pageok
pageok
pageok

Saturday, September 6, 2008

They broke John McCain.

The most affecting part of John McCain’s acceptance speech was also the most surprising: McCain’s admission that he was broken by torture. I had read a little about this before on the internet – suggesting that McCain had illegally collaborated with the enemy. More generally, I had heard that virtually no one is actually able to resist extreme physical torture; eventually everyone breaks down. But McCain admitting it seemed both heartfelt and somewhat shocking.

A lot of prisoners had it worse than I did. I'd been mistreated before, but not as badly as others. I always liked to strut a little after I'd been roughed up to show the other guys I was tough enough to take it. But after I turned down their offer, they worked me over harder than they ever had before. For a long time. And they broke me.

When they brought me back to my cell, I was hurt and ashamed, and I didn't know how I could face my fellow prisoners. The good man in the cell next door, my friend Bob Craner, saved me. Through taps on a wall he told me I had fought as hard as I could. No man can always stand alone. And then he told me to get back up and fight again for our country and for the men I had the honor to serve with. Because every day they fought for me.

I fell in love with my country when I was a prisoner in someone else's. I loved it not just for the many comforts of life here. I loved it for its decency; for its faith in the wisdom, justice and goodness of its people. I loved it because it was not just a place, but an idea, a cause worth fighting for. I was never the same again. I wasn't my own man anymore. I was my country's.

I remembered a line from Orwell about any life "viewed from the inside" as a failure. I hadn't remembered the line immediately preceding it:

Autobiography is only to be trusted when it reveals something disgraceful. A man who gives a good account of himself is probably lying, since any life when viewed from the inside is simply a series of defeats.

Roger Simon also mentioned the same passage from McCain's speech, after noting Obama's grudging recent admission on the Surge:

More interesting is the snippet from O’Reilly of Obama acknowledging that the Surge was a great success while seemingly not being able to admit that he was wrong about it. You would think it wouldn ‘t be that difficult, but he struggled as if admitting an affair. Compare that with McCain who in the midst of his acceptance speech, seen by more even than Obama’s, acknowledged to the world that he was broken under the pressure of North Vietnamese torture. What we have before us is the pretension of honesty (Obama) versus honesty (McCain). In a certain way it relates to the Oprah Show, which has always seemed to me an “as if” production: we are all “open” here, it purports to say. But to paraphrase Orwell, “some people are more open than others.” I suspect the public senses this and, ultimately, knows the difference. We shall see.

Although Obama does seem to be more resistant to admitting error than most (and though he wrote two autobiographies by the age of 45), Obama has sometimes shown a self-deprecating side. Indeed, there are moments of effective modesty in the Audacity of Hope: Obama’s nuanced and winning account of Peggy Noonan’s taking him to task for comparing himself to Lincoln in an essay (he was sort of asked to do so by the editor, but he admits that Noonan wasn’t necessarily unfair), and Obama’s description of his troubles in his 2004 Senatorial debates responding to his opponent’s criticisms of Obama’s positions as un-Christian.

Yet McCain’s confession was of a different order.

My first thought was to be struck by how honest it was; that helped make the rest of McCain's speech seem (and perhaps be) more genuinely felt.

My second thought was more cynical: was McCain trying to make a pre-emptive strike against a forthcoming onslaught that he collaborated with the Communists?

My third thought was whether it’s necessarily a good thing for McCain to believe that he was not “my own man anymore. I was my country's.”

What do you think?

136 Comments

The Republican "Triumph of the Will" (Not):

I usually skip watching political conventions entirely, given that they are just staged political propaganda for each party, providing a forum for politicians on each side to present rhetoric that mostly ranges from the dishonest to the insipid, as American political rhetoric usually does. (It's especially not surprising to find such rhetoric at a convention, because they are trying to win over the undecideds, who tend to be the most ignorant of voters, who generally cannot be bothered with substance, and are unaware of the dishonesty). And given that my libertarian views are so far out of the political mainstream, I rarely can take ideological pleasure in any of the speeches given by politicians for either party, almost all of whom I dislike and often despise.

That said, this election cycle is more interesting than most, and I caught a few of the Republican convention speeches. Dishonest and insipid, not surprisingly, was par for the course, though it was very interesting to watch Gov. Palin easily surpass low expectations as a rhetorician.

According to Brian Leiter, however, one of his colleagues at a "leading American law school" found the Republican speeches Wednesday night, which included Palin's, not the usual partisan nonsense one gets from political conventions, but "horrific." Leiter's anonymous correspondent continues: "Only twice have I heard anything so blood-curdling: First, on viewing Leni Riefenstahl's Triumph des Willens while an undergraduate. And second, on listening to a radio broadcast of an old tape of a Jim Jones sermon in 'Jonestown' Guyana."

Res ipsa loquitur.

91 Comments

About that Mysterious Israeli Flag in Palin's Office:

The small Israeli flag visible in Gov. Palin's office window has been the subject of much speculation. I've even seen allegations in the blogosphere that the flag was photoshopped into a video to appease pro-Israel voters who never heard of Palin.

An Israeli-American documentary filmmaker who filmed Palin for several days a few months ago reports: "I was very surprised to see that and when I asked her about it, she said that she loves Israel and the she had friends who visited the country and brought her the flag."


Wassily or Wasilla.

At Tim Blair's blog, some are speculating about why Barack Obama might have mispronounced "Wasilla" as "Wassily."

Most of us would make more slips of the tongue than the candidates do. And it’s only natural that he would use a name he’s probably more familiar with (Wassily) than one he’s less familiar with (Wasilla). I had to struggle not to make the same substitution.

Before last week, I had never heard of Wasilla, but I had heard of Wassily. Indeed, we have two Wassily chairs based on a 1925 design by Marcel Breuer in our Hyde Park apartment, bought 30-35 years ago. These chairs are famous enough to have their own Wikipedia entry. Probably at least one of Obama's friends has such a chair.

Wassily Chair, Marcel Breuer

As you might expect, these chairs are named after an artist even more famous than the chairs, Wassily Kandinski.

On White II, Wassily Kandinski

So I think that Barack Obama, who lives about 10 blocks away from me and knows some of the people I know, probably was thinking of a more familiar word — Wassily — the name of a Bauhaus chair and a Russian painter, not that of a small town in Alaska. I know that when I first read “Wasilla,” I had to think carefully to avoid thinking “Wassily.”

I wonder if Sarah Palin even knows of the Breuer chairs or the Russian painter.

[And if she doesn't, I wonder if that is a good thing or a bad thing.]

37 Comments

Obama's favorite TV show is MASH; among McCain's is The Sopranos.

Ana Marie Cox (tip to Tim Blair):

Obama told Entertainment Weekly last month that his favorite television show is the wartime sitcom “MASH,” which, while solidly entertaining, was not exactly free of heavy-handed moralizing and liberal pieties. (It’s instructive to note here that McCain’s favorite shows include the decidedly, and admittedly, amoral dramas “The Sopranos” and “The Tudors.”)

Given the indirect (ie, nonsubstantive) nature of some of John McCain's ads, can a YouTube spot on this be only days away?

Indeed, one could imagine a funny — mock outraged — spot from either side: McCain getting his kicks watching brutal Sopranos mob hits OR Obama grooving on some particularly sappy platitudes in an outdated MASH clip. Maybe this idea would be better for one of the nightly talk shows than one of the campaigns.

75 Comments

Media's treatment of Palin:

The "media's treatment of Palin and her family this week has been the quintessence of hypocrisy, the vilest form of the politics of personal destruction." So I argue in my Rocky Mountain News media column today.

Based on e-mail I've gotten from some readers, it's clear that some people have so much emotional investment in their hatred of Palin that they can't read very well. So to be clear, and to amplify a point I explicitly made in the last paragraph of the column, it's legitimate and necessary for the media to ask questions about her public policy positions (including those on sex education), her record in public office, her political philosophy, whether her experience makes her well-qualified to be VP or President, and so on.

And BTW, astute readers will spot a typo: "Ronald Reagan's daughter Nancy Davis" should be "Ronald Reagan's daughter with Nancy Davis."

UPDATE. An excerpt from a reader e-mail:

I do not always agree with your stance on the issues of the day, but I am with you 150% on this issue. I wonder if you saw the op-ed page political cartoon in the Denver Post on Thurs. Sept. 9th ? As the father of an adult special needs individual, slightly older than Bristol Palin, but just as pregnent and just as unwed at this time, I was incensed at the sleeze demonstrated by this portrayal of a McCain/Palin "shotgun wedding" along with the caption undrneath the cartoon. What sent me completely over the edge however was the hand at the left of the frame holding a sign announcing that Bristol Palin is five months pregnant along with two elephant heads whispering and giggling. How low will the media go and is there anything that ordinary people like myself can do to put a stop to such behavior? I know firsthand the emotional toll that an unexpected pregnancy is exerting on our family, (she and her boyfriend have our unyielding support) but more importantly on our daughter. Here in the Palin family's case, the entire world is hearing all the details. How sad to put a confused and frightened seventeen year old through this addttional stress. My dissapointment with the Denver paper is such that I plan to cancel my subscription next week. After I saw this lowdown smear at this innocent minor, I drove down to McCain headquarters and offered my services to the campaign and made a donation to the McCain 2008 campaign. As you can see, I have been touched both emotionally and personally by what is passing for journalism in this election year.

305 Comments

Apparently Fraudulent Palin Bookbanning List.

In 1996, when Sarah Palin was mayor of Wasilla, she asked her town librarian how she would respond to censoring books. According to the librarian at the time, three inquiries had been made by December 1996. Palin also asked for resignation letters from some department heads and high appointments that she inherited from her predecessor (including the librarian), several of which had publicly supported her opponent in the election.

That Palin would ask about censorship suggests, but doesn't prove, that she was very probably actually contemplating asking the library to censor or remove books.

As if the truth weren't bad enough, Palin's opponents are now distributing a long, apparently phony list of books that Palin tried to ban.

On the list are the first four Harry Potter books, all published first from mid-1997 through 2000 [in the UK, and from 1998 through 2000 in the US, AFTER the censorship policy inquiries were made].

UPDATE: I see that Michelle Malkin spotted the fake list before I did, and she notes that it's being spread on the Obama Campaign site. The post is by Mark Brickman, who is described as "a member of Obama San Mateo/California 12th Congressional District, a grassroots organization that is dedicated to the election of Barack Obama."

2d UPDATE: The list has now been determined to be a complete hoax. The list has nothing to do with Palin; it is one that has been circulating for years, with exactly the same books and in exactly the same order. It is a list of important or great books that have been banned from libraries somewhere at some time.

After being up for most of the day, the Obama campaign page spreading the phony list has now been deleted. The reason I listed the background of the official Obama website blogger was because, if I had not listed his position, it would have looked like it was probably coming from the Obama campaign leadership, rather than just a low-level local Obama campaign worker who was nonetheless given a national Obama blog.

What lies will be made up next?

120 Comments

Does Public Choice Explain Patent Law?

What explains the evolution of patent law in the United States? My current and former colleagues, Craig Nard and Andrew Morriss, think that an interest group-based analysis provides the answer, and make the case in "Institutional Choice & Interest Groups in the Development of American Patent Law: 1790-1870." I don't know enough about patent law to know whether they're right, but I think it's an interesting thesis. Here's the abstract of their paper from SSRN:

This paper analyzes the evolution of U.S. patent law between the first patent act in 1790 and 1870, the passage of the last major patent act of the nineteenth century. During most of the nineteenth century, patent law developed in the courts, and instrumental to this development were a relatively small patent bar, a subset of the judiciary, and several repeat parties who played a role in a significant proportion of patent cases. Yet at several junctures, most importantly with the major changes introduced in 1836, but also through minor statutory changes throughout the nineteenth century, Congress intervened to alter the patent statute.

We argue that this evolution is best understood through an interest group-based analysis, focused on the question of the choice of which institution interest groups select in their efforts to alter the law. The courts and Congress each present interest groups with a different menu of costs and benefits. Although the federal courts have generally been viewed as relatively costly to capture, we argue that the nineteenth century federal bench was less costly to influence than Congress in many instances. A relatively few judges heard the vast majority of patent cases, allowing the patent bar to seek change through the courts.

There were two major and several minor patent statutes, as well. Interest groups turned to Congress for two reasons. First, despite the general agreement among bench and bar on the appropriate evolutionary path for patent law, there remained in American law a powerful strain of anti-monopoly thought, hostile to patents. Although most patent cases ended up litigated before sympathetic judges by the skilled patent bar, not every patent case did so and the proportion being litigated outside the small strata of experienced judges grew over time. And, because of the "democratic" nature of patent practice, patent law touched individuals spread across the country and made litigation before judges with an anti-monopoly orientation a real risk. Interest groups therefore turned to Congress on occasion to "lock in" changes in the law that they had achieved through the courts. They also sought Congressional aid in correcting occasional dead-ends reached in the law's development.

11 Comments

New Developments in Important New Jersey Eminent Domain Case:

Bill Ward, one of the attorneys representing the property owners, has a post summarizing new developments in Anzalone v. City of Long Branch, an important New Jersey "blight" condemnation case that I discussed in this August post. The city (which lost the case in a lower appellate court) is petitioning for review by the New Jersey Supreme Court, and counsel for the property owners have filed a cross-petition urging the Court to reaffirm the lower court's decision.

If the state supreme court takes the case, it might end up being one of the most important blight condemnation decisions of this decade. New Jersey, like New York, has made extensive use of "blight" designations to condemn a variety of properties that are far from actually being blighted in the lay sense of that term. As I have emphasized in many of my articles (e.g. - here), this practice is also common in many other states.

Related Posts (on one page):

  1. New Developments in Important New Jersey Eminent Domain Case:
  2. New Jersey Appellate Court Invalidates "Blight" Condemnation:
15 Comments

Columbia University Renews Effort to Use Eminent Domain to Acquire Property in Manhattanville:

I am sorry to see that Columbia University is still trying to use eminent domain acquire property in the Manhattanville neighborhood in West Harlem. Last year, it seemed that Columbia had largely abandoned this misguided policy, though it reserved the right to potentially use eminent domain to forcibly acquire "a few" commercial properties. It is now seeking to use the condemnation process to acquire several properties in the area owned by small businesses. Nick Spraygens, owner of some of the lots in question has an interesting Wall Street Journal op ed describing his plight. As he notes, New York state has some of the laxest eminent domain laws in the entire country, enabling virtually any property to be declared "blighted" and condemned. Sadly, this is also true in many other states, even in the wake of new reforms enacted as a result of the backlash against the Supreme Court's decision in Kelo v. City of New London.

I have criticized Columbia's plans in several earlier posts. See this one for the most recent, which also contains links to earlier ones. In this 2006 post, I gave some reasons why eminent domain should not be used to transfer property to universities more generally. Universities are wonderful institutions (what else would you expect a professor to say?). But if they want to expand, they should be required to purchase the land they want from willing sellers.

Related Posts (on one page):

  1. Columbia University Renews Effort to Use Eminent Domain to Acquire Property in Manhattanville:
  2. Saving Property from Columbia University:
6 Comments

Friday, September 5, 2008

Unleashing Offshore Wind Power:

The Department of the Interior is preparing to lease portions of the Outer Continental Shelf for offshore wind farms. The WSJ reports here.

The Interior Department's Minerals Management Service expects to finalize its proposed rule governing leasing of offshore acreage for alternative-energy production by the end of the year, clearing the way for development to start soon after. Already, the agency is doing environmental analyses on 10 offshore parcels that it is considering leasing this fall for wind projects. If the agency approves the leases, companies could begin exploring the areas for possible wind-turbine sites. . . .

wind accounts for only about 1% of total electricity generated in the U.S. And so far, all the wind power in the U.S. is produced onshore. The states that crank out the most -- Texas, followed by California -- boast vast stretches where the wind blows hard and where there is enough land to install hundreds of turbines to catch it.

But the onshore wind industry in the U.S. is beginning to be hampered by a lack of electrical-grid capacity to carry the power from the isolated places where wind typically blows hardest to the population centers that need the juice. Offshore wind provides a potentially big source of energy close to major coastal cities. . . .

Big obstacles remain. Wind power is more expensive than fossil-fueled energy. In the U.S., the tax breaks necessary to make it competitive are due to expire Dec. 31. Several proposals to renew the wind-power tax breaks have failed to pass Congress, typically because the bills also included controversial measures to remove existing tax breaks for other industries, notably oil producers. Whether Congress will resolve the dispute and extend the wind-power tax breaks when it returns from its recess is unclear. In the past, it has let the tax credits expire three times, prompting a lull in wind-power construction until the credits later were renewed.

Once the rules are finalized, they could help make offshore wind a reality in the U.S., particularly in the northeast. Unlike projects closer to shore that have been held up or delayed by local NIMBY organizations, federally authorized wind farms on the Outer Continental Shelf would not face such obstacles. Still, without the renewal of federal tax credits, it is unclear whether wind power will be able to compete in the marketplace.

45 Comments

Saving Property from Columbia University:

Columbia University is using the threat of eminent domain to acquire property in West Harlem for a new campus, and some of the local property owners are none to pleased. On Wednesday, Nick Sprayregen took to the WSJ telling the University to keep its hands off his properties.

Columbia University, a private institution, officially announced its desire for a new campus five years ago. The university zeroed in on the Manhattanville area of Harlem -- between 125th and 134th Streets, and between Broadway and the Hudson River. Since that time, while wielding the sledgehammer of the possible use of eminent domain, Columbia has purchased roughly 80% of Manhattanville.

My family has owned for almost 30 years four commercial Manhattanville properties. We run a self-storage business, plus we lease to various large retailers such as a discount store and a supermarket. For over four years we have been fighting the state and Columbia in their joint attempts to condemn my properties for the school's expansion. . . .

I look forward to my day in court. I am cautiously optimistic that it will expose as unconstitutional what Columbia and the state are attempting to do.

9 Comments

John Judis on Obama's rejection of Community Organizing.

In the New Republic, John Judis has an insightful analysis of Barack Obama's experience as a community organizer and his rejection of organizing (tip to Instapundit).

In truth, however, if you examine carefully how Obama conducted himself as an organizer and how he has conducted himself as a politician, if you consider what he said about organizing to his fellow organizers, and if you look at the reasons he gave friends and colleagues for abandoning organizing, then a very different picture emerges: that of a disillusioned activist who fashioned his political identity not as an extension of community organizing but as a wholesale rejection of it. Indeed, the most important thing to know about Barack Obama's time as a community organizer in Chicago may not be what he gained from the experience--but rather why, in late 1987, he decided to quit. . . .

Obama attempted to put these principles into practice in South Chicago. Kellman and Kruglik's initial objective was to revive the region's manufacturing base--and preserve what remained of its steel industry--by working with unions and church groups to pressure companies and the city; but those hopes were quickly dashed. Indeed, during his three years in South Chicago, Obama was constantly having to scale back his objectives as one project after another faltered. First, he got community members to demand a job center that would provide job referrals, but there were few jobs to distribute. Then, he tried to create what he called a "second-level consumer economy" in Roseland consisting of shops, restaurants, and theaters. This, too, went nowhere. At that point, Kellman advised Obama to move elsewhere. "Stay here, and you are bound to fail," he told him.

But Obama remained. Next, he began to focus on providing social services for Altgeld Gardens. "We didn't yet have the power to change state welfare policy, or create local jobs, or bring substantially more money into the schools," he wrote. "But what we could do was begin to improve basic services at Altgeld--get the toilets fixed, the heaters working, the windows repaired." Obama helped the residents wage a successful campaign to get the Chicago Housing Authority to promise to remove asbestos from the units; but, after an initial burst of activity, the city failed to keep its promise. (As of last year, some residences still had not been cleared of asbestos.) In waging these campaigns, Obama's organization added staff, gained adherents, and won church support, including from the congregation of Reverend Jeremiah Wright. But it failed to stem the area's overall decline. "Ain't nothing gonna change, Mr. Obama," says one resident quoted in Dreams from My Father who grows disillusioned with the Developing Communities Project. "We just gonna concentrate on saving our money so we can move outta here as fast as we can."

Publicly, however, Obama did not appear discouraged. He continued to train other organizers for the Gamaliel Foundation.

Later, after becoming a student at Harvard, Obama spoke at a conference about organizing, rejecting many of Alinsky's central ideas:

He had a litany of criticisms of Alinsky-style organizing that he wanted to put forward. He objected to community organizers' dismissal of charismatic leadership and of movements. Instead of making the point directly, he recalled a friend telling him of an IAF trainer who complained that "movements are rotten with charismatic leaders." Obama said his friend had responded, "That's nonsense. We want a movement. I would love to have Martin Luther King here right now." Obama argued that charismatic leaders and movements bring "long-term vision," and that community organizers cannot be effective without such vision.

Obama also criticized community organizers' "suspicion of politics." "The problem we face now in terms of organizing is that politics is a major arena of power," Obama said. "That's where your major dialogue, discussion, is taking place. To marginalize yourself from that process is a damaging thing, and one that needs to be rethought."

Before he was done, Obama had rejected the guiding principles of community organizing: the elevation of self-interest over moral vision; the disdain for charismatic leaders and their movements; and the suspicion of politics itself.

I've been thinking a lot about some of these issues. After Michelle Obama's speech where she said that, when she met him, Barack was talking about “The world as it should be,” not settling for “The world as it is.” Some have pointed to the source of these phrases: Saul Alinsky's Rules for Radicals. But Alinsky insisted that people focus on the world as it is. In essence, Barack reversed Alinsky's teaching by focusing on the world as it should be: the vision thing.

Left to his own devices, Barack Obama is an extremely thoughtful guy, who often reworks and synthesizes the influences he absorbs. If one looks at Obama's current education proposals, he has jettisoned most of the left-wing Bill Ayers-style ideas that the Annenberg Challenge pushed in the mid-1990s when Obama was its chair — probably because they didn't work.

The most radical of Obama's current education ideas is his proposal for mandatory universal service by school children. While many in the left-wing democracy education movement favor universal service, Ayers seems to embrace this idea less than most. Ayers is more iconoclastic (and idiosyncratic) than someone like Obama. Ayers does emphasize bringing the community into the schools and vice versa, but (from what I've read) a massive federal community service requirement is not really his style.

And — as radical as mandatory community service issue is — it is favored by many on the political right as well as in the political center. It is both radical and politically mainstream. Even John McCain has in the past at least entertained the idea of mandatory national service. I have been unable to determine so far how much experience Barack Obama has actually had with mandatory service, so I don't know whether his support for mandatory service results from experience or a lack of experience.

One area where Obama has had lots of experience but where his trademark thoughtfulness has failed him is private-public housing projects. His best friends and supporters built and managed public-private projects that failed miserably. One of the projects was one Obama worked on as a lawyer (Rezko was involved). Yet that project and one other run by one of his closest friends and advisors, Valerie Jarrett, deteriorated literally just hundreds of yards from his office on the west wall of the University of Chicago Law School. He could look out his window and see these projects as they declined. Yet he is proposing a lot more of the same.

Yet Obama's support for public-private housing projects is an exception. Usually, Obama learns from the failures of his reform proposals. Generally, he is a pragmatic idealist.

People should not confuse Obama's personality with his political orientation: by personality, Obama is the most reasonable, thoughtful, moderate person on either national ticket. He is definitely NOT an ideologue. Yet by political orientation, Obama is the most liberal or progressive candidate to be a party nominee for president in at least a half century — probably ever. That explains why he is in essence a radical incrementalist.

89 Comments

Painful / Potentially Harmful Religious Practices and Minors:

The Daily Mail (U.K.) reports:

Syed Zaidi faces up to ten years in prison for forcing [two] teenagers to whip themselves using a bundle of chains with sharp curved blades attached.

The device, called a zanjeer [for a photo, click on the link -EV], has been used for centuries by Shia Muslim men and boys to mourn the death of the Prophet Mohammed's grandson.

Zaidi lashed himself "until his bare back was covered in blood," then told a 15-year-old boy to do the same, and then "grabbed a 13-year-old boy by the arm, pulled off his T-shirt and made him flog himself as well. Both boys later needed hospital treatment for deep cuts to their backs."

It's apparently illegal in England for minors under the age of 16 to take part in such activities, even voluntarily (though of course it's often hard to tell with minors when such a decision is voluntary).

My sense is that the result is quite right on these facts, because this sort of behavior may well cause serious injuries. See also this post of mine about potentially, though rarely, life-threatening infant circumcision practices.

At the same time, the broader question of when it's improper to pressure children to engage in religious acts that are potentially physically painful or uncomfortable is a harder one. Fasting, for instance, is quite uncomfortable, which is one reason that people engage in it for religious reasons.

I'm inclined to say that it shouldn't be a crime to pressure your teenage children to fast, and that it certainly shouldn't be a crime simply to let them fast voluntarily -- again, noting the difficulty in determining voluntariness in many such situations -- despite the discomfort this might cause (unless the teenager has a medical condition that makes such fasting particularly dangerous). So my tentative sense is that the main distinction ought to be between (a) action that causes considerable physical pain or a significant risk of serious injury and (b) action that causes a modest amount of physical discomfort. At the same time, this strikes me as a pretty complicated question, even if the answer in some situations (e.g., whipping with blades until blood runs down your back) is pretty clear.

An extra twist: The law generally lets parents expose their minor children to considerable risk of pain and injury in typical kinds of sports (such as football), and even lets parents pressure their children to participate in such events. Should this be a benchmark for the kinds of risks that would be allowed for religious practices, so that the law would permit religious rituals that involve the same or lesser risk of pain and injury as playing football (or whatever is the riskiest sport that is generally allowed for minors)?

39 Comments

How to Annoy a Judge Through Excessive Rhetoric:

From Live Nation Motor Sports, Inc. v. Davis, 2006 WL 3616983 (N.D. Tex. Dec. 12):

[T]he court notes that Davis's statements are generally defiant and full of inappropriate hyperbole that do not assist the court in determining the facts. Here are a few examples from Davis's Mot[ion[] to Quash: “Defendants DO NOT ACCEPT these “Supercross LIVE!” copyright labeling by Plaintiff.” “Plaintiffs have come roaring into this federal court with the overwhelming force and the ethics, or lack thereof, of Ghengis Khan.” “Plaintiff has the gaul [sic] to ask this court to affirm its spoils with a partial summary judgment and preliminary judgment.” “A lie repeated five (5) times becomes the truth. Ten (10) times is this Plaintiff's version of the truth in this complaint.”

My sense is that judges are generally much more moved by calm argument than by fulmination -- and more moved by normal text than by ALL CAPS.

41 Comments

Third Circuit Holds that Search of a Cruise Ship Cabin at the Border Requires Reasonable Suspicion: The Third Circuit has handed down an interesting Fourth Amendment case, United States v. Whitted, that considers "whether the Fourth Amendment requires any level of suspicion to justify a border search of a passenger cabin aboard a cruise liner arriving in the United States from a foreign port." In an opinion by Judge Rendell, the court concluded that it does: According to the Court, reasonable suspicion is required. There's very little precedent on this issue and it's a pretty interesting set of facts, so I thought I would blog about it.

  First, the facts. A cruise ship traveled from the foreign port of St. Maarten and then docked in St. Thomas, part of the United States Virgin Islands. After the ship was docked in St. Thomas, officers from the United States Customs and Border Protection boarded the boat and searched the cabins of a few suspects that the officers thought (based on their investigation) might be bringing narcotics into the United States. The officers searched the cabin when the defendant wasn't present and found a bunch of heroin stuffed into perfume bottles and a shaving cream container in a bag.

  The question in the case was whether the search of a person's cabin counts as a routine border search or a non-routine border search under the Fourth Amendment. The former requires no suspicion; the latter requires a showing of reasonable suspicion. So far, the only kinds of searches that courts have found to be non-routine searches are invasive searches of the person. For example, a body cavity search is non-routine; such a search at the border requires reasonable suspicion. All other searches, of luggage, cars, computers, etc. have all been held to be routine searches that don't require reasonable suspicon.

  In the court's majority opinion, Judge Rendell concludes that a search of a cabin is a non-routine search requiring reasonable suspicion. The reason: Searching a cabin is like searching a home, and the home has always received special Fourth Amendment protections.
[T]he search of private living quarters aboard a ship at the functional equivalent of a border is a nonroutine border search and must be supported by reasonable suspicion of criminal conduct. The cruise ship cabin is both living quarters and located at the national border. As a result, one principle underlying the caselaw on border searches–namely, that “a port of entry is not a traveler’s home,” United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)–runs headlong into the “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” foremost in our nation’s Fourth Amendment jurisprudence, Payton v. New York, 445 U.S. 573, 601 (1980) (quoting United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring))
  On one hand, that conclusion seems pretty fishy to me; the reasoning seems at bit at sea. I think the biggest problem is that I'm not sure a cruise ship cabin becomes a passenger's "home" in a Fourth Amendment sense. If you drive across the border in a mobile home, that's not a "home" for Fourth Amendment purposes; if you take a sleeper car in a train across the U.S. Canada border, that's not your home, either. Why is a cabin different? The court says is that a cabin becomes a "residence," whereas cars aren't residences: But why? If you live in a mobile home, that is in fact your residence. But the courts treat mobile homes as cars, and cars can be not only searched but actually disassembled at the border without suspicion. Why treat cruise ship cabins one way and mobile homes another way? (The court relies on an old 9th Circuit case as precedent, but the Supreme Court has slapped down the 9th Circuit's border search cases so many times that I'm not sure those precedents have much force today.)

  On the other hand, in defense of the rule, the rule is actually pretty narrow. As soon as the cruise ship passenger packs up his bags and leaves the boat, it is clear that all of his stuff can be searched as a routine search without any suspicion. That is, the result here requires reasonable suspicion to enter and search the cabin after the boat has docked, but lets the government do whatever it wants when the defendant steps off the boat and goes through customs. I can see some justification for such a rule. The idea would be that the Fourth Amendment injury in the case of searching a cabin at the border is one of the traditional concerns with home entry: The cops breaking into your "home" when you're asleep, or otherwise in private. Maybe that's less of a concern with mobile homes because the driver will be driving when he crosses the border, not sleeping. Or hey, maybe Judge Rendell just really likes cruises.

  Anyway, it's a pretty interesting case. Oh, and kudos to Judge Chagares, who wrote a sensible concurrence: It notes that because everyone agreed that reasonable suspicion did exist, there was really no need to reach out and try to answer the difficult constitutional question. (Hat tip: Blogfather Eugene)
29 Comments

Professional-Client Speech and the First Amendment:

The U.S. Court of Appeals for the Eighth Circuit handed down Milavetz, Gallop & Milavetz v. United States yesterday, in which the majority held unconstitutional a provision that barred debt relief agencies — including lawyers — from

advis[ing] an assisted person or prospective assisted person to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy petition preparer fee or charge for services performed as part of preparing for or representing a debtor in a case under this title.

The court concluded that:

[R]egardless of whether the government's interest in prohibiting the speech was legitimate (Gentile standard) or compelling (strict scrutiny standard), § 526(a)(4) is unconstitutionally overbroad as applied to attorneys falling within the definition of debt relief agencies because it is not narrowly tailored, nor narrowly and necessarily limited, to restrict only that speech that the government has an interest in restricting. Instead, § 526(a)(4) prohibits attorneys classified as debt relief agencies from advising any assisted person to incur any additional debt in contemplation of bankruptcy; this prohibition would include advice constituting prudent prebankruptcy planning that is not an attempt to circumvent, abuse, or undermine the bankruptcy laws. Section 526(a)(4), as written, prevents attorneys from fulfilling their duty to clients to give them appropriate and beneficial advice not otherwise prohibited by the Bankruptcy Code or other applicable law.

The decision seems quite right to me. Thanks to How Appealing for the pointer.

7 Comments

Obama, Heterosexism, and Capitalism:

Yesterday's Investors Business Daily reports on the Chicago chapter of Public Allies, a group with trains and pays stipends to community organizers and other youthful volunteers. According to IBD, "Barack Obama was a founding member of the board of Public Allies in 1992, resigning before his wife became executive director of the Chicago chapter of Public Allies in 1993." IBD also describes the diversity training in Chicago; it is not clear from the article whether this particular training took place while either Obama was involved in the group. IBD states that in the Chicago training, "heterosexism" is explained as "a negative byproduct of 'capitalism, white supremacy, patriarchy and male-dominated privilege.'"

Here is my bleg: do VC readers know of any serious research about a link between heterosexism and capitalism, white supremacy, patriarchy and male-dominated privilege? My initial impression is the cause and effect theory of heterosexism is quite wrong. Communist dictatorships, for example, are often quite hostile to homosexuals; yet Communist states are not capitalist, generally have legal equality of men and women, and (outside Europe) are run by non-whites. Conversely, ancient Greece was relatively tolerant of some forms of homosexuality, and yet was patriarchal, dominated by whites, and had a primitive free market.

So, is there a serious intellectual argument for the Public Allies theory of the causes of heterosexism?

35 Comments

Wisdom of Crowds?

Bad news for you McCain supporters (including those of you who took me rather forcefully to task for having the temerity, in earlier posts, to suggest that Sarah Palin is grossly and perhaps even grotesquely under-qualified to be President of the United States): The Iowa Electronic Market, which is a real-money futures market allowing individuals to trade in "future contracts" based upon the occurrence or non-occurrence of real-world events, has McCain futures for sale at a deep discount compared to Obama futures. It'll cost you $0.59 to get a contract paying you $1 in the event of an Obama victory, but only $0.41 for a $1` payoff if McCain wins. The IEM's track record at getting its predictions of future events correct (discussed in James Surowiecki's book on "The Wisdom of Crowds") is very good, incidentally.

81 Comments

Reply Brief in Pearson v. Callahan: Today we filed the Reply Brief in Pearson v. Callahan, the Fourth Amendment and qualified immunity case that I have blogged about before. I have posted a copy of the Reply Brief here: Reply Brief for Petitioners. You can find all of the other briefs in the case, including all of the amicus briefs, here at SCOTUSWiki. Oral argument in the case is set for October 14.

Hints of a Republican Bounce.

Last week, while everyone was saying that the Democrats were not getting a bounce from their convention, I was one of the first people to note that there were hints of a big 8-10% bounce toward Obama, based on changes in the last day of one 3-day tracking poll.

Now I’m seeing the same thing for the same reasons in the Republican direction (though because of a CBS poll conducted before Palin’s speech but released yesterday showing a dead heat, I am far from the first to note a probable Republican bounce).

Today, both the Gallup and the Rasmussen tracking polls are showing a 3% move in McCain’s direction from the day before. That means that respondents polled on Thursday were 8-10% more favorable for the Republicans than those polled on Monday. If polling on Friday and Saturday continues in the same direction, that would point to a dead heat or insignificant lead for McCain by the 3-day tracking polls released on Sunday.

As I noted before, this might well not happen. There is a reason that the polling agencies use three-day averages.

85 Comments

More on the AALS "Boycott" of Hotel Because of Owner's Contribution to Anti-Same-Sex Marriage Ballot Initiative:

Here's a statement from three USD law professors condemning the action (which, to my knowledge, consists of the AALS's not breaching its contract to reserve a block of guest rooms, but moving conference events from the hotel):

Statement on the AALS “Boycott”

1. The matter of same-sex marriage is currently a hotly debated issue in the United States, with complicated cultural, religious, and political dimensions. Americans, and presumably American law professors, hold a variety of views on this issue.

2. As various scholars and commentators have pointed out, legal recognition of same-sex marriage is likely to have a significant impact on some religious or religiously-affiliated institutions. The matter thus has potentially important implications for religious freedom. These are also the subject of a variety of views among Americans and, presumably, American law professors.

3. The Association of American Law Schools is a professional association. Its purpose is to promote the interests of law schools and the legal academy. In performing this function, the AALS can and should facilitate debate and expression among legal academics on a wide range of issues, including same-sex marriage. The AALS itself, however, is not and should not be a partisan political organization working to advance particular positions on issues about which Americans and American law professors are divided. Groups or individuals who attempt to commandeer the organization in behalf of contested political causes undermine the organization and its ability to serve the professional purposes for which it exists.

4. There has not been, to our knowledge, any careful or sustained discussion within the AALS seeking to ascertain the views of member schools or law professors or to determine whether any consensus exists regarding either the issue of same-sex marriage or the question of appropriate political or economic action by the AALS with respect to the issue.

5. In this situation, the recent announcement by the AALS of what is widely viewed and described as a “boycott” of a hotel based on an owner’s support of California’s Proposition 8 (which supports traditional marriage) reflects an ill-conceived and inappropriate action by the AALS’s leadership. Although the announcement has generated considerable confusion, it clearly seems calculated to put the AALS’s prestige and economic weight behind opposition to Proposition 8, and thus in effect to place the AALS on record as supporting same-sex marriage. Given the AALS’s purposes, this action is inappropriate and presumptuous.

6. The AALS should refrain from such inappropriate actions, now and in the future. It is likewise inappropriate for individual sections of the AALS, organized to promote particular subject matter interests (such as legal writing), to purport to speak for their own section members on political issues.

7. Individual law professors may wish to consider declining to attend the AALS conference this year as a way of expressing their disapproval of the AALS’s inappropriate decision.

Larry Alexander
Maimon Schwarzschild
Steven D. Smith
[all from the law school at the] University of San Diego (for purposes of identification only)

PLEASE NOTE: The purpose of this Statement is emphatically not to take or endorse any position on the merits of Proposition 8, but rather to call attention to what we believe is a deviation by the AALS from its proper function -– a deviation that is ultimately prejudicial to the organization and the interests of legal academics and institutions. We invite others who share our concerns, whatever their views may be with regard to Proposition 8 or same-sex marriage, to join us in encouraging the AALS and its leadership to promote the professional interests and purposes for which the organization exists.

I'm inclined to agree that academic organizations generally shouldn't boycott businesses because of the views the owners express, or the causes those owners support. The broader question of the propriety of boycotts by organizations is pretty complex, but I'm tentatively inclined to think that academic organizations have a special professional obligation not to discriminate based on people's speech or other political activity, with regard to outsiders as well as with regard to scholars and students. (I talk about this broader question in some measure in Part II of this article, though that doesn't cover the special professional duties, if there are some, of academic organizations.)

25 Comments

Prayer as Attempted Murder?

A reader asks an interesting question:

Some Christian Reconstructionists are urging their fellows to pray for the death of John McCain so that Sarah Palin will be become President. [Example here.] Are those who pray for McCain's death guilty of attempted murder, and are those urging them to do so guilty of incitement? It seems to me that they are. Although I don't believe that their prayers can have any effect, it seems to me that this falls into the same category as the oft-discussed firing of an unloaded gun or firing a gun into a bed that turns out to be empty. The intent to kill is present and an action has been taken in furtherance of that goal. Christians should presumably be all the more clear that this is attempted murder insofar as they believe prayer to be efficacious.

This, it seems to me, is a good illustration of the limits of analogy. It's true that asking someone to commit murder may well constitute attempted murder (as well as the crime of solicitation). The test for attempt is generally not just that "an action has been taken in furtherance of that goal" — different jurisdictions require different amounts of conduct, but all require more than just "an action" for an attempt prosecution (as opposed to for a conspiracy prosecution, where an agreement plus an overt act, even a relatively minor one, generally suffices). But when a person has asked another human being to commit the crime, especially when he hopes that the other person will commit the act with no further help from the requester, that would usually qualify. And indeed it generally doesn't matter if it turns out that the request couldn't possibly work, for instance because the person asked would never commit the crime, or was accidentally given an unloaded gun, or some such.

But people aren't the same as God, either to atheists or to religious people. One way of seeing that is that God's action wouldn't be illegal. To those who believe in God, as he is conceptualized by most Americans, God's action wouldn't even be immoral. (It's true that some people say "If God killed people for this-and-such, he would be evil," but usually they are people who don't believe that God does that.) It would be within his authority as, in a sense, the ultimate sovereign of the world.

In fact, if there is an analogy here, it would probably be to a petition to the President asking him to order an assassination that he could lawfully order (or, as to the other part of the reader's question, to exhortations to the public aimed at getting people to petition the President to order such an assassination). I would say that it's even legal to petition the President to order assassinations that are illegal; but, as I said, there's nothing illegal in God's hastening someone's death.

We could try to come up with precise constitutional foundations for this, for instance that the request to the President is protected by the Petition Clause of the First Amendment, and that a request to God is protected by the Free Exercise Clause. Or we could focus on a legal distinction between asking someone to do something that is legal for him (or Him) to do from asking a contract killer to do something that is illegal for him to do. Or we could focus more practically on the relative unlikelihood that a person who tries to cause death by prayer will switch to a gun if prayer fails. (That's one reason we punish attempted killers even when their attempts were factually impossible, for instance because the gun is unloaded: We figure they are quite likely to try with a loaded gun next time.) But we don't have to choose, because all these factors strongly point in the same direction, and strongly suggest that asking God to end a person's life is very far from asking an acquaintance or a prospective contract killer to do the same.

(I should note that there has been a little judicial commentary on attempts to kill by voodoo or withchraft, as best I can tell unanimously opposing criminal liability in such situations. See Commonwealth v. Johnson, 167 A. 344 (Pa. 1933) (Maxey, J., dissenting); Attorney General v. Sillem, 159 Eng. Rep. 178 (1863). But I'm not sure this is a perfect analogy, either, and in any event there's not much real law on that.)

93 Comments

Palin and American Women:

Gloria Steinem writes in the L.A. Times,

[Palin] opposes just about every issue that women support by a majority or plurality. She believes that creationism should be taught in public schools but disbelieves global warming; she opposes gun control but supports government control of women's wombs; she opposes stem cell research but approves "abstinence-only" programs, which increase unwanted births, sexually transmitted diseases and abortions; she tried to use taxpayers' millions for a state program to shoot wolves from the air but didn't spend enough money to fix a state school system with the lowest high-school graduation rate in the nation; she runs with a candidate who opposes the Fair Pay Act but supports $500 million in subsidies for a natural gas pipeline across Alaska; she supports drilling in the Arctic National Wildlife Reserve, though even McCain has opted for the lesser evil of offshore drilling. She is Phyllis Schlafly, only younger.

I haven't seen the surveys that Ms. Steinem relies on; but here's a brief summary of what I quickly did find:

  1. On one aspect of gun control questions -- whether the Second Amendment protects an individual right of pretty much each person to own a gun -- Palin's view is shared by 58% of women (Dec. 2007, CNN). (On other aspects, Palin might indeed disagree with many women, but this struck me as a pretty important one.)

  2. If Palin does believe "that creationism should be taught in public schools," her view is probably shared by most women. Of the public generally, polls report that a significant majority favors teaching creationism alongside evolution in public schools: 65% to 29% in a 2004 CBS/N.Y. Times poll, and 58% in a 2006 Pew poll. A 2005 Harris poll actually reported that only 12% of the public supported teaching only evolution, and 82% supported teaching creationism or intelligent design either alone (27%) or alongside evolution (55%). I know of no reason for thinking that women are less likely to take this view than men: For instance, when the Pew survey asked, "What Should Be the More Important Influence on U.S. Laws? [The Bible vs. People's will]", 29% of men said the Bible (67% said people's will) and 37% of women said the Bible (58% for people's will); this suggests that if there is a gender gap on such questions, it probably wouldn't lead to many fewer women supporting creationism teaching than men.

    (As to Palin's views on the subject, she has said "Teach both [creationism and evolution]. You know, don't be afraid of information. Healthy debate is so important, and it's so valuable in our schools. I am a proponent of teaching both." but later said she meant that "I don't think there should be a prohibition against debate if it comes up in class. It doesn't have to be part of the curriculum.")

  3. On global warming, Palin's statement that she "would [not] attribute it to being man-made" probably does differ from the views of women (since it's out of step with the views of the public at large, and I have no reason to think there's a large gender gap on this question).

  4. Likewise, her opposition to stem cell research does differ from the views of the public and almost certainly of women.

  5. On abortion, I suspect that both Palin and Obama disagree with most American women. There's very little gender gap on the subject, but while most women (58% in this 2003 ABC News poll, and I don't think the numbers have changed significantly since) say abortion should be legal "in all or most cases," the fraction falls to 40% if the abortion is "to end unwanted pregnancy" as opposed to when the reason is "to save woman's life," "to save woman's health," "in cases of rape/incest," or "when baby is physically impaired."

  6. I also don't know of any surveys on women's views about shooting wolves from the air (which was apparently "intended to boost moose and caribou numbers"), or subsidies for the natural gas pipeline. (The wolf program also apparently did not involve "taxpayers' millions" but "$400,000 approved to educate Alaskans about wolf killing," plus $150 to be paid per wolf killed, with an objective "of between 382 and 664 wolves" for an expected total of $100,000 or less; but I might have missed some other materials on this.) If there are no such surveys, then I see no basis for Ms. Steinem's "women support by a majority or plurality" claim, which I take it refers to all the items that follow in that paragraph, and not just some.

98 Comments

Daddies, Mommies, Politicians and Double Standards:

I was driving my baby daughter Eden to her four-month doctor appointment this morning, when I heard reporter Anne Korblut of the Washington Post on The Diane Rehm show defending the media's coverage of Sarah Palin and her family. She said something along the lines of, "If Barack Obama had a four-month-old special needs baby, and a seventeen year-old pregnant daughter, I'd be the first to ask whether this is the right time for him to be running for president."

Balderdash! Obama has two daughters, one born in 1998, the other in 2001. Even if we acknowledge that mommies tend to do more of the parenting than daddies, can we all agree that little girls need their daddies, and that fathering little girls creates some moral obligation to spend time with them? Good.

Since January 2005, Obama's family has lived in Chicago, while he initially spent much of his time in D.C. working as a Senator, and then, since last Spring, he has spent almost all of his time on the road campaigning. I'd be surprised if he's seen his kids more than once a month during campaign season.

Does this make Obama a less-than-ideal father? You bet it does. But he's not running for Father of the Year, he's running for president. So it's entirely proper that this has NOT been a political issue.

Enter Sarah Palin. If any reporter, Anne Kornblut or otherwise, has asked Obama how he feels about not participating in the raising of his children on a day-to-day basis, or what will happen when he's president if one his girls is sick in the middle of the night and is calling for daddy (as people have asked about Palin), I've missed it.

I agree that it's hypocritical of the "traditional values" crowd to suddenly lionize Palin, when they've been arguing for years that a mother's place is with her small children. (Dr. Laura, to her credit, has been consistent on this, and is duly critical of the Palin pick.)

But for the media to claim that there's no double-standard in how they treat Palin's family obligations and how they treat Obama's (or other male politicians, for that matter) just can't withstand scrutiny. Either it's okay to delegate one's parenting responsibilities to pursue political ambitions, or it's not.

101 Comments

"'Natural Born Citizen' and McCain: Two Papers and a Comment":

Prof. Larry Solum, of the excellent Legal Theory Blog, links to and excerpts two papers on the subject.

UPDATE: The papers are forthcoming later this month in the Michigan Law Review's online companion, First Impressions.

57 Comments

First Annual Minnesota Conservative & Libertarian Legal Colloquium:

The University of Minnesota Law School, under Dean David Wippman, is creating an annual conference to address important legal issues from conservative and libertarian perpsectives. This year's colloquium, on the topic of "Stare Decisis in Constitutional Law," will be held October 3 at the law school, from 1:30 to 3:30 p.m. It's open to the public.

The participants are a fantastic group of legal scholars and thinkers: Amy Coney Barrett, Associate Professor of Law, University of Notre Dame Law School; Rachel Brand, counsel in the Regulatory and Government Affairs and Litigation and Controversy Departments, WilmerHale, Washington, D.C. and former Assistant Attorney General for the Office of Legal Policy of the United States Department of Justice; Orin Kerr, professor of law, George Washington University Law School and VC blogger extraordinaire; John Oldham McGinnis, Stanford Clinton Sr. Professor of Law, Northwestern University Law School; Thomas W. Merrill, professor of law, Yale Law School; Michael Paulsen, Distinguished University Chair and professor, University of St. Thomas School of Law; and Sai Prakash, Herzog Research Professor of Law, University of San Diego School of Law. Additional commentary will be provided by my colleagues Brian Bix, Frederick W. Thomas Professor for the Interdisciplinary Study of Law and Language and Heidi Kitrosser, Associate Professor of Law.

The colloquium is jointly sponsored by the University of Minnesota Law School, the Federalist Society, and the law school student chapter of the Federalist Society. My colleague David Stras and I are co-chairs of the event. More details about it can be found on the law school's website.

0 Comments

Poor Joe Biden:

The only other impression I'm really left with after the Republican National Convention is that watching Sarah Palin's speech, all I could think was "Poor Joe Biden--he has to debate her on national television in a month." I think he is going to have his hands full, to say the least.

I actually like Joe Biden. When I testified on the bankruptcy reform legislation, he treated me respectfully and professionally, which is not something I can say for all of his colleagues. And he ended up being a staunch supporter of the legislation and voted for it, which drew 74 votes and bipartisan support (and similar levels of support in the House).

But watching Palin I all of a sudden had a memory of when I was a kid and I recall watching with sadness Muhammad Ali's fight against a younger, stronger, sharper Larry Holmes. Ali's time was past and Holmes just ran rings around him and everyone just ended up feeling sorry for Ali and hoping he wouldn't get hurt too much (which apparently he unfortunately did). I think that Palin's debate with Biden in October could end up being a rout (although Gwen Ifill won't be authorized to stop it as a TKO). And I'm not saying this to be partisan--the debates between Bill Clinton versus Bob Dole was pretty close to a TKO in 1996 from what I recall, but I think that Palin-Biden may be even more lopsided.

One of the things that is going on here, I think, is that many in the media and elsewhere have simply made a mistake in how they think about "experience." Over the past few days, we've heard a lot of people talk about Palin's "executive experience"--especially former executives, such as Giuliani, Romney, Lingle, etc. Over the past several years, I have done a lot of work with Congress (House and Senate), Governors, the White House, and of course, I served in senior management at the FTC. And based on my experiences, the job of being a Governor or executive branch official is simply different in kind from being in the Senate. Unless you've seen it up close, I don't think you really do appreciate what it means to be, say, a Governor. Governors really do take responsibility for everything that comes across their desk and every decision that gets made. They really do have to make tough decisions. The problem with the so-called "elite media" is that they don't pay attention to what governors do, so they don't really understand what this is all about.

One thing that I have noticed, for instance, is how much more knowledgeable Governors and executive branch officials are about details of legislation and regulaiton than legislators. I recently was advising a Governor of a state on some legislation to increase the state's personal property exemptions--not thought of as a big issue. But this guy (and his staff) really wanted to delve into the details of the legislation and its likely effects, the empirical work on the topic, etc. They take responsibility for what they sign and the effects of laws and regulations that are enacted.

Based on my observations, I'd say as a rule of thumb two years as a Governor certainly exceeds four years as Senator in terms of useful experience. Senators do not have to take personal responsibility for the decisions the body makes. They don't have make tough decisions, they cut deals. This is valuable experience, but it really isn't the same sort of experience as being an executive. Governors have to show up for work every day ready to make decisions.

To put it more bluntly--the Senate is, frankly, a silly place. The people in the Senate are silly and what they do most of the time is silly. To the extent that a Senator commends himself as a serious person, as I think John McCain does if nothing else, it really is despite his time in the Senate, rather than because of it. There are a handful of other Senators who seem to remain serious despite serving in the Senate (if I had to guess, I'd predict that many of those who resist Senator-itis had significant business, military, or executive branch experience before going to the Senate). It seems like McCain has managed to serve in the Senate for a long time without losing his desire for accountability and responsibilitiy. One of the best things that Barack Obama has going for him at this point is that he doesn't yet seem like a silly Senator but a real person (I note in passing that this is a disease that Hillary Clinton will have to guard against, especially if she has to wait eight more years). Compare him to the other Senators that he ran against in the primaries--Chris Dodd, Biden. I suspect that Bob Dole and John Kerry were real, serious people at one time, but by the time they ran for President, they just seemed like (for want of a better word) "goofballs." They had been changed into Senators and that seemed transparent. Presumably Bob Dole didn't always refer to himself in the third person, did he?

As for Obama's pre-Senate experience, this is an achilles heel for him, I think, in terms of conveying this seriousness. Chris Matthews had a great line the other day where he observed, "Some people say that if the guys in Scranton knew what Barack Obama did as a community organizer they'd like him for it." Matthews continued, "No they wouldn't. What is a 'community organizer? Do the guys in Scranton think that is a real job? Do they know anyone who is a 'community organizer?'" And I think that's the problem--it isn't really a serious job and it tends to reinforce the perception of Obama as a legislator and Senator rather than someone who can take responsibility and make decisions.

One of the more amusing interviews I saw when Palin was announced was with Senator Ken Salazar of Colorado. I vaguely knew that he existed, but there's no way I could name anything he's ever done. Anyway, Salazar says, "Who is Sarah Palin. I'd never even heard of her until they announced her as VP." Now, what is so strange to me is that he thought that was a putdown of Palin, whereas it seemed to me that Salazar was actually putting down himself considering he didn't even know the name of a governor. But his world view is defined by his own importance. Of course, this isn't unique to Democrats--I remember someone writing last week (I can't recall who) that he sat with Senator Hatch at a dinner in New Hampshire when Hatch was running for President in 2000 and Hatch was both stunned and dismayed to learn how few people actually knew who he was.

So to bring this back to poor Joe Biden. When Joe Biden and Sarah Palin debate, I think that he runs a real risk of coming off as a "Senator"--which is not a good thing. He hasn't had a real job in 35 years. And he seems like a man who hasn't had a real job with real responsibilities in 35 years. His long-windedness and apparent self-importance basically emobies "Senator-itis." Palin seems smart (presumably Biden is smart too), bur more importantly she is sharp and tested and on her game as a sitting Governor. She is game-tested.

I submit that based on my personal observations, those who think she "lacks experience" to be President because she is a first-term Governor really just don't know what they are talking about. And I think her ability to "step up" and give her rocking speech at the Convention is consistent with this. Nobody really has the experience to be President--the job is sui generis. What you have to have is someone who has the intelligence and character to be able to be President. Being a Governor tests for those criteria; being a Senator does not.

So note, this is not intended as an endorsement of either ticket. It is just to say don't be surprised if the supposedly inexperienced Sarah Palin mops the floor with Joe Biden when thier debate comes in October. At this point I suspect that the only way Joe Biden is going to come out of this looking ok will be to not be Joe Biden and it seems a bit late for that.

Let's also say how relieved I am that we don't have at least one non-Senator around for this election.

Update:

I meant to say "one non-Senator" in the original post and have now fixed that.

184 Comments

Charles Murray on Education Reform:

The Washington Times has been running a series of excerpts this week from Charles Murray's new book, Real Education. Today's excerpt is on educating gifted children. I thought yesterday's was the most interesting of the group. Wednesday Murray argued that the country is essentially "run" by a couple of thousand "elite" politicians, business people, and thinkers.

Thursday he tackled the question of the limitations of how this elite are educated today in "Virtue? The Good?":

The topic yesterday was the elite that runs the country, drawn overwhelmingly from among the top 10 percent in intellectual ability, dubbed "the gifted." Today's topic is their education in virtue and the Good.

As someone who has spent a fair amount of time on campuses over the past 20 years, I am happy to report that today's gifted students are, for the most part, nice. They are not racist, sexist or homophobic. They want to be generous to those who are less fortunate. They say please and thank you.

But being nice is not being good. Living a nice life is not living a good life. One of the special tasks in the education of the gifted is to steep them in the study of what good means - good as it applies to virtue, and the as a way of thinking about how to live a human life.

Virtue by what definition? It sounds like a daunting question. It is not. The great ethical and religious systems of the world are in such remarkable agreement on the core issues that, practically speaking, any of them will do. Take the world's two most influential secular ethical systems, Aristotelian and Confucian, as examples. If your children grow up to be courageous, temperate, able to think clearly about the consequences of their actions, to be concerned with the welfare of others, with a sense of obligation to set a good example for others in their own behavior and to accord to others their rightful due - all of which are central tenets of both ethical systems - do you really care whether they were raised to be good Aristotelians or good Confucians?

The problem is when they are raised in no tradition at all, and instead imbibe the reigning ethical doctrine of contemporary academia, nonjudgmentalism. If they were taught merely to be tolerant, fine. But nonjudgmentalism goes much further, proclaiming that it is a sin to make judgments about the relative merit of different ways of living. Nonjudgmentalism is the inverse of rigor in thinking about virtue - a task that, above all else, requires the formation of considered judgments.

I encourage you to read the whole thing. Based on these excerpts the book looks fascinating.

40 Comments

The Convention's Over:

Now back to our regularly scheduled programming.

37 Comments

EPA Sets Tighter LawnMower Emission Rules:

Yesterday the Environmental Protection Agency finalized new regulations governing emissions from gasoline-powered lawn and marine engines (e.g. lawnmowers, weed trimmers, motorboat engines, etc.). "EPA's new small engine standards will allow Americans to cut air pollution as well as grass," said EPA Administrator Stephen L. Johnson. According to the Washington Post story:

Environmentalists, who noted that one riding lawn mower emits as much pollution in an hour as 34 cars, said the move would protect the environment and promote energy efficiency. Because spark-ignition engines release as much as 25 percent of their gas unburned in their exhaust, the EPA also estimates that the regulations, when fully implemented, will lead to a more efficient combustion process that will save about 190 million gallons of gasoline each year.

It seems that much of industry is willing to accept the rules, so they might not face a court challenge. If so, that would be good news for the EPA, which has not had much luck defending Clean Air Act regulations under the Bush Administration.

42 Comments

Which is "The Party in Power"?

The Republicans and Democrats are both "in power," obviously, given that the Republicans control the White House, but the Democrats control the House and Senate.

With that in mind, here's the New York Times on McCain:

The nominee’s friend described him as a "restless reformer who will clean up Washington." His defeated rival described him going to the capital to "drain that swamp."” His running mate described their mission as "change, the goal we share." And that was at the incumbent party’s convention.

After watching two political conclaves the last two weeks, it would be easy to be confused about which was really the gathering of the opposition. As Senator John McCain accepted the Republican nomination for president, he and his supporters sounded the call of insurgents seeking to topple the establishment, even though their party heads the establishment.

You would think that the author would at least mention somewhere in this article that the Democrats control both houses of Congress. You would be wrong.

I agree that voters perceive the Republicans to be "in charge," in part because barely half even know that the Democrats control the Congress. But the Times piece presents things as if it's not just a political problem for McCain, but logically problematic for a Republican to run as a reformer who will clean up Washington. Even though Capitol Hill is, and is very likely to remain, a Democratic stronghold, according to the Times, the Democrats are the "opposition party." (see also Shales in the Washington Post). Anyone want to bet on whether the Times will have a story on how problematic it is for Barack Obama to run as a reformer when he is a Senator and his party controls the Senate?

99 Comments

Libertarianism and McCain-Palin:

Ilya asks whether Palin has libertarian tendencies. What strikes me about McCain-Palin is that this is the first all-Western ticket in history. I'm not sure how to say this exactly, except that the vibe you get from them is a distinctive vibe. Just Clinton-Gore in 1992 had a sort of "Southern" vibe. And the western vibe doesn't feel like the Texas vibe (thank goodness), which is something still distinctive unto itself. In terms of personal style, for instance, George W. Bush and Anne Richards were very similar characters despite their ideological differences.

What is the "western" vibe? This is purely subjective, but to me it is the feeling of no-nonsense, self-reliant, egalitarian, outsiderism, sort of Barry Goldwater-ish. Is it libertarian? Not exactly, but it does have that sort of feeling to it, to me at least. It feels like Goldwaterism. And I think this trickles through to the worldview of the candidates and then to policy. It seems pretty clear to me (especially after last night) that John McCain sees himself as Gary Cooper riding into to town to single-handedly clean-up corruption and gun down the rascals.

Palin has a female version of this feel to me. I saw one similar point by Chris Matthews talking about Palin--he observed that although women are going to like Palin "men will like them too." Why? Because she likes men, and peole like those who like them. What does he mean? I think it is related to this. She has a sense of independence. But also, she obviously likes sports (and was a sportscaster), her speech suggests that she likes cracking jokes and being sarcastic but in a non-mean-spirited way (contra some of Jim's observations--her cracks come across as locker room "razzing" to me). This has a western tinge to me as well.

The only caveat to this is that McCain's westernism is tempered by his military background. And frankly, this is what concerns me most about him--his mind seems like a command-and-control, top-down worldview. To put the matter more elliptically to many but more accurately to my thinking, I think he simply does not understand or trust the idea of spontaneous order. In his worldview, things happen (good or bad) because somebody makes them happen. This is not a worldview that is conducive to understanding spontaneous order. That's a statist streak in him that offsets some of his westernism.

What I think bothers some people about this western vibe is that the self-reliance and independence sometimes comes off looking like a loose cannon or shoot-from-the-hip cowboyism. That's the rap that people tried to lay on Goldwater (successfully) and Reagan (less successfully).

I've lived all over the country, so maybe I'm just more attuned to this sort of local culture feeling, but that's the vibe I get from McCain-Palin.

Update:

A commenter submits Eisenhower-Nixon as an "All-Western" ticket preceding McCain-Palin (Kansas-California). I have no comment on their vibe as I was negative 14 years old when they were elected, so I'll defer to others about whether they had a western "vibe."

54 Comments

Obama’s speech includes more negative attacks than Palin’s.

In an earlier post, I looked at the relative absence of sarcasm in Sarah Palin’s attacks on Barack Obama and Democrats in her acceptance speech.

At 42 minutes, Obama’s acceptance speech was only about 6 minutes longer than Palin’s. In Obama’s speech, there were only three statements that were probably sarcastic:

In Washington, they call this the Ownership Society, but what it really means is — you're on your own.

Out of work? Tough luck.

No health care? The market will fix it.

Born into poverty? Pull yourself up by your own bootstraps — even if you don't have boots.

These three assertions should probably be viewed as sarcastic because when he says “The market will fix it,” he actually believes the opposite. The same applies to his statements about bootstraps and “Tough Luck.” (However, these three statements might be viewed as not sarcastic because, though he is speaking sarcastically, these comments are part of a larger argument about the views prevalent in (Republican) Washington.)

Like Palin, Obama generally prefers to attack without using sarcasm. Also like Palin, Obama sometimes uses hyperbole to characterize his opponents’ views.

Here are the other passages in which Obama attacks McCain, Republicans, or Republican administrations:

1. John McCain likes to say that he'll follow bin Laden to the gates of hell — but he won't even go to the cave where he lives.

2. I don't know what kind of lives John McCain thinks that celebrities lead, but this has been mine.

3. Because next week, in Minnesota, the same party that brought you two terms of George Bush and Dick Cheney will ask this country for a third. And we are here because we love this country too much to let the next four years look like the last eight. On November 4, we must stand up and say: "Eight is enough."

4. John McCain has voted with George Bush 90 percent of the time. Sen. McCain likes to talk about judgment, but really, what does it say about your judgment when you think George Bush has been right more than 90 percent of the time? I don't know about you, but I'm not ready to take a 10 percent chance on change.

5. For over two decades, he's subscribed to that old, discredited Republican philosophy — give more and more to those with the most and hope that prosperity trickles down to everyone else.

6. America, we are better than these last eight years. We are a better country than this. . . . We are more compassionate than a government that lets veterans sleep on our streets and families slide into poverty; that sits on its hands while a major American city drowns before our eyes.

7. The truth is, on issue after issue that would make a difference in your lives — on health care and education and the economy — Sen. McCain has been anything but independent.

8. He said that our economy has made "great progress" under this president.

He said that the fundamentals of the economy are strong.

And when one of his chief advisers — the man who wrote his economic plan — was talking about the anxiety Americans are feeling, he said that we were just suffering from a "mental recession," and that we've become, and I quote, "a nation of whiners."

A nation of whiners? Tell that to the proud autoworkers at a Michigan plant who, after they found out it was closing, kept showing up every day and working as hard as ever, because they knew there were people who counted on the brakes that they made. Tell that to the military families who shoulder their burdens silently as they watch their loved ones leave for their third or fourth or fifth tour of duty. These are not whiners.

9. Now, I don't believe that Sen. McCain doesn't care what's going on in the lives of Americans. I just think he doesn't know. Why else would he define middle class as someone making under 5 million dollars a year?

10. How else could he propose hundreds of billions in tax breaks for big corporations and oil companies but not one penny of tax relief to more than 100 million Americans?

How else could he offer a health care plan that would actually tax people's benefits, or an education plan that would do nothing to help families pay for college, or a plan that would privatize Social Security and gamble your retirement?

11. It's not because John McCain doesn't care. It's because John McCain doesn't get it.

12. Well, it's time for them to own their failure. It's time for us to change America.

13. Tonight, more Americans are out of work and more are working harder for less. More of you have lost your homes and even more are watching your home values plummet. More of you have cars you can't afford to drive, credit card bills you can't afford to pay, and tuition that's beyond your reach. These challenges are not all of government's making. But the failure to respond is a direct result of a broken politics in Washington and the failed policies of George W. Bush.

14. Change means a tax code that doesn't reward the lobbyists who wrote it, but the American workers and small businesses who deserve it. Unlike John McCain, I will stop giving tax breaks to corporations that ship jobs overseas, and I will start giving them to companies that create good jobs right here in America.

15. Washington's been talking about our oil addiction for the last 30 years, and John McCain has been there for 26 of them. In that time, he's said no to higher fuel-efficiency standards for cars, no to investments in renewable energy, no to renewable fuels.

16. And just as we keep our keep our promise to the next generation here at home, so must we keep America's promise abroad. If John McCain wants to have a debate about who has the temperament, and judgment, to serve as the next commander in chief, that's a debate I'm ready to have.

17. For while Sen. McCain was turning his sights to Iraq just days after 9/11, I stood up and opposed this war, knowing that it would distract us from the real threats we face. When John McCain said we could just "muddle through" in Afghanistan, I argued for more resources and more troops to finish the fight against the terrorists who actually attacked us on 9/11 and made clear that we must take out Osama bin Laden and his lieutenants if we have them in our sights.

18. And today, as my call for a time frame to remove our troops from Iraq has been echoed by the Iraqi government and even the Bush administration, even after we learned that Iraq has a $79 billion surplus while we're wallowing in deficits, John McCain stands alone in his stubborn refusal to end a misguided war. That's not the judgment we need. That won't keep America safe. We need a president who can face the threats of the future, not keep grasping at the ideas of the past.

19. John McCain wants to follow George Bush with more tough talk and bad strategy, that is his choice — but it is not the change we need.

20. The Bush-McCain foreign policy has squandered the legacy that generations of Americans — Democrats and Republicans — have built, and we are here to restore that legacy.

21. So I've got news for you, John McCain. We all put our country first.

If one compares Palin’s speech to Obama’s, it appears to me that they used similar amounts of sarcasm (not much), but Obama made considerably more extensive negative comments about McCain and Republican administrations than Palin did about Obama and Democrats. Palin’s negative comments, however, were on balance funnier, better written, and more pointed than Obama’s. Neither candidate’s comments were entirely fair in every characterization of their opponents’ positions.

By continuing to spread false memes about the nature of Sarah Palin's speech as if they were true, the press marches forward in the most biased season of political reporting I've seen since at least 1998.

161 Comments

Was Sarah Palin More than Passingly Sarcastic?

One of the memes being spread by some Democratic reporters and other Obama supporters after Sarah Palin’s speech was that she was very sarcastic.

I don’t know whether these commentators don’t understand what “sarcasm" is or whether this is just another example of the blatant orgy of sexism with which Sarah Palin has been greeted. Already spreading this falsehood are 1,769 stories on Google News and 2,861 blog posts.

In her acceptance speech Sarah Palin was not particularly sarcastic. Mostly, she just said what she means. She made fun of Obama, but sarcasm played an exceedingly minor role in her pointed attacks.

Sarcasm is using words that on the surface would seem to mean the opposite of what the speaker actually means. Examples would include: “Oh, that’s great,” said after something terrible happened, or “You’re such a gentleman” after a man did something rude.

I went through the text of Sarah Palin’s prepared remarks and found one sarcastic aside and one sarcastic word in the context of a very unsarcastic statement, but no other likely examples. Here was the single sarcastic clause in her speech:

But when the cloud of rhetoric has passed ... when the roar of the crowd fades away ... when the stadium lights go out, and those Styrofoam Greek columns are hauled back to some studio lot — what exactly is our opponent's plan? What does he actually seek to accomplish, after he's done turning back the waters and healing the planet? The answer is to make government bigger ... take more of your money ... give you more orders from Washington ... and to reduce the strength of America in a dangerous world. America needs more energy ... our opponent is against producing it.

The line “after he's done turning back the waters and healing the planet” is sarcastic because, though she paraphrasing Obama’s own words, she doesn’t believe he will do this. Though sarcastic, there’s nothing terribly odd, unfair, or inappropriate about paraphrasing his own excessively lofty rhetoric.

The only other probable example of sarcasm is just one word, the use of “accolade” to refer to Harry Reid’s insult. But except for that one word, the overall statement wrapped around that word is not sarcastic: Palin means what she says.

Harry Reid, the majority leader of the current do-nothing Senate, not long ago summed up his feelings about our nominee. He said, quote, "I can't stand John McCain." Ladies and gentlemen, perhaps no accolade we hear this week is better proof that we've chosen the right man. Clearly what the majority leader was driving at is that he can't stand up to John McCain.

Here are the other 11 negative comments about Obama or the Democrats or Democratic administrations from Palin’s speech:

1. And since our opponents in this presidential election seem to look down on that experience, let me explain to them what the job involves. I guess a small-town mayor is sort of like a "community organizer," except that you have actual responsibilities.

(Here I think Palin is being playful, but she means what she says.)

2. I might add that in small towns, we don't quite know what to make of a candidate who lavishes praise on working people when they are listening, and then talks about how bitterly they cling to their religion and guns when those people aren't listening. We tend to prefer candidates who don't talk about us one way in Scranton and another way in San Francisco.

(Palin is using understatement here.)

3. Our opponents say, again and again, that drilling will not solve all of America's energy problems — as if we all didn't know that already. But the fact that drilling won't solve every problem is no excuse to do nothing at all.

4. I've noticed a pattern with our opponent. Maybe you have, too. We've all heard his dramatic speeches before devoted followers. And there is much to like and admire about our opponent. But listening to him speak, it's easy to forget that this is a man who has authored two memoirs but not a single major law or reform — not even in the state Senate.

5. This is a man who can give an entire speech about the wars America is fighting and never use the word "victory" except when he's talking about his own campaign.

6. Victory in Iraq is finally in sight ... he wants to forfeit. Terrorist states are seeking nuclear weapons without delay ... he wants to meet them without preconditions. Al-Qaida terrorists still plot to inflict catastrophic harm on America ... he's worried that someone won't read them their rights? Government is too big ... he wants to grow it. Congress spends too much ... he promises more.

7. Taxes are too high ... he wants to raise them. His tax increases are the fine print in his economic plan, and let me be specific. The Democratic nominee for president supports plans to raise income taxes ... raise payroll taxes ... raise investment income taxes ... raise the death tax ... raise business taxes ... and increase the tax burden on the American people by hundreds of billions of dollars. . . . How are you going to be better off if our opponent adds a massive tax burden to the American economy?

8. Here's how I look at the choice Americans face in this election. In politics, there are some candidates who use change to promote their careers. And then there are those, like John McCain, who use their careers to promote change. They're the ones whose names appear on laws and landmark reforms, not just on buttons and banners, or on self-designed presidential seals.

9. Among politicians, there is the idealism of high-flown speechmaking, in which crowds are stirringly summoned to support great things. And then there is the idealism of those leaders, like John McCain, who actually do great things. They're the ones who are good for more than talk ... the ones we have always been able to count on to serve and defend America.

10. My fellow citizens, the American presidency is not supposed to be a journey of "personal discovery." This world of threats and dangers is not just a community, and it doesn't just need an organizer.

11. And though both Sen. Obama and Sen. Biden have been going on lately about how they are always, quote, "fighting for you," let us face the matter squarely. There is only one man in this election who has ever really fought for you ... in places where winning means survival and defeat means death ... and that man is John McCain.

In the next post, I consider whether Obama was as negative in his acceptance speech as Palin was (he actually said more negative things than Palin did, but his lines were less pointed.)

62 Comments

Thursday, September 4, 2008

McCain's moment:

He's terrible at delivery. He can't read from a teleprompter to save his life. And convention organizers badly managed the aesthetics and failed early on to control the outbursts of protesters.

But with this speech, and with Palin's last night, the McCain campaign has finally moved away from trying to consolidate the base and is making a powerful play for independents and Democrats on the basis of economics and strong foreign policy. This may be the first GOP acceptance speech since 1992, for example, in which the nominee didn't take a swipe at gay marriage.

McCain was refreshingly candid about Republican failures over the past few years, especially on spending. He was respectful of Obama and the Democrats, emphasizing the commonalities and noting the differences without sarcasm. It was the most genuine, generous, and classy speech of the RNC. I got the sense he finally felt free to be himself. For all his shortcomings, it's good to have him back.

Related Posts (on one page):

  1. McCain's moment:
  2. Palin's big moment:
  3. Palin's Speech:
124 Comments

A Brief Reference to Judges:

In his acceptance speech, Senator McCain did make a brief reference to judges as a political issue:

We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don’t legislate from the bench. We believe in the values of families, neighborhoods and communities.

It's not much, but it's more on this subject than we heard from Gov. Palin, Sen. Biden, or Sen. Obama.

25 Comments

Prejudice Against Palin:

Even though studies consistently show that conservative evangelical Christians are no more likely to be anti-Semitic than others (the ADL, for example, notes based on years of study that neither religion nor political ideology drive anti-Semitism, and here notes more specifically that "ADL polls on anti-Semitism in America show no greater inclination of Evangelical Christians to harbor hateful views of Jews than other groups in American society"), many American Jews, especially liberal, secular American Jews, have a disturbing tendency to suspect all evangelical Christians of being hostile to Jews.

Sarah Palin is only the latest example. Innuendos linking her to anti-Semitism have circulated based on the flimsiest of evidence--so far, that in 1999, as mayor of Wasilla she wore a Pat Buchanan button when he visited town (though she explicitly disclaimed support for him at the time, and indeed supported Steve Forbes that cycle), and that a church she attends had a guest speaker from Jews for Jesus, who delivered a (in my opinion) mildly offensive sermon suggesting that Jews get "judged" by God for not accepting Jesus. So here's a reality check:

Larry Tallman, an Alaska businessman who lives only nine miles from Sarah Palin’s hometown of Wasilla, recalls the first time he met the governor — a moment he calls not only surprising but "illuminating."

The meeting took place eight years ago at the groundbreaking of a small, now-defunct Conservative synagogue in Wasilla, where Palin was mayor at the time. Members of the congregation had placed an ad in a local newspaper inviting residents to attend the event, Tallman said, "and to my surprise, the mayor showed up with her daughter, Piper," then only a few weeks old.

"She thanked us for doing what we were doing," said Tallman, a resident of Alaska's Mat-Su Valley, which includes both Wasilla and his own town of Palmer. She also told the crowd that "it was good for everyone to have a place to worship their God, whichever God that may be," he said, paraphrasing Palin's remarks.

Yeah, I'm sure she's ironing the white sheets as we speak.

UPDATE: "Vice presidential pick Sarah Palin says she doesn’t share the views of a Jews for Jesus leader who in a speech at her church suggested that violence against Israelis resulted from God's judgment against Jews who have failed to embrace Jesus."

143 Comments

Sarah Palin and Libertarianism:

In my initial post on Sarah Palin, I was encouraged by the fact that she seems to be much more libertarian than most other prominent politicians. In this column, David Harsanyi of Reason shows that she has a fairly libertarian record on a variety of issues.

Obviously, Palin is far from being a consistent libertarian across the board. But she has fought to reduce government's role in the economy during her time as governor of Alaska. And even on "social issues" where she diverges from libertarianism because of her conservatism, she seems to support decentralization and a degree of laissez-faire. For example, as Harsanyi points out, she does not favor government-imposed teaching of creationism, but wants parents to be able to choose their children's schools for themselves. As an atheist, I have a lot less sympathy for creationism that Palin seems to. But I agree with her that the overall quality of school curricula is likely to be better with school choice and competition than if they continue to be dictated by the state.

Ultimately, I think that the main libertarian argument for McCain-Palin is based on the general benefits of divided government rather than on the details of their records. To the extent that the latter count, Palin's virtues are counterbalanced by McCain's many flaws; after all, he's the one running for president. Still, Palin's presence on the ticket makes it marginally more appealing from a libertarian perspective.

UPDATE: I am told that David Harsanyi is in fact employed as a columnist with the Denver Post, though he is also a Reason contributor.

Related Posts (on one page):

  1. Sarah Palin and Libertarianism:
  2. Reflections on the Palin Pick:
  3. President Palin:
  4. The Biden Pick:
75 Comments

Does Experience Improve Presidential Performance?

Republicans have for some time been attacking Barack Obama for his lack of experience. Democrats, in turn, have attacked Sarah Palin on the same grounds. Much of this is partisan posturing. Few Republicans are willing to own up to the contradiction between their attacks on Obama and their defense of Palin against the same charge; many Democrats have fallen into a parallel inconsistency.

But there is a serious general issue here: does prior experience really improve presidential performance? We have only had 43 presidents, so it is hard to draw statistically valid generalizations. It's easy to think of highly experienced presidents who performed poorly in office. James Buchanan, John Quincy Adams, and Richard Nixon are some of the best examples. On the other hand, several presidents with very little experience have done extremely well. Abraham Lincoln, whose only major elected office before becoming president was a single term in the House, is the most famous case. Among post-World War II presidents, the ones with the most prior political experience were Nixon (vice president for 8 years, prominent congressman), Lyndon Johnson (VP and powerful senate majority leader) and George H.W. Bush (VP for 8 years, various important positions in the executive branch). It's hard to argue that these leaders performed systematically better in office than relatively less-experienced counterparts such as Truman (VP for only a few months and a brief Senate career), Clinton (governor of a small state), and Reagan (governor of California, but very little foreign policy experience). Eisenhower (prominent general, but no experience in elected office), Ford (House minority leader) and Jimmy Carter (governor of a major state; member of the foreign policy-focused Trilateral Commission) fall somewhere in the middle between these two groups.

It would probably be a mistake to conclude from these cases that experience doesn't matter at all. Nonetheless, there is no systematic evidence suggesting that presidents with extensive prior political experience have done better than those with relatively little.

In my view, experience probably matters less than ideology and general political ability. The modern federal government covers so many issues that it is impossible for any one politician to have had experience with more than a small fraction of them. Even John McCain's vaunted "foreign policy" experience probably extends to only a subset of America's incredibly complex foreign relations. A successful president must rely on generalizable principles to get him through the many unfamiliar situations he is likely to encounter. That's where ideology comes in. He also needs to have a sense of the limits of his knowledge and be able to call on the expertise of others where his own is lacking. The latter is an element of general political competence. For example, I don't blame George W. Bush for lacking experience and knowledge of the relevant federalism issues at the start of the occupation of Iraq. I do blame him for failing to make adequate use of the expertise of others on this matter, which turned out to be a major error.

Obviously, a president will also need to have basic political knowledge of the type that much of the electorate lacks. Without it, he won't know enough to be able to assess or understand the advice he gets from experts. But it probably isn't necessary for him to have extensive personal experience with most of the issues he will have to address in office.

I'm not sure one can say that issue-specific experience is completely irrelevant. But I doubt that it matters nearly as much as other factors.

59 Comments

More Wikipedia Law:

From Badasa v. Mukasey (8th Cir. Aug. 29) (paragraph break added, most citations omitted:

Lamilem Badasa entered the country illegally using a fraudulent Italian passport. She later applied for asylum under 8 U.S.C. § 1158 and for relief under Article III of the Convention Against Torture. The Immigration Judge (IJ) found that Badasa had submitted fraudulent documents designed to establish her identity, and that her claim was not credible. The Board of Immigration Appeals (BIA) initially dismissed her administrative appeal, concluding that Badasa had failed to establish her identity. Badasa moved to reopen her case based on a travel document recently acquired from the Ethiopian government, known as a laissez-passer, which Badasa alleged would establish her identity. Noting that the Department of Homeland Security (DHS) concurred in the motion, the BIA reopened the case and remanded it to the IJ for further consideration.

On remand, the DHS submitted several documents designed to explain the purpose of a laissez-passer, and argued that the document did not establish identity and nationality, but rather was “simply the granting of the authorization for an alien to travel to or from that country.” After considering evidence presented by the parties, including information submitted by the DHS from an Internet website known as Wikipedia, the IJ found that the laissez-passer is a single-use, one-way travel document that is issued based on information provided by the applicant. On this basis, the IJ concluded that the Ethiopian government’s issuance of the travel document did not change her prior decision regarding Badasa’s failure to prove her identity, and therefore denied the application for asylum.

The BIA dismissed Badasa’s appeal, concluding that the IJ’s determination that the laissez-passer travel document was insufficient to establish Badasa’s identity was not clearly erroneous. The BIA stated that it did “not condone or encourage the use of resources such as Wikipedia.com in reaching pivotal decisions in immigration proceedings,” and commented that the IJ’s decision “may have appeared more solid had Wikipedia.com not been referenced.” The BIA declined, however, to find that Badasa was prejudiced, because without considering Wikipedia, the BIA believed the IJ’s conclusion “was supported by enough evidence to find no clear error.”

We conclude that the case must be remanded for further proceedings, because the BIA failed adequately to explain its conclusion that Badasa did not establish her identity. The BIA did not adopt the entirety of the IJ’s reasoning for rejecting Badasa’s claim. Rather, the BIA acknowledged that it was improper for the IJ to consider information from Wikipedia in evaluating Badasa’s submission on remand, and the government does not dispute that conclusion here.

Wikipedia describes itself as “the free encyclopedia that anyone can edit,” urges readers to “[f]ind something that can be improved, whether content, grammar or formatting, and make it better,” and assures them that “[y]ou can’t break Wikipedia,” because “[a]nything can be fixed or improved later.” Wikipedia’s own “overview” explains that “many articles start out by giving one -– perhaps not particularly evenhanded -– view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form.” Other articles, the site acknowledges, “may become caught up in a heavily unbalanced viewpoint and can take some time -– months perhaps -– to regain a better-balanced consensus.” As a consequence, Wikipedia observes, the website’s “radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.” The BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum. See also Campbell v. Sec’y of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing that a review of the Wikipedia website “reveals a pervasive and, for our purposes, disturbing set of disclaimers”); R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr. 2008) (“Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?”).

The BIA did say that Badasa was not prejudiced by the IJ’s reliance on Wikipedia, but it made no independent determination that Badasa failed to establish her identity. Whereas the BIA sometimes applies a “harmless error” standard when an IJ considers improper evidence or makes other procedural error, and thereby evaluates whether the error affected the IJ’s ultimate conclusion, the BIA here determined only that there was sufficient evidence, other than Wikipedia, to establish that the IJ’s finding was not “clear error.” This is the correct scope of review when an IJ has made findings of fact based on proper evidence, but application of the deferential “clear error” standard to this situation leaves us without a determination by the agency as to whether Badasa proved her identity. We know only that the BIA thinks that if, hypothetically, the IJ had not considered Wikipedia and reached the same conclusion, then that conclusion would not be clearly erroneous. But we do not know whether the IJ would have reached the same conclusion without Wikipedia, or whether (and, if so, why) the BIA believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision. Because the BIA’s ultimate conclusion that Badasa failed to establish her identity is not adequately explained, we must remand for further proceedings.

Many thanks to David Schwartz for the pointer.

12 Comments

"Pakistani Lawmaker Defends Honor Killings":

From an AP story posted this Sunday:

A Pakistani lawmaker defended a decision by southwestern tribesmen to bury five women alive because they wanted to choose their own husbands, telling stunned members of Parliament this week to spare him their outrage.

"These are centuries-old traditions and I will continue to defend them," Israr Ullah Zehri, who represents Baluchistan province, said Saturday. "Only those who indulge in immoral acts should be afraid." ...

Zehri told a packed and flabbergasted Parliament on Friday that Baluch tribal traditions helped stop obscenity and then asked fellow lawmakers not to make a big fuss about it.

Many stood up in protest, saying the executions were "barbaric" and demanding that discussions continue Monday. But a handful said it was an internal matter of the deeply conservative province....

I'm pleased that the Pakistani Parliament was indeed flabbergasted by this, but it's striking that even one lawmaker would justify this sort of murder. Thanks to Dan Gifford for the pointer.

33 Comments

Putting Up "Whites Only" Sign on City Drinking Fountain = Felony?

Yesterday's Buffalo News reports:

It didn't take long for the city worker accused of putting a "whites only" sign on a public works drinking fountain to realize it was a really bad idea....

[James] Curtis, 52, of 80th Street, a 26-year employee in the Public Works Department, told police before his arrest last Friday that he took down the sign after he realized he might get in trouble.

By that time, an African-American co-worker had photographed it with his cell phone.

Curtis said he confessed last week to posting the sign because his conscience got the better of him, although not before he lied about his involvement when first confronted by Detective Frank Coney.

"I lied because I was scared," Curtis said in court papers reviewed by The Buffalo News after the motor equipment operator's arraignment Tuesday in City Court.

Last Friday, Curtis told Coney and David Kinney, the city's director of public works and parks, that the sign was a joke.

"It wasn't racial," he said. "I didn't do it to be mean, and it's been eating me up." ...

He told police he had hand-written the sign, which read "whites only drinking fountain" in upper and lower case letters, on the back of a time card....

Curtis pleaded not guilty to second-degree aggravated harassment, which normally is a misdemeanor.

But city police, who filed the charge Friday, categorized it as a racially motivated hate crime, which bumps up the charge to a Class E felony....

The relevant statute seems to be N.Y. Penal Law § 240.30, which reads in relevant part, "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: ... communicates with a person ... in a manner likely to cause annoyance or alarm." I take it that the theory here is that the sign was intended to harass, annoy, or alarm, and conveyed in a manner likely to cause annoyance or alarm.

The statute, though, seems to be unconstitutionally overbroad, and a violation of the First Amendment, at least if it's interpreted broadly enough to cover speech such as this. Curtis could surely be fired for putting up the sign, even if it's a joke — the sign clearly interferes with the effective functioning of the workplace. Government employees generally aren't entitled to post material on government property that make government facilities unpleasant for coworkers, or members of the public. But I don't think it's constitutional to criminally punish someone for such a posting, especially under such a broad content-based statute, which isn't limited to government employees or government property.

27 Comments

A Salt Mountain in the Great Plains,

"said to be [180] miles long, and [45] in width, composed of solid rock salt." OK, it doesn't actually exist, but Thomas Jefferson thought it did; see also here. The rumor may have been started by Zebulon Pike -- not, despite his name, a Star Trek alien (as Sasha has pointed out), but rather the explorer for whom Pikes Peak was named.

17 Comments

"Artifact" Is Not in the Dictionary (Though "Gullible" Is):

Not in the Oxford English Dictionary, that is to say. I was quite surprised to see that; the reason, I take it, is that the British spelling is "artefact," but my sense is that the OED is usually quite good at including the American spellings, and a quick search through British newspapers shows that even they use "artifact" on occasion. Let this be a reminder that even the most reputable sources have glitches; better to check two sources rather than relying on any one.

19 Comments

Tips for new law students: Take practice tests, and start your outline now!

Your first year grades will depend primarily on how you perform on your final exam. Accordingly, the best possible use of your time, in preparing for that exam, is to take practice tests. Your professor probably has some previous exams on reserve in the library; if not, exams from other professors who have taught the same course are probably on reserve.

Practice tests will help you with time management when the real exam comes around, and get you familiar with the format. So when you take the final exam, you should have completely figured out how to write an exam essay. The typical first year law school exam is very different from essay questions in college. Your job in the law school exam is simply to spot the relevant legal issues in a particular factual context, and explain the pro/con arguments that are relevant to analysis of the legal situation. Beautiful writing is not important. You are just presenting an organized listing of how the law might be applied to a given set of facts.

You absolutely should not wait until the final weeks of the semester to begin your practice exams. Within a few weeks, you will have covered enough material so that you can answer at least some exam questions. For example, if your Torts class is one semester, you will probably be finished with intentional torts no later than early October. At that point, you can practice the essay on a Torts exam which covers intentional torts. (A typical exam might have one essay on intentional torts, one on negligence, and one on strict liability.)

By the end of the third week of school, you should begin outlines for your classes. After three weeks, you will have completed at least one discrete section or subsection in all of your classes. For example, in Torts, you will have finished assault, and the class will have moved on to other intentional torts.

If can get ahold of Bar Review outlines for your classes, do so. Sit down and read through them. Your objective is not to memorize the contents. Rather, you are engaged in pre-reading. If before you read a non-fiction book, you closely read the table of contents, your comprehension of the book itself will probably be better. Likewise, reading a bar review outline will give you a good overview of the subject, and help you understand where a particular day's class fits into the context of the subject as a whole.

A final tip: there is a vast difference between the first year of medical school and the first year of law school. In the former, students must learn an enormous number of facts. But the substantive content of a first-semester law school course is rather thin. The full content of all the black-letter law that you will learn in, say, first-semester criminal law, could be taught in a semester to a bright group of seventh graders. The main thing that you are learning is not the law itself, but how to analyze legal problems: how to spot legal issues in a factual pattern, and how to make pro/con arguments. That's why taking practice exams in September will not only make you a better exam-taker in December or January, it will also make you a better student in October.

And BTW, this is advice is not about working harder than your classmates. It is about working smarter. You should definitely have time to go to campus football games, do whatever sports you enjoy, go out drinking and listening to music on weekend nights, etc. The amount of time wasted by hard-working but inefficient first-semester law students is enormous. To wit: investing a huge amount of labor (rather than just a lot of labor) in a pass/fail writing class; using hornbooks to excess (a hornbook is fine to use to clarify a legal concept you don't understand; you should not use a hornbook to learn extra law, unless for your own intellectual curiuosity. All the law you need to know for the exam is in your casebook); creating an overly detailed, 200 page outline (100 pages, at most, should be plenty for a single semester class, and some classes can be done in 50); obsessively studying the details of cases for fear of not being able to answer a question in class (spend as much time as you need teaching yourself how to read a case; after that, you should not need to read most cases more than once to extract the legal rule(s) from the case. Except in constitutional law, there few if any cases for which remembering the facts of the case will do you any good on the exam).

Related Posts (on one page):

  1. Really Really Belated Advice to New Law Students:
  2. Tips for new law students: Take practice tests, and start your outline now!
38 Comments

Criminal Liability or Civil Liability?

I blogged below about what happens when the same conduct is both criminally and civilly actionable. But, my student also asked, how does the legal system decide that some conduct is a crime, some conduct is civilly actionable, and some is both?

1. Civil Liability Is for Compensating the Injured, Criminal Liability Is for Punishing the Morally Culpable. This is an oversimplification, for reasons I'll mention below, but it's a good place to start.

Thus, consider attempted murder -- someone shoots at me but his gun jams and, for good measure, I don't even learn until later that he tried to kill me. Attempted murder is a very serious crime, because people who try to kill others but fail are usually thought to be nearly as culpable as those who try to kill and succeed. (Some people view the two as equally culpable, but the legal system generally doesn't take that view.) But it's not a tort, because there's no injured party. Same for drunk driving, which can be punished even before the drunk driver causes an accident.

In some situations, for instance tries to knife at me and misses, he might be guilty of some tort that compensates me for the fear caused by the attack (e.g., assault or infliction of emotional distress). But in many cases, there's no civil liability at all for an attempt, because there's no injury to be compensated.

On the other hand, say you do blasting on your property, you're as careful as possible (and are therefore not negligent), but my neighboring property is still damaged. You're civilly liable to me, because this is a strict liability tort. But you're not criminally liable, because we generally don't punish people unless they're morally culpable, which usually (though not always) requires at least gross negligence.

2. Of course, as I said, this is an oversimplification. To begin with, civil liability sometimes involves punishment for the morally culpable, for instance in the typical punitive damages case, or when a tort requires some highly culpable mental state, such as knowledge that a harm would likely be inflicted. And the criminal law sometimes imposes strict liability, though that's pretty rare.

3. And beyond this, there are also lots of other practical factors that counsel in favor or against criminal or civil liability in some situations. Thus, for instance, most states have abandoned criminal libel -- either formally or in practice -- because of a concern that criminal libel would unduly deter constitutionally valuable true statements and opinions (and not just false statements of fact). Libel may still be morally culpable in many situations, and may lead to punitive damages liability as a result, but the criminal law generally doesn't punish it.

Likewise, the tort of intentional infliction of emotional distress is usually limited to behavior that a jury finds to be outrageous, which is by definition quite morally culpable. But there is no general crime of intentional infliction of emotional distress, partly because the definition of the offense is probably too vague for the criminal law.

Conversely, some relatively low-level harmful behavior is not highly morally culpable, but civil liability probably won't do a good job of stopping it -- perhaps because the behavior is committed by people who don't have enough money to make a lawsuit worth a plaintiff's time, or because the harm is spread over many people and none of the potential plaintiffs can sensibly afford to sue. Consider, for instance, graffiti, being drunk and disorderly when the disorder consists just of shouting, and the like.

In such situations, the behavior might be made criminal chiefly because only the criminal system can do much about it. Civil liability may theoretically be available in those cases, but practically it isn't used.

4. Finally, let's step back a bit: This is a good example of a common legal phenomenon -- there is an important theoretical distinction between two kinds of legal approaches (here, compensation for the injured vs. punishment for the culpable), but the distinction explains only part of the story. It's important both to understand the big theoretical distinction, and understand that it's not the only principle in play.

Related Posts (on one page):

  1. Criminal Liability or Civil Liability?
  2. Criminal Liability and Civil Liability:
17 Comments

Criminal Liability and Civil Liability:

A first-year law student asked me about the relationship of criminal liability and civil liability, and I thought it might be worth discussing more broadly. Let me begin with one part of the relationship: When an act can lead both to criminal and civil liability, how does a judgment in one system affect the possibility of a judgment in another?

1. It's certainly possible to be held liable both criminally and civilly, if your conduct is both a crime and a tort (or otherwise civilly actionable). The Double Jeopardy Clause provides that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," but that refers only to criminal jeopardy, not civil jeopardy. (There is something of an academic debate about whether the Clause was originally understood as covering crimes generally, as the Court has held, or only very serious ones, but I don't know of any indication that the Clause has ever been understood as applying beyond crimes. Note also that the Double Jeopardy Clause doesn't bar prosecutions by multiple sovereigns, such as the state government and the federal government, but that's a separate matter.)

Thus, a rapist could be prosecuted for rape and sued civilly (likely under the tort of battery). In practice, this doesn't often happen, since most criminal defendants have little money, especially after they're done with the criminal litigation; but it certainly happens sometimes.

2. If you get criminally convicted, then this conviction will usually make a civil plaintiff's case against you much easier. Under the doctrine of "collateral estoppel" (sometimes called "issue preclusion"), if a fact has been decided against a party in one judicial proceeding, then that fact is generally binding against the same party in future proceedings (with an important limitation that I'll mention below) even in other jurisdictions and other court systems.

So if a jury -- or, in a bench trial, a judge -- has found beyond a reasonable doubt that you're guilty of committing certain acts, then that's binding against you in a future civil case based on the same acts. The plaintiff might still have to prove other elements required by the tort (e.g., the amount of damages), but whatever facts were necessarily found in the earlier criminal trial don't have to be proven again in the civil trial. If O.J. Simpson had been convicted of intentionally killing Ron Goldman, Fred Goldman wouldn't have had to prove in a civil case that Simpson indeed intentionally killed Ron Goldman; he could just take advantage of the earlier criminal verdict against Simpson.

3. What if you get acquitted, and still get sued (which is what happened with O.J. Simpson)? You can't take advantage of the criminal verdict in the civil case, for two reasons. First, the criminal verdict simply shows that there was at least reasonable doubt about whether you were guilty. That doesn't stop the plaintiff from proving your guilt by a preponderance of the evidence (the standard usually required for civil liability) or even by clear and convincing evidence (the standard generally required for punitive damages in civil cases).

To give an oversimplified mathematical model, say that there's evidence that shows an 85% chance that you were guilty, and say that proof beyond a reasonable doubt requires a 95% chance, proof by clear and convincing evidence requires a 75% chance, and proof by a preponderance of the evidence requires only 51%. In that situation, an acquittal simply means that there isn't a 95% chance that you were guilty; that's quite consistent with there being a 51% or 75% chance that you were guilty (and in the hypothetical, both those thresholds are satisfied).

There's also a second reason why the defendant's criminal acquittal can't be used against the civil plaintiff: Generally speaking, every litigant is entitled to have a chance to prove his case in court once, and this plaintiff didn't have that chance at the criminal trial (since the parties at the criminal trial were the government and the defendant, not the victim and the defendant). If the defendant had lost at the criminal trial (see #2 above), he would have had his chance to prove that he wasn't guilty by a reasonable doubt (or, to be precise, his chance to have a jury reject the prosecution's attempts to prove its case), which is why that conviction could be used against the defendant in a future civil case. But a defendant's acquittal can't be used against a plaintiff in a future case, because the plaintiff wasn't involved in the earlier trial.

4. Now let's change the order: Say you're found liable in a civil trial, and are then prosecuted criminally. Can the prosecution use the verdict against you as proof that you're guilty (at least to the factual elements that are shared between the definition of the tort and of the crime)? No, for two reasons. First, the civil verdict merely reflects that the factfinder thought your liability was shown by a preponderance of the evidence or, in most punitive damages cases, by clear and convincing evidence; that's not enough in a criminal case, where a factfinder must find you liable beyond a reasonable doubt.

Second, the Jury Trial Clause is generally understood as securing to all criminal defendants (at least in cases where the crime was punishable by more than six months' imprisoment) a right to have a criminal jury find their guilt. This means that the prosecution must prove the facts to the satisfaction of that criminal jury, and not of an earlier judge or civil jury.

5. And to complete the list, say you're found not liable in a civil trial, and are then prosecuted criminally. The earlier civil jury concluded that you're not liable even by a preponderance of the evidence, which is to say that you're no more than 50% likely to be guilty. Shouldn't that prevent a criminal jury from finding you guilty beyond a reasonable doubt?

No, for the second reason given in item 3 above: The government as prosecutor isn't bound by the earlier verdict because it wasn't a party in the case. Maybe the plaintiff did a lousy job of presenting the case. Maybe the plaintiff even deliberately took it easy on defendant (not much of an incentive for that now, but there might be if a civil verdict of nonliability could preclude a future criminal prosecution). The government as prosecutor is entitled to its own chance at proving the defendant guilty, even if the earlier civil plaintiff had failed.

Related Posts (on one page):

  1. Criminal Liability or Civil Liability?
  2. Criminal Liability and Civil Liability:
32 Comments

From Palindromes to Anagrams:

Commenter Arthur contributes:

Who's the real secret Muslim in the race?

SHARIA PLAN

Who's most desperate to win?

I NEED JOB

24 Comments

Google Search, from Our Referrer Logs:

04 Sep, Thu, 08:17:29 Google: get me dirt sara palin

31 Comments

Maybe Joe's the One To Go:

There was some talk earlier this week that Sarah Palin might get dumped by John McCain. Obviously that was just silly and for some, such as Gary Wills, simply embarrassing.

But maybe Joe Biden is the one who should be nervous--I haven't been able to find any Obama-Biden items in the Obama store; by contrast, McCain-Palin has its (or is it "their," I'm not sure of the grammar on this one) own page of stuff. Maybe Rudy was right that Joe should've gotten it in writing.

(BTW, this post is intended as a joke for those who might think otherwise).

44 Comments

Impact of the Internet on Newspaper Circulation:

One could imagine that the Internet could be either a complement or a substitute for traditional media, although casual empiricism suggests that it is a substitute. This new paper finds that to be the case. From the abstract:

A growing literature documents that electronic media draw consumers from traditional media markets. Less work examines how the internet has altered the audience for traditional media. Using zipcode-level newspaper circulation and market-level internet penetration, this paper provides evidence that the internet differentially attracts younger, educated, urban individuals away from daily newspapers. Greater internet penetration is associated with higher newspaper circulation among blacks and Hispanics, who thus far are less likely to connect.

But here's the part of the paper that is pretty cool--the print media has to some extent responded endogenously to this development by changing its coverage patterns to increase focus on issues of interest to those who have not switched to the Internet, as well as issues (such as investigative reporting) where the Internet is not as close of a substitute:

Evidence suggests the spread of the internet is also associated with changes in newspaper coverage, with greater emphasis on minorities, education, crime and investigative reporting.

The paper is on BE Press and I can't figure out whether this is generally downloadable or what, so I apologize if you can't get to it.

15 Comments

Given that Sarah Palin is Now in the Political Race,

I take it that the campaign — the place in which Palin is running — must be a ... palindrome.

Plus there's the McCain birthplace connection, with the Teddy Roosevelt reformer reference thrown in. A woman, a plan, a canal: Panama — Ow! (OK, not quite.)

Credit (or debit) to Bill Poser (Language Log) and commenter Sili, though their gags were slightly diferent.

UPDATE: "Palin: On I lap." True, "lap" is usually followed by the name of the competitor whom one is substantially ahead of, but palindrome authors can't be too picky. Plus, if she's lapping Biden, they must be running on a palindrome. And I'm sure you folks can do even better.

UPDATE 2: McCain hissing at Palin to pit-bull the opposition: "S-Sarah — harass!" (Ann Althouse and others beat me to this one, though in a different form. But "Palin: On I lap" is mine, all mine, Google reports.) Must ... stop ....

45 Comments

No Vaccine Autism Link:

A new study failed to find a link between vaccines and autism. This should not be a surprise. As I've noted before, there has never been meaningful evidence of such a link, despite lots of media stories and activist claims to the contrary, and the mainstream medical community firmly rejects claims to the contrary.

The Washington Post reports on the study here. Regrettably, the Post suggests that, prior to this study, there was reliable scientific evidence of a possible vaccine-autism link. In particular, the Post plays up a 1998 study of twelve children that, it says, "suggested" such a link. Given that the failure to vaccinate children has real consequences — over 90 percent of those children diagnosed with measles so far this year had not been vaccinated — it is irresponsible for journalists to suggest the evidence for a vaccine-autism link is stronger than it really is.

UPDATE: Despite fears about a vaccine-autism link, it appears childhood vaccination rates are up.

66 Comments

Where Are the Judges?

On Tuesday, Ed Whelan noted that discussion of judicial nominations and the Supreme Court were conspicuously absent from the main speeches at the Democratic Convention. Thus far, however, there has been relatively little about judicial nominations at the Republican Convention either. Unless John McCain makes it a big issue tonight, it will have been an afterthought.

30 Comments

VC Commenters On Apples and Oranges: A play in one act, inspired by recent comment threads here at the VC:
Scene: A Volokh Conspiracy comment thread. Enter two commenters, Red and Blue.

RED: I sure like apples.
BLUE: Apples? They're rotten. Oranges are better.
RED: Are you insane? Oranges are disasters.
BLUE: At least oranges aren't corrupt fruits that hate America.
RED: Yes they are, in fact Hitler liked oranges!
BLUE: WTF? Hitler was an apple.
                                    The End.
111 Comments

"Vetting" Candidates:

The word comes from "vet" as in "veterinarian," Juliet Lapidos reports in Slate's Explainer, and the Oxford English Dictionary confirms it. On reflection, it makes sense -- from veterinarian to "To submit (an animal) to examination or treatment by a veterinary surgeon" to "to investigate the suitability of (a person) for a post that requires loyalty and trustworthiness" -- but I wouldn't have expected it.

27 Comments

Sarah Palin -- Good for Women's Health:

From Sarah Seltzer on The Huffington Post:

When I saw that John McCain had picked Sarah Palin as his running mate this morning, I was on the elliptical trainer, and my rage propelled me to the most furious workout I've had in a while.

Hey, people pay personal trainers good money for helping motivate workouts. Send in your check, please.

77 Comments

Does Palin Call Herself a Feminist?

This Slate article (from the XX Factor section) begins:

Sarah Palin calls herself a "hockey mom" and "as pro-life as any candidate can be" -- but not, as far as we know, a feminist. And why would she? Feminist has long been a dirty word for conservatives, and so it's not their label for her, even though it describes Sarah Palin to a T in so many ways: the working mother/ crusader/ political activist. Margaret Thatcher didn't use the "f" word either.

I should note that the Anchorage Daily News reported in August 2006, when Palin was running for Governor, that "[Palin] is pro-contraception and said she's a member of a pro-woman but anti-abortion group called Feminists for Life." So it seems that she does call herself a feminist (and rightly so, in my view).

42 Comments

Palin's big moment:

On the substance of it, I was relieved the speech was free of red-meat social issues. It was about economics, reform, cutting taxes and spending, and national security. In other words, it focused on the kinds of things that made McCain an attractive candidate beyond the social-conservative base of the party. After all the caricaturing of Palin in the past few days as some kind of religious extremist, the silence on these issues was noteworthy.

On the tone and style of the speech, there were some great one-liners for the party faithful to cheer, especially about Obama's lack of experience and real-world accomplishment. However, I found it just an octave too mocking and smug at times. I wonder how that played with undecided voters who are angry at Republicans but are unsure whether to vote for Obama.

For someone who's closer to McCain than to Obama on matters of economic and foreign policy, the main concerns about Palin are whether she has the knowledge, depth, experience, and general preparedness to be president. If you didn't have these concerns before tonight, of course, the speech was great. If you did, like me, the well-executed and poised delivery of prepared remarks does nothing to allay them.

Related Posts (on one page):

  1. McCain's moment:
  2. Palin's big moment:
  3. Palin's Speech:
111 Comments

Wednesday, September 3, 2008

Palin's Speech: A speech is just a speech, of course. And no doubt your take on the speech depends on your political views. But I thought Palin was a natural tonight: She was as good as Obama can be, and I think that's pretty damn good.

Related Posts (on one page):

  1. McCain's moment:
  2. Palin's big moment:
  3. Palin's Speech:
114 Comments

Reader Poll On Palin's Speech:
How would you rate Sarah Palin's address to the Republican Convention?
Outstanding
Very Good
Good
Fair
Poor
  
Free polls from Pollhost.com

I'll leave comments open for now, but please keep comments civil or I'll delete the thread.
145 Comments

Geraldine Ferraro was never like this.

After a middling start of her speech, Sarah Palin hit her stride. Palin's speech so far is MILES better than Biden's — and will probably be better than McCain's.

UPDATE: Wow! What a speech. She lacks Obama's (or Reagan's) eloquence, but she has something that Obama lacks (and Reagan had) — an ability to effectively depict her opponent as a phony without seeming too mean.

2d UPDATE: I flipped quickly from ABC to NBC to CBS and the initial concensus was very positive, though when I switched back to NBC Tom Brokaw was undercutting the "Bridge to Nowhere" point by slightly misstating the facts.

92 Comments

Giuliani's Tone is Off.

Rudy Giuliani is having too much fun. He is laughing at his own supposed cleverness.

Laughing openly at Barack Obama's having been a community organizer was unseemly. I agree with Giuliani that it's a relatively lightweight job for a future President, but it should have been handled with a much more subtle touch -- not open mockery. Actually, the words of Giuliani's speech on this point were subtle enough, but Giuliani read them much too broadly. (Further, community organizer is not Obama's last position (the Senate is), but it does seem to have been his most formative job.)

Much of the rest of the words of Giuliani's speech are OK -- and there are some good lines -- but the tone of his speech is a bit off, especially in the first 5-10 minutes.

69 Comments

A Defeat for International Law and Victory for Progressive Values.

Today, the European Court of Justice delivered an opinion in the important case of Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission (a summary is here). The Security Council put Kadi on its list of suspected financiers of Al Qaida and the Council of the European Union froze his assets, as required by a Security Council resolution. Kadi challenged the regulation. The Court of First Instance ruled against Kadi. It pointed out that the EC treaty on which the Council’s regulation was based provided that it would not supersede prior treaties of the EC members, including, of course, the UN charter, from which the Security Council derives its powers.

The European Court of Justice, however, held that "the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty." The Security Council does not give people like Kadi much process, and so a European Council regulation that freezes the assets of people on the Security Council’s list offends European notions of due process.

Nothing remarkable here for an American lawyer, who is accustomed to the idea that constitutional rules take precedence over international law. The European Court is a creature of the European treaty system, not the UN; what else is it to do when European law and international law conflict? However, Europeans have long complained of the American practice of declaring that all U.S. treaty obligations are limited by the U.S. Constitution. And it takes a bit of legerdemain to convert regional treaty obligations into a "constitution," but this is an old story. It turns out that Europeans, too, will not allow international law to supersede their fundamental values. Good for them!

13 Comments

Jury Power To Decide "Law and Fact" in All Criminal Cases:

Apropos the Jury Rights Day post, I thought I'd mention that the Indiana, Maryland, and Oregon Constitutions specifically provide that:

  1. Indiana: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."
  2. Maryland: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.
  3. Oregon: "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases."

I'm not an expert on jury power and jury nullification, though, and I can't speak with confidence about the precise original meaning of the phrases, or about how judges have interpreted them. I should also note that quite a few state constitutions (including that of my own California) expressly guarantee a similar power, but only in libel cases.

(This material originally appeared in the Jury Rights Day post, but a few minutes later I decided it merited a separate post.)

31 Comments

Gov. Palin's Proclamation on Jury Rights Day:

Jury Rights Day

WHEREAS, September 5, 2007, will mark the 337th anniversary of the day when the jury, in the trial of William Penn, refused to convict him of violating England’s Conventicle Acts, despite clear evidence that he acted illegally by preaching a Quaker sermon to his congregation.

WHEREAS, by refusing to apply what they determined was an unjust law, the Penn jury not only served justice, but provided a basis for the U.S. Constitution’s First Amendment rights of freedom of speech, religion, and peaceable assembly.

WHEREAS, September 5th, 2007, also commemorates the day when four of Penn’s jurors began nine weeks of incarceration for finding him not guilty. Their later release and exoneration established forever the English and American legal doctrine that it is the right and responsibility of the trial jury to decide on matters of law and fact.

WHEREAS, the Sixth and Seventh Amendments are included in the Bill of Rights to preserve the right to trial by jury, which in turn conveys upon the jury the responsibility to defend, with its verdict, all other individual rights enumerated or implied by the U.S. Constitution, including its Amendments.

NOW, THEREFORE, I, Sarah Palin, Governor of the State of Alaska, do hereby proclaim September 5, 2007, as:

Jury Rights Day

in Alaska, in recognition of the integral role the jury, as an institution, plays in our legal system.

Dated: August 31, 2007

This was of course just one of many gubernatorial proclamations for September 2007, including Winter Weather Awareness Week (you'd think they didn't need it in Alaska, but maybe it's for newbies), Alpaca Farm Day, Family Day--A Day to Eat Dinner with Your Children, We Don’t Serve Teens Week, and Responsible Dog Ownership Day. At the same time, it's a fair inference that the governor endorses the spirit behind those days, both the broadly uncontroversial ones and ones that might be more controversial. As best I can tell, Jury Rights Day is largely a project of the Fully Informed Jury Association, which generally supports informing jurors of their power to engage in jury nullification.

Thanks to Peter Colter for the pointer.

20 Comments

More on Discrimination Against the Irreligious (and Less Religious) in Child Custody Cases:

I've blogged about this before, but I thought I'd note it again, because of two interesting cases from the past year that I just ran across. Here's an excerpt from Buck v. Buck, 4 Pa. D. & C. 5th 238 (Pa. Com. Pl. 2008):

D. Spiritual Well-Being

Father is religious and takes the child to church. Father currently places a high-level emphasis on religion. The child appears to be enjoying her religious activities.

Mother did not testify as to any particular religious/spiritual activities in which she seeks to involve the child, or any religious/spiritual activities which she seeks to instill in the child.

The child's spiritual well-being is better served by being in Father's custody.

Note that nothing in the opinion suggested that the court was considering the child's desire to keep going to church, or any possible harm that might come from a change in the child's routine as a result of her not going to church any more. The court elsewhere discussed continuity and child preference concerns, but not as to the child's "religious/spiritual activities," which leads me to think that continuity and child preference weren't the court's interest here. Rather, the court is taking the view that a parent's "high-level emphasis on religion," especially through "tak[ing] the child to church," is a factor in favor of awarding custody, and the other parent's absence of "seek[ing] to instill" "religious/spiritual activities" "in the child" is a factor against awarding custody.

Now, from Jackson v. Jackson (Ariz. Ct. App. Nov. 29, 2007):

Mother argues that the family court erred in not counting in her favor the fact that Jeremy will receive more religious instruction if he is placed with her. We disagree. "'[C]onstitutionally, American courts are forbidden from interfering with religious freedoms or [from taking] steps preferring one religion over another.'" Funk v. Ossman, 150 Ariz. 578, 581, 724 P.2d 1247, 1250 (App. 1986) (quoting Munoz v. Munoz, 489 P.2d 1133, 1135 (Wash. 1971)). Judges are not appropriate arbiters of whether it is in a child's best interest to be raised Muslim or Christian or to be raised more religious or less religious or not religious at all. See Smith v. Smith, 90 Ariz. 190, 193-94, 367 P.2d 230, 233 (1961) (First and Fourteenth Amendments to U.S. Constitution preclude changing the custody of a child based on a parent's religion); see also Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) ("No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.") Both the United States and Arizona constitutions require that in making a decision on custody, the judge does not put a thumb on the scale on the side of the parent whose religion or religious practices the judge or the majority favors.

The Jackson approach strikes me as much more consistent with modern First Amendment doctrine. It also strikes me as much more consistent with what seem to me to be basic principles of religious equality, which should include the equality of those who participate in organized religion, those whose religious and spiritual life does not involve formal religious or spiritual education, and those who don't believe in religion at all.

9 Comments

Sarah Palin as a Debater:

If you want to see her in 2006, when she debated Democrat Tony Knowles and Independent Andrew Halcro, see below:

Thanks to PrestoPundit and to my colleague Joe Doherty for the pointer.

66 Comments

My Friend Craig Turk,

a young lawyer who has become a TV writer and producer, is writing notes from inside the GOP convention at Slate. (He had been general counsel for the McCain campaign in 2000.) Craig is very smart, and an an engaging writer; I highly recommend his posts.

3 Comments

Holmes and the Join Memo: At the U.S. Supreme Court, Justices let other Justices know that they are signing on to an already-circulated draft opinion by sending around a "join memo." The join memo usually just says that the Justice wants to join the opinion, sometimes with some suggestions for possible edits.

  Different Justices have different standard lines they use for join memos. Some say something like, "I would be pleased to join your opinion." Others use the more traditional (if rather odd) sentence "Please join me," the idea being that the author of the opinion will then "join" the other Justice to the opinion.

  In light of that, I was amused to read in Walter Murphy's book "Wiretapping on Trial" that apparently Justice Holmes was a fan of more flowery join memos. According to Murphy, Holmes once joined an opinion of Chief Justice Taft by writing, "I cling to my preceptor's hand and follow him through the dark passages to the light." Murphy at 98. I guess "I agree" just wouldn't do.
13 Comments

McCain Talking to Palin:

A very funny video, via Ann Althouse.

55 Comments

What the Blogosphere Needs Right Now: An Factcheck.org site about VP Nominee Sarah Palin, run by a neutral third party with no agenda. The site would sift through the latest info on Palin (including the latest rumors on the blogs, whether right or wrong) and tell us the latest about what we know and what we don't. That would be pretty cool.
121 Comments

If I were supporting Obama....

here are three things I'd keep quiet about with regard to Sarah Palin.

(1) How can she do her job as vice-president and take care of her kids? Which leads to the question, how can Obama do the much more demanding job of president and take care of his kids?

(2) What makes anyone think that Palin has enough experience to be "one heartbeat from the presidency?" Which leads to the question, what makes anyone think that a one-term Senator from Illinois who has been running for president for most of his term has enough experience to actually be president?

(3) Is Sarah Palin's church/pastor nutty? Which leads to such an obvious question that I won't bother raising it!

In short, it strikes me that Obama's allies may be succeeding at discrediting Palin to some extent, but only at the expense of undermining Obama. Even if raising such questions undermines Palin more than it does Obama, even much more, given how many people vote based on the top of the ticket versus based on the bottom, this is hardly a winning strategy.

305 Comments

Was Creekstone Really about Speech?

As I noted last Friday, a divided U.S. Court of Appeals for the D.C. Circuit held in Creekstone Farms Premium Beef v. USDA that the USDA may prohibit Creekstone Farms from testing its cows for bovine spongiform encephalopathy (BSE), aka "mad cow disease" with the so-called "rapid" BSE test. Why, some may wonder, would USDA bar Creekstone from testing its own beef at its own expense? The "rapid" BSE test would not be effective at determining whether Creekstone's cattle were BSE-free before slaughter, but why would the USDA stand in the way of Creekstone's decision to spend its own money in this way?

Creekstone argued it wanted to test so it could export its beef to foreign markets where such testing is required. Why would the USDA stand in the way of that? One possibility is that the Administration feared that allowing Creekstone to test would undermine the United States' argument against Japan's and Korea's limitations on U.S. beef imports. If Creekstone can test, Japan and Korea might argue, all producers can and should test, and this would increase costs for U.S. beef producers. This may have been a factor in the USDA's decision, but I doubt it was the only one.

Another possibility is that the USDA was less concerned about the testing than it was about what Creekstone might say about it. If Creekstone were allowed to test its beef for BSE, the USDA might not be able to prohibit Creekstone from promoting that fact. Under current law, Creekstone could almost certainly make the true claim that it tested its beef, but the USDA did not want Creekstone (or any other producer) to make any claims at all regarding BSE in American beef.

Were Creekstone to advertise its use of the "rapid" BSE test, the government could require that Creekstone qualify such claims. Insofar as advertising the use of the test is misleading — making consumers believe (erroneously) that Creekstone's beef is "safer" than others — the government could require additional speech to cure. So, for instance, the government could require Creekstone to acknowledge that there is no reason to believe its use of the "rapid" BSE test makes its beef any safer than beef from non-testing producers. [This is the sort of qualification the FDA requires milk producers to make if they advertise their milk is made without use of rBST.]

The USDA likely fears such curing language would be insufficient to blunt the impact of Creekstone's initial claims, however. Any mention of the potential threat of BSE in American beef could reduce beef consumption and harm the domestic beef industry. Creekstone might or might not gain market share against its competitors by noting its use of BSE tests, but the overall market would shrink if the potential for BSE contamination were highlighted. Given that the risk of BSE is infinitesimal, this is something the USDA seeks to avoid. So, in an effort to preempt Creekstone from making any claims about BSE, USDA simply barred them from using the test.

Note that I am not defending the USDA's action as much as I am trying to explain it. I think the USDA was wrong here, both because it lacked the authority to bar the use of "rapid" BSE tests under existing statutes and because I do not believe it should be the USDA's responsibility to promote the domestic beef industry. I also believe that a consequence of the USDA's position frustrates the private development of testing protocols and other innovations that could actually improve the safety of the U.S. food supply. But while I think the USDA was wrong, two judges on the D.C. Circuit felt otherwise, and I doubt this case will go upstairs or en banc.

Related Posts (on one page):

  1. Was Creekstone Really about Speech?
  2. Creekstone Farms v. USDA:
24 Comments

"All Politics, All the Time, Makes the Blawgosphere Go Crazy.": Over at CoOp, Dave Hoffman makes the case.
18 Comments

Estrich on Sexist Attacks on Palin and Wizbang on Lieberman.

Susan Estrich, former Dukakis campaign manager, just said on Fox that she was appalled by the attacks on Palin as “really unfair” and “really sexist.”

Also at Wizbang, Lorie Byrd says that CBS attributed Lieberman’s speech to cronyism and self-interest:

I tuned to CBS to hear how they would spin the speech by Joe Lieberman, former Democrat Vice Presidential candidate. Grrrr. Unbelievable. Evidently, the reason he endorsed John McCain is only because he is John McCain's close friend and if McCain wins he will get a cabinet post. Grrrrrr. Lieberman couldn't possibly think McCain was the right man for the job. He couldn't possibly think that McCain is best for the country at this time. Nope. Self interest and loyalty to a friend. That's the ticket. I thought the media line would be that Lieberman isn't really a Democrat, that he is an independent now. Lieberman went into detail about all the reasons he is supporting John McCain (war on terror, reform, history of service and delivering on what he says he will do, etc.) but the only reason Bob Schieffer could come up with is self interest. Lieberman must have done even better than I thought. The speech was very low key in contrast to Fred Thompson's, but it was very good and I suspect very effective. Hopefully Americans listened to the speech, rather than to the [Democratic Media] . . . spin.

It really is an unusual thing that the 2000 Democratic VP candidate was a main speaker at the 2008 Republican convention. It's hard to think that Lieberman would do this unless he thought that the War Against Terror (and the War in Iraq) were the most important issues facing the country and that McCain was much better on the war than Obama. This same commitment to the war -- and refusal to accept defeat by withdrawing troops by early 2008 -- is what drove him out of the Democratic Party.

I didn’t see either the speech or CBS’s spin. Did Schieffer really say what Byrd says he did?

I don’t remember the mainstream press dismissing the Democratic keynote speakers right after they spoke by simply repeating the Democratic spin on why we should discount what we heard.

103 Comments

Tuesday, September 2, 2008

Why Does Campaign Experience Count?

I am still a bit confused about this whole "experience" issue. Among the responses to my last post on whether experience of some sort or another is necessary for a Presidential or Vice Presidential candidate was the argument that the experience of running a Presidential campaign is itself important experience for the job. So, for instance, some argue that Senator Obama's successful oversight of his own campaign has provided him with sufficient executive experience to be President. (Indeed, this is an argument Senator Obama himself has made in comparing his experience to Governor Palin's experience as a suburban mayor.)

This argument seems a bit tautological: A candidate who runs for President has sufficient experience to be President because he ran for President. Any candidate who runs a successful campaign is qualified due to that success, and that a candidate's lack of experience will be cured if only we support him or her so they can campaign long enough to be qualified. It also suggests that any candidate that has not imploded by November is, ipso facto, qualified for the job.

This all makes me think I should run for President. If anyone dares suggest I lack the experience, I'll simply tell them that's why I need their support: So I can have a successful campaign and gain the experience I need to have in order to be a good President. Any takers?

UPDATE: Commenters are correct to note that Senator Obama noted his campaign experience to compare his executive experience with that of Governor Palin, but not claim that this alone was sufficient experience to be President (though he did compare his campaign experience to hers as Mayor, omitting her experience as Governor). Fair enough, he did not make the argument in as strong a form as my caricature. Others have, however, particularly those who do not think a few years in the Senate without significant committee accomplishments is relevant experience for the Presidency. So, for instance, I've heard this argument made with regard to John Edwards, and (several years back, from the other side of the aisle) with regard to Steve Forbes. Insofar as experience, in itself, is valuable (and, as I've noted, I'm skeptical that "experience" is the variable we should focus upon and found the McCain camp's argument against Obama unconvincing), I find the focus on campaign experience a bit odd.

Related Posts (on one page):

  1. Why Does Campaign Experience Count?
  2. When Does Experience Matter?
131 Comments

Surge of Ignorance

The only real question about the planned "surge" in Iraq — which is better described as a Vietnam-style escalation — is whether its proponents are cynical or delusional. -- Paul Krugman, NYT, 1/8/07

There is nothing ahead but even greater disaster in Iraq. -- NYT Editorial, 1/11/07

What anyone in Congress with half a brain knows is that the surge was sabotaged before it began. -- Frank Rich, NYT, 2/11/07

Keeping troops in Iraq has steadily increased the risk of a bloodbath. The best way to reduce that risk is, I think, to announce a timetable for withdrawal and to begin a different kind of surge: of diplomacy. -- Nicholas Kristof, NYT, 2/13/07

W. could have applied that to Iraq, where he has always done only enough to fail, including with the Surge -- Maureen Dowd, NYT, 2/17/07

The senator supported a war that didn't need to be fought and is a cheerleader for a surge that won't work. -- Maureen Dowd, NYT, 2/24/07

Now the ''surge'' that was supposed to show results by summer is creeping inexorably into an open-ended escalation, even as Moktada al-Sadr's militia ominously melts away, just as Iraq's army did after the invasion in 2003, lying in wait to spring a Tet-like surprise. -- Frank Rich, NYT, 3/11/07

Victory is no longer an option in Iraq, if it ever was. The only rational objective left is to responsibly organize America’s inevitable exit. That is exactly what Mr. Bush is not doing and what the House and Senate bills try to do. -- NYT Editorial, 3/29/07

There is no possible triumph in Iraq and very little hope left. -- NYT Editorial, 4/12/07

... the empty hope of the "surge" ... -- Frank Rich, NYT, 4/22/07

Three months into Mr. Bush’s troop escalation, there is no real security in Baghdad and no measurable progress toward reconciliation, while American public support for this folly has all but run out. -- NYT Editorial, 5/11/07

Now the Bush administration finds itself at that same hour of shame. It knows the surge is not working. -- Maureen Down, NYT, 5/27/07

Mr. Bush does have a choice and a clear obligation to re-evaluate strategy when everything, but his own illusions, tells him that it is failing. -- NYT Editorial, 7/25/07

The smart money, then, knows that the surge has failed, that the war is lost, and that Iraq is going the way of Yugoslavia. -- Paul Krugman, NYT, 9/14/07

U.S. Hands Off Pacified Anbar, Once Heart of Iraq Insurgency. -- NYT, 9/1/08

171 Comments

Police Officer Assaulted at Convention Protest: Video here. Based on the video, it looks like a single officer was arresting a protester when a crowd surrounded him and starting yelling to let the protester go. The protester being arrested went limp to make the officer drag him away, and then another protester ran over and knocked over the officer so the officer would let go of the protester being arrested. At first the officer responded with pepper spray to try to keep the angry mob away. But the crowd kept coming at him, so he let go of the person he was arresting and backed away to his squad car. The crowd then cheered their victory. Lovely.
114 Comments

Was Sarah Palin Ever A Member of the Alaska Independence Party?: According to Hilzoy, it looks like the answer is "no."
118 Comments

"Japan's New Professional Seducers":

From the Times (London):

This woman leads a double life. Her boyfriend thinks she’s a secretary. In fact she is one of Japan’s new breed of professional seducers, hired by embittered spouses to entrap their straying partners. And she’ll stop at nothing to get the desired results.

54 Comments

"The Clbuttic Mistake,"

plus buttbuttination, from The Telegraph (U.K.) (thanks to Language Log for the pointer).

13 Comments

Byron York reports McCain campaign responses to today's NY Times attack.

Watching both MSNBC and CNBC today, I have been surprised how quickly the press has moved from “Who is Sarah Palin?" — or even “Is Sarah Palin a good choice?” — to “How exactly did John McCain screw up by picking Sarah Palin?”

To say that the press is doing the Democrats’ work for them would be an understatement.

I have absolutely no personal knowledge of the vetting process, but the McCain campaign’s response has perhaps best been made by Byron York at NRO:

Team McCain Hits Back on Palin, Vetting

Had a long talk this morning with a senior strategist in the McCain campaign. I think it’s fair to say Team McCain is seriously unhappy with a New York Times story, “Palin Disclosures Raise Questions On Vetting,” which came out this morning and is driving much of the coverage of the issue. The story begins:

A series of disclosures about Gov. Sarah Palin, Senator John McCain’s choice as running mate, called into question on Monday how thoroughly Mr. McCain had examined her background before putting her on the Republican presidential ticket.

On Monday morning, Ms. Palin and her husband, Todd, issued a statement saying that their 17-year-old unmarried daughter, Bristol, was five months pregnant and that she intended to marry the father.

Among other less attention-grabbing news of the day: it was learned that Ms. Palin now has a private lawyer in a legislative ethics investigation in Alaska into whether she abused her power in dismissing the state’s public safety commissioner; that she was a member for two years in the 1990s of the Alaska Independence Party, which has at times sought a vote on whether the state should secede; and that Mr. Palin was arrested 22 years ago on a drunken-driving charge.

The story, my campaign source told me, is “materially false.” Gov. Palin, the strategist said, was subjected to a “complete vet.” “That included her filling out a 70-question questionnaire that was highly intrusive and personal. She was then interviewed for more than three hours by A.B. Culvahouse. There were multiple follow-up interviews.” (I asked precisely how many follow-ups there were, but my source stuck with “multiple.”) “There was a thorough interview process,” the strategist continued. “There was a public records search and political vet. There was a private life and financial vet. Everything that has come out was known by the campaign through the vetting process.”

Okay. What about particulars? The strategist started at the bottom and moved up.

“Todd’s DUI — we judged that to be immaterial to the selection process. The ticket for fishing without a license — we judged that to be immaterial to the selection process.” On the charge that Palin was a member of the Alaska Independence Party, the strategist said, flatly, “She was never a member of the independence party, because she has been a registered Republican.” (Later, the McCain camp put out a statement saying it had provided reporters with “ALL voter registration documentation” showing that Palin has been a registered Republican since 1982 and “has never been a member of the AIP.”) And on the issue of Palin’s daughter Bristol being pregnant: “John McCain made a decision that did not affect his decision-making in terms of her qualifications.” (As far as the allegation that Gov. Palin faked a pregnancy to cover up for her daughter is concerned, it appears the McCain campaign knew about it and looked into it, but never very deeply because it had been proven false to the satisfaction of pretty much anyone outside The Atlantic or the DailyKos.)

From our conversation, it was clear that the McCain campaign paid a lot of attention to the so-called “Troopergate” issue. After all, unlike the “fake baby” story that has preoccupied the press, it is a real issue involving allegations that Palin abused her power. Last night, the McCain campaign distributed a "background guidance" memo to reporters on the issue. In our conversation, the strategist recounted much of the substance of that memo.

“Of course this issue came up in the vetting, and this is what we discovered,” the source said. “The man who was fired has said on the record that he was never pressured by the governor or the governor’s husband on the issue of firing Trooper Wooten. The governor had a vision for how she wanted that department to be run. The commissioner had a different vision.”

“The reason that members of the Palin family were having discussions with the head of the state police about this state trooper, who was her ex-brother-in-law, was because he had made threats against the family. He threatened to kill the governor's daughter, her father, and her sister. He tasered her 11-year-old stepson. And that is why the Palin family was concerned about this trooper.”

I brought up accusations that the McCain team has performed a “legal vet” on Palin but did not perform a “political vet.” In addition to the accusation that Palin had been a member of the Alaska Independence Party, there were issues like her change in position on the “bridge to nowhere” and her support for raising sales taxes in Wasilla, Alaska. “Change on the ‘bridge to nowhere?’” my source asked. “Are you saying there’s somebody out there who believes that should disqualify her to be vice president?” Barack Obama has changed his mind on a few things, the strategist added. As for sales taxes in Wasilla, the source said, “Every aspect of her political record is known to us. These people [McCain’s opponents] are desperate.”

As for what materials the campaign examined in the vetting, the source told me they checked out (almost) everything. “The only thing the campaign did not look at was the microfilm of the local newspaper, because it was impossible to look at the microfilm without revealing the search process,” the strategist said. “We made a calculation that we would be able to get all the information from the Anchorage newspaper, that it was unlikely that there would be items in the local papers that were problematic that didn’t make it to the Anchorage paper.”

I don't get it. Are the New York Times reporters just printing what the Obama people are telling them (as Byron York is explicitly doing for the other side)? Or is one side or the other simply lying? Or both?

I guess we should be happy that there are now alternative sources of information, or too often most of us would hear only one side of the story.

UPDATE: Well, we have a likely answer to one question: it appears that Sarah Palin was never a member of the American Independence Party. The Times had a reason for writing what they did, but they went with the story before checking it out or looking at available state records. In essence, they acted more like a blogger than a newspaper. Let's see if they respond as quickly as bloggers usually do in correcting their errors.

195 Comments

"Freedom of Contract":

I've posted my essay "Freedom of Contract" for downloading on SSRN. The abstract reads: "This essay provides a concise overview of the history of the constitutional status of freedom of contract in the United States, with particular attention to the rise and fall of the '"liberty of contract' doctrine in the early 20th century."

3 Comments

Welcome to Minneapolis, Senator Craig and friends:

One more contribution to a robust political scene in the Twin Cities this week, from a local gay bar:


Fellowships for Aspiring Lawprofs:

Paul Caron has an updated post listing all the different fellowships available for aspiring law professors. These positions are an increasingly important gateway to the profession, so I thought that I would post this link for the benefit of readers who want to become law professors in the future - not that I really want any more competition than I already have:).

0 Comments

The Role of the Vice-President:

N.Y. Times:

In interviews, many women, citing their own difficulties with less demanding jobs, said it would be impossible for Ms. Palin to succeed both at motherhood and in the nation’s second-highest elected position at once.

"You can juggle a BlackBerry and a breast pump in a lot of jobs, but not in the vice presidency," said Christina Henry de Tessan, a mother of two in Portland, Ore., who supports Mr. Obama.

Her thoughts were echoed by some Republicans, including Anne Faircloth, daughter of former Senator Lauch Faircloth of North Carolina. Being a governor is one thing, Ms. Faircloth said, and Ms. Palin’s husband, Todd, seems like a supportive spouse. "But running for the second-highest office in the land is a very different kettle of fish," she said.

Many women expressed incredulity — some of it polite, some angry — that Ms. Palin would pursue the vice presidency given her younger son’s age and condition. Infants with Down syndrome often need special care in the first years of life: extra tests, physical therapy, even surgery.

In fact, all Palin has to do is campaign until the first week in November. After that, she can spend all the time she wishes with her family. The only constitutional role the vice-president has [besides breaking tie votes as "President of the Senate] is to be available in case the president dies or becomes incapacitated. To be prepared for that, Palin should get occasional briefings on national security issues. Beyond that, the vice-presidency is perhaps the ideal job to "juggle a BlackBerry and a breast pump," because a vice-president need not do anything.

Put another way, unless the vice-president takes on role not constitutionally assigned to her (as recent veeps, most prominently Dick Cheney, have), it's a far less demanding job than being governor of Alaska.

UPDATE: BTW, Obama has two little girls, and given that the president does have real, pressing issues to deal with, as well as an inevitable worldwide travel schedule, it will be far hard for him to be a good dad while president than for Palin to be a good mom while being veep. But that's not really the voters' problem, and it would be foolish to take this into account when voting.

230 Comments

Obama Campaign Spokesman Repeats Lie About Palin and Buchanan:

Miami Herald:

"Palin was a supporter of [MSNBC analyst] Pat Buchanan, a right-winger or as many Jews call him: a Nazi sympathizer," Obama spokesman Mark Bubriski wrote in an email.

To recapitulate previous posts, Palin publicly supported Steve Forbes, not Pat Buchanan in 2000. Pat Buchanan has claimed that Palin attended a fundraiser for him during the 1996 campaign, but his sister and campaign manager Bay says they actually met at a fundraiser for another candidate, not for Buchanan. (And as much as I dislike Buchanan, calling him a "Nazi sympathizer" is a bit much.)

Oh well, it's all just politics, I guess, and it's not like Obama has had contact with anyone who might scare off Jewish voters.

(For the context of Obama's embrace of Sharpton, see this story.)

Related Posts (on one page):

  1. Obama Campaign Spokesman Repeats Lie About Palin and Buchanan:
  2. Palin and Buchanan, II ("Timeline"):
  3. Palin and Pat Buchanan:
223 Comments

Gonzales Mishandled Classified Docs:

The Washington Post reports today that the Justice Department's Inspector General found that Attorney General Alberto Gonzales failed to take adequate precautions when handling classified documents related to various surveillance programs.

At issue are notes that Gonzales took during a March 2004 meeting between President Bush and congressional leaders in the White House Situation Room, as a program that allowed authorities to secretly monitor communications for evidence of terrorist plots was set to expire.

When Gonzales, then White House counsel, moved to become the Justice Department's top official in early 2005, he failed to secure the notes in a sensitive compartmentalized facility, the inspector general has concluded. Gonzales kept the notes in a safe in his office and at times took them to and from work in a briefcase -- practices that violated protocols for the handling of classified materials, according to people familiar with the report.

In a memo to the inspector general, Gonzales's advisers characterized the episode as an unintentional mistake and a technical violation of the rules.

Officials in the Justice Department's national security division looked at the inspector general's report but did not find a case to prosecute, according to a source familiar with the deliberations.

35 Comments

Monday, September 1, 2008

Violence Mars First Day of Republican Convention: In light of the post I wrote yesterday on the arrests and search warrants targeting groups seeking to disrupt the Republican convention, I thought I would add this update:
  Protesters smashed windows, punctured car tires and threw bottles Monday during an anti-war march to the site of the Republican National Convention. Police used pepper spray in confrontations with demonstrators and arrested five.
  Instead of the single coherent march that organizers had hoped for, fringe groups of anarchists and others wrought havoc along the streets between the state Capitol and the Xcel Energy Center where the convention was taking place. . . .
  About 200 people from a group called Funk the War noisily staged its own separate march. Wearing black clothes, bandanas and gas masks, some of their members smashed windows of cars and stores. They tipped over newspaper boxes, pulled a big trash bin into the street, bent the rear view mirrors on a bus and flipped heavy stone garbage bins on the sidewalks.
  Meanwhile, a group of about 100 anarchists pushed a trash bin filled with trash and threw garbage in the streets and at cars. They also took down orange detour road signs. One of them used a screwdriver to puncture the back tire of a limousine waiting at an intersection and threw a wooden board at the vehicle, denting its side. Another hurled a glass bottle at a charter bus that had stopped at an intersection. The bottle smashed into pieces but didn't appear to damage the bus.
The Associated Press has a photo of protesters exercising their First Amendment right to smash the windows of police cars here.

Related Posts (on one page):

  1. Violence Mars First Day of Republican Convention:
  2. Police Raid Anarchist Groups That Planned to Blockade Republican Convention:
101 Comments

Do Police Need Probable Cause to Enter a Home to Execute an Arrest Warrant?

Last week a divided panel of the U.S. Court of Appeals for the Sixth Circuit handed down an interesting opinion in U.S. v. Hardin, concerning whether police may enter a residence to execute an arrest warrant need to have probable cause to believe the suspect is inside, or is "reason to believe" sufficient? In Payton v. New York (1980), the U.S. Supreme Court held that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." In an opinion by Judge Moore (joined by Judge Cole), the court nonetheless concluded it was an "open question" in the Sixth Circuit whether a simple "reason to believe" was actually sufficient, or whether probable cause was actually required, and further concluded answering the question was unnecessary to exclude the evidence obtained from the search of the suspect's apartment. The court also concluded that an apartment manager becomes an agent of the government when asked to enter an apartment to verify the suspects.

Judge Batchelder wrote a vigorous and lengthy dissent, arguing there was no basis to exclude the evidence obtained from the suspect's apartment. Judge Batchelder argued that Circuit precedent clearly established that Payton only requires a "lesser reasonable belief standard" in such circumstances. Judge Batchelder further argued that consent for police to enter a residence can be obtained through deceptive means, and that it was wrong to treat assuming the apartment manager was an agent of the government when he went into Hardin's residence to confirm he was there should not invalidate the search.

I disagree with the majority’s treatment of United States v. Pruitt, 458 F.3d 477, 482 (6th Cir. 2007). By ignoring Pruitt’s clear reasoning and plain language, and instead conducting a de novo reconsideration of Pruitt’s facts in an effort to satisfy its preferred (alternative) version of the law, the majority has effectively circumvented Pruitt’s precedential effect. But, in doing so, the majority has also nullified Pruitt’s holding (i.e., recast it as “dicta”) and supplanted Pruitt’s majority opinion with its concurring opinion. This is not the proper role for a panel of this court. Moreover, by authorizing this tactic, this opinion sets a troublesome precedent.

While I recognize that, under this new precedent, the possibility now exists that the analysis that follows might be resurrected by a future panel — i.e., some future panel could employ the majority’s device and reconsider the decisions in this case (regarding the entry, the ruse, or the remedy), find that it prefers my view of these issues, and deem the majority’s purported holdings unnecessary to the outcome and, hence, dicta — I take no comfort in such a possibility. With this opinion, the majority has untethered the law from its foundations and now allows for every decision to be ad hoc, limited only by the ingenuity of some future panel.

[Note: Link fixed now.] [Note2: Post edited to correct an error.]

34 Comments

Hilzoy's Call for Decency:

Over at Obsidian Wings, Hilzoy has a post decrying the blogosphere's rumor-mongering about the Palin family children that is worth quoting at length. After noting the Palins' statement about their daughter's pregnancy, and then writes:

It's easy, in the midst of a political campaign, to forget that the people involved are, after all, people. Some of them -- Sarah Palin, for instance -- place themselves under a media spotlight of their own free will. Others -- her daughter, for instance -- wind up there through no fault of their own. Imagine yourself in her position: there you are, seventeen years old, pregnant, unmarried. Maybe you understand what happened and why; and maybe your parents and friends do as well. But zillions of bloggers and reporters and pundits are about to make the most personal details of your life into a political issue, and they don't understand it at all. And yet, despite that, they are about to use you and your unborn child to score points on one another, without any regard whatsoever for you and your actual situation.

I want no part of this. None at all. To those of you who think otherwise: that's your right. But ask yourself how you felt when Republicans scored points using Chelsea Clinton, who didn't ask to be dragged into the spotlight either.

As far as I'm concerned, it's fair game to consider Sarah Palin's statements about her daughter's decision, and to compare them to her own views about abortion. That's a story about whether or not Sarah Palin sticks to her beliefs when they affect her own family, not about her daughter. But it is not fair game to use her daughter, or any of her kids, as pawns in a political argument. To my mind, this extends to using her daughter as evidence that abstinence-only education doesn't work: presumably, no one thinks that it works 100% of the time, and that's the only claim to which this one counterexample could possibly be relevant. (That's why God created large-scale studies.) Likewise, I think that arguing about whether Sarah Palin is a good mother is out of line: we have no idea at all what arrangements she and her husband have made for child care, how their relationship works, and so forth. Assuming that Sarah Palin would have to be her children's primary caregiver is just sexist.

If the past is any guide, some people will respond to this post by saying that the Republicans would not hesitate to use Democrats' teenage children to score political points. That may be. Three responses: first, so what? Just because they do it doesn't mean that we should. Second, any argument for going there would have to assume that this would, in fact, be a political winner, and thus that not using it would entail some sort of political sacrifice. I am not at all convinced that that is true. Most importantly, though, there are some lines I'm not willing to cross no matter what the other side does.

Even in the midst of a political fight, common decency should be maintained. That campaigns (e.g. the Bush campaign in the 2000 S.C. primary) or bloggers often fail to show such restraint makes it that much more important that the rest of us do.

255 Comments

Obama Achieves Highest Poll Support Ever (Real Clear Politics).

Real Clear Politics computes an average of recent opinion polls.

Barack Obama has reached his highest support level ever: a 48.8% average in recent polls, all of which were conducted on Aug. 29-31. He leads McCain by an average of 4.5% (which is far from his biggest lead ever, which was about 7%).

31 Comments

Bush and McCain are Extreme Libertarians:

So says Paul Krugman: "What we really need is a government that works, because it’s run by people who understand that sometimes government is the solution, after all. And that seems to be something undreamed of in either Mr. Bush's or Mr. McCain's philosophy."

After eight years of "no child left behind," Medicare expansion, aid to Africa for AIDS, drug warring, abstinence education, nation-building in Iraq and Afghanistan, and so forth and so on, and more of the same promised by McCain, the better question is, is there any problem that Bush and McCain DON'T think government should solve?

I take those who think that the modern Republican Party is an outpost of radical libertarianism about as seriously as those who think that the Democracts are getting ready to shoot the kulaks.

83 Comments

Those radical gay-loving Republicans:

This morning's New York Times has the fascinating results of a poll of the views of Republican National Convention delegates on a variety of issues. The poll reveals that 49% of the GOP delegates support either gay marriage (6%) or civil unions (43%). Only 46% of the delegates believe there should be no legal recognition whatsoever of same-sex couples. (The main article, which does not discuss this particular result from the poll, is available here.)

Several things are noteworthy about this. First, support for civil unions, an idea that just ten years ago would have been thought radical by most people — and certainly by Republicans — is quickly becoming the default position across the political spectrum, not just on the left.

Second, party convention delegates are ideologically more extreme versions of party voters. But in this case, Republican delegates are actually more willing by a margin of 10% to support legal recognition of gay unions (49%) than are Republican voters overall (39% — 11% for gay marriage and 28% for civil unions). This may be partly due to the fact that the convention is dominated this year by McCain delegates, who are likely more moderate and libertarian on many social issues than delegates at past conventions. But it's not as if these delegates are social-issues squishes. Fully 81% of them believe abortion should not be permitted at all (43%) or should be more stricly regulated (38%). Even as they are softening their views on gay families they are maintaining their strongly conservative stands on other issues.

Third, unlike their views on some other issues (like abortion and approval of President Bush), Republican delegates are closer to the middle of the American electorate on same-sex relationships than were Democratic delegates, 90% of whom supported marriage (55%) or civil unions (35%). Among all voters, 58% now support either gay marriage (34%) or civil unions (24%), a difference of just 9% from what the GOP delegates believe.

It's still the case, of course, that Democratic voters and delegates are far more likely than Republican voters and delegates to support legal recognition of gay families. The latest draft of the official platform of the national GOP contains no position — either for or against — civil unions, which is noteworthy all by itself and may signal that party leaders understand the changed dynamic on this issue even among Republicans. The platform does reiterate the party's opposition to same-sex marriage and support for a federal marriage amendment (which McCain himself opposes). But I consider this poll of party activists quite surprising, and for a supporter of same-sex marriage, quite encouraging.

60 Comments

Myths and Facts About 19th Century Chinese Immigrants to the US:

Some recent correspondence I had with a colleague about Chinese immigration to the U.S. in the 19th century prompted this post. There has been some great historical work on the Chinese immigrants in the last few decades, but it's difficult to overcome the myths propagated for decades by labor unions and their academic apologists. My article Lochner, Parity, and the Chinese Laundry Cases, can be found here.

Myth: The Chinese were "coolies," which means that they were hired out to an employer for a certain number of years in exchange for their passage to America, and could not leave until their term of service was over. Coolies were often treated worse than slaves, because they had no "residual value" to their employers once their term of service was over.

Fact: While many Chinese arrived in South America as coolies, in the U.S. they did not. Rather, they borrowed money to pay for their voyage, and then worked as free laborers in the U.S., using their earnings to pay back the cost of their journey.

Myth: Corporate barons "imported" Chinese workers to take jobs that would otherwise be held by American workers.

Fact: Like whites, most Chinese came to the West to participate in the Gold Rush. They were eventually forced out of the gold mines by legislation and violence. Many of them then found work on the Transcontinental railroad.

Myth: The Chinese were taking "American" jobs, leading to hostility against them.

Fact: First, the most vociferously anti-Chinese workers tended to be immigrants themselves, especially, though not exclusively, from Ireland. To take one interesting example, Henry Weissman, an immigrant from Germany who later became head of the N.Y. bakers' union and even later became and attorney and won the Lochner case for the bakers, was involved in anti-Chinese activity almost as soon as he arrived in California.

Even more significant by 1882 (the year of the first Chinese Exclusion Act), the Chinese had been driven out, often with violence, sometimes with legislation, from most industries, and overwhelmingly made their living in fields where they didn't directly compete with white workers--agriculture, laundries (absolutely dominated by the Chinese), and domestic service.

So, beyond the concern that the Chinese might compete with them in the future, why did labor unions continue to so vociferously oppose the Chinese?* In part, because it appealed to their racist constituents, but more so because it made them look "public-spirited" and not just self-interested, the latter an obvious barrier to labor union popularity; they were seen as standing up for whites against the "yellow hordes," even when it didn't directly benefit them. It's funny to see Chinese exclusion as the 19th century equivalent of, say, participating in an "adopt a highway" program, but there you have it.

*Trivia note: the "union label" was a white label invented by the California cigarmakers' union to allow consumers to easily distinguish union-made cigars from Chinese-made cigars. The cigar boxes were stamped "WHITE LABOR."

78 Comments

Foreclosure for Unpaid Vehicle License Fee:

The City of Milwaukee is sticking to its guns to foreclose on a home for failure to pay a vehicle registration fee. The original fine was $50 but has escalated to $2,600 and a tax lien for failure to pay the original fine. From what I can tell the guy doesn't drive the van, it is just parked in his driveway. Of the man, the story reports: "The Social Security Administration has deemed Tubic mentally and physically disabled since 2001. He has a host of physical diseases and a personality disorder that limits his cognitive functioning, according to documents from the administration." The city rejected a proposal to settle the dispute by reducing the fine to the original $50, saying that it wouldn't be fair to relieve this guy of foreclosure when others have suffered foreclosure for unpaid traffic and vehicle fines.

31 Comments

Sarah Palin Photograph Caption Contest: The photograph in question is here; leave your proposed captions in the comment thread below.
110 Comments

Obama's New "Corps" And Other Service Programs.

Senator Barack Obama is proposing to remake American society in a way that the American public does not yet understand.

In his July 2, 2008, speech calling Americans to national service, Obama departed from his prepared remarks to announce his support for a mysteriously named “civilian national security force”:

We cannot continue to rely only on our military in order to achieve the national security objectives that we've set. We've got to have a civilian national security force that's just as powerful, just as strong, just as well-funded.

Many commentators were stumped. What is this “civilian national security force” that must be as well funded as the military? Is it merely our existing civilian national security force, the militia, or perhaps the FBI and the CIA? Or was Obama referring to some thuggish new paramilitary street organization?

The answer to this mystery is not hidden. It is prominently displayed in Obama’s speeches and in the position papers on his website. Obama is referring, neither to the militia nor to a reincarnation of the Brownshirts, but rather to his unprecedented plans for universal community service for young people and for hugely increased funding for a myriad of voluntary service programs for the rest of us.

Earlier posts dealt with mandatory service for middle and high school students, voluntary service for college students, and college “Serve-Study” laid out in Obama’s speeches and his “Plan for Universal Voluntary Citizen Service.” This post covers his other service programs.

A. Green Job Corps, YouthBuild Program

Although Obama’s education proposals would effectively reach over 90% of the 47 million middle, high, and college students in the country (perhaps leaving out only private secondary school children), what about the 2 million young people who are out of school and unemployed or in prison? To reach young prisoners and the young unemployed, Obama will add a new Green Job Corps, “an energy-focused youth jobs program,” and expand by six-fold the YouthBuild Program, which teaches housing construction to low-income youth.

B. AmeriCorps VISTA, Experience Corps, Senior Corps

What about the middle-aged and older Americans not covered by these programs for the young? Obama plans to enlist retirees in his civilian national security force “on a large scale” and to expand service programs for baby-boomers and the elderly: AmeriCorps VISTA, the Experience Corps, and other Senior Corps programs.

C. Classroom Corps, Health Corps, Clean Energy Corps, Veterans Corps, Homeland Security Corps, Peace Corps, Global Energy Corps

Among other “transformative” community service proposals, Obama will more than triple the number of full-time AmeriCorps members to 250,000 and distribute these new members among five new “Corps”:

1. a Classroom Corps for teachers and students;

2. a Health Corps to improve public health;

3. a Clean Energy Corps to conduct weatherization and renewable energy projects;

4. a Veterans Corps to assist veterans at institutions; and

5. a Homeland Security Corps to deal with emergencies.

Not only will “Barack Obama . . . double the Peace Corps to 16,000 by its 50th anniversary in 2011 and push Congress to fully fund this expansion,” but he will create a "Global Energy Corps to help reduce greenhouse gas emissions overseas and promote low-carbon and affordable energy solutions in developing nations.”

Barack Obama is proposing so many new “Corps” that he runs out of distinctive names for them. Note that his new Global Energy Corps is not to be confused with his new Clean Energy Corps and his new Green Job Corps.

D. Social Investment Fund Network, Social Entrepreneurship Agency for Nonprofits, Corporation for National and Community Service

But Obama is far from finished:

Barack Obama will create a Social Investment Fund Network, . . . a government-supported nonprofit corporation, similar to the Corporation for Public Broadcasting, that will use federal seed money to leverage private sector funding to improve local innovation, test the impact of new ideas and expand successful programs to scale.

He promises us that this new corporation will not be just a single entity, but it will involve “a network of funds.”

That’s not all; he’s going to create a “Social Entrepreneurship Agency for Nonprofits”:

Barack Obama will a create an agency within the Corporation for National and Community Service dedicated to building the capacity and effectiveness of the nonprofit sector.

Note the tone of these proposals: none of this false modesty about proposing these new agencies and Corps to Congress and working for their passage. His Plan simply declares: “Barack Obama will create” this; “Barack Obama will create” that.

***

All these programs are just the ones listed on the service pages of his campaign website. This list doesn’t include his most expensive program: health care. All these add up to the biggest expansion of the US government since FDR. If Obama gets most of what he wants, he will make libertarians look more fondly on the relatively modest proposals of Lyndon Johnson and Richard Nixon.

89 Comments

Sunday, August 31, 2008

Obama’s College Service Programs.

I have already posted about Senator Barack Obama’s proposal that all public middle and high school students perform community service, such as picking up trash, for 50 hours every year [typo corrected]. [In a later post, I will point to most of new service "Corps" that Barack is proposing, many of which would be open to college students.]

100 HOURS OF COLLEGE SERVICE

There has been little discussion so far of his program for college students. The first thing to note about it is that it is voluntary, though the funding is so extensive (and expensive) that almost all college students will be induced to do 100 hours of service each year at an effective salary of $40 an hour tax free.

Obama proposes to achieve almost universal service for the nation’s 17 million college students by offering a refundable annual tax credit of $4,000 toward college tuition. This program should cost about $65-100 billion a year, perhaps more if it substantially increases the number of students attending college. In return for the credit, college students will be required to perform 100 hours of community service every year for four years. By offering college students a hefty $40 an hour, Mr. Obama will ensure that nearly every college student will participate in his program, without actually making their service mandatory.

So, if a student graduates from college, he will have done on average about 11 years of community service, at a minimum of 50-100 hours each year. Almost all college graduates will have spent a total workweek equivalent of at least four to five months of their lives working in Mr. Obama’s “national security force,” starting at the tender age of 11.

"BARACK OBAMA WILL REQUIRE YOU TO WORK."

The school service programs give context to the much talked about comments of Michelle Obama back in February.

Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.

I had seen these words quoted many times, but I thought them either taken out of context or just Michelle Obama’s own quirky interpretation of what she thought her husband expected of Americans. What I hadn’t realized until a day or two ago is that her speech was delivered to college students at UCLA. That Michelle Obama was talking to students makes her words dovetail nicely with Barack Obama’s service programs for this segment of society.

So Michelle’s vision was one insider’s view of Barack Obama’s mandatory service programs for all public middle school and high school students and the nearly universal voluntary service program for college students.

Essentially all of the factual claims in the quoted passage of Michelle Obama’s speech are true. He will “require you to work.” He will “demand . . . that you move out of your comfort zones. . . . And that you engage.” And it’s fair to say that “Barack will never allow you to go back to your lives as usual, uninvolved . . . .” The rest of her comments (about becoming better, less cynical, and more informed) indicate her aspirations for what service will accomplish, and reflect pretty standard views of people in the service movement and of people in the left-wing educational reform movement to bring communities into the schools and schools into the community.

TOO NARROW A VISION OF SERVICE

Commenters about existing mandatory service programs often claim that public schools have too narrow a view of service, often excluding service by Boy Scouts and churches. Obama hasn't yet said much about what doesn't count as service, but he has said enough to cause me to worry.

Obama proposes to move from college work-study to “Serve-Study.” He plans to mandate that 25% of college work-study jobs be directed away from working on campus, “such as in libraries and dining halls,” to working in the community, eventually hoping to raise that proportion to 50% of all college work-study employment.

Thus, Obama wouldn’t count as “service” my wife’s college work-study job (years ago) as a weekend librarian in the University of Chicago’s School of Social Work, but if my wife had done one of Barack Obama’s preferred tasks, picking up trash in the slum behind the School, Obama would count that as service.

Reasonable people may differ on whether aiding in the education of social work students is more valuable than picking up trash. Yet in my wife’s student days, picking up trash would probably have done little good in the long run because (as the Boston Globe revealed) the government-supported housing projects developed or managed by Obama’s clients, friends, and biggest contributors within 500 yards of the back of Chicago’s School of Social Work were allowed to deteriorate, pretty much destroying most of the improvements made in that neighborhood.

64 Comments

From the Mordbidly Interesting "Mondoweiss" Blog

comes a "gem."

I find Anti-Israel Blogger Philip Weiss morbidly interesting, and I occasionally happen upon his blog. Weiss finds his own Jewish background alternatively suffocating and infuriating, and yet can't seem to stop talking about it, and about how he's trying to overcome it. [Recent example: "My experience of Jewish life is that it's elite-oriented. We cared deeply about prestige (yiches, in Yiddish) and excellence in my family, and I came to find those values suffocating.... The contempt for peasants is something I always found concerning in my own cultural background, that I seek to reform in my own Jewish experience.] If a Woody Allen character ever became an anti-Zionist polemicist, he would be a lot like Philip Weiss.

Anyway, Weiss, whose blog seems to attract commenters on vacation from the Vanguard News Network even though he appears to be quite leftist (dislike of Jews making strange bedfellows), believes that U.S. politics is firmly and absolutely under the control of the dreaded "Israel lobby." But he has a problem--Sarah Palin, who is no one's idea of the pro-Israel community's top choice for V.P. He writes:

Strict application of the Israel lobby [controls everything important in American politics] theory would not have predicted Sarah Palin. Romney, Lieberman, anybody but. Palin's an unknown quantity and she likes to buck lobbyists. Culturally she's not tight with Jews; I wonder how many she's even met. I don't think Lieberman's well-heeled friends will be fond of her. So why not throw out the theory?

The answer, of course, is that people don't believe bizarre conspiracy theories for logical reasons, so logic won't have any affect on those theories. Not surprisingly, though Weiss doesn't reach that conclusion. A brief window into a certain mindset.

UPDATE: At about the 7 minute mark, this video shows that Palin has a small Israeli flag in the window of her office. Guess Weiss can relax.

18 Comments

West Bank Levees May Not Be High Enough to Handle Storm Surge.--

It seems that the levees in towns adjacent to New Orleans are not prepared to handle a big storm surge:

Flood control experts said Hurricane Gustav's surge may deliver the worst-case scenario for the West Bank because the hurricane protection system there remains incomplete and severely vulnerable in some spots, despite accelerated levee work in the past three years.

With predictions of storm surge topping 10 feet when the storm passes Grand Isle, West Bank officials admited privately that they are preparing for widespread flooding and for rescuing people after the storm passes.

Jerry Spohrer, executive director of the West Jefferson Levee District, said there's still a chance that levees may keep storm surge out of the West Bank's most populated areas. But those chances diminish the higher the surge goes as it approaches the West Bank hurricane protection system.

"At 7 feet, we're iffy," Spohrer said Sunday morning. "It's not so much that we don't have the elevation. When you talk about the pressure of that water, the waves of that water pressing against what's there, we're keeping our fingers crossed."

David Bindewald, president of the Southeast Louisiana Flood Protection Authority - West, called Gustav the storm they have always feared. He said he's confident the system can withstand a 7-foot surge with some wave action.

"Beyond that, based on the numbers I'm hearing now, we lose the fight," he said. "We have to wait and see what we get."

The Army Corps of Engineers has not released storm surge predictions, but Jefferson Parish officials who have seen another set of models said a wall of water higher than the levee system could barrel toward the West Bank on Monday. . . .

Weak spots stretch across the system, from earthen levees at the back of Lake Cataouatche to floodwalls near Westwego to the Harvey Canal in the middle of the West Bank and to earthen levees guarding the Intracoastal Canal at the back of Algiers.

On the Harvey Canal, parish officials are questioning whether 8-foot-high sand baskets protecting the southeast bank can withstand any wave action, let alone overtopping.

A Harvey Canal gate at Lapalco Boulevard is designed to stop a storm surge of up to 11 feet above sea level from entering the northern half of the canal. Corps officials were preparing to close the mechanical structure Sunday evening or overnight. They will also start pumping water out of the northern portion of the canal when the tide is at 2 feet above sea level and rising.

If there's any comfort to be had for West Bank residents, it's that the area's levee system has undergone an unprecedented amount of improvements since Hurricane Katrina. That storm gave local leaders the urgency to demand that Congress fund levee work that has been more than 30 years in the making.

UPDATE: At WeatherNerd, they are quoting experts who say that the levees will probably hold (tip to Instapundit).

13 Comments

No Illeism Here:

The Guardian (U.K.) reports, in an article about multiple cycling gold medal winner Chris Hoy:

Next day, Hoy meets some Scottish journalists. One puts it to him that: 'In the last 24 hours everyone has been offering an opinion on Chris Hoy. But what does Chris Hoy think of Chris Hoy?'

Hoy doesn't miss a beat: 'Chris Hoy thinks that the day Chris Hoy refers to Chris Hoy in the third person is the day that Chris Hoy disappears up his own arse.'

Thanks to Michael Greenspan for the pointer.

6 Comments

Charities That Performed Well in the 2005 Hurricanes.

For those looking to donate money (or time) to organizations that might help victims of Hurricane Gustav, here is a list of charities that dealt with both Hurricane Katrina and Hurricane Rita (and don’t spend too much of their receipts on fundraising).

A year ago the American Institute of Philanthropy (AIP) rated the best charities dealing with these two storms:

THE BEST WAY TO HELP VICTIMS OF HURRICANES KATRINA AND RITA

Updated August 27, 2007

The American Institute of Philanthropy (AIP) announces its top-rated charities currently offering services to the victims of the 2005 Hurricanes Katrina and Rita in the Southeast U.S. Hurricane Katrina devastated major cities along the Gulf coast, including New Orleans, Biloxi and Mobile, with strong winds up to 140 mph in some areas and flooding. Not long afterwards, Hurricane Rita severely damaged small coastal communities including Lake Charles and Holly Beach in Louisiana and Port Arthur and Beaumont in southeast Texas.

. . . AIP, a leading charity watchdog that issues letter grade (A+ to F) ratings of nonprofit groups, identifies the following relief charities, which are providing aid to the victims. These charities have received an “A” . . . grade based on the portion of their budget going to program services and their fundraising efficiency. Charities with a “*” have announced plans to provide aid to victims of Hurricane Rita.

*American Red Cross (A-)

1-800-435-7669

*AmeriCares (A)

1-800-486-4357

*America's Second Harvest (A)

1-800-771-2303

*Church World Service (A)

1-800-297-1516

*Direct Relief International (A)

1-805-964-4767

*MAZON: A Jewish Response to Hunger (A)

1-310-442-0020

*Mercy Corps (A)

1-800-292-3355

*Salvation Army (A)

1-800-725-2769

*Save the Children (A)

1-800-728-3843

*World Vision (A-)

1-888-511-6598

34 Comments

Police Raid Anarchist Groups That Planned to Blockade Republican Convention: Some political bloggers are buzzing about police raids targeting a self-described anarchist group, the "RNC Welcoming Committee," which was allegedly planning to disrupt the Republican convention. The AP's story about the raid is here. Some popular bloggers appear to be outraged by this: They are presenting the group as political protesters, just a bunch of peaceful kids, while the police are presented as overbearing thugs that are trying to intimidate them.

  But if the group's website is any guide to the group's plans, it's certainly unsurprising that the police are trying to stop the group from executing its plans. The website explains that the "goal for Day One [of the convention] is to blockade Downtown St. Paul, so that the only show worth watching is the one we create in the streets." It includes this invitation:
September 1st, 2008, we, the RNC Welcoming Committee, invite all anarchists and anti-authoritarians, all radicals and rabble-rousers, all those who are fed up with government lies and spectacles to show up ready for action and ensure that we leave no place for these expired politicians. What we create here will send the convention crashing off course into insignificance.
Among the plans for the convention listed on the group's website are efforts to blockade the convention and keep the delegates from meeting. One of the pages lists this three-tiered strategy:
Tier One: Establish 15-20 blockades, utilizing a diversity of tactics, creating an inner and outer ring around St. Paul’s Excel Center, where the RNC is to take place.

Tier Two: Immobilize the delegates’ transportation infrastructure, including the busses that are to convey them.

Tier Three: Block the five western bridges connecting the Twin Cities.
The page continues:
As the specific blockade sites are established, there may be a system of delegating some sites as “red zones” (prepared for self-defense), “yellow zones” (peaceful but assertive), and “green zones” (aiming to avoid any risk of arrest) so as to accommodate a wide variety of creative tactics and involve individuals with differing needs and talents.
To try to "blockade" the downtown area and stop the convention, the group divided downtown St. Paul into individual sectors and had different groups take on responsibility to engage in "3S" — "Swarm Seize, Stay" for each sector. According to the website, "Swarm Seize, Stay" is a three-step strategy that works as follows:
1. Move into/around Downtown St. Paul via swarms of varying sizes, from multiple directions, and with diverse tactical intentions.
2. Seize space through both hard (e.g., lockboxes) and soft (e.g., congestion), fixed and mobile, blockading methods.
3. Stay engaged with the situation in downtown St. Paul as long as necessary. Regroup. Reinforce.
  As you might guess, the police weren't about to let this plan play out. As best I can tell from news reports, the County Sheriff's Office obtained warrants to search a handful of so-called "hippie houses" (open group homes, apparently) and storage sites based on probable cause to believe that the members of the anarchist group had engaged in "conspiracy to riot" and either had evidence of the crime there or were themselves present. They executed the warrants and made a handful of arrests of the group's organizers. Although there are blog reports of a lawyer for the group being "arrested," it seems that it was only a temporary detention because he happened to be present when a warrant was executed. This is generally permitted, see Muehler v. Mena, 544 U.S. 93 (2005) (person present at scene handcuffed while warrant executed).

  If there's something wrong with what the police did here, it's not clear to me what it is. Perhaps the website is just a joke, and everyone knew it. I understand that the police had undercover agents infiltrate the group to establish that the plans were serious, and I imagine much of the cause in the warrant is from their undercovers. But if for some reason the whole thing is a joke and the police didn't get it, then the police are fools. And perhaps they raided the wrong house, whether because they had probable cause pointing them to the wrong place or because they executed the warrant incorrectly. If so, that's bad. But as far as I can tell, no one is disputing that the website is serious and the group really did plan what they said they were planning. And as best I can tell, no one seems to be suggesting that the warrant was executed at the wrong house. So at least so far, I don't see anything the police have done that is wrong or blameworthy.

  UPDATE: The anarchist group has posted a press release that has a part responding to police claims that the raids are legal:
The police may claim that the raid was executed according to protocol - however, the violence inherent in this action may only be a hint of the violence to be expected on Monday and beyond, and is only a hint at the violence perpetrated daily by the police.
Um, okay.

Related Posts (on one page):

  1. Violence Mars First Day of Republican Convention:
  2. Police Raid Anarchist Groups That Planned to Blockade Republican Convention:
155 Comments

Gov. Palin's Judicial Pick:

Jeralyn Merritt has unearthed some information on Governor Palin's sole appointment to the Alaska Supreme Court. With a retirement pending, Palin may make another appointment later this year.

61 Comments

Palin and Buchanan, II ("Timeline"):

July 17, 1999: AP reports on Pat Buchanan visit to Wasilla, AK. The reporter notes that "among those sporting Buchanan buttons were Wasilla Mayor Sarah Palin and state Sen. Jerry Ward, R-Anchorage."

July 26, 1999, letter to the editor of the Anchorage Daily News by Sarah Palin:

As mayor of Wasilla, I am proud to welcome all presidential candidates to our city. This is true regardless of their party, or the latest odds of their winning. When presidential candidates visit our community, I am always happy to meet them. I'll even put on their button when handed one as a polite gesture of respect.

Though no reporter interviewed me for the Associated Press article on the recent visit by a presidential candidate (Metro, July 17), the article may have left your readers with the perception that I am endorsing this candidate, as opposed to welcoming his visit to Wasilla. As mayor, I will welcome all the candidates in Wasilla.

August 7, 1999: AP reports on Steve Forbes' campaign in Alaska. "Joining the Fairbanks Republican on the leadership committee will be Wasilla Mayor Sarah Palin, and former state GOP chairman Pete Hallgren, who will serve as co-chairs."

This information is all available on Lexis. Anyone who continues to push the "Sarah Palin supported Pat Buchanan in 2000" line is either willfully ignorant or lying. And there is no evidence thus far except a recollection from Pat Buchanan, contradicted by his sister and campaign manager (see previous post), that she supported him in 1995.

45 Comments

Why Gore's "Switch" Is Not So Simple:

The Washington Post has an extensive analysis of Al Gore's plan to power the United States with "100 percent clean electricity within ten years," and finds it exceedingly impractical and unrealistic, to say the least.

The answer is simple: This is where Gore must be pulling our collective leg. Because most people who study the country's energy supply say that -- whatever you think of the motives behind Gore's idea -- as a real-life plan, it's a non-starter.

The problem is that, despite the current boom in green power, renewable sources such as the sun and the wind still provide just a tiny fraction of the U.S. electricity supply. The rest is mainly dirty stuff: coal, gas, oil. To replace one with the other over the course of a decade, energy experts say, would make the Manhattan Project look like a science-fair volcano.

And even if we wanted to try Gore's plan, his goal is likely to get more distant every year. That's because, even as Americans demand more action on climate change, their laptops and flat-screen TVs are demanding more electricity every year -- and they're not asking whether it's clean or dirty. . . .

Perhaps the best way to describe the scope of Gore's challenge is to shrink it. What if you wanted to tackle a slice of the problem in just a slice of the United States -- the region around Washington? What if, instead of switching the entire region to renewable electricity, you wanted just enough clean power to meet the increase in electricity demand expected over the next 10 years?

You would need about 3,700 windmills.

Here's the math: Peak demand -- the amount of electricity needed on the hottest summer days -- is expected to grow by more than 5,500 megawatts for the three utilities that serve this area. A megawatt is roughly enough to power 700 to 1,000 homes. So, at roughly 1.5 megawatts per wind turbine -- the current going rate -- you would need 3,700 turbines.

Right now, from the Delaware Coast to the West Virginia mountains, there are 44 turbines producing power on a significant scale. Add in all the renewable energy projects on the drawing boards in this area, including the large wind farm planned off Rehoboth Beach, Del., and . . .

And you're still nowhere close.

74 Comments

Industry Groups Join Polar Bear Litigation:

The National Association of Manufacturers, American Iron and Steel Institute, U.S. Chamber of Commerce and American Petroleum Institute have filed another challenge to the Fish & Wildlife Service's decision to list polar bears as "threatened" under the Endangered Species Act. Interestingly, one aspect of the listing they are challenging is the federal government's differential treatment of energy projects in Alaska.

They object to what they call the "Alaska Gap" in relation to the special rule the federal government issued in May in conjunction with the polar bear's protected status. The rule, meant to prevent the polar bear's status from being used as a tool for imposing greenhouse gas limits, exempts projects in all states except Alaska from undergoing review in relation to emissions.

NAM Vice President Keith McCoy said the group sees the rule as unfairly subjecting Alaskan industry to greenhouse gas controls and also opening a back door for greenhouse gas regulation nationwide.

"This could significantly curtail oil and gas exploration," especially on Alaska's North Slope, he said. "It's discrimination against the state of Alaska. During a time when gas prices are high and we need to look at all options, to issue something that shuts off a viable resource" is ill-advised, he said.

The lawsuit, filed in U.S. District Court for the D.C. Circuit, notes that greenhouse gas emissions worldwide contribute to global warming. It says projects in Alaska should not be subject to special scrutiny because of the polar bear's status.

Not having read the briefs (yet), this seems to me like a more fruitful avenue of attack than a frontal challenge to the listing itself. Overturning a listing decision is quite difficult, and I don't expect any of the lawsuits to be successful on that front.

Related Posts (on one page):

  1. Industry Groups Join Polar Bear Litigation:
  2. Can Polar Bears Save the World?
  3. Will Walruses Follow Polar Bears?
9 Comments

Abortion on the Ballot:

Voters in three states will consider ballot initiatives on abortion this Fall. The most aggressive is in South Dakota, where voters will consider a virtual ban (with exceptions for rape, incest, and threats to the mother's life). Anti-abortion activists hope to use the law as the basis for an eventual Supreme Court challenge to Roe v. Wade. Meanwhile, California voters will consider a parental notification requirement, and Coloradans will consider whether to define "person" as "any human being from the moment of fertilization." All three will be worth watching.

23 Comments

How McCain Chose Palin:

The Washington Post has an interesting story on how McCain settled on the Palin pick. According to this story, she was on the short-short list ever since McCain first met with her in February, and (contrary to some speculation) she was fully vetted.

UPDATE: Byron York reports on the McCain campaigns fuller explanation of their process.

39 Comments

Sunday Song Lyric: This week, John McCain looked north, to Alaska, to find his running mate. In 1960, Johnny Horton recorded "North to Alaska," the title song for the John Wayne movie of the same name. The Horton song, penned by Mike Phillips, was a hit (and was subsequently covered by several folks, including Dwight Yoakam and Johnny Cash). Time will tell whether the Palin pick is as popular. In the meantime, here's a taste of the lyrics to the song penne:
Big Sam left Seattle in the year of '92,
With George Pratt, his partner, and brother, Billy, too.
They crossed the Yukon River and found the bonanza gold.
Below that old white mountain just a little south-east of Nome.

Sam crossed the majestic mountains to the valleys far below.
He talked to his team of huskies as he mushed on through the snow.
With the northern lights a-running wild in the land of the midnight sun,
Yes, Sam McCord was a mighty man in the year of nineteen-one.

Where the river is winding,
Big nuggets they're finding.
North to Alaska,
They're goin' North, the rush is on.
13 Comments