an attack that he calls politically motivated, was hit over the head with a chessboard.

Perhaps ha ha?

Saint John Paul II

2005-04-16T12:05:00.000-05:00

The debate over whether to make John Paul II a saint almost immediately after his death has garnered widespread coverage as cardinals prepare to pick a new pope. Under procedures established by John Paul himself, a person must be dead for five years before he or she can be canonized. Of course, rules are made to be broken since John Paul began the process just one year after Mother Teresa died.

Whatever the merits of John Paul as a saint, I do not believe that the process should be accelerated for him. I like the idea of a five-year waiting period because there can be an upsurge of emotions when a person dies and there is no doubt that this grief can color the decisionmaking process, perhaps causing people to exaggerate how wonderful a person was or to go about the canonization process in semi-irrational fashion. This is not to say that John Paul was not a wonderful person or that he should not receive consideration; only that the canonization process should follow thorough investigation.

The question of investigation brings me to another point; for a saint to be anointed, he must have performed a miracle. Perhaps the word 'miracle' could be used in its broader sense to refer perhaps to the miracle of a Polish pope that spoke forcefully against communism, but as far as I know, the Catholic Church is looking for real miracles in the biblical sense. Maybe it is just me, but if John Paul really performed that kind of miracle, don't you think we would have heard about it while he was still alive?

The inkblot of judicial activism

2005-04-15T21:22:00.000-05:00

Over at Objective Justice, Sean Sirrine posts an excerpt from a judicial opinion that explains why the term "judicial activist" is utterly meaningless:

At the oral argument on this case, appellant referred, at times, to not wanting 'liberal' or 'activist' judges to overstep the will of the Minnesota legislature. Simply put, the term 'liberal/activist judge' is, in reality, a 'non-term.' Both parties to this debate recognize the truth. What one calls 'a well-reasoned conservative judicial opinion by a son or daughter of the founding fathers' means only that the judge ruled in your favor. When the judge rules against you and in favor of your opponent, on the identical facts and argument, you will now turn to the banal cliché that the judge 'is too activist' for me. The term is meaningless, self-defeating, and, worse, it actually weakens appellant's position.

On a related note, there has been nothing more absurd than House Majority Leader Tom DeLay calling the courts "activist" after they refused to order the reinsertion of the tube in Terri Schiavo's case. Not only was this term patently a political rallying cry to stack the courts with Christian conservatives, but also if he had it his way, then the legislation enacted giving the federal courts jurisdiction over the Schiavo case would really have been unconstitutional because Congress would have been telling the courts how to decide a case in violation of the principle of judicial independence.

Filibustering faith

2005-04-15T13:38:00.000-05:00

Normally I follow the judicial selection process with great amusement, but the latest twist alarms me. The New York Times reports that Senate Majority Leader Bill Frist is set to use the religious stage on the issue. Specifically, Senator Frist will join a telecast featuring prominent Christian conservatives and which will portray Democrats as "against people of faith" for blocking President Bush's nominees.

First of all, this portrayal of Democrats as "against people of faith" is incorrect on two grounds. Although those who attend church regularly are more likely to be Republicans, many Democrats also have religious faith. Second, even if liberals like myself are agnostic, that does not mean that we lack faith. A faith in science and in humanity is still a faith that is worth respect. For Republicans to essentially demean all faiths other than the evangelical Christian faith is to show an utter lack of tolerance.

But that is really more of a technical issue than anything else. What really alarms me is that Republicans are explicitly linking the courts to evangelical Christianity, suggesting that the word of God should be the law of the land, not the Constitution.

Law schools

2005-04-14T00:35:00.000-05:00

I'm on a Princeton listserv for lawyers. Every so often current students or those out of college for a few years and now applying to law school ask for advice about where to go. Yesterday, someone asked, allegedly on behalf of a friend interested in international law, whether to go to Columbia on a full scholarship or to Harvard without any aid.

The response was unanimous that the friend should take the free ride to Columbia, and I have to agree even though I chose Harvard over Columbia and would make that same choice again. Harvard has a slight reputational edge, but not a full scholarship better. Reputation is why they picked Harvard as the setting for Legally Blonde, but in real life, it is a distinction without a difference.

I say that because I believe that any scholarship considerations aside, it doesn't really matter that much anyway which school you attend once you're able to choose from the top schools. I might even make the radical suggestion that if Harvard and Columbia switched student bodies, no one would notice. Virtually all students, if not actually all students, would have the same exact career opportunities open to them. Columbia might actually even be a little better for international law.

So Columbia with a full scholarship is a no-brainer. Take it and enjoy the city!

Say It Ain't So, Bernie

2005-04-13T16:26:00.000-05:00

Lest anyone think from what I just posted that I go after Republicans only, I'm happy to report that corruption and other various forms of cheating the people is a bipartisan sport.

Vermont's lone congressman is a Socialist who aligns himself with Democrats. A Vermont paper reports that just like Tom DeLay, he hired his wife and her daughter to do campaign-related work. Although I am sure that there were no legal improprieties involved, Sanders should have known better. And as a Socialist no less!

Deja vu again?

2005-04-13T15:26:00.000-05:00

A few weeks ago, I mentioned the history of Republicans overreaching whenever the opportunity to crush Democrats is near.

True to form, evidence is emerging that Republicans have overreached or are about to overreach:

1) In the House of Representatives, Majority Leader Tom DeLay is under scrutiny for ethical violations that include but are not limited to coercing congressmen to vote in a particular way. There are early signs of Republicans breaking ranks and calling for an accounting. Cannibalism in the majority party is the surest sign of overreaching.

2) In the Senate, Majority Leader Bill Frist is contemplating forcing, sooner rather than later, a showdown over the use of the filibuster to block controversial judicial nominees. Democrats have threatened to shut down the government in response. It is not clear who would lose more in this public relations war: Democrats for obstruction or Republicans for their inability to get anything done despite running the show.

3) A vast majority of Americans opposed the Republican effort to intervene in the Terri Schiavo affair; even evangelical Christians, a core GOP constituency, split on the issue. And Republicans didn't stop there; after the judges held their ground, DeLay has all but called for their heads.

Will any of this translate into election gains for Democrats in the next election in 2006? Unlikely; voters have short memories and all this will be long forgotten by then. But does it signal a pattern of overreaching that could continue? All I can say is that I would not be surprised if there were more to come.

Syndication

2005-04-13T11:38:00.000-05:00

This blog is now syndicated with RSS feed available. For those of you who don't know what that is, don't ask me because I hardly know myself. Something about a program that alerts you when a blog is updated so that you don't have to come to this site to find out whether I have posted yet.

This took me a while to figure out how to set up and I'm sure that there are still some bugs. Please let me know if you have any problems.

Enjoy!

Weapons for Peace?

2005-04-12T19:07:00.000-05:00

This is JTerpsLaw, a 1L at the University of Maryland, guest-blogging for POYS today.

The Palestinian Authority has begun a new strategy aimed at removing guns from the hands of the Palestinian terrorists and giving the gunmen jobs within the Palestinian Authority instead. This is intended to prevent future attacks and the intended effect is that "the only legitimate weapons will be the weapons in the hands of the Palestinian Authority."

I find several fundamental flaws within this theory. In order to agree to this contract, the gunmen must sign a statement to the effect of promising "not to carry out any action that violates security and rule of law and agreements reached between the Palestinian Authority and any state or party." Interestingly enough, the PA originally brokered an agreement for peace between itself and Israel, yet this peace was allegedly breached (as Abbas declared) when the Israeli army shot several youths playing soccer a few days ago. I wonder if this is the proverbial loophole for the PA.

Another problem is seen in this question – how much disarming is really considered disarming? What is to stop a gunman from signing this statement and turning over his arms, then continuing to be associated with Hamas, Islamic Jihad, or whatever organization he was once affiliated with? Palestinians who believe that Israel is an oppressive force will never give up their arms as long as Israel has more power. What is to stop these gunmen from returning to their life of terrorism? The mere loss of a job won't be enough to faze these people. What are the repercussions of breaking the deal with the PA? This is more of a short-term theory rather than anything long term.

Also, doesn't anyone see anything wrong with inviting terrorists to join politics? These people may be making their statements in the political realm instead of through terrorism, but should the PA really be an instrument of propaganda, intended to disseminate the message of terrorists to Palestinians living in Israel? How much effect will these people have on the Palestinians? If the terrorists are allowed to join the Palestinian Authority, and if that organization comes back to power, then it may have devastating effects for the future of the Israeli-palestinian relationship. Since the nation of Israel will never concede major areas of Israel that the terrorists have pledged to obtain, what hope is there for allowing extremists to be part of the bargaining table? Moderation has been somewhat proven to work in the conflict, and this is certainly not an exercise in moderation.

Moreover, it is clear that these terrorists are corrupt and under the influence of other nations such as Syria and Iran who sponsor their efforts. What possible good can come out of inviting these foreign nations -- each with its own agenda -- to the table?

Finally, I don't believe this would work out, simply because Israel will not accede to negotiations with terrorists. Israel refused to deal with Yasser Arafat. With this whole episode of extremist terrorists joining the Palestinian Authority, as I said earlier, the PA will merely turn into a mouthpiece for terrorist propaganda, and Abbas will continue to be a rubberneck Prime Minister. Thus, Israel will refuse to deal with the PA and will turn to more moderate elements among the Palestinians.

In conclusion, does this theory have any hope to succeed? In my personal opinion, this exact concept will not. However, there is hope for the Israeli-Palestinian conflict. Abbas has shown devotion to the peace efforts, and has made a valiant attempt to crack-down on terrorists. I can sympathize with him as I can imagine how hard it must be to negotiate with terrorists, and I feel that Israel's demands that Abbas commit to an immediate crack-down can never truly happen. But that's not to say they shouldn't be making those demands. Israel has every right to do so. The Palestinians have shown themselves to be duplicitious and Israel has followed most of the demands that were made on them, whereas the Palestinian leadership has not. The main problem at this juncture is that the extremists have too much power. The best way for Abbas to gain a true position of power and leadership is to do what everyone wants at first, until he has enough strength to make demands which will have the best results for Israel and for the Palestinian people.

Settlements

2005-04-11T12:51:00.000-05:00

Today at his Crawford ranch, President Bush met with Israeli Prime Minister Sharon. The Washington Post reports that Prime Minister Sharon agreed to remove all "unauthorized" settlements from the Gaza Strip and West Bank. However, he is also pushing ahead with a plan to add 3,650 homes to the largest settlement in West Bank that would connect that settlement to the rest of Israel but cut off Arab neighborhoods in Jerusalem from the rest of the West Bank. President Bush asked Prime Minister Sharon not to push ahead with this plan, and I agree with President Bush's condemnation here.

Removing settlements while adding others seems to undermine the both the symbolism and practical effect of withdrawal in giving the land to Palestinians to form their own state. For as long as I can remember, Israel has been removing settlements, but this seems to represent a Sisyphean effort with no end in sight. Israel seems genuinely confused over what to do about settlements, and the resulting inconsistent actions are probably a consequence of factional politics that pull at the coalition government from different angles. (Palestinians are also inconsistent in their actions for much the same reasons.) Prime Minister Sharon must recognize that this going back and forth does not help the peace process and he must take a forceful stand in making a complete commitment to fully removing settlements for the withdrawal to have any practical effect.

Wedding day

2005-04-10T05:46:00.000-05:00

Camilla's hat nesting a royal egg of an affair.

Fallout from the funeral

2005-04-09T12:21:00.000-05:00

As some commenters observed following my post yesterday, some leaders of otherwise unfriendly countries were chummy at the funeral. A little too chummy for the folks back home, it turns out.

News wires reported that the presidents of Iran and Syria both shook hands with the president of Israel. The day after, those two leaders began backtracking. From BBC News:

Iranian President Mohammad Khatami has denied speaking to Israel's president at the funeral of Pope John Paul II.
Moshe Katsav says they exchanged words, but Mr Khatami told Iranian media the "allegations are false" and that they had not shaken hands.

Syria has confirmed that its leader shook hands with the Israeli president, but added that this did not change Syria's position on the Jewish state.

Iran and Syria do not recognise Israel. Syria and Israel are officially at war.

Mr Katsav, who was born in Iran, said he had exchanged words in his native Persian with Mr Khatami.

"These allegations are false... I have not had any meeting with a personality from the Zionist regime," the official Iranian news agency quoted Mr Khatami as saying.

In other words, the Arab leaders forgot their acting lines when it came to Israel. I've always suspected that the animosity towards Israel has very little to do with Israel itself (though Syria complains about the Golan Heights). This anti-Zionism is largely a ploy to distract from local problems at home. I would not be surprised if this erupts into a major scandal for President Khatami; a moderate, he has always been under pressure from the conservative clerics back home. It will also be interesting to see how this plays out in the rest of the Arab world.

UPDATE: The New York Times has a nice article on the politics of shaking hands at the funeral.

The pope's funeral

2005-04-08T11:47:00.000-05:00

The occasion of the pope's funeral brought dignitaries from 138 countries around the world and provided for the following crowd. From the New York Times:

In the second row, the first American president to attend a pope's funeral, George W. Bush, sat next to his wife, Laura. Prime Minister Tony Blair of Britain and Prince Charles, President Jacques Chirac of France, Mohammad Khatami of Iran and President Moshe Katsav of Israel all attended, along with kings and queens, as well as General Secretary [sic] Kofi Annan of the United Nations.

In Roman mythology, there is an incident where, instead of all-out war, a set of triplets fought another set of triplets. Perhaps a similarly proper brawl to settle all affairs as far as everyone is concerned?

Political actors

2005-04-07T13:13:00.000-05:00

On the TV show, The West Wing, Jimmy Smits plays the part of a politician seeking the Democratic presidential nomination to succeed Martin Sheen's Jed Bartlett character. Excerpted from a CNN article about Smits' role on the show:

In a visit to a doctor's office recently, Smits was confronted by a man who recognized him from "The West Wing" and who "espoused the whole Republican thing to me."

"I just say the lines, man," was the actor's nonpartisan response.

But that is what politics is in a nutshell. Politicians get in trouble only when they stray from their lines. President Reagan used to marvel how anyone could be president without having had acting experience. Recall the fire that President Bush came under when he said during the campaign last fall that the war on terrorism was "unwinnable." Although this was a (rare) moment of candor, he was forced to "clarify" that the war was in fact winnable after the Kerry campaign pounced. Democrats are also prone to forgetting their lines; House Minority Leader Nancy Pelosi froze in her nationally televised rebuttal to the State of the Union Address last year, apparently unable to master the fine art of reading off a teleprompter.

What is so puzzling about all this is why the "lines" always seem to include scandalous subplots. I can't figure out on earth why House Majority Leader Tom Delay employed his wife and daughter, paying them with campaign contributions; even if no laws were in fact broken, he should have known that this would raise eyebrows given his prominent position. But at least it provides good comedy; there is nothing quite like a disgraced politician. Sometimes I think that the politicians do it on purpose so they can stay in the spotlight.

I think this is why I haven't watched the West Wing in years; the real is simply too spectacular. Who could have come up with the Dean Scream? Or the governor of New Jersey who resigned after admitting a gay affair? If the Bush administration did a reality TV show, now that would be something to see.

GoreTV

2005-04-06T11:12:00.000-05:00

In what promises to be another disastrous effort by liberals to take over the media, Al Gore is spearheading the launch of a new cable channel called Current. In a press release, the founders claim Current is the "first national network created by, for and with an 18-34 year-old audience." The network, apparently recognizing the short attention span of my generation, will offer short-form programming ranging from 15 seconds to 5 minutes in length.

In my view, the most interesting feature of the station is the news segments. From the press release:

"Google Current," built using samplings of popular Google search data, including from Google Zeitgeist, complements the free-flowing pod format with news updates each half-hour. Thirty seconds to three minutes in length, these segments buck conventional news practices by reporting not on what media editors decide is "news," but on the topics people are actually searching for right now. So news isn't what the network thinks you should know, but what the world is searching to learn.

All this brought to you by the man who invented the internet. Look for nonstop coverage of Britney Spears.

41 and 42

2005-04-06T11:10:00.000-05:00

I've become great buddies with Clinton. Am I sure I feel all right?

Cyber-gaming law

2005-04-05T16:17:00.000-05:00

Reuters reported last week that in China, a man stabbed to death another person who had sold a "cyber sword" that they had won together while playing an online game. The Chinese police had told the man that he had no recourse to the law because the sword was only virtual property.

As a preliminary point, property is a creation of the law; it exists only when the law recognizes ownership in a thing. If the law wanted to recognize cyber swords or points or whatever can be and is traded online for real cash, then it could do so, recognizing them as property protected by the law. I see no reason why such game weapons and points should not be treated as property merely because they are "virtual" only. An analogy would be to tickets that one can win at an amusement park but which are redeemable for a prize only at the park.

An interesting tangent is what happens when the theft occurs inside the computer game. What if I were playing you and I came up to you and stole your sword? Or going beyond property law, what if I hit you? The law of battery allows you to recover against me if I touch you without your permission. I'm inclined to think that the theft and battery examples should not give rise to legal claims for the simple reason that the game designers apparently created the game to allow those features. The best analogy would be to football games where players routinely hit each other without fear of liability.

But even in that football example, liability can occur if the contact is excessive even for the sport. What if you and I were playing one of those games where our online characters can "talk" to each other and I say deliberately hurtful things? In the real world, you can sue me for intentional infliction of emotional distress. Should you also be able to sue me if I said those hurtful things in the game?

I'm deeply confused about these puzzles, and I don't think there are any easy lines to draw when it comes to virtual reality. We could even push deeper and ask what is reality? Is virtual reality any less real than real reality? I just don't see any clear answers here.

Cheating the immigrants

2005-04-05T11:06:00.000-05:00

The New York Times reports that illegal immigrants are a boon for Social Security; forced to pay Social Security taxes as a ruse to cover up their illegal alien status, they never collect when they retire. They may be pumping as much as $7 billion a year into the system, which would be 10 perecent of last year's surplus.

As someone in the article quipped, this could be "the fastest way to shore up the long-term finances of Social Security." My only quibble is why stop there? Might as well balance the budget while we're at it!

Papal diversity

2005-04-04T15:49:00.000-05:00

As the cardinals gear up to select the next pope, they will certainly have many qualified candidates to choose from. What the term "qualified" means is open to debate and is an issue certain to feature prominently in the selection process. I do not know Catholic doctrine and cannot speak intelligibly on what the selection criteria should be, other than from a general sense that this next pope should be a charismatic figure who can present himself credibly as a moral force in international politics.

All that being said, I think it would be wonderful if the next pope was from a third world country, perhaps black or Hispanic. I say this because I have an intuition that a black pope could do wonders in eradicating racism in the United States and around the globe. As far as I know, up until now, all the major leaders in the West have been white; black leaders have mostly been leaders like Martin Luther King, Jr. in that they led the civil rights struggle. A black pope would go up and beyond in being a particularly visible figure in a position held before only by white popes. This would be Jackie Robinson a hundred times over.

The nuclear option

2005-04-03T12:24:00.000-05:00

The selection of the next pope promises to be interesting to watch, though I can hardly speculate about who he will be because I know nothing about any of the bishops. Nonetheless, there seems to be at least one interesting parallel to the process of selecting federal judges.

After the president nominates judges, the Senate must vote to confirm him by a majority; in recent years, Democrats have filibustered some nominees, raising the bar to 60 votes to confirm. Republicans have called for the abolition of the filibuster; this "nuclear option" has not happened yet apparently because Democrats have threatened to shut down the Senate (though I speculate that blowing up the filibuster would rob the Republicans of an issue on which they can accuse Democrats of stonewalling).

From what I've read, a "nuclear option" is apparently also available in the papal selection process. According to the New York Times:

It used to take a two-thirds vote to elect a pope. But under rules instituted by John Paul, if the process becomes stalemated, a simple majority of the cardinals could vote to waive the rule and permit a simple majority to choose the new pope. Under this system, a candidate who is unpopular with nearly half the cardinal electors could still become pope.

Again, I have no idea how the selection process will play itself out, but my guess is that if it is particularly divisive and the "nuclear option" is deployed, bitter feelings could linger among the cardinals who were outvoted. Though again, time heals all wounds and the next pope, like John Paul did, could serve for more than 25 years.

The changing of the guard

2005-04-02T13:19:00.000-05:00

I've felt a certain sadness with the news that the Pope may soon pass on. Although I did not always agree with him on social issues, I thought he was a good pope and the early eulogies are that he will be remembered for his forceful condemnations of communism in the 1980s. He is also the only pope that I've known and it will be strange to see a new pope in his place.

Incidentally, if Chief Justice Rehnquist leaves the court, I'll also feel a little sadness even though I agreed with him on almost nothing. The same nine justices have been together for 11 years, a modern day record, and the fight over Rehnquist's replacement will be the first since I began observing politics regularly with bemusement. I recall the Anita Hill scandal when I was in fifth grade, but I didn't really understand what the fuss was over other than whether Clarence Thomas sexually harassed her. That issue was, of course, besides the point in what was an ideological war.

In any event, the anointments of a new pope and a new justice will be both interesting to watch and a learning experience for me.

Justice Clinton?

2005-04-01T18:22:00.000-05:00

Conservative columnist Robert Novak reports a rumor that President Bush is considering nominating to the Supreme Court none other than President Clinton. Under this plan, President Bush would elevate either Justice Scalia or Justice Thomas to Chief Justice and the promise of Justice Clinton could be enough to entice Senate Democrats to stop blocking conservative nominees to the lower courts. An added benefit could be that a Justice Clinton would not be able to campaign for Hillary Clinton when she makes her probable run for the presidency in '08.

If I were the Democrats, I would take this deal in a heartbeat. Although Scalia or Thomas as Chief Justice might be a hard pill to swallow, the net result would be a trade of Rehnquist for Clinton. This would be an additional liberal vote on the Court that would slow or even stall the Court's conservative trend. As for lower court nominees, I never really thought that the particular judges that the Senate Democrats were blocking were any worse than the judges they were letting through.

In any case, I'd be shocked for obvious reasons if this actually happened. I'm not even sure if stranger things have happened!

No Senator Kennedy, Jr.

2005-04-01T00:23:00.000-05:00

So much for a match-up between Senator Chafee and Patrick Kennedy; Kennedy has pulled out, citing among other things a belief that he could better serve Rhode Islanders as a congressman. This is as much a lie as the next because senators can do more than congressmen can for their states unless they head committees or are otherwise important; with Democrats in the minority, Kennedy was certainly not an important congressman. It's unclear to me what really motivated him not to run; it might be family issues (he is seeking legal guardianship over his alcoholic mother), or it might be any of a number of skeletons in his closet that we don't know about. In any event, we have one less political spectacle to look forward to!

A final word on Schiavo

2005-03-31T14:43:00.000-05:00

The saga over Terri Schiavo ended today when she passed away almost two weeks after her feeding tube was removed. This was a tragedy from the very beginning and I am sure that even her husband who fought for the removal of the feeding tube is feeling great sadness as a chapter is closed.

If any good can come out of this case, it is that people begin thinking about what they would want for themselves. When I saw my grandparents this week, they about what they wanted for themselves, and interestingly they seemed to differ in their preferences. I think for myself, I wouldn't want a feeding tube if my situation was basically hopeless. Maybe for a short time just in case, but not for the sake of prolonging my life as apparently was the case for Schiavo when her parents wanted to keep her alive even though there was pretty much no chance she would ever come back.

Legislatures should set clearer default rules when the patient's will is unclear; as long as patient himself can choose, I'm indifferent as to what the default rule should be in favor of continuing life support or not. As long as there are clear rules so that the tragicomedy of the endless litigation that catapulted Terri to the national fame she surely never would have wanted does not happen again.

Age discrimination

2005-03-31T14:07:00.000-05:00

Yesterday, the Supreme Court decided a case involving age discrimination in the workplace called Smith v. City of Jackson. At the heart of the case was the question of how to define age discrimination. The law today generally divides discrimination into two kinds: disparate treatment and disparate impact. Disparate treatment occurs when the employer intentionally discriminates against an employee on the basis of a characteristic such as race, sex, or age. Disparate impact does not require proof of malicious intent; an employer practice need only disproportionately affect people with a certain characteristic. For example, an employer might require prospective employees to take a written test in order to become a delivery man; because African Americans as a class are less educated than whites, such a test might have a disproportionate impact on African Americans. Such employer practices are justified only if the employer can prove that they are necessary to the business. The written test might not be necessary for the delivery man job and therefore illegal, but it might be necessary for the job of a reporter, for example.

Employees have long been able to sue under the disparate treatment theory for race, sex and age. Disparate impact has also long been available for race and sex. It had never been clear whether disparate impact was also available for age. The Supreme Court decided yesterday that disparate impact is indeed available, but the Court decided the case in such a manner that disparate impact is recognized in name only. The plaintiffs have much higher burdens of proof than in the race and sex contexts and employers do not need to prove business necessity; only that the specific employer practice is reasonable.

I found the Court's reasoning puzzling in several ways. First, the Court relied on a late 1980s case since overruled by Congress. In that case, the Supreme Court watered down disparate impact in a race discrimination case; in reviving that case, the Court yesterday said that when Congress amended civil rights legislation to restore disparate impact, Congress did not mention age and therefore hadn't intended to overrule the old case. This is poor reasoning because the original case dealt with race and not age, and therefore there was less reason for Congress to state explicitly that disparate impact also applies in its original form to age. At the very least, Congress registered disagreement with the old case and so bringing that case back to life strikes me as extremely odd.

Second, the Court decided the case for the employer despite recognizing disparate impact in the age context. The Court claimed that the employees had failed to identify a specific employer practice even though it was patently clear what the practice in dispute was. The employer had raised pay in higher percentage terms for lower-ranked employees; because older employees tend to occupy higher-ranked positions, older employees as a class saw their pay go up by a lower percentage rate than younger employees (even though older employees saw their pay go up more in absolute terms). This is a very specific practice at issue; because the Court said that the employees failed to identify a specific practice and also said that the employer need not show business necessity, it is unclear to me whether it is ever possible to prevail on a disparate impact theory.

I don't know what the Court recognized, but it is not disparate impact. I understand the Court's reasoning that disparate impact for age is different from disparate impact for race or sex because age because "certain circumstances . . . unquestionably affect older workers more strongly, as a group, than they do younger workers." But the disparate impact theory can accommodate these differences; for example, it should be easier for employers to show business necessity when it comes to age than for race, where disparate impact is almost never justified. In the case just decided, the rationale that the employer gave that it needed to give bigger pay increases to lower-ranked employees in order to retain them could well have satisfied this business necessity test.

If the outcomes would have been the same, what is the difference? The difficulty is that in future cases, it may be more difficult for employees to prevail on a disparate impact theory even when the employer practice at issue is at best questionable. If we are committed to rooting out discrimination in the workplace, the burden should remain predominantly on employers to justify practices that disproportionately impact certain people; keeping the pressure on employers forces them to be more mindful of potentially discriminatory practices. The new rule articulated by the Court does not make that kind of commitment.

Kofi Annan

2005-03-30T16:12:00.000-05:00

I'm filling in for POYS today, and I thought I would offer some thoughts on Kofi Annan and the United Nations more generally. Yesterday, the commission looking into oil-for-food scandal issued its second interim report. It found that there was no evidence that Annan influenced the awarding of a contract to company for whom his son, Kojo, worked. It did find, however, that one of Annan's key aides destroyed documents relating to the oil-for-food scandal and that Annan should have conducted a more thorough investigation once he learned that a contract was awarded to his son's company. As is typical with these types of reports, there is something in there for everyone: Annan claimed that he was "exonerated" while his critics on Capitol Hill once again demanded his resignation.

The time has probably arrived for Annan to go. While he may not have done anything wrong specifically with regard to awarding the contract, the fact is that he failed to recognize the potential conflict of interest even after he knew his son was involved. Moreover, at least one of his aides profited from the program, suggesting that his oversight was quite lax. On a whole range of issues his management style has been called into question: UN peacekeepers have been accused of rape in the Congo; some of his subordinates have been accused of sexual harassment (he ignored the charges initially on one of those aides, later reversing course after more evidence was presented); and now there are even allegations that the UN election monitoring agency may have misused funds. If we can't trust the UN staff to monitor elections, then it seems to me there is very little we can expect from it.

I say this with some regret as he seems like a decent fellow, even if bad things have transpired under his watch. In addition, there is no question that a large part of this story is being driven by Republicans in Congress and their media allies (FOXnews seems to run a story about this nearly every day). Had Annan supported the war in Iraq, no doubt these same Republicans would be rallying to his defense. But as they say, he opened himself up to these allegations, and now he must face the consequences.

Of course, none of this really matters, as I doubt anyone can point to something major that a UN Secretary-General has accomplished in the entire history of the organization. The Secretary-General may have more power than a figurehead, but not much more. The tendency of both liberals and conservatives to refer to the "UN" as if it were more than the sum of its parts is misguided. Conservatives makes this argument to scare the public into believing that somehow that US sovereignity is being eroded, while liberals make this argument to strengthen the "moral authority" of the body. The UN is not, nor has it been, nor will it ever be more than the sum of its individual member states pursuing their own-self interest. While Annan and most of the UN staff may have opposed the war in Iraq, it would have matter little if France, Russia, and China were in favor of it.

Senator Chafee

2005-03-29T00:43:00.000-05:00

Rhode Island Senator Lincoln Chafee has been a headache for his fellow Republicans ever since becoming senator when his father died while in office. After Senator James Jeffords defected from the Republican Party in 2001, throwing control of the Senate to Democrats, Chafee never ruled out following suit. Fortunately for Republicans, they captured a Chafee-proof majority in 2002 and again in 2004. But Chafee has continued to be himself, even declaring that he did not vote for the current President Bush in the last election (he wrote in the first President Bush's name). Safe to say, Senator Chafee is what we call a Republican in Name Only (RINO).

Chafee is up for re-election next year, and I am sure that Republicans would not be too sorry to see him go, even if it means losing his seat to Democrats. I'm sure that Republicans would be only too happy to return the favor and write in his father's name. After all, Democrats did not really lose too much when Senator Zell Miller of Georgia, a DINO, retired and his seat went Republican.

But that was before things got interesting.CNN reports that Congressman Patrick Kennedy may run for the Democratic nomination. Mind you, Patrick is not only a Kennedy, but Ted Kennedy’s son. When Republicans mention Ted’s name, they raise money. Imagine what a nightmare scenario this is shaping up to be for Republicans. Chafee vs. Ted Kennedy’s son.

In any event, Chafee doesn't stand a chance. CNN also reported that Rhode Island’s other congressman -- a no-name -- was leading Chafee 41-27 before he dropped out. This is unheard of. Not only do incumbents normally have large leads more than 18 months before the election when their opponents are still relatively unknown, but Chafee also happens to be popular in Rhode Island. The easy explanation is that the state is heavily Democratic. Any bets that Chafee will jump parties in an effort to keep his seat?

F-16s

2005-03-28T15:02:00.000-05:00

The United States has resumed selling F-16 fighter jets to Pakistan after having suspended sales ni 1990 over Pakistan's nuclear program. The move is widely seen as a reward for Pakistani cooperation in the war on terror. Pakistan's bitter rival, India, has objected to the sales, though India may also buy the fighter jets in the near future. India and Pakistan have fought three wars since 1947 and nearly went to war again three years ago.

Perhaps President Bush is pursuing a new peace policy on the old policy of mutually assured destruction (MAD). Never mind that Pakistan and India are already armed with nuclear weapons. More weapons must be better. Perhaps a Nobel awaits?

Revolution!

2005-03-27T12:40:00.000-05:00

While the Schiavo controversy dominated the news coverage last week, a revolution took place in a former Soviet republic called Kyrgyzstan. Demonstrators sent the president fleeing to Russia when they stormed the presidential headquarters on Thursday. And that is about all I know about the country and its history.

(Points to people who know where the country is, and bonus points to those who can pronounce its name; as far as I can tell, monkeys seem to have come up with the name while pounding away furiously at their typewriters.)

Revolutions are naturally colorful, and various revolutions over the years have been associated with all different colors. A little quiz to see how many revolutions/overthrows you can link with their associated colors. (Answers will be posted tomorrow; in the interim, Google if you must.)

a) Ukraine
b) Iraq
c) Georgia
d) Russia

1) Red
2) Purple
3) Orange
4) Rose

UPDATE: The Moscow Times has proposed a color for the Kyrgyz revolution: yellow.

Seizing Terri

2005-03-26T11:59:00.000-05:00

There are reports that state law enforcement agents planned to seize Terri Schiavo and reinsert the feeding tube. They actually were on their way to seize her when the local police said no and the agents backed down.

But imagine that they hadn't backed down. Which would have happened: Elian Gonzales or Waco?

House Majority Leader Tom DeLay said:

2005-03-26T11:46:00.000-05:00

"I am not a crook."

(Perhaps the politicization of Terri Schiavo was a way to detract attention so that he might continue to cheat the people?!)

Legacy preferences: a reply

2005-03-25T01:28:00.000-05:00

David and I are engaged in debate about how to account for differences in the background of applicants that may be beyond their control and yet affect their admissions chances at top schools. For example, legacies may be more likely to get accepted into top schools even without any legacy preference program in place because they tend to have parents with higher socioeconomic status, which is correlated with higher academic achievement. I argued that affirmative action, if done right, is more likely to improve the overall quality of a student body, and David responded that it is impossible to cancel out every factor. (Bum from Jersey has weighed in with a post that essentially agrees with my argument in favor of affirmative action.)

David understands me to say that higher socioeconomic caused higher academic performance. If I implied this, I apologize for the sloppy wording on my part. I agree that there is correlation if not causation. I am less sure that the higher academic performance is due solely to “industry, thrift and discipline on the part of the parents” as David seems to suggest, though certainly that plays a large role.

I agree that “excellence is worthy, full stop.” Where we seem to part is how we define “excellence.” As a preliminary point, merit is not value-neutral; there has to be some consideration of what values we would like to favor when admitting the “most qualified students. David mentioned the kid with willpower to study and not play video games. Generally we favor good work habits and I see no reason why any admissions office would disregard that trait since it seems to reflect individual choice to succeed and this drive may well be predictive of future excellence. I think we agree there; where we seem to disagree is how deeply to probe into factors that might truly be beyond one’s control in determining “excellence.”

I am not sure exactly how David defines “excellence,” and I invite him to correct me, but I understand his definition to be pretty much straight up comparison of absolute numbers; background is irrelevant. For example, under his definition, a student with a 1500 SAT score from an upper class background is clearly more worthy than a student with a 1200 SAT score from the ghettoes. My understanding of excellence looks beyond scores and other superficial indicia of academic performance and takes into account factors that indicate great likelihood of future excellence. The ghetto kid who overcomes significant hurdles to score a 1200 seems particularly impressive and likely to succeed in his future endeavors. In this way, my understanding of excellence takes into account more factors to try to arrive at a more complete picture of each applicant.

The recent experiment in Texas with the ten percent plan is a case in point. Under this plan, the top ten percent of every high school is guaranteed admission to the University of Texas. As it has turned out, the top ten percent of the predominantly black and urban high schools has done fairly well at the University of Texas and perhaps even better than those in the 85th percentile at the “better” high schools who had better scores. There is something to be said for considering background factors when it comes to determining excellence, and affirmative action, if done right, can capture these factors in improving the overall excellence of student bodies. (I consider the Texas plan a form of affirmative action because it relies on segregation across the school districts in order to integrate the University of Texas.)

I prefer not to view such affirmative action plans as penalizing legacies who tend not to benefit from such programs but rather as benefiting those from disadvantaged backgrounds. Nonetheless, I readily acknowledge that such plans do penalize legacies, if only because there are only limited spaces at top schools and something has to give if there is to be room for students admitted through affirmative action. I also readily acknowledge that it is impossible to try to cancel out “every antecedent, unchosen influence on a person's life,” but this does not mean that we should not try to incorporate a totality of the circumstances approach to try to predict the academic potential of each applicant in determining who is truly excellent. Even if we cannot take into account every single factor, taking at least some factors into account can improve the overall “accuracy” of the admission process in predicting future academic success.

Legacy preferences: a response

2005-03-24T21:39:00.000-05:00

David has offered an extremely thoughtful response to my post. Before I paste below his response, let me say that he and I have cleared up a point of confusion. We agree that even without a legacy preference policy in place, legacies would still be admitted at a somewhat (but not dramatically) higher rate than non-legacies because legacies are more likely as a class to be more academically accomplished. (So as not to confuse the reader further before pasting David's reply, I explain the source of confusion more fully in a comment below this post.)

Although David and I have reached agreement on that one point, we still disagree on what it means that legacies are more likely as a class to have better records of academic achievement. Without further ado, here is his reply:

You say you agree that legacy applicants are better qualified, "if only because the socioeconomic status of one's parents is the greatest predictor of academic performance."

But what, exactly, does the correlation between socioeconomic status and academic success imply? My guess is that you would be inclined to say that wealth and social connections -- which children receive independent of their merit -- create an unearned and undeserved advantage for those children who happen to luck into them. But the correlation between wealth (or, if you prefer, "socioeconomic status") and academic success does not imply that wealth _causes_ academic success. Projecting a cause where you see a correlation is perhaps the cardinal sin of social science. And I would argue, in this case, that parental wealth and child academic success are less likely to be a cause/effect pair, and rather more likely to be two effects of the same cause, namely industry, thrift and discipline on the part of the parents.

But then, why should that argument be enough to let the legacies off the hook for their good fortune? Sure, their success might have nothing to do with wealth. But they are still helped along by the industry, thrift, and discipline of their parents. Shouldn't they be handicapped for that as well? I mean, kids don't choose to have disciplined, hardworking parents who value education -- they just luck into it or they don't.

And why stop with the parents? If a kid happens to have a lot of will power, or to be inclined toward pleasing her elders, or to enjoy academics more than video games, those are unchosen advantages themselves, right? So why even reward people for doing well at all?

That way lies madness. The reason for letting the best students into the best schools is that excellence is worthy, full stop. Life includes the fact that people are dealt different hands to start with. We owe it to everyone to give them a strong start -- to give everyone the chance to succeed, via a good universally available public education. But we have no way of drawing a bright line between the advantages people start with and the individual choices for which they are personally accountable. I would worry that you don't even have a coherent way to specify anything for which it's right to hold people accountable -- and to use as a basis for reward -- once you commit yourself to cancelling out every antecedent, unchosen influence on a person's life. We need to make sure that everyone gets up to the starting line, and we (try to and ought to) do that through public education. But we can't, and shouldn't, presume to make everyone an equally strong runner.

Legacy preferences and affirmative action

2005-03-24T13:20:00.000-05:00

David Robinson, a college friend who is now a Rhodes Scholar, wrote a letter to the editor that was published in the Daily Princetonian. In the letter, he took issue with a recent opinion piece implying that the admission rate for legacies would fall were the University to end its legacy preferences policy. For the Class of 2008, 39 percent of legacies were accepted, while just 12 percent of non-legacies were admitted. Here is David’s letter in full:

Freddie LaFemina writes that "tradition fails to justify legacy admits." Even if that were correct, it wouldn't mean we should join him in wishing for a "George Soros-like figure who would pledge a billion dollars to the University if it would end its 3-to-1 advantage for legacies in admissions." Why? Because tradition isn't the only, or even the best, explanation for the higher admissions rate among legacies.

The best explanation is that people who get admit[t]ed to Princeton on their academic merits often produce children who are similarly capable. So it's reasonable to expect that people whose parents went to Princeton are going to be among the best-qualif[i]ed applicants, regardless of whether the admissions office knows that their parents went to Princeton. Legacies do get an extra boost. But LaFemina's argument implies that without the boost, only a third of the legacy applicants would get in, and that's almost certainly too low an estimate.

I agree with David that as a class, legacies more academically accomplished, if only because the socioeconomic status of one’s parents is the greatest predictor of academic performance and Princeton alumni generally tend to be better off than most. Mr. LaFemina makes this point in the original opinion piece, arguing that since legacies are already more likely to be admitted in the first place, there is little or no reason to give them an added boost. This is an argument I agree with. David tells me in an [aside] that he intended to remain neutral in his letter on whether legacy preferences should ever be used.

Notwithstanding that fact, I find it hard to believe that even a third of legacy applicants would be admitted were Princeton to end its legacy preference policy. To repeat a number, for the Class of 2008, 39% of legacies were admitted, a 27 point differential from non-legacies. Even if most legacies are “qualified,” an assumption that I do not dispute, it is hard to believe that such a large differential would still hold up when there are thousands and thousands of applicants and many extremely well-qualified applicants are turned away. Even if we assume that legacies will still have a higher admission rate as a result of generally higher academic achievements, I do not think that this would translate into a differential of more than a few percentage points. Many non-legacies are, after all, also extremely well-qualified.

This debate about legacy preferences is a corollary to the debate about affirmative action. In a sense, these two policies have competing effects. Legacy preferences reinforce past advantages; I assume that this policy tends to favor whites because until only recently, Princeton was mostly white. Affirmative action policies, in contrast, seek to compensate for past discrimination that places minorities at a disadvantage today (though such policies may be justified by the “diversity” rationale; this justification would not be necessary if it were not for past discrimination that creates the need for affirmative action policies in the first place). The two debates are linked in the sense that when affirmative action plans are struck down but legacy preference plans are left in place, many perceive some sense of unfairness in the process.

Whatever the merits of a legacy preference policy, I think that the justification for affirmative action is much stronger when it comes to “merit” because I think that if done right, it will lead to the admission of a superior student body. I say this not in the sense that “diversity is better,” though I think that is true. I say this because I would find very attractive a minority applicant with a 1200 SAT score who emerged from the ghettoes where most people don’t even take the SATs and those who do are lucky to even get an 800 score. This student is certainly much more promising than the legacy who scored 1500 in an environment where everyone gets at least 1300. It is possible, even likely, that the minority applicant would have done just as well, if not better than the legacy applicant had they been given equal opportunity. Further, “merit” is not only measured by SAT scores but also by other indicia of academic success including success against all odds.

But of course affirmative action is not always so tailored to search out these students. Crudely admitting students on the basis of race seems to admit those blacks who are already relatively well off. In fact, affirmative action at Harvard does not even seem to admit very many blacks who were at a disadvantage from historical prejudice; many if not most black students here were born elsewhere in places like Africa. I have a much more difficult time with affirmative action for these students who were likely given ample opportunity to succeed academically.

If done right, affirmative action may be more likely to produce a “better qualified” student body than legacy preferences. There are arguments for legacy preference that go to the effect that alumni are likely to contribute more money if their children attend Princeton, but that is a separate argument. The argument for legacy preferences cannot stand on the premise that as a class legacies may have higher SAT scores.

The utilitarian argument

2005-03-23T18:26:00.000-05:00

The litigation over Terri Schiavo's fate may be winding down. The district court refused to order the reinsertion of the feeding tube as did the appellate court. Barring further remarkable developments, the Supreme Court appears to be the last option for Terri's parents. I have to say that I'm surprised the federal courts have held firm in light of the extraordinary political pressure that Congress placed on them by granting them jurisdiction over the case in the law passed over the weekend.

Via Will Baude, I see that Ross Douthat at the American Scene has made what comes close to a utilitarian argument for keeping Terri alive:

In the absence of definite proof of Terri Schiavo's desires, she asks, why not choose life? Who's hurt by it? If the materialists are right, and we are our brain functions, then Terri is gone forever -- so she isn't hurt. Her husband can get a divorce, so he isn't hurt. The parents are willing to take care of her, so the state's pocketbook isn't hurt. So what's the harm? Why not let her live?

I agree with Will that this argument is a non-starter because some notion of personal autonomy should take into account what Terri would have wanted. In the utilitarian analysis, her will should count for something. But when what she would have wanted is unknown (and I'm not terribly convinced by her husband's claim that she made a flippant remark that she wouldn't have wanted a tube while they watched TV), there might be room for a utilitarian argument. What's the big deal if her parents are willing to take care of her? I find this by far the most persuasive argument for keeping her alive.

So why haven't I heard more people make this argument? One possibility is that this argument comes dangerously close to the arguments for the right to privacy such as a right to sodomy, pornography, sex toys and other forms of pleasure that hardly dare speak their name at the dinner table. What's the harm in permitting two men or two women to make love to each other? This is a road that social conservatives are unwilling to go down, so they can hardly rely on a utilitarian argument of this type.

DormAid

2005-03-22T13:19:00.000-05:00

A new Harvard student group called DormAid offers a dorm-cleaning service. This much seemed uncontroversial until the Harvard Crimson ran an op-ed last week criticizing the service for creating a new way for those with money to separate themselves from those without money. For reasons that remain unclear to me, this op-ed gained traction until finally today the New York Times ran an article covering the controversy.

As a practical matter, money, status and more generally a desire to have nice things will always find ways to out. Even school uniforms, ostensibly to cut down among other things demand for expensive clothing, still allows for brand name socks and ties and more subtle ways of demonstrating advantage. Even in Iran where women wear burkas, nose jobs are a way for women to distinguish and beautify themselves.

If anything, clean dorm rooms do not reach the same level as expensive socks because anyone can have a clean room in minutes. It is really only the bragging value that seems to be at stake here, and I'd be surprised if people really bragged about this. People don't really like to brag they go to Harvard, and the process of revealing this information is called "dropping the H-bomb." I've heard people wonder whether they should just say they go to school in Boston, and whether this might backfire if they're forced to reveal this after stonewalling for as long as possible. Then that might seem all the more snobby by making it seem to be a bigger deal than it actually is. All this is not to say that there are no snobby people at Harvard; only to say that it is very likely that many students get this service not for any bragging value but because they genuinely value this service.

To the extent that some people can afford the cleaning service more readily than others, this is a problem. But the solution is not to cap spending by the better off; those worse off are not going to benefit if their richer counterparts can't hire someone to clean their rooms. It smacks of spite. Rather, the solution is to increase the spending power of the less well off so that they can all share in the things that the commercial marketplace has to offer.

More on Schiavo

2005-03-21T07:49:00.000-05:00

Congress today passed a law providing for federal courts to hear the case of Terri Schiavo in the hopes that the federal courts will decide this issue differently than did the state courts and order reinsertion of her feeding tube. The law is remarkable in that it names Ms. Schiavo and grants authority to her parents to sue in a particular federal court in Florida. The legislators were also careful to say that this law did not affect other laws already on the books and effectively represented a one-shot deal.

Although I understand the purpose of the legislation, I worry that inordinate pressure will be placed on the federal judge slated to hear this case. Congress has not stated it in so many words, but is essentially asking him or her to decide the case in a particular way; were the judge to affirm the state courts, conservatives would be back to square one.

This is why I agree with House Minority Leader Nancy Pelosi that this law represents improper use of legislative authority. Because Congress is attempting to influence the outcome of this litigation, I think this law comes dangerously close to a violation, if not an outright violation, of the separation of powers that allocates legislative power to Congress and judicial power to the courts.

An utterly absurd hypothetical

2005-03-20T00:41:00.000-05:00

This is not going to happen, but just imagine what pandemonium would erupt were Terri Schiavo to emerge from her vegetative state as a direct consequence of her feeding tube being removed.

Puzzlement

2005-03-19T11:55:00.000-05:00

Why doesn't anyone believe me when I say that I'm winning support for my Social Security plan? Beats me.

Terri Schiavo

2005-03-18T16:45:00.000-05:00

Congress today subpoenaed Terri Schiavo, a severely brain-damaged woman who has been the center of a struggle between her husband and her parents over whether her feeding tube should be removed. The subpoena is an effort to forestall the removal of her feeding tube, was removed today after litigation in the Florida state courts was exhausted.

This reason for the subpoena is understandable, but it will be the ultimate embarrassment for Ms. Schiavo if she actually appears before Congress in her vegetative state, even if the congressmen travel to her hospice as the lawyer for the House committee suggested. Whatever her wishes were regarding whether she would want the feeding tube to be removed, I am sure that one of the last things she would have wanted to do was testify before Congress in this manner. But of course none of this is really for her to testify, but only to buy more time for her before her feeding tube was removed.

(A word to non-lawyers: 99% of the cases we read in law school came about because people were stupid and didn't plan ahead; don't make the same mistake Ms. Schiavo did in not stipulating in extremely clear terms ahead of time what she would have wanted. Thinking ahead and trying to plan for the unexpected is a way to cut down dramatically on these hard cases.)

The whole thing is tragic, but it also further exposes the hypocrisy of partisan politics. Republicans have long championed federalism, but when state politics doesn’t come out the way they want it to, they want the federal government to intervene. The Florida state courts weren’t deciding the Schiavo case the way conservatives wanted, so conservatives wanted to pass a bill in Congress that would provide for federal courts to hear this and hopefully decide the issue differently. Yale Law School professor Jack Balkin gets it exactly right when he says that conservatives would seek a federal ban on abortion were Roe v. Wade overturned; all this talk of states’ rights is hogwash. And the same goes for Democrats. Normally in favor of the federal government, they have suddenly become fans of federalism, wanting the states to decide gay marriage and the legality of medical marijuana, for example. This hypocrisy is to be expected, but that Ms. Schiavo should be caught up in this partisan politics is tragic.

More on steroids

2005-03-18T12:40:00.000-05:00

The New York Times on the Web yesterday ran this photo of the baseball commissioner during the steroids hearings:

Talk about someone needing a Bud Light.

Seriously, this is a public relations war and defensive postures like this are not going to help Commissioner Bud Selig and Major League Baseball if it hopes to survive with as little damage as possible.

Steroids

2005-03-17T13:53:00.000-05:00

Today, Congress opened hearings on steroid use in baseball. Although I suspect that this is a photo-op for the congressmen, there is something to be said for baseball failing to regulate itself adequately.

This whole steroids scandal has some striking analogues to the corporate scandals that rocked Wall Street three years ago. The investigations come in the aftermath of some fantastic years. As corporate profits grew and the stock markets boomed in the late 1990s, so did the home run count among the more elite athletes. Things have since dried up. The stock market is still nowhere where it was five years ago and no one has hit 50 home runs in a while. Without glamor, the fraud has become exposed and it now seems that the success of the late 1990s based at least in small part on cheating and perhaps inspired still more cheating.

This analogy is by no means perfect because the federal investigation into BALCO probably would have turned something up anyway, but it is worth noting that of the two Yankees linked to the probe, Jason Giambi and Gary Sheffield, only Giambi has been stigmatized. Perhaps not coincidentally, he was the one who had a really bad year last year while Sheffield had another banner year.

My feeling is that steroids use has already gone down a lot and will go down more, and that corporate fraud is somewhat in check for the time being due to increased scrutiny. But I also think that cheating will continue, and will grow all the more as good times return and people stop paying careful attention to the bottom line. Although we may close some loopholes now, the cheating will just find new ways to out, shocking us when we thought we couldn't be shocked any longer.

More on Summers

2005-03-16T17:30:00.000-05:00

Hit him again guest blogged about the Harvard faculty vote of no confidence in President Larry Summers that took place yesterday afternoon. Even though I blogged last month that I thought he was a goner, I was still surprised. It had seemed that the controversy had died down. Now I really think he's gone; although the faculty vote was non-binding, it's hard to see how he can stay on in these circumstances.

On a somewhat lighter note, the Harvard Crimson quoted Alan Dershowitz, my criminal law professor last year:

Outside the Faculty meeting, Professor Alan M. Dershowitz—who, as a member of the Law School faculty, was not invited to yesterday’s session—mingled with members of the press on the street in front of the Loeb Drama Center.

“The idea that you vote to censure, it’s just not what you should be doing,” said Dershowitz, who said he had been walking through the neighborhood with his family and stumbled on the meeting.

I'm not surprised that he made himself available to talk to the media just because he is a publicity hound by nature. But his claim that he "stumbled" on the meeting is preposterous because he knew the meeting was happening and he is drawn to controversy like bees to honey. Some of my classmates and I had a good laugh about this and the law school must have known what a farce that statement was because it edited out that part in the daily e-mail to the law school community that contains excerpts of recent articles that quote law professors.

Faculty Uprising

2005-03-16T15:15:00.000-05:00

POYS graciously allowed me, a Harvard student, to offer some thoughts today on the travesty that took place yesterday regarding President Lawrence H. Summers. Let me begin by making clear that I disagree totally with both the tone and substance of his remarks regarding women in science. His comparison between the lack of women in science and the lack of Jews in agriculture and whites in the NBA suggested that he took the topic less than seriously. The tone throughout was somewhat condescending: his references to his daughters' play habits with toy trucks is a case in point. He should have known that his words would carry extra weight as president of Harvard, even if he was speaking off the record and was attempting to be provocative.

Having said that, Summers repeatedly apologized for his remarks, has promised to engage in the Faculty in a new spirit of cooperation, and further investigate the lack of tenure offers to women at Harvard. Despite his apologies, he has been consistently rebuffed by the Faculty of Arts and Sciences, who would seem, by their "lack of confidence" vote yesterday, to be satisfied with nothing less than his resignation or removal.

Universities are not like corporations, where executives reign supreme, but neither are they democracies. One has to ask what right the Faculty of one Harvard school has to act as some sort of high court. Input of the Faculty is no doubt important, but at the end of the day someone must be able to make decisions for the University, and that person is the president. Moreover, the actions of the Faculty over the past few weeks have demonstrated that this is more about settling old scores than women in science or even the future of the University. Instead of focusing on constructive proposals to increase the ranks of women professors at Harvard, faculty members have attacked Summers' leadership style in its totality, quibbled with his plans to expand the campus into Allston, objected to his plans to reform the undergraduate curriculum, and even brought up an article he wrote over a decade ago while at the World Bank in which he suggested that Africa was "underpolluted." I find the objections to the proposed changes in the undergraduate curriculum especially laughable, given that many faculty members openly express displeasure at having to fulfill their teaching commitments. This sudden concern for the undergraduates is, shall we say, less than moving.

The charade that went on yesterday afternoon set a terrible precedent for the future of the University. Generally speaking, I am not inclined to punish people, particularly academics, for what they say in a forum that was clearly designed to get people thinking. But when it comes to the president, I can see why people objected forcefully to his remarks, and why even a resolution of censure, such as that offered by Professor Skocpol of the government and sociology departments, may have been appropriate. Yet by passing the stronger motion of no confidence, the faculty signaled that their main objective is to remove Summers. Authority must come from somewhere, especially at an institution as large and decentralized as Harvard. At the end of the day, it is the president's job to run the University, with faculty input to be sure, but not with faculty veto power.

This is not some glorious reprise of the Boston Tea Party, or of the Orange Revolution in Ukraine. The University exists to serve the students, not the faculty. The only thing worse than what happened yesterday would be for Summers to resign, which would demonstrate only that an unelected - indeed unaccountable - Faculty can topple their president.

Diversity in the Senate

2005-03-15T11:35:00.000-05:00

A few days after Senator Paul Sarbanes of Maryland said he was retiring, former NAACP President Kwesi Mfume announced that he was running. I'm glad to hear that he is running because I believe that we need more diversity in the Senate, which currently has only one African American senator. I am not saying that we should elect him for the sake of diversity; rather, I believe that a more diverse Senate will be more responsive to a broader swath of the population. Whatever the controversy over majority-minority districts (whether congressional lines should be drawn to form majority black districts that is likely to elect black congressmen), it is important to have at least some African American representatives who can respond in a nuanced way to concerns that many African Americans may have that white representatives might not quite be able to pick up on, whether it is by building coalitions that include more minority groups or appearing on Sunday talk shows. In short, even if Kwesi Mfume's voting record would not differ materially from that of other Democrats, his election would work to make the Senate a more responsive institution.

Panel on abortion

2005-03-14T12:06:00.000-05:00

I got an e-mail about the "Religion, Morality, and Choice" panel to be held on Wednesday and sponosored by the HLS for Choice, American Constitution Society and HLS Democrats; two of the three advertised speakers are definitely pro-choice and the third is a professor who is probably pro-choice by virtue of her speaking on this panel. Though I may just be stereotyping here.

I thought this panel sounded like a waste of time because I do not think anyone's minds will be changed by going; pro-choice advocates will enjoy having their views reinforced by people arguing their views are possibly acceptable on religious and moral planes and pro-life advocates will come away steamed. Then I got this e-mail from the Society for Law, Life & Religion about the event. An excerpt below:

If you attend, please challenge the statements about the Catholic Church and abortion made by one of the panelists, Francis Kissling, the president of Catholics for a Free Choice (CFFC). CFFC is at best a fraud and at worst anti-Catholic. It is a one-person front group for radical pro-abortion foundations and people (e.g., the Playboy Foundation, Ted Turner, and George Soros) that want to distort the Catholic Church's teaching on the sanctity of human life and silence the Church's opposition to abortion (e.g., CFFC led a recent unsuccessful effort to revoke the Church's permanent observer status at the UN).

I know nothing about CFFC, but even so, the references to the Playboy Foundation, Ted Turner and George Soros seem designed to inflame rather than inform. It's plausible that they support CFFC but I find it hard to believe that they "represent" the group; more likely it is ordinary Catholics who disagree with the Church on this issue.

This almost makes me want to go; perhaps I should send a bunny in my place?

Meet the Press

2005-03-13T12:49:00.001-05:00

Condi Rice was on Meet the Press this morning. At the end of the interview, she had this following exchange with Tim Russert:

MR. RUSSERT: Before you go, let me show you some photographs on the screen: Jefferson, Madison, Monroe, Adams, Van Buren, Buchanan. What do those six men have in common?

DR. RICE: Oh, Tim, that's too tough for a Sunday morning.

MR. RUSSERT: They were all presidents of the United States that were at one time secretary of state.

DR. RICE: Ah, OK. All right.

MR. RUSSERT: In light of that, I was up on the Internet last night and found this Web site, www.americansforrice.com. And it features these bumper stickers and this song.

(Audiotape):

Unidentified Man: (Singing) Condoleezza will lead us. Sister, don't you worry about a thing.

(End audiotape)

MR. RUSSERT: Should that Web site be removed?

DR. RICE: Look, it's freedom of speech. But let me say, I don't have any desire or intention of running for president. I've never wanted to run for anything, and I just don't have any desire to do it.

MR. RUSSERT: Desire or intention?

DR. RICE: Both.

MR. RUSSERT: There was a great American named General William Sherman. and this is what he said, "If nominated, I will not accept. If elected, I will not serve." Will you issue a Shermanesque statement?

DR. RICE: Tim, I don't want to run for president of the United States.

MR. RUSSERT: "I will not run"?

DR. RICE: I do not intend to run for--no. I will not run for president of the United States. How is that? I don't know how many ways to say "no" in this town. I really don't.

MR. RUSSERT: Period? Period? I will not run as president of the United States.

DR. RICE: I have no intention. I don't want to run.

MR. RUSSERT: "I will not run."

DR. RICE: I think people who run are great. I don't want to run.

MR. RUSSERT: That is a Shermanesque statement?

DR. RICE: Shermanesque statement.

MR. RUSSERT: You're done. You're out.

DR. RICE: I'm done.

MR. RUSSERT: There's news.

DR. RICE: I hope not.

MR. RUSSERT: Secretary of State Condoleezza Rice who just said she will never run for president, correct?

DR. RICE: Tim, why do you keep pressing me to make these statements?

MR. RUSSERT: Well, because if you're secretary of state, will it affect your ability...

DR. RICE: I don't want to run for president of United States. I have no intention of doing so. I don't think I will be president of the United States ever. Is that good enough?

MR. RUSSERT: And you will never run?

DR. RICE: I don't intend to run.

MR. RUSSERT: But it's different.

DR. RICE: I won't run.

MR. RUSSERT: Oh, we got it.

DR. RICE: All right. There you go.

MR. RUSSERT: Thanks very much.

What she says is mildly plausible given her willingness to be frank about abortion. But I wouldn't rule out the possibility that she might change her mind. This show, after all, is an opportunity to meet the press to cheat the people: mtp to ctp.

Courthouse safety

2005-03-12T13:42:00.000-05:00

There is a thoughtful discussion going on in the comments under the Condi Rice post. I will just say that I don't think that the fact that the deputy overcome was a woman is relevant; that she was carrying a gun was the problem. As I understand it, criminal defendants are strip-searched to ensure they are not carrying weapons. It is hard to imagine why deputies would need guns in this environment; what happened in Atlanta suggests that carrying such guns can result in greater danger to safety, not less.

On a related issue, compare what two people had to say to CNN.

"The security in the Fulton County Courthouse, the way they deal with prisoners, is absolutely atrocious," attorney Dennis Scheib told CNN. "I said this was going to happen."

Hindsight is 20/20, so it is to be expected that someone would say that. What came as a surprise, was the following excerpt:

Fulton County State Court Judge Craig Schwall, however, described security at the courthouse as "phenomenal."

The only way to explain this quote is some sort of self-interest that suggests a desire to believe that this was a one-time event only. It may be, but to say that security is "phenomenal" just after three people were killed is a stretch.

Condi Rice

2005-03-11T22:18:00.000-05:00

What is Condi Rice trying to do? First, she tells the Washington Times that she won't rule out a run for the White House in 2008. Then she tells them that she has a "mildly pro-choice" stance. Talk about shooting oneself in the foot; a run for the White House and a pro-choice stance, however qualified, just don't mix in the Republican primaries.

The politics of chess

2005-03-11T16:48:00.000-05:00

Garry Kasparov, long-time world chess champion, has announced that he is retiring from professional play. In a statement, he explained:

As a chess player, I did everything I could, even more. Now I want to use my intellect and strategic thinking in Russian politics.

I will do everything in my power to resist Putin's dictatorship. It is very difficult to play for a country whose authorities are antidemocratic.

The irony is that the Soviet Union used chess for political purposes, even ordering Russian grandmasters to throw games to favored players like Boris Spassky. Spassky, of course, went on to lose to Bobby Fischer in the 1972 world championship that drew widespread public attention during the height of the Cold War.

Now Kasparov wants to use his chess fame against Putin. I know nothing about Kasparov's political talents, except that he wasn't very successful in unifying the divided world of chess despite his best efforts. But at minimum, he'll get press coverage the first few times he speaks. What happens after that depends of course on how Kasparov makes of his opportunity. My guess is that Putin, who I blogged about a few weeks ago, will largely ignore him unless he begins to pose anything resembling a real threat.

New York City and the road to the White House

2005-03-10T17:36:00.000-05:00

The primary to nominate the Democratic challenger to Mayor Bloomberg is just starting. Frontronner Fernando Ferrer uttered this incredible line yesterday:

I want to earn your support because I do believe, Democrats, I do believe this is the year we take back City Hall. This is the year we send the message coast to coast: It starts here in New York City. Then we go to Albany, and then we take back the White House for Democrats, but most importantly for Democratic values.

This sounds eerily like what another past frontronner said just as he imploded. Here's what Howard Dean's "I have a scream" speech:

Not only are we going to New Hampshire. We're going to South Carolina and Oklahoma and Arizona and North Dakota and New Mexico, and we're going to California and Texas and New York. And we're going to South Dakota and Oregon and Washington and Michigan. And then we're going to Washington, D.C., to take back the White House. Yeeaaaah!

Did I mention that Ferrer lost the primaries in his first two tries?

Not only that, but the road to the White House for the Democratic Party does not begin in New York City, which is already pretty much as Democratic as a city can be. Although Mayor Bloomberg is nominally a Republican, he is really a Democrat in disguise. Party domination at the local level does not necessarily translate into national domination: Kansas has a Democratic governor but is among the reddest of states nationally, and the converse is true for Massachusetts, which has a Republican governor but is the bluest.

But don't let all that detract from the spectacle of the upcoming mayoral race. It promises to amuse!

Blog polarization

2005-03-09T22:01:00.000-05:00

Jack Balkin, a professor at Yale Law School, points to a study showing that liberal and conservative bloggers tend to link within their own circles and not to each other, resulting in the polarization of liberal and conservative blogospheres.

I've wondered about this myself with respect to HLS bloggers. As far as I can tell, I'm the only openly liberal blogger out there. The other HLS bloggers that I know about, Class Maledictorian, Jenn Carter, Waddling Thunder, and Red and Blue are all conservative, even if they do not always agree with each other. There are other HLS blogs out there, but as far as I know, they tend to be of the more personal type; though I suspect that Jeremy may be liberal, he tends not to blog about politics.

Maybe there's something about conservative students that makes them more susceptible to blogging about politics. At the risk of hopeless stereotyping, they tend to be louder about politics on campus, and quicker to complain about liberals. Then again, I wouldn't necessarily characterize any of the blogs I listed above as fitting into this stereotype.

Or maybe I just happened to wander into the conservative blogosphere; if so, perhaps someone could point me to the liberal bloggers so I can go join the chorus?

A poem

2005-03-09T15:29:00.000-05:00

Inspiration struck during constitutional law class. Perhaps a poem for those who believe in judicial restraint? With due credit to Langston Hughes:

What happens to a legislative will not deferred to?

Does it dry up
like a raisin in the sun?

Or fester like a sore--
and then run?

Does it stink like rotten meat?
Or crust and sugar over--
like a syrupy sweet?

Maybe it just sags
like a heavy load

Or does it just explode?

Italian justice

2005-03-09T12:25:00.000-05:00

CNN reports that the notoriously slow Italian courts told a man given six months to live to come back in 14 months to hear the outcome of his insurance coverage case.

Talk about justice delayed being justice denied.

The politics of difference

2005-03-08T16:21:00.000-05:00

I handed in a paper today in which I discussed racial, ethnic and cultural identity politics. I argued that this form of politics faces the irony of trying to maintain the integrity of culture formed on the fault lines of prejudice. This may be the case because prejudice forces diversity by carving out islands of people and leaving groups in their isolation to form their own cultures apart from the dominant culture, e.g., shunned African-Americans and Jewish people formed their own cultures quite distinct from the white Christian culture. As prejudice weakens, group identity may become porous as people become freer to choose their cultural and even racial identities: no longer insular, the group may cease to be discrete.

Assimilation is a danger to groups seeking to preserve the uniqueness of their identities. But this fear of assimilation may leave little space for people who want to identify with both the dominant and minority cultures, pressuring them to make radical choices identifying wholly with one culture or the other but not both. Those who choose to identify wholly with the minority status may ridicule those who have not as selling out. Derogatory terms such as “oreos” to describe people who are “black on the outside” and “white on the inside” and “twinkies,” to describe Asians who identify or act as “white” are commonplace. Many Orthodox Jews do not consider their less religious brethren real Jews at all. This polarizing effect, in a way, duplicates the impact of prejudice in segregating dominant and minority cultures by drawing artificial boundaries on which people should plant themselves firmly on one side or the other.

In short, group identity politics may merely seek to keep in place the racial and cultural divisions founded on prejudice. As we move away from prejudice, we deserve something better, where individuals are free to identify however as they wish, even if it bucks traditional categories. Group identity can be useful, but not if it is presented to individuals as an either/or choice.