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Wednesday, July 28, 2004

Obama vs the rest

A number of commentators have linked this passage from Barack Obama's speech:

t's what allows us to pursue our individual dreams, yet still come together as a single American family. "E pluribus unum." Out of many, one.

Now even as we speak, there are those who are preparing to divide us, the spin masters and negative ad peddlers who embrace the politics of anything goes. Well, I say to them tonight, there's not a liberal America and a conservative America — there is the United States of America. There's not a black America and white America and Latino America and Asian America — there is the United States of America.

The pundits, the pundits like to slice and dice our country into red states and blue states; red states for Republicans, blue states for Democrats. But I've got news for them, too. We worship an awesome God in the blue states, and we don't like federal agents poking around our libraries in the red states. We coach Little League in the blue states and have gay friends in the red states. There are patriots who opposed the war in Iraq and patriots who supported it. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.

with a number of other themes from the convention: Bill Clinton saying that Republicans "need" Americans to be divided and Democrats don't; Howard Dean's call to "take back" America; John Edwards' claim that there are now two Americas but there can be one; and Kerry's "Let America Be America Again."

I don't see it. Obama's statements seem to me different in kind.

First, and most importantly, this portion of Obama's speech was symmetrical with respect to partisan, cultural, and religious divides. It's "pundits" who seek to describe us as divided. But in fact, we're all red and we're all blue. Supporting the war, worshipping God, and playing Little League are symmetrical with not liking the Patriot Act, opposing the war, and having gay friends. That's very different from the "Those nasty conservatives are divisive, unlike us nice inclusive liberals" theme that's kept popping up.

Relatedly, there's something offensive in the "Take America back"/ "Let America be America again" stuff. It's something I fully expect to keep hearing; it's something I remember loathing about the first Clinton inauguration. It's the necessary implication that Republicans, and Republican government, aren't really American, that Democratic rule is not only preferable (of course Democrats think that) but the natural order of things, an order that must be restored (notice the restoration theme in both "take back" and "be America again"). Obama didn't imply any of that, either.

Finally, unlike Edwards, Obama's not imagining one America as some future state of affairs to be accomplished with a Democratic victory. It's a present state of affairs-- we are, already, genuinely united.

A fair criticism of Obama's speech might be that it's too nice, too apple-pie, to really stake out much of a position on anything. But you can't criticize it, the way you can the rest, for communicating the message that "we'd all be united, if it weren't for those nasty un-American Republicans." And I find there to be something genuinely touching in his version, and something really grating in theirs.

[disclosure: Obama is, of course, my faculty colleague at the University of Chicago in addition to being my district's State Senator.]

Don't blame the lawyers:

Someone e-mailed me about the This Song Is My Song controversy, pointing to this as the latest example of unethical lawyers undermining American creativity (and, more broadly, economic development) through excessive litigation.

I don't think that's so. As I mentioned in my original post, the This Land Is My Land copyright owners have a decent case against the JibJab people -- in fact, I think they probably have the better legal argument, though it's hard to tell for sure. There's nothing unethical about a property owner asserting his property rights, or the property owner's lawyer advising the owner to do so. There are certainly some lawyers who do some genuinely unethical things; this just isn't it.

If you want someone to blame, blame the law, not the lawyer. The law may be too broad; or it may be so vague that it ends up effectively quite broad, since lots of speakers can be plausibly threatened with litigation. But it's not the copyright owner's fault, or the copyright owner's lawyers' fault.

Ah, some say, but the law is so broad because the lawyers made it that way. And, yes, it's true that the law is generally made by lawyers -- by judges, by legislators (who are disproportionately lawyers), by legislators' assistants (who are probably lawyers), and by lawyer-lobbyists. Yes, and what of it?

First, this is a tiny fraction of all lawyers, so don't blame the whole profession for what some of them do. Second, these people are also just doing the jobs they're assigned to do in our legal system, and often doing them quite honorably. Lobbyists may quite ethically urge their proposed legal rules to legislators. The legislators' assistants are probably following their bosses' instructions, and to the extent they have some flexibility, they're likely using it to implement what they think is sound public policy. Likewise, judges are either interpreting the statute, or creating what they think are good rules. (It is indeed often judges' job to create what they think are good rules, either as a matter of developing the common law, or of interpreting a vague statute -- the fair use doctrine was largely developed by judges, and the current statutory fair use provision, 17 U.S.C. sec. 107, specifically authorizes judges to develop fair use law further.)

Now I do think that this particular subset of lawyers often get things wrong. In particular, I think they often reject bright-line rules because those rules are overinclusive in some situations and underinclusive in others; but in their quest for theoretically perfect justice, they end up enacting or adopting vague rules that leave people with little practical guidance about what is or is not safe to do.

But at most what we have here is a few special lawyers-by-training -- many of whom are no longer even lawyers in private service, but are lawmakers of one sort or another -- making unsound decisions. We do not have some general ethical failing on the part of the legal profession as a whole.

And the remedy to the problem isn't to try to make lawyers more ethical -- it's to try to make the laws better (hard as that may be).

Lithwick on Democrats and Judges: Dahlia Lithwick has an article up on Slate asking why Democratic candidates are not talking more about the importance of who appoints judges. Lithwick seems genuinely puzzled. She reports on various theories floated at a recent American Constitution Society panel that included several distinguished legal scholars. The theories ranged from the observation that most people just don't care about judges to the idea that Republicans have done a better job creating a coherent set of jurisprudential principles.

  I am far from my area of expertise here, but I wonder if Lithwick and the panelists have missed a more obvious reason. It seems to me that in the majority of hot-button cases decided by the Supreme Court after Bush v. Gore, the Court has ruled in ways that a majority of Democratic voters prefer. Most notably, the Court has allowed affirmative action, invalidated sodomy laws, rejected the Bush Administration's views on detention in terrorism cases, and found jurisdiction over Guantanamo. Given these decisions, most Democratic politicians probably see it as a challenge to run against the courts.
How I Learned to Stop Worrying and Love GM Food:

The National Academy of Sciences has issued yet another report reaffirming the basic scientific consensus about genetically engineered food: It's safe. The NAS has (once again) concluded that what matters is the product, not how it was produced. This means that for regulatory purposes it should be irrelevant whether a given food product was produced through "traditional" cross-breeding of the sort practiced for centuries or through the advanced rDNA techniques recently developed in scientific labs. All such techniques involve genetic modification of the underlying plant or animal, and there is no scientific basis for deeming one "less safe" than any other. What matters are the resulting characteristics (e.g., whether the food product contains proteins that are likely to provoke allergic reactions, etc.). Of note, to date there is not a single documented and verified case of an individual getting sick or otherwise suffering harm from a genetically engineered food product. About products produced by "traditional" cross-breeding techniques, however, we can say no such thing.

"First 'black' drug nears approval":

A heart drug being tested in black patients is on course to become the first medicine approved for use in a specific ethnic group, challenging those scientists who believe that race is a bad basis for prescriptions. . . .

[The drug] revives controversy about whether, and how, race should be used to prescribe medicines. In the clinic, for example, doctors will have to work out who is classed as African American in a racially mixed population. "It really becomes problematic," says Sandra Soo-Jin Lee, an anthropologist who studies race in science at Stanford University, California. . . .

Doctors have long known that different ethnic populations can have different susceptibility to diseases or react differently to drugs. Drug labels for the common heart drugs called ACE inhibitors note that they may be less effective in black people. . . .

I like the dueling quotes (though I have no idea how fair they are): (1) "I still think skin pigment is a lousy predictor of heart function." (2) "We hold the trump card: it works."

Thanks to GeekPress for the pointer, which also includes Paul Hsieh's commentary on the issue (Paul is a physician).

New Article of Mine Up on SSRN: I have a new law review article up on SSRN, entitled The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. It is forthcoming in the Michigan Law Review, and likely will be published in September or October. (I have had an early version of the abstract up for some time, but now you can download the draft.) Here's the new abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.

Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.
  As always, I would be delighted to hear any thoughts or comments. The article will be published along with responses to it from Peter Swire of Ohio State law and Sherry Colb of Rutgers-Newark law; a draft of Peter's response has been up on SSRN for a while and can be found here. I have also authored a brief reply to Swire and Colb that will be published along with the responses and the lead article.
The Patriot Act and Criminal Law: Alex Tabarrok responds to my analysis of his Patriot Act criticism. Alex concludes that I have committed "the lawyer's vice," namely, "to miss the forest for trees." He writes:
The point is that laws passed for one purpose are often used for other purposes not originally intended (RICO, anyone?). . . . In this case, the Patriot Act and the general increased willingness to defer to law enforcement have not to my knowledge led to many arrests of terrorists but have been used for all manner of other purposes.
I think this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive. I'm not sure if any supporter of the Patriot Act has ever claimed that the Patriot Act has no application in the field of criminal law. If they have, they were wrong. As I have written elsewhere, many of the provisions enacted into law in the Patriot Act were proposals relating to criminal law that had been considered and debated in Congress since the Clinton Administration. Many of the criminal law provisions are dual-use: they can be used in terrorism investigations, but can also be used in routine criminal investigations. Because there are lots more criminals than terrorists, and criminal cases tend to be much more public than terrorism investigations, it shouldn't be suprising that we hear more about the Patriot Act in criminal cases than in terrorism cases.

  Supporters of the Patriot Act have not tried to hide the fact that many of the sections relate to criminal law. Indeed, in the DOJ's recent report on cases in which the Patriot Act authorities were used, some related to terrorism but many did not. I happen to think that many of the sections of the Patriot Act are good ideas, when addressed on the merits. A few may have gone too far and should be tweaked, but most were good ideas that are neutral on civil liberties. (In this assessment I believe I am joined by Anthony Romero of the ACLU, who has stated that "much of the Patriot Act is neutral legislation for civil liberties," but that "it contains about a dozen provisions that simply go too far." ) But to the extent that provisions of the Patriot Act are being used in criminal investigations, that's not only true but quite by design.
Trade news

A very reassuring post from Matthew Yglesias on Laura Tyson's convention discussion of Kerry on trade. Relatedly, see his post at the Prospect's convention blog ("We still need to know which advisors will have Kerry's ear if he gets into the White House. So far, most indications I've seen indicate that the free traders have the upper hand.") and Ryan Lizza's "Rubinomics Redux" post at the TNR blog. All sounds like pretty strikingly good news. (No, I don't expect Kerry to be perfect on trade. But he does, at the moment, seem to get that Clinton's way is better than Gephardt's-- or Bush's.)

JibJab SoSue:

The pretty funny Bush/Kerry parody with the "This Land Is Your Land"-based lyrics (from JibJab.com) has drawn a complaint from the owners of the "This Land Is Your Land" copyright.

The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.

Week in the Life of a Defense Attorney:

If you're a law student interested in practicing criminal law, you should be reading Ken Lammers' CrimLaw blog. In particular, read the regular "Week in the Life of a Criminal Defense Attorney" posts, where Ken goes day-by-day through his week. There's a new one up today; check it out.

Tuesday, July 27, 2004

Deconstructing claims about the Patriot Act:

Over at Marginal Revolution, Alex Tabarrok has a post suggesting that the Patriot Act is a bad law because it has been used to do some dumb things. Here is the post, which was recently Instalinked:

Yeah, I feel much safer now
The USA Patriot Act has so far been used to fine PayPal $10 million dollars in an effort to crack down on internet gambling, it's been used to intimidate a New York artist's collective, and most recently to shut down a Stargate fan site.

  As an occasional Patriot Act rumor debunker — tough work, but someone's got to do it — I thought I would check out Tabarrok's claims and see which if any of the claims held up. The result: 1 out of 3, at least by my standards. Unless I'm missing something, only one of the three claims is a fair statement supported by the facts.

   Let's start with the first claim, that the Patriot Act was used "to fine PayPal $10 million dollars in an effort to crack down on internet gambling." This is true, as detailed in this story. Specifically, the Patriot Act rewrote a criminal statute codified at 18 U.S.C. 1960, primarily in an effort to disrupt terrorist financing schemes. The new version of the law makes it a crime to operate a "money transmitting businesses," when the "transmission of funds . . . are known to the defendant to have been . . . intended to be used . . to promote or support unlawful activity." Because some kinds of online gambling are illegal, and PayPal apparently did business with certain illegal gambling sites, PayPal was fined. (Why fine PayPal, you ask? From the perspective of law enforcement, because the sites themselves are offshore and therefore out of reach. Basically, the government used the amended law to block PayPal from aiding illegal conduct.)

   Let's turn to the next claim, that the Patriot Act "has been used to intimidate a New York artist's collective." This one is a stretch. According to the story that Alex links to, the FBI opened a bioterrism investigation after an investigation of a person who fell unconscious led to the discovery of lots of biology equipment in an art professor's home. Evidently, the FBI suspected that the equipment might be part of a biological weapons lab, and opened an investigation. I gather that the alleged "intimidation" is that the grand jury issued subpoenas ordering three artists to testify, and the artists reported that they were very intimidated by the subpoenas (understandably, I might add). What's the connection to the Patriot Act? The Patriot Act expanded the bioliogical weapons statute; if the biology equipment had been a bioweapons lab and not an art project, possession of the bioweapons lab would have violated the Patriot Act. Was the Patriot Act "used to intimidate" anyone here? I don't think that's a fair conclusion. First, it seems that the law enforcement officers opened an investigation in good faith; second, the officers could have used another criminal statute as the predicate offense to open an investigation if the Patriot Act had not been passed.

   Alex's third claim is that the Patriot Act was used "to shut down a Stargate fan site." As best I can tell, this is simply false. Alex links to this story, but the story tells us that a defendant who ran a website was charged with criminal copyright violations. These charges have nothing to do with the Patriot Act; nothing in the Patriot Act was used to shut anything down. As best I can tell, the only alleged connection to the Patriot Act is investigative. The site claims that in the course of investigating the defendant for copyright violations, "the FBI invoked a provision of the USA Patriot Act to obtain financial records from his ISP." It's not clear what this means, but it may refer to amendments to a 1986 law, 18 U.S.C. 2703, that clarified existing law on the scope of what information government officials can subpoena from ISPs. It's hard to tell. Either way, however, the power to obtain financial records from an ISP is as old as ISPs; it isn't a power created by the Patriot Act.

   So, at least as I see it: (1) it is true that a provision in the Patriot Act was used to crack down on Internet gambling, leading to a civil settlement; (2) it is not fair to say that the Patriot Act was used to intimidate a group of artists; and (3) the Patriot Act was not used to shut down a fan site.
Jurisdiction-stripping:

Several people e-mailed me to ask whether HR 3133, which was just passed by the House, is constitutional. The bill would provide that:

No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.

Legal scholars have spent decades and volumes discussing the question of when Congress may strip federal courts of jurisdiction over certain matters. I'm not an expert on the subject, so I was reluctant to weigh in; and a brief conversation with my colleague Gary Rowe, who does know the literature, reinforced my reluctance. So I can offer only a few observations:

  1. As I noted here, such a bill may do more harm than good even from its proponents' viewpoint:

    Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

    What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution -- such as the Goodridge gay marriage decision in the Massachusetts -- will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)

    True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.

  2. Such a jurisdiction-stripping statute would nonetheless probably be constitutional, because of article III, section 2, clause 2 of the Constitution (emphasis added):

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    (The "state shall be party" original jurisdiction proviso won't help, because under another provision of article III, coupled with the Eleventh Amendment and certain longstanding court interpretations, lawsuits by individuals against states basically aren't covered under the Court's original jurisdiction.)

    People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars.

  3. However, as I mentioned, some highly respected scholars argue otherwise; and Gary very kindly let me put on the Web his summary of the debate that he distributes to his students. It's aimed at law students, and refers to other readings that they were assigned, so it will likely be quite cryptic; but I pass it along in case some of you find it interesting.

Please note that Gary is doing me a favor by letting me distribute this; please don't bother him with any questions, counterarguments, or corrections. Please also note that, as I said, I myself am not an expert on the subject, and my view in item 2 above is based on a casual analysis, not any serious learning on the matter. I don't expect to blog much more on the subject, but I thought I'd pass along what I had.

Extortion and the Internet:

Newsweek has an interesting story about extortionists threatening to knock down online gambling web sites unless they pay the extortionists a fee to "fix the problem." (Hat Tip: Vice Squad)

This is a small part of a bigger trend; Internet extortion is an international growth business. Thanks to the Internet, anyone located anywhere in the world can hack into or threaten to take down an Internet site. It is generally quite difficult to trace back the trail of electronic bread crumbs back to find the bad guy. For a private company, it is nearly impossible. There are even fewer options if the bad guy is located in a country without a functioning legal system. The Internet knows no borders, but the legal system does. From the perspective of law enforcement, an extortionist located in a country where the local police will not cooperate with them and won't comply with extradition requests may as well be on Mars. All of which means that an extortionist with some basic computer skills and an Internet connection can cause a lot of havoc.

   UPDATE: Reader Eric Rescorla points out that these days you can even buy a DDOS attack online from Russian hackers. And who says that Russia hasn't embraced the free market?

Canada firearms registry story:

This isn't really news, but I just ran across a seemingly pretty impartial article on this in an impartial magazine (Baseline, which appears to be a business magazine) about this. The subhead (available in the PDF version, which requires registration):

A national computerized firearm registry in Canada was supposed to cost taxpayers $2 million. Instead, it has held them up for more than $1 billion.

The article explains some of the things that went wrong; it doesn't take a stand on whether the registry has helped reduce crime. It does note that gun deaths and gun murders have fallen since 1989, but for many reasons that says little about the effectiveness of the firearms registry (one reason of the many is that the registry only got going in the late 1990s). But it should be a warning that, regardless of whether we think that this sort of project might in principle be valuable, there are huge potential costs with it — and the costs in the U.S., which has probably 25 times the guns that Canada has, would likely be even greater.

Spam is annoying,

but so is Spam-blocking software that saves hassle for the recipient at the expense of burdening the sender -- especially when the recipient has asked the sender to do him a favor. I just tried to reply to a message that someone at a prominent foundation sent me, asking me for free advice related to one of their projects; the message got bounced as supposed Spam, and I had to call the person by phone (spending the California taxpayer's money, as well as my time) to get a hotmail address to which I could send it. I understand why people set up such software. I just think they should take into account the costs they're imposing on others, which is why I try to be polite but noticeably annoyed when I call the person about it (hoping that this will lead to an internal complaint by the person to the technical people who're in charge of this stuff).

And if you're going to send me a message asking for a reply, and my reply gets bounced by your spam-blocking software, please don't expect me to take steps to get it through (even relatively simple ones).

NPR's Scott Simon on Michael Moore:

Michael Moore has won the Palme d'Or at the Cannes Film Festival, and may win an Oscar for the kind of work that got Stephen Glass, Jayson Blair, and Jack [Kelley] fired. . . .

Some journalists and critics have acted as if his wrenching of facts is no more serious than a movie continuity problem, like showing a 1963 Chevy in 1956 Santa Monica. . . .

In the New York Times, Paul Krugman wrote that, "Viewers may come away from Moore's movie believing some things that probably aren't true," and that he "uses association and innuendo to create false impressions." Try to imagine those phrases on a marquee. But that is his rave review! He lauds "Fahrenheit 9/11" for its "appeal to working-class Americans." Do we really want to believe that only innuendo, untruths, and conspiracy theories can reach working-class Americans? . . .

Read the whole thing. Thanks to Dan Gifford for the pointer.

UPDATE: Krugman's piece is available for free here.

Max Boot on the CIA:

I'm not sure whether his point is right, but it seems quite plausible, and worth passing along. The whole piece is here, but here's the opening paragraph:

If you want to know what's wrong with the CIA -- and these days who doesn't? -- start with the fact that it's almost 60 years old. How many 60-year-olds do you know who take insane risks, rethink cherished shibboleths and produce brilliant flashes of insight? That is what's required to win the war on Islamist terror.

But, like many other prosperous geezers, the CIA would prefer to hit the links and avoid uncouth places where nobody has heard of Metamucil.

Don't get me wrong. There are plenty of bright, energetic people at the CIA (I've met some of them), but, as the reports of the 9/11 commission and the Senate Intelligence Committee attest, they work in a sclerotic institution. . . .

Prediction:

Ramesh Ponnuru e-mails, referring to Slate's Kerryisms:

What will Slate's take on the speech Thursday night be? "I accept your nomination. Vote for me for president."

Sounds like par for the course for that column . . . . And, yes, that is what a politician should say if his only goal were to say the minimum possible, rather than do superfluous things like articulating his positions or winning votes.

Libertarianism and Foreign Policy (long): In my post Libertartarians on War, I raise the question of what Libertarianism as a political philosophy tells us, if anything, about foreign policy apart from the side constraint that individual rights should be respected when pursuing any foreign policy. I noted that my intent was not to debate the war in Iraq but to consider whether there were any Libertarian principles to apply to this or any decision to wage war. David Beito writes in response:

I may not have expressed myself adequately in my earlier response to you. As I stated, I am a "defenseist" (to steal a word used by Douglas Rasmussen) in foreign policy, a doctrine that flows, in my view, logically from libertarian ideals. In other words, I believe that intervention is justified *if* the U.S. is responding to an attack or an imminent threat can be shown. An imminent threat would include deployment of troops by an enemy for an attack.

For this reason, I supported the Afghan war since it was a response to a direct attack. I tried to get your views on the Iraq war because I do not believe that it qualifies under either of these standards e.g. Saddam did not attack us nor did he present an imminent threat (Dubya appears to agree with me!). It was only in this sense that I was trying to draw you into an Iraq debate.

I agree that it is important for us to nail down better guidelines on foreign policy that are consistent with libertarian principles. Otherwise, we will [have] no good way to judge politicians who take us to war for any and all reasons. I believe that defenseism best approximates the proper standard.
This is very helpful. I could view myself as a "defenseist" in foreign policy, which would explain why I opposed and still oppose U.S. military action in Haiti, Panama, Somalia, Bosnia and would oppose it in the Sudan. A humanitarian crisis is not enough by itself, in my view, to warrant the use of the US military as a matter of foreign policy—including the awful slaughter and repression of Saddam's people.

My first question, though, is WHY defenseism is a Libertarian principle of foreign policy? The most obvious possible reason is that this policy is consistent with the natural right of personal self defense (a fundamental right I defend in The Structure of Liberty: Justice and the Rule of Law). By this argument, none of the individuals who would be engaged initiating such a war would be violating the rights of others (by this decision) because they were acting to protect the rights of themselves and the citizenry of their country. So far so good.

But would the U.S. Army been acting unjustly on Libertarian grounds it it goes to the aid of innocent civilians in Somalia, the Sudan, or Iraq? I do not see why. If these people are indeed the victim of horrible rights violations a solder regardless of whether his uniform is American or Iraqi would be justified in going to the defense of the victim according to Libertarian first principles. So if "defensism" is a proper principle of foreign policy, it does not appear to follow from Libertarian first principle, since either going to the assistance of the innocent and not going to her assistance is an equally justified act. (This is apart, of course, from the moral duty one may have to help the innocent.)

Whence comes the intuition that defenseism is "a doctrine that flows, in [David's] view, logically from libertarian ideals"? It comes, I think from equating governments or states with individuals. Just as individuals may only act in self defense, then so should governments, whether or not this claim is true, it does not flow automatically from a Libertarian theory of individual rights. In the example I gave, the U.S. soldier would not be defending the US, but he would be defending a foreign victim of a rights violation and would not, on libertarian grounds be acting unjustly. If defenseism is a good principle of foreign policy, therefore, it must be for reasons other than Libertarian political theory. For example, it could be justified on prudential grounds or on constitutional grounds.

But this is just the first problem with claiming a defenseist foreign policy is entailed by libertarian political theory. The second problem is David's invocation of the criterion of "imminent threat." David contends that military action is justified only "when the U.S. is responding to an attack or an imminent threat can be shown. An imminent threat would include deployment of troops by an enemy for an attack." The obvious source of this intuition is that requirement of "imminence" is normally a part of the rule of law governing the natural right of self-defense by individuals. But this doctrinal requirement arises, I think, because of problems of knowledge.

A threat is a communication of a intent or willingness and ability to violate the right of another. When this information is communicated, a victim need not wait until the blow is struck or the bullet is fired. Threatening a rights violation is itself a rights violation that justifies not only self-defense but also restitution. We adopt a rule of law requiring, for example, an overt act representing an imminent use of force both because we otherwise lack knowledge of a person's hidden intentions and because intentions alone are not enough to justify self-defense. We all have intentions, some of which are illicit, we never act upon. For this reason, and because we cannot ordinarily know what is in the minds of other people, mal-intent does not violated the rights of others the way a communicated threat does. And to be sufficiently sure that a rights violation is being threatened, ordinarily a threat requires that we wait until an overt threatening act is performed.

But this rule of law doctrine of "imminent threat" is not a necessary prerequisite of justified self defense in all cases. As I discuss in The Structure of Liberty, what is needed to justify self-defense in principle is a communication of intent to invade rights in a context that suggests its seriousness. A communication constitutes a threat that violates the rights of another if it puts him in reasonable fear of being the victim of a battery or worse.

The example I give in SOL is of someone, let's say it is me, who takes a full page advertisement in The New York Times announcing my intention to murder, say, David Beito at some time within the next 7 days. Assuming it is not obviously a joke, and that I apparently have the means to carry out my threat, would David have to wait until I came around to his house and made an overt threatening act, which ordinarily is required by the law of self defense? Given the nature of this "standing threat," need there also be a showing of imminence?

I think under these special circumstances, David should not have to wait until I chose a time and place convenient for my attack but could seek me out to preemptively defend himself against me at a time and place of his convenience. In SOL I call this "extended self-defense." What makes this hypothetical unusual and unrealistic is the unambiguously objective manifestation of intent in the advertisement. The advertisement is what constitutes the threat that is the necessary condition of self defense and no further overt act is required. Under these circumstances David is entitled, in my view, to "preempt" my attack before I ever perform an act that can be deemed "imminent" (like produce a weapon and point it in his direction). But this is so abnormal a hypothetical (criminals do not normally advertise their intentions) that it does not undermine the normal importance of imminence or to the law of self defense.

But advertisements and imminent acts (like massing armies on borders) are not the only ways to communicate a threat. So would speeches coupled with less normally obvious behavior. If the content of these other communications are sufficiently clear, then self defense would be warranted even in the absence of an overt act that constitutes an imminent threat. So "imminence" may not be a requirement of even a defenseist foreign policy (assuming that a defensivist foreign policy is logically entailed by libertarianism, which I doubt). What is required is a threat.

In the case of the government of nation states, however, there is another principle that has long governed the justificiation of war, and that is when nongovernmental organizations (NGOs) are operating within the borders of a nation state, and these NGOs, but not the host state, constitute a threat to others. Upon fair warning, if a nation state does not stop these NGOs from engaging in their activities, the government of the threatened people, or another asked to aid them, would be justified in taking military action against the NGO within the borders of another, and even against the host government itself if it gets in the way. Of course, if the host government is affirmatively aiding these NGOs (as opposed to passively acquescing to its presence) it may be targeted even if its armies do not themselves constitute an imminent threat--as in Afghanistan which David finds to have been a just war on defenseist grounds.

It is no violation of the "sovereignty" of the host country because sovereignty presupposes physical control over its territory and, it matters not whether its lack of control is on purpose or because the host government is too weak. By failing to effectively use its sovereign powers to eliminate the danger to others, these others may act defensively to fight and defeat the NGO within the host's border. This is entirely justified defense, though the host government may not itself pose any threat whatsoever to the people of the other state.

None of this however, is to argue that a military invasion is always (or ever) a good foreign policy. Many libertarians are "noninterventionists" who seem to oppose almost any military invasion outside the territory of the US on the ground that the unintended consequences of such actions are likely to be terrible, as indeed they often are.

My original point was simply that this type of noninterventionism, whether right or wrong, does not follow from Libertarian principles as some of its adherents apparently assume. It is more a pragmatic judgment of the sorts of rightful actions that will or will not yield good consequences. This judgment could lead to certain principles of foreign policy, but these should not be confused with Libertarian first principles. In addition, while I respect those who hold to this position, it tends to ignore the unintended consequences of nonaction, which can be just as harmful. Unintended consequences is a concept that, logically, runs in both directions.

Whether the war in Iraq was justified is again a subject I am trying to avoid. Assessing this issue would require, in addition, analysis of the status of American-Iraq relations in the wake of the cease fire after the first Gulf War that was a response to an Iraqi invasion, and whether the repeated violation of that cease fire by the Iraqi goverment warranted a resumption of hostilities if the US so chose. Iraq may or may not have harbored Al Qaeda the way Afghanistan was. Invasion may have been justified on entirely different grounds, but even if shown to exist, these grounds do not establish whether the policy of war in Iraq, even if justified, was a good strategy or prudent all things considered. I think it was, but I know other Libertarians whose judgment I respect who strongly disagree. My point is that Libertarian principles have little, if anything, to offer on this question. If defensism is to be warranted on any sort of Libertarian grounds, it must be prudentially as a doctrine that indirectly leads better to the protection of rights than alternative policies (for example, by reducing the chances that the rights of Americans will be oppressed by military establishment or the restrictions on liberty that often accompany a war).

Finally let me hasten to add that, though I have thought a lot about Iraq as a citizen, with these posts I have only just begun to think about the relationship of Libertarianism with foreign policy. I am completely open to being persuaded that this analysis is cpmpletely wrong (as well as to encouragement that I am on the right track). Indeed, I had hoped that, by raising the issue, someone else would to the heavily lifting and save me the trouble. So comments and responses are appreciated. I will post them as I am able (given my travels) and if they seem to be useful contributions.

[I am composing this using a German keyboard, so please forgive any strange spelling typos, or more than normal for me.]
Man raised by chickens?

Thanks to GeekPress for the pointer.

Death and DVDs:

GeekPress reports:

Prosecutors in Alaska have filed the first-ever charge of second-degree murder because the suspect was allegedly watching a DVD while driving his vehicle instead of watching the road, which then led to his striking and killing the driver of another vehicle. The movie he is accused of watching is "Road Trip".

The post contains a link to the newspaper article. The most plausible theory for the prosecution is that watching a DVD while driving is "knowingly engag[ing] in conduct showing extreme indifference to human life."

It's a fearsome weapon of war against the capitalists and a valuable trademark:

There really should be nothing inherently odd or amusing about this (hey, business is business) -- and yet somehow there is:

"We see a great number of products which are named after Kalashnikov, my name," said Mikhail Kalashnikov, the weapon's original designer. "They are buying Kalashnikovs from other countries."

Thanks to Dan Gifford for the pointer.

Fun Tax Court opinion:

Yes, such a thing is possible, even from a non-tax-lawyer's perspective -- see Calarco v. Commissioner, written by my friend and fellow Kozinski clerk (though he clerked in the mid-80s) Judge Mark Holmes. My favorite item was an excerpt from Gulliver's Travels, which I read many years ago but had long forgotten:

The highest tax was upon men who are the greatest favourites of the other sex, and the assessment according to the number and natures of the favours they have received; for which they are allowed to be their own vouchers. . . . The women were proposed to be taxed according to their beauty, and skill in dressing; wherein they had the same privilege with the men, to be determined by their

own judgment.

More on Spiderman and Jews:

Todd Seavey writes:

Spider-Man 2 co-writer (and Pulitzer winner) Michael Chabon has certainly written about Jew/superhero parallels before, in The Amazing Adventures of Kavalier and Clay, while director/plotter for the films Sam Raimi was raised Orthodox Jewish . . . .

Jesse Lansner also adds (though naturally a superhero's being created by a Jew doesn't mean that the superhero is himself Jewish):

[M]any [comic book superheroes] were created by Jewish writers. Superman was created by Jerry Siegel and Joe Shuster; Batman by Bob Kane (nee Kahn). All three were Jewish. Almost every Marvel Comics hero was created by Stan Lee and Jack Kirby, who were born Stanley Lieber and Jacob Kurtzburg.

It's a conspiracy, I tell ya . . . .

Justice Breyer in the Kobe Bryant gag order case:

Marty Lederman (SCOTUSBlog) summarizes yesterday's order.

Copyright and forwarding of messages posted to discussion lists:

Someone asked me -- is it a copyright infringement to forward off-list (say, to some friends, or to another discussion list) a message that has been posted to a large (say, 200-member) and open-for-subscription discussion list? Here's a quick analysis.

  1. E-mail, like nearly all writing (including things written on a blackboard or a cocktail napkin, if they're more than just a few words), is automatically copyrighted. You don't need to put a copyright notice on it, and you don't need to register it anywhere. If someone asks you "What do I need to do copyright this?" (where "this" is something of even modest complexity, beyond just a few squiggles or several words), the answer is "Write it down."

  2. But there are two ways in which forwarding or other copying of a messages may nonetheless not be infringement. First is if the writer conveys an implied license to make copies -- if the writer acts in a way that a reasonable reader would interpret as voluntarily permitting others to copy.

    A classic example from the real world is if someone sends a letter to the editor of a newspaper that starts with "Dear Editor:." Is the letter protected by copyright? Sure, it's written down. Would publishing it be copying? You bet. But a reasonable publisher would interpret the writer's conduct as authorizing (here, even requesting) that the letter be copied. Likewise, copying a sender's message when replying to the whole list is almost certainly implicitly licensed; the same is true of copying the message to a separate folder on your computer, or printing it out for your physical files.

    I suspect that forwarding off-list is generally not implicitly licensed, because there's not the same kind of well-established understanding that this is fine -- but it's impossible to tell for sure, since this doctrine is quite vague, and since to my knowledge there've been no published court opinions applying it in this context (nearly no-one sues over such things).

    Note that implied licenses can always be disclaimed by a prominent notation on the writer's part. A letter to an editor that says "Dear Editor: This is not for publication, but I wanted to tell you that . . ." does not implicitly license the editor to publish the letter, since a reasonable editor wouldn't think that the author agrees to have the letter be published. Likewise with an e-mail that starts with "NOT FOR FORWARDING." (Fair use claims, see below, can still be made despite such a notation, but not implied license claims).

  3. Second, forwarding (to an off-list friend or to another list) a message posted on a discussion list may well be a fair use. This is especially so if the purpose of the copying is commentary or criticism of the message ("Look what a horrible argument I saw being made on a list I'm on : . . . Here's why it's horrible [point-by-point rebuttal follows]."), but it's probably even so if the purpose is simply to pass along something that's interesting.

    The forwarding is noncommercial; the item has probably been published, because it has been distributed to a large group of people; the item is probably mostly factual rather than creative writing (unless it's a list for posting one's short stories or some such); and, most importantly, there's virtually no effect on the value of or market for the work, since there's no market for the work in the first place. If one is forwarding the entire e-mail, that cuts against fair use; but on balance, I think there'd be a credible fair use claim in any event. Again, though, since there've been no reported cases on the subject, it's impossible to tell whether such off-list forwarding would be fair use.

  4. Note, though, that if you change the facts slightly, both these analyses may end up being different. If the list is small, then the post might be seen as unpublished, and the fair use claim would be much weaker. If the item is reprinted or reposted in a commercial place (such as a newspaper), then the fair use claim would again be weaker. My analysis above is limited to a specific scenario: Noncommercial forwarding of a message posted to a fairly large and open list.

Thoughts on Day 1 of the Convention:

1) Y'know, a speech isn't any less negative just because the convention organizers leak the information that they're not allowing any negative speeches-- or, for that matter, because the speaker tells us that it's not negative.

2) ... but man, can Bill Clinton make you believe that it does. His speech was hardly if at all less of an attack than Carter's; it was more of an attack than Gore's or Hillary's. (See Ramesh Ponnuru, David Kusnet.) But it didn't feel that way. He's simply a brilliant, masterful speaker. I can't offhand think of a particular speech he's given that's memorable and enduring, like Kennedy's inaugural or Reagan at Westminster or the Berlin Wall. His speeches are in important ways banal, of the moment, and always nakedly partisan and political. But he's so damn good at them, and he's gotten better over the years. (He's outgrown the singling out of token audience members, for example.) He's the only currently active political speaker I'd rather watch give his speech than read the transcript later.

3) Still, I'm curious to see whether the mainstream press actually buys the claim that last night wasn't loaded with Bush-bashing. Even Clinton's wasn't hidden; it was just coated in his honeyed voice. Carter's would have been astonishingly nasty, if I still had the capacity to be astonished by Carter. (Much of the bashing was effective. Some of it was right. And bashing the incumbent is what a challenger's party does. But I dislike the sanctimonious pretense that "As long as we don't repeat Michael Moore's theories, we're running a positive, 'choice of visions' campaign.")

4) It seems like the pure-play bloggers were too busy getting interviewed yesterday to do much actual blogging. The magazine group-blogs are, so far, the sites to be reading: The New Republic, The American Prospect, Reason. Slate's Will Saletan has a good blog going. NRO's Corner hasn't set up a special blog for the contributos who are in Boston, the way the other three have, and so far it hasn't shone-- because it's only posting bite-sized bits of snark, and leaving the two-paragraph-or-more contributions as separate NRO stories. So far I prefer the convention-only blogs that include a mix of long and short posts.

5) Go read all Andrew Sullivan's post-midnight posts. On-site, Josh Marshall's got some good stuff up.

Update:

Patrick Belton was saving up all his posts for one long mega-post in the morning.

Monday, July 26, 2004

If You Are a Minor,

taking nude pictures of yourself and e-mailing them to your boyfriend is a really really bad idea. (Thanks to The Curmudgeonly Clerk for the link.) Unfortunately, I don't have time to get into the very interesting legal questions raised by the prosecution, but the Clerk has some thoughts on this that are worth checking out.

Nudity on drive-in movie screens

is constitutionally protected — signs containing dead fetuses are forbidden. Yup, that's the First Amendment rule that seems to apply in the Eighth Circuit (Missouri, Minnesota, and some neighboring states).

The first part of the rule (that nudity on drive-in movie screens is constitutionally protected) has been well-established since 1975, when the Supreme Court struck down a ban on such nude displays in Erznoznik v. City of Jacksonville. The Court concluded that

  1. the offensiveness of the speech to some viewers generally can't justify restricting it,

  2. the presence of children who can view the material can't justify restricting it either, unless it's "obscene as to minors" (which requires it to be not mere nudity, but rather sexually explicit), and

  3. the risk of traffic accidents caused by drivers being distracted by the nudity can't justify a selective ban: "By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist."

So that's the law, set forth by the Supreme Court. Agree with it or not, there it is.

But just today, the Eighth Circuit held that police officers may require anti-abortion protesters to put down their three-by-five-foot signs containing color photographs of aborted fetuses. Why? Well, because they supposedly distract drivers, and perhaps also because they are "frightening" to "very young children." What about Erzoznik? The majority says nothing about it (except for one indirect citations that doesn't even begin to explain how this case is different from that one).

The one possible distinction between this case and Erznoznik is that here some drivers did specifically complain that they were distracted. One can imagine that the police might have therefore thought that this speech was unusually distracting, much more so than any other kind of sign or billboard that drivers might see.

But I'm extremely skeptical about rules that give the police the discretion to make such decisions (and the Court has been skeptical about such discretionary rules, too, where speech restrictions are concerned). There's no objective metric for deciding which images are more distracting than others. Nor is the frequency of driver complaints much of a neutral metric — we're all much more likely to complain about things that are distracting and ideologically offensive to us than we are about things that are distracting but appealing. Moreover, once people learn that "Officer, I find those signs distracting" is a good way to get the signs taken down, people will be much more likely to make that sort of claim.

And of course these sorts of distraction claims can be made against any speech that some people find offensive enough. I'm sure that some people are offended to the point of distraction by flagburning, by Confederate flags, by anti-veteran messages, or by a wide range of other speech. Under the Eighth Circuit's reasoning, whenever a few drivers make such an objection, and police officers decide to credit the objection — something that's almost entirely up to the officers' own judgment — the speech can be suppressed.

This is a really bad decision, one that I hope either the Eighth Circuit sitting en banc or the Supreme Court will quickly reverse. I've been somewhat skeptical of some Justices' claims that the Court has been treating anti-abortion speech worse than other speech. But here the Eighth Circuit is indeed allowing restrictions on anti-abortion speech that are flatly inconsistent with the rule for speech generally. (The same, I think, was true for the Nuremberg Files case from the Ninth Circuit a couple of years ago, which I'm sorry the Court refused to hear.)

I'm glad I don't live on "Skunk Misery Road," in Higganum, Connecticut. (Thanks to the here Hartford Courant; and see here for some more Connecticut road names.) UPDATE: Mark Eckenwiler also points to Toad Suck, Arkansas.
Can the Supreme Court correct its own decisions?

Reader Steve Sturm writes, about the Blakely decision, which is leading many lower courts to strike down the Sentencing Guidelines on constitutional grounds:

Today's WaPo editorial calls for the Supreme Court to interupt their vacation and fix the Blakely mess (their characterization).

Can the Court issue rulings without a case on which to rule (I thought they didn't like to/couldn't issue advisory rulings)? Are there such things as a legal 'do-over'?

Well, the Court couldn't just decide on its own today, "whoops, we got it wrong in Roe v. Wade, we'll just issue an order adopting the contrary rule." But the losing party can file a petition for rehearing -- there's one due in Blakely August 18 -- and the Supreme Court could revise its decision in response to that petition. I think the Court can also just unilaterally correct the decision at any time before the so-called "mandate" issues; in this case, I suspect that the extension of time to file a petition for rehearing will be seen as suspending the issuance of the mandate.

Now the Supreme Court almost never does either of those things, but courts of appeals sometimes do, and I think it would be within the Supreme Court's power to do it. Also, the Court has before it the Second Circuit's certified questions about the impact of Blakely on the Guidelines. The case, U.S. v. Penaranda, is now docketed, and the Court can in theory accept the certificate and give an answer -- one that might clarify Blakely's scope, or even reverse that decision -- very soon.

But in practice, I think the Court (1) will likely agree to hear the case very soon, since there is already a circuit split on an important issue, (2) might possibly make the decision to hear it in the next few weeks, rather than waiting until the late September / early October conference, so that the parties could start briefing the issue quickly, but (3) would likely not make a definitive decision until it gets briefs and hears oral arguments. Though the Justices could decide the matter without full briefing, or even any briefing (for instance, if they recall the mandate and amend the decision on their own), I think they don't want to do that -- briefing on important and difficult questions such as this really is valuable.

Government requires restrictions on Al-Jazeera:

The Canadian government that is, apparently under the same anti-hate-speech laws that some on the Left have urged as good examples for the U.S. Here's what the Washington Post reports:

Last week, the Canadian Radio-Television and Telecommunications Commission announced that it had approved al-Jazeera, but required cable and satellite distributors to monitor its programs 24 hours a day. The agency also took an unprecedented step in allowing cable companies to alter or delete "abusive comments" from al-Jazeera programs. Currently, it is illegal for distributors to delete programming, but in this case, the commission made an exception. . . .

[D]uring the application process, a number of groups raised concerns about the content of previous broadcasts. Canadian officials said they could not bar the station, which had never violated Canadian regulations because it had never been allowed to air legally in Canada. Instead, the agency decided to require that cable distributors be responsible for the channel's content. The agency mandated that the distributors keep tapes of the program but left it largely up to cable companies to decide how they would regulate the broadcasts. . . .

Elie Kawkabani, president of Reach Media, a Los Angeles-based media marketing and distribution company, which holds the rights to distribute al-Jazeera, said the channel has been marketed in the United States since 1998 with no such restrictions. . . . "They've given us approval but made it difficult for cable companies and satellite companies to carry it. They are not set up to monitor and decide what is appropriate or not appropriate. Their role is not censorship . . . . They should not be concerned or involved in the content they deliver. The CRTC has made it impossible for us to find distribution in Canada." . . .

But the Canadian Jewish Congress argued to the commission that al-Jazeera has disseminated anti-Semitic hate speech, providing a platform for "hatemongers" and broadcasting "stereotypical characterizations of Jews that resort to classic Judeophobic themes such as the image of the Jews an alien, evil, world-dominating conspiratorial force," according to commission records. "Moreover, the CJC argued that al-Jazeera has gone further by broadcasting threats to the physical security of Jews and engaging in Holocaust denial." . . .

I'm not positive, because I'm not an expert on Canadian law, but it seems from context that the Canadian government isn't just allowing cable companies to edit Al-Jazeera -- it's essentially requiring them to do this, by threatening to hold them "responsible for the channel's content," presumably meaning any anti-Semitic viewpoints that the channel expresses. I'm sure that I'd find much that's carried on Al-Jazeera to be offensive and repugnant. But that's not a sufficient reason to deny listeners -- both those who may agree with Al-Jazeera and those who just want to know what this internationally important broadcaster is saying, including especially what sort of anti-Semitic propaganda it might be spreading -- the ability to hear those viewpoints.

Incidentally, such a restriction would be quite clearly unconstitutional in the U.S. In FCC v. Pacifica Foundation, the Supreme Court did uphold -- in my view incorrectly -- restrictions on profanity in over-the-air broadcasts, but made clear that restrictions based on the broadcast's offensive viewpoint are not allowed.

Daniel Okrent on Liberal Bias at the NYT: This is not exactly news, but it's interesting coming from the paper's own Public Editor. Some excerpts:
  Is the New York Times a liberal newspaper? Of course it is.
  . . .
  I'll get to the politics-and-policy issues this fall (I want to watch the campaign coverage before I conclude anything), but for now my concern is the flammable stuff that ignites the right. These are the social issues: gay rights, gun control, abortion and environmental regulation, among others. And if you think The Times plays it down the middle on any of them, you've been reading the paper with your eyes closed.
  . . .
  Start with the editorial page, so thoroughly saturated in liberal theology that when it occasionally strays from that point of view the shocked yelps from the left overwhelm even the ceaseless rumble of disapproval from the right.
Waiving Waiver:

Can you waive an argument that your oppponent waived an argument? Apparently so, according to this decision of the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Delgado-Garcia, the court found that the defendants, who were charged with conspiring and attempting to bring illegal aliens into the country, waived most of the grounds for their appeal by entering unconditional pleas after trial. Yet on one issue, whether the relevant statute applies extraterritorially, the court held that the government waived the argument that the defendants waived their defense. The government's waiver did not matter, however, as a divided panel found the relevant statute does apply extraterritorially, and the convictions were upheld.

No Democracy for Workers:

I will admit to not being the biggest fan of organized labor. (Threats against one's life and one's family as a child will do that to a guy.) Even setting aside my visceral hostility to unions, I was schocked to come across this report (third item) that John Kerry is now opposed to secret ballots for votes on union representation. Without a doubt, organized labor believes that allowing union organizers to collect cards from workers makes it easier to certify a union -- but it also facilitates coercion and fraud. If a company's workers support unionization, then the union will win a secret certification vote. This looks like a sop to Big Labor, pure and simple -- and one that comes at the expense of workers. Is there any other plausible basis can one defend Senator Kerry's position?

Do you have the time?

When someone asks the author of Slate's Kerryisms "Do you have the time?," does he just say "Yes" and walk on? If someone else says "Yes, it's five thirty," does the author condemn the "it's five thirty" as a "caveat" or "embellishment"?

That's what it looks like if you read the most recent Kerryism. Larry King asked John Kerry, "Is abortion a great moral issue to you?" Do you think that this was a question that called for a literal yes-or-no answer? Or do you think that the way normal people speak, such a question is usually an invitation for the candidate to explain his moral views about abortion? John Kerry apparently chose the latter interpretation:

Sure it is. Absolutely. And I think it's far more complicated than public life allows the discussion for. I mean, being for choice does not mean you are for abortion. Neither Teresa nor I are for abortion. Abortion should be rare, but safe and legal, as President Clinton said so often, and I think appropriately.

I think that it's really a question of who should make this decision, and how do arrive at it. But there is morality. Of course there's morality involved. And we should be talking to people in America about responsibility, about adoption, about other choices. And I want to have a better conversation than I think we've had on it. But it doesn't change my position on who chooses. And I will protect that right of choice.

This may have been more verbose than necessary, but it was a sensible thing for a politician to say.

On the other hand, this is what Kerryisms gave as Kerry's answer without "caveats and embellishments":

Sure it is. Absolutely.

If Kerry had said that, he would have been seen either as a fool (someone who thought the question called for a yes-or-no answer) or as evasive (someone who knew the question called for an explanation of his moral stand, but who chose to duck it by pretending that the interviewer was looking for a yes-or-no answer). And if Bush had given such an answer, it would doubtless appear in Slate's Bushisms.

Now I'm not at all sure that the rest of Kerry's answer could correctly be called "caveats and embellishments." But even if it is, then this example just shows that there's nothing funny, worthy of derision, or even particularly noteworthy about "caveats and embellishments." In this case, they turn a nonresponsive answer into a responsive one; an answer that's worthless to the voters into one that's useful; an answer that's bad politics into one that may be good politics; an answer that would seem surreal into one that expresses a plausible moral position (whether or not one thinks it's the right one). Why then is Slate condemning them? If it wants to fault Kerry, that's great -- but fault him for something that deserves faulting. If it wants to make jokes, that's fine, too; but where's the joke here?

I've criticized Kerryisms many times in the past; maybe I've reached the point of diminishing returns. But it just galls me to see this sort of stuff -- not substantive, not funny, just empty snideness descending into self-parody -- in a magazine of Slate's prominence and quality.

It was actually Parkerstein, until they made him change it:

So Peter Parker is explaining to MJ that he's just like everyone else after all — she doesn't yet know he's Spiderman, but he does — and the line he uses is . . . "Punch me, and I bleed."

Where have we heard that before? Are the writers trying to tell us something? Well, probably not, but in the long tradition of Jews claiming to find Jewish connections everywhere, I thought I'd bring this up. Plus, hey, we need a superhero, and Arthur, The Tick's sidekick just doesn't qualify.

UPDATE: Jacob Levy passes along this list of Jewish superheroes, and The Spoons Experience e-mails me a couple -- but if you check the list, you see that it proves my point. We need a serious superhero, not just Colossal Boy. (Please, no need to e-mail me about Colossal Boy's or the others' relative merits, or about the supposed inaccuracy of the list I link to.)

But Spoons points out something more important:

I think you should be able to claim Spiderman. After all, it sounds like a Jewish name, doesn't it? Can you hear it? Federman, Goldman, Grossman, Leiberman, Friedman...
Wow -- how could I have missed that? Maybe that means that all the big -man superheroes are Jewish.

The Presumption of Liberty In Action?: The Valley Morning Star in Harlington Texas ran this editorial on July 17th, in which they employed the Presumption of Liberty. (They appear not to have an archive so I cannot provide a direct link)
EDITORIAL

Gay marriage: The debate disappoints


Advocates on all sides assure us that the failure of the Senate, by a 50-48 margin, to get even a majority in favor of a constitutional amendment to ban gay marriage is not the end of the process, but only the beginning. We suspect they are right, but we fervently wish that it were not so.

The presence of so much heat and so little light in the Senate should give us all reason to regret the tendency to want to decide such personal, intimate issues through the political process. And, while there are practical reasons having to do with consultation during illness, property rights, inheritance and the like to want to continue to do so, it should raise the larger question of whether the state should be in the business of licensing marriage — which predates the modern state by several millennia at least — at all.

The vote Wednesday, far from being a sober consideration of the grave issue of amending a basic document of governance, was a circus of partisan opportunism. President Bush, seeking to firm up his base of conservative support, made marriage between a man and a woman the only topic of his radio address last week. Then the Democrats, having counted votes, agreed to a vote on one proposed amendment (several are floating around), but only one. That one failed.

Both parties hope to use the issue to advantage in the November election.

The issue is rich with ironies. Conservatives — though not all of them — who as a general rule like to keep power at the most local possible level and resist tinkering with the nation's fundamental charter, seek a constitutional amendment to define a single national standard on marriage. Liberals, who have no qualms about interfering with freedom of association when it comes to the hiring practices of Boy Scouts or churches, want the state to bless the freedom of gay people to associate in marriage.

Thus, we have an argument over which wrong way to regulate the most intimate of relationships. Should it be done by legislatures or votes of the people, or by courts finding new rights?

How about neither? What is missing in the debate is the subtitle of Boston University law professor Randy Barnett's recent book, "Restoring the Lost Constitution — The Presumption of Liberty."

As University of Chicago law professor Richard Epstein put it in a recent Wall Street Journal article, "Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals." The state may intervene to protect people from harm, like assault or pollution, but not from actions seen as offensive but not unambiguously harmful.

A presumption of liberty would suggest that this delicate issue is best handled by the gradual, subtle interplay of voluntary decisions by free people.

Most churches probably will decline to bless gay marriages, for example, but some might. Some homosexuals will want to call their relationship a marriage while others will not. Everybody else will be free to recognize such unions as valid or not. Men and women, meanwhile, still will be free to marry and raise children — or not — however this issue plays out.

The impulse to make every issue a political one, to be decided for everybody by a state institution, is needlessly divisive. Why not take a deep breath, let people make their own decisions, and decide on an individual basis how to treat people who make troubling decisions?

Too confusing? Hardly less confusing than politicizing the personal.
I myself am not convinced that state marriage is a liberty question of the same type as cohabitation or sex is. Marriage, however, can be viewed as a type of contract. If so, then there is no reason why gays should be prevented from entering into this form of legally binding agreement. This IS a liberty question, to which a Presumption of Liberty would be relevant.

Everything that is legal, however, is not necessarily approved. If marriage is instead viewed as a state imprimatur or sanction of some relationships over others, then the state need not give out its approval unless it actually approves. The obvious solution here is to separate the contract aspect of marriage into one institution called "civil unions"--providing a form contract for such unions--reserving the approval or disapproval of some civil unions to organized religions, which were once the sole regulator of marriage long before the rise of nation states. This, I take it, is the recommendation of the editorial in the Valley Morning Star, to which I am very sympathetic.

Or you can have goverment-created "civil marriage" status over and above "civil unions" contracts, which would convey governmental approval in the form of extra financial subsidies and benefits conveyed on these particular unions--much as there are subsidies for many other types of activities, like research and development, the government deems productive. While I am generally unsympathetic to such social welfare schemes, this one would not, I don't think, be restricting liberty and, therefore, would not implicate the constitutional Presumption of Liberty I favor in my book.

In short, I think it pays to separate the contractual aspects of marriage from that of social or religious approval. When one does, the constitutional issues become somewhat clearer, at least to me.

Sunday, July 25, 2004

The Boss of Malcolm, Dirk, Monica, and Others

I also got a lot of reader responses to my post on "You're not the boss of me!" Most of them wrote to tell me that if I had not been so quick to filter the They Might Be Giants song "Boss of Me" out of my Google search, I would have learned that it is the theme song for Malcolm in the Middle, and has been for all five or six seasons of the show. That, they pointed out, probably had a lot to do with the phrase's increasing popularity.

A good number of respondents also mentioned the movie Boogie Nights, in which porn star Dirk Diggler tells off his producer, saying, "You're not the boss of me, Jack! You're not the king of Dirk! I'm the boss of me! I'm the king of me. I'm Dirk Diggler!" (Thanks to Mike Miller and D.G. Judy for the exact quotation.) I actually did see Boogie Nights, and I'm surprised I didn't notice that line, especially since it seems to have made an impression on so many others. Maybe it even inspired TMBG; Boogie Nights came out in 1997, and "Boss of Me" in 2000, so it's possible.

Though these two pop culture appearances may have helped popularize boss of me, the strange syntax predates them. A few readers noted that Monica Lewinsky had been widely quoted as saying it. VC reader Michael Gebert notes that Bob and Ray often used the phrase for a couple of recurring characters in their racio show from the 50s to the 70s. And several readers told me about hearing it in their childhood, the earliest being the 1960s.

As for how the phrasing actually came about, there were a couple of hypotheses that a number of readers proposed. Some said they thought it was supposed to imitate the syntax of a child, being as how kids are more apt to say "You're not the boss of me" than (most) adults are. I don't buy this one. It leaves unaddressed the question of why this should sound like childish syntax. After all, how many kids have you heard saying things like friend of me, doctor of me, mother of me, etc.? In other words, most kids seem to have possessives with relational nouns other than boss well in hand, so the question is still: What is so special about boss? And anyway, I think you sound equally childish whether you say, "You're not the boss of me!" or "You're not my boss!"

Other readers guessed that boss of me was formed on analogy with phrases such as king of England, mayor of the town, chair of the committee, etc. At first I didn't put much stock in this hypothesis, either, since the of-phrases in these examples are geographic areas, or collective nouns, not singular individuals. However, one reader (whom I'd be happy to credit, but who wishes to remain anonymous) pointed me to the 1979 movie Norma Rae, in which the title character tells an antagonist something like this:

you may be the boss of this town, you may be the boss of this factory, you may be the boss of this shop, but you ain't the boss of me.

This speaker goes from town to factory to shop until she gets to the smallest location of all, consisting of just one person, herself. If she'd switched from boss of to my boss at the end, it would have ruined the flow, so I can actually see a reason for saying boss of me here, and an actual instance of it being formed by analogy with more natural boss of constructions. So my favorite hypothesis at this point is that the originators of the phrase were drawing a contrast between having authority over some area or group of individuals (family, classroom, etc.) and having authority over them personally; and once coined, the phrase was imitated by other speakers.

Thanks to all the VC readers who took the trouble to send me their comments, on this topic, on "doing the best" , and also on Nuh-uh/(y)uh-huh. I'll be doing a followup on that last one, too, but it'll have to be back on my own blog, and after I can get an International Phonetic Alphabet font to display there. And finally, thank you for inviting me back, Eugene; I hope you had as much fun on your vacation as I did here.

Update: Do Your Best at What You Do the Best Several VC readers responded to my post about the hook
Everybody does what they do best the best
in a children's song ("The Mighty Worm," on Ralph's World: Peggy's Pie Parlor). Maestro and Russ Petti noted the existence of a reasonable, non-tautologous, fifth reading of the line. It's that whatever activity is your personal best, that's the one that you tend to work hardest and most enthusiastically at, and do to the best of your abilities. If this reading is available in Ralph Covert's mental grammar, then I'd agree that it's probably the meaning he intended. However, I can't get that meaning from the way the line is phrased. For me to get that reading, such that when you're doing your personal-best activity, you always do a full-assed job and not a half-assed one, the line would have to be phrased like this:
Everybody does THEIR best at what they do THE best.
Meanwhile, VC reader Barry Jacobs has a slightly different take on Maestro's and Petti's interpretation. He says:
Apropos your post ... referencing Ralph's World: it seems to me that Ralph has slyly been teaching your kids basic economic theory. To wit, the theory of comparative advantage states that optimal productive effeciency (call this "Efficiency Best" or EB) is attained when everyone engages in the activity in which he has a comparative advantage (call this "Comparative Best" or CB). As David Ricardo illustrated in his famous (to economists) mathematical example, a person's CB activity need not be one in which he is Better Than Everyone Else ("BTEE" in your terms), but rather, is simply that activity that maximizes the value of his time.

Indeed, it is entirely possible that a person who has a choice between a low-value activity that's his PB and maybe even his BTEE (say, for example, sending emails to Conspirators) and a high-value activity that he's only mediocre at (like studying for his bar exam) might well "best" do what he personally does worst, but comparatively does best. To give another example, my doctor told me the other day that he won the "employee of the month" award seven months running at the McDonald's he worked at in high school. I'll be he still flips a mean burger.... But face it, our economy can get by better without a super-keen fry cook than it can without even a mediocre doctor.

So, an appropriate exegesis of Ralph's song should go something like this:

Everybody does most efficiently what they [sic] have the greatest comparative advantage in doing.

It loses something in the translation, though, doesn't it?

The only flaw I see is that the only two ways I personally can interpret the phrase the best after a verb is the Personal Best and BTEE readings I discussed before, and I think just about all other English speakers are the same way. Is there anyone out there who gets the PB, BTEE and CB readings? BTW, if you like hearing about economic principles applied to strange topics like the lyrics in kids' songs, you'll probably get a kick out of the kind of stuff my brother talks about here and here.
Bourne Again: I saw "The Bourne Supremacy" this weekend, the sequel to the spy-thriller hit "The Bourne Identity." I enjoyed the film, especially the frenetic car chase, even if it had even less to do with the Robert Ludlum book upon which it was based than the first one. (For the record, Ludlum's "The Bourne Identity" is unquestionably one of the best spy novels of all time.)

One bit of political background in the movie struck a discordant note. In general terms (so as not to spoil the plot), a Russian politican who is assassinated is identified as both a "liberal reformer" and an opponent of oil privatization (the latter of which may have gotten him killed). Maybe I don't know enough about Russian politics (in fact, I'm sure I don't), but aren't the "liberal reformers" in Russia typically classical liberals and quite free market? If this impression is correct, wouldn't a "liberal reformer" support privatization, even if he criticized potential corruption? Or is my sense of Russian politics just off base?Update: "Non-Muhammed Volokh," Russian emigrant, economist, and former blogger e-mails with the following observation, suggesting the filmakers were not so off-base after all:

Lots of liberal reformers in Russia aren't so hot about privatization-as-actually-practiced, which was a highly corrupt affair. To the extent that privatization is seen as Yeltsin and Putin enriching their buddies (and, by extension, entrench themselves in power), a liberal reformer trying to position himself against the Putin crowd can support the free market in theory but in practice favor delaying privatization of certain enterprises until there's greater transparency in the process and better corporate governance law.

Sunday Song Lyric: I've been listening to Everlast's "Whitey Ford Sings the Blues" a fair amount of late. This album was Everlast's reemergence as a solo artist after his tour with the hard-edged Irish rap group, House of Pain. (In his first incarnation he was an '80s b-boy, and part of Ice-T's Rhyme Syndicate.) Although I hadn't listened to it in a while before this summer, ". . . Sings the Blues" has not gotten old in the least. Best described as blues-influenced and acoustic guitar-laden hip-hop, I think it has a unique and affecting sound — perhaps, in part, due to the life-threatening heart attack and subsequent open-heart surgery he went through while recording it. Powered by singles like "Ends" and (this week's lyric) "What It's Like," the album went double-platinum and prompted a collaboration with Santana that won a grammy. (Think about it — a former Ice-T sidekick and House of Pain frontman winning a Grammy with Santana.) I haven't heard Everlast's new album yet, but if it has tracks as affecting as this one, it will be worth a listen.
We've all seen a man at the liquor store beggin' for your change
The hair on his face is dirty, dread-locked, and full of mange
He asks a man for what he could spare, with shame in his eyes
"Get a job you fucking slob," is all he replies
God forbid you ever had to walk a mile in his shoes
'Cause then you really might know what it's like to sing the blues

Then you really might know what it's like... (4x)

Mary got pregnant from a kid named Tom that said he was in love
He said, "Don't worry about a thing, baby doll
I'm the man you've been dreaming of."
But 3 months later he say he won't date her or return her calls
And she swear, "God damn, if I find that man I'm cuttin' off his balls."
And then she heads for the clinic and
she gets some static walking through the door
They call her a killer, and they call her a sinner
and they call her a whore
God forbid you ever had to walk a mile in her shoes
'cause then you really might know what it's like to have to choose

Then you might know what its like(4x)

I've seen a rich man beg
I've seen a good man sin
I've seen a tough man cry
I've seen a loser win
And a sad man grin
I heard an honest man lie
I've seen the good side of bad
And the downside of up
And everything between
I licked the silver spoon
Drank from the golden cup
And smoked the finest green
I stroked the fattest dimes at least a couple of times
before I broke their heart
You know where it ends, yo, it usually depends on where you start

I knew this kid named Max
He used to get fat stacks out on the corner with drugs
He liked to hang out late
he liked to get shit-faced and keep the pace with thugs
Until late one night there was a big gun fight and Max lost his head
He pulled out his chrome .45, talked some shit, and wound up dead
Now his wife and his kids are caught in the midst of all of this pain
You know it crumbles that way
at least that's what they say when you play the game
God forbid you ever had to wake up to hear the news
'Cause then you really might know what it's like to have to lose

Then you really might know what it's like...
Then you really might know what it's like...
Then you really might know what it's like...to have to lose

Saturday, July 24, 2004

NOTES FROM THE VAST WASTELAND:

The latest twist in Nipplegate is that CBS chief Les Moonves has been threatening to sue the FCC if it imposes fines against the network because of Janet Jackson's infamous "wardrobe malfunction." There's a backstory here, though, which is that this came from a response to a question posed during the TV press tour last week.

What's great about Les (we like to call him Les, because we like pretending that even though he's the co-president of Viacom and we're just a bunch of ink-stained wretches, we're pals) is that as a former actor, he realizes that a press conference is basically a performance. So he's always getting into a big swinging dick contest with someone for our benefit.

Now don't get me wrong — I like that in a man, especially in network execs at press conferences. I still remember how boring these were when the painfully circumspect Stu Bloomberg and Lloyd Braun were running ABC; you had to practically prop your eyelids open with toothpicks to stay awake. Les Moonves, on the other hand, is usually entertainingly candid. But some of what he says in public to reporters should be taken with a few tablespoons of salt.

At the last press tour (in January) Les got into it with Donald Trump, who'd called him "the most overrated executive in television, and unlike most people, I like Les Moonves" at NBC's press conference for "The Apprentice." Les responded at the CBS press conference a few days later that Donald must have been having an unusually bad hair day. So that was fun. (The bad blood backstory here is that Trump used to be partners with CBS in the Miss Universe contest, which then moved to NBC.)

But would Les Moonves really take the FCC to court? I suppose he might. But probably he's just posturing.

OK, this finishes my guest-blogging stint here and thank you all for reading. I'd also like to thank (as we say here in Hollywood) the lewder, cruder commenters from my own blog for staying away from this much classier one. I'd hate for Eugene to come back from vacation and find the place trashed!

Leaving for Germany: I am on my way to the airport for my trip to the IES "Europe and Liberty" summer seminar in Gummersbach. I am sorry I did not get a chance to reply to some of the interesting responses to my previous post on Libertarians on War, including a thoughtful message by David Beito. Perhaps I will get a chance to do so once I am there and over the jet lag. At any rate, I will be responding even slower than normal to email for the next few weeks.
Call for papers on Libertarianism at IVR: This announcement was forwarded to me by Professor Itaru Shimazu of the Faculty of Law and Economics at Chiba University:

Workshop on Libertarianism at the International Congress on Philosophy of Law and Social Philosophy

The International Association for Philosophy of Law and Social Philosophy (a.k.a. IVR) will hold its 22nd IVR World Congress in Granada, Spain on May 24-29, 2005. Japanese libertarian legal philosopher, Professor Susumu Morimura from Hitotsubashi University, Tokyo, plans to organize a special workshop on libertarianism at the Congress. He invites anyone committed to or interested in libertarianism to present a paper at the workshop. The paper should address some issue concerning libertarianism, and papers critical of libertarianism are also welcome. The workshop will present a great opportunity for us to discuss libertarianism in an international academic setting. Some younger Japanese scholars are already planning to present papers at the workshop, and there is some possibility that papers presented at the Congress will later be published by the organizers.

Contact:

Professor Susumu MORIMURA
Faculty of Law, Hitotsubashi University, Kunitachi, Tokyo 186-8601, Japan

His email is: cj00340 (at sign) srv.cc.hit-u.ac.jp
CIA and Bin Laden's Inner Circle: The Washington Post has a very interesting artice today on CIA efforts to infiltrate and destroy Osama Bin Laden's leadership circle. Some excerpts:
  The CIA has intelligence agents inside Osama bin Laden's al Qaeda network — as it did before the Sept. 11, 2001, attacks — but they are not within the terrorist leader's inner circle where key information about any future attack would be discussed, a senior intelligence official said yesterday.
  "They are beyond foot soldiers but not in the inner circle," the official said. The agents — Afghans, Pakistanis, Uzbeks and others recruited and run by CIA case officers — "are more senior than the agents [the U.S. had] three years ago who were on the periphery," the official said.
  Aided by these agents, electronic intercepts, satellite imagery, and extensive help from foreign intelligence services, the United States over the past two years has captured or killed two-thirds of bin Laden's top aides and broken up plots against U.S. embassies, U.S. and foreign aircraft, and ships and other targets worldwide.
  . . .
   This is the first time that CIA officials have publicly described with such specificity the placing of agents and other steps aimed at cracking al Qaeda — the sort of information that the agency generally guards very closely.
   . . .
   "We have busted plots repeatedly" that were undertaken by "serious al Qaeda players" involving both aircraft and ships — some in Northeast and Southeast Asia — one official at the briefing said.
It Takes Too, Baby

Every now and then I'll read a column on English grammar where the author or one of his readers is complaining about the unnecessary of in phrases like this:

too big of a job
The columnists that I've seen address this issue always stick very boringly to the tiny question of whether the of belongs or not. They never get into the questions I'd like to see discussed, so I guess I'll have to do it myself.

First, I need to distinguish between two ways of using adjectives. When an adjective follows a form of be (or a few other verbs which I don't want to talk about), it is known as a predicative adjective. For example:

Predicative adjectives
This movie is dull.
They were dead.
It's going to be incredible.

When an adjective modifies a noun (usually appearing right before it), it is known as an attributive adjective. For example:

Attributive adjectives
We saw a dull movie.
Dead puppies aren't much fun.
The incredible discovery made headlines.

The next relevant fact is that many adjectives take up more than a single word, as in the following predicative examples:

Multi-word predicative adjectives
He is jealous of everyone.
She is ready to get out of here.
These directions are really hard to follow.
This job is too big for one person to finish.

It's generally more difficult to make attributive versions of adjectives like these. First of all, they usually can't go before the noun anymore. For example, jealous of everyone and ready to get out of here become ungrammatical if you make them attributive and put them before the noun they modify, as seen below. Move them to after their nouns and they're pretty much OK.

Multi-word attributive adjectives
*I know a jealous of everyone guy.
*Three ready to get out of here kids are waiting at the door.

Those are the easy cases. Other times, to make an attributive version of such an adjective, you have to wrap the adjective around the noun, like this:

These are really hard directions to follow.
And some predicative adjectives, like those beginning with too, get really weird when you make them attributive. You don't put them right before the noun, or right after it; you do something like this:
This is too big a job for one person to finish.
You put one part not just before the noun (in this case job), but also before the determiner (in this case a).

What about the intruding of from the very first example? All I really have to say about that is: If you speak the "of a" dialect, you put an of between the too and the a. Well, that and a speculation that the of first came to be in those constructions by analogy with phrases such as too much of a good thing, or too many of our students. What I really wonder about is, why can't you have attributive adjectives with too when the determiner is something other than a?

*too big the job (i.e. the job that's too big)
*too big every job (i.e. every job that's too big)
*too big no job (i.e. no job that's too big)

And I also wonder what happens when you have a noun that doesn't need a determiner at all, for example mass nouns such as water, or plural nouns. I did a search for "too * of", and it looks like there are a few cases here and there of speakers who can do it, and put in of just as they might with a singular count noun like job:

  • a2ps using too big of paper on dj500, and magicfilter eats text
    link
  • Too Deep of Water
    (This one is suspect, as it seems to have come from a native speaker of Spanish, so there may be some influence from how Spanish treats cases like these.) link
  • Too small of rooms for the price!!
    link
  • Checkout/processing with too long of titles
    link
  • Too high of volumes for CORSIM
    link
I couldn't check for examples without the of , since a search for "too *" would have been just too broad. But I listen for them. If you hear someone say something like too deep water, too deep a water, too small rooms, or too small a rooms, I'd like to hear about it!

Friday, July 23, 2004

Bleg to Volokh-reading lawyers

I'm looking, on a tight deadline, for Oregon lawyers with expertise in both criminal law and civil rights/ racial bias litigation, whether private practitioners or public interest/ non-profit attorneys. Any leads or contact information would be much appreciated; further details can be discussed via e-mail.

Civil Liberties and the 9/11 Report:

NPR's All Things Considered has a 4-minute segment available here. I make a brief appearance around the 2:10 mark.

Libertarians On War: I was pleased to see that my suggestion a while back that there should be a debate on the relationship between Libertarianism and foreign policy was taken up by some bloggers. Most recently by Brian Doss at the always thoughtful Catallarchy (The Problem with Libertarians Today). Some like David Beito considered this an invitation to debate the merits of the war in Iraq, but I was more concerned with the degree to which Libertarianism qua Libertarianism says anything about foreign policy. Because Libertarianism is essentially a philosophy of individual rights, I doubt it says much about what policies either individuals or collective institutions ought to pursue other than that they should not violate the rights of individuals in pursuing them.

Even if, as many Libertarians believe, governments themselves inherently violate rights, it does not follow (as some Libertarians appear to assume) that everything such an unjust institution does is a rights violation. Consider mail delivery. The post office may be an unjust monopoly (and unconstitutional to boot), but the letter carrier who coincidentally is walking up my driveway as I type this) is not violating my rights by delivering my mail. Likewise, even if the government of the United States is an unjust institution, this does not make everything (or anything) done by the U.S. Army a rights violation. This is why I found my friend Rod Long's comment on David's post unhelpful. One of the biggest errors made by Libertarian anarchists is assuming that because an institution is an unjust monopoly (because it confiscates its income by force and puts its competitors out of business by force), this makes everything such institutions do also unjust. The latter proposition simply does not follow from the former.

As for Iraq, there were a number of valid legal justifications for initiating the latest hostilities, but if I start to describe them here I will provoke a different discussion than I intend. Any such discussion would inevitably implicate international law or The Law of Nations, which I also do not believe follows from Libertarian first principles. Sometimes it appears to me that the governments of "nations" are simply assumed by Libertarians to have the same sorts of rights in the international sphere that Libertarians specifies for individual persons (which I think is what Rod Long is properly rejecting). Other times even these same Libertarians know better.

However legal or justified the war in Iraq may have been, though, this does not make its initiation good foreign policy (though I think it was). And this is my point. I do not think Libertarianism qua Libertarianism tells us much about what good foreign policy may be, any more than it tells us what good business or personal policies may be. As was well-expressed by Duncan Frissell at Technoptimist (in a post with which I have some disagreement):
Libertarianism qua libertarianism is only a political philosophy and lacks theories of esthetics, ethics, theology, epistemology, and personal behavior. Libertarians as individuals are perfectly free within their political philosophy to espouse white supremacy, pacifism, private ownership of nuclear weapons, Anglo-Catholicism, atheism, the worship of Shiva, vegetarianism, the Atkins' Diet, grammatical prescriptivism, progressive education, etc.
This claim is central to my recent paper The Moral Foundations of Modern Libertarianism. I am leaving for Gummersbach, Germany tomorrow to lecture at the Europe & Liberty Summer Seminar sponsored by IES Europe, so I may not be able to respond as speedily as I might to any responses to this post that may appear.

Update: I am a little surprised that no one has caught this so far, but the claim to which I meant to allude was that the postal monopoly was unconstitutional. The power to establish a post office and post roads is explicitly granted in Article I of the Constitution. In contrast, the power to grant a legal monopoly to its post office, though included in the Articles of Confederation, was omitted. This is the position defended by Lysander Spooner in the essay to which I linked. Spooner himself created a commercially successful private postal delivery service called the American Mail Letter Company that was driven out of business by disparate prosecutions for violating the express mail statute. Spooner unsuccessfully sought a legal forum in which to contest the constitutionality of this grant of monopoly.

WHY DO THEY HATE US?

I'm on CNBC's Dennis Miller tonight. If they let me float a segment (that is, choose a topic), like they've let my friend Jill Stewart do — she's also been on more than me, and gotten to hold the chimp, not that I'm competitive or anything — I'm going to talk about the ridiculous notion that instead of fighting terrorism, we should prevent future attacks by sitting down with the terrorists and finding out what they want. Haven't they made it clear enough what they want? They want the entire world to be an Islamic state, complete with Sharia law. I don't think we should want to meet them halfway here.

Speaking of modest dress requirements, I have some Orthodox Jewish friends who don't like it when I wear my usual sleeveless/low-cut tops on TV — sends the wrong message, they say, and I suppose they could be right. But ever since Sept. 11, I've become fonder of anything that offends the Islamofascists. "Step on a crack, break old Hitler's back," kids used to say during World War II. These days I sometimes think to myself: "Dress like a tart, break an Imam's heart."

***

Update: Well I'm back from taping Miller, and did indeed get to talk about the above topic, but wasn't as good as the last time I was on. And I was hoping to get to another topic, CBS's threat to sue the FCC if they're actually fined, but we ran out of time. A Zero Mostel-like comedian named Max Alexander, who was on the Varsity Panel with me, was very funny, though. I wish I'd thought to put pretzels in my pants!

24 Comments
Terrorism and the Supreme Court:

Here's a trivia question for readers interested in the Supreme Court and the legal system's response to terrorism. In what year did the following passage appear in a Supreme Court opinion?

We cannot avoid taking judicial notice that crimes such as airplane hijacking, kidnaping, and mass terrorist activity constitute a serious and increasing danger to the safety of the public. It would be unfortunate indeed if the effect of today's holding were to inhibit States and the Federal Government from experimenting with various remedies . . . to prevent and deter such crimes.

Is the answer: (a) 2004, (b) 2003, (c) 2001, (d) 1996, or (e) 1977?

(Click here for the answer)

Thursday, July 22, 2004

TIPS FOR HOW TO BECOME A LAW PROFESSOR:

Brian Leiter offers some advice on entering the law teaching market and links to his helpful essay on the topic. IHS also has a good booklet on this posted on the web, Law School and Beyond: The IHS Guide to Careers in Legal Academia. Although the IHS booklet was designed to help those with libertarian leanings, anyone who wants to be a law professor should read it. (It includes contributions by a few Conspirators, too.)

"Terror in the Skies" and the Carrot Top Connection:

The Syrian band behind Annie Jacobsen's story seems to have been discovered. Either this is a really, really clever disguise, or the band is legit. Thanks to Elliot Fladen for the link.

WATCH IT, FATSO:

As someone who believes your right to overeat ends where my airplane seat begins, I don't think that Medicare's decision last week to begin paying for obesity treatments is such a terrible example of nanny-state meddling. The thin already are forced to subsidize the fat anyway, via taxes and higher private insurance costs. Why not pay a little more in prevention now, if that will cut huge Medicare bills for obesity-related problems later? Plus, fat pride activists are appalled by the Medicare decision, which probably means it's a pretty good idea.

Which isn't to say that we shouldn't emphasize personal responsibility when it comes to obesity. Certainly losing weight is difficult; this doesn't mean it's impossible. My friend Greg Critser, author of "Fatland: How Americans Became the Fattest People In the World," argues that beltless pants and limitless refills are symptoms of modern American culture's general lack of boundaries and self-control. He also doesn't like the way upper-middle-class boomer parents, who lead the public discussion, are loathe to talk about limiting children's diets or making them exercise, lest kids end up anorexic or with damaged self-esteem.

"Feminists and liberals have transformed a legitimate medical issue of the poor into identity politics for the affluent," Greg told me, "which I find the worst kind of narcissistic behavior." But he also lacks patience with right-wing complaints about government intervention: "Those libertarians who have all kinds of problems with government programs about obesity are going to be crying their eyes out 20 years from now," he added, when a fat and aging population brings with it increased taxes and social burdens.

Greg is now fit and trim but used to be chubby. At school, he was called Blimpboy and Skipper, after Gilligan's hefty pal. He only took the weight off a few years ago, when a man yelled "Watch it, Fatso!" at him for opening the car door into traffic.

"On the one hand, he's a dick and I'd like to find that guy now," Greg recalled. "On the other hand, the social shaming worked."

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The Moral Foundations of Modern Libertarianism: That is the title of a new paper I have uploaded to SSRN. It will appear later this year as a chapter of a book edited by Peter Berkowitz of George Mason Law School entitled, Varieties of Conservatism in America. The book will be published by Hoover Press. As Larry Solum says on Legal Theory Blog, you can "download it while its hot" here. This is the abstract:
Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, I contend that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy; one that can be shown to be compatible with various moral theories, which is one source of its appeal.

Moral theories based on either moral rights or on consequentialism purport to be "comprehensive," insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosophers on the one hand, and utilitarians on the other, can embrace libertarian political theory with equal fervor. I explain how can this be and why it is a strength rather than a weakness of libertarian political theory.

Conservatives, neoconservatives, and those on the left who seek to impose by force their comprehensive conception of "the good" neglect the problem of power - an exacerbated instance of the twin fundamental social problems of knowledge and interest. For a comprehensive moralist of the right or left, using force to impose their morality on others might be their first choice among social arrangements. Having another's comprehensive morality imposed upon them by force is their last choice. The libertarian minimalist approach of enforcing only the natural rights that define justice should be everyone's second choice. A compromise, as it were, that makes civil society possible. And therein lies its imperative.

Update: I should probably mention that the paper is very short. Around 20 pages.

Further Update: Coincidentally, the copy-edited manuscript showed up today and I now know of many typos and other errors that require fixing. The copy editor and I have also tweaked the language in many places and, in one place, I tweaked substance as well. Please forgive these without comment as it is now too late to correct any more that the copy editor and I may still have missed.

And Carina at An Inclination to Criticize comments on and provides links to an essay critical of Libertarianism and a very thoughtful reply, both of which touch on many of the same issues raised by my paper. She provides the links.

Pow! Smash! Truncate!

Mark Liberman has an interesting post over at Language Log about the spelling of interjections and onomatopoetic words in comic strips. It brought back a memory of a Broom Hilda strip I read sometime in the 5th grade. Someone was getting beaten up, and the frame showed the standard cloud of dust with fists and legs sticking out of it. And of course, a few powerful words surrounding it. There was probably a pow!, maybe a smash!, but the one I remember most clearly was truncate! I'd learned that word only recently, when we'd done some geometry in school, so I could see how it made sense: Someone, we were to believe, was getting cut in half inside that dust cloud. But still, the word somehow didn't belong, and I finally figured out it was because when you truncated something, it didn't make the sound truncate!--it'd probably sound more like grind, snap, or ssssshhh, depending on what you were truncating. (Yes, yes, I laughed at the joke in addition to analyzing it.)

It's been years since I've seen any Broom Hilda strips, but I do get For Better of For Worse, and I've noticed that writer Lynn Johnston often has non-onomatopoetic words floating around in an action scene for humorous effect. For example, the mother in the strip was furiously cleaning the house in one frame, and floating around her were words like swish, swish, swish!, but also clean, clean, clean! and tidy, tidy, tidy! And it seems to me I also saw one where a character was laboriously chewing a bite of food, with the words chew, chew, chew, and masticate appearing overhead.

I wonder how long comic strip artists have been able to exploit this kind of humor. Comic strips have been around only a little more than 100 years, and in that time frame there would need to be three stages:

  1. Audience accepts that onomatopoetic words can appear somewhere in the comic frame to signify how something sounds.

  2. Audience recognizes that some of the onomatopoetic words appearing in the frame can signify actions that someone is performing--specifically, those that can be used as verbs: crash, smack, crunch, etc.

  3. Audience will recognize any verb, not just an onomatopoetic one, as signifying an action performed by a character when it is written in the same frame as the character.

Of course, as long as people are laughing at words like truncate or tidy floating around in comic strip frames, we're not actually into Stage 3. When the words are no longer funny just by virtue of being used this way, that's when we'll be there.

Wednesday, July 21, 2004

Read the Whole Thing: Mark Kleiman complains that the WSJ editorial page is "full of Bush lit" for suggesting that the Joseph Wilson controversy might have a legal bearing on whether the leaker of Valerie Plame's identity can be prosecuted. As evidence, he cites a news story in yesterdays WSJ which reports:
Whether or not it damages [Wilson] or not, the report, in strictly legal terms, should not have any effect on Special Prosecutor Patrick Fitzgerald's investigation into whether the White House violated a law that makes it a crime to disclose the name of a clandestine intelligence officer.
So the WSJ editorial page flubbed the story, right? Not necessarily. Just One Minute notes that the very news story Kleiman cites provides support for the editorial page's claim.
Prosecutors are still trying to determine who leaked Ms. Plame's identity and why. The question, says a law-enforcement official, is whether the individual had a security clearance that gave him or her access to Ms. Plame's identity — and also leaked her name to damage national security. "We still have to prove that, and it's not easy to do," the official says. "That's why nothing ever happens with these cases."
[Substantial excerpts of the story are available here.]

I don't know enough about the relevant statute to know whether intent might matter. But given the story in question, Kleiman has not substantiated his charge.

Update: Kleiman has now updated his post, citing the relevant statute. It suggests that any prosecution of the Plame leaker would have many hurdles, including knowledge that Plame was a "covert agent" and that the government was actively seeking to conceal her identity (a point Novak's account undermines), but that intent to damage national security would not be necessary to prosecute the leaker under subsections (a) and (b) of the statute. Fair enough. But Kleiman's original post excorciated the WSJ editorial board for misrepresenting the statute without acknowledging that the article upon which he relied makes the very same mistake by relying upon an expert source who claims intent must be proven.

As for the substnative legal issue, if the leaker of Plame's identity did not know she was a covert agent (as opposed to some other type of CIA employee) and did not know the federal government was taking active steps to conceal her identity (when it appears that it was not), then I am not sure why the leak was so egregious. I haven't steeped myself in the minutiae of this controversy, but it seems to me that the statutory language incorporates the elements that would make the leak an egregious act -- placing political considerations above an individual's safety and national security. Yet if Plame's identity was not, in fact, a carefully guarded secret, where's the damage? Thus, in the end, I believe that if the prosecutor can make his case, heads should roll. If not, because evidence of necessary elements is missing, I'm not sure why this is such a big deal (though I'll be happy to convinced otherwise.

P.S. As for Kleiman's point that this is reason enough to vote against Bush, I'm also not convinced. Holding all else equal, I am not sure why I should be more against an administration that employs the Plame leaker than one that would employ Sandy Burglar. My vote -- which I expect to explain at a later date -- will be based on other things.
Climate: The More We Look, The Less We Know

That seems to be the implication of the "money quote" Daniel Drezner highlights from David Victor's CFR monograph on climate change policy.

Blakely and Lower Court Judges: I concur with Orin's post below that the ideological mix of judges on lower courts does not explain their response to the Blakely decision. Exhibit A to WIll Baude's argument is Paul Cassell. As an academic, Cassell was an advocate of the sentencing guidelines, yet he was one of the first federal judges to find the federal sentencing guidelines unconstitutional under Blakely.

I will, however, come to Baude's defense that the ideological composition of the lower courts most likely does explain the tepid reaction to Lopez and Morrison. Liberals, and even many conservatives, on lower courts are generally hostile to court-imposed limits on the commerce clause, so they've construed Lopez and Morrison narrowly. Liberals tend not to like the doctrine because it reduces federal power, while some (though by no means all) conservatives are simply less eager to invalidate federal statutes. Thus there is a distinct minority of judges on the lower courts willing to apply Lopez and Morrison in an aggressive fashion.
Blakely and the Selection of Lower Court Judges:

Over at TNR Online, Will Baude draws a connection between the lower court reaction to Blakely v. Washington and the ideology of lower court judges. According to Will, Blakely has caused an upheaval in the lower courts in part because lower court judges are ideologically sympathetic to the case and want to construe it broadly. Will argues that this highlights the importance of the appointments process governing lower court nominees.

Specifically, Will suggests that ideology can explain the difference between the tremendous impact of Blakely and the modest impact of federalism decisions such as Lopez and Morrison:

[I]t didn't have to be this way. The lower courts could have read the [Blakely] decision more narrowly; pointed out that it didn't necessarily apply to the Federal Sentencing Guidelines; and then, in the absence of a direct invitation from the Court, ignored the ruling's broad implications. Indeed, sometimes they do precisely that. When the Court decided a pair of cases that curtailed the power of Congress over states, no legal revolution followed, despite similar warnings by dissenters and academics: The logic that struck down a gun-control law (Lopez in 1995) and a statute focusing on violence against women (Morrison in 2000) could have been extended to federal laws dealing with arson, pornography, and marijuana--but lower courts have largely failed to take the bait. . . . . Blakely caught fire, and Lopez and Morrison failed to, because of the mix of judges on the lower courts. The majority in Blakely was an ideological blend--two of the Court's most conservative justices and three of its most liberal. On the other hand, Lopez and Morrison were decided entirely by the Court's more conservative wing. The lower courts, after President Clinton's presidency, are now a mix of the mostly conservative judges appointed by Reagan and Bush I and the largely pragmatic liberals Clinton selected. Blakely resonated among the lower courts, where Lopez and Morrison did not, in part because the ideologically mixed majority that decided it closely matched the ideological composition of the circuit courts that have started to implement it. That is, it requires a critical mass of judges sympathetic to the reasoning behind a High Court decision for any such ruling to catch fire in the lower courts.

I respectfully disagree. Will is quite right that the ideological dispositions of lower court judges matter, and are very important to the development of the law. The response to Blakely isn't a good example, however. If anything, the reaction highlights how legal reasoning can trump questions of ideology.

The problem with Will's argument is that Blakely is the latest in a string of Supreme Court cases, and the lower courts are responding to Blakely very differently than the earlier cases. When the Supreme Court decided the first of the cases, Apprendi v. New Jersey, back in June, 2000, the lower courts did pretty much what Will suggests. They "read the decision more narrowly; pointed out that it didn't necessarily apply to the Federal Sentencing Guidelines; and then, in the absence of a direct invitation from the Court, ignored the ruling's broad implications." Apprendi was a lot like Lopez; it was a modest step in the direction of major change, but left unclear whether it would be followed by a real revolution.

Anyone could see when Apprendi was decided that it might revolutionize criminal practice under the Guidelines. I was prosecuting a drug case in federal court in Virginia at the time, and I chose to submit the drug quantity to the jury out of an abundance of caution. But on the whole, lower courts treated Apprendi a lot like they treated Lopez. For the last four years, lower courts have been flooded with Apprendi claims. Those claims mostly have been rejected.

What makes Blakely different? Blakely is the first Apprendi case to involve a sentencing scheme quite similar to the Federal Sentencing Guidelines. Regardless of their views, federal lower court judges can read Blakely and see that its reasoning places routine federal court sentencing practices in doubt. Whether they think Blakely is right or terribly wrong, it's a hard decision for a lower court judge to ignore.

UPDATE: Eric Muller adds some interesting thoughts.
Center for Talented Youth:

Jacob writes today about his experience with the "CTY" programs of Johns Hopkins. Basically pre-college kids take college-like classes over the summer. I just did a parent-teacher interview there (as the parent). Yana, who is fourteen, took a class on the philosophy of mind. She just started another class on the French and Russian Revolutions. This is her third year there, she calls herself a CTY addict. The year before she did Latin. This time we had her for two days between sessions. I heard about modal logic, Newcomb's Paradox, and mind-body reductionism. Yana now knows why she believes in free will, and why she doesn't want to be an undergraduate philosophy major. She loves CTY, and so do we. It also seems that they enforce curfews, strictures against drugs, and so on. The instructors are smart and enthusiastic. Highly recommended, if you ask me.

OF GERBILS AND MEN:

My National Review column today is on Snopes, the indispensable urban legends debunker site. I became interested in urban legends several years ago, when for a while it seemed like that terrible tale of Richard Gere and the gerbil was all anyone was talking about. Gerbils aren't actually in the habit of burrowing up the rectums of movie stars — or anyone else, for that matter; I mean, what's in it for the gerbil? — but just try explaining that to the dozens of people here in Hollywood who kept insisting that their sister's/cousin's/uncle's friend worked at some local hospital and — swear to God! — had seen the gerbil X-rays.

People became very heated if you questioned the truth of their story. But gerbils, an exotic desert species that would wreak havoc on California agriculture if they were to get loose and breed, have always been banned as pets here. I remembered this fact from my pet-obsessed childhood, when I checked out every animal book in the library. So where would Gere have found that gerbil? Presumably a hamster or mouse would have served just as well. Obviously the story originated in some cold-weather state where gerbils are legal and migrated to California. And indeed it did: I tracked down a 30-year-old version about Jim Nabors.

And why would a celebrity go to an emergency room with such an awkward problem instead of calling a private doctor? These stories reveal as much about the personal frames of reference of the tale-teller as they do about anything else. Folklorists found the story fascinating: Norine Dresser wrote an article called "The Case of the Missing Gerbil" for the academic journal Western Folklore, which cited a piece I wrote about the story at the time for the gay magazine The Advocate.

"In my favorite version [Gere] went to Kaiser," Dresser told me. "And I just had to scream at the vision of him pulling out his Kaiser card."

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Too much:

Can we please not put all this weight onto the performance of Catwoman?

The first African-American to win an Oscar for best actress — for the 2001 film "Monster's Ball" — [Halle] Berry has now become the first African-American actress to headline an expensive, effects-laden production, this one about a meek graphic artist who turns into a vigilante with feline powers.

In the zero-sum calculations of the movie industry, Ms. Berry's bankability as a star will be judged largely on whether she can "open" "Catwoman," a Warner Brothers film — meaning whether she can make it a financial winner. If it succeeds, it will place her among a rarefied group of top-paid female stars, only a few of them established box office draws, and signify yet another achievement for African-American actors.

And so, if Catwoman flops, I guess that'll mean that either Berry in particular or black women in general can't be banked on to "open" a big-budget action movie, leading to both Hollywood decisions not to attempt such things and an indictment of the American moviegoing public.

But, of course, Catwoman might flop because it's going to suck. I don't know that for sure, of course; but it certainly looks unpromising. Cringe-inducing, actually. That has nothing to do with Berry's acting ability (cf Monster's Ball or Gothika) or her talent at action (cf Die Another Day). It has to do with the sort of dialogue that I'd hoped the Spider-Man and X-Men movies had cured superhero movies of. It has to do with the costume, and the impression that the movie's only purpose is to pour her into it.

The apparently-aborted Bond spinoff movie might have been a much better test for the "Halle Berry, summer action hero" hypothesis. So might a Storm-focused X3. So might a Catwoman movie that didn't have its natural base of supporters bracing themselves for a Dolph-Lundgren-as-the-Punisher level catastrophe. But this isn't going to be any better a test of her ability to headline than LXG was a test of Sean Connery's.

Update:

Roland Cooper e-mails a link to this review. I dunno how this reviewer got to see the movie early, but the review confirms all my prejudices about the movie.

Without pussyfooting around, I can state that Catwoman is a catastrophe. An amalgamation of bad clichés purr-loined from other, better superhero movies (not that there are many - if any - that can be considered worse), this motion picture is an embarrassment to all involved, from single-named director Pitof (whose moniker sounds like something often done to rice) to Halle Berry, who has by now thrown away all of the goodwill she gained from appearing in Monsters Ball. ...The Academy Award-winning actress is so awful in this film that words fail me. It's difficult to decide whether she's channeling Eartha Kitt or Pulp Fiction's The Gimp. And on those rare occasions when she attempts a one-liner, it is met with hoots of derision. (Part her delivery, and part the words she has to deliver.) Berry's performance might have been campy enough to enjoy on its own had the tone of Pitof's epic been less somber. The director seems to view himself as an auteur....As poorly written, ineptly directed, and hideously acted as Catwoman is, its biggest sin is that it's boring. This movie does not offer a single worthwhile, interesting, or exciting scene. The action is dull, predictable, and repetitive. Ever thought a catfight between Sharon Stone and Halle Berry could rival a dose of valium as an effective sleep-inducer? I suppose Pitof deserves a measure of respect for being able to achieve something I would have argued was not possible. Catwoman treads close to the so-bad-it's-enjoyable line, but, at least for me, it fails to cross over, despite a valiant attempt. As far as I'm concerned, it's just plain bad. Nothing redeeming here.

Square Root Camp:

This week's New Yorker has a mostly very good article by Burkhard Bilger about the summer residential academic camps run by Johns Hopkins' Center for Talented Youth-- "nerd camp," as he calls it in a move that would be cute two or three times but becomes kind of odd when he uses it every time. (The article's not online, but there's an online-only Q&A with Bilger about the article here.)

Unavoidably, I suppose, the article at least worries a bit about yuppie super-parents forcing their kids to become super-kids and try to get into CTY, and self-reinforcing social stratification. But Bilger has what seems to me the right attitude toward that worry.

I'm sure that some kids go to nerd camp just to please their parents. And for them the experience must be mind-numbingly boring: six hours a day in a classroom, in the glory days of summer, trying to cram a semester's worth of work into two weeks. But I didn't see many bored kids at Vanderbilt or Johns Hopkins. Most of them have what Ellen Winner, a psychologist at Boston College, calls a "rage to master." They were just naturally curious about the world and had an inner compulsion to use their minds. It's almost impossible to force that kind of focus and diligence on a kid—just try getting the average ten-year-old to practice piano for half an hour a day.

(From the Q&A, not the article, but the article expresses the same thought at greater length.)

In retrospect, my admission to and financial aid for CTY (math, 1984) provided a pretty tranformative experience for me, and one of the major mechanisms for my own social mobility. The other major mechanism was my scholarship to Exeter. CTY made me realize how desperately I wanted to go to an academically first-rate boarding school. Once I was through Exeter, my course was pretty well set; at that point there was effectively no chance of my not going on to a good college and beyond. Had I stayed in my medium-town New Hampshire public school system-- which was fine but nothing like the public-preps of wealthy suburbs-- I would have stayed pretty miserable and continued to get full-time negative reinforcement for intellectual excitement and curiosity. I wouldn't have understood the range of possibilities that were really open to me, and would have had my sights set much, much lower than they were ultimately set. And I do think I would have ended up internalizing (what I perceived to be) the hostility to nerdiness among my peers. It seems pretty unlikely that I would have ended up in nerd heaven, here at the University of Chicago. After CTY and Exeter excited me to possibilities I hadn't understood existed-- and that, it turns out, provide a path to significant social mobility.

But what I remember about it, rather than what I see in retrospect, has nothing to do with social mobility. It wasn't about what would come after education. It was the sheer joy and amazement at being around kids my own age who were not only not hostile to the desire to read and learn and think, but who shared it themselves. I didn't leave CTY thinking that continuing to go to places like that would earn me money someday; I left knowing that I'd been happier there than I'd ever been around kids my own age, and that it was possible for "smart kid" to mean something social other than "kid to get beaten up." (It wasn't an awful school system; really. I didn't get badly beaten up or get anything broken or turn into a Columbine Kid. But it was pretty consistently unpleasant.) There was geekiness as well as nerdiness to be had-- I played my first D&D at CTY-- but sharing cultural or recreational tastes wasn't as important as, well, the sharing a taste for spending one's summer learning algebra.

I never went back to CTY, though I seem to remember most kids going for multiple summers. Once I got into Exeter, all available funds had to go into the "family contribution" part of my tuition there, and my summer months were for grocery-bagging. (Neither the CTY nor the Exeter scholarship was 100%.) But once was enough to get a lot of other things moving in my mind and my sense of the world. I didn't end up in math or a particularly math-related field, either; a summer of algebra didn't provide me with any particular head start on my career. But, manohman, did it make a difference. I'm glad to see that CTY is still going strong, glad to read that its financial aid budget has been further bulked up, and glad to see some sympathetic, supportive coverage of it.

Appalling Aspects of Story on Terrorist Friends:

On Monday, the Washington Post carried this story about a group of seven friends from Jenin who had formed a theater troupe under the direction of an Israeli director in the early post-Oslo days. Only two of them didn't eventually become terrorists, and most are now dead.

The story has two especially galling aspects (beyond the fact that not a single one of the terrorists' victims is identified by name). First, one friend who stayed out of trouble, and now works as a stone mason, feels the need to apologize for not being a terrorist:

"I'm not different than them," Kaneri said, watching his 3-year-old daughter play with a kitten next to him on a living room sofa. "Resistance comes in many forms. Everybody chose to resist in his own way. Not everybody who resists becomes a martyr. It's not like the only condition is to carry a gun. Maybe helping your family is part of the resistance.

"I am the man of the house," he added. "I support the wife of my martyred brother, the wife of my wanted brother and their five kids, my mother, my younger brother, my wife, my two children. I built this house and moved them here. Don't you think that's part of the resistance?"

Second, the Israeli son of the director of the theater group is actually proud that he worked with the future terrorists:

"Some people ask me if my mother failed," Mer Khamis said on recent night, sitting at the kitchen table of his house in the Israeli port city of Haifa. "They say, 'She wanted to make actors of them and they became terrorists.' "From my perspective, it's a success that people stood up and fought for their rights," said Mer Khamis, who said he recently lost his contract to work in Israeli theaters because of his pro-Palestinian sympathies. "Arna told them to fight for their rights."

This is the sort of comment that makes one wonder whether post-Olso "peace" projects funded by European and American governments and philanthropists ultimately actually served to encourage Palestinian terrorism, by putting idealistic young Palestinians primarily in touch with Israelis whose ideological outlook was closer to Yasser Arafat's than to Yitzchak Rabin's.

I Hate the Boss of Me My Boss!

Here is something that my brother Glen never said to me while we were growing up:

You're not the boss of me!
However, he did say this on a number of occasions:
You're not my boss!
For the past few years, though, I've been hearing the first phrasing much more than the second one, and I don't know why. The of me makes it sound like the speaker is translating something from a language that doesn't have possessive pronouns. The primary place where I expect to see of-possessive in English is in partitive constructions, as in all/part/some/none/the rest of me. To indicate ordinary possession of some object, a possessive pronoun or 's possessive is the usual way to go, as in Neal's dog or our house.

Of course, my boss is not a case of ordinary possession, since only in the rarest cases does one own one's boss. It's a relational noun, which means that a possessive shows who the noun relates to. Even so, boss is the only relational noun I've seen where an of-possessive is OK (at least for some speakers). All the other relational nouns I know of show the relation with an ordinary possessive. For example:

  • the boss of me / my boss
  • *the doctor of me / my doctor
  • *the attorney of me / my attorney
  • *the father of me / my father (but: father of the bride)
  • *the wife of me / my wife
  • etc.
These examples hold good at least when the ordinary possessive is pretty short--I'd probably use an of-possessive instead of saying something like the a friend of a guy I used to work with's boss. (In fact, I'd have to, if I wanted to make it clear whether it was the friend's boss or the guy's boss.) So what is so different about boss that it deserves an of-possessive?

I did some Google searching on the phrase the boss of, and here's what I found out.

  1. They Might Be Giants did a song called "Boss of Me" that is mentioned in a lot of websites.
So I had to start over, adding "-giants" to my search. I found that there were hundreds of thousands of hits for my/you/his/her boss, there were at most only a few thousand hits of the corresponding boss of phrase; the most was near 7000, for the boss of me. Aside from that, obvious patterns didn't really jump out.

But I did notice one pattern after a little more searching: the boss of tends to occur in predicate nominatives--that is, in noun phrases after some form of be, as in You're not the boss of me. It can also appear as the subject of be, but I've seen that only in statements that are identifying who someone's boss is or isn't, as in The boss of me is me!

Outside of those two cases, I have yet to see the boss of X replace X's boss. For example, I got ~600 hits for I love my boss, ~2300 for I hate my boss, and ~290 for my boss is an idiot, but no hits at all for any of these strings when I replaced my boss with the boss of me. However, to really do this kind of search right, what you need is a corpus that's been annotated with parts of speech and at least a little bit parsed, so that you can ask for the boss of as the subject or direct object of any verb instead of just love or hate or some other specific verb. Since I don't have access to one of these, I tried the Linguist's Search Engine, which will annotate and shallowly parse customized Internet corpora, and then search them for you. So far, though, nothing has turned up.