June 21, 2008

"The alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings."

Lawprof Richard Epstein has a NYT op-ed on Boumediene:
This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president....

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.
ADDED: WaPo reports:
Senior lawyers inside and outside the Bush administration repeatedly warned the White House that it was risking judicial scrutiny of its detention policies in Guantanamo Bay if it did not pursue a more pragmatic legal strategy that considered the likely reaction of the Supreme Court. But such advice, issued periodically over the past six years, was ignored or discounted, according to current and former administration officials familiar with the debates.

"How these trousers don't fall. I have waited. Oh, my God, I'm gonna get one right now. His pants are gonna fall off."

"And it hasn't happened. It's just terrible. I've waited and waited."

The NYT fashion columnist Bill Cunningham mostly sounds like your granddad railing about these kids today.

Is feminism about defending women from criticism?

I certainly don't think so. The notion that it's sexist to criticize women is itself sexist. Address the criticism. If it's unfair, say why it's unfair. But let's read this argument from Mary C. Curtis:
Michelle Obama has become an issue in the presidential campaign even though she isn't running for anything.
She's going around promoting her husband and is therefore an important political actor who is part of the debate and subject to criticism.
An educated, successful lawyer, devoted wife and caring mother has been labeled "angry" and unpatriotic and snidely referred to as Barack Obama's "baby mama."

Democrats, Republicans, independents, everyone should be offended.
Offended? I'll push back when the criticisms are bad, but not because a woman has been criticized. When a male politician has done something wrong, we don't moderate our attacks with obsequious celebration of his level of education, his professional success, and his purported adoration of his wife and kids. And even when the attack is unfounded, we aren't offended that there are attacks. We fight the attack.
And this black woman is wondering: Where are Obama's feminist defenders?
The author informs us of her race. Why? Does that give her special moral authority?
It's not as though they're out of practice. In 1992, Hillary Clinton was deemed too assertive and not first lady material. Similar, and worse, claims were made this year. But just as you didn't have to be for Clinton to decry the sexism in the coverage of her campaign, you don't have to be an Obama supporter to defend Michelle Obama against similar treatment.
I certainly agree that anyone who got righteous about Hillary Clinton and sexism must apply the same standard for Michelle Obama. If you want us to believe you were standing on principle, don't be a hypocrite.

But I'm not one of those people, so I'll say what I've always said. Women in politics are subject to attacks, as are male politicians, and they aren't going to succeed by arguing that the attacks are sexist. Get to the point and tell us why the attacks are wrong.
I've long been frustrated, as a black woman....
In case you forgot, the author is black.
[I]n America, there's seldom a cost for disrespecting black women.
Seldom... she didn't say never. The fact is, Americans feel much freer to disrespect white men — and this is not a disadvantage for white men. This is part of being viewed as strong and powerful. So be strong and powerful, quit whining, and fight.


... squeal.

June 20, 2008

"Bigger, Stronger, Faster."

Those before and after pics were taken on the same day — as demonstrated in the new documentary "Bigger Stronger Faster." It's an excellent documentary, mostly about steroid use — but also about hypocrisy, competition, and fakery.

The subtitle is "The Side Effects of Being American." Watch the trailer to get a decent idea of how that angle works:

If you want to laugh at Henry Waxman, this is your movie.

From the review by Beth Accomando:
Since [the director Christopher] Bell hangs out with people like his brothers that have no problems with using steroids, the pro-steroid camp definitely gets to have a say in the movie. So some people will probably see the film as biased in favor of steroids. Contributing to the perception of the film as pro-steroid is the fact that the people Bell does let talk about the negative side of steroid use often come off looking like idiots....

But in the end I think Bell is not so much pro-steroids but rather eager to open up a debate about the drug...
Accomando interviews Bell. Excerpt:
BETH ACCOMANDO: Were you surprised by people like Congressman Waxman who seemed so ill-prepared for the interview?

CHRIS BELL: It's weird because I'm not a journalist and I wasn't a documentary filmmaker when I started this journey so I was super nervous because I had never interviewed a congressman before and when I asked him why are steroids illegal and he turns to his assistant and says, "Are they illegal?" And I thought oh my god this is the guy who called the baseball hearings and he doesn't even know what he's talking about. That's really interesting to me because we really uncovered how we don't always have the facts when we are making the laws in this country. So I question in the movie why steroids became illegal in the first place. So I wanted to explore both the myths of steroids and the bad side effects of steroids and the possible positive medical applications as well.
This made me go back and watch the old Bloggingheads segment I did with Stephen Kaus. Skaus wanted to talk about the steroid controversy, and I was just trying to be a good sport about his topic. So it's a little odd that I went to the movie. But, basically, I like documentaries and it got great reviews. I recommend it.

There's a lot of interesting materials about the Bell family and the culture of male competition. Much of this was presented as "American" — as if Americans care about winning more than others or are more willing to cheat to win (or bullshit that it's not really cheating). There were a few ham-handed attempts to connect muscular sports competition to American foreign policy, but there was plenty of material about drugged-up muscle men from other countries to undercut that theory. (Like this guy.) I mean, the Michael Moore influence was definitely present, but Michael Moore can't bench press 705 pounds.



This made me laugh...

... a lot.

Intent on charging for access — or just clueless — the New York Times fails to link to its own wonderfully rich archive.

I was reading the obituary for Jean Delannoy, the French film director who died on Wednesday at the age of 100. I didn't remember the name, though I see he directed the Anthony Quinn/Gina Lollobrigida version of "The Hunchback of Notre Dame," which I loved when I was a teenager.

Yeah, it's not very good, but it really did have a very deep emotional impact on me. The old Charles Laughton version is so much better: But let me get to my point. I learn from the obit that Delannoy was the sort of director that the French New Wave directors were rebelling against:
Mr. Delannoy had worked in the film industry for two decades when, in 1954, François Truffaut, then a 21-year-old critic for the film journal Cahiers du Cinéma, wrote his controversial article “A Certain Trend in French Film.” In the article Truffaut attacked France’s commercial cinema and its so-called tradition of quality, as exemplified by Mr. Delannoy and certain colleagues, and advocated in its place auteurism, a new, director-centered filmmaking style, which Truffaut came to embrace as a filmmaker. Established French directors, Truffaut wrote, had failed to express their personalities or espouse a worldview. He said that the worst of Jean Renoir’s movies would always be more interesting than the best of Mr. Delannoy’s. Stung, Mr. Delannoy responded by letter, calling the criticism “so low that I have never encountered anything like it in my 20 years in the profession.” He believed that a director’s job was to realize the work of the scriptwriters; Truffaut considered that attitude contemptuous of film as an art form. Jean-Luc Godard shared Truffaut’s opinion, once suggesting that when Mr. Delannoy carried a briefcase to the studio, he might as well be going to an insurance office.
This is important!
Mr. Delannoy responded by writing an article for The New York Times. The film industry, he wrote, was “dying of infantilism.”
Wait! He responded by writing an article for The New York Times?! Where is the link?!!! Now, I've had a little side project — which, admittedly, I've been ignoring for the last week or so — where I blog from the NYT archive for a date in the past as if I were blogging the news today. And I've struggled with the way the Times limits access to the archive for the years 1923 to 1986). Efforts to limit access to the current issue — the "TimesSelect" program — failed. But the partly closed historical archive remains. I'd love to be able to link to the old articles freely. They can't be getting much traffic. Why not let them burst out to a big audience when someone wants to talk about something, like what Jean Delannoy wrote in 1952 about the French New Wave? The Times itself should be sending us back into its archive. It's boneheaded not to link to the old article by Delannoy! So I'll have to be the one to go back and dig it out for you. It's here if you want to pay for access (or have an educational account and can get to 100 articles a month). Now, I'm reading the article, and it doesn't seem to be much of a response to Truffaut:
[T]he torture of the cinema in the world is, for the most part, due to the tightening of censorship.... The censors act in good faith, in the name of morality. But what is curious is that morality is not the same in one country as another.... All censorships are mistaken because they judge on the basis of pre-established criteria and not on the basis of intention. First and foremost, a film affects the understanding of an audience.... What the public looks for in the dimmed rooms is shocks, and emotions. Films that call upon the intelligence are rare and have only limited success....
He expresses concern that the movie "Savage Triangle" will be shown in New York for adults only.
[I]f I had a boy of 14, I would prefer him to get to know some "savage boys" as the one in the film, rather than to nourish himself solely on the violence of Robin Hood with his special interpretation of justice, or the ideas he has on religion, in the person of Friar Tuck, the monk with the cudgel who supports him. The cinema is dying of infantilism. Will censorship finish the job?
One reason not to link to the archive — a terrible reason — is that the old articles don't actually support the point you are citing them for! Delannoy isn't responding to Truffaut here. He's pissed off at censors (and Robin Hood).
ADDED: There is a short paragraph that appears between the discussion of Truffaut and the reference to Delannoy's old article:
Mr. Delannoy had earlier had his own complaints about the industry, partly because of censorship. “L’Éternel Retour” (“The Eternal Return”), a retelling of the Tristan and Isolde story, was condemned by the Legion of Decency in 1948. “Le Garçon Sauvage” (“The Wild Boy,” released in the United States in 1952 as “Savage Triangle”), the story of a Marseilles prostitute and her son, also ran afoul of censors.
The old article did support that paragraph. I incorrectly assumed that the new paragraph, which began "Mr. Delannoy responded by writing an article for The New York Times," referred back to the Truffaut criticism. 

"Just try to imagine Mister Rogers playing the agent Ari in 'Entourage' and it all falls into place."

David Brooks explains Barack Obama. Supposedly, there are 2 sides to Barack Obama — the familiar idealistic guy and the "the promise-breaking, tough-minded Chicago pol who’d throw you under the truck for votes." Brooks gives a few examples, but the heart of the column is the turnaround on public financing:
Barack Obama has worked on political reform more than any other issue.... He’s spent much of his career talking about how much he believes in public financing. In January 2007, he told Larry King that the public-financing system works. In February 2007, he challenged Republicans to limit their spending and vowed to do so along with them if he were the nominee. In February 2008, he said he would aggressively pursue spending limits. He answered a Midwest Democracy Network questionnaire by reminding everyone that he has been a longtime advocate of the public-financing system.

But Thursday, at the first breath of political inconvenience, Fast Eddie Obama threw public financing under the truck. In so doing, he probably dealt a death-blow to the cause of campaign-finance reform. And the only thing that changed between Thursday and when he lauded the system is that Obama’s got more money now.
It's fine with me. I don't like the campaign finance scheme. And I like a practical politician who adjusts to changing circumstances. It's good news that he's not an ideologue. I don't think he's going to lose the people who fell in love with him as a vision of idealism. I think he's going to gain moderate people like me who want an effective, sensible leader.

ADDED: Here's the video of Obama justifying his decision and making it sound as though McCain is slimy for staying in the system. Here's FactCheck's analysis:
Obama: We face opponents who’ve become masters at gaming this broken system. John McCain’s campaign and the Republican National Committee are fueled by contributions from Washington lobbyists and special interest PACs.

To say that either the McCain campaign or the RNC are "fueled" by money from lobbyists and PACs is an overstatement, to say the least. Such funds make up less than 1.7 percent of McCain's presidential campaign receipts and 1.1 percent of the RNC's income.

McCain – As of the end of April, the McCain campaign had reported receiving $655,576 from lobbyists, according to the Center for Responsive Politics. That is less than seven-tenths of 1 percent of his total receipts of $96,654,783. His campaign also took in $960,990 from PACs, amounting to just under 1 percent of total receipts. The two sources combined make up less than 1.7 percent of his total.

RNC – The Republican National Committee has raised $143,298,225, of which only $135,000 has been come from lobbyists, according to the CRP. That's less than one-tenth of 1 percent. It also took in about 1 percent of its receipts from PACs, CRP said. Taken together, that's about 1.1 percent from PACs and lobbyists.

"They think that a baby can give them love or give them status or fill an empty space in their life..."

17 high school girls make a pact: Each will become pregnant.

Why did they do it? The quote I used in the title is from Carolyn Kirk, the mayor of the town, Gloucester, Massachusetts. Does she really know why the girls did it? She's dishing out the cliché reason why young girls have babies, but how can your life be empty if you have 16 dedicated friends?

ADDED: Of the 17, "nearly half became pregnant after making a pact to do so and raise the children together." We don't know how many may have been in on the pact who did not become pregnant. So I'm speculating about how many friends these girls really had. It could happen that many girls would join such a pact in an effort to win favor from other girls, not because they were really true friends. Eh, for all I know the pact was b.s. made up after the fact.

IN THE COMMENTS: Paddy O. writes:
What is frustrating is that by emphasizing the stock response to this they, the officials and likely the church leaders, miss the really key part: "They think that a baby can give them love or give them status or fill an empty space in their life."

What is the point of having churches around if not responding to these precise feelings? That's what churches should be emphasizing — helping these girls find love, and acceptance, and status and fill the empty space in their lives. If churches aren't doing that then they should really just shut up, their words and their doors, because clearly they've missed the point of their message and existence.

Instead of arguing about contraceptives or debating yet more sex education what about responding to the core issue of their self-value. This story isn't about sex and these girls are certainly responsible for their own decisions, but they're also victims of their elders who have decided policies, whether liberal or conservative, are more interesting than people.

"This teacher has a history of encouraging noogie behavior."

"She had this very bizarre tendency to invite students to give her noogies."

That's Edward Paltzik, lawyer for Ethan Mirenberg, who was given a 10-month suspension for giving his high school teacher noogies. Now, he also has a big Daily News article making light of his physical assault on the teacher — who is referred to as "the 39-year-old divorcee." Why does her marital status matter? We're also told she lives in a "luxury apartment"! The boy is referred to — in the headline — as an "honor student."

Ethan, 14, is 5-feet-3 and 150 pounds, and the teacher, Sharon Cantante, is only 4'11". Somehow, this tiny woman was just asking for disrespect and physical assault, the courts ought to prevent schools from doing anything about it, and newspapers should make light of it. The Daily News has a cutesy poll to signal to readers to laugh and think the boy a victim of injustice.

Nice job letting a lawyer play you, Daily News.

June 19, 2008

There's nothing the matter with Kansas as far as Barack Obama is concerned.

Come on people! No need to be bitter anymore.

Comment on the new Barack Obama ad.

The 100 Greatest Movie Posters.

No one is likely to agree that these are the 100 greatest movie posters, in the proper order, but there are lots of cool movie posters here.

I would have included this.

2 documentaries seen in the last 24 hours: "Roman Polanski: Wanted and Desired" and "Standard Operating Procedure."

I would not have chosen to watch these 2 films so close together, even though they are thematically related enough to belong as a double feature, but I happened to watch the first one on HBO On Demand last night, and the second one is something I'd been meaning to see and learned would be gone after today.

"Roman Polanski: Wanted and Desired." This is Marina Zenovich's nicely put together documentary about Roman Polanski's immense legal problem. Watching this was a very weird experience, because it's quite apparent that child rape was just not taken very seriously back in the 1970s. I was ready to cut Polanski a lot of slack because he survived the Holocaust and his wife and unborn son were slaughtered by the Manson family, but he has admitted to drugging a 13-year-old and having sexual intercourse with her. And he never really seemed to think he did much of anything wrong — as if he shouldn't have had to serve any prison time.

Much is made of the "media circus" surrounding the legal proceedings. We see footage of lots of guys with cameras crowding around trying to photograph him when he's trying to get in and out of the courtroom. (I thought: Big deal. Quit complaining.) And the main target of contempt is the judge, who's dead now and not able to respond to the charge that he sought the spotlight, played to the cameras, and abused his power. But there are interviews with the victim and the prosecutor (as well as the defense attorney), and neither of them is calling for Polanski's blood.

So it's a rather subtle inquiry into the legal process — and into the soul of a man who did something evil but is also a great artist and suffered beyond comprehension in his life. The vintage footage of him with the spectacularly beautiful Sharon Tate and crazed with pain after her death is heartrending. And the clips from "Chinatown," "Rosemary's Baby," and other films are very cleverly used to illustrate aspects of Polanski's legal struggles.

"Standard Operating Procedure." This is the Errol Morris documentary about the prisoner abuse at Abu Ghraib. I adore Errol Morris and have watched some of his documentaries multiple times, but this is not Morris at his best. The movie forces you to stare for many long minutes at giant talking heads, a technique used brilliantly in some of his very best movies: "Mr. Death," "Fog of War," and (one of my favorite movies of all time) "Fast, Cheap and Out of Control." The difference with "Standard Operating Procedure" is that the individuals are not at all fascinating people. They are dull and empty — with revoltingly flat affect.

But they have a story to tell. That is, they are witnesses. But they have been convicted of crimes, so they have the motive to lie, slant, and self-justify. It's like a close up on the direct examination of witnesses at trial — and no cross-examination! I wanted cross-examination. I had the impression that Morris wanted us to see that they were made to take the fall after the infamous photographs became public, but I found them repellent and unbelievable.

There is a lot of good material about how photographs tell an incomplete story. (And you see many, many uncensored Abu Ghraib photographs.) So perhaps Morris also meant to say: And the eyewitnesses also tell an incomplete story. Too damned bad if you are unsatisfied, because, like a photographer framing a shot, the government blocked our view of the whole story.

Morris teaches his lesson, and the viewer is subjected to a truly ugly ordeal. (There are occasional touches of beauty in the short, vivid recreations.) But if you were circumspect enough to attend this movie in the first place, you will probably feel that you have no right to complain about it, given the suffering depicted in the movie. That may be why the movie is leaving town — leaving Madison, Wisconsin — after a short run and why I was one of only 3 people in the audience.

"Does this mean the Cap Times will no longer allow crackpot conspiracy theorists to claim 9/11 was an inside job by the government?"

Comment moderation at the Cap Times.

IN THE COMMENTS: Sir Archy appears and thrills Seven Machos.

When Justices Scalia and Thomas have a broader view of the rights of the accused than the other Justices.

Indiana v. Edwards, decided today, is one of those unusual cases where Justice Scalia (joined by Justice Thomas) has a broader view of the rights of the accused than the other Justices:
The Constitution guarantees a defendant who knowingly and voluntarily waives the right to counsel the right to proceed pro se at his trial. Faretta v. California, 422 U. S. 806 (1975). A mentally ill defendant who knowingly and voluntarily elects to proceed pro se instead of through counsel receives a fair trial that comports with the Fourteenth Amendment. Godinez v. Moran, 509 U. S. 389 (1993). The Court today concludes that a State may nonetheless strip a mentally ill defendant of the right to represent himself when that would be fairer. In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury –a specific right long understood as essential to a fair trial. ...

Edwards wished to take a self-defense case to the jury. His counsel preferred a defense that focused on lack of intent. Having been denied the right to conduct his own defense, Edwards was convicted without having had the opportunity to present to the jury the grounds he believed supported his innocence. I do not doubt that he likely would have been convicted anyway. But to hold that a defendant may be deprived of the right to make legal arguments for acquittal simply because a state-selected agent has made different arguments on his behalf is, as Justice Frankfurter wrote in Adams, to “imprison a man in his privileges and call it the Constitution.” In singling out mentally ill defendants for this treatment, the Court’s opinion does not even have the questionable virtue of being politically correct. At a time when all society is trying to mainstream the mentally impaired, the Court permits them to be deprived of a basic constitutional right—for their own good.
So you can see that Scalia and Thomas conceive of the right more in terms of individual autonomy, while the rest of the Court is willing to reason more flexibly about fairness. There's quite a bit of talk about "dignity," which is said to underlie the right of self-representation, and Justice Breyer, writing for the majority, says:
[A] right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel.... [T]he spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.
When can the judge save a man from himself?

Rush Limbaugh is a bit like Barack Obama, "wandering aimlessly for syllabic combinations that will equal a cogent, salient thought."

Please note the update to my 6:56 AM post.

The public library.

This is the public library in Columbus, Wisconsin.

The Public Library in Columbus, Wisconsin

It was designed in the Prairie Style by Louis W. Claude and Edwin F. Starck and dedicated in 1912.

If you've got a picture of an equally charming public library, please point it out.

What "privileges" would Barack Obama give to the Guantanamo detainees?

Here's the statement Barack Obama made yesterday about the Guantanamo detainees:
By any measure, our system of trying detainees has been an enormous failure. Over the course of nearly seven years, there has not been a single conviction for a terrorist act at Guantanamo. There has been just one conviction for material support for terrorism. Meanwhile, this legal black hole has substantially set back America’s ability to lead the world against the threat of terrorism, and undermined our most basic values. Make no mistake: we are less safe because of the way George Bush has handled this.

My approach is guided by a simple premise: I have confidence that our system of justice is strong enough to deal with terrorists; Senator McCain does not. That is not the same as giving these detainees the same full privileges as Americans citizens. I never said that, the Supreme Court never said that, and I would never do that as President of the United States. So either Senator McCain’s campaign doesn’t understand what the Court decided, or they are distorting my position.
So he's talking about what he isn't saying I'd like him to be clear about what he is saying. He won't give them "full privileges," but what portion of privileges does he favor? (And why is he saying "privileges" and not "rights"?)
I have made the same arguments as Republicans like Arlen Specter, countless Generals and national security experts, and the largely Republican-appointed Supreme Court of the United States of America – which is that we need not throw away 200 years of American jurisprudence while we fight terrorism.
Ugh. Tricky rhetoric. We are having an argument about what American jurisprudence dictates. It's a difficult question, and the people who disagree with Obama — such as the dissenters in Boumediene — don't favor throwing out "American jurisprudence." (And why is he saying "American jurisprudence" and not "the Constitution"?)
We do not need to choose between our most deeply held values, and keeping this nation safe. That’s a false choice, and I completely reject it.
Fine, but again, he is having an argument with people who are not proposing throwing away "deeply held values" for national security. He is defining and balancing these things differently from the way they do, and I wish he'd be more precise about what his plan is rather than simply asserting that he will be able to harmonize competing interests so that everything works out just fine.


Feel free to point me to more information on the precise subject. I spent some time reading the official Obama website looking for material on the detainees. It is not one of the topics on the "issues" menu, and I can't see a way to run a search for particular words.

UPDATE: I was just listening to the podcast of yesterday's Rush Limbaugh show, which played this statement from Obama:
Let's talk specifically about my statement around Guantanamo.
Statement around Guantanamo? When I hear "around" used like that, I get nervous. Isn't it a signal that the speaker is going to be cagey?
The question is whether or not, as the Supreme Court said, people who are being held have a chance to at least suggest that, hey, you've got the wrong guy, or I shouldn't be here. It's not a question of whether or not they're freed. And the simple point that I was making, which I will continue to make throughout this campaign, is that we can abide by due process and abide by basic concepts of rule of law and still crack down on terrorists. The fact that you are allowing habeas does not necessitate that you are suddenly putting terrorists in a full US trial court. That's not... Those two things aren't equivalent.
Again, he's saying what his position isn't and not what it is. But, then, he is saying "due process," which suggests that he's talking about constitutional rights. But he holds back from saying that the detainees would be treated to a full-scale criminal trial. The question, presumably, is: What process is due? What rights can they enforce? And he doesn't tell us. So allowing the detainees to petition for a writ of habeas corpus doesn't necessitate a full-scale criminal trial (sudden or not). Fine. True enough. It's not necessarily going to be that way, but is it?"Those two things aren't equivalent," yes, but habeas is the first step, so what do you think is the next step?

Here's how Rush Limbaugh reacts to that Obama statement:
Does anybody have any idea what he said there? Again, illustrating my point: Get this guy off the teleprompter or without some prepared notes, and he's wandering aimlessly for syllabic combinations that will equal a cogent, salient thought. I think the last thing that he said here is really what he was angling at trying to say. "Just because you're allowing habeas [corpus] doesn't necessitate that you're suddenly putting terrorists in a full US trial." Oh, it doesn't? Well, then why are we going to have to take them out of Club Gitmo, sir? And why are we going to have to bring them to the US court system and grant them lawyers? You don't think those lawyers are going to go straight to court? And when they go straight to court with habeas corpus, doesn't it mean, Senator, that they are presumed innocent?
I'm inclined to say Rush is wrong, but I note that he's only asking a series of questions, so I can't. I'll have to say that, ironically, Rush is a bit like Obama, wandering aimlessly for syllabic combinations that will equal a cogent, salient thought. Both men mesmerize their listeners and move them along on a current of verbiage.

I suspect that Rush's asking those questions caused millions of listeners to believe that Obama wants all the detainees to have full-scale criminal trials. Now, I'd like to hear Obama clearly say what he does want — not what things don't necessarily mean and so forth — what he actually wants.

Creaky Boards' Andrew Hoepfner takes the viral video route to making an accusation of Coldplagiarism.

The Independent explains it:
In a video posted on the video-sharing website YouTube, Andrew Hoepfner, Creaky Boards' singer and songwriter, claimed that the melody of Coldplay's song, "Viva La Vida", is pinched from a track he wrote last year called, ironically, "The Songs I Didn't Write". ... Coldplay responded with a vigorous denial. "We totally refute their claims, and there are two facts that make it easy to disprove them," said the band's spokesman Murray Chalmers. "First, on the night in October when the band say Chris Martin was watching them, he was actually working at the Air Studio in London, and we can prove that. Second, even if he had been at the gig, "Viva la Vida" was written and demoed seven months before the night in question, so it couldn't possibly have been copied." Sources close to the band said they were unlikely to pursue legal action against Creaky Boards, since it would "look bad" to start a David versus Goliath lawsuit against a group of young musicians. They are, however, pushing for them to publicly withdraw the allegations of plagiarism. The two tracks have different lyrics, say the Coldplay camp. Although certain elements of their melody sound remarkably similar, the band say this is due to simple coincidence rather than a case of artistic theft. Either way, the trite nature of Mr Hoepfner's video clip has succeeded in gaining a new following for his band, and was driving traffic to their MySpace page.
I've watched the video and think it's pretty amusing, but as for that melody — the only thing Hoepfner accuses Chris Martin of stealing — it sounds like the sort of singsong melody you'd come up with if you were called upon to start singing a made-up song on the spot. So I'm buying the "coincidence" argument. Should Coldplay be able to force Hoepfner to take down his accusatory video and apologize, or do we think it's a nice resolution of the controversy for Coldplay to escape unsued and for Hoepfner to have his viral video to leverage his band to whatever degree of fame it can get out of this amusing little artistic squabble?
By the way, I created the word "Coldplagiarism," so be sure to link to this post if you use it! I admit that on Googling to make sure that I'm first I found somebody on some obscure European message board once said it. But I hadn't seen that before I concocted my dazzling word play. What if musicians could Google their tunes to see if anyone had ever used them before? Would they find that anything halfway melodic had already been used thousands of times?

June 18, 2008

"John McCain is for strict conservative — excuse me — strict constructionist Court."

Senator Sam Brownback bumbles, revealingly. He's a co-chair of McCain's judicial advisory committee. (For the quote, click to listen to the segment and go to 3:18.)

"That's nothing. Have you ever seen the stuff on Justice Scalia's website?"

The Onion picks up the Kozinski story.

(Via Above the Law.)

"We're bacon people." "Does Obama eat bacon?" "He will eat the bacon."

Supposedly, "The View" had its "Best of Breakfast" segment set up before it booked Michelle Obama as a co-host for today's show. (I've blogged all the relevant details here). But such a huge deal was made out of the Obamas' lust for bacon, that I've started wondering if it was intended as a denial of the rumor that Obama is a Muslim.

Is the Obama campaign in danger of overdoing the I-am-not-a-Muslim routine? After all, it's not bad to be Muslim.

"I was discriminated against by the very person who was supposed to be bringing this change, who I could really relate to."

Hebba Aref, one of 2 women who were told to move out of the frame of photograph of the candidate because they were wearing a Muslim headscarf.
[T]wo different Obama volunteers — in separate incidents — made it clear that headscarves wouldn't be in the picture. The volunteers gave different explanations for excluding the hijabs, one bluntly political and the other less clear.

In Aref's case, there was no ambiguity.

That incident began when the volunteer asked Aref's friend Ali Koussan and two other friends, Aref's brother Sharif and another young lawyer, Brandon Edward Miller, whether they would like to sit behind the stage. The three young men said they would, but mentioned they were with friends.

The men said the volunteer, a twenty-something African-American woman in a green shirt, asked if their friends looked and were dressed like the young men, who were all light-skinned and wearing suits. Miller said yes, but mentioned that one of their friends was wearing a headscarf with her suit.

The volunteer "explained to me that because of the political climate and what's going on in the world and what's going on with Muslim Americans, it's not good for [Aref] to be seen on TV or associated with Obama," said Koussan, who is a law student at Wayne State University.
That hurts, and the campaign has officially apologized. But should we really be dismayed to learn that the campaign cares about the look of the people behind the candidate? Don't you remember "Get me more white people, we need more white people"? It should be done more tactfully, but wouldn't it be incompetent not to control the backdrop? If this were not done, opponents of the candidate could wreck photo-ops deliberately. I know, it's a sensitive question: What sort of people in the background send the wrong subliminal message? But subliminal messages will be sent, and it would be naive to pretend otherwise.

UPDATE: Obama calls Aref and apologizes.

Moderating Michelle — Michelle Obama to go on "The View" today. UPDATE: I live-blog the show.

There's a big effort these days to rebuild Michelle Obama's image. And today, Michelle Obama will be "one of the ladies" on "The View" — chatting with the rest of them, not as an interviewee.
"We're going to be interviewing Matthew Broderick, she will participate in that," [Barbara] Walters said. "Another segment will be what makes a good breakfast. It will be a normal show; instead of five, there will be six."
Chatter. You can learn a lot about a person by their chatter. Oh, how I would love to hear the behind-the-scenes chatter between Michelle and her handlers about going on the show. Did Michelle bitch about the need to soften herself for dimwitted American women in flyover states? Or did she think it would be fun to have a free-for-all with those smart, funny women? Did her people tell her that the important thing is just to smile and look comfortable and not say anything too smart or too stupid? Or did they tell her to be herself and enjoy this chance to let everyone see the Michelle Obama we all know?
Walters said the show was put together as normal, and guests booked in advance.

And, if today resembles the typical day on the popular daytime show, there will be plenty of give and take between the hosts on serious and not-so-serious topics.
What? Matthew Broderick was not a special selection for Michelle? I'm sorry, I find that impossible to believe. He's too perfect for the occasion, isn't he? Married, delightful, mild, warm... squishy yet masculine... white. Watch her not call him "whitey" — though the man is stark white.

And making a good breakfast? Come on! That's too perfect of a set-up for them to talk about — we all want to know! – what's Barack Obama like at breakfast?

You can really learn a lot about a man by seeing what he's like at breakfast. He's helping the girls find their mittens and testing them last-minute on their spelling words, I bet. Or is he grouchy? Is he all Why can't I just eat my waffle?

ADDED: The women walk out in pairs, with Michelle and Barbara Walters in the lead. Michelle is much taller than the others, and she looks fabulous in a fitted, black-and-white, floral print sundress. Her hair is neatly tousled, and she has pearl earrings and really pretty soft makeup. They sit at the table, Whoopi Goldberg enthuses an introduction, and Michelle says: "I have to be greeted properly. Fist bump, please."

All the ladies bump fists with her. Whoopi's all "I'm sorry. What'd that mean? Should I be worried about doing that with you?" in a Valley Girl voice. Barbara leans forward and yells: "It's a terrorist attack!" Michelle responds: "It's now my signature bump, but lemme tell ya. I'm not that hip. I got this from the young staff." Joy Behar says: "I thought it was for germ freaks." I'm thinking: good idea! And then: potential new smear: Michelle Obama, a germophobe!

Whoopi says they've got "a million questions" for her. Oh! So then, she's not just another co-host. She is being interviewed. Barbara waves the New York Times article that is the first link in this post. Is Michelle here on "The View" to soften her image after all these attacks? Michelle finesses this into the new introduction that the NYT said she is seeking. She grew up on the south side of Chicago, etc.

Barbara interrupts to ask what it causing the attacks? Michelle refers to the pervasiveness of the media and the competition of politics. And people are "tired" of all this hostility. Elisabeth Hasselbeck takes this as a cue to chatter about how the media think that she (Elisabeth) is going to be fighting with Michelle (and is enemies with the other View ladies). By this point, Michelle is visibly sweating. (If she weren't wearing a bare sundress, you wouldn't see it.) But she gamely talks about how she puts her heart out there, taking a risk by showing passion. And she's not worried. Over time, people will get to know who she really is.

Michelle is asked if she thinks there was any sexism against Hillary Clinton, and she says, "Yes, there's always a level of... people aren't used to strong women... We don't even know how to talk about 'em. So, yeah, there was obviously that. There was also, um, you know, there were elements of racism and that will go on." But she resisted veering into the subject of racism and, wisely, kept to the subject of sexism but ended on a positive note. Hillary had cracked the glass ceiling, and had made it so "my girls, they won't have to feel it [sexism] as badly."

Barbara asks if, then, Hillary should be the VP nominee. Michelle insists that she willl have "nothing to do" with the decision. Elisabeth breaks right in an offers an opportunity for Michelle to talk about getting away from politics and paying attention to the kids. A commercial break swiftly descends.

Sherri Shepherd wants to interrogate Michelle about her toned arms. Michelle is always going sleeveless, setting a trend that is rough on women who are flabby. But the subject is immediately shifted to how long it takes for a woman to do her hair and makeup in the morning. Whoopi starts riffing about how up until now all the black women we've seen on the news are toothless or have gold-rimmed teeth. (How many people did she just insult?!) What she's trying to say is that Michelle with be a good role model. Joy Behar has the classic "who farted?" expression on her face.

Barbara raises the hot topic of pantyhose. They say not wearing pantyhose makes you look young, so she (Barbara) went without pantyhose to some event and someone yelled "No pantyhose!" Funny, especially since Barbara Walters is nearly 80. But the point here is: Michelle Obama is not wearing pantyhose. Michelle says: "I stopped wearing pantyhose a long time ago because it was painful."

Much talk of raising the kids. Barack and Michelle think about their daughters "every single day." She quotes 10-year-old Malia saying — when asked how she deals with going in front of a big crowd — "I'm just a kid... They just think I'm cute, so I just wave and I smile and then I'm outta there."

There's talk about Barack Obama's Father's Day speech. Michelle says she's most touched when Barack says that "the greatest gift he can give to his kids is to not be who his father was."

Barbara asks if Michelle wanted Barack to run for President, and she says she didn't even want him to go into politics, because it's "a mean business":
I knew the man that I loved. He was sweet and pathetic. I thought...
Pandemonium! I think each of the 5 view ladies exclaims "Pathetic!" Michelle's all: "Right, I know, he's pathetic." She does a dismissive hand wave. I take a few TiVo passes at the chaos, there's a reference to a comma, and I figure out she was saying:
He was sweet, empathetic.
Whoopi spells out the whole word to the camera and makes big hand gestures to get the point across: Empathetic.

After the break, they bring out Matthew Broderick. I think he's wearing a bad wig. He's got a bulky black suit on and a red tie. He fist bumps everyone, and they sit down on little puffy gold chairs. He crosses his legs just like Joy Behar. He's not wearing pantyhose, but white and black striped socks. He has largish feet.

It's established that Broderick's 4-year-old son supports Barack Obama. Why? "He likes the man to beat the lady." Michelle makes a cute grimace then distances herself from that remark. Kids are drawn to Barack Obama, she says. Some think his first name is Baracko.

Michelle must sit through the promotion of 2 Matthew Broderick movies, which is slightly painful, especially since they show a clip that has him talking to a young woman who's prating about how easy it is to be a stripper. Michelle basically keeps her mouth shut here.

Fortunately, they go to commercials, and when they are back, Michelle, Joy, and Sherri are standing with some woman under a big orange sign that says "Best of BREAKFAST." The woman — Elizabeth Somer — has written some New York Magazine cover story about breakfast and she starts ranting about how people who eat breakfast are better than other people. She's a raving breakfastist. Guess what you can eat for breakfast? A bowl of cereal with milk in it. And have you heard? You can put fruit on your cereal and also drink a glass of fruit juice. Michelle asks a question about pomegranate juice. She looks uncomfortable, and she doesn't get a straight answer, just a warning about apple, grape, and pear juice. Michelle munches a nugget of Autumn Wheat cereal and pronounces it good.

Joy asks Michelle what she has for breakfast, and she says:
"Toast, fruit, and I do my protein as: bacon. We're bacon people."
Joy does a mini-cheer: "Bacon! Bacon!" The audience shows enthusiasm. Somers in all seriousness says if you're going to have bacon, you should have Bob Evans Canadian Bacon. Michelle and just about everyone laughs at her for that absurd suggestion. Somers also recommends turkey bacon and "smart bacon" — and much grumbling is heard. "Smart bacon" is soy. Michelle is all "soy, sounds good" as she elbows Joy Behar. Those 2 seem to be bonding over bacon. Whoopi sneaks over to join the group: "I'm just going to say leave the bacon alone. We'll eat anything, but don't touch the bacon." Ha ha. The health nannying is shot to hell. "Does Obama eat bacon?" Joy asks. Michelle: "He will eat the bacon." Ha ha.

Final shot at the table. Everyone's looking happy. I find myself smiling. Okay. Worked for me. Broderick and Somers were stodgy and dull, but Michelle was just lovely and excellent. Her one little flub/nonflub ("pathetic") was hilarious.

Time for me to go get some bacon.

ADDED: Plenty of video here.

Kos wants the AP to sue him.

If they've got to sue somebody.
Lots of blogs are calling for boycotts of AP content. Not me. I'm going to keep using it. I will copy and paste as many words as I feel necessary to make my points and that I feel are within bounds of copyright law (and remember, I've got a JD and specialized in media law, so I know the rules pretty well). And I will keep doing so if I get an AP takedown notice (which I will make a big public show of ignoring). And then, either the AP -- an organization famous for taking its members work without credit -- will either back down and shut the hell up, or we'll have a judge resolve the easiest question of law in the history of copyright jurisprudence.

The AP doesn't get to negotiate copyright law. But now, perhaps, they'll threaten someone who can afford to fight back, instead of cowardly going after small bloggers.
There's plenty of great commentary about the AP's crushingly stupid attempt to charge bloggers who quote them by the word, but I wanted to single out Kos here. He's the best. Not about everything. But about this thing.

UPDATE: This story is way more complicated than it looked when I wrote this.

AND: Hmmm.

June 17, 2008

Did you watch AFI's 10 Top 10?

They had the 10 top movies in 10 genres. If you didn't spend 3 hours watching the show, you can absorb the 10 lists easily in about 3 minutes here. I see that over at Television Without Pity the commenters are mostly quibbling about what belongs in which genre and whether they picked the right 10 genres. That was my reaction too.

I was asking: Why are war movies grouped with epic movies? Is "Titanic" an epic movie or a disaster movie or a historical costume drama? The answer seemed to be epic — but only because disaster and historical costume drama were not among the chosen genres.

But what is a genre movie anyway? If a movie doesn't fit in one and only one genre, doesn't that make it not a genre movie? I mean, "Pulp Fiction" isn't a gangster movie, is it? Yet that is how the AFI classified it.

My most-seen category: sci-fi. I've seen them all. My least-seen category? Ironically, it's courtroom dramas.

See what the problem is with these lists? You feel like talking about everything except whether the films are good.

This always looked as though it took place in eternity.

RIP, Cyd Charisse.

Lake Mendota, brimming.


Lake Mendota

Here's the usual level, as seen in 2006.

Lake Mendota

Note the 3 steps.

Today, waves were breaking onto the terrace:

Lake Mendota

A perfect day for windsurfing:

Lake Mendota

"Hangings? C'mon, Dean Velvel -- shouldn't a liberal like yourself view that as violating the Eighth Amendment?"

David Lat has at that law school that's hosting a conference about whether George Bush should be convicted of war crimes — and executed.

What law school is this? It's the Massachusetts School of Law at Andover, which I'd never heard of. I note that it's a law school that does not require the LSAT:
Massachusetts School of Law interviews every applicant who wishes to attend the school. We believe the true measure of a person’s capabilities to be a good lawyer cannot be measured solely by sterile statistical data, which can never measure drive, dedication, obstacles overcome, perseverance, and a good heart....

Also, because of the considerable criticisms of the LSAT, Massachusetts School of Law does not consider the LSAT when making admissions decisions. Instead, it considers an essay test that the school itself has developed. The test is given at the time of the interview, and, most importantly, it is read and graded by a full time MSLAW professor who, based upon years of practical and academic experience, is well qualified to assess an applicant’s ability to think and write well. The requirement of a mandatory interview, the review of an applicant’s entire record in school and the work force, and the essay aptitude test enable the Admissions Committee to identify worthy students who would be denied admission to traditional law schools simply because of their LSAT scores.
This is an intriguing idea, actually! An applicant has to be interested enough in them to go there for an interview and to sit down and take a test. You can tell a lot about lawyerly aptitude by the way a person presents himself (or herself) in an interview. And I haven't seen the test, but if it's done right, it could very well be as good as the LSAT — and probably is more like a law school exam.

And, frankly, the conference isn't even such a terrible idea. It got our attention, it's a little bit inflammatory, but if the issue of war crimes is taken seriously and presented in an appropriately legal fashion, what is so bad about it?

ADDED: My Wisconsin Law School colleague Anuj Desai emails:
[Massachusetts School of Law Dean Lawrence] Velvel was the one who wrote an amicus brief in Grutter arguing that it is the over-reliance on the LSAT that necessitates affirmative action. You see whispers of the idea in Justice Thomas's opinion. (i.e. in the idea that Michigan's real gov't interest was not simply "diversity", but rather being elite and exclusive, while simultaneously having racial diversity).
From the amicus brief (PDF)
The type of affirmative action practiced by the University of Michigan Law School, and at issue in this case, is one that has been necessitated in significant part by the numbers-oriented admissions tools used by most law schools, especially the schools' heavy focus on the LSAT. Perhaps no other tool used in graduate school admissions has come under such attack in recent years as the LSAT, which for many decades has been the only admissions test approved by the ABA's Section of Legal Education. Because MSL uses a “holistic” approach to admissions, not a by-the-numbers approach, and does not rely in any way on the LSAT or any other standardized test, it does not need to use affirmative action in order to enroll qualified minority students. Rather, it considers a variety of factors when determining whether to admit a candidate, but race is not a “plus” or special factor in admissions decisions. In fact, MSL's admissions committee generally is not even aware of the race of an applicant. Yet MSL's minority enrollments are generally higher, year after year, than those of scores of the predominantly white ABA accredited schools. This is true even though New England has a low percentage of minorities, and a low percentage of minority college graduates, in comparison with such sections of the country as the Mid-Atlantic States, the South, and the industrialized upper Midwest where the instant case originates, and in comparison with major urban areas such as New York City, Chicago and Los Angeles, which are home to millions of minority citizens and to many law schools.

"Swiftboating Obama."

The NYT – using that title — is running a 4-minute clip from my Bloggingheads with Rachel Sklar.

The pitch of the "dic."

I've been teaching and writing about jurisdiction for almost a quarter century, but I've never thought about how to pitch the various syllables of the word. Today, I learn that it is a profound subject for academic inquiry!
We applied automated measurement techniques to recordings of 78 hours of oral arguments from the 2001 term of the U.S. Supreme court, in order to look at the (average) effects on pitch and time of primary word stress (e.g. the third syllable in jurisdiction), secondary stress (e.g. the first syllable in jurisdiction), and lack of stress (e.g. the second and fourth syllables in jurisdiction)....

We found that vowels with main word stress (1-stress for short) were distinguished by pitch from vowels with secondary stress (2-stress) , and also from unstressed vowels (0-stress). As the plot on the right shows, the 2-stress and 0-stress vowels were remarkably similar in their normalized pitch contours, while the 1-stress vowels were quite different.

The vertical axis is in semitones, relative to a Justice-dependent reference, defined as the 10th percentile of all F0 values for that Justice.....
Read the whole thing!



Would Obama handle "terrorism simply as a matter of law enforcement"?

Here's a nice, stark contrast between the candidates.

[L]et's take the example of Guantanamo. What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, "Look, this is how the United States treats Muslims."

So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.
McCain's Foreign Policy Advisor Randy Scheunemann:
Barack Obama's belief that we should treat terrorists as nothing more than common criminals demonstrates a stunning and alarming misunderstanding of the threat we face from radical Islamic extremism. Obama holds up the prosecution of the terrorists who bombed the World Trade Center in 1993 as a model for his administration, when in fact this failed approach of treating terrorism simply as a matter of law enforcement rather than a clear and present danger to the United States contributed to the tragedy of September 11th. This is change that will take us back to the failed policies of the past and every American should find this mindset troubling.
Via Memeorandum, which collects commentary here.

It's sharp of McCain to put Obama in this box. But it should also be seen that Obama's statement is vague in spots. He could wriggle out of that box (if he wants).

First, Obama says that there is a precedent for arresting terrorists and convicting them within the ordinary judicial process. Then, he says that the Bush administration has "never actually put many of these folks on trial." That's not quite saying that they all should be put through the criminal process, only that it gives a bad impression to the world not to send "many" to trial. He highlights appearances (rather than legal requirements). What will the world think of us? And he expresses the belief that capturing and holding persons accused of terrorism has "given a huge boost to terrorist recruitment." In his view, if the government were to use criminal procedures, would-be terrorists would somehow love us.

Obama's tumble of sentences creates a mood. Did you feel it? If he is President, the world will respect us and peace will reign. If you believe... enjoy the pleasure of the dream. You love him, so why wouldn't the whole world love us? We will follow legal procedures, not because they are required and we must follow the law, but because the world will look at us with love if we do.

But why would that happen? I don't understand the mechanism. It didn't prevent 9/11. Since when do terrorists admire western legal traditions? Someone needs to push Obama with follow up questions.

I suspect that what he wants to say is that he believes in the American legal tradition and is committed to following it, but that he thinks this position isn't sufficiently politically popular, so he resorts to a cause-and-effect argument — following the law will fight terrorism — that doesn't hang together.

John Yoo on the Supreme Court and its Guantanamo decision, Boumediene.

In the WSJ:
Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court.
Is this really a myth? Hasn't it been clear for many years that the conservatives needed a swing vote (or two, before Alito)?
Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school.
Oh, yeah, academics. When didn't they complain that the Court is too conservative?
Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.
Saves his claims of judicial supremacy? If you're going to use that inflammatory term, why don't you think it applies just as well to striking down the Gun Free School Zones Act and those attempts to abrogate sovereign immunity? (Justice Kennedy was in the majority in those cases.)

Courts interpret statutes and constitutional provisions and, in case of conflict, declare the Constitution the winner. To do that is to do what is required. It's not a power grab. The real problem — and of course Professor Yoo knows this — is interpreting the Constitution too broadly so that it beats out a statute when it shouldn't. That only deserves to be called "judicial supremacy" if the judge willfully expands the meaning of the Constitution to strike down a statute he doesn't like.

So, really, to put it undramatically, it all boils down to whether the majority or the dissenters had the better interpretation of the Constitution. Yoo, not surprisingly, agrees with the dissenters. Since he also, I assume, approved of the statute, his agreement with the dissenters doesn't test whether he's above the "brazen power grab" he sees from the majority. He wants this statute to survive.
The Boumediene majority ... assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.
Now, wait a minute. Yoo is not saying merely that the proper constitutional interpretation yields strong executive powers in the area of war. He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly.

Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.

I'm only saying that Yoo contradicted himself.

June 16, 2008

How thinking about the Post Office has affected the meaning of constitutional rights — and how thinking about the internet will affect those rights.

My colleague Anuj Desai is guest-blogging at Volokh Conspiracy.

ADDED: Much more here.

"In San Francisco, Del Martin, 87, and Phyllis Lyon, 84, were the first and only couple to be wed here..."

It's starting!

Look out!

Politics of the Penis.

Andrew Sullivan and Marc Ambider bring the imagery:
"One has the sense of deflation. I am a little ... I feel a little tired. Traffic's off a little bit. And everybody's kind of chilled."

"The Clintons are good for tumescence on the blogosphere...."...

"On the other hand, I just can't get it up for this story. Maybe it's just being not tumescent with Clintons."

I don't know why....

I like these 2 together....




"Camus, Bob Dylan, and Naked Women Painted Like Cows" — it's me and Rachel Sklar.

On Bloggingheads.

ADDED: Here's a clip from the end where we talk about McCain's possible Supreme Court nominations:

And here's my old post about McCain's judges speech.

On boldface and ludic reading.

I've gotten some use out of these bullet points. In case you were wondering about my newfound love of boldface.

The linked article deals with many aspects of the very interesting topic of how we read on-line... and whether our brains are getting rearranged in the process.

But here's the part that really pulled me in:
Ludic Reading

... Pleasure reading is also known as "ludic reading."... Two fascinating notions:
• When we like a text, we read more slowly.

• When we're really engaged in a text, it's like being in an effortless trance.
Ludic reading can be achieved on the Web, but the environment works against you. Read a nice sentence, get dinged by IM, never return to the story again.

I suppose ludic readers would be the little sloths hiding in the jungle while everyone else is out rampaging around for fresh meat.
I love this idea of ludic reading, but if it's about attaining a state of effortless trance, for me, the web environment is much more effective. In fact, it's dangerously effective! Hours and hours slip away as I click around and read and click some more. I never lose track of time while reading a book.

I feel bad about that. I'd love to enter a trance state and live completely inside of a book for many hours. But I have to force myself to stay engaged and keep going. I'm always thinking of other things and jumping up to read (or do) something else.

But on the web, the whole style of reading already incorporates this jumping around. Distractions are built into the experience.

Now, you might want to say this ludic web reading is self-indulgent and feeding what is some sort of attention deficit disorder of mine, but that is only because you are taking book-reading as the norm. Me, I resist the grip of an author wanting me to stick with his order of things, line after line, page after page. I can't find the pleasure in that. I'm not saying I won't read a book, just that if you want to know what is conducive to ludic reading, I say it's the web.

Alex Kozinski's wife (Marcy Tiffany) explains it all.

In a long, very carefully written email to the Patterico blog.

First, what do we think of this use of one's wife to run interference for you in matters sexual? For me, it's a little too:

But let's look at some text excerpts:
[T]he LA Times story, authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of “website” to which he posted pornographic material.

Obviously, Glover’s use of the word “website” was intended to convey a false image of a carefully designed and maintained graphical interface, with text, pictures, sound and hyperlinks, such as businesses maintain or that individuals can set up on Facebook, rather than a bunch of random files located in one of many folders stored on our family’s file server. The “server” is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely.
Now, it is a website, though, isn't it? Tiffany avoids saying that Glover falsely identified Kozinski's site on the web as a website. She can only assert that that he meant for readers to picture something more elaborate and accessible than it was.
As to how [the tipster Cyrus] Sanai accessed our server and was able to rummage through our personal files, frankly we are still trying figure it out. Apparently, if a person is able to find a link to an item in the “stuff” file, and he knows what he is doing, it is possible for him to reverse engineer his way into other items stored in that file without our knowledge or consent.
But wait! Kozinski himself welcomed visitors when he promoted himself in the "Judicial Hotties" contest run on the conspicuous blog Underneath Their Robes and provided links to his server. And what is this "reverse engineering"? Clicking around within a site?
A newspaper – especially a major newspaper as the Los Angeles Times purports to be – is supposed to be a responsible member of the community, not a predator. If the presence of certain files on a judge’s computer is a truly a newsworthy matter, it would have been so months earlier, before Alex was assigned [the Isaacs] trial, and certainly a few days earlier, before a jury had been chosen and the trial had commenced. But what excuse is there for timing the story with surgical precision so as to do maximum damage to the judicial process? In doing so, the LA Times caused the effort of the court, the parties and the 150 citizens who answered the call of duty by reporting for jury service from near and far to go to waste, just to make a big splash. This strikes me as worse than irresponsible.
I certainly agree with that and with much other material in the letter. The LA Times shouldn't have published the idiotic attack, and Kozinski did nothing wrong.

"Obama's new anti-smear website... It's the new go-to spot for Obama dirt."

Kaus quips.

Actually, I'm disappointed. That site hasn't fed us any new dirt since last week. Or am I wrong to try to read it like a blog and look for the newest stuff at the top?

The Associated Press seeks to dictate the terms of "fair use" of its copyrighted articles.

The NYT reports:
Last week, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words.
That would put a crimp in blogging!
On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was “heavy-handed” and that The A.P. was going to rethink its policies toward bloggers.
Good thinking.
“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said....

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”
I agree that bloggers shouldn't just cut and paste most of an article when all you are doing is pointing to an article or creating a place for people to comment on it, but quoting is extremely important. Much good blogging involves going through a text line by line and critiquing the precise wording. Even when all you are doing is saying here's a good article, you need to quote it a bit to interest people and make them want to look at it.
Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.....

“We are not trying to sue bloggers,” Mr. Kennedy said. “That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”
They are, however, trying to worry bloggers.

Lots of commentary collected here. I like this from Jeff Jarvis:
* I don’t really give a damn what your guidelines are. I have my own guidelines.... The point of fair use and fair comment is that there can be no set guidelines. That’s just ridiculous.

* I will say again that the AP should start using our linking and quoting guidelines rather than its homogenization practices....

The A.P. doesn’t get to make it’s own rule around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it’s clear that, like the RIAA and MPAA, they are trying to claw their way to a set of legal property rights that don’t exist today. And like the RIAA and MPAA, this is done to protect a dying business model - paid content.
As Jarvis notes, when we blog news stories, we often have a choice of sources and we drive traffic to the sources we link. Bloggers can make AP our link of last resort — or completely boycott it. That's going to cost AP, isn't it? And if the answer is yes, that goes a long way to proving that what we are doing now is fair use.

ADDED: Jarvis's guidelines:
Bloggers should not quote excessively from others’ content and when they quote it should be for a reason — to agree, disagree, comment on, recommend, correct (there can be many reasons). This is fair use and fair comment. There can be no word-count limit because it depends on the use. If I want to fisk a story, I may well quote the whole thing because I am commenting on it all. The test is reasonableness: a fuzzy test, but life is fuzzy.
Jarvis versus lawyers:
My suspicion is that it’s the lawyers who got the AP into this mess. My best advice for the AP’s executives is that they should try to practice the bloggers’ ethic of the link and quote themselves (updating their news values with one more value). My next-best advice is that they should walk down the hall and tell the lawyers to put a damned sock in it or send them off for a very long off-site on a golf course where they can do no harm. This is not going to be resolved enforcing the fine print of outmoded laws built for an extinct age. This is a constantly changing landscape that must be maneuvered with flexibility and openness. But if those lawyers continue to threaten bloggers who know more about this new age and are only practicing their appropriate ethics, I will continue to use this space to suggest where socks should go.

June 15, 2008

"Being gay is like belonging to an 'exclusive club.' I just worry that the drive to marry will end up kind of chipping away at the culture."

That's a quote from Clint Wolbert, in a NYT article titled "Gay Couples Find Marriage Is a Mixed Bag." I wasn't going to blog that article, but I went back to it today when it was cited as the solution to a secondary puzzle within the big puzzle I asked for help about here. That is, I was getting a few visitors who were searching for the name Clint Wolbert — someone I didn't remember ever hearing of though my blog came up second on these searches. My update explaining the source of the blog traffic brought Wolbert to the blog comments over there, where he wrote:
My point in the article was that gay people should acknowledge that marriage is a double edged sword. It's great to have the option to marry. Some day far away I'll probably avail myself of it. But the more gay culture takes on the trappings of heterosexual normalcy, the less distinct the culture will be. And I like the culture.

The photographer and I were talking about this subject and he equated it to when Jackie Robinson, et. al. were invited to participate in major league baseball. It's great, a watershed, a step in the right direction. But that meant the community built around the Negro Leagues was going to disappear. That's a net positive, but only because the benefit outweighed the detriment. The detriment did in fact exist.

It's the same with gay marriage. Nothing is black and white. It's great that gay people can marry, and it's great that more gay people have these rights in the US now than ever before. But people should be aware that gay marriage comes at a price to the community. (A price that's worth paying, definitely, but still, it's a price).

It's tough to capture that sentiment in a sound bite.
I thought it was cool that he stopped by, but I'm not writing a separate post merely to marvel at the coolness of blogging. I wanted to set up a place to talk about the actual issue. I'm glad Wolbert expanded on his point, because, reading the article, I assumed he was like those gay activists who gave Andrew Sullivan hell years ago for arguing in favor of gay marriage. It used to be much more common to expect gay people to be radical and to critique conventional society — not to want to join it.

ADDED: I'm trying to find video of the great debate that Sullivan (and Norah Vincent) had with Richard Goldstein and Carmen Vasquez, but I did find this 2002 article by Camille Paglia that describes it.

Up the garden path.

Garden path

"The hole in your heart when you don’t have a male figure in the home who can guide you and lead you."

Barack Obama, speaking from personal experience... and deviating from politically correct feminism.
Mr. Obama cited the need for stronger law enforcement services and resources for education, more job opportunities and other resources for communities.

“But we also need families to raise our children,” he said. “We need fathers to realize that responsibility doesn’t just end at conception. That doesn’t just make you a father. What makes you a man is not the ability to have a child. Any fool can have a child. That doesn’t make you a father. It’s the courage to raise a child that makes you a father.”
There are a lot of women raising children alone — or with another woman — who don't like to think that their children are missing some special "guide" or "leader" because there is no male parent figure. This is not to say that such women don't see the value of a good father, only that they find something offensive in saying that the "male figure" in particular is needed. And Obama is saying that it is so important that it left a hole in his heart:
“I know the toll it took on me, not having a father in the house,” he continued. “The hole in your heart when you don’t have a male figure in the home who can guide you and lead you. So I resolved many years ago that it was my obligation to break the cycle — that that if I could be anything in life, I would be a good father to my children."
Now, I know what he is trying to do is to push more men to be involved in their children's lives, but the way he is saying it, he is siding with traditionalists who think the male role is special, distinctive, and necessary.

ADDED: Matt Yglesias strains this out:
This one will, I expect, be a pretty big hit politically, too, since it has certain conservativish resonances about the centrality of family conditions to our social problems.
Pussyfooting is so loud. You'll have to click on the link to figure out whether Matt agrees with the NYT that Obama was talking about black men.


Holdfast said:
Obviously his mom did a pretty decent job raising him...
I said:
Actually, he spent a lot of the time with his grandparents, and his grandfather was the father figure. Maybe he should read Clarence Thomas's memoir ("My Grandfather's Son").
Thomas, like Obama, spent much of his youth living with his married grandparents. Thomas lavishes credit on his grandfather. Perhaps Obama would say that Thomas does have a hole in his heart.

Zachary Paul Sire said:
Obama is just pandering and doing what he's "supposed" to be doing...same thing goes for him helping fill sandbags in Iowa.
Palladian said:
So you're admitting that he's a phony liar? That he doesn't actually believe what he's saying? That he's just lying to the "heartland" in order to get elected and implement his anemic socialism?

If this is true, then where's this "change" we've heard so much about? Or is that, as many of us suspect, just another empty political lie? If he's willing to lie and pander to the "heartland" about the need for fathers then what makes you assume that he isn't lying about all that "hope" and "change" nonsense in order to pander to urban liberals?
William said:
Wow, yesterday Obama came out in favor of bike helmets and today we note that he is in favor of fatherhood. He certainly is not afraid to take a forthright stand on the tough issues....We are all pocked with emptiness. It is what we use to fill up those empty spaces that defines us. I wonder if the Rev Wright wasn't in some way a father figure. If the abandonment by his father was the central trauma of his life, then Obama has re-enacted that trauma with the Rev Wright. And perhaps he will find some other blowhard to re-enact it with again. I think O'Neill, no stranger to childhood trauma, observed that the past is never really past. We keep revisiting the same pain, hoping to make it turn out right. And it never does.
Unfairly psychoanalytical? Obama's text invites it.

Lou Minatti said:
Ya'll do realize this was Obama's Sister Souljah speech, right? The speech wasn't aimed at men who abandon their families, it was aimed at white middle-of-the-roaders, aka Reagan Democrats.
Amba said:
It's not so much that men and women have different roles. Their roles are much more alike now than they used to be. It's not what they do but what they are: how they sound, how they feel, how they smell. A sense of protection and authority emanates from a man because his voice is deep and his body is solid. This is very primal. It's like the sun and the moon.
This reminds me of a conversation I had recently about whether, in an egalitarian heterosexual relationship, the man should protect the woman and whether she should want the feeling of being protected.

AJ Lynch said:
Is it hard to write a book in tribute to your father after he has left a hole in your heart?

FYI - Senator Obama is a phony.
I think Obama knows he failed his mother by concentrating on his father the way he did, but, to be fair, the book is not so much a "tribute" to his father as it is a search for what he missed and an expression of regret for loss. As he said in the speech at the church yesterday, he made that longing for a father central to his own life as he became the good father he did not have.

ADDED: Donald Douglas says he was "surprised" that I "ridiculed Obama's speech from a feminist perspective." Where did I ridicule him? My point is that he disrespected a point of feminist dogma. I didn't take a position on the correctness of the dogma. I just want everyone to see that he crossed feminism here. I want that noticed. He threw a bone to traditionalists, and you were so into gnawing it that you didn't notice that I was not talking about whether children need fathers.