A Home for the Imagination: It grew up around the Claremont Colleges and became the most writerly of small towns

Los Angeles Times

A touching tribute to Claremont. If ever there was a must read for this site, it's this. Really well done. Makes you realize how much you take a place for granted.

I just have to add one thing the writer missed: Heroes, which is the favorite hangout of Lauren and me. It's one of those big (and good) beer, big food, and toss the peanuts on the floor kind of places. If you go to a Claremont college, you can't miss it because Kate Fairley, a nice older Irish lady and college administrator, will always remind you to go - her son owns it.

Car Talk question

This morning on NPR's Car Talk Tom and Ray were discussing a recently purchased Dodge Caravan. I'm not sure which of them was speaking, so I can't say which one bought the minivan, but apparently one of them (let's just say it was Tom) bought a new Caravan and was, as per the driver's manual instructions, breaking the car in slowly. Unfortunately, despite this careful driving, the car at some point "threw a connecting rod." Now, obviously Tom, being a car aficionado, knew that the sound he heard emanating from the engine area was that of a thrown rod. Tom also knew that if he stopped driving then and there, Dodge would take the car for a month, and eventually return it to him with a refurbished engine (which would obviously be inferior, and not the kind of thing one wants in one's new car). So, rather that stopping, Tom just kept on driving, thereby completely destroying the engine (a result he knew full well would occur). The result: a brand new engine, presumably higher resale value for the car, and in much less time.

I'm not sure what to make of this. It's very clever, certainly. Beyond that, it seems somehow wrong, although unless he violated some contractual provision in the warranty, I can't imagine that there would be any legal recourse of Dodge's part.

Society would have been better off if Tom had just brought the car to Dodge and they had given him a new engine and refurbished and sold the damaged one. Obviously it's a small subset of the population that knows enough about cars to destroy their engines -- but you'd think that Dodge would want to somehow get these damaged engines in for replacement... What would have happened if Tom had said to Dodge, "Listen, I have this thrown rod. I'm going to keep driving until the engine is worthless, unless you promise to give me a new engine (and perhaps pay me a fee)." Dodge would be better off paying epsilon less than the value of the refurbished engine (ignoring service costs and the like), right?

Incidentally, at the conclusion of each Car Talk the brothers go through their list of "cast and crew." The whole list is available here and worth taking a peak. Some of my favorites:
-- Fact checker: Ella Fynoe
-- Race team driver: Andy Zoff
-- Safety officers: Mort & Fay Tality

Snopes on Superbowl

True or false?

1) Sewage systems of major cities have broken due to the tremendous number of toilets being flushed simultaneously at halftime.

2) More women are abused by men on Super Bowl Sunday than on any other day of the year.

We here at That's News to Me aim to be seasonal (if nothing else). Although I personally won't be watching the Super Bowl (although I may TiVo the commercials), check out the Snopes Superbowl urban legends page here.

Mr Cranky strikes again

For those who still haven't started reading Mr. Cranky's movie reviews - you're still missing out. Check him out here.

A great line from the review for Monster: "[Monster] simply wallows in a cesspool of humanity, a place where I'd rather not spend any time, let alone two hours." Feel free to read the whole review here. Check out past reviews here.

Mr. Cranky and I agree that "deep" movies rarely are.

Strategic deterrence

I really enjoyed the Kerry/Heinz article cited to by Brian here. I think this bit (though not really related to the rest of the story) is particularly interesting:

"To that, Kerry says he won't spend any Heinz money on a campaign -- and Heinz says she won't make it available -- unless, in her words, an opponent engages in 'character assassination' against her or Kerry. As an example, Kerry says that if he is attacked in the way that McCain was attacked by George W. Bush before the South Carolina Republican primary in 2000, he would not hesitate to tap 'other resources.'"

Really interesting. I can't think of another example of something like this -- having a huge stash of money that acts as a deterrent to keep the other side playing by a particular set of rules. It reminds me somewhat of strategic over-construction to deter entry - but entry in a rather limited sense. I don't know if I'm comfortable, however, with the idea of someone having the financial power to dictate the terms of the campaign. Yes, it is his money (well, hers, fine), but it would be one thing to dictate terms based on financial superiority through donations -- it may be another to dictate terms based on a personal fortune. I guess this isn't really that different from Perot running and forcing certain issues into the campaign. Be that as it may, I'm not sure I like it.

Never Say Die, by Michael Kinsley

Washington Post

Kinsley conducts an interview with a fictional senator from a modest upbringing who just won't quit the race, despite poor showings in every primary.

This brings to mind an obvious question: Why isn't Joe Lieberman leaving the race? Gephardt was much stronger, and he quit two weeks ago. Does he really believe that he has a shot? Better yet, does he really believe he was in a "three-way tie for third place" in New Hampshire? That just made him look sad. Even Kucinich would be on better ground saying something like "I'm in a six-way tie for not last."

I guess nobody wants to be the guy who taps Lieberman on the shoulder and says "Look Joe, we're running at Kucinich/Sharpton numbers here, not Edwards/Clark, and even those numbers aren't good enough. Time to make a graceful exit. It's over." Even I don't want to be that guy. If you're reading this, Joe, forget what I just said.

I guess he feels he can win Arizona. He picked up an endorsement by the Arizona Republic today, after all. That's the only angle that makes sense to me. He's going to kick-in his last few pennies to make a showing in a moderate state the other candidates aren't focusing on, hoping to eke out a victory. That might give him some actual momentum, as opposed to Joementum, which, unlike The Surge, is some kind of negative momentum that causes you to severely underperform despite being a national figure with major endorsements.

General Malaise: Democrats, for the good of the country: Stop Wesley Clark!, by Peggy Noonan

Opinionjournal

Noonan claims that Clark's not just inexperienced. She claims he's a self-obsessed vacant loon, at least once you get to know him. This is an angle on Clark I haven't seen before. Check out some of her examples:

"On the night of John Kerry's win in Iowa, Gen. Clark went on 'Larry King Live.' The other guest was Bob Dole, not exactly an ideologically rigid man. His presence seemed to signal the establishment giving a big hello and an insider's teasing to the relatively new candidate. Remember how it went? Mr. Dole, a little emollient, then a little mischievous, told Gen. Clark, first, that 'somebody [had] to lose' in Iowa and, next, that 'politically you just became a colonel instead of a general.'"

He he. But check out Clark's response:

"This little barb set off a pompous harrumph of a retort: 'Well, I don't think that's at all--Senator, with all due respect, he's [Kerry's] a lieutenant and I'm a general. You got to get your facts on this. He was a lieutenant in Vietnam. I've done all of the big leadership.'"

A president that can't take (or even understand) a joke? I guess there are worse things. Like this, for example:

"More telling is Gen. Clark on abortion. A pro-lifer wouldn't have the smallest of chances in the Democratic Party, but a certain Clintonian politesse is expected when the question is raised. 'Abortion is always a tragedy but denying a woman her reproductive rights under the Constitution would also be a tragedy'--that kind of thing. This is what Gen. Clark said when he met with the Manchester Union-Leader and was questioned by the newspaper's Joseph McQuaid:

Clark: I don't think you should get the law involved in abortion--
McQuaid: At all?
Clark: Nope.
McQuaid: Late-term abortion? No limits?
Clark: Nope.
McQuaid: Anything up to delivery?
Clark: Nope, nope.
McQuaid: Anything up to the head coming out of the womb?
Clark: I say that it's up to the woman and her doctor, her conscience. . . . You don't put the law in there.

Gen. Clark was then asked, 'What about when she's grown up and at the prom, can you kill her then?' He said, 'Absolutely. Chase her across the dance floor. This is a personal decision for the mother.' Oh--sorry--I made that last part up. He did not advocate killing children 18 years after they're born. Though one wonders why not. Maybe he does have nuance. His campaign tried to spin it into a plus. He forgot to speak 'artfully,' 'precisely.' But he was nothing if not precise. He forgot to speak sanely."

The Heart of Politics: One Woman, Two Senators and Presidential Ambitions: The Washington Tale of John Kerry and Teresa Heinz

Washington Post

This is a profile from 2002 of Kerry and Heinz. If you didn't think she's a liability to Kerry based upon her bizarre, disheveled, half-drunken TV appearances, you gotta read this. I won't even bother quoting from it, there's just too much there.

Claremont Review of Books on Volokh

The Claremont Review of Books, run by my former teacher, advisor, and boss, Charles Kesler, is receiving some positive attention at Volokh. I have a subscription, so you must want one too. You can subscribe by clicking here.

BBC Apologises As Dyke Quits

BBC News

The real story for me is how on top of this some bloggers were from the beginning. If you check out this post and this post from Instapundit, you can see commentary from some of them on today's events. And if you want an example of the spot-on work by bloggers before this story broke, check out this post by CMC'er Jeff Jarvis back in July, 2003.

And by the way, have you ever checked out Instapundit's hit totals? Even on a big day, we don't quite compete with him. That's an understatement, I know. Revise: Even in a big day, we don't quite compete with a given hour for Instapundit. That's also an understatement (he averages about 4,000 hits an hour). I think it's a fair goal for this site to one day have more hits in a year than Instapundit had last hour. That is one influential fella (for example, check out here how one mention of some obscure CD by Instapundit raised it's Amazon sales rank to 430).

In Shake-Up, Dean Names Gore Ally to Run Campaign

New York Times

The effect of losing Joe Trippi is huge for the Dean campaign - much bigger than, say, Kerry's changes a few months ago. As far as I could tell, Trippi was the voice, the mind, and the spirit behind the Dean campaign. I remember reading this USA Today profile of Trippi and understanding the Dean campaign a lot better, so check that out if you want a feel for his power over the campaign. I don't know how they're going to adjust to such a big change so late in the game, and the exchange of power won't be smooth. Quote:

". . . after a year of building the Dean juggernaut, from a staff of seven to what he has often called 'the greatest grass-roots movement in the history of American politics,' Mr. Trippi refused to be sidelined, and walked out after what aides described as an emotional staff meeting here.

. . .

Mr. Trippi, described by friends as furious with Dr. Dean, spent the evening dining with staff members, before the 14-hour drive back to his Maryland farm on Thursday.

. . .

. . . losing Mr. Trippi — who may be followed by several top loyal aides — is risky, since he has become a sort of cult hero to the legions of Deaniacs at the core of the movement."

And his replacement makes Dean's whole "I'm an outsider" thing laughable:

"The selection of Mr. Neel, a former telecommunications lobbyist who was an aide to Mr. Gore for nearly 20 years, on Capitol Hill and in the Clinton White House, is a stark shift for an insurgent campaign powered largely by political neophytes whose main message is overthrowing the establishment. He is the ultimate Washington insider, not unlike like those Dr. Dean derides daily."

Whenever I hear "I'm a Washington outsider so I won't bow to special interests" (remember Bush did it too), all I hear is "I'm inexperienced, but that means I haven't sold out. Yet."

Also, check out this Washington Post piece about Dean and the media. It's interesting.

One more thing: The Dean-O-Phobe blog over at the New Republic is calling it quits. He thinks Dean's campaign is over - even if Dean keeps the delegate lead, other candidates will pool their delegates and give them to Kerry. Moreover, he feels Deanism, or "the belief that some combination of technology and Dean's charisma can somehow suspend all the known laws of politics, that liberals can wish away unpleasant facts about the American electorate, and that the failure to do so represents cowardice, betrayal, and the absence of principle," is a failed theory. I'll miss posts like this one:

"CAVEAT EMPTOR: Howard Dean, describing his credentials to be president to Diane Sawyer last night:

I am not a perfect person, believe me, I have all kinds of warts. I wear ... cheap suits sometimes, I say things that I probably ought not to say ... [minutes later:] Now look, I ... I mean, was it over the top? Sure it was over the top. Do I do things that are a little nutty? Sure I do things that are a little nutty.

Homer Simpson, describing his credentials to be Lurleen Lumpkin's manager:

Lurleen: Homer, I want you to be my manager.

Homer: Really?! Well, I should warn you, I'm not great with figures.

Lurleen: That's okay.

Homer: I make a lot of stupid decisions.

Lurleen: Nobody's perfect.

Homer: I did bad in school.

Lurleen: I didn't even go.

Homer: My personal hygeine has been described as..."

Chevron's Station

Let me begin by saying that Ben is kind to characterize Scalia's position in his speech last year as "no matter what Stevens said Chevron meant, he (Justice Scalia) knew better." What Scalia actually said was more like: "Justice Stevens doesn't have the slightest clue what Chevron means. He still hasn't figured out what he did, the old geezer." Let's try and figure out why Scalia said this.

The Chevron story continues with cases like INS v Cardoza Fonseca (the Fonz to his friends), 480 US 421 (1987). The facts are unimportant for our purposes, except to say that the INS and the lower courts disagreed on which standard was the best in asylum decisions under the Refugee Act of 1980. The text gets us nowhere.

Ok, so let's make our call right here: the agency and the courts disagree. Who wins? Remember, Justice Stevens said in Chevron that "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Easy, right? It's a clear rule, and it means that the agency wins. No problem.

Wrong. Justice Stevens felt in this case that there is a distinction between how a standard is applied and what the standard is. He says Chevron stands for deference to agencies for the former, not the latter - Courts are still free to use statutory tools to construe statutes regardless of what the agency thinks.

Scalia picks up on all this weirdness and notes that "[t]he Court first implies that courts may substitute their interpretation of a statute for that of an agency whenever, '[e]mploying traditional tools of statutory construction,' they are able to reach a conclusion as to the proper interpretation of the statute. . . .This is not an interpretation, but an evisceration of Chevron."

You see, for Scalia, Chevron means the courts won't play the he said/we said game with agencies - the agencies just plain win, so long as they don't interpret an HHS statute to mean that Tommy Thompson gets a lifetime supply of bon bons. Stevens would rather apply Chevron deference only when he can't figure out the statute himself. Like when you want to take a stab at putting that Ikea entertainment center (you know, "Kradk" or "Bjork" or whatever they call it) together, but you also want the right to give it up and have your much smarter little sister do it for you.

One more. In Young v Community Nutrition Institute, 476 US 974 (1986), there were two potential readings of the operative statute - either the bon bon guzzling HHS Secretary "shall, as he finds necessary, promulgate regulations" to do blah blah blah or "shall promulgate regulations" on blah blah blah, but can do so "as he finds necessary." The latter requires the Secretary to regulate, but he can do so with some discretion (as Zack from Rage put it: You say "jump," I say "how high"), while the former gives the Secretary discretion over whether to regulate at all (you say "jump," I say, "not right now, thank you, I just ate"). The agency wants discretion over whether to regulate at all, and says this is how it's interpreted the statute for a long time; Congress never complained. The majority rules, under Chevron, that HHS is entitled to make this choice.

Justice Stevens disagrees. He says both that the "intent of Congress" is clear, and that "to say that the statute is susceptible of two meanings, . . . is not to say that either is acceptable." Thus, the statute has no acceptable meaning, and yet the intent of Congress is clear. Don't ask. Building on this piercing logic, Stevens notes Chevron does not herald that "the singularly judicial role of marking the boundaries of agency choice is at an end . . . [t]he Court, correctly self-conscious of the limits of the judicial role, employs a reasoning so formulaic that it trivializes the art of judging."

I will bet you $100 dollars that when Scalia read the "formulaic" line, he laughed out loud. "That's the whole point!" he must have yelled - you know, from his leather chair in the smoke-filled room where he sits by a bustling fireplace with brandy and a pen, planting seeds of the conservative conspiracy dicta by dicta. But I digress. Scalia thinks Chevron took the mish-mashed inconsistency of previous cases and replaced it with a clear rule of deference. That Stevens fails to see this means that he fails to see what he did in Chevron - it's not the most cited case in the history of law because it codified old rules, added a small twist to recent cases, or did some other boring thing the Court usually does. This is why Scalia felt confident saying to 500 students and professors at Stevens' alma mater that ol' John Paul just doesn't get it.

To ponder on...

Friend of TNTM, Tom, sent out a fantastic list of quotes compiled last quarter. My favorites are from Professor Picker.

"Now you know enough to confuse yourself. That’s always a good spot to be in." How true that is.

"Widgets aren’t hot dogs, and hot dogs aren’t widgets, though I’m very skeptical of what goes into a hot dog." Again, how true.

As an aside, has anyone else noticed that at the Costco on Chicago's north side they have switched from delicious, juicy Hebrew National hot dogs to mealy, nasty Vienna Beef "hot dogs"? There's nothing I loved more than a tasty Costco dog... but now... it may have had something to do with the fact that the Costco is right next to the Vienna Beef factory thingy... maybe not. I can't say. All I'm qualified to say (and boy am I qualified to say it!), is that the new dogs are inferior.

Scalia and Stevens - An introduction

Last year Justice Scalia came to speak at the University of Chicago. During his speech, the main content of which escapes me at the moment, Justice Scalia stated that no matter what Justice Stevens said Chevron meant, he (Justice Scalia) knew better. Stevens, for what it's worth, actually authored Chevron, so we might assume that would have some superior interpretive position - sadly not. Chevron, incidentally, is available at 467 US 837 (1984).

The disagreement Scalia referred to goes to the theoretical underpinnings of Chevron (Chevron, in turn, deals with judicial review of administrative interpretations of law - and essentially says that courts should accept an agency's reasonable interpretation of an ambiguous statutory term that the agency administers - I know, it doesn't sound watershed, but it is).

I quote now a speech Justice Scalia delivered. First, in response to the "expertise" rationale offered by those who urge judicial deference Scalia remarks:

"The cases, old and new, that accept administrative interpretations, often refer to the 'expertise' of the agencies in question, their intense familiarity with the history and purposes of the legislation at issue, their practical knowledge of what will best effectuate those purposes. In other words, they are more likely than the courts to reach the correct result. That is, if true, a good practical reason for accepting the agency's views, but hardly a valid theoretical justification for doing so. If I had been sitting on the Supreme Court when Learned Hand was still alive, it would similarly have been, as a practical matter, desirable for me to accept his views in all of his cases under review, on the basis that he is a lot wiser than I, and more likely to get it right. But that would hardly have been theoretically valid. Even if Hand would have been de facto superior, I would have been ex officio so. So also with judicial acceptance of the agencies' views. If it is, as we have always believed, the constitutional duty of the courts to say what the law is, we must search for something beyond relative competence as a basis for ignoring that principle when agency action is at issue."

Scalia continues in his search for a theoretical basis for Chevron:

"If the Chevron rule is not a 100% accurate estimation of modern congressional intent, the prior case-by-case evaluation was not so either -- and was becoming less and less so, as the sheer volume of modern dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the "genuine" legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.

"If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known. The legislative process becomes less of a sporting event when those supporting and opposing a particular disposition do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer will be provided by the courts or rather by the Department of Labor." See Scalia, Judicial Deference to Agency Interpretations of Law, 1989 Duke L J 511.

Essentially, Scalia says that Chevron favors rules (and therefore certainty, clarity, rule of law, etc.) rather than discretion (also rather than constitutionality, separation of powers, expertise, or any other rationale). I think these quotes set up the debate nicely (even if showing my natural predisposition towards Scalia's point of view). What does Stevens think Chevron means? Tune in soon, as Brian highlights some Stevens dissents from post-Chevron cases.

Up and coming analysis

Readers - The TNTU team will soon be delivering a crack series of posts on administrative law, focusing mainly on Scalia, Stevens, and if Brian gets his way, Justice White. More on this new feature over the next few days. . . check back soon.

Love,
The That's News to Us team

Yeahs and Boos on immigration

Yeah! libertarians (kinda) at the Journal -- and Boo! annoying conservative stick-in-the-muds.

I don't have more to say than that. Arguably that indicates that I shouldn't say anything at all, but that's not my style.

Judge Says R. Kelly Must Avoid Jackson

E Online

"The judge's order in the Kelly case baffled both the defense and prosecution, which didn't request the stay-away-from-Michael move."

Yeah, aren't they way too old for this kind of thing?

Too old for each other, not injunctions, I mean.

Trailer watch.

In today's installment, be sure to check out the trailer for M. Night Shyamalan's newest sci-fi piece: The Village. Trailer here. The trailer looks pretty cool. Lots of people (whose analyses I'm too lazy to look for) think that Shyamalan is obsessed with the concept of belonging... Not having seen the newest movie, it's hard to say whether this will support that general thesis, but it appears that it will. Anyway, I always like his stuff, and this looks like it should be entertaining, and probably frightening too. I confess that I love being frightened at movies - I think it's one of life's little pleasures. Not literally a pleasure, of course, because being scared isn't fun - but I like feeling all my emotions, if that makes any sense. Being scared every now and then - it's all part of life, and personally I'd rather be frightened in a movie where no real harm is going to come to me (except The Ring of course). This is all part of my larger theory of experiences (and explains why I never take pain-relieving medication as well!).

From Jerry Bruckheimer's drek factory comes this stupid-looking epic, King Arthur. Trailer here. IMDB information here. The one redeeming feature may be that it has Ioan Gruffudd as Lancelot. Gruffudd stars are Horatio Hornblower in the absolutely excellent A&E series, IMDB info here. (If anyone wants to borrow my HH DVDs, they are welcome to.) Gruffud had a somewhat minor part in the Forsyte Saga as well (a decent miniseries, but not as good as other A&E productions). Pardon that frolic and detour - back to King Arthur, I should mention (to hedge my bets) that it may be an excellent movie... but I doubt it.

Also, a couple of days ago the trailer for the new Coen brothers movie, The Ladykillers, trailer here was released. I'm not as in love with the Coen brothers as other people, but the trailer looks interesting (and how often do you get Tom Hanks and Marlon Wayans in one movie?).

Anyway, there are other trailers available at Apple's trailer site.

I know some people don't like to watch trailers... if that's you, then, well, don't watch them. But I love the anticipation that watching the trailers engenders. Obviously it takes away something from the movie, but my total utility (as measured by my handy dandy util-o-meter) is higher in the aggregate factoring in the fun of anticipation.

Cline on Kucinich

"Stepping into the Dennis Kucinich rally at the University of New Hampshire on Sunday night, the first thing to hit you is the stench of male body odor. Not the 'man, it's hot on the dance floor, I think I'll take my sweater off' kind of odor, but the 'I use organic deodorant' kind."

The whole article, available here is in a similar vein. Worth a read only if you think that the highest purpose of hippies is to be the butt of jokes (I personally subscribe the this view, and I encourage our readers to as well).

Good Scalia quote

"It might be good English to say that the French Revolution 'modified' the status of the French nobility -- but only because there is a figure of speech called understatement and a literary device known as sarcasm." MCI v AT&T, 512 US 218 (1994). What a gem.

Clark Contrasts Humble Roots with Yale-Educated Rivals

Associated Press

I just realized that Bush, Kerry, Dean, and Lieberman all went to Yale for undergrad. Here are their years of attendance (I'm guessing based upon their graduation year):

Lieberman 1960-1964

Kerry 1962-1966

Bush 1964-1968

Dean 1967-1971

You know what this means, right? If you were at Yale in 1964, you had at least three future presidential candidates (and one future president) going to school with you. This also means that Bush and Dean were both there from 1967-68. I wonder if any of these guys ever took a class together. I know that both Kerry and Bush were members of Skull and Bones (see inevitable Dawson's Creek guy conspiracy movie here), but Bush didn't become a member until his senior year (1968), so their paths may not have crossed there.

Anyway, I'm certain either Claremont or Chicago will yield me some presidential classmates. Or at least one: co-blogger Ben. Some day in the future, the Jane Austin loving, hockey hating, Food Network watching, yet not homosexual men (otherwise known as "independents") of the world will unite, and they'll be looking for leadership. Or at least someone to talk to.

With Fanfare and a Grand Parade, Paris Celebrates France's Ties to China

New York Times

Only France wouldn't be ashamed to color the Eiffel Tower bright red for the event. But they do share a common love of stifling differences for the sake of order and conformity. So why not celebrate it! Going to have to stifle a little more dissent to pull it off though:

"As part of the country's 'Year of China' promotion, officials closed Paris' grand avenue, the Champs-Élysées, on Saturday afternoon for a huge parade dominated by a dancing dragon — the first time the avenue has been taken over by an intrinsically non-French event since German troops marched down it during World War II.

The parade, sponsored in part by China, included hundreds of Chinese citizens and thousands of Chinese émigrés living in and around Paris. The only things missing, though, were firecrackers, banned for security reasons, and adherents of Falun Gong, the spiritual movement that the Chinese government has banned. The group's request to join the festivities was denied."

Do you think the irony of the closing of the Champs-Élysées is lost on them? Oui.

Water birthing

As anyone who watches TLC's A Baby Story knows what the BBC is reporting here: water birthing is easier of first-time mothers. Unfortunately, A Baby Story watchers also know that going through many hours of labor naked from the waste down in a kiddy pool filled with stagnant water is, frankly, icky. Life is full of tradeoffs (this one, for better or worse, is one that neither Brian nor I will be forced to make).

Kazaa sues music industry...

In a fascinating turning of the tables, the owner of Kazaa has filed a counter-infringement suit against entertainment studios and record companies. See here. The article is short, but it states that the basis for the counter-suit is that Kazaa "invade[s] users' privacy and send[s] corrupt files and threatening messages." I'm not sure how that amounts to copyright infringement. As a matter of fact, I'm pretty sure that 17 USC § 106 (text is below) does not include anything that would support the counter suit.

§ 106.  Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
   (1) to reproduce the copyrighted work in copies or phonorecords;
   (2) to prepare derivative works based upon the copyrighted work;
   (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
   (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
   (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
   (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Alert: Dancing German Monster Thing

John, friend of That's News, sends this link to a disturbing :-) dancing monster type thing....

UPDATE: Also, check out John's article, "Crazy Libertarians get a lot right" located here -- it's not particularly amazing (sorry John), but has some great turns of phrase ("Republicans think the government should use tax money to fight drugs, homosexuals and Iraqis. Democrats think we should use it to fight Republicans and fund both universal health care and Al Sharpton’s hair care."). Well done, John.

Death penalty responses

My post received a couple of responses. Interestingly, Toby notes that there is at least one book detailing exactly the type of problems I hypothesized would be found, if they existed. Unfortunately, I thought they didn't exist. Score one for Toby.

This underscores the remark made by Apu the commentator -- perhaps I was too hasty in assuming I would have heard of cases of innocent executions if they existed. Score one for Apu.

"Xerox"

"Xerox" - coined from the Greek "xeros" ("dry") and "graphos" ("writing").

"Apple's diplomatic core"

This article appears over at CNET. It's interesting because it's about Apples, but also because the transformation Apple is undergoing is interesting in its own right. The question is one of interoperability (Mac / PC products) versus proprietary control (Mac products). Previously, Apple has gone the proprietary technology route - for example, you can only use OS X on Macs (too bad for PC users, since OS X is vastly superior to any Windows).

But, as the article notes, the change in technology's future from personal computing to consumer electronics has strained this business model. Thus, we see the development of interoperable hardware (and increasingly software as well). For cultish Mac users, this is certainly a big change. Again, it's an interesting study in business decision-making as well. Worth a read.

Adopting law

So I'm reading this unremarkable case, Cuker v Mikalauskas, 547 Pa 600, where the Pennsylvania Supreme Court states that "[w]e specifically adopt §§ 7.02-7.10 and § 7.13 of the ALI Principles." Now, the ALI is a fine institution, and I'm sure their provisions on the business judgment rule are top notch, and courts say this sort of thing all the time -- nevertheless, I find this sort of brazen legislating worrisome.

Question: Is it better to be brazen or stealthy when a court is legislating? On the brazen side, at least legislatures and citizens can see what the court is doing and take corrective action if necessary. On the stealthy side, at least the appearance of propriety aseparationion of powers remains (not sure that there is a structural separation of powers in the PA constitution, but I'm taking the principle here as a fundamental tenant of democracy). Maybe there's not much to recommend stealthy legislating over brazen legislating, so perhaps I should prefer this. Thoughts?

Blockbuster rents porn

At least according to CNN - see here. Could be an interesting case. I'm not really sure what the standard is for rented movies. If they were showing the movies on their premises then there would be a duty to seek and discover hidden dangers (which pornographic movies would presumably qualify as) as the customers qualify as "invitees." But, then, the movie wasn't shown on their premises. If rented movies were a sold good, then there would be strict liability for product defects (including, presumably, pornography on a children's video tape), as there is for any product sold. But, then this wasn't a sale - title clearly remains with Blockbuster.

Assuming there is a negligence standard, I'm not sure that viewing each movie would be cost-effective - fairly few people alter videotapes, after all. I'm sure some teenagers thought it would be a funny prank - and it did make national news - but, in reality, this is pretty idiotic. I guess at least they altered Home Alone 3 rather than The Little Mermaid, so maybe the demographics are slightly older - but really it's a pretty obnoxious thing to do.

The moral: Responsible parents buy DVD players for their children - if they love them. :-)

Agatha Christie - One published lady.

I enjoy Agatha Christie books. On the back of her books it often mentions that she has "over two billion" copies of books in print. This made me wonder... what would the volume of those books be? The following measurements are done using standard paperback versions - the kind widely available at Borders and such.

Well, I gathered ten of my books together and scrunched them up really tight -- 10 books measure 6.5 inches across. Each book is a little more than 4 inches deep and 6.75 inches tall. So for 10 books, the volume would be (6.5)(4)(6.75)=175.5 cubic inches or .10156 cubic feet. Now, she has two billion copies in print, so I mulitply .10156 by 200,000,000 = 20,312,500 cubic feet. Yikes.

By my calculations, if you were to take all of her books and put them on a regulation football field, they would form a cube over 400 feet high (Leah the math major says that it's not a cube, but a rectangular prism...) with a rectangular base 300 feet by 160 feet. Fascinating!

(Aside: My calculations were rought to begin with and got rougher with each successive estimate... nevertheless, 400 feet tall a reasonable ball park (no pun intended).)

Note the email...

You can now email us! Looks, over there, to the right --> and up! See?

Political compass

This is pretty cool... Better than normal tests that go left/right, this one goes left/right on social issues and economic issues. I hit a famous person squarely on the nose -- I'll post who in the comment section, so as not to spoil it. Test is here.

Kobe Bryant racism charge...

This allegation in the New York Times may be true, but it may not be. It appears that Bryant's attorney, Pamela Mackey, "suggested in open court Friday that the Los Angeles Lakers star may have been falsely accused of rape because he is black."

It turns out, reading the article, that Mackey actually said, "There is lots of history about black men being falsely accused of this crime by white women ... I don't think we want to get dragged down into this history any more than we want to get into the history brought up by the rape crisis center." (The crisis center was arguing that following a certain Florida case where the victim's medical history was introduced the number of reported rapes dropped - so the defense here shouldn't have access to certain medical records.) It really doesn't seem to me that Mackey makes the claim the Times attributes to her. Maybe she obliquely "suggests" (in the very broadest sense of "suggest") that there is some racial component -- and she may very well adopt that tactic later in the trial -- but it doesn't sound to me like she's doing that here.

Mackey is an odd character, certainly, and I wouldn't be surprised if in her vigorous defense she did "play the race card," but she didn't here, it would appear. I guess I find this somewhat frustrating for a couple of reasons -

First, the Times is obviously exaggerating (if not deliberately misleading) their readers -- something you would think they'd have learned not to do.

Second, this belittles an actual, genuine problem of interracial sexual attitudes by making them seem like a scam run by defense attorneys (since many people, upon hearing the Times interpretation of Mackey's comment, would laugh).

Third, the "summary" of the defense attorney's statements is more fuel for the fire of those who are predisposed to dislike the legal profession (who may read the Times account and view this as ridiculous lawyering).

None of that is clearly expressed, but hopefully you get the idea. I'm too hungry to elaborate.

Thomas Kinkade

It's almost too easy to take pot shots at Kinkade... But that doesn't make it any less funny.

Check out the Something Awful photo gallery of "retouched" Kinkade paintings. Some are dumb, but some are quite funny (there are 10ish pages, so lots to look at).

Hey, Nobody Noticed!

German paper Die Welt says Osama bin Laden has been captured, according to this United Press International report. This is what happens when the New Hampshire primary comes around, Powell officially recognizes that the French are annoying, and Captain Kangaroo dies - things get lost in the shuffle. Oh well. (from Opinionjournal)

Mars rover sending data again

CNN

Good news. NASA has everyone excited with this Mars stuff, so losing the rover would have been a big setback, and goodness knows NASA doesn't need more of those. Apparently they have another rover landing soon, but half the rovers = half the info by my count, and half the rovers = half the fun.

Student Sex Case in Georgia Stirs Claims of Old South Justice

New York Times

Since I'm in Georgia at the moment, I thought I should mention this local controversy - an excellent black student and high school football star in a mostly-white community is convicted of statutory rape and aggravated child molestation. His sentence is 10 years (the statutory minimum). The victim was a white classmate, and 15 years old; Marcus Dixon, the defendant, was 18.

The controversy surrounds whether Dixon's treatment was fair, or racially motivated. Quote:

"Mr. Dixon's lawyers argued an appeal on Wednesday before the Georgia Supreme Court, in which they presented Mr. Dixon's prosecution as faulty and his punishment as unusually cruel. Under state law, they argued, Mr. Dixon should have been sentenced under the lesser charge of statutory rape, which carries a maximum one-year sentence.

'This man should be pursuing his education instead of sitting in jail,' said his lawyer, David Balser.

. . .

On the eve of Wednesday's hearing, nearly 100 people gathered outside the state Supreme Court here, holding candles and singing, "We Shall Overcome." Speaking to the crowd, Dr. Joseph Lowery, a founder of the Southern Christian Leadership Council, did not mince words.

'If the young lady was black and Marcus Dixon was white, I don't think we would be here,' he said, his voice breaking with emotion."

Not so fast. If the prosecution was faulty, then I'm in agreement that Dixon deserves a new trial, and if the conviction was racially motivated, all the more reason to try and get things right. There are some signs this might be the case.

But if one's compassion comes from the fact that he's young, smart, and now will spend 10 years in jail, you must also believe he's innocent. Because if he really did rape that girl, he doesn't deserve any compassion. He received exactly what he deserved.

I just hope the people singing "We Shall Overcome" are doing so because they believe him to be innocent, and not because they believe that, if he's guilty, he's going to jail for 10 years because he's black. If he's guilty, he would be going to jail for 10 years because he raped a 15 year-old girl. In that case, the only person that we need to "overcome" anything is his victim.

California Democrats Face Grim Post-Mortem

New York Times

My old government professor, Jack Pitney, is beloved by journalists in need of a little color. Never more true than in this article:

"John J. Pitney, a professor of government at Claremont McKenna College in Claremont, Calif., who previously worked for the Republican National Committee, said Mr. Schwarzenegger had delivered 'a very strong punch to the face' of the state Democratic Party, which 'is still trying to find its legs.'"

'This is the new model of the Terminator, and they are not quite sure how to fight it,' Professor Pitney said."

Gotta love it.

2 Jewish Leaders Upset After Viewing 'Passion'

New York Times

I'm a little skeptical about these critiques. I don't think you're going to find an portrayal of Jesus' last hours in which the Jews come out looking too good. Except for Jesus and his disciples, that is. And I think that says a lot, actually - if someone where to truly come out of the movie thinking Jews were horrible people, they'd have to forget that Jesus is one. That's not an easy thing to do in a movie about him.

I think the message for any mildly-intelligent viewer would be that some Jews were bad people, and some Jews were good. Just like some Catholics are bad, some are good, some Americans are bad, some are good, etc. The fact that some people won't swallow this doesn't say anything about The Passion, but about how idiotic some people are. If we had to make movies around what idiots would think, Rollerball would be the norm.

I'm not arguing that these critics don't have a valid point about Gibson picking and choosing from the very worst interpretations of certain Jews' behavior - I'm not qualified to judge that debate. But whether Gibson did or didn't, some Jews from two millennia ago are going to look bad. But the movie might still be worth a watch.

Michael Moore

I detest Michael Moore. I admit that I saw Bowling for Columbine last year (with Brian), but I'm proud to say that neither of us was taken in by it. Rather, we left feeling manipulated and frustrated. I think the idea with that movie was you go in, sit down, watch, and let the anger sorta sweep over you. Then, in theory, you leave, angry at Republicans, the media, gun owners, big business (and pretty much any other conservative constituency). What a stupid movie...

Anyway, Volokh links to this site detailing some of the factual inaccuracies in Bowling for Columbine. See here. I haven't fact-checked the author's assertions, but he does a good job at least showing how manipulative the movie is. You can read more of the stuff about Moore here.

Blogging from Atlanta

So I'm in Atlanta this weekend. I've heard about southern hospitality, but I never thought I'd experience it first-hand right off the plane (this is my first time in the south). The people at Enterprise car rental were over-the-top nice. They had a person standing there with one of those boards with your name on it. I thought it was some kind of mistake. The guy on the shuttle to the cars was abnormally nice too. Maybe I've been in Chicago too long. Or Seattle. Or LA. Or D.C. Man, I've lived in a lot of places lately!

Another impressive part of Atlanta is Hartsfield-Jackson, the airport. It's arguably the busiest airport in the world (O'Hare in Chicago is usually considered the busiest, but apparently there's some dispute about this). It certainly seems bigger than O'Hare - there are 181 gates, beating O'Hare by about 15, and 6 big terminals shooting out from one side of the main terminal, rather than wrapping around it. The main terminal is really something - it has a big atrium shopping area, and was rather pleasant looking for an airport.

Also cool was Delta's "Compass" flight feature. It's this dynamic display on the plane's TV's during the last hour of the flight. It showed continually-updated gate information, information about Atlanta, trivia questions, and 3d views of the plane, telling us where it was compared to the airport while giving us data like how many miles away we were and how fast we were going. I know international flights commonly do this stuff, but it was fun to see it on a relative puddle-jump.

Anyway, anyone know what the must-do places are? Or, better yet, the cool stuff people don't know about? Utilize our new-fangled Haloscan commenting system and let me know.

Bargaining for Freedom, by Nicholas D. Kristof

New York Times

Kristof bought two Cambodian girls out of sex slavery. Sounds great, right? I thought so. Well, I hadn't thought of it this way (but Tyler Cowen did):

"As an economist of course I wondered whether buying slaves will lower net enslavement. I can think of at least two general mechanisms suggesting that Kristof's purchase will increase the number of slaves in the longer run, or at least not lower the number of slaves:

1. Slaveholders and brothel owners presumably hold profit-maximizing inventories. Depletion of inventory will lead to replacement under a variety of assumptions.

2. I suspect that Kristof, a Westerner, overpaid for the two slaves. Slave owners expect such higher prices in the future, which may lead to more slaveholding. Furthermore the cash flow may stimulate investment in more slaves. Even for firms in advanced economies, current cash flow predicts investment better than does real interest rates.

. . .

I would not advocate that Kristof resell his two women back into slavery, just to lower future prices. Nonetheless such economic considerations once again illustrate the gap between doing something to feel good about oneself, and actually achieving useful results."

I'd better check in with an economist before I do nice things anymore. I could really mess things up! Or I could just stop being nice. Tough call.

And in related news, CNN reports: Gephardt frees delegates.

Rehnquist Questioned on Cheney-Scalia Trip

CNN

Leahy and Lieberman asked "what 'canons, procedures and rules' are in place to determine when justices should recuse themselves from cases." The answer: nothing, beyond the federal statutes, because the ABA Codes of Judicial Conduct are just unenforcible guidelines (I discussed the Scalia situation and the federal statute, 28 USC 455 here) .

I've advocated a system in which the justices are allowed to recuse a collegue upon a party's request, perhaps on a majority or supermajority vote. This type of practice isn't unheard of in the federal system - I worked for a judge in the Central District of California this summer, and their policy is to have all recusal motions decided by a fellow judge.

Of course, the Supreme Court would probably balk at such a radical change in their practices - the justices are used to a great deal of autonomy, even compared to other federal judges. But as Constitutional officers in a nation in which no one is above the law, I think it's fair to ask the Court how they make decisions like this. If they don't have a system, I think it's also fair for Congress to request that they create one. Congress has the power to make a recusal rule for the Court, but I hope it doesn't come to that.

Dean Plans Return To 'Who I Really Am'

USA Today

Who were you before? Was that an act? I love how some of these candidates can just become a new person when the old person doesn't work. But hey, I guess it worked for Kerry. Not sure if it's a good quality for a president, however.

Chinese Move to Relax Severe Judicial Penalties

Washington Post

Speaking of the death penalty, now the benevolent Chinese government will give appellate review of death penalty convictions, and the police can't unilaterally place you in a "re-education through labor" camp (yep, that's what they actually call it) for 4 years. Hu Jintao obviously reads blogs.

Death penalty thoughts

Will at Crescat Sententia asks some interesting questions (and answers some interesting answers) about the death penalty.

My thoughts in response are two:

1) I'd disagree, however, on Will's point that we "once people are dead, we often stop looking [for information about their innocence." Between the constituencies that dislike the death penalty (e.g. liberal activists, some religious conservatives, abolitionists generally, etc) and those that would make their careers from discovering that an innocent person has been put to death (e.g. newspaper reporters), I find it hard to believe that there are innocent people who have recently been executed that we don't yet know about. It seems to me that even one case of an innocent execution would "prove the point" of so many groups and has the potential to make the career of some young reporter - if a case existed, with the potential benefit of discovery so high, I would guess it would have been found. That's just a thought, not sure though. And it's certainly not something I'd rely on.

2) And as for Will's last question, I'd simply posit that we as a society set a "cost" for murder (depending on how your view of imprisonment - as retribution, punishment, prevention, etc; any way you cut it, it's a cost). We don't want criminals to unilaterally modify that cost by killing themselves. Presumably, the suicidal imprisoned feel that they would be better off by killing themselves - that's exactly why we don't let them. We let criminals improve their lot a bit (e.g. by giving them access to a basketball court), but too much cost-cutting we can't accept.

The Bush Conspiracy Theory Generator

Check it out here. My conspiracy is that "George W. Bush caused the Cubs to lose to the Marlins in Game 7 of the National League Championship Series so that SUV owners could conquer Muslims." Thanks to Son of the Revolution for linking to this site, as well as clueing us in to where Dean gets his theories from.

Nintendo's Big, Bad Gamble

Official word came today of Nintendo's new portable system, the Nintendo DS. I should say upfront that I'm a Nintendo loyalist - if I'm going to buy a game system, I always buy Nintendo. They release the highest quality product, have the best proprietary games (good games from the other systems usually come out on PC), and are the most innovative company out there.

That being said, they've seriously lost touch with the general gaming public over the last 10 years or so. The Virtual Boy was a gigantic failure. The Nintendo 64 was a huge miscalculation - by not using a CD format, they lost out on tons of 3rd party games, all of which went to Playstation. This put them in such a poor position that they've struggled to bring 3rd party interest back for the Gamecube, which is a superb system. But even with Gamecube, they've failed to capitalize on both modern hard drive capabilities (unlike X-Box, which allows players to save enormous amounts of information for later playing) and the online market (another area X-Box was well-prepared for). Thus, it took an enormous price-cut just to stay in the running with X-Box and Playstation 2, but the consequence is that Nintendo is starting to lose money for the first time in its existence.

Meanwhile, the portable gaming end of things keeps Nintendo afloat. The Game Boy and the Game Boy Advance are an unqualified success - a bigger success than even the Playstation 1 and 2. Nintendo completely controls the market, as they have for 15 years, and continues to swat away competitors with little effort. The Nokia N-Gage is the most recent example. But Sony is readying the PSP, a portable system as powerful as a Playstation 2, with additional music and video support (the Game Boy Advance is comparable in power to a 1991 console system, namely the Super Nintendo).

This is the state of play as we enter 2004. Nintendo, though they won't admit it, are in a do-or-die situation here. They have a new console system (as yet unseen) and a new portable system (the Nintendo DS, we now know) coming out within the next 18 months. They can probably survive one failure, but they can't survive the failure of both. Better place your bets on the console, if you ask me.

This new system reeks of Virtual Boy-like overproduction with little payoff. Here's a description:

"There will be twin 3 inch TFT LCD screens of Game Boy Advance SP standard. The screens will be back-lit; the processors are confirmed as an ARM9 main unit, with an ARM7 sub-processor; the DS will be cartridge-based, with semi-conductor memory maxing out at 1 gigabit.

Games will be split into two fields of view, with one screen hosting the main game action and the other managing data and information. Nintendo of Europe confirmed this morning that the screens will be vertically aligned and flush fitting, this layout combining to make one larger screen. No control system was revealed."

The two screen idea is certainly innovative, but I don't feel it adds that much to the experience, and will make the system a bit unwieldy to hold. Sure, you won't have to hit pause to see information and such, and they'll probably come up with some interesting uses for the screens, but the power of the system just doesn't compare to the coming PSP - the Nintendo DS is at a 1996 console-level in terms of graphics, and it's competing against the 2001 console-level of the PSP. Perhaps even more important is the price will be fairly similar to the PSP: about $150 (PSP is looking to be $200 or so). I just don't feel the two screens will be such a advantageous feature that gamers won't mind playing less-advanced games graphically. As one market analyst put it:

"If Nintendo had released a portable GameCube, it would have rejuvenated GameCube development in the wider context. This way, the firm is a generation behind Sony, and is split across supporting three separate platforms, and will incur the R&D costs of developing an entirely new machine. It seems like a mistake."

I have to agree.

Commenting Feature Changed

We're now using Haloscan like the rest of the civilized world. That is, unless somebody recommends something better. As long as Haloscan works when the site is busy and doesn't periodically delete all of our comments, I won't complain.

More lawsuits filed by RIAA

See here for more details.

Brian was right?!

Is this what Brian predicted?

Pitzer College: A Bunch of Loons

My esteemed co-blogger and I attended Claremont Colleges (different ones, mind, but that's another story). Coincidentally, we were just discussing how crazy many of the students at the other colleges were. The Claremonts are an eclectic mix, to be sure, but despite the rampant eccentricities, Pitzer students always stood out. I wish I could say they stood out for their intelligence, curiosity, or what have you. Really they stood out for their "deeply held commitment to improving society." They seemed to express this desire mostly by smoking pot and not showering. Also, they occasionally stood up to The Man by wearing $150 Birkenstocks (which, of course, synergize with the not showering thing -- nothing is as Bohemian as stinky, dirty feet!).

Anyway, this op-ed, ably made fun of here is symptomatic of the Pitzer culture. I hate to bandwagon, but having seen odd Pitzer antics at work for four years, I can't help but chortle.

I have to sign out now -- but maybe I should take one or two more pot shots (no pun intended). According to its website: "Pitzer College believes that mastery of a subject makes informed, independent judgments, and so requires students to complete a major." Even excluding the fact that the sentence makes no sense (how does "mastery of a subject" "make[] informed, independent judgments"? I think the sentence may be missing a direct object somewhere but who knows?), what does this say about the educational experience? To me it shouts: "Bare minimum education standards! Come here, smoke pot, take 'interdisciplinary' classes, wax poetic about social strife, graduate." What is it with interdisciplinary classes anyway? You'd think (if you'd never taken one) that they would be doubly hard. But such as not been my experience. Thoughts on that?

Now of course what I've written isn't entirely fair (what I write rarely is), and I know a slew (well at least one) of smart people who went to Pitzer. That said, I believe their success is in spite of the atmosphere, and certainly not because of it. I have no larger point, except that Pitzer's new stance is just ridiculous. Brian? Thoughts?

Microsoft Compliance Report

The Department of Justice today released a "Joint Status Report on Microsoft's Compliance with the Final Judgments" available here. Mostly the report deals with the Microsoft Communications Protocol Program (MCPP) and the government's concern "that the current licensing program has thus far fallen short of satisfying fully the goals." The government still contends that "the development efforts of the current licensees are not likely to spur the emergence in the marketplace of broad competitors to the Windows desktop. To date, the MCPP appears unattractive to potential licensees with well-defined plans to build products that could enable software on servers to fully utilize the connectivity to the Windows desktop..." Apparently the MCPP license is 50 pages long with complex rate structures, discouraging further licensing. Anyway, if you haven't been following the antitrust case against Microsoft this probably isn't very interesting -- except perhaps you get a flavor for how slow-going it is. Remedies are hard to implement is perhaps the lesson of the day. But it's fun to watch the law in action (obviously I use the term action very loosely, as you can tell if you read the report).

Look before you leap

Professor Sunstein mentioned in class today this article about messy offices and this letter to the editor:

"...Professor[] Sunstein['s] pigst[y] truly disgrace[s] the University ... As for [Sunstein and others], if someone can't find their work, they probably aren't doing any."

That's a bit of an odd editing job I did. Read for yourself here. Anyway, Sunstein thought it was funny that someone would write to the magazine complaining that he wasn't doing enough work. Judging by his ... generous publication volume which includes more books than others write articles, I'd say the letter to the editor missed the mark. On the other hand, maybe the letter is correct which would shore up Brian's theory.

Look before you leap.

Kozinski Quotables

From his dissent in Jahed v INS:

"The question in this case is, in the immortal words of Humpty Dumpty, which is to be the master—that’s all. When it comes to the granting of asylum, Congress has said the BIA is the master. The statute provides it, the other courts of appeals recognize it and the Supreme Court keeps reminding us of it. But to no avail. Maybe there’s something in the water out here, but our court seems bent on denying the BIA the deference a reviewing court owes an administrative agency. Instead, my colleagues prefer to tinker—to do the job of the Immigration Judge and the BIA, rather than their own.

. . . We know such things much better than the IJ and the BIA, so we’re going to find the facts ourselves. But, isn’t this what we got slammed for just last Term? Well, never mind. The government can’t bother the Supremes every time we go over the top, so it’s a fair bet that if we keep marching to our own drummer we’ll mostly get away with it."

Judge Cassandra, I mean, Kozinski, has been making these arguments for a long time, but few in the Ninth Circuit listen. He's a little more direct here, though - accusing Judge Trott (a Reagan nominee) of defying the Supreme Court because he thinks he can get away with it is no small thing.

I'm not sure if Judge Trott deserves Kozinski's charge, but it's certainly true of other judges on the circuit. When you have an ends-based judicial philosophy, you're going to have to stretch sometimes to get what you want. Republican judges are guilty of this too - Judge Kozinski in takings cases, for example. But the Supreme Court hasn't given the same signals on takings as they have on agency deference, and at some point "distinguishing" around Supreme Court cases will just become nihilistic. Perhaps Ninth Circuit judges should ask themselves "what would the Supreme Court do?" along with "what didn't the Supreme Court say?" and take the former into account at least as much as the latter when coming to a result. (from How Appealing)

Imperfect credit markets

A friend of That's News To Me (yes, we have friends too!) writes:

"Here's an interesting idea.  Basically the company tracks the timeliness of your rent payments and then sells this info to the three major credit bureaus and loan companies as a supplement to your credit score.  Eventually the firm hopes that rent payments will be included in your FICO score.  I had never even thought about the fact that paying rent on a timely basis has no impact on your credit score, but paying a mortgage on time does."

Check out the website here.

I wonder if many people will volunteer for the service. I also wonder why the credit agencies don't look at rent payments anyway -- it seems like it would exclude lots of lower income people from building up good credit... You would also think that building managers would refer people to services like this, since it increases the costs of non-payment (and therefore, presumably, there would be fewer delayed rent checks).

Companies like PayRentBuildCredit.com could rectify an important inefficiency in the credit market (something economists always like) if in fact there was no rent-to-credit translation service before.

Iowa Caucus Roundup

Yeah yeah, so Kerry got the surge he requested. But the way he requested it was so creepy:

"'Do you like the surge?' Kerry hollered at the Sanford Community Center. 'Are you ready to make more and more surge and a surprise on Monday?'"

The mostly-incontinent crowd obliged him immediately. As for the "surprise," don't even ask.

Gephardt's gone, as was expected if he didn't win or come close to it. Quote:

"'Life will go on because this campaign was never about me,' a somber Gephardt told supporters . . ."

Probably wouldn't have hurt to make the campaign about you, Dick. Perhaps Iowans wouldn't be saying things like this:

"'I thought he had died, so when he ran again I was surprised,' said Nancy Trotter, 53, a Des Moines attorney who was one of 20 likely caucus-goers gathered last week by pollster Frank Luntz to assess the race."

And she's an attorney!

Speaking of people long thought dead, Clark received the endorsement of George McGovern. This makes Clark a viable contender in the race for the most endorsements by has-been Democratic presidential nominees. Be sure to listen to McGovern closely, Wesley.

Edwards, who is my favorite nominee (after Kucinich of course), did well. Perhaps the endorsement by the Des Moines Register made the difference. We all saw how stunning and insightful the Register's crew was during those last two debates, so it's easy to see how informed readers like attorney Nancy Trotter, 53, were swayed.

I'm sure Dean now maintains that Iowa doesn't matter, and that he never said otherwise. If you're not a doctor, you wouldn't understand. Surprisingly, the Mosely Braun endorsement, his valiant defeat of Sharpton in the D.C. protest primary, and his wife's sudden interest in his campaign didn't make a lick of difference.

Who's left? Lieberman only captured Iowa's New Republic readers, but then again, he wasn't trying. Sadly, Kucinich was. Kind of. And Sharpton, clearly a front-runner coming off of his aforementioned second place finish in D.C., must be disappointed. Better blame it on Steven Pagones.

1000 Hits and a Few More Links

Today we reached 1000 hits, which is very cool. Not cool if you're, say, Howard Bashman, because he gets that many on a bathroom break. That is, if Howard's actually human, though he seems to be in this video. Anyway, thanks for reading.

Oh, and extra thanks to Larry Solum for his kind greeting, and to Greg Goelzhauser for linking to us.

Michael Jackson proves his innocence!

According to IMDB's gossip page:

Jackson Denied Child Molestation Under Hypnosis – Says Gellar:

"He answered me under deep hypnosis that he had never touched a child in a sexual way. He said - and here I'm using his exact words - 'my relations with children are very beautiful.'"

Efficient contract avoidance

Will posts about contracts and asks why contracts that make people better off often never materialize.

An interesting question. University of Chicago Professor Lisa Bernstein asks a similar question about the diamond industry in New York: Why the prevelance of orthodox Jews?* The answer, she writes, is that the orthodox Jewish community faces much lower transaction costs by opting out of the legal system. They operate with a high level of mutual trust, which in turn lowers transaction costs, allowing members of that particular group to operate at costs at which unaffiliated merchants cannot compete. Thus, a partial answer to Will's question may be not contract aversion, or transaction costs but actually a rational preference. The contract may make people better off for that single transaction (the one that goes bad), but overall it decreases utility. Under certain circumstances opting out of private law arrangements that require resort to courts for enforcement is efficient. It's tempting to criticize this thought process ex post, but ex ante, if parties do not know which engagements will go sour, they will choose to operate in order to maximize the expected value of the sum of the interactions.

This is not an isolated phenomenon. Parties typically rely on extralegal enforcement, not out of transaction costs and regardless of the underlying legal rule. Sometimes it's just much more efficient. For example, it may not really matter what the legal rule is that attaches to corporate management's liability for accounting fraud because reputational consequences are far more powerful than any punishment offered by law. (Not really, of course, as Ken Lay can attest. But hopefully the point is somewhat clear.)

This is somewhat more difficult to argue with regard to marriage, especially because marriage is not (usually) a repeated event... Anywho, those are my thoughts on the subject.

*See "Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry," 21 Journal of Legal Studies 115 (1992) (not available on Lexis, nor on Westlaw, but available through HeinOnline, I believe, if you are an on-campus student). Also discussed in Epstein's Simple Rules for a Complex World.

Kucinich's New Strategy

Since I'm the leading (only?) online source for news on Kucinich, I feel it's my duty to report on him in Iowa. From his personal life to his common sense political ideas, I've been with Kucinich from the beginning.

But now things might be coming to an end. Kucinich wants his people to vote for Edwards in the unlikely event he can't garner 15 percent (the threshold number to maintain a viable voting group) of the vote in a given caucus. As National Review's Stanley Kurtz puts it:

"I find this incredible. But that’s because I find the Kucinich candidacy incredible to begin with. I suppose Kucinich is telling his supporters to go to Edwards in hopes of preventing them from going to Dean, their natural second choice. This does make sense if Kucinich is trying to prevent Dean from winning, thus taking command of the left and effectively ending Kucinich’s candidacy. But the Kucinich candidacy doesn’t make sense in the first place."

Well, it doesn't make sense to The Establishment, Stanley. I'm sure this would make perfect sense if you were high, like all of Kucinich's supporters. Next thing you know, Kurtz will claim The Rocky Horror Picture Show doesn't make any sense either.

Illegal downloading on the rise

According to this article illegal music swapping is on the rise again (although is still lower than before the RIAA initiated law suits).

Why the uptick?

"For one, he said waning media coverage of lawsuits could have something to do with it. Even though the RIAA continues to file lawsuits, reporting of the issue by major consumer media has dropped dramatically from what it was in the months leading up to the September subpoenas.

"Another possibility is that this increase is simply a reflection of traditionally high interest in music during the fourth quarter. Approximately one-fifth of music sales generally occur in November and December, according to NPD.

"Crupnick also noted that in late October, several high-profile legal music downloading services were launched. Some people may have been checking out the illegal peer-to-peer sites again to compare music lists with what's now being offered on legal sites, he said."

I recently read a draft of an article by Mark Lemley who estimated that around 900 law suits would be sufficient to curb downloading. Doesn't look like it. Lemley's larger point is that we need to be careful in shutting down peer-to-peer services, as they may have untold benefits that we forego. I'm not sure I buy this -- we can never really predict all the consequences of a legal rule -- and I question whether we should suspend normal legal rules simply because we're dealing with a new technology which may produce social benefits (but it's something to think about) (obviously there's lots more to say on this, but I leave that to Brian).

I wonder though whether additional sets of RIAA law suits will have a greater impact. (Although, actually, we're kinda already on set #2.) The downloader psychology might go something like this: "Uh oh, law suits ahead. Better be careful." Two months later "Whew, I didn't get caught. Time to start downloading again." But as the RIAA launches more suits, I wonder if downloaders will begin to perceive RIAA actions as a dynamic, ongoing risk rather than a one-time deal (that if escaped would leave them free to download more). Time will tell, I suppose.

Grover

I came across this article in The Nation talking about Grover Norquist. The article is somewhat dated (4/01), but still interesting and considering the source, impartial. Lots of fascinating tidbits about Grover.

I love that they compare him to Nader -- I guess that's so the readers will be able to relate.

Which is the sillier name: Grover or Ralph? Probably Grover -- but then Grover has an interesting quality to it -- so silly that it's almost cool. Can't say that about Ralph.

An...err... interesting writing competition

I'm sure that many (if not all) of our readers will be submitting to this writing competition.

The prompt: "In keeping with Daniel Singer's thesis that the promise of socialism remains the last best hope for humanity and civilization,The Daniel Singer Foundation invites submissions for the 2004 prize, to be awarded for an original work of not more than 5,000 words exploring the fundamental question: What Is the Soul of Socialism?"

Enough said.

U Chicago Law Clinic Victory

The Mandel Legal Aid Clinic reached a $500,000 settlement with the City of Chicago this week. I guess the Chicago police raided a basketball tournament and searched everyone there. There's probably a lot more to this story, but whatever the merits of the case, congratulations to my 20 classmates who surely worked very hard on this project. (from Paper Chase)

Trailer Watch

I've often thought that Hugh Jackman and I have lots in common - dashing good looks not being the least of our similarities. I'm actually quite jealous of Hugh. If I were going to pick a screen name, Hugh Jackman would be at the top of my list. "Hugh" in and of itself is not a great name -- but it in some sort of lingual chemistry it becomes phosphorescent when combined with "Jackman." What an awesome name. Plus, you can parse it up to make it even sweeter: Huge Ackman! Anyway, now Hugh has a new movie coming out. Looks pretty sweet.

Also, we have the re-release of The Battle of Algiers an excellent movie, if you've not seen it. There's also a new remake of The Stepford Wives trailer here, with IMDB on the original here. William Goldman, the screenwriter behind the original is nothing short of fabu. Frank Oz, director of the remake hasn't done much in terms of directing, but what he has done is generally enjoyable (even if not cinematically powerful), including Dirty Rotten Scoundrels, Bowfinger, and What About Bob? All comedy classics, I think.

In the clever concepts category is Sky Captain and the World of Tomorrow. Not really sure what to make of this, but it appears to be a "futuristic" movie created from a vision of the future 50 years ago. Of course, I could be wrong about whether that actually is the concept, but that's what it looks like to me.

Finally, The Girl Next Door looks idiotic - that said, the premise may be irresistible (Boy meets girl, boy likes girl, boy gets girl, girl turns out to be a porn star).

Michael Moore: 'We're going to have the best chance with Clark'

CNN

Wolf Blitzer interview with Michael Moore. Check out this part:

"BLITZER: What do you have against Joe Lieberman?

MOORE: Well, he's running in the wrong party. Lieberman is kind of like a liberal to moderate Republican. You know, he's Bush-light. And God bless him, but he just doesn't really belong in this party."

As I said before, the Democratic party needs to figure out what it is. Is it the party of the Michael Moores or of the New Republic? It doesn't seem good at being both.

I mean, when was the last time a Republican said, "our so-and-so presidential candidate should really be a Democrat." Even John McCain wasn't susceptible to that critique - the conventional wisdom was that he would go independent, if anything, because he was too fiscally conservative to be a Democrat. In fact, the other two Republicans who did leave the party within the last 40 years (Bob Smith and James Jeffords) both became independents, not Democrats (Smith rejoined the Republicans a few months later). Meanwhile, Strom Thurmond, Phil Gramm, Richard Shelby, and Ben Nighthorse Campbell all switched from Democrat to Republican (and Campbell shows it's not just a southern thing). Only Harry Byrd Jr. went Democrat to independent.

All of this brings me to a tentative conclusion: the Democrats may have a bigger tent for the public, but the Republicans offer a bigger tent for politicians. Moderate Republicans just wouldn't feel comfortable in the Democratic party, because they wouldn't be sure what they're joining. With the Republicans, you basically know what you're getting (the ol' less taxes, strong defense, pro-business routine), and, as Tom mentioned in a comment to my previous post, the Republicans seem adept at coopting politicians who believe in some, but not all, of the party's principles. Thus, Republicans are better at embracing politicians at the margins. Certainly Jeffords is a counterargument to this point (he felt the party ignored moderates). But the fact that Jeffords only felt comfortable caucusing with the Democrats, not joining them, supports my larger point that the Democratic party has serious identity problems. They need to see a psychiatrist. What's Jim McDermott doing these days?

Cass-piracy Theories

So Ben has now outed us - we work on the top-secret Chicago Judges Project. It's so secret, it has a website without our names mentioned anywhere.

So anyway, I'm sure all of you are wondering, how does Cass Sunstein do it? He's the most cited legal scholar in the nation, he writes a book a week, he runs this project, and he's a nice, funny guy. Well, everyone has a theory on how he pulls it off (yes, even you, even if you've never heard of him). Here's mine:

Elves. Or as Cass likes to call it, "outsourcing." They work behind the ceiling-high piles of stuff in his office. With few other opportunities for gainful employment in life, they're perfectly content to write on the nondelegation doctrine, moral heuristics, and the legal rights of gorillas. I know, I know, you should've guessed. Why would a famous professor follow up a book on behavioral economics with an unauthorized biography of Verne Troyer? It all makes sense now, doesn it. So go to sleep. I should've a long time ago, clearly.

Airline Gave Government Information on Passengers

New York Times

I smell a class action. I see class actions everywhere now that I'm taking a class action class. Prepare for false contrition and coupons galore.*



* Note that this post is in no way a comment on the litigious nature of our society, the non-litigious nature of our society, the state of lawyers, the law, equity, the common law, or the uncommon law (admiralty). The article does not say anyone is pursuing a class action, plans on pursuing a class action, or has any class whatsoever.

Fhew! Staved off the Curmudgeonly Clerk for now.

Cheney Hunting Trip With Scalia Raises Impartiality Questions

Los Angeles Times

Another juicy Scalia recusal issue. Since I opine on recusal issues from time to time (it was the topic of my senior thesis, which you can read a rough version of here), why stop now?

The article mentions that the "code of conduct for federal judges sets guidelines for members of the judiciary, but it does not set clear-cut rules." That's partially true, but judicial "code of conduct" is distinct from 28 USC 455, subsection (b) of which sets down some pretty clear rules.

Unfortunately, Scalia doesn't fit into any of these, so were left with section (a), which states that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Interestingly, Justice Scalia himself wrote the majority opinion in the last case examining subsection (a): Liteky v United States, 510 US 540 (1994). (Yes, note the Maroonbooking, how exotic). He strengthened the rule that impartiality under section 455 generally must come from an extrajudicial source, not from, say, prior judicial experiences with a party.

However, an unwritten rule also dominates this area: it doesn't really matter that your "impartiality might reasonably be questioned," if it's questioned because of personal wisdom gained from past experiences. For example, in Laird v Tatum, 409 US 824 (1972), Justice Rehnquist's potential bias came from work experience in the Nixon administration. Since we want judges with experience in the issues they adjudicate (or so the argument goes), the section 455 standard is often sidestepped if the Justice's situation is similar to Rehnquist's in Laird, where he worked on military issues in the Nixon administration closely related to the case before him. As Rehnquist put it, if section 455 demanded recusal from those with personal experience in certain areas, the perfect judge would be a "tabula rasa": unbiased, unopinionated, uncontroversial, and uninspiring. You know, like the opposing party's "perfect" judicial nominee.

With that caveat, however, the subjective "impartiality might reasonably be questioned" standard is in play, and the Scalia/Cheney situation is a good candidate for its application. Scalia's potential bias comes from his personal and on-going friendship with Cheney. It reminds me a bit of the Burger - Nixon relationship, only less egregious (Scalia presumably isn't advising Cheney on policy matters). Many scholars argue that these friendships are traditionally ok so long as they are put on hiatus while a court proceeding is pending. I disagree - the nature of their relationship hasn't changed just because one is now a party to a pending case and they won't see each other for a few months. After all, the bias at issue isn't that Cheney will talk to Scalia about the case (that's a cut and dry recusal situation), but that Scalia's bonds with Cheney will subconsciously influence him. That's why the standard is so subjective, and takes the view of a third person examining the situation. If this outsider might "reasonably question" the Justice's impartiality, it's time to pack your bags. I think we have a chorus of people viewing this situation with reasonable skepticism (as opposed to partisan motives), so the answer is obvious to me. Justice Scalia, time to exit stage left. Or right, if you prefer.

Rumors of Castro's Death Sweep Miami-Dade -- Again

Miami Herald

Folks from southern Florida aren't particularly adept at distinguishing between dictators, presidential candidates, neighbors, and the like, so you can't really trust this one yet (Exhibit A: Pat Buchanan, who was both a presidential candidate and a potential dictator). Plus, you know how eager old people are to tell stories about who died. (from The Corner)

What A Day!

Today we had no less than two links from sites people actually read. Crescat Sententia linked to us here, and Howard Bashman linked to us here concerning our work for the Chicago Judges Project.

Thanks guys!