November 12, 2005

"These people are insane."

Said Jordan's King Abdullah.

"What is happening today in the suburbs is true anger."

More violence in France.

"How fondly we will remember and miss this tender and heart-warming 'Never mind' in the days to come."

A princess leaves the royal family.

A roar.

Sitting here, sealed up in my University Heights house, I hear a crowd noise, a roar. There is a football game out there, a few blocks away. I'll have to assume there was a touchdown.

For my readers who can't get enough of my conflicts with my ex-husband.

You want to go here. (You have to read the comments!)

ADDED: If you've arrived at this post looking for information about why I am marrying the commenter Meade (with whom I squabble in these comments), you'll find more information here.

AND: Here's the text of the email I sent to Andrew Sullivan (who wrote this):
Andrew, I don't think you've understood the time line here. And why link to the nasty Pandagon on this one? Your post is really disrespectful to me. If you'd watched the Bloggingheads you linked to, you'd know that my fiancé is someone who has interacted with me in writing on my blog for more than 4 years. We decided to meet in person after an exchange of email in December. We met in January and then, after a some additional email, decided to meet again in mid-February, and then we fell in love. We decided to get married after 2 more weekends and a 10-day spring break.

Why is this something that you choose to mock? Is there something ridiculous about a blogger coming to love someone who she first knew through writing in the comments and developed an affection for over a period of years? Or is it just that we decided to marry within 2 months of meeting each other in person? My parents met in the Army and got married 2 weeks later and loved each other until they died many decades later. I'd really like to know what part of my experience deserves "OMFG."

Where did Jesus get his Y chromosome?

Think about it. Knowing what we know now about genetics but assuming a virgin birth, shouldn't Jesus have been a woman?

"I've learned to have some sympathy for those who are staring down the barrel of the Internet."

So writes Joseph Nocera from behind the wall of TimesSelect (subscriber's link). He used to think that those who "can't adapt to disruptive technologies ... probably deserve their fate," but now, seeing what's happening at the NYT, he's not so sure. He recounts the naysaying about TimeSelect and then comes out with this:
SO it was a bit of a surprise, after all the sturm und drang, to see the early results of The Times's online subscription experiment. They're not half bad. In a news release issued Wednesday morning, the company reported that since it began in mid-September, TimesSelect has generated 270,000 subscribers, half of whom already subscribed to the newspaper (and hence get the new service free) and half of whom were plunking down cold, hard cash.

To be sure, that is a far cry from the million-plus people who spend as much as $600 a year to buy the dead-tree version of The Times, and it's not even remotely close to the 20 million-plus "unique visitors" who come to the Times Web site each month. But it's something. Martin Nisenholtz, who is in charge of digital operations for The New York Times Company, told me that the numbers were "at the high end" of expectations.
We're supposed to believe that? Why would they wall off their columnists for so little money? And what's with saying "TimesSelect has generated 270,000 subscribers"? Generated? Half of those people (including me) got it free as subscribers to the paper version.
It is far too early, of course, to predict whether TimesSelect will ultimately succeed. The roughly 135,000 online-only subscribers could represent a new willingness on the part of consumers to pay for newspaper content online - or not. But what I've wound up wondering is whether, even if it is a roaring success, TimesSelect - and other online subscription models that are bound to follow - will be enough to stop the erosion of the economics that underlie newspaper journalism. I'm not terribly sanguine.
Is it really too early? It looks like a dreadful failure to me. In any case, the real problem, Nocero writes, is that, with or without TimesSelect, on line news reading will erode the journalism business. He quotes one analyst: "For every dollar coming out of the dead-tree pocket, only 33 cents is going back into the online pocket."

By the way, the TimesSelect columnists are recording little podcasts, about 3 or 4 minutes per column. I listened to Nocero's. (Boy, did it take a long time to download! I can download one of my own 1-hour podcasts in about the time it took to get those 3+ minutes.) It's not Nocero just reading his column -- in the style of a Slate podcast. It's more like my idea for podcasting, which is to talk spontaneously about what you've been writing. Nocero confides that he's being rather audacious writing about the NYT, and perhaps they will fire him.

I tested the Maureen Dowd podcast though, just now, and it is not Mo musing about the column, it's a broadcasty voice reading Mo's most recent column. David Brooks? Same thing! Tierney? Same! Friedman? What do you think?

Only Nocero gets podcasty -- as I define podcastiness.

"A betrayal of the law school's liberal values."

Adam Liptak writes about the way Yale lawprofs treat their own -- graduates Clarence Thomas and Samuel Alito and colleague Robert Bork. But why should your opinion of a nominee be any different because he has a tie to your institution? Isn't that cronyism?

Speaking of whoring.

You could vote for me over here. (In the sidebar at the link.)

"Prostitution isolates you, with all its little ways that people not in it don't understand, much in the way some religions do, or drug addictions."

So writes Lisa Carver in an essay called "I Was a Teenaged Prostitute and It Was Kind of Great." Carver, who was nineteen when she took up prostitution, writes:
It's hard to explain certain things, and after a while it's easier to not talk to anyone outside much at all. I thought that as a prostitute, I would no longer be inside a dream; I'd be flung, newly sharp and capable, into life. Actually, I discover, the opposite is true. Prostitution is a complex, shared dream where everyone agrees to not wake up, for just a little longer....

I buy a ticket for France. I have to quit my job because I like it too much.

No one still "in life" will talk about it, and it seems like those who left will only talk about the bad side. But as I walk away from prostitution and drug addicts and gain back my own life and body, I know I'm losing something too. I lose nothingness.

Abandonment has always led to advanced creativity.
Via Hit and Run, which has a lot of comments, but I anticipate better comments here.

"It doesn't change the reality that he was wrongly convicted and the system has to get it right."

So said Keith Findley, co-director of the Innocence Project, here at the University of Wisconsin Law School, speaking about Steven Avery. The Innocence Project did the legal work that freed Avery, who had already served 18 years for a rape that, evidence showed, he did not commit.

Now, Avery is accused of committing a murder:
Steven Avery, the Mishicot man who served 18 years in prison for a rape he didn't commit, will be charged with the murder of a 25-year-old woman who disappeared on Halloween, Calumet County District Attorney Ken Kratz said Friday.

Avery, 43, was the last known person to see Teresa Halbach alive, and his blood was found along with hers in her sport utility vehicle, said Kratz, who expects to file charges early next week.
The police worry that they will be accused of framing Avery:
Kratz and police officials sought to swiftly dispel any notions that Avery is being wrongly accused of a heinous crime for a second time or that Manitowoc County law enforcement officials are trying to frame him. Avery has a pending $36 million lawsuit against the county for wrongful imprisonment.

Kratz said that after Halbach's SUV was found Saturday on the Avery property by a volunteer searcher, it was immediately sealed in a container and wasn't searched until it arrived at the state Crime Laboratory in Madison. No local police had access to it, he said.

And Kratz called it "absurd" that anyone would think that someone trying to frame Avery would not only be able to plant a key in Avery's bedroom but also would be carrying around a vial of his perspiration or some other item with his DNA.
Should Innocence Project be called into question because one freed man goes on to commit another crime? That hardly makes sense, but the passionate feeling for the victim, Teresa Halbach, is very strong -- quite understandably. I'm sure people who work on the Innocence Project are feeling a lot of pressure. I'm getting phone calls and email about it, even though I do not work on the project.

"And yes, he should question their patriotism. Because they're acting unpatriotically."

Glenn Reynolds has that to say about Bush's Iraq speech. That provokes quite an outcry, as I'm sure he expected. He reports "hatemail" and responds:
[T]he Democratic politicans who are pushing the "Bush Lied" meme are, I think, playing politics with the war in a way that is, in fact, unpatriotic. Having voted for the war, they now want to cozy up to the increasingly powerful MoveOn crowd, which is immensely antiwar. The "Bush Lied" meme is their way of getting cover. This move also suggests that their earlier support for the war may itself have been more opportunistic than sincere, which I suppose is another variety of unpatriotism....

[I]t's not "dissent" that's unpatriotic... It's putting one's own political positions first, even if doing so encourages our enemies, as this sort of talk is sure to do.
"Unpatriotic" is a very hot word. If you use it, you've got to know you're going to make the other side steaming mad. They get mad, in part, because it works as such a powerful criticism and hurts their cause.

Creating a fuss over the use of the word "unpatriotic" might be a good strategy for Bush opponents though. Speaking in generalities about the grand tradition of dissent might be a somewhat effective way to detract attention from the specific problems about the current dissent that President Bush raised in his great speech. And in fact, Bush treated his opponents fairly and respectfully in his speech:
Some observers look at the job ahead and adopt a self-defeating pessimism. It is not justified....

And our debate at home must also be fair-minded. One of the hallmarks of a free society and what makes our country strong is that our political leaders can discuss their differences openly, even in times of war. When I made the decision to remove Saddam Hussein from power, Congress approved it with strong bipartisan support. I also recognize that some of our fellow citizens and elected officials didn't support the liberation of Iraq. And that is their right, and I respect it. As President and Commander-in-Chief, I accept the responsibilities, and the criticisms, and the consequences that come with such a solemn decision.

While it's perfectly legitimate to criticize my decision or the conduct of the war, it is deeply irresponsible to rewrite the history of how that war began....

The stakes in the global war on terror are too high, and the national interest is too important, for politicians to throw out false charges. (Applause.) These baseless attacks send the wrong signal to our troops and to an enemy that is questioning America's will. As our troops fight a ruthless enemy determined to destroy our way of life, they deserve to know that their elected leaders who voted to send them to war continue to stand behind them. (Applause.) Our troops deserve to know that this support will remain firm when the going gets tough. (Applause.) And our troops deserve to know that whatever our differences in Washington, our will is strong, our nation is united, and we will settle for nothing less than victory. (Applause.).

UPDATE: You know, back in the days of the Vietnam War, protesters and other anti-war folk didn't give a damn if you called them unpatriotic! In fact, "patriotic" was used as a slur. They called themselves unpatriotic. That's how I remember it -- from where I was at the time (the University of Michigan, 1969-1973).

"A panda, a carp, a Tibetan antelope, a swallow and the Olympic flame."

See, you would have thought they'd just have one mascot for the 2008 Beijing Olympics and it would be -- obvious! -- the panda. But China's having five mascots, including a carp! But it's not so bad. All but the panda seem to look like cute kids:



And remember the kooky Athens Olympics mascots?



What were they thinking?

Anyway, here's what the Chinese were thinking:
The mascots were presented as Bei Bei, Jing Jing, Huan Huan, Ying Ying and Ni Ni - which, put together reads in Chinese "Beijing welcomes you!"

"They reflect the cultural diversity of China as a multiethnic country," said Liu Qi, President of Beijing Organising Committee.

"They represent the enthusiasm and aspirations of our people, Liu Qi added.

Coloured in the five hues of the Olympic rings, the mascots also represent the sea, forests, fire, earth and air.
See, it makes plenty of sense.

IN THE COMMENTS: Starless:
"A panda, a carp, a Tibetan antelope, a swallow and the Olympic flame...What are the contents of Ed's freezer?"

"Hi-Oh!"

"Tracy should never have had children. Tracy didn't like children. She didn't like no one. Tracy wasn't affectionate with nobody."

The words of a member of Tracina Vaughn's family.
[P]rosecutors say... that Ms. Vaughn put her two boys in the bath on Sunday night and wandered off to another room to play CD's. Her current companion, Gary Young, poked his head in after 15 or 20 minutes and, though he did not see Dahquay, assumed the boy had tucked himself behind the shower curtain and then went out for diapers and some beer.

Twenty minutes later, give or take a few, Ms. Vaughn checked on the boys herself.

The boys were 3 years old and 16 months old. The younger child, Dahquay, drowned.

I SHOULD ADD: The linked article, which is quite long, is an effort to portray the mother in a sympathetic light.

November 11, 2005

"These baseless attacks send the wrong signal to our troops and to an enemy that is questioning America's will."

I'm glad to see Bush is forcefully defending the Iraq war. He needs to do that more.

Frontrunners.

WaPo's Chris Cillizza picks the likely frontrunners for the 2008 presidential race. My reaction to lists like this is what it has always been: these are all we've got? I never like any of them. These folks are out in front? Why is there no one better in front of them? At some point, we'll have to get serious and find someone we'll be able to tolerate. But ... oh, how I dislike every single one of these people! I mean I like Russ Feingold, but I can't see him as President. I can never see anyone as President.

What do you think I'm not talking about?

Yesterday, in the comments to my post on "The Apprentice," one of my regular commenters raised -- in three long comments -- a subject he thought I should be addressing. That brought these sensible remarks from another reader:
[P]erhaps you're not familiar with the concept, but there's this thing called "etiquette". The way it works is, this is Ann's blog, and she writes about what she wants to write about. So that there is some organization, she might choose to - say - talk about a silly TV show in one thread, and talk about Supreme Court nominations and the law in another. This makes it easy for the rest of us to be able to read the things we like to read, while skipping the rest.

If you have a discussion topic you'd like to propose to Ann, there's this other thing called "e-mail" that you can use. It's handy - it lets you have a private conversation without the rest of the world listening in. For example, you could suggest that she write about something that you'd like her to write about.

I suppose it is possible that you are acquainted with both of these concepts, and are simply ignoring them because you have something which you feel is so important that it must reach the Internet at once. In that case, there is an admirably simple solution: you can get yourself what is called a "blog", and write about whatever topics you wish, and people who share your interests or who find your writing interesting may join you there.

It's really a very lovely set of concepts.
He's right! But it occurs to me that some readers don't want to reveal their email addresses to me, and I don't mind taking requests, though you can't expect me to address every topic. I can't explain every point of law you want explained, and there are some topics where I don't see myself adding any value. That doesn't mean I don't think they're important. It's an attitude I'm most likely to take about things that are especially important.

Anyway, I thought it might be a good idea to put up a post where it is on-topic to raise new topics. What do you wish I would blog about or blog more about -- or podcast about?

IN THE COMMENTS: My favorite suggestion so far is from SaysMeow:
I'm hoping for a compendium post on "The Althouse Man"--you keep tantalizing us with tidbits but don't give us the full-scale doodle. So far we've learned that:

He joyfully dons his Andy Warhol wig--
Yet he does not look like a Stooge (strange, I thought Moe's haircut was quite a lot like Andy's)--
His facial hair, if any, does NOT resemble the Creepy Guy from "Joy of Sex"--
He doesn't cry in public--
He does not wear shorts, no never--
He's pro-Hadley, anti-Baxendale...or is it the other way around?

But there's so much more we want to know!
Maybe all you readers could also help me out by reminding me of various "Althouse man" elements from bygone posts.

Taking account of race, ethnicity, and religion.

Officially, the French don't:
France's Constitution guarantees equality to all, but that has long been interpreted to mean that ethnic or religious differences are not the purview of the state. The result is that no one looks at such differences to track growing inequalities and so discrimination is easy to hide.

"People have it in their head that surveying by race or religion is bad, it's dirty, it's something reserved for Americans and that we shouldn't do it here," said Yazid Sabeg, the only prominent Frenchman of Arab descent at the head of a publicly listed French company. "But without statistics to look at, how can we measure the problem?"
Should France's policy of not taking account of race, ethnicity, and religion, in light of the recent rioting, make us look more favorably on our own attention to such things?

"We will be able to control what goes on ... in Ave Maria Town."

There are a lot of reasons to move from Ann Arbor to Florida. Personally, I like Ann Arbor, though I haven't been there in decades. My mother grew up in Ann Arbor, and, like a lot of people, I went to college there. Florida? I've been there many times, and if you were trying to entice me to move to Florida, my first question would be where in Florida. I realize it can get very cold in the north and it's usually really hot in Florida -- that's a tie in my book.

But what's this plan to move Ave Maria Law School from Ann Arbor to somewhere in Florida?
"We'll own all commercial real estate," [Tom Monaghan, founder of the school and of Domino's Pizza] declared, describing his vision. "That means we will be able to control what goes on there. You won't be able to buy a Playboy or Hustler magazine in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."
What a creepy vision! I wonder how different the set of students that applies to the Florida version of the school will be from the set that applies to the Ann Arbor school. Obviously, Ave Maria is a school designed to attract Catholic students, but I should think a different sort of student is going to be attracted to this super-sanitized environment than would want to be in Ann Arbor. And what about attracting and retaining faculty? One alumnus complains about the shift in the school's mission, which he'd understood was "to create attorneys who were well versed in Catholic social teaching and the law, who would engage the world and not retreat from it."

Do you think there's something tainted about wanting an untainted environment?

UPDATE: I want to say that I'm not against individuals deciding they want to live in retreat from the world. We all retreat to some extent. I think calling Ave Maria Town a "Catholic Jonestown" is offensive. I deliberately left that catchy epithet from the linked article out of my post. It's plainly wrong to lump all religious retreats together and label them with the name of the very worst one you can think of. It is not inherently wrong to want to live in a convent or a commune. It's not wrong to want to separate yourself from worldly temptations. Not every individual who chooses the life of a hermit should be called a Ted Kaczynsky. Religious (and nonreligious) enclaves should be judged on their own merit.

I have two big problems with Ave Maria Town:

1. Ave Maria is a law school. You can't practice law separate from the real world. You can't retreat and purify yourself. You have to become involved with the complexities of life, not shrink away from them.

2. Ave Maria has an existing faculty and student body who came to the law school that exists now in Ann Arbor. To move the school to Ave Maria Town imposes a radical change on them. Their opinions about whether the move is a good idea need to be taken very seriously. This isn't a matter of an individual deciding to go into retreat. Monaghan is deciding that others, who have adopted one way of life, need to live in a more purified environment.

"Two men in one-foot-tall bee-hive wigs, huge bug-eye sparkly sunglasses, fluffy dresses, bling and long gloves chatted happily."

Fetish Night at the Cardinal Bar -- a once-a-month event, here in Madison.

Attacks that make ordinary people think is that all you've got?

Pseudo-punctilious Alito opponents serve up a morsel of controversy.

UPDATE: Now that the concept of "superprecedent" has been created to beat down the Bush nominees, it's time for a new one -- you know: super-recusal. Some legal scholars attach special significance to what they call super-recusal, which is...

Military blogs.

Here's a nice entry point if you want to read military blogs. There are 576 military blogs written from 17 countries, and you can group the blogs by country or by gender, language, branch, etc. There's also a top 100 list, based on votes by members.

November 10, 2005

"The Apprentice."

Great episode tonight. I don't know why things like that still surprise me. Feel free to spoil in the comments. I have a new favorite character tonight after having a single favorite character since the first episode.

"If you see ten troubles coming down the road, you can be sure that nine will run into the ditch before they reach you."

Calvin Coolidge said that. If I had paid attention to that advice this week, I would have saved $67. But how did I know I wasn't dealing with the one-in-ten-thing that needed a remedy?

Can Congress force television cameras on the Supreme Court?

The L.A. Times reports on a bill that would impose television cameras on the Supreme Court:
Under [Sen. Arlen Specter's] proposal, which he introduced last month, cameras would be removed only if a majority of the justices determined that their presence would undermine the due process of a litigant in a specific case....

The public affairs network C-SPAN broadcasts gavel-to-gavel coverage of House and Senate floor sessions, and the network's Chairman and Chief Executive Brian P. Lamb told the Judiciary Committee that he had written to Chief Justice John G. Roberts Jr. offering similar coverage of the high court.

"The judiciary has become the invisible branch of our national government as far as television news coverage is concerned — and, increasingly, as far as the public is concerned," Lamb said.
I would very much like to see the oral arguments on television, but I don't think Congress ought to be imposing it on the Court. At least two of the justices -- Scalia and Souter -- have strongly opposed cameras in the Supreme Court. I should think there is a decent argument that this would be unconstitutional, violating separation of powers.

What song is playing in your head today?

Some commenters are saying that my post title "Always look on the bright side of life" has got them thinking that Monty Python song in their heads.

Funny, I've got a song stuck in my head this morning. It's Lou Reed's "I'm So Free":
Oh, please, Saint Germain
I have come this way
Do you remember the shape I was in
I had horns and fins

I'm so free
I'm so free

Do you remember the silver walks
you used to shiver and I used to talk
Then we went down to Times Square
and ever since I've been hangin' round there

I get this song in my head every time I read United States v. Ballard:
Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. 215 Criminal Code, 18 U.S.C. 338, 18 U.S.C. A. 338; 37 Criminal Code, 18 U.S.C. 88, 18 U.S.C.A. 88. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought 'by means of false and fraudulent representations, pretenses and promises'. The false representations charged were eighteen in number. It is sufficient at this point to say that they covered respondents' alleged religious doctrines or beliefs. They were all set forth in the first count. The following are representative:
'that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged 'ascertained masters,' Saint Germain, as a divine messenger; and that the words of 'ascended masters' and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard;

'that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged 'ascended masters,' including the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the 'I Am' movement;

'that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments;'
Each of the representations enumerated in the indictment was followed by the charge that respondents 'well knew' it was false.
It's a case about how you really don't want the government delving into the question of whether religious beliefs are false.
The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.
The conviction is upheld, however, because the trial judge excluded this evidence and asked the jury to decide only whether the defendants believed these things. But how do you think about whether they believe something without thinking about whether it's believable? Justice Jackson dissented, in an opinion that's one of my favorites, containing a delightful snark about judges:
I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. [William] James points out that 'Faith means belief in something concerning which doubt is theoretically possible.' Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credility than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.


UPDATE: I've changed the link for the "I'm So Free" lyrics and changed "horns that bent" to "horns and fins." One of the commenters said he thought it was "horns and fins," and that was what I'd always heard too. There are lots of lyrics sites, but how do they know the lyrics? They aren't really authoritative. I'm changing the spelling of "Germaine" to "Germain" too, even though both lyrics sites have the "e." A Google search convinces me that "Germain" is correct. But who is Saint Germain? I assume the references are to the Count of St. Germain: "a courtier, adventurer, inventor, amateur scientist, violinist, amateur composer, and generally mysterious gentleman."

Two things that came in the mail this morning.

1. The book "Drama Kings: The Men Who Drive Strong Women Crazy," by Dalma Heyn. I might take a look at that (not that anyone's driving me crazy). I'll tell you later.

2. A typed letter:
Prof. Ann,

I read with dismay your 11/6/05 column in the Journal/Sentinel on Bush and Alito.

I concluded that during the past 56 years my alma mater must have slipped considerably.

I hope that the extent of your teaching duties consists solely of teaching Tiddle-winks to over-pampered fraternity and sorority students.

The problem with Roberts and Alito is that while they may have been born with good brains; the poor devils have no hearts. Unfortunately, Bush has neither!
He added in handwriting:
And he is a damn liar!!

John Roberts to fulfill a year-old commitment to judge a moot court competition.

At Wake Forest University. Remember that the next time you feel like getting out of a commitment on the ground that you're very busy or something came up.

Always look on the bright side of life.

Chai Soua Vang, sentenced to life without parole for murdering six persons:
He called Tuesday the happiest day of his life, saying he would no longer have to deal with child support and mortgage payments.

Does the ADA just enforce existing rights for prisoners?

Linda Greenhouse reports on the oral argument in a key federalism case -- United States v. Georgia -- about whether prisoners can sue the states for damages for violations of the Americans With Disabilities Act. This is another one of those cases where the question is whether Congress has successfully abrogated sovereign immunity. The answer depends on whether the statute fits the Fourteenth Amendment power -- that is, whether the law is a remedy for the violation of Fourteenth Amendment rights (as opposed to the creation of new rights).

The man in the case is a paraplegic confined to a 12 feet by 3 feet cell 23 to 24 hours a day, where he can't turn the wheelchair around and lacks adequate bathroom facilities. He says "that guards leave him sitting in his own waste rather than assist him."

Greenhouse observes that the Justices seemed to think that the ADA in this situation dealt with mistreatment that would also violate constitutional rights, so providing for suits for damages would be properly characterized as an appropriate Fourteenth Amendment remedy.
Chief Justice Roberts posed one of the first questions. "Are you suggesting that the A.D.A. just tracks the Constitution and doesn't add to the burden on state officials?" he asked [Solicitor General Paul] Clement.

There was at most a "narrow band" of actions that the law would require but that the Constitution did not demand, Mr. Clement replied. "The prophylactic gap here is not large," he added....

Samuel R. Bagenstos, a law professor at Washington University in St. Louis and a specialist in disability rights, represented the inmate and shared the government's side of the argument with Mr. Clement. Chief Justice Roberts addressed the same question to him, adding, "I'm just wondering if that's a reasonable reading of the A.D.A., which I had always understood to change the rights of the disabled."

Mr. Bagenstos replied that there was little difference in the specific context of prisons because "this is one of the few areas where the government has an affirmative constitutional duty."

Gregory A. Castanias, a Washington lawyer arguing for Georgia, said the inmate's claims in this case went well beyond constitutional requirements. Several justices then suggested that the law might be interpreted to apply only to constitutional violations. Justice Scalia asked, "To the extent that it includes constitutional violations, why isn't that lawsuit perfectly O.K.?"
This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights.

In the classic case, as characterized in later cases, the Voting Rights Act of 1965 proscribed various practices but did so as a way of controlling race discrimination, which, of course, violates the Fourteenth Amendment. So the rights prisoners have under the ADA may be more extensive than the Constitution alone gives them, but they could still be viewed as a way to enforce constitutional rights. Complicated, but it looks as though the prisoner will win.

Is Alito libertarian and, if so, what should liberals think about that?

Lawprof Ilya Somin identifies a "libertarian streak" in Samuel Alito. What is the evidence?

1. Two Free Exercise cases -- which I called attention to here. Alito was quick to see a nonneutral policy and to invoke strict scrutiny protection for plaintiffs who asserted the government burdened their exercise of religion.

2. Alito's dissenting opinion in Rybar, a Commerce Clause case, which would have limited federal power with respect to gun possession. Somin's point is not that Alito cares about gun rights. (The opinion says nothing about the states' power to ban gun possession.) He's guessing that Alito would leave more room for states to protect liberty interests than the majority of justices who recently decided that federal law trumped state law in the medical marijuana case, Raich. Notably, Scalia was in the majority in Raich, and Somin's point is that Alito is a stronger supporter of state autonomy than Scalia. There are two problems with reading Rybar as showing a "libertarian streak." 1. States can also use their autonomy to restrict liberty (unless rights are enforced to limit their anti-libertarian policy experiments), and 2. Alito's Rybar dissent looks like the work of a lower court judge who is mainly trying to apply a new Supreme Court precedent correctly, so we can't extrapolate that he would behave the same when he is a Supreme Court judge. But here's Somin's point:
In an era when control of Congress and the presidency will often be in the hands of conservative Republicans, constitutional limits on federal power benefit liberals at least as much as conservatives. Many liberal policies have far better political prospects in "blue states" than in Washington. To cite a few recent examples, Republicans have intruded on states' traditional control over education policy, have overridden state laws legalizing medical marijuana (as in Raich), are trying to use federal power to undermine gay marriage laws established at the state level, and are currently litigating a case before the Supreme Court that would enable the federal government to override Oregon's decision to legalize assisted suicide.
For the last 20 years, I've been making the argument that liberals should see the good in protecting state autonomy. What I find is that they worry so much about the harm states might do with autonomy that they won't take the risk in the hope of getting benefits. Part of this mindset is that they still believe they can get the policies they want from Congress and that the power to impose that policy on all of the states is too good to sacrifice. I haven't thought so much about whether libertarians as opposed to liberals should find state autonomy appealing. Maybe they have a different mindset and have different predictions about what states would do with more autonomy.

3. Free speech:
In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students' religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of "harassment" and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito's jurisprudence. Liberals, too, have reason at least partially to embrace Alito's positions here. After all, school anti-harassment codes can just easily be used to stifle gay activists' criticisms of religious conservatives as the reverse. And the latter probably control more school boards than the former do.
4. Immigration:
Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government's oppression of women and on her support for women's rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution.
How should liberals react to the Alito nomination? Bush has the appointment power and will pick from the pool of those he imagines will be conservative on the Supreme Court. Given the range of possibilities, what should liberals prefer? Perhaps they should prefer the most ambiguous sort of "stealth" nominee with the hope that he or she will turn out to be a liberal on the Court. (Hence, the lack of opposition to Harriet Miers.) But Somin makes the argument that liberals should find the libertarian sort of conservative at least somewhat appealing:
[T]hey should think seriously about whether they would rather have a conservative with a significant libertarian streak like Alito or a pro-government conservative who will be just as likely to overturn Roe, but less likely to vote to restrict government power over religious freedom, free speech, or immigration.

Finally some recognition for a Wisconsin achiever.

Johnny Lechner, the "genius of self-promotion" who has made a lucrative career out of not graduating from college, makes the front page of the NYT:
[T]he makers of Monster Energy Drink deliver 30 cases a week, along with advertising posters and condoms, to the house where Mr. Lechner lives and parties, in exchange for his endorsement of Monster as "the official energy drink" of his 12th college year.

He has signed with the William Morris Agency, which is marketing a reality television series based on his life at the University of Wisconsin at Whitewater. And in recent days he has referred to interviews with The New York Times on his personal Web site, anticipating new publicity from this article.

The dizzying whirl of sudden celebrity has not been easy, Mr. Lechner said.

"I'm really stressed out," he said. "All the money, the book deals, the agents. It's just crazy."
Of course, he has a website. How could you even begin to be a genius at self-promotion without a website. Clearly, he's doing especially well by remaining a student, so any arguments about how he needs to get on with his life don't make sense. Worry about graduates who are going nowhere, not him.

Why women don't like The Three Stooges.

That men love The Three Stooges and women don't is one of the classic old topics in the unending discussion of the differences between men and women. Without researching the conventional theories on the subject, I'm going to assume that people are following the rule I say scientists follow when they report research on the differences between men and women: Portray whatever you find to be true of women as superior. So it would go that men are simple-minded and love violence, while women appreciate complexity and abhor violence. (I'm eschewing this digression right now.)

I was talking about The Three Stooges on Audible Althouse #19, last night, tracking the blog post of mine about that Stanford study and, as is the Audible Althouse way, digressing:
When I was a kid, there was a real tomgirl in the neighborhood who just loved The Three Stooges, loved them so much -- really thought Moe was funny. Most of the girls just thought Curly was kind of sweet and liked Curly a lot but found Moe really a little too frightening, a little too disturbing. And Larry was just ... uh ... Larry was ... kinda ugly.
This prompted Steve Donahue, in the comments here, to defend Larry Fine:
Larry is indisputably the funniest of the Stooges. Much like the Zippo you defend, Larry is reliable and funny in an understated way. If you ever get a chance to watch another Stooges Short, do nothing but watch Larry. His reactions to the physical comedy are excellent; it's easy to forget when you watch him that they're not really smacking the hell out of each other.
I respond to Steve over there in the comments:
Steve: That was a vague memory of what young girls (other than the tomgirl) thought of the 3 Stooges in the late 50s/early 60s. I think we were distracted by Moe and Curly, who called more attention to themselves. I'm willing to believe what you say about Larry is true. In fact, I'd rather completely concede it than watch the 3 Stooges. I do think guys who love the 3 Stooges and comment on the fact that women don't are failing to take adequate account of how physically ugly these men were.
So, yeah, I wanted to front-page this point. Maybe if The Three Stooges were physically attractive -- at least to The Marx Brothers level -- women might be willing to watch them. The assumption is that women want more language-based humor, while men are more visual, but maybe a big part of the problem is that the humor is visual and the men are ugly.

Think about it! Which comediennes do men respond to? (Sorry for being so heteronormative here!) Who are the comediennes men don't like so much? There's a physical attraction element here!

And you know how women are always saying the number one thing they want in a man is a sense of humor? You know they aren't picturing Larry Fine coming into their lives.

UPDATE: "You know they are picturing Larry Fine" was a typo, now corrected. And believe me, it wasn't a Freudian slip. I am not longing for Larry!

November 9, 2005

Budhia, the three-year-old marathon runner.

Sold by his poor mother for 800 rupees, the tot is famous now in India. He's run 33 miles in 6 hours. Child abuse? Or is this some super boy?
[His mentor] Mr Das, a judo coach, noticed Budhia's talent when scolding him for being a bully.

"Once, after he had done some mischief, I asked him to keep running till I came back," Mr Das said.

"I got busy in some work. When I came back after five hours, I was stunned to find him still running."
I would like to believe in Superboy, but I think something is very wrong here.

Audible Althouse, #19.

The new podcast is an hour long. Topics: male and female brains, 3 Stooges comedy, 3 Stooges sex, the Marx Bothers, some Halloweenish thoughts about the new Supreme Court, heteronormativity, military memoirs, lawprof bloggers, good and bad commentary about Samuel Alito, why so many Catholics have been nominated to the Supreme Court, the affinity between physicists and religionists, the politics of Intelligent Design, and the demand for nuanced reporting on the riots in France.

A political vault over the casket of Rosa Parks.

Here is Jesse Jackson's execrable anti-Alito rant. Ugh.

UPDATE: I deleted the long quote. I didn't like the way it looked, taking up all that space at the top of the blog. Go over there and read it. It's disgusting and completely distorted and unfair to Alito.

ANOTHER UPDATE: Todd Zywicki takes special interest in Jackson's promotion of the "Constitution in Exile" conspiracy theory.

MORE: Steven Kaus at Huffington Post reads this post as flaking out over Jackson's use of the term "Constitution in Exile." Makes you wonder about Kaus's ability to read and present things straight, doesn't it? I admit I could have itemized what I didn't like about Jackson's piece, but I just didn't want to bother with it.

"The guy who says 'you stole my stuff' is always the jerk."

The movie "Jarhead" includes some stories that did not appear in the memoir "Jarhead." If those stories did appear in another memoir, do the moviemakers owe its author?
William Broyles Jr., the screenwriter and former marine who adapted Mr. Swofford's book for the movie, said that Mr. Turnipseed was confusing his own experience with the received wisdom of being a marine.

"The joke about the gas mask has been told 10,000 times," Mr. Broyles said by phone. "It is not his joke or mine."

Mr. Broyles admits that there are coincidences. But he says they are just that.

In [Joel] Turnipseed's book ["Baghdad Diary"], a colonel "burst onto the stage, grabbing the microphone from its stand while still in stride, like Wayne Newton doing Patton."

In the shooting script for "Jarhead," stage directions command that "Lieutenant Colonel Kazickis mounts a makeshift stage, grabbing a microphone in mid-stride like a Vegas M.C." What follows is a profanity-laced scene of call and response that is remarkably similar in both plot and language to the scene that follows in Mr. Turnipseed's book.
So are you with Turnipseed or Broyles on this one? Before you answer, compare how the two men express themselves.

Turnipseed:
"There is no way that I am going to come out ahead on this," he said. "The guy who says 'you stole my stuff' is always the jerk, but this is not something that is based on a scene I did; it is verbatim dialogue."
Broyles:
"I feel bad that he feels bad," Mr. Broyles said, adding that he had read and admired "Baghdad Express." "Maybe some of it stuck in my mind or maybe it was already there," he said.

"I don't have any conscious memory of using anything out of his book," Mr. Broyles said. "I can remember reading it and thinking, this guy really has it down. It was one of those unintentional coincidences that is frustrating for him, but there has been no effort to take anything from him."
I'd say it's obvious that they need to give Turnipseed a lot of money right now. And have him sign a statement not to say anything more about your movie. Because when he talks and Broyles talks? Everyone likes Turnipseed. And tell Broyles to shut up about it too.

Intelligent design.

If you're worried about Kansas:
The fiercely split Kansas Board of Education voted 6 to 4 on Tuesday to adopt new science standards that are the most far-reaching in the nation in challenging Darwin's theory of evolution in the classroom.

The standards move beyond the broad mandate for critical analysis of evolution that four other states have established in recent years, by recommending that schools teach specific points that doubters of evolution use to undermine its primacy in science education.
You may want the courts to stop this immediately.

But remember that democracy works too:
Voters on Tuesday ousted a Pennsylvania local school board that promoted an ''intelligent-design'' alternative to teaching evolution, and elected a new slate of candidates who promised to remove the concept from science classes.
ADDED: It's too simple, however, to point to what happened in Dover, Pennsyvania as proof that democracy is all the correction that is needed. That vote took place in the context of an ongoing trial:
For the last six weeks, the teaching of intelligent design has been challenged in federal court by a group of Dover parents. They said the concept is a religious belief and therefore may not be taught in public schools, because the U.S. Constitution forbids it. They also argue that the theory is unscientific and so has no place in science classes....

The trial, which attracted national and international media attention, was watched in at least 30 states where policies are being considered that would promote teaching alternatives to evolution theory.
We have to take into account the effect of this litigation on the voters:
1. It may have educated and persuaded voters that teaching intelligent design is a bad idea.

2. Even if they still like the policy, they may want to avoid the bad publicity the litigation brought to their town.

3. They may still like the policy but be averse to the expense of the litigation.
Without lawsuits (and the threat of them) the democratic process would play out differently.

"Heated bra aims to save the world."

That's a headline at the BBC website.

A reinvigorated Supreme Court.

Linda Greenhouse describes the Supreme Court "in the midst of a generational shift": an aging Justice tells the new young Chief Justice to call them by their first names ("I'm Nino"); Justice Ruth Bader Ginsburg was seen about town "laughing and kidding" with her husband; Justice Thomas asked two questions at an oral argument the other day (amazing!); Justice Stevens cracked a (very mild) joke on the bench the other day.

As Greenhouse analyzes it, it's not so much the arrival of a vigorous new man as being free of the the sickly old man:
The explanation for the court's mood is no mystery. It is relief. The justices who lived through the long year of Chief Justice Rehnquist's battle with thyroid cancer are survivors of a collective trauma, the dimensions of which are obvious only in retrospect.
After a description of that "trauma," which culminates at Rehnquist's funeral, Greenhouse's article ends with these two paragraphs:
Flash forward barely two months to an ordinary argument day in the courtroom, when a light bulb above the bench suddenly exploded with a jarring bang that brought court police officers to their feet. There was a tense silence before the benign explanation became clear. It was "a trick they play on new chief justices all the time," Chief Justice Roberts commented.

The incident occurred on Halloween, not a day when the chief justice could linger in his chambers. He had to get home, where, disguised as Groucho Marx, this father of two young children greeted the neighborhood trick-or-treaters at his front door.
The NYT, perhaps, found it "unfit to print" a transition that would have connected the trauma of William Rehnquist's death to the Halloween lightbulb burst and the new Chief Justice dressed as a zany comedian. Surely, it must have been tempting to write that it was the ghost of the old Chief that burst the bulb and that the new Chief's costume speaks of lighthearted happiness, while the dying old Chief, traumatizing everyone, by contrast seemed a ghoul.

November 8, 2005

"I love '24.' I watch it all the time."

John McCain, just now, on "The Daily Show."

"Paris is burning, civil war, war zone, race riots -- the headlines, especially on TV, often have no nuance."

That's one of many complaints by the French about the bad press it's been getting. Your country is going to hell and you're begging for nuance:
The conservative Le Figaro was indignant about the way U.S. media reported from riot-hit areas such as Seine Saint Denis, the rundown area between the capital and its Charles de Gaulle airport to the north.

"American newspapers don't hesitate to compare Paris to Baghdad or Seine Saint Denis to the Gaza Strip and to call the crisis a 'Katrina of social disasters'," an editorial fumed in a reference to the recent hurricane.
I wonder how much nuance there was in Le Figaro's reports about Katrina.
Other commentators objected to the way foreign media stress the ethnic backgrounds of the rioters and the racial discrimination they complain about -- issues less prominent here because France officially does not recognise it has minority communities.
Aspirational? Or too convenient?
But the critics were not without self-criticism.

Le Figaro said the riots were "too good an opportunity to pass up, an opportunity to mock the country that claims to have invented human rights and that's always ready -- yes, it's true -- to lecture the rest of humanity."

"The tip of a cosmic iceberg."

Physics and astronomy professor Lawrence M. Krauss writes about science and religion:
Certainly science has, in the past century, validated the notion that what we see is far from all there is. We cannot directly see electrons but we now know that material objects we can hold in our hand are actually, at an atomic level, largely empty space, and that it is the electric fields associated with the electrons that keep them from falling through our hands....

Thus, it is perhaps not too surprising that when one approaches the limits of our knowledge, theologians and scientists alike tend to appeal to new hidden universes for, respectively, either redemption or understanding.

The apparent complexity of our universe has compelled some evangelists, and some school boards, to argue that the natural laws we have unraveled over the past four centuries cannot be enough on their own to explain the diversity of the phenomena we observe around us, including the remarkable diversity of life on earth.

For very different reasons, but still without a shred of empirical evidence, a generation of theoretical physicists has speculated that the four dimensions of our experience may themselves be just a grand illusion - the tip of a cosmic iceberg....

Religious belief ... may itself have an evolutionary basis. There has been talk of a "god gene": the idea of an early advantage in the struggle for survival for those endowed with a belief in a hidden patrimony that gives order, purpose and meaning to the universe we experience.

Does the same evolutionary predilection lead physicists and mathematicians to see beauty in the unobserved, or unobservable? Does the longstanding human love affair with extra dimensions reflect something fundamental about the way we think, rather than about the world in which we live?

Finding a sunny spot amid the long shadows.

Even this late in the fall, students bask on Bascom Hill:

Bascom Hill

Lawprof bloggers.

Daniel Solove is keeping track of all the lawprof bloggers -- at least the ones who want to be kept track of: Three of the five Wisconsin lawprof bloggers aren't on his list, as he notes here. Maybe the three he doesn't include would fall short of his standard for what makes something a lawprof blog:
There are a few blogs by law professors that I haven’t added to the census, as these are blogs solely about personal hobbies or experiences without connections to the law or the life of law professors. I discussed my decision not to include these blogs here. ... Professor Stephen Bainbridge has a blog about wine, but I am not listing it because it has no legal themes at all. But it’s a neat blog nonetheless! Anyway, there is no strong litmus test for inclusion, just at a minimum some posts about issues relating to law, academics, politics, or the life of law professors, law students, or lawyers.
This is an especially interesting question for me as I'm going to write a paper for a blogger conference about the value of doing a lawprof blogging that's not confined to law subjects. There's something of a trend toward staying very on-topic as a lawprof blogger. I'm (obviously) big on the countertrend.

Solove is taking special interest in the gender imbalance among lawprof bloggers:
Of the bloggers, 41 are female and 141 are male. There are 13 new female bloggers and 39 new male bloggers [in the last 5 months]. Female bloggers increased by 46% and male bloggers increased by 38%.
Things I'd count if I had the time right now: percentages of males and females doing group blogs versus solo blogs; the percentages of males and females doing focused law blogs versus multi-topic blogs. And it would be nice to know the male/female balance among lawprof bloggers who don't talk about law at all! I'd also like to know whether the new bloggers are disproportionately going into group blogging opposed to solo blogging and focused law-blogging as opposed to multi-topic blogging.

And I don't like the term "multi-topic blogging." I need some time to think up a better term than that one, which seems to connote an identifiable set of topics as opposed to an approach to blogging that that lets you talk about whatever strikes you as worth writing about at any given moment of your waking life. I thought of "well-rounded blogging," but I think that's has a silly self-promoting ring.

(Links via Instapundit.)

Tom DeLay and the Texas Courts.

In the field of Federal Courts law -- where I've labored for twenty years -- there is a well-aired debate about the parity of state and federal law. Opinions about the difficult doctrine in this area often have to do with beliefs about whether there is something inferior about state courts. Liberals -- and others -- have long fretted about the problems of being relegated to state courts. (See Burt Neuborne's classic article "The Myth of Parity" and the many, many articles that cite it.)

In this light, consider the look at the Texas state courts Tom DeLay's case provides. The NYT reports:
One of only seven states to elect all of its judges on partisan tickets, Texas, some critics say, all but invented the million-dollar judgeship.

With prosecution and defense objecting to a string of judges, the DeLay case has produced a conundrum: can a partisan Republican defendant appear to get a fair trial from a partisan Democratic judge, as revealed by the political contributions the judge made? Traditionally, the focus has been on the money the judges received.

"Judges in Texas swing the gavel with one hand and take money with the other," said Craig McDonald, director of Texans for Public Justice, a nonpartisan group that tracks the influence of money and corporate power in the state.

Mr. McDonald called the campaign gifts to the judges legal yet highly suspect, and traced the ballooning costs of judicial races to the assault on Democratic power in Texas by the presidential adviser Karl Rove.

Thomas R. Phillips, chief justice of the Texas Supreme Court from 1988 to 2004 and an opponent of partisan judicial elections, linked the trend to events long before Mr. Rove's efforts. "We were probably the first state in the nation to make judicial races as expensive as hotly contested regular political campaigns," he said.

In the prosecution of Mr. DeLay, the powerful Texas Republican and former House majority leader who faces charges involving illegal corporate campaign donations, the question of judicial impartiality was answered in the negative. The judge, Bob Perkins, who was shown to have made about 30 contributions totaling $5,255 to Democratic candidates and causes since 2001, was replaced at a hearing in Austin last Tuesday, setting off a round of judicial hot potato.

The next to be handed the case, the district administrative judge, B. B. Schraub, a Republican, recused himself after a Democratic challenge. The case then went to the chief justice of the Texas Supreme Court, Wallace B. Jefferson, a Republican and perhaps the most partisan of all, who quickly handed off the case to an appointee, where it remains apparently for good.

The last man standing was Pat Priest, a 65-year-old semiretired judge from San Antonio. He is a Democrat, and he acknowledged making campaign contributions himself, but only of $150 each to three candidates for the Texas House last year.

"That's it, I'm a tightwad," Judge Priest said in an interview....

The complaints against the Texas judicial system have a long history. In 1987, "60 Minutes," in a program called "Justice for Sale," showed Texas Supreme Court justices taking hundreds of thousands of dollars in campaign donations from lawyers appearing before them. Eleven years later, "60 Minutes" found that little had changed.

In 1998, Texas for Public Justice issued its own report, finding that the seven Texas Supreme Court justices elected since 1994 had raised $9.2 million, of which 40 percent came from interests with cases before the court. A survey taken for the court itself, the group said, found that nearly half of the judges themselves thought that campaign contributions significantly affected their decisions.
If you don't like DeLay and are tempted to laugh to see someone you loathe getting a harsh deal, remember that concerns about the inferiority of state courts usually arise in a context where the person getting the brunt of the problem is even more unsavory than a member of Congress.

Another Saddam defense team lawyer assassinated.

Terrible.
The assassination of a second lawyer associated with the trial was likely to raise new questions about whether this country can conduct such a sensitive prosecution in the midst of insurgency and domestic turmoil.

Following al-Janabi's death, members of the defense team said they had suspended further dealings with the special court until their safety is guaranteed. Al-Ubaidi said that the entire defense team had rejected an offer of guards from the Interior Ministry, pointing to frequent Sunni Arab accusations that ministry forces or Shiite militias linked to the government have killed members of the minority that was dominant under Saddam.
How can it be a fair trial when the defense lawyers are in fear for their lives?

(Note: there are 1,500 lawyers on the defense team, according to the linked article.)

Cries of pain heard.

The Washington Post's "Campaign for the Supreme Court" blog linked to my post about Alito, the FMLA, and Larry Tribe. This led one "SK" to write:
While I think many criticisms of Alito have been overstated, I wish you wouldn't have given Ms. Althouse the tie of day. Her ability to talk with people who may disagree with her rivals that of a four year old.
Well, maybe a four year old lawprof! I guess SK is referring to the way I wouldn't let Max (in the comments) get away with obfuscation. I kept trying to focus him on the real issues and rejecting answers that were not responsive. [ADDED: Or was it just the way I pointed out the Tribe was wrong?]

Then there's Roy at Alicublog, who linked to this post of mine (which concludes "Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion?"). He writes in an update (after a wisecrack that reveals he seems to know nothing about Legal Realism, Critical Legal Studies, and ordinary left-wing political talk about law):
She teaches law? Jesus fucking Christ.
One needs nerves of steel to stay in the debate about law these days.

CONFESSION ADDED: For the longest time I was assuming that "the tie of day" was some sort of idiomatic expression I just didn't happen to know. Then a commenter made fun of the phrase and I realized for the first time that it was supposed to be "time of day." I'm sitting here in a café now laughing like a fool!

Scientists: remember to portray whatever you find to be true of women as superior.

I've said it before, and I must repeat, the rule is: If you do scientific research into the differences between men and women, you must portray whatever you find to be true of women as superior. And when you read reports about scientific research into the differences between men and women, use the hypothesis that the scientists are following that rule. It makes reading the reports quite humorous.

Take this one, for example, which happens to be about humor. Some Stanford University scientists wired up men and women, showed them a bunch of cartoons, and watched the way their brains lit up:
But some brain regions were activated more in women, including both the left prefrontal cortex and the mesolimbic reward centre.

The researchers say their findings suggest women place a greater emphasis on the language of humour, possibly employing a more analytical approach.

They also believe that the women in the study were less likely to expect the cartoons to be funny - so when they were, their pleasure centre lit up with greater intensity than their male counterparts.

Professor Reiss said: "Women appeared to have less expectation of a reward, which in this case was the punch line of the cartoon.

"So when they got to the joke's punch line, they were more pleased about it."

The researchers also found that the funnier the cartoon, the more the reward centre was activated in women.

That was not the case in men who seemed to "expect" the cartoons to be funny from the start.

Professor Reiss said the finding that women's reward centres might be more sensitive to emotional stimuli, if confirmed by follow-up studies, might explain why they appear to be more vulnerable to depression....

However, he told the BBC News website: "I would agree that women are much more analytical in terms of humour, but to extrapolate from this study, and draw conclusions about clinical depression is probably a step too far."
To test my theory about whether scientists are following my rule, try rewriting their conclusions as if they were following the opposite rule. That is, take the same basic data, and write their statements as if they were leaning exactly as much toward portraying what is true of the male as superior.

I remember the days when people would routinely and openly characterize whatever was true of the male as superior, and I'm glad those days are over (at least in the U.S.). But leaning in the other direction isn't the answer. It's patronizing. And it's unscientific! I understand the motivation of the scientists, though. I think they have reason to be afraid not to couch their findings this way.

UPDATE: I like the title on the AP version of the story: "Women May Enjoy Humor More, if It's Funny." I can't help jumping ahead to the news: Women may enjoy sex more than men too -- if it's good. Ah, and that's the big problem -- isn't it? -- for both humor and sex: Men are perfectly happy with a lower quality experience, and as a result there is less available that works for women. It's a life of "Three Stooges" comedy and "Three Stooges" sex.

November 7, 2005

"The claims that Alito is a 'far-right activist' are laughable, except to far-left activists."

Stuart Taylor weighs in on the treatment of Samuel Alito. (Via How Appealing.)
He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty, and fairness.

The American people will figure this out. Any effort to filibuster Alito seems very likely to fail, and likely to backfire against Democrats.
That's what I've been saying too.
Alito will try as hard as anyone -- and far harder than O'Connor -- to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito's opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.
I devoutly hope so.

Does the title law professor inspire confidence that you're going to hear an accurate presentation of the case law?

Law professors have been so eager to tell us that judges aren't really judges. Have they ended up convincing you that law professors aren't really law professors?

"We're going to destroy everything."

Blogging the riots in France.
"Guys, stop destroying everything, it's pointless, I don't think Bouna and Zyed would be proud of you, avenging them by burning everything, by attacking innocent people."

Alito and the Family and Medical Leave Act -- Part 5.

Harvard lawprof Laurence Tribe on the FMLA case:
YOU CAN'T help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord ''equal protection of the laws."

The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the ''pervasive sex-role stereotype that caring for family members is women's work." The court accordingly held Congress empowered to ''dismantle persisting gender-based barriers to . . . women in the workplace." Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?
Talk about doing a double take! Is this really by Larry Tribe?

The "nearly identical" Chittister case didn't involve caring for a family member. It involved self-care. Tell me, Professor Tribe, when men are sick, don't they stay home? I'm really having a hard time seeing what gender discrimination Congress is dismantling there.

The Supreme Court's case (Hibbs) was about caring for a family member, but even there, as I've written here too many times already, the Court was changing the way it applied its own test, a test that Alito was bound by when he decided his case. The Fourteenth Amendment law in question requires that Congress be providing a "congruent and proportional" remedy for the states' violation of Fourteenth Amendment rights. It was actually extremely hard to portray the states as violating Equal Protection in a way that went with the leave benefit, as Justice Kennedy -- no conservative firebrand -- explained in his dissent.

Anyway, I'll give Tribe credit for not saying that Alito found the Family and Medical Leave Act unconstitutional, though he's hiding the ball by not admitting that the commerce power supports it, and that Alito's case was only about whether an individual could sue the state for retrospective relief. Under Alito's opinion, states are still bound by the FMLA and their employees can sue to get their jobs back if the states don't follow these requirements.

Tribe's eagerness to slam Judge Alito shows.

UPDATE: There are two post-Hibbs court of appeals cases that say the self-care provision doesn't fit the Fourteenth Amendment -- that is, the result in Chittister is still correct.

MARY TOUVELL v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, 422 F.3d 392 (6th Cir. 2005):
[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of discrimination by the states regarding the availability and consequences of family-care leave, there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did, target similar discrimination. On the contrary, the self-care provision appears to have been social legislation designed to protect the seriously ill and their families regardless of gender. While this may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment immunity of the states from private suit for damages.
KATHLEEN BROCKMAN v. WYOMING DEPARTMENT OF FAMILY SERVICES, 342 F.3d 1159 (10th Cir. 2003):
Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA's § 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self-care provision. First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S. Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S. Rep. No. 103-3, at 12; H.R. Rep. 101-28(I), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.

"Court Choice Is Conservative by Nature, Not Ideology."

That's the title of a quite long, front page piece in the NYT by Janny Scott that I think marks a turning point in opinion about Samuel Alito. The NYT has already editorialized against Alito and has seemed to be eager to paint him as an ideologue who deserves a good Borking. Scott's article portrays Alito as a man of ideal judicial demeanor, the furthest thing from an ideologue:
Mr. Alito, the analytical, circumspect son of an analytical, circumspect father, who rose to become a federal appeals court judge and is now President Bush's nominee to become the next justice of the Supreme Court, is remembered from those days in the Office of Legal Counsel for his superior research powers, his probing brain, his wrestling with the questions and his disinclination to see any issue as a slam dunk.

It remains to be seen what kind of justice Judge Alito might turn out to be, if he gets the chance: whether, for instance, he is the upper-case conservative that the right may hope for and many on the left fear. An examination of several chapters in his life suggests he is conservative by temperament, upbringing and experience - conditions that appear to have shaped his approach to life and his work more than any narrow ideological niche....

Throughout his life - at Yale Law School, as a government lawyer, as a judge on the United States Court of Appeals - Judge Alito has earned respect, even friendship, across the political spectrum. Some who describe themselves as liberals say they admire what they call Judge Alito's meticulousness and fair-mindedness - traits he appears to have come by early in life.
There's much, much more in that vein. The photos are awfully sympathetic too:



Perhaps the NYT has gotten the message that mainstream liberals are going to look bad opposing this man.

"So many of the brightest stars in the conservative legal firmament are Catholics."

WaPo's Alan Cooperman explains why, in recent years, so many Catholics have been chosen for the Supreme Court. (Samuel Alito will be the fifth Catholic on the Court.)
[USC Political Science professor Howard] Gillman believes that beginning in the 1960s, many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," particularly on abortion, funding for parochial schools and restrictions on religion in public places. "I think you're seeing the fruits of those efforts now," he said.

Bernard Dobranski, dean of Ave Maria School of Law, a Catholic institution founded in 2000 in Ann Arbor, Mich., said the number of highly qualified conservative Catholic lawyers is also a tribute to the strength of Catholic schools, the determination of immigrants to educate their children and a rich tradition of legal scholarship in the Catholic Church.

A hallmark of that tradition is the belief in "natural law," a basic set of moral principles that the church says is written in the hearts of all people and true for all societies. Though long out of favor in secular law schools, the natural law approach is resurgent among conservatives, Dobranski said.

Another reason for the prominence of Catholics in conservative legal circles is that many have graduated from Ivy League colleges and law schools. Attending those schools has practically been a prerequisite for the clerkships that launch high-flying legal careers.

Evangelical Protestants are also becoming more visible on Ivy League campuses and at top law schools. But, said Notre Dame's Bradley, "I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing."
Interesting. The article also notes that Justice William Brennan, the Court's last passionate liberal, was also Catholic. Liberals are missing something if they lose the sense that rights are real and substantial. As I listen to the attacks on Judge Alito, I hear, relentlessly expressed, the idea that law is political and judges are all ideologues who, given power, will work their will on us. Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion ?

The unpajama'd Jarvis.

Jeff Jarvis is talking about Pajamas Media here and here. He's especially stirred up about their choice of Judith Miller as the keynote speaker at their new-name-unveiling event. But he also doesn't get their business model. And, like me, after blogging negatively about PM, he got a phone call from Roger L. Simon. Now, Joe Gandelman is picking up the Jarvis-Pajamas story. Joe, is that your phone ringing?

A few things about "heteronormative."

Here's a Harvard Crimson opinion piece by a student named Travis Kavulla that compares the older term “homophobia,” which makes an accusation of bigotry, and the newer "heteronormative," which protests the presumption that everyone is heterosexual. "Homophobia" is a stronger term, but, as such, it asks for less: stop being hateful toward gay people. "Heteronormative" is less of an insult, but it asks for more:
[O]n college campuses, the quest to end heteronormativity is having some real consequences. Responding to complaints that dorms that house those of the same sex together are heteropresumptive, a handful of liberal arts colleges have taken down those bothersome gender barriers entirely.

And for some years now, BGLTSA has been tilting at windmills to transform Harvard’s “gendered” bathrooms into “gender-neutral spaces.” The argument for the change is that those—and here’s another term to add to our overpopulated lexicon—“identifying” as transgendered feel alienated from gender-specific bathrooms, that they cannot be classified by those silhouetted stick figures, and so require a totalizing change to make them feel comfortable....

Caving willingly to pressure, Wesleyan College’s imprimatur has been accorded to a group that wants to educate professors and incoming freshmen on the use of the transgendered pronoun “ze” and its possessive “hir.”

Perhaps what’s most disconcerting about all of this, however, is not the impact these new terms are having on everyday life or mainstream academia—for most people, overtly or quietly, recognize the gay rights movement’s latter-day silliness.

Rather, it’s the prospect that a community whose goal has so long been “acceptance” is isolating itself and alienating others by creating a separate body of knowledge that only they appear to care about or know. Of those transgender terms, BGLTSA’s Noa Grayevsky ’07 is quoted in last week’s Fifteen Minutes, “People that are either queer or educated on this topic use [‘ze’ and ‘hir’] pretty widely.” And, of course, no one else does.

And the creation of new genders has become a hobby for those on the fringe. Consider Kit Yan, a “gender queer” Hawaiian poet who will be performing tonight at BGLTSA’s invitation. In one poem, after rolling through several dozen “genders”—including appellations like “polyamorous,” “heteroflexible,” and “boydyke”—Yan solemnly declares, “and that’s just the beginning...There may be as many as a million genders / Just floating around, searching for the right person / To snatch them up.”

The ivory tower is the only place where such nonsense can find a home and even as we on campus witness the germination of a new, ever stranger vocabulary, few can imagine taking any of it seriously.

In the world at large, social acceptance and gay marriage seem to be accomplishable (and sometimes, accomplished) goals of the gay rights movement. What fruits can those who are using these new, awkward, polluting words possibly hope to reap?
Kavulla bundles an awful lot of things together, including my longtime concern about gender-neutral bathrooms. (Note: I'm not referring to single-user bathrooms.)

The switch to gender-neutral bathroom changes the conditions of real life for everyone and is unacceptably burdensome to women and, especially, girls. People need to keep their wits about them on this subject, which stands apart from the realm of speech and ideas. By the same token, colleges shouldn't be bullied into abolishing every single-sex dorm.

Speech and ideas are different. It is fine to criticize people who assume everyone is heterosexual. If a man says he has a date and someone refers to the date as female, the assumer can be zinged as "heteronormative." But those who are relentless, grim, and heavy-handed about this deserve some back talk. Everyone doesn't need to think about your issues all the time.

Trying to get people to say "ze" and "hir" is probably only silly. It's not going to happen. Feminists tried something like that long ago and ultimately settled for "Ms." and a lot of "he or she"-ing. But if the "ze" and "hir" crowd start making any actual progress, the rest of us will need to rouse ourselves from complacency and say no.

As for Kit Yan -- poets can say whatever they want. They can play with language, make up words, invite us to think all sorts of things -- true, false, and fantastical. Unless they are stirring up hatred, I'd lay off the poets. Most poets are quite bad and are utterly ignored. If Kit Yan has found an audience, give the poor ... poet a break.

UPDATE: Here are links to old posts of mine about gender-neutral bathrooms:
"Common fear" and "severe misunderstandings."
"De-gendering" restrooms."
The single-sex bathroom issue again.
Is this sex discrimination?
"They encircled me in a very menacing and hostile stance."
In search of the right bathroom.

November 6, 2005

Audible Althouse, #18.

Here's the new podcast. It's a good one! Just under 55 minutes.

UPDATE: You know, you don't need an iPod or other special device to listen to the podcasts. They'll play on the computer too, you know. Just go to the link and click! Or just click this. It starts with cool music by John Althouse Cohen and Brit Rice.

Taking specific requests from Jonah Goldberg.

See? And I'm tempted to also put up my favorite line from one of the commenters, one "Icepick": "Your worst nightmare: an artist with a law degree!"

UPDATE: Should I keep the new quote? (The old one was "Althouse is cool.") I'm getting cold feet for two reasons: 1. Even though I didn't personally proclaim myself a genius, the act of putting the quote in the title box is mine and is a bit much, and 2. It gives ongoing, weird prominence to Margaret Cho (which she might even object to). As to #1, you might have the same objection to "divine," but that seems more playful, and there's something about the two words in combination that might cross the line from playful to delusional.

What's with the phrase "gay men and lesbians"?

Why not just say "gay people" or "gays"? I've wanted to see some solid opinion on this subject for a long time. William Safire has a go at answering the question:
"Historically, gay represented both homosexual men and women and technically still does," says Chris Crain, editor of the gay weeklies The Washington Blade and The New York Blade, "but a number of gay women felt that gay was too male-associated and pressed to have lesbians separately identified so they weren't lost in the gay-male image." That led to such names as the Gay and Lesbian Alliance Against Defamation. (The Washington Blade began in 1969 as The Gay Blade, a play on an old expression about a gallant.)

Diane Anderson-Minshall, executive editor of Curve, a lesbian magazine in San Francisco, agrees that the one-word adjective was expanded to set homosexual women apart: "When, in the queer world, you say 'the gay community,' the majority of the time that conjures up San Francisco's largely male Castro District, or West Hollywood or 'Queer Eye for the Straight Guy,' so interjecting the word lesbian into the mix is a necessary reminder that we — gay women — are not simply a subset of that larger male world but rather our own distinct community of individuals."
Safire thus explains the usage. He doesn't opine about whether the wordy phrase should be the norm. I tend to think simpler is better, but it's helpful to have a good grasp of the origin of the longer phrase and the feelings it expresses.

A whole separate question -- which I'm just going to guess Safire has already written about -- is: when should people with a particular characteristic be called a "community"?

The 86-year old poet encounters the Italian police and gets creative.

Lawrence Ferlinghetti searched out the house his immigrant father was born in, in a small town near Milan:
I rang the bell and tried to see into the lobby. People came to the door and were very hostile. They called the police. A car zooms up, and two poliziotti jumped out and asked for my papers and kept me standing there for three-quarters of an hour.
It's not quite Bush's fault.
They mistook you for a burglar?

There's a climate of fear and paranoia since 9/11, and in this country it was generated by Bush.

But you can't possibly blame President Bush for fear and paranoia in northern Italy.

It's the same with Silvio Berlusconi in Italy. Is it true that Bush believes that anyone caught reading books should be banned from government?

That's such a flaky, California thing to say.

I made it up.
Ah, poetry! You can say what you want!