December 18, 2014

"My thriftiness overwhelmed my modesty, and I removed my T-shirt, stripped off my briefs and marched back to the store."

"If it was hard to buy produce without clothing and with a poor command of the language, it was more difficult to return it. Perhaps the poignant sight of a flat-chested, middle-aged American woman seeking to buy a voluptuous French melon melted the icy heart of the clerk. She found me another watermelon."

From "Vacationing in the Nude, With Mom" (in the NYT).

"Just as people are free to contract, they are also free from contract, and we find it neither prudent nor permissible to impose contractual liability for offhand remarks or grandstanding."

Said the 11th Circuit today, denying $1 million to the law student about whom I said, 5 years ago, "Give this law student a million dollars."

A criminal defense lawyer had argued that his client could not have committed the murder he was accused of because the time frame was impossible. From the opinion (PDF):
[F]or the last leg of the journey, Serrano would have had to get off a flight in Atlanta’s busy airport, travel to the La Quinta several miles away, and arrive in that hotel lobby in only twenty- eight minutes. After extensively describing the delays that would take place to render that twenty-eight-minute timeline even more unlikely,[the lawyer James Cheney] Mason stated, “I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.”
A law student, Dustin S. Kolodziej, made the trip within 28 minutes, demanded the million dollars, and when it was not forthcoming, sued Mason's law firm for breach of contract. Kolodziej's theory was that Mason's challenge was an offer to form a unilateral contract and that he could and did accept by performing the task. According to the court (applying Florida law), that depended on whether "a reasonable, objective person would have understood [Mason's words] to be an invitation to contract."
The exaggerated amount of “a million dollars”—the common choice of movie villains and schoolyard wagerers alike—indicates that this was hyperbole….

We could just as easily substitute a comparable idiom such as “I’ll eat my hat” or “I’ll be a monkey’s uncle” into Mason’s interview in the place of “I’ll pay them a million dollars,” and the outcome would be the same. We would not be inclined to make him either consume his headwear or assume a simian relationship were he to be proven wrong; nor will we make him pay one million dollars here.
ADDED: Werner Herzog did eat his shoe:

"I believe that all of what we manifest — all of our brain activity, everything we experience — is due to the way the brain functions."

"This includes self-awareness. Being aware of what's going on around you and the way you are and what you are is an experience. An experience is a mechanism, a processing happening inside your brain. So if you make a copy of all of that processing, then I'm convinced that copy will include self-awareness.... If you have an exact copy of the entire brain and you aren't leaving out the parts that are involved with emotions, then why wouldn't you have humor, why wouldn't you have empathy? You would have the same sense of humor in your substrate independent mind as you do in reality. Having a sense of humor is just a certain way of processing activity that goes through your brain, just like the concert pianist who plays Beethoven in a certain way."

From "This Neuroscientist Is Trying to Upload His Entire Brain to a Computer."

But people don't have that much empathy and humor, so why would you think human brains uploaded into computers — severed from the remainder of the nervous system and from a fleshly body capable of interaction with other bodies — would generate nicely friendly emotions? We may love and hope to preserve empathy and humor, but why wouldn't the bodiless brain manifest unpleasant emotions, like rage and sadness? I don't think the neuroscientist really believes what he's saying. Notice the "if" clause and the question mark and the words "just like" in that Beethoven analogy.

"This is the final installment of the Illustrated Scroll of Jack Kerouac’s novel 'On the Road.'"

"I started making one drawing for each page of the book in 2012 and reached the end at page 309 a few weeks ago...."
Last month, Paul Slovak, editor at Viking Penguin called to see about publishing the drawings as a book. He had some great ideas about packaging and design and it looked like it was going to be in stores next fall, but we got some bad news from the Kerouac Estate. They decided not to grant permission because they feel that the project “detracts from the book,” is a “dumbing down” of On the Road, and “diminishes the aura” that the novel possesses....
Ah! Too bad! You can see the drawings by Paul Rogers at the link. Here's a list of things Jack Kerouac called "dumb" in "On the Road":

"'The support of Pope Francis and the support of the Vatican was important to us, given the esteem with which both the American and Cuban people hold the Catholic Church...'"

"'... and in particular Pope Francis who has a substantial history in Latin America and is the first pope to be chosen from Latin America,' a senior administration official said."
Obama also discussed the issue at length with the pope during his public visit to the Vatican in March....

Obama is determined that the pincer movement of economic modernisation and regional and spiritual cajoling will help bring about the longer-term breakthroughs in human rights and democracy that he concedes are largely absent from the existing deal so far.
The pincer movement of economic modernisation and regional and spiritual cajoling...

A "pincer movement" is "a military maneuver in which forces simultaneously attack both flanks (sides) of an enemy formation.... [O]pposing forces advance towards the center of an army that responds by moving its outside forces to the enemy's flanks to surround it. At the same time, a second layer of pincers may attack on the more distant flanks to keep reinforcements from the target units."

So picture economic modernization and and spiritual cajoling closing in and attacking like that.

By the way, "pincer movement" has 2 layers of metaphor, since the military term is itself a metaphor.



"Pincers, often red-hot, have been used as an instrument of torture since ancient Roman times or earlier."

Torture ≈ cajoling.

By the way, Samuel Johnson called "cajole" "a low word." The OED defines it as "To prevail upon or get one's way with (a person) by delusive flattery, specious promises, or any false means of persuasion."

"A New Zealander and two Burmese men have gone on trial in Myanmar on charges of insulting Buddhism."

"The trio, who run a bar in Yangon, are accused over a flyer promoting a drinks event depicting Buddha... with his eyes shut, wearing large headphones, and surrounded by lurid colours."

"This whole thing is just scary... It’s emails, it’s your private stuff. And the whole town is scared . . . nobody knows what to do."

"You say the wrong thing — you see what happened to [Sterling]... I’m not defending what Sterling said at all, but if that’s not the First Amendment then what the [bleep] is? And what did he say, ‘I don’t want my girlfriend hanging out with black basketball players’? Me neither!"

Said Chris Rock. 

"Sometimes I think, maybe they'll let the bear eat berries and honey in the forest, maybe they will leave it in peace."

"They will not. Because they will always try to put him on a chain, and as soon as they succeed in doing so they tear out his fangs and his claws."

Said Vladimir Putin.

"Obama feels liberated..."

"... and sees the recent flurry of aggressive executive action and deal-making as a pivot for him to spend his final two years in office being more the president he always wanted to be."

"Hours after an announcement that U.S. authorities determined North Korea was behind the recent cyber-attack on Sony Pictures..."

".... the entertainment company announced it was pulling the release of the film The Interview."

"But white collar vs. blue collar is not interesting enough."

"My mom and dad were visiting and I’m looking at all the contestants thinking, how can we break these people up? And there was clearly a group of educated, white collar types. And there was clearly a group of blue collar types. But white collar vs. blue collar is not interesting enough. That’s kind of the mixture in our show all the time. But I kept looking at this other group and there was a guy who worked down on the beach, and a woman on a sailboat, and an artist, jeweler, musician, actor, athlete. And I kept starting at them, and all of a sudden it just hit me—the term 'No Collar.' And those are the people that break the rules. And once that came out, I felt like we had the theme, which was: make the rules, follow the rules, break the rules. One says, 'I represent the status quo, we’re going to do it my way, I’m in charge.' The next says, 'I got the rules, let me get out there and get ‘em done for you.' And the next says, 'F— your rules! Here’s what I’m doing.'"

The best of Colbert.

(In honor of his final show, which is tonight.)

The "Serial" finale.

Here. We've listened. Have you? I don't have to say "spoiler alert," do I? Anyway, both Meade and I reacted to the conclusion by saying "bullshit." We both listened to the whole series believing that Adnan was, in fact, guilty, and the finale made that awfully clear, even though Sarah Koenig ultimately copped out with a how-do-we-really-ever-know ending.

Koenig only toyed with the problem of her own self-interest. After letting another person — the office "Mr. Spock" — sum up the evidence logically, Koenig anguishes over whether she's done the whole series for no reason. She needs the show not to have been a ridiculous tease — a cruel tease, denying closure to the family who lost their beautiful girl. Koenig lacked the guts to turn on herself and to say, I benefited, I became famous, I made a show that 5 million people hung on — even Althouse punched in at the exact minute (6 a.m. Central Time) when the finale became available.

Koenig had to pose as the person with empathy. Poor Adnan! Arrested at the age of 17! Handsome and charming! His friends say he was not capable of such an act. Let that other person in the office — whose name I can't remember — give the real ending of the show and explain how the data points in combination reveal Adnan as the murderer. Koenig gets to be the embodiment of feeling and philosophic doubt — the artist, not the logician or lawyer. And she lures her listeners into joining her in the comfortable place, where we are just not sure enough to accept that this man, this former teenager, is in prison.

I'm resisting that the temptation. I was skeptical from Episode 1, because I didn't hear honesty in Adnan's voice, but I went on the journey anyway. Why? It had to have been the seductive quality of Koenig's voice and storytelling. And that music. It was all very well done, and yet, that ending... that emoting in The Theater of the Unknowable... too easy. And — this is what was left unacknowledged — self-serving.

IN THE COMMENTS: Bob Boyd said: "I wish NPR would bring in a heartless Vulcan to tell it like it is at the end of all their news stories."

ADDED: Dwight Garner in the NYT:
[N]o matter how “Serial” stuck its landing, I had decided by Episode 3 that I would follow Ms. Koenig’s work wherever it takes her. She is an agile writer of cool, declarative sentences. Her voice — literate, probing, witty, seemingly without guile — is an intoxicating one to have in your head....

If a part of the impact of “Serial” has been watching Ms. Koenig’s rise, another part has been watching the revivifying of an old form, the radio serial. She’s made a show that seems dowdy and postmodern all at once. Each episode found its own length, from 28 to 56 minutes. There’s a primal pull to radio drama that many of us had nearly forgotten. We were eager on some level (perhaps too eager) to submit to the spell that “Serial” cast.
Yes, "We were eager," but do not forget that a young woman was murdered. The meta question of guilt is: Should we have taken our pleasures here? 

December 17, 2014

At the Rock Face Café....

P1260545

... take a hard look.

(And if you're shopping, please use The Althouse Amazon Portal.)

Marco Rubio vows to "make every effort to block this dangerous and desperate attempt by the President to burnish his legacy at the Cuban people’s expense."

"Appeasing the Castro brothers will only cause other tyrants from Caracas to Tehran to Pyongyang to see that they can take advantage of President Obama’s naiveté during his final two years in office,” he said. “As a result, America will be less safe as a result of the President’s change in policy. When America is unwilling to advocate for individual liberty and freedom of political expression 90 miles from our shores, it represents a terrible setback for the hopes of all oppressed people around the globe.”

ADDED: "This expression by President Barack Obama deserves the respect and recognition by all the people and I want to thank and recognize support from the Vatican and especially from Pope Francis for the improvement of relations between Cuba and the United States," said Cuban President Raul Castro.

"The Obama administration overturned a ban preventing a wealthy, politically connected Ecuadorean woman from entering the United States after her family gave tens of thousands of dollars to Democratic campaigns..."

"... according to finance records and government officials. The woman, Estefanía Isaías, had been barred from coming to the United States after being caught fraudulently obtaining visas for her maids. But the ban was lifted at the request of the State Department under former Secretary of State Hillary Rodham Clinton so that Ms. Isaías could work for an Obama fund-raiser with close ties to the administration. It was one of several favorable decisions the Obama administration made in recent years involving the Isaías family, which the government of Ecuador accuses of buying protection from Washington and living comfortably in Miami off the profits of a looted bank in Ecuador."

Reports The New York Times.

Campaign finance transparency... this is how it works.

How to power-vault modestly.

I'm reading the headline of the new Dana Milbank column out loud to Meade:
ME: "Elizabeth Warren is not the left’s Ted Cruz. She is the left’s Jim DeMint." What does that even mean?

MEADE: Who is Jim DeMint?

ME: I know.
It's not that we don't know anything about Jim DeMint. He's... a Senator... right?
ME (reading from the Milbank column): "DeMint, the former Republican senator from South Carolina who now runs the conservative Heritage Foundation, is widely seen as the godfather of the tea-party movement."

MEADE: So much for my Tea Party credentials, then. I guess I'm not much of a tea-bagger after all.
Back to the column:
The left’s tea-party equivalent is still in its infancy. But it could be seen recently in the opposition by environmental activists to the reelection of Sen. Mary Landrieu (D-La.), who lost her seat this month. They wanted to punish her for opposing them on energy issues — even though the conservative replacing her is less to their liking.

This was very much the logic of DeMint, who said he’d prefer a minority of conservative senators to a majority of moderates: “I’d rather have 30 Marco Rubios than 60 Arlen Specters.”
But where's Cruz in all this?
Cruz, long an establishment man, arrived late in the tea party movement, opportunistically embracing its themes to vault himself to power in 2012. His stands in Washington have been less about advancing a policy agenda than about causing mayhem and positioning himself to run for the Republican presidential nomination in 2016.

DeMint, by contrast, cared about policy and took a long view of politics....
So you see Milbank's point. Elizabeth Warren is not vaulting herself. She's building a movement, a group project. You can see that — in Milbank's mind — this makes Warren a much better candidate for President. Of course, Warren could just be clever enough to figure out how to seem to lack individualistic, personal lust for power. If so, good for you. There is nobody in this country who can become President on his own....

What's that candy?

"The candy is mentioned in two episodes of the AMC series Mad Men and displayed in others. In 'Three Sundays,' we learn it was Archibald Whitman's favorite candy. In 'Far Away Places,' Peggy — who has an important presentation that day — anxiously searches in vain for her pack and explains to Abe that Donald Draper once gave it to her before a presentation. She dismisses Abe's suggestion to buy a replacement, because it 'wouldn't be the same.' When she finds it in her desk drawer at work, she tells her SCDP colleagues, 'Oh. Thank God. I couldn't take one more omen of doom.' In season six, we see that she continues to keep the candy in her desk drawer, even at CGC."

"A jar of red paint happened to be situated on his desk on the day he first drew a picture of a little girl and a big dog."

"He wanted to name the dog Tiny, though his wife, Norma, discouraged the obvious joke and named him Clifford, after an imaginary friend from her childhood. The little girl who owned him, Emily Elizabeth, was named for their infant daughter."

From the NYT obituary for Norman Bridwell.

How do lawprofs know when they are caving to the feminist activists?

Harvard lawprof Jeannie Suk has an article in The New Yorker called "The Trouble with Teaching Rape." This struck me especially hard because the other day, when I was cleaning out my office, I encountered a folder of notes written 24 years ago, when I taught a law school seminar on rape. ("You're teaching a whole seminar on rape?" That's the first line of the notes.) I'd just read these notes last night — after not looking at them for more than 20 years — so it was interesting to see how different everything was back then and whether my attitude had changed.

I was teaching a seminar on rape because I was immersed in a writing project that had grown out of my experience teaching Evidence. All the evidence casebooks have a section on the "rape shield rule," which limits inquiry into the alleged victim's "other sexual behavior." (This project became "The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook,” 88 Northwestern Law Review 914 (1994).") If you taught Evidence, you'd have to go out of your way to avoid rape, and the books — highlighting the threat to the criminal defendant's rights — presented the women as liars. 

Professor Suk teaches Criminal Law (not Evidence), so the subject is less about who's telling the truth and more about the act and the state of mind that constitute a crime.  She reports that the teaching "environment" has changed in "the past couple of years" and students "seem more anxious... about approaching the law of sexual violence."
When I teach rape law... I focus on cases that test the limits of the rules.... We ask questions like: How should consent or non-consent be communicated? Should it matter whether the accused realized that the complainant felt coerced? What information about the accused and the complainant is relevant to whether or not they should be believed? How does social inequality inform how we evaluate whether a particular incident was a crime? I often assign students roles in which they have to argue a side—defense or prosecution—with which they might disagree.

These pedagogical tactics are common to almost every law-school topic and classroom. But asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. 
Suk doesn't say whether she's had difficulty. She shifts from describing what sounds like her own stellar teaching to references to generic teachers who somehow just can't hack it anymore. Exactly what is happening in those classes? I'd like to hear something specific. Maybe those professors who are giving up never did a very good job with the topic, the students are speaking up about the professors' fumbling, and those professors jumping at the chance to skip the topic altogether.

When I went to law school, more than 30 years ago, the substantive criminal law class didn't focus on any particular crimes. We spent the whole semester on actus reus, mens rea, and a few defenses (like impossibility). There was a section of the book on particular crimes, and we might have dipped into murder and theft, but that was the kind of material you could learn quickly in your bar review course. It wasn't the meat of criminal law. I think if you go back and figure out the history, rape got into the criminal law course because law professors caved to the political argument that not to teach it was to say that it's not important.

That was never true, and if the activists demand that rape be taken out and the professors cave, they are, ironically, paradoxically, uncaving.