Wednesday, March 31, 2004

Computer Trouble

Once again, my computer is out of commission. Put another way, the computer is no more. It has ceased to be. It's expired and gone to meet its maker. It is a late computer. It's a stiff. Bereft of life, it rests in peace. If I hadn't lain in down in my backpack, it would be a monolith, or perhaps a paperweight. It's rung down the circuitry and joined the wires invisible. It is an ex-computer.

So I might not have many posts for the next few days.


I've found teachers and my fellow students often say things that are amusing, even if only out of context. Here are some of the better quotes I heard in Winter Quarter:

Frank Easterbrook: "Maybe the chairman of the SEC would make a decision just so he could be invited to more of Katharine Graham's parties." An especially compelling reason for making a decision one way or the other, especially when you consider that Ms. Graham is dead. Sorry, Your Honor.
Also Frank: “You’ve got the 7th Circuit on one side and the 9th Circuit on the other side. What could be more simple? Our job here is not to use those easy cues.”

Randal Picker: “This is important, actually. So was my discussion of ‘Finding Nemo’.”
Picker: “Antitrust conspiracies are always held in smoke-filled rooms. That’s why antitrust conspirators don’t live very long.”
Ditto: “If I told you Landes and Posner did this in an article, how does that affect what you think about it?”
Same: “You live here. Everywhere you want to get to is there. Just like Hyde Park.”
Yep: “Isn’t Jesse Helms right? Isn’t that a good starting premise?”

Cass Sunstein: “Would it be acceptable for Congress were to say ‘We’re going out of business for a year, and appoint to the University of Chicago faculty the power to appoint laws for the next year?” Student's response: “I hope not.”
Cass: “I must confess I’m pondering over a statement by Britney Spears’ ex-husband. When asked if he would like to be married to her permanently, he said, ‘Yes, we’re just friends.’ I’m not sure if that’s profound.”

If you want the rest of them and didn't get the whole list, just ask.

Tuesday, March 30, 2004

The Grade Rant

Those who know me find it difficult to avoid my self-indulgent and slightly condescending speech about what is important about school and what isn't. How's that for a sales pitch! But a recent David Brooks piece brought it to mind, and blogs are an inescapably self-indulgent enterprise anyway. So here it goes. Read on at your peril.

My general philosophy is that you should never confuse "getting good grades" with being a good student. Good students are people who like to learn things and become interesting people as a result. These students should be contrasted with people who don't try, don't care, and just get by.

Good students should also be contrasted with neurotic types whose life will be a failure if they don't achieve X, whether X provides an interesting or rewarding experience for them or not. These people may know a lot, and have a great resume, but they aren't interesting. In fact, they're quite difficult for interesting people to talk to. Law students know this type well: by the end of school, they'll be able to make mention of any doctrine, case, or article you can think of, but you'd never want to sit down and have a nice dinner with them. Subjects of conversation could never be too attenuated from grade-related endeavors. Their intellectual curiousity only extends as far as their assignments.

The lesson is that grades aren't ends, and you shouldn't think of them as valid means to an end either. They're just an externality of learning stuff. Thus, if you are interested in the subjects you take, hopefully you get the side-benefit of good grades, and the opportunities that come with them. But never forget that grades are not the point - the point is that you learned things and became a more interesting person. And if the grades don't come as expected, well, don't dwell on it too much. You must avoid at all costs making choices based upon your marks - avoiding that Corporations class because its low curve places your clerkship resume at risk is a sorry approach to your education. You've got to see the forest through the trees. Opportunities will come to good students, though they might not be the "right" opportunities for the status-symbol-oriented. Plus, people with good character will like and respect you. Their friendship, combined with your interests, will make for a far better life than your grade-obsessed peers'.

That's my speech. A little annoying, I know. And not a little hypocritical, since I don't always live up to its tenets myself. But I still think the general principles are sound.

Given this rant, I enjoyed David Brooks' op-ed in the New York Times yesterday. Here's a snippet:

"Many of you high school seniors are in a panic at this time of year, coping with your college acceptance or rejection letters. Since the admissions process has gone totally insane, it's worth reminding yourself that this is not a particularly important moment in your life.

. . .

You learned to study subjects that are intrinsically boring to you; slowly, you may have stopped thinking about which subjects are boring and which exciting. You just knew that each class was a hoop you must jump through on your way to a first-class university. You learned to thrive in adult-supervised settings.

If you have done all these things and you are still an interesting person, congratulations, because the system has been trying to whittle you down into a bland, complaisant achievement machine.

But in adulthood, you'll find that a talent for regurgitating what superiors want to hear will take you only halfway up the ladder, and then you'll stop there. The people who succeed most spectacularly, on the other hand, often had low grades. They are not prudential. They venture out and thrive where there is no supervision, where there are no preset requirements."


In 12th Book of Best-Selling Series, Jesus Returns

New York Times

"Like Christian booksellers across the country, Bob Fillingane is doing everything he can to prepare the way for 'Glorious Appearing,' the climactic installment in the 'Left Behind' series of apocalyptic thrillers that goes on sale tomorrow.

Mr. Fillingane, owner of Lemstone Books in Hattiesburg, Miss., has arranged television, radio and newspaper advertisements and even a marquee over the front of his local mall, and next week he will hold a book signing by the authors, Tim LaHaye and Jerry B. Jenkins, on a Bible Belt bus tour from Spartanburg, S.C., to Plano, Tex.

Not that 'Glorious Appearing' needs his help, Mr. Fillingane said.

'I really believe that there is a blessing on this series from the Lord,' he said. 'Just like with the Passion movie, it is all part of the warning we get before Christ returns.' He added, 'Many people have asked me, Do you think they will finish the series before Christ comes?'"

If Jesus does come, does that mean they won't make another god-awful movie? If so, count me in.

Monday, March 29, 2004

A Bohemian Mixer, Anyone?

Tonight I ran across Microsoft's home buying guide. You can enter your zip code and Microsoft will tell you what your neighborhood's make-up is, as well as what the typical resident is like. Apparently, Hyde Park is predominantly filled with "Bohemian Mixes." Sounds like a type of feline. Check out what we are:

"Bohemian Mix is America's Bohemia, a truly integrated mixture of executives, students, actors, and writers who live high-rises. This educated group is dominated by singles, and has the nation's second lowest index for children."

Other categories include "Young Influentials," "Inner Cities, ""Winner's Circle," "Kids & Cul-de-Sacs," "Blue Blood Estates," "Countryside Acres," and "Millionaire Estates." Ok, so those last two are from the board game Life, but you get the idea.

Now check out what Microsoft thinks we in Hyde Park are like:

Go to bars/nightclubs
Play billiards/pool
Do painting, drawing
Use an ATM card
Have a VISA card
Own a Mitsubishi
Drink bottled water
Own a Volkswagen
Buy $100+ jeans
Buy lots of film
Watch Seinfeld
Watch Star Trek-Voyager
Read Travel & Leisure
Read Self

This all gives me a vaguely sick feeling. Still, I'd better get that Mitsubishi . . .

I'm Back

But not ready to post yet. Besides this post, that is. Isn't that enough?

Updating Bundling

Alex Tabarrok of Marginal Revolutions here explains better the point I tried to make about double marginalization a few days ago.

MR's Tyler Cowen also links to lists of the top ten most successful kleptocrats and influential businessmen.

And it's back to work for me.

Wednesday, March 24, 2004

Ah, Microsoft

Thanks to Ben, I noticed this post from Prof. Bainbridge on Microsoft and bundling. Bainbridge argues that bundling is anti-competitive and serves to reduce innovation. "Preventing Microsoft from bundling [stuff] into the Windows operating system is critical to preserving competition and promoting innovation." Except that not-bundling may also serve to reduce innovation and kill competition.

Computers and their peripherals are one of the clearest examples of network effects (telephones are probably the best; who'd want a one-phone phone system. sure, you could talk to yourself, but you don't need a phone to do that), where you see intense competition to enter into a market and then once you reach sufficient size you enjoy a monopoly. The suggests that you'll see not just a common OS, but also a common browser, probably a common media player, a universal word processing program, and etc. Microsoft's bundling of a browser, a media player, etc. into their monopoly OS merely helps to ensure that those monopolies are in the hands of Windows. Is this necessarily a bad thing? Bainbridge certainly seems to think so, but it's not at all clear to me that he's right. The literature on double marginalization (a.k.a. the Cournot effect) suggests that if you're going to have a monopoly in two linked products, then it makes a great deal of sense to have them be tied to one supplier, to avoid the problem of two monopolists seeking monopoly rents and thus increasing price and reducing output (the two things that are anathema to antitrust authorities).

Additionally, Bainbridge's flat opposition to bundling seems to say that we have reached the ideal state of the Operating System, and nothing may be added to it, ever. Perhaps he doesn't mean it quite so strongly, but some people do. This assumes, however, that we have reached the ideal state of the Operating System, and it's not at all clear to me that we have. As I noted in a previous post, WSJ columnist Walt Mossberg argued ($) for the bundling of an antivirus system into the Operating System, something that was rather surprising when I read it, but it seems to make a great deal of sense. After all, why shouldn't the generalized hierarchy that makes all the bits of electronics give you something on your screen (the OS) include something that deals with all the threats to that. Symantec (Norton) and McAfee would cry bloody murder and run to the DOJ and Congress, of course, but so what? I don't really see the theoretical problem with antivirus software bundling, though I am sympathetic to the "I don't trust Microsoft to do it well" argument. If, however, M$ did it and didn't do it well, Norton and McAfee would be able to keep selling their products, the same way Corel keeps selling WordPerfect.

UPDATE: Note to self: after hitting Preview Your Post, click Publish Your Post instead of letting it sit on your computer screen for six hours.

Monday, March 22, 2004


Avast and ahoy, ye mateys! While it's been over three centuries since Captain Kidd was hanged by the neck until dead and the Jolly Roger no longer terrorizes Spanish galleons, piracy is still alive and well in some areas of this world, as this post by Geitner Simmons shows.

Speaking of Geitner, he also has quality recent posts on warmaking and police work and the South and Adlai Stevenson's 1956 campaign.

Whither the Whats

As I joyously noted last week, Georgetown University fired men's head basketball coach Craig Esherick last Tuesday. I've been away from internet access for the past few days (that should be the next post), so I didn't catch the broader reaction to the firing. Since the athletic department is frankly pretty much all about G'town I care about these days, I thought I'd first link to the articles and then add my commentary.

First, the WashPost's Tom Boswell's column, talking about how wonderful a person Craig Esherick is. Great, wonderful, fine, it's nice to have such a wonderful person as a basketball coach. Unfortunately, he was a mediocre recruiter and a lousy coach, leader of teams that tended to play stupid. Singularly, any of those three could be overcome, but the combination was just deadly.

The real issue with the future of Georgetown basketball is raised by alum Pat Hruby in the WashTimes, and it really isn't limited to the basketball team. The University lacks a clearly defined identity. In the 1970's (and before), it was a Catholic school with Ivy-type pretensions and athletic programs. Then, John Thompson arrived in 1972 and by the early 80's had built a basketball power and raised Georgetown to a level of national prominence. Except he didn't do it within the confines of the university; they shared the 37th & O St. N.W. campus, but it always seemed a marriage of convenience between a basketball coach who wanted to make his mark his way, and an administration willing to give him what he wanted if they got the money they wanted.

After the great Ewing run of 3 national championship games in 4 years, though, the program didn't enjoy the same level of NCAA tournament success. The last real hurrah was the Elite Eight team of 1996, featuring Allen Iverson, Othella Harrington, and Jerome Williams, all three of whom would be first-round draft picks that year. Since then, the only NCAA appearances have been a first-round blowout loss to Charlotte the next year and a fluky Sweet Sixteen trip in 2001, thanks to a buzzer-beater in a win over Arkansas and facing MEAC school Hampton rather than #2 seed Iowa State. The story of the past 8 years, though, has been more tawdry than anything else, featuring more transfers than I can remember and memorable players such as Victor Page (longest suspension in the history of the CBA; declared for draft after sophomore season to avoid being kicked out), Ed Sheffey (97 in a 55, complete with dime bag), and Kenny Brunner (transferred to Fresno State and somehow got kicked off JERRY TARKANIAN's team, mock tryout for Highlander by attacking teammate with samurai sword), and, oh, I can't really bear it.

Anyway, right now Georgetown has the trappings (power conference, historic reputation, massive arena) of someplace that's still a college basketball power, but none of the substance (players, schedule, attendance, coaching, current reputation). Whoever comes in as the next coach will have to know whether he is expected to, and will have the resources to, become a college basketball power once again, or whether the expectation will simply be not to embarrass the university.

Blogging From The Pacific... very expensive. So I'll just say hi. Ben and Tom, take it away.

Saturday, March 20, 2004

Programming Note

I'll be on vacation all this week. However, Ben and Tom will be around, so expect good stuff from them.

Friday, March 19, 2004

Restrictions on Alienability, Anti-Commodification, and eBay

A few days ago this article appeared in the New York Times about the problem of girl scouts selling cookies on eBay. The girl scout rules forbid this, in order to promote "the activity" of selling to the public. I see their point. Unfortunately, market forces are tearing the rule apart. In some areas, there's a surplus of supply because of high scout concentrations. In other areas, you can't get ahold of the cookies to save your life.

It doesn't take Milton Friedman to see what's going to happen - the scouts use loopholes to circumvent the restriction. The most popular way, it seems, is to auction off cookie order forms. However, I'd advise the method often used with Southwest Airlines' rapid rewards tickets (which also have a restriction on alienability) - people sell "one free alcoholic beverage" tickets for about $180, with the "bonus" gift of a rapid rewards ticket. It seems the difference is whether something is purchased or given, but clearly the distinction is spurious in practice.

This situation reminds me of the general principle in property law against restrictions on alienability. As I was taught it, the ultimate goal was to avoid the European problem of land being tied up for ages by complex wills. For example, a great case in this area is Johnson v Whiton, 159 Mass 424 (Mass 1893), in which then-Massachusetts Supreme Judicial Court Justice Holmes faced a will with the following restriction:

"After the decease of all my children, I give, devise, and bequeath to my granddaughter, Sarah A. Whiton, and her heirs on her father's side, one third part of all my estate, both real and personal . . .." (emphasis added)

The effect of this condition was to keep the property in the Whiton side of the family for time eternal - if you weren't a blood relative to Whiton, you couldn't receive the fee. Professor Helmholz noted that the backstory of this case was Mr. Royal Whiton's distaste for Mrs. Whiton and her side of the family. This condition in the will was Royal's creative way of paying her back for years of nagging. Justice Holmes wasn't having it. After noting the English and French rules allowing restrictions by blood, Holmes grandly announces that "inherited property may pass from one line to the other in Massachusetts." And that was that.

Justice Holmes' opinion is grounded in little more than a policy preference, but it's a good one. Restrictions on alienability usually impede the transfer of goods to increasingly efficient uses. This preference is also seen in property law concerning adverse possession, the rule against perpetuities, and others I probably don't even know of.

From this discussion, one could conclude that eBay, like the market entire, should be open to anything. Fighting market forces is as futile as it is inefficient. Consider this recent news story, however:

"EBay halted an auction this week and suspended a Taiwanese user who allegedly tried to sell three Vietnamese girls on the Internet site for a starting bid of $5,400.

The auction, which began March 2 on eBay's Taiwan site, did not include a detailed description of the goods for sale but said the 'items' were from Vietnam and would be 'shipped to Taiwan only.'

. . .

San Jose-based eBay strictly forbids the sale or purchase of humans, alive or dead."

Recall that in the girl scout cookie context, eBay stated this position:

"As far as eBay is concerned, these cookies are private property. We are not going to ban people from reselling them."

I think most of us would agree that eBay's positions in both cases are correct. But based upon what principle? Some conception of proper property rights? The inherent dignity of man? A Stockholm-syndrome-like belief that the Vietnamese women’s' choice wasn't truly free?

Imagine that the women were well-educated 40-year-olds who just want a chance to leave Vietnam and work for someone in Taiwan, but need a middle-man to handle the details of getting there. We would be hard pressed to say they weren't thinking clearly. They're only commodifying themselves to the extent that they're looking for work - they do not wish to be sex slaves and the like. Perhaps we would prefer they phrase the auction as "Vietnamese women looking for work in Taiwan. $5400 as lump sum for salary." Maybe we just prefer people commodify the work, rather than the person.

Now imagine that the facts are true to life, but Vietnam has a clear conception of women as a property right that men may control. If eBay denies them auction space, it's imposing a view of commodification upon the world. I don't have a problem with this, but I do think that these examples signify that an anti-human commodification view is, in the end, rooted in a human dignity conception. I don't think most of us care whether the sale is voluntary or what the Vietnamese position is on property rights. We feel that human life is of incalculable worth, and to commodify it is to demean it.

But if one really subscribes to this view, I think you must comes to terms with valuing human life in risk assessment. Every day the OMB evaluates regulations based upon calculating the value of our lives. If saving our lives costs too much, the agency won't regulate. Moreover, Professor Sunstein mentioned the other day that there is a modern trend towards valuing "life years," not lives simply. Thus, a regulation that adds 7 years of life to an old person is not worth as much as one that saves 3 years of a child. How does one rectify these ideas with the anti-commodification viewpoint above?

For me, the difference is best explained by example: imagine a fireman rushes into a burning house, and must choose between saving five people by lifting a piano or two people by moving a small table. Obviously, his time is scarce. In the end, he chooses to move the small table and save two people, rather than trying to move a piano, which carries high costs in time, and a lower risk of success. Now, if the five under the piano were children, perhaps he would take the risk and attempt to save them. I doubt any of us would disapprove of these choices.

Yet, in a sense, the fireman placed a value on human life, and took into consideration costs when making the judgment. The fireman made the smart decision to save as many lives as he could, using quick calculations of success rates, and taking into account scare resources in time and ability. Moreover, adding children to the picture changed his calculations of value.

Similarly, money is scarce. The OMB can't save everyone. It must make choices. In these scenarios, the commodification is not an effort to value a life as a good for sale, but to make value judgments on whom to save. I think the benevolent purpose is some comfort, and perhaps an important distinction between these actions and an eBay auction.

My rationales of "human dignity trumping free choice/the market" and "benevolent purposes trumping anti-commodification principles" probably wouldn't fly with a true libertarian, and perhaps others have different reasons for supporting/rejecting these positions. I'm certainly curious what eBay's policy people would think about all of this. I have a feeling most of our views are heavily influenced by our gut reactions, but maybe a true rationalist can set me straight. Speaking of guts, some thin mints sound pretty good right about now . . .

Thursday, March 18, 2004

Claremont Professor Suspected of Staging Hate Crime

Associated Press

It really speaks for itself. I personally think this is a good development (see previous news here) in the larger scheme of things, if it turns out to be true. Now, instead of worrying about racist students, Claremont can tackle the real problem - crazy visiting assistant professors.

UPDATE: Here's the audio of the professor's speech at a rally after the "hate crime" incident.

If this whole hate crime is a hoax, this speech is really quite funny, particularly in light of the professor's current position that she "didn't want any of this from the beginning. This is so overshadowing the bigger problem on campus, which is that the administration has turned its head regularly on hate speech and hate crimes." In the speech, she self-aggrandizes, espouses her views on diversity, applauds the administration, and does it all with liberal smattering of obscenities. This is not the speech of a reluctant warrior. I think the professor herself put it best:

"...these acts aren’t ignorant. This isn’t the result of some covert thought. This was a well planned out act of terrorism."

Tuesday, March 16, 2004

Hallelujah! Hallelujah! Hallelujah!

Contrary to the previous post, I'm not in transition, simply silent. Still, I can't resist sharing this piece of wonderful news

Whats everywhere are surely rejoicing tonight, as CRAIG ESHERICK HAS BEEN FIRED! Yes, that's right, Craig Esherick, head coach of Georgetown University's men's basketball team since John Thompson's resignation during the 1998-99 season, was fired Tuesday. During his 6 years, Georgetown played in the NCAA tournament once, the same number of times as IUPUI, a school that's had a Division I basketball program for 6 years! Esherick's teams made the postseason 4 times in six season, declining an NIT bid in 2002, and failing to make the postseason this year.

It's unclear at this point who will replace Esherick, but choices that I can't definitely say would be worse include you, me, St. Francis Xavier, and the rotting corpse of Ayn Rand (inside joke, don't worry).

Service Interruption

All bloggers are in transit to spring break destinations. Expect normal programing tomorrow. We miss you too.

Monday, March 15, 2004

Blogging From The Airport: Potbelly Sandwich Works and Segway

For those of you in Chicago who have never experienced a Potbelly sandwich, do so. There's one at Midway Airport, and you can see it, standing like an oasis, at the end of the security lines. Get "The Italian."

Since last I was here (two weeks ago), the airport police have all received Segways. People are taking pictures of them. They're like celebrities now. I want one kinda, but I don't want to grab anybody's attention. Plus, I can't afford it. So that's that.

Sunday, March 14, 2004


Posts from all 3 UofC TNTMers on the same day? It must mean finals are over!

In this post, Brian questions whether Trey Parker & Matt Stone are really Republicans. I don't really have any greater insight on this than anyone else, but it does give good cause to mention one of the funniest TV commercials no one's ever seen. It was for the NFL Network and featured Parker and Stone saying something along the lines of "While growing up in Colorado, in between shooting elk and harassing liberals, we watched the Broncos make it to the Super Bowl four times, and lose all four times. Then, South Park came on the air, and the Broncos immediately won back-to-back Super Bowls." Quite true, and something I didn't realize before seeing this commercial.

Ben links to this interview with R. Hewitt Pate. One thing I found interest was his negative response to the first question about Oracle (plus PeopleSoft) becoming the American champion to battle German champion. His answer dovetails nicely with his claimed (in the last question) focus on the law rather than other factors, but the externalization of antitrust harms is a common topic in looking an antitrust from an international perspective. See, e.g., Hartford Fire Insurance Co. v. California, 506 U.S. 764 (1993). Also the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a, creates an exception to the antitrust laws to allow American companies to better compete. Granted, this isn't quite the same issue, but I at least found it an interest side note.

I've avoided linking to the WSJ in the past because of the paid subscription requirement, but I'm violating that for a few stories.
First, Lee Gomes had a column, reader response here, last Monday asking whether the innovation from Microsoft was sufficient given its resources. Second and relatedly, highly-respected Personal Technology columnist Walt Mossberg had a column arguing M$, or if not them, anybody else, should add a comprehensive update security service that doesn't require user intervention. Both columns have at their gist interesting ideas, but I don't think either one is on balance particularly wise.

Third, this Page One story from Thursday discusses how the (very real) threat of Eastern Europe has caused European unions to agree to contract renegotiation, including wage cuts, to avoid layoffs. Given the traditional story of union intransigence, this strikes me as a prime example of a realistic appreciation of market forces.

Fourth, this article from last Monday was perhaps the highlight of my week. James Minder was chairman of Smith & Wesson Holding Co., the gunmaker. Unfortunately, he had a secret buried in his past: he spent time in prison for armed robbery, including a $53,000 bank heist in the 60's.

Coerced Virtue

From The Crimson:

"Harvard Business School has dropped a rule barring white and Asian students from a summer program after two groups opposed to race-based admissions threatened to take legal action against Harvard.

The Summer Venture in Management Program (SVMP)—which brings incoming college seniors to Allston for a week in June to study under Business School faculty—will no longer restrict participation to racial and ethnic minorities.

The American Civil Rights Institute and the Center for Equal Opportunity alleged in a letter to Harvard officials last March that the Business School program’s race-based restriction violated Title VI of the 1964 Civil Rights Act, which prohibits recipients of federal funds from discriminating on the basis of race or national origin."

Check out the admissions director's sudden enlightenment:

"Business School admissions officer Juan F. Jimenez, who is in charge of the SVMP, said that dropping the race criterion would strengthen the 20 year-old program. 'It will broaden the base of what diversity stands for,' he said."

What a revelation! It's like these admissions people know what the right thing to do is, but they just can't resist the powerful logic of arguments like this:

"Alliah D. Agostini ’04, the only Harvard undergraduate to participate in SVMP last summer, said she was concerned that the program could be diverted from its original mission of reaching out to minority groups.

She said that socioeconomically disadvantaged students did not face the same obstacles as members of racial and ethnic minorities.

'While one can change [one’s] economic status, there’s no changing your race and how others may view you because of it,' Agostini wrote in an e-mail to The Crimson."

I'm sure it was a comfort to the dirt-poor white and asian kids (who, say, worked 30 hours a week while in high school just to eat) to know that even the rich black and hispanic kids in the program faced hardships no poor kid (even of another minority) will ever be able to comprehend.

Thank goodness someone thought differently. (from How Appealing)

Link Fest 2004 - Wacky Washington (State) Law Stuff

Rick Hansen's Election Law Blog reported on this Ninth Circuit case involving the disenfranchisement of felons in Washington. The majority struck the law down because "disparities in the felon conviction rates of certain minority groups in relation to their presence in the general population lead to a disparity in the rate of disenfranchisement." Noted video game reviewer Judge Kozinski led the dissenters. It seems to me the best answer to this problem is to not send any minorities to jail at all. That way you can be sure race-neutral punishments won't have a disparate impact on them. (from How Appealing)

The Washington State Supreme Court isn't just known for drunks - it's also known for power lifters. (from How Appealing)

At least no one on the Washington Supreme Court is eligible for this distinction: "Worst Federal Judge in the West 1983," otherwise known as Washington federal district Judge Jack Tanner, or "Maximum Jack" to his friends. Read about him here. (from How Appealing)

Tanner reminds me of another 1983 winner: Georgia district judge Robert Elliott, or "Maximum Bob." See here, for example. Judge Elliott was so bad, he worked his way into my first year Civil Procedure casebook, in an opinion that begins "This case illustrates the mischief that results when a district court effectively abdicates its responsibility to manage a case . . ." Chusasama v Mazda Motor Corp, 123 F 3d 1353 (11th Cir 1997).

Link Fest 2004 - Random Stuff

During finals, I compiled a bunch of links that I intended to blog on, but just never got around to it. I could just let them languish, but what would be the fun in that? So here are some things you may have missed on the internet over the past week (I'll probably have a few posts):

Headline: "Rosie weds longtime girlfriend, slams Bush." (from Instapundit)

Headline: "Drunken Polish nun crashes her tractor."

Jonah Goldberg finds the coolest stuff on the internet . . . listen (and watch) this.

Hubble pictures of other galaxies can be seen here.

Did anyone know that Patricia Heaton from Everybody Loves Raymond is pro-life?

The South Park Republican argument is boosted a bit by this admission - or are they kidding?

The presidential election is more online than ever this year, particularly at The Sims Online.

And lastly, "The O.C." may be know for cool, but perhaps not smarts. It wouldn't have either if this ban had held up. (from Instapundit)

Friday, March 12, 2004

Quote Of The Day

Groucho Marx: "Those are my principles. If you don't like them I have others." (from Opinionjournal)

Tuesday, March 09, 2004

Hard Cases Make Bad Law . . . But Only If You Have Bad Judges

So I’m reading this case, Planned Parenthood of the Colombia/Willamette, Inc. v. ACLA , 290 F 3d 1058 (9th Cir 2002), in which a 6-5 en banc court of the Ninth Circuit upheld civil awards against a pro-life group ("ACLA") that published information about abortion doctors in the form of "Wanted" posters. These posters offered a $500 reward for anyone who could convince the doctors, through legal means, to stop their activities. However, in the past some individuals killed 3 abortion doctors featured in other pro-life groups' "Wanted" posters. There's little doubt some members of the ACLA are evil people.

But however you feel about ACLA, based upon the law, their speech cannot be silenced. The requirements for losing First Amendment protection in this situation are 1. express advocacy of unlawfulness (the ACLA's conduct is perhaps endorsement, maybe even implied advocacy, but certainly not express advocacy) and 2. immanent harm (virtually all of the named doctors were never hurt, and the 3 past murders occurred, at the earliest, 7 months after the publishing of a "Wanted" poster). In fact, besides the list, the ACLA had nothing to do with any of the murders at all. Thus, the majority's affirmance is wrong.

The Ninth Circuit has some wishy-washy “true threat” jurisprudence, so you could chalk up the majority’s error to that. One problem: the majority admits this isn’t a direct threat. Thus, "true threat" or not, to reach the majority’s result, you’d have to ignore Supreme Court precedent stating (as paraphrased by Judge Kozinski):

Where the speaker is engaged in public political speech, the public statements themselves cannot be the sole proof that they were true threats, unless the speech directly threatens actual injury to identifiable individuals. Absent such an unmistakable, specific threat, there must be evidence aside from the political statements themselves showing that the public speaker would himself or in conspiracy with others inflict unlawful harm. NAACP v Claiborne Hardware Co, 458 US 866, 932-34 (1982).

There was no evidence of such a conspiracy. Thus, ACLA should not face liability for speaking their mind, even if we despise what they have to say and how they've said it.

So the Ninth Circuit messed up again, no big deal. Maybe the majority just needs some dissenting viewpoints. But oh boy, there were some dissenting viewpoints alright:

KOZINSKI, Circuit Judge, with whom Circuit Judges REINHARDT, O'SCANNLAIN, KLEINFELD and BERZON join, dissenting.

That’s the who’s who of good judges on the Ninth Circuit from both sides of the political spectrum. If I had to make a list of the best conservative judges on the Ninth, Kozinski, O’Scannlain, and Kleinfeld would be near the top. Clearly, Reinhardt is the Ninth Circuit’s most famous liberal judge, but Berzon was one of Clinton’s most-favored, and most controversial, appointments. Berzon is supposedly as liberal and as smart as Reinhardt (these are just things I've heard; I haven't read many of Berzon's opinions). Regardless, few would disagree that these judges represent some of the best and the brightest minds in the Ninth Circuit. This is just about as impressive a crew as one could concoct.

If you were in the majority here, wouldn’t you look at the dissenters and think: goodness, maybe we’ve made a mistake? I know no judge would ever admit it, but when this kind of group tells you you've rigged the result, more reflection is probably in order. The majority can’t even explain away the dissenters as those “anarchist libertarian/ACLU liberals,” because Kleinfeld and O’Scannlain signed on too. And they certainly can’t claim the dissenting judges are too insensitive to abortion rights – Reinhardt and Berzon basically think a woman has a right to eat her baby for lunch, so long as she moves on to dessert before the 3rd trimester.

I'm not saying that "smart" judges are always right and "dumb" judges should always cow to them. I just think that the majority's actions signal much of what’s wrong with the Ninth Circuit – they didn’t like the ACLA’s behavior, so they crafted an opinion to fit their desires. The dissenters remind them that this is lousy judging (though every judge does this sometimes), but the majority just doesn't seem to care. As Judge Berzon put it:

"This case is proof positive that hard cases make bad law, and that when the case is very hard -- meaning that competing legal and moral imperatives pull with impressive strength in opposite directions -- there is the distinct danger of making very bad law."

My corollary: this danger only comes to fruition if you have very bad judges.

Passion Pt. IV

Maybe I was indistinct in my post, but Ben still doesn't get it. He says I tried to expand the category of people who love Jesus into a more diverse crowd; I don't give a tinker's dam about who loved Jesus, or paid attention to his teachings. What I did, or at least tried to do, was given an alternative, superior (or so I believed) explanation, supported by the biblical references, as to why MARSTEN used the word "love" and why it didn't break the world down into the Christians=Good Jews=Bad split my esteemed coblogger tried to put it into.

As for Ben's statement that he doesn't love his neighbor as himself, but wouldn't want to see somebody tortured to death, it's an unnecessary and irrelevant distinction. My equating "loving your neighbor as yourself" and the Golden Rule (y'know, do unto others as you would have them do unto you) in my previous post was an attempt to show "love" having a meaning encompassing not just (1) following the Gospels of Christ (Ben's sole reading) BUT ALSO (2) NOT TORTURING AND KILLING SOMEONE BECAUSE HE REPRESENTED A THREAT TO THE ESTABLISHED POLITICAL STRUCTURE.

Ok, that's enough religion talk for my non-believing-yet-still-confirmed Catholic carcass. Maybe I'll talk about something less controversial, like how much I hate Tolkein's classist, Luddite, overly verbose, dull as all hell, intellectually masturbatory travelogues masquering as adventure novels, and how incredibly tedious it was to sit through all three of those movies and how you couldn't pay me to sit through any one of them again for under $1000. The Hobbit was actually good, though.

On a lighter note, clowns!


I must confess to being seriously puzzled by Ben's post today about the Passion of the Christ. Not having seen the movie, I can't really comment on the substance of the post by David Marsten linked to, but I may be able to clear up something for my esteemed coblogger. Ben critique's Marsten's reference to two types of people: (1) those that want Jesus dead and (2) those that "love Christ." Ben's (I believe mistaken) take on this is that people who "love Christ" is a subset of people that overlaps entirely with the group Christians. Notwithstanding these people, I think we have a nomenclature problem. I'm not qualified to debate Biblical meaning, but one of the commands of Jesus mentioned in all four Gospels (see here and scroll a bit for quotes) is to "love your neighbor as yourself." Now, I don't pretend to be qualified to debate biblical interpretation, but as I've always heard it explained is as a form of the Golden Rule (not to be confused with the Golden Ratio). This makes the people who "love Christ" not just His followers, but also those people who bear Him no ill will, or believe He is being treated unfairly. Conveniently, this interpretation of "love" also dovetails quite nicely with Marsten's disgust towards those who wish Christ dead.

Alas, there's no such nomenclature problem in Ben's dislike for Rush. De gustibus, perhaps, or merely the stress of impending finals. Either way, pity.

Judging Judicial Activism

Randy Barnett points to this Boston Globe article on judicial activism, which includes comments from both he and Cass Sunstein. Or is it?

Monday, March 08, 2004

Williams and Will's Reservations

Majorie Williams' op-ed in the Washington Post today neatly summarizes Kerry's (and the Democrats') main problem:

"To watch Kerry floundering in the impossible contradictions of this issue is to see starkly how little he is guided by core principle -- or even by a consistently wise sense of where his political interests lie. To respond to every unpleasant political stimulus that presents itself is to throw away the chance to make even an expedient long-term commitment to something."

Note that Williams proudly proclaims she is a "charter member" of the "Anybody But Bush" society.

Meanwhile, George Will's op-ed notes some problems in the Bush camp:

"If time flies only when you are having fun, time has been limping for the Bush campaign. As the Democrats made news pummeling the president, he, obedient to the axiom 'if you don't like the news, make some of your own,' began using the executive's power to do so -- with mixed results."

Will notes that, given the fuzzy status of both candidates, future events beyond their control will probably determine the election. That's a bit of a nihilistic view, but that doesn't mean it's wrong. However, let me rather naively submit that this view isn't quite right, because ultimately presidents are chosen by a vote. And to the extent votes are determined by events, well, politicians spin events for a living. The country's reservations about Reagan's age in the 1984 race were all but killed with one joke - "I will not make age an issue in this campaign. I am not going to exploit, for political purposes, my opponent's youth and inexperience." So politics isn't all sound and fury.

Ok, so maybe it is. But some of it is meaningful.

Sunday, March 07, 2004

South Park Does It Again

I just watched "A Little Bit Country," in which Cartman rigs his own concussion-induced flashback of history (fyi - dropping yourself from a crane into a kiddy pool containing a TiVo full of the History Channel will do the trick) in order to find out what the Founders think about war. Here's his conclusion:

Cartman: I learned somethin' today. This country was founded by some of the smartest thinkers the world has ever seen. And they knew one thing: that a truely great country can go to war, and at the same time, act like it doesn't want to. [a shot of the crowd] You people who are for the war, you need the protesters. Because they make the country look like it's made of sane, caring individuals. And you people who are anti-war, you need these flag-wavers, because, if our whole country was made up of nothing but soft pussy protesters, we'd get taken down in a second. That's why the founding fathers decided we should have both. It's called 'having your cake and eating it too.'

Randy: He's right. The strength of this country is the ability to do one thing and say another.


Free Wi-Fi at Airports and Some Rambling

This USA Today article notes the growing trend of free wireless internet at the nation's smaller airports. I don't know if this is a good lure for other people, but I'd be inclined to choose a smaller airport based upon this convenience.

Then, my brain fights this inclination, reminding me that choosing a smaller airport usually means paying a little more. Rather than becoming a poster-boy for behavioral economics (again), I realize that I could pay the fee for wireless access at the larger airport with the savings from avoiding the smaller airport and still be better off. Or maybe I'll just stick to my phone-to-computer internet and Chicago - LAX flights. Now if I could just find a freaking outlet . . . (from Wi-Fi Networking News)

Rush (the band) on Volokh!

Need I say more? Read it here.

Husky Sports Update

The title doesn't refer to John Daly, but to the esteemed (by me) Washington Huskies. The Stanford men's basketball team flew up to Seattle with a 26-0 record and a #1 ranking. They're now 26-1.

Saturday, March 06, 2004

Chief Justice Rehnquist Interview

The interview is to promote his new book, Centennial Crisis. I like the Chief's sense of humor:

NYT: There is a forthcoming review in The Nation by Eric Foner, a professor at Columbia University.

WR: He's a recognized historian.

NYT: One of the things that he says about your book is that it is "an elaborate though indirect apologia" for the court's decision in Bush versus Gore.

WR: I really don't think they have anything to do with each other. But I'm glad to know the book is being reviewed someplace.

Friday, March 05, 2004

Judge Kozinski: Game Theorist

Today, as part of my larger Finals Procrastination Project, I decided to dig up some old Wall Street Journal articles Judge Kozinski wrote. After all, my relationship with Judge Kozinski, like my bonds of affection with Abner Mikva or the mutual admiration Ben and Carol Mosely Braun share, is deep and abiding (I shook his hand once). So I thought I would throw a little press his way for old times sake.

These articles cover a subject of great interest to the nation, and of particular importance to me. No, the subject isn't Rush, but close. Here are some clips:

Alex Kozinski, Guide to Nintendo Shopping, Wall Street Journal, January 31, 1990

"So you went out and bought yourself a Nintendo. Using the throngs of Christmas shoppers for cover, you snuck into the Toys `R' Us and picked up one of those little video machines you've been coveting. 'It's for my nephew,' you muttered to the grinning clerk, 'he's five.' You then spent the holidays zapping Koppas and Poloboos on 'Super Mario Brothers,' knocking out Glass Joe and King Hippo on 'Mike Tyson's Punchout,' and perfecting your home runs on 'RBI Baseball.'"

I know the feeling, Judge K. I get the vibe from some of my classmates that we're not supposed to be doing this kind of thing anymore. I even get the "why aren't you taking yourself too seriously, like me?" look sometimes. But then I overhear Dean Levmore talking about Halo in the hall again and I know I'll be alright.

Kozinski goes on to provide some pretty insightful reviews of Zelda, Metroid, and "The Legacy of the Wizard," a game I don't remember. This observation is particularly astute:

"Incidentally, don't confuse 'Zelda' with its lackluster sequel, 'Zelda II, The Adventure of Link.'"

Amen. You can also tell he actually beat Metroid, based upon his use of gender-specific language to describe Samus:

"The action unfolds inside the planet Zebes, the breeding ground for the evil Metroids, flying jellyfish that are preparing to invade the galaxy. One shudders at what might happen if they succeed. Fortunately, you are on the scene as Samus Aron. Samus must weave her way through a honeycomb of tunnels looking to destroy the Mother Brain (Ma B, to the cognoscenti), controller of the Metroids. Particularly ingenious are the various powers Samus acquires, and the ways she can use them to reach seemingly inaccessible places. This is one game you can't complete without careful mapping, so keep pencil and graph paper handy."

He signs out with this:

"Mr. Kozinski, a judge on the U.S. Court of Appeals for the Ninth Circuit, uses his three small sons as excuses for his videogame forays."

Other WSJ articles include "Puzznic and Other Video Enigmas" (March 20, 1991), in which his Honor provides the cheat codes for "Lolo" and "Solomon's Key" ("up" plus "A" and "B" after you die, apparently), and "Trouble In Super Marioland" (July 27, 1990), in which he predicts the fall of Nintendo, albeit a decade too early (for example, he notes that a sign of cooling public interest towards Nintendo is the Game Boy, which turned out to be the best-selling video game system of all time). He also wrote a book review of David Sheff's "Game Over: How Nintendo Zapped an American Industry, Captured Your Dollars, and Enslaved Your Children" (May 11, 1993) which is now is now in it's second edition and entitled "Game Over: Press Start To Continue." Interestingly enough, the Amazon link I provided includes a quote from Kozinski's piece in its Editorial Reviews section, though it doesn't mention him by name. He's everywhere!

If you'd like to learn more about Judge Kozinski, check out this link. And be sure not to miss the picture.

Of Note: National

Peggy Noonan seems to find most politicians weird. Not that I can blame her. Here’s a snippet from her most recent op-ed, in which she notes the odd mimicry of JFK by many Democrats:

"If you saw a generation of Republican candidates doing a physical imitation of Ronald Reagan or George Bush the elder, would you find it weird? I think you would. The only person in politics who has ever tried to morph himself into Ronald Reagan was Al Gore in his first debate with George W. Bush. He even wore makeup that echoed the heightened color of Mr. Reagan's cheeks. He wound up looking not like Mr. Reagan but like a turn-of-the-century madam in a San Francisco whorehouse, but that's not important. What's important is the jarring weirdness of seeing one politician trying to make you unconsciously experience him as another politician."

And her weirdness analysis isn’t limited to the candidates:

Mark Leibovich of the Washington Post did a brilliant and rather too detail-rich profile of [Teresa Heinz] last summer [linked to here; more discussion of Heinz here]. People didn't know she considered her late husband, John Heinz, to be her real husband until then. It was startling, and delightful. She hasn't given an indiscreet interview since. But she will. Before that, however, there will be a series of long and glowing interviews from big media reporters who a) need to foster a relationship with a possible future first lady, and b) want to be the first to change the narrative line from "known crazy woman" to "colorful, earthy and authentic presence--and secret power in the campaign."

Much has been written about the fascinating insights coming from Justice Blackmun’s papers. But particularly wonderful are Harold Koh’s interviews, excerpts of which can be viewed in the “oral history” section of this Washington Post article.

There’s been a slight rumbling about Bill Clinton as the next vice president, spawned from this NY Times op-ed by NYU professor Stephen Gillers. However, John Eastman of Chapman Law (and a U of C Law alum, my pride demands me to add) provides a quick smack-down of this possibility. Eastman's argument isn't based on politics, but on the Constitution. What a concept.

Speaking of the Constitution, if you don’t like the current marriage amendment, consider this alternative, proposed by Senator Hatch.

And lastly, both Maureen Dowd at the NY Times and Jonathan Cohn at The New Republic seem to think that calling an op-ed “See Dick Run” is clever, even if they're talking about two different people. This serves as a reminder that there are Dicks in both parties. I leave you with that to ponder.

Of Note: California Events

Just what Claremont needs: another stupid race incident (see here for info on the previous controversy). This time, some drunk kids stole a piece of art shaped like a cross and burned it as a prank during winter break. Apparently this kind of looked like a "burning cross" (who'd have thunk it?) and freaked some people out.

Thankfully, Claremont people are in the press for good reasons too. Another Pitney quote on Arnold:

"Analysts say the former body builder and Hollywood icon is flexing political muscles not seen for years in California.

'We are talking political steroids,' said Jack Pitney, a government professor at Claremont McKenna College. 'He can claim credit for turning around public opinion.'"

Speaking of which, Arnold scored a big victory this week, as the Washington Post notes in this article. I'm sure you know all this already. But here's something you might not have known before this article: like a good Californian, Arnold commutes to work. He just does it by private jet from LA to Sacramento.

Of Note: Entertainment

For those of you who can't get enough of American Idol's William Hung, check this out.

And for more internet fun, try this game. It's penguin batting practice. Fun, if not macabre. It has Jonah Goldberg's full recommendation.

If you think penguin batting practice is in bad taste, check out this banned commercial for the N-Gage phone/gaming device. It includes classy lines like this: "This is where I left Kate, Lucy and Michelle begging for more" as the camera shows a remote mobile home. A winning commerical for a winning product.

TiVo sports good news this week – because it’s a wildly popular product that’s changing the face of TV entertainment, it’s only going to lose 12 million dollars this year, as opposed to the 32 million it lost last year. Go tech stocks!

Meanwhile, Wyoming is rich. You figure it out.

Recommended viewing: Album Covers on MTV 2. Some mediocre band covers the entire album of some good band, and yet it works. Even if the songs sound worse, it’s at least interesting to hear new interpretations.

Here’s the schedule for the only episode I could find: Dashboard Confessional does REM’s Automatic For The People. Pretty hard to mess up one of the best albums around if you can actually play. Dashboard Confessional humbly recognized, however, that the perfect versions of these songs are already out there. Still nice to hear them live, particularly the less popular tracks.

Wednesday, March 03, 2004

Brian Said It

A round of various sporting quick hits from me today. brings us the joy that is the Jim Harrick Jr. final examination. Questions, 18 of the 20 of which were multiple choice, included "How many halves are in a college basketball game?", "How many points does a 3-point field goal account for in a Basketball Game?", and "In your opinion, who is the best Division I assistant coach in the country," among the choices for which were then-University of Georgia assistant coach Jim Harrick Jr. In his (ridiculously weak) defence, there was one moderately tricky question: "How many teams are in the NCAA Men's Basketball National Championship Tournament? A. 48 B. 64 C. 65 D. 32." Tricky, since the course was in Fall 2001, and many may not have remembered the addition of the play-in game in the 2001 tourney.

Restricted free agent Drew Bennett resigned with the Titans on Monday. I guess it's time to buy the #83 jersey. Wait, no, I'm still too cheap.

Jevon Kearse is now a former Titan as he signed with the Philadelphia Eagles for $66 million over 8 years, including a $16 mil signing bonus. Not the $20M he was looking for, but still more than he probably deserved. I must confess the Eagles weren't where I thought Kearse would end up, but I don't know enough about their defense to really give the acqusition any serious analysis. SI's Don Banks has a column on the signing, as does ESPN's Len Pasquarelli, neither of which really answers my question.

Awful team loses to good team. What a shock, Tampa Bay beats the Blackhawks, 5-3. Also lovely news was the Rockets blowing a 12-point 4th quarter lead and losing to the Lakers, 96-93.

On Brian's post earlier this evening, I'm taking Antitrust this quarter with Ben (Brian had it in the fall), and I don't think the situation is quite as bleak as Brian presents it. Take, for example, this quote by Richard Posner, from his Antitrust Law, 2001 edition, "Much of antitrust law in 1976 was an intellectual disgrace. Today, antitrust law is a body of economically rational principles largely though not entirely congruent with the principles set forth in the first edition [of Posner's book, published in 1976]."

Tuesday, March 02, 2004

Landes On Coase On Antitrust

Again, sorry to bait our porn-hungry readers with the title. But check out this gem from William Landes, best known as my Trademarks professor:

"Ronald [Coase] said he had gotten tired of antitrust because when the prices went up the judges said it was monopoly, when the prices went down they said it was predatory pricing, and when they stayed the same they said it was tacit collusion." (from Law And Economics Blog)

I think that summarizes my experience with Antitrust pretty nicely - every business activity receives a label with a negative connotation. This label leads some court to tell some business to stop doing something because the activity is "per se" illegal. Or even worse, the activity is subject to the "rule of reason," which means the activity is illegal when a judge feels like it, and they don't have to give a reason. I mean, can't you tell from the nasty name that what you did is bad?

Imagine if the real world was like Antitrust law:

"You there, what are you doing with those kids of yours? You impart your life's wisdom on them while living together? Sounds like a cartel! Shame! You work while they go to school? Why, that's market allocation! Double shame! You don't let them see R-rated movies? You're a bunch of group boycotters too! Let me guess, let me guess: You married their mother (tying), had children (facilitating practices), and then her refusal to have sex with you (denial of essential facility) caused you to divorce her (refusal to deal)? I've heard enough.

What? Why am I not picking on your former employer, who won't let you work due to a covenant not to compete? Because that's an ancillary restraint, dumbass. You clearly don't understand Antitrust."

Why The Site Will Be Slow For A Few Days

Tom, Ben, and I are students. Finals are coming, and we must prepare for them to some degree. It's not that we can't make time for posts. It's just that we feel guilty when we do. Thus, I think my posts will often be like the "quick hits" of late. But don't give up on us! We'll at least have something new each day.

Monday, March 01, 2004

How I Lost the Big One, By Lawrence Lessig

Legal Affairs

An honest and compelling account of how Lessig lost Eldred, the Copyright Extension Act case last term. Even if you aren't interested in the case, I still recommend the article because it gives a lot of insight into the preparation and strategy involved in appellate advocacy. (from Scotusblog)

Blog Archive