Res Eclectica

Update - January 29, 2012

2012-01-29T10:04:00.000-08:00

What a year this has been! Shortly after my last post, I was offered a job at a prestigious small firm doing, well, pretty much every kind of law imaginable. I was relatively well paid, I liked my co-workers, I adored my boss, and I was given the sort of responsibility that first-year associates at large firms can only dream (or is it have nightmares???) about.

I was eating overpriced salads at fancy restaurants, looking down on City Hall from the picture window in my plushly carpeted office, and racking up a lot of billable hours helping rich people squander their money, whether on divorces or pet civil rights suits.

In short, I was doing the sort of interesting work that would put me on a list of "Promising Young Associates" in some bar periodical (which would of course duly make its way on to my biography at the firm's website). This was an incredible opportunity; an opportunity that ninety-nine percent of law school grads would kill for. There was only one problem with all of this: I hated it.

I had become exactly the sort of intellectual prostitute that I had dreaded becoming since I started law school. Maybe I would have accepted this fate if I hadn't spent the previous nine months doing something that I loved, even if I had been doing it for free, surviving only on my family's grace and charity.

So, a couple of months into it, when I got calls from a couple of the DA's offices that I'd interviewed with before I started work at the firm, there was no real choice for me to make. I hated that this meant disappointing my boss (which in turn meant alienating the friend who'd helped me get the initial interview there), but I needed (and I mean that) to take one of these jobs.

Flash forward a month, and I was the newest hire at an office in a part of Northern California that was at once both friendly and alien. Miles and miles of open roads separate the "cities" of my new, sparsely populated county; people wave to each other when they pass in the streets, and wish each other a good morning. It's like Mayberry with drug killings, and it now feels like home to this erstwhile beach bum.

I work hours that are not much shorter than the ones that I worked at the firm, the pay is terrible, the facilities are antiquated, and the view from my office is, well, the wall of the basement that I work in. That said, I love my job, and I love my new life.

(As a sidenote, after two and a half months of pleas and continuances, I finally got out to trial last week on a prescription drug DUI. Thirty minute guilty verdict. The monkey is off my back.)

Status Update

2011-07-13T08:44:00.000-07:00

I haven't posted much over the past nine months because I was working about sixty hours a week in a criminal law position, but I have since left that position; between now and getting a permanent job (hopefully soon), I intend to post my thoughts on the way that the criminal justice system (mostly) works (and occasionally does not work). Stay tuned.

Libya

2011-03-16T19:11:00.000-07:00

Such sad cowardice of inaction by the Security Council. Shame on them, and shame on the United States, the UK, and France for letting the moment pass.

Parallax / Dead Before Arrival

2011-02-19T15:25:00.000-08:00

What could have been,
What should have been,
What now will never be:

For a brief moment
In the late afternoon
We meet,
And heady, heavy thoughts pass between us.
We are entangled
And the Universe is our plaything;
I can't tell up from down,
And, strange as it seems,
You are the only absolute.
Are you as charmed as I am?

For a brief moment
In the late afternoon,
We meet,
And all of our forking paths are illuminated.
They seem to converge
On some distant, frigid curve,
But so long as we keep on colliding
I don't give a quantum of thought
To staying on top of my feelings
Or getting to the bottom of my doubts.
They all seem so relative now.

But the moment passes
In the late afternoon,
We part,
We quietly capitulate,
And our paths diverge and slowly fade from view,
Until they lie scattered and impotent
Like seeds cast into the wind.

Professor Recommendations to Current and Future Boalt Students

2010-11-14T19:07:00.000-08:00

Since I am nothing if not a giving person, I bequest something to future generations of Boalties: However, because I am flat broke, my bequest will be valuable rather than expensive. Thus, I present my list of classes and professors that you should take.

(Let me preface this by saying two things. First, most of these are not easy classes. Rather, they are sometimes interesting classes that are taught by always interesting people. In my experience, that made these classes worthwhile even when I only got a P (too often). However, this should only pose a problem to gunners (to whom I do not bequest this list) and to those unfortunate students like me who find themselves caught in a bad economy. (Latter, take heart! I graduated in 2010, and it cannot be worse for you.)

Second, I am a cynical, cynical person. Shocking though this might be, I like my professors to be similarly cynical. Thus, there is a heavily realist slant to most of these professors, although a few of them are fairly doctrinal.)

The list:

1) Pat Hanlon - I had him for two classes: Regulation of Lawyers and Advanced Torts. I didn't spend a whole lot of time in RoL, but this wasn't his fault (I was pretty disgusted by the rules of ethics, and he did a pretty good job demonstrating that he was pretty disgusted by them too), and every class that I did attend was entertaining, especially later in the semester as he hit his stride. AT was pretty good, especially when people actually read for class (since Patty is fun to spar with). In short, he was one of the brightest professors that I met at Boalt, and I enjoyed every conversation that I had with him.

2) William Fletcher - Take Fed Courts. Just do it. You'll make excuses not to - it's three times a week at 8:30 a.m.; it's full of gunners; you only need it if you're going to clerk for a federal judge - but he cancels half of the classes, since he needs to, you know, judge stuff, you can ignore the gunners, and it got me interested in the Eleventh Amendment, which I eventually wrote about for my writing requirement. Furthermore, this was by far the most interesting class that I took at Boalt, and Willy Fletcher is a very bright, very interesting, and very nice person. Besides, how often are you really going to get to pick the brain of a sitting Ninth Circuit judge? (Don't expect much interaction from him in class unless you are on call, but his office hours are definitely worth attending.)

3) John Yoo - A lot of professors are famous (at least within legal circles), but how many professors are infamous? Well, only one that I know of, and he ended up as my writing requirement advisor. That said, John Yoo is an incredibly nice person both in and out of class (in which he tends toward doctrinal explanations), and rather than joining the unsavory masses who would condemn him without benefit of a trial, you could actually suck it up and hear his perspective on the constitution (which is interesting, even if you and I may disagree with much of it). Also, at least one of your classes will be disrupted by aging Berkeley hippies wearing robes and hoods; given how insulated Boalt is from the rest of the campus, this was a taste of the craziness that is Berkeley.

4) Mel Eisenberg - The reigning king of contracts. He won't remember your name (unless you're an attractive blonde), but he is a damned good professor, and entertaining to boot (he has an amazingly quick wit).

5) California Con Law - This is taught by two earnest and knowledgeable if not particularly entertaining practitioners, and the subject matter can be pretty dry and arcane, but if you are going to practice in California, knowing something about our constitution might be kind of useful. It may also lead you to lament our system of direct democracy.

6) Cris Arguedas and Goerge Cotsirilos - They jointly teach one section of Criminal Trial Practice each year. They are both good, and the fact that there are two of them allows them to split the class up, which in turn gives you a lot of practice cross-examining people (which, if you have never done it, might be the most fun that you will ever have standing up). Cris is especially fun, since she teaches a very aggressive method of examination. Finally, the class culminates in a trial before a Contra Costa Superior Court judge and a jury of local high school students. My only regret was that the class is P/F.

7) Chuck Denton - Another trial advocacy teacher. He's an Alameda PD who provides an interesting contrast to Cris, since he teaches a very casual (and deceptively friendly) method of examination. His class is graded (for me a good thing), but the large class size minimizes your opportunity to practice the skills that he will teach you. He's also a really interesting guy to talk to outside of class (I flubbed Macbeth, but he picked me up and gave me the line).

8) David Sklansky - He's really good, and he does everything in his power to make evidence as enjoyable and interactive as possible. (Given his use of multimedia presentations and degree of skill with multimedia equipment, there were also quite a few battles of Sklansky vs. the machines.) Most of the women in my class found him to be middle-aged eye candy, so add a bonus point if you like men. The only downside is that his final was hard. Like, really hard. Like, harder than the evidence questions on the MBE.

Finally, on the off chance that they come back to Boalt as visiting professors, take any class that you can from Reza Dibadj (USF, business law) and John Diamond (UC Hastings, torts, crim, and media law). They are both awesome!

It's All In The Framing; or How To Fix Prop. 13 In One Easy Step

2010-11-14T18:27:00.000-08:00

Prop. 13 is a problem. It forces the state to fund services that are, in the vast majority of other states, funded by local government. While this may not seem to be inherently problematic, the supermajority requirement does not give the state the ability to do this, as the last ten years have proven. Thus I present a dirty if elegant solution to what has been labeled the third rail of California politics.

The first step is to get rid of Prop. 13. This will not be easy, and will be next to impossible unless the proponents of the proposition are willing to play a little dirty by pulling a bait and switch. Since getting a majority will be impossible unless at least some independents and/or conservatives support the proposition, the trick is finding a way to trick them into doing so. Thus I propose using their own prejudices against them.

Since forcing the state to gather all revenue for local services necessarily also means allowing the state to apportion funds for these services, the trick is to convince people that reverting to local control will allow local school boards to exercise greater control over gathering and allocating school funds. In wealthy parts of the state, that would play well, since people there generally do not like the fact that their funds are currently being used to fund schools in low-income neighborhoods. In poor, conservative parts of the state, this would play well since they can delude themselves into believing that they will be able to teach creationism.

The reality is of course that neither of these beliefs would be true. The state constitution still requires some amount of equalization of funds, and the increase in property taxes that would result from repeal would very likely increase funding to low-income districts. Similarly, the state constitution places significant control over curriculum in the hands of the state superintendent of schools. But these realities need not be brought to the attention of the voters, and if the last election tells us anything, the establishment of a few conservative sounding organizations that will vociferously attack those who oppose the proposition as being against local control ought to get be worth at least a few centrist and conservative votes.

Tooting My Own Horn About Being Hoisted By My Own Petard

2010-11-14T18:12:00.000-08:00

The time is Friday morning; the place, my office.

There I sit beneath flickering fluorescent lights in my bare-walled, windowless office, furiously tapping out the direct for my first ever appearance in court: A response to a motion to suppress. I have been thinking about it for the better part of the week, putting my thoughts to paper whenever I have a spare moment.

It's getting good. I am going to use my officer to introduce three exhibits, and when I am done, the judge will have absolutely no doubt that the officer had reasonable suspicion for the stop. I am putting the finishing touches on it when my phone rings. It's opposing counsel.

I'm conceding, he says, I thought I had you until I read your brief. Your alternative argument headed me off, and I don't see the point of arguing a motion that I can't win.

Damn! I think, I had been looking forward to this for two weeks.

I see him in court in the afternoon. He tells me that he had never even heard of the code section that I cited, but when he looked it up, he realized that he couldn't win. He tells me that he is sorry that he can't give me the argument that I was seeking, but that he would be happy to write me a letter of recommendation based on my writing skills alone.

It's ironic, I think, I have been researching and writing for the better part of three years, and the skills that I have developed have prevented me from doing the one thing that I need to prove that I can do before I can land a real job.

Next time I will have to be less thorough in my brief.

New Rules, Part 1

2010-11-11T08:00:00.000-08:00

1. Chuck Norris is not awesome.
He is the star of movies that are so bad that even networks that have no qualms about airing Wild Wild West in prime time will not air unless the alternative is an infomercial that does not feature Billy Maze (also bearded, but inexplicably more awesome than Chuck Norris). Also, since retiring, Norris has spent a good chunk of his time stumping for Mike Huckabee, who is awesome only in comparison to hypocrites like Rand Paul and lunatics like John Shimkus.

2. Neither are ninjas.
I get that this is supposed to be ironic, but ninjas, like Chuck Norris, are simply played out. Unless of course they are also turtles. But only the 1980s ones that don't sound like middle-aged plumbers from the Bronx.

3. Bears will always be awesome.*
This picture (or one that is substantially similar) was on the front page of the LA Times the other day. I am not sure that the picture exactly captured the substance of the article - the effect that climate change is having on Yellowstone's grizzly population - but the picture does exactly capture why bears are awesome.

*Or at least they will be until the thesis of the article is realized.

The One Lesson That I Wish Democrats Would Finally Learn

2010-11-05T21:36:00.000-07:00

When you offer voters a choice between conservative and conservative light, the liberals will stay home, the moderates will flip a coin, and the conservatives will vote for the real conservative.

How many times do Democrats need to get reamed in elections before this will finally sink in? I feel like this happens every election cycle. Republicans condemn liberal values to the point that liberal has become a dirty word, and the Dems with less testicular fortitude distance themselves from these values and lose. Instead, they need to own these values; be proud of these values. When their Republican opponents challenge them on those values, the candidates should stand by them rather than qualify them or back away from them.

From the files of the smells like a fish dept.

2010-11-02T21:29:00.000-07:00

With the economy as bad as it is, I'm not terribly surprised by tonight's results.

That said, am I the only one who finds it odd that there was a suit challenging Don't Ask, Don't Tell a mere month before the midterms, that this suit was filed in a courthouse in which there are exactly two judges, that one of these judges (the one who decided the case) is extremely liberal, that this decision forced the Obama administration into a binary decision that was sure to alienate a large group of voters, and that this suit was filed by the Log Cabin Republicans?

I'm just sayin'.

The Res Eclectica Attractiveness Paradigm

2010-10-30T20:32:00.000-07:00

First postbar blog post, and boy is it an intellectual doozy! After conversations with a few people, I have decided that what the world needs (at least more than any of my other harebrained schemes) is a standardized ranking system for attractiveness. Why? Well, as the second sentence implied, because there is not one.

But, you protest, everyone knows that attractiveness is rated on a scale of one to ten.

True, I retort, but this scale is anything but universal.

For example, to many, this is an absolute scale in which there is some hypothetical ten against whom all others are compared. However, I find this model wanting. In the same way that certain Olympic sports rely on judges rather than stopwatches, this model of attractiveness attempts to objectively quantify traits that are anything but objective and quantitative.

The limitations of this model are rather readily apparent at hotornot.com. A quick glance at the site shows that people tend to rate with compassion rather than honesty, such that the scale effectively runs the gamut from 7.5 to 9.8. Thus, hotornot, like Lake Wobegon, must be that rare community in which all the members are above average.

Or not.

In my opinion, raters tended to inflate the grades of the less attractive posters while oddly simultenously underrating the most attractive posters. This created a weird discrepancy in which girls who would never need to buy their own drinks in LA were within one tenth of a point of girls who couldn't get a free drink in a Pensacola dive bar.

Thus, I present the Res Eclectica Attractiveness Paradigm:

In this model, the person (because girls can use it to rate guys, or, for that matter, girls too) is not judged against some hypothetical standard of perfection. Rather, the person is judged against a panel of ten people randomly selected from the population at large. The rating comes from how many people you would expect to look better or worse than the person being rated. Thus, a ten would, in general, be the best looking person in the panel, a one would, in general, be the worst looking person, and a completely average looking person would, in general, be a 5.5.

But is this model practicable? Of course. You could create a program that would collect pictures from about two thousand random people, and then have people rate the pictures in randomized groups of ten. I am told that something similar was portrayed in Social Network, and it seems like it ought to be easy and generate more realistic results than hotornot.

Comments?

Question of the Day

2010-05-09T11:48:00.000-07:00

Is it hypocritical to offer congratulations to someone for accomplishing something that I have always wanted to avoid like the plague?

I think that it is not, inasmuch as I am complimenting them for achieving something that they find important, but it is interesting to me that social norms don't compel me to want this, but that they do at least compel me to offer my congratulations.

The Dangers of Logical Illiteracy

2010-02-26T19:11:00.000-08:00

"You can't make chicken salad out of chicken shit."

Oddly enough, it took reading a part of the Unabomber's manifesto to get me around to writing on a topic that has been buzzing around my head for a little over a week now.

(To be clear, I am not going off the deep end; I am writing a motion to suppress for a criminal pretrial practice class, the fictional fact pattern centers on a warrantless search of Unis Bomber's cabin, the fact pattern did not include a date and I wanted it to be mildly authentic, and those who know me know that I am easily and happily sidetracked.)

That topic is The Tipping Point, Malcolm Gladwell's paean to the triumph of the will. One of the basic premises of the book is that, with a little bit of luck in the form of date of birth and support from friends and family, an investment of 10,000 hours in anything will thee an expert make. In short, Gladwell seems to believe that nurture really does triumph over nature.

This is an awesome idea for self-affirmation and motivation. The only problem is that it is probably incorrect. Although investing 10,000 hours in anything will undoubtedly make you better at it than you were, this investment will not necessarily make you good at it on any sort of absolute scale.

In fact, I suspect that the problem with Gladwell's analysis comes merely an error in logic: While Gladwell essentially asserts that hard work and practice are sufficient to develop talent, I would argue that they are merely necessary conditions, and that much of the difference in input confounds another variable: Natural talent.

I say this because I believe that there is a measure of self-selection involved in the investment of what amounts to five years of forty hour workweeks. That is, those who choose to invest this much time in something do so at least in part because they are naturally good at it, and believe that there will be some sort of payoff.

For example, although I play a lot of beach volleyball (and am quite good at it by most objective standards), I will never be an AVP player; at the end of the day, no amount of practice will make me three inches taller, and while I might hypothetically train hard enough to have a thirty inch vertical, I will never have a forty inch vertical; my muscles just don't work that way.

Because of this, I don't invest a significant amount of time training to play on the AVP. Rather, I play when I can and enjoy volleyball on its own terms, and I humor the friends that I have who have deluded themselves into thinking that they are good enough to play on the tour. Although their investment has certainly made them better players, their belief in Gladwell's premise has only thus far served to transfer wealth from their own pockets to those of the preternaturally talented and hard working professionals.

It is somewhat amusing to me that Gladwell dismisses the idea of natural talent by setting up the straw man of geniuses who have never lived up to their childhood potential. Given Gladwell's preference for the anecdote, it is not terribly surprising, but it is still the wrong measure for him to use. Rather, he should seek to demonstrate that the investment of 10,000 hours never leads to anything other than virtuosity. But I suspect that this would be an experiment at odds with his hypothesis; perhaps this is the reason that he does not run it.

He Said, She Said

2010-02-16T22:37:00.000-08:00

[Ed. note: This comes from a series of comments following "The Crow", an essay that I wrote in 2006 that described my sometimes irrational dating tendencies. An anonymous commenter apparently decided to Step Up 2 the Fountain Pen with me. I have substantially altered the poems that said commenter wrote, and I present them along with my rebuttals as a sort of poetic conversation for your reading pleasure. (If the commenter wishes to receive billing for his/her contributions, s/he should let me know and I will happily arrange this.) If you are interested in seeing the original exchange, it is in the comments section of the above link. All of that said, I present "He Said, She Said"]

She said:

Oh shiny bauble, shiny bauble oh!
Shine your brightest shine; shine it for the crow.

Yes, bauble be light, and be thou so bright;
Be the first trinket he spies in the night.
Bauble be soft, be so gentle and slight,
Be thee so lovely, and bring him delight.

Don't show him your pain, just grin through your grief,
Give your whole self to his passing relief.

Yes, bauble be quick, waste not your sole chance,
Thou dare not miss his first, last, lusting glance:
For the crow looks not for deep buried gold;
The crow waits not for your thoughts to unfold.

He said:

Soaring swiftly above the verdant grass,
On broad feathered wing, the crow doth quick pass;
Then with his sharp and trained and able eye,
He doth a tiny, shiny bauble spy.

And as he flutters down toward the ground
He wonders what he has in this field found.
Will he within his yearning talons hold
Not trifling trinkets, but genuine gold?
No, not yet for our melancholy crow,
The weight of true gold he shall not yet know.
'Tis but instead another wasted night
Where he found naught but genuine pyrite.

She said:

Lush and verdant, flowing and soft,
An earthly home, but a spirit aloft.
Mired in mud, covered in clay,
The hidden, golden girl, truth doth betray.

Frigid, forbidding, vaporous, and high,
His heart's darkness mirrors the midnight sky.
The crow calls for love, but settles for lust,
And acts surprised when he wakes up with dust.

And so the story goes, tragic and trite,
She stuck on the ground, and he lost in flight.
For love is not loud, but subtle and soft
Like the warm breeze that keeps our crow aloft.

So crow, when you have the time to piddle,
Solve for me this old but comely riddle:
Blind thy sight, O my crow, and see beauty unfold,
For the alchemy of the heart turns gravel into gold.

He said:

Thou speaketh a riddle, dusty and old:
That I may transform a golem to gold.
Yet were I to this golden girl behold,
Where once stood naught but naked mud and mold,
I fear that I'd find from this tale you’ve told
A hand far too frigid for me to hold,
And two lips, likewise, unkissably cold.

No, none but Midas would wish for such things,
For gold be less apt for flesh than for rings;
And the spoiled fields of love are littered
With those who sought only that which glittered.
Therefore, this crow has come to understand
That he’d rather know the warmth of a hand;
For ‘tis not in gold in which love's enmeshed,
But in the reunion of minds and flesh.
Now, Mighty Sphinx, I have done as you asked,
I've shuttered my eyes, and in your words basked:
Burgeoning radiance, I felt indeed,
But more than that, I felt a soul in need.

She said:

You are, but you aren't, the infamous crow,
So let’s return to a moment ago
When I perhaps too hastily implied,
That your ambitions were not bona fide.

Now one last time, sweet sir, before we part,
Listen to the pleadings of this poor heart:
For through the shadows into which you've flown,
I see you sit, and yet you sit alone.

Can a spark from the past yet catch your eye?
Please tell me, dearest crow, what chance have I?
If it be extant, I do thee beseech
To take my warm hand; I’ll keep it in reach.

He said:
From where I perch above shadow and cloud
I can see you, calling, from the morass,
And though your winged words reach me clear and loud,
Into my stoic chest they shall not yet pass

For the hand is not so quickly offered
That sought the bloom but found only the thorn;
And the heart is not so quickly proffered
That sought your love but found only your scorn;

Yet adversity often brings rebirth:
For the forest needs the raging fire
To regrow, lush, upon the blackened earth;
Like the phoenix rising from its pyre.

So though your scorn did my hard heart once rend,
In time, your loving words could it too mend.

Riposte to Ben Jonson

2009-12-05T13:22:00.000-08:00

Ben Jonson's Song: To Celia.

My answer:

Drink to me with thine eyes thou didst
And thus I pledged with mine;
Yet when inside the cup thou kissed,
I tasted naught but wine.
So though my soul sought Jove’s sweet juice,
And all the more sought thine,
The thirst that from my tongue sprang loose
Found tastier the vine.

Chuck and Donna

2009-12-01T18:44:00.000-08:00

As up we grew, it seemed to me,
The only thing that we did hear
From those who held Us Both so dear
Was that We Two were meant to be:
Just Thee and Me, and Me and Thee;

And when I left, it seemed to me,
That those who held Us Both so dear
Told us we'd naught but fear to fear:
When back I came, We would yet be:
Just Thee and Me, and Me and Thee;

When back I came, it seemed to me,
That we'd but one course left to steer,
For those who held Us Both so dear;
That it was time for Us to be:
Just Thee and Me, and Me and Thee;

But when We were, it seemed to me,
That things 'tween us were at once queer,
That to us both it was soon clear
That We were never meant to be:
Just Thee and Me, and Me and Thee.

And since We split, it seems to me
That only those who held Us dear,
Have shed for Us a single tear,
For we, at last, are free to be:
Just thee and me, and me and thee.

Untitled As Of Yet

2009-12-01T08:24:00.000-08:00

It’s time to play our special game
It’s time to play once more;
It’s time for us to dance again
The same dance as before.

So left and right, and cross and round
This well-trod floor we whirl
Our hips and lips not touching yet
In rite of boy meets girl;
Our hips and lips not touching yet,
But eyes and fingers bound.

Then round and down, and down and round
This winding path we go.
With whispered lies, and tangled thighs,
And hearts and cheeks aglow;
With muffled sighs, and blindered eyes,
We dare not take it slow.

Yes, round ourselves and round again,
This tangled web we weave;
Yes, round ourselves and round again,
That we may never leave:

It’s time to play our game again,
This game that we both know;
It’s time to dance our dance again,
This tired dosado.

Conversation from P'cola

2009-11-30T21:40:00.001-08:00

Part of a screenplay that I wrote (unfortunately, the sum of the parts far exceeded the whole):

DARRYL
Do you guys ever think about karma?

JAY
Sometimes, why?

DARRYL
‘Cause I’ve done some bad shit in my life, and I’m probably going to do a lot more, but sometimes I think that maybe the reason I don’t get laid more is because I haven’t built up enough karma to cover the spread. Do you think I need to do some good things? You know, like in Pay it Forward?

Jack
I probably wouldn’t model my life on a movie, but on the other hand, I guess it wouldn’t hurt for you to do some good things.

DARRYL
I don’t know, man. But I’ll tell you what I do know. I need a job. And not just a job, but a job that pays a lot of money.

Jack
I thought you just got one. Aren’t they paying you like fifty grand to start?

DARRYL
Yeah, but they want me to work sixty hours a week. I don’t want to work sixty hours a week. I want to have a lot of free time.
(beat)
What do you guys think of the mafia?

JAY
The mafia?

DARRYL
Yeah. Do you think you have to be Italian to join?

Jack
Dude, I don’t know, but don’t you think that joining the mafia would kind of, I don’t know, get rid of whatever good karma you’ve earned?

DARRYL
Maybe, but if it pays well, I think I could live with that.

Jack
So you would just kill somebody if the price was right?

DARRYL
I don’t know about that. That might be kind of tough, but I’d definitely be down for breaking people’s legs.
(beat)
Maybe I should become a lawyer.

JAY
Lawyers work pretty hard.

DARRYL
Yeah, you’re probably right. But did you know that you don’t need to go to law school to become a lawyer? No joke. I read a book about it.
(beat)
You know what bugs me?

JAY
No fucking clue, man.

DARRYL
It bugs me that I never get hot girls. I go to all these places: restaurants, bars, the movies, and I see these really hot girls, eights, nines, tens with these ugly ass guys, fours and fives and sixes. I mean, why do these guys get hot girls? What do they have that I don’t?

JAY
Good karma.

Jack
Yeah, why should you get a hot girl? You’re all set to join the mafia. You lost your right to have a hot girlfriend.

DARRYL
No, I’m serious.

JAY
Come on, man. You’ve had some hot girlfriends.

DARRYL
Nah, man. All of my girlfriends have been like fives and sixes.

JAY
What about your last one?

DARRYL
Yeah, she was really hot, like a nine or ten. But she was a bitch, so she doesn’t count.

JAY
See, there’s more to it then.

DARRYL
Nah. I’m getting older. I mean, I think I’m at the age where I’m willing to sacrifice personality for looks.

Jack
Isn’t it supposed to work the other way around?

DARRYL
Fuck that. I just want a really hot girlfriend. Just once. I want to walk down the street with a girl so hot that every guy we pass is jealous. That’s what I want.

Changing Tides and Shifting Winds

2009-11-25T18:11:00.000-08:00

To any soul who has actually perused this blog on more than one occasion:

Over the past week, you might have noticed I have focused less on policy, law, and current events, and more on my own creative writing. As I mentioned a few months ago in a post that I have since deleted, when I first started publishing this site, I had no intention of using this site to indulge in an electronic monologue. The goal of this site had always been to develop some sort of salon, where talented and thoughtful friends and classmates would chime in on issues that they found pressing. That goal never really materialized.

Because of this, with only six months remaining in law school, I have decided to spend the next semester focusing on creative writing. (I am not sure where life is going to take me, and I may end up in a position where I have neither the time nor the energy to indulge in creative writing.) Thus far, I have posted a poem that I wrote this past week, a few poems that I wrote over the past several years, and a couple of essays that I wrote in 2006.

I intend to write a few more of everything before I am done. When said new pieces are at a point that they are at least (and perhaps at most) not completely embarrassing, I will throw them up on the site as well. I invite comment, but I do ask that you try to keep your comments constructive.

Best,

C

The Crow; or A Logical Deconstruction of Romance in My Life.

2009-11-24T11:39:00.000-08:00

"Desire leads to suffering." -Second Noble Truth

I am a crow. I am attracted to shiny, pretty things. Only instead of shiny, pretty bottlecaps, I am attracted to women; shiny pretty women. Shiny pretty women who aren't always attracted to me. Do bottlecaps ever reject crows? Do crows ever feel rejected?

I am always a crow, but sometimes I am also a moth. Sometimes I am attracted to shiny things that are bad for me. The problem with being a moth is that when you are attracted to shiny, pretty things that are bad for you, you often get burned. But at least when you're only a metaphorical moth, as I am, the wound is only to the psyche, and you are still alive to learn from your mistakes. Sometimes you actually do.

"Fool me once, shame on...you? Fool me twice...uh...won't get fooled again.” (Does that moment of ineloquence of thought and expression make you want to sit down and have a beer with me, too? Wouldn’t I make a great president?)

Not being fooled again has its advantages (it's certainly low risk), but it has its disadvantages too (it's also certainly low reward), because then you never experience the joy of putting yourself in a position to get burned, fully expecting to get burned, and not actually getting burned. And isn't that what joy really is? Not having someone live up to your expectations, but in a good way?

I don't actually know, because I have a pretty pessimistic view of relationships. It's also a pretty simple view. They end. One person dies or breaks up with the other; QED. Is it any wonder that I'm so popular at the family dinner table? What I also don't know is why, despite the fact that I am the B.A. Baracus of relationships (the B.A. stands for bad attitude), I ever enter into them.

What I do know is that sometimes I don't want to be a crow anymore. Crows go for glitter, and to be trite about it, all that glitters is not gold. Like sometimes it’s pyrite, and sometimes it’s tin foil, and sometimes it's just something truly worthless, like a diamond ring. In fact, the more I think about it, the more convinced I become that glitter is only very rarely gold at all.

No, I want to be more than a crow, particularly because I also I want to be more than a face that has been Photoshopped into a wedding that my little bottlecap has beein planning since she turned six and realized that that’s what metaphorical crows are for. (And I have noticed a strong correlation between shiny bottlecaps and planned weddings.)

Who plans out his or her own wedding without even being engaged? I guess that I have, in a weird way, because if I ever were to loathe someone enough to condemn her to spend the rest of her life with me, I would love to elope somewhere awesome, and strip the wedding of the pretense and the fuss, and actually make it enjoyable for the people who are actually supposed to enjoy and remember it. (Read as not the parents of the bride.)

Someplace awesome, like Tahiti or Thailand or Italy, or maybe even Yakutsk in the spring.

I suppose that my biggest fear (well, besides getting burned) is that I drive girls crazy, but not in the good, throw their panties on the stage and hope that I throw a room key back sort of way. Two of my former girlfriends seemed happy when I met them, and unhappy when we broke up. I sometimes wonder whether: a) I made them unhappy; b) being unhappy is natural as people get to know each other and realize that the other person may be the best that they can hope to do; or c) they had only ever acted happy at the beginning and had been secretly unhappy all along.

In other words, I wonder whether I am a causal crow or merely a corollary crow.

If I do make girls unhappy, then maybe I'd be doing them a public service by becoming celibate. Come to think of it, thinking about my desires in life paints a pretty bleak picture of my future love life. I don't really want kids, and if I don't really want kids, then I don't really need to get married. If I don't need to get married, then there isn't much point in forming long-term relationships. If I don’t really need a long-term relationship, then I don’t need to date. If I don’t need to date, then I don’t need to lust after girls, and if I don’t need to lust after girls, then I should (at least according to the Second Noble Truth) be something of a happy camper. Would I be?

I think that I would not. I think that, even in the absence of wanting kids or needing a piece of paper or a ring to tell me that I'm married, I at least do need and want companionship (maybe even more than sex, which I tend to want a lot). So maybe I really am more than a crow after all. But then again, when I think about companionship, it somehow always involves a woman, a shiny, pretty woman, and this is why I think that I may always be a crow after all.

May 2006

Heard Around a Blackjack Table in Las Vegas

2009-11-24T11:09:00.000-08:00

Around the table they three sat, goateed and flaccid, puffing on cigarettes, and quaffing the cheap, watered-down cocktails that the tired waitress brought them.

The first man, clad in the sweatshirt of Midwest Podunk State, looked at his cards and sighed. He was convinced that the new dealer had iced his luck, and said so several times. He ordered another drink, tipped the waitress, and, as she walked away, eyed her lustily from bottom to top and back again, and thought about what he would like to do to her if only he had a little more time in town. (The waitress, it should be mentioned, was on the wrong side of a kid or five, and was dressed - through no fault of her own, I am sure - in one of those ridiculous casino ensembles that looks as though someone has stapled fishnets to an old one piece swimsuit.) But love knows no such catty thoughts, and the man wistfully, mournfully played with the wedding ring on his fleshy finger and tried hard not to think about his kids.

The second man was thin but somehow obviously sedentary, and his skin was as sallow as his nicotine-stained teeth. He wore yellow-tinted sunglasses, and complained loudly about taxes:

“With what the government takes from us, how’s a man supposed to get ahead?” he bleated as he slammed a crisp hundy down on the table. The dealer nodded in weary commiseration as he took the bill and handed the sallow man a few chips in return.

The third man was wearing a tank top emblazoned with a steely-eyed eagle that seemed to be screaming down toward its unsuspecting prey, yet was somehow both improbably and inevitably superimposed against a fluttering American flag. The man's head - unlike the eagle's - was actually bald, but God must have a sense of humor, because every other exposed bit of the man's skin was covered by a thick matting of fur. The hairy man echoed the sallow man’s sentiments, and shared several of his own.

“All I know is this,” he began confidently, before spending the next several minutes demonstrating that even this small claim was both premature and optimistic. After concluding that the hurricane in New Orleans was the work of the devil, and that godless atheists were hellbent on forcing good Christian men and women to say ‘Happy Holidays’ in lieu of ‘Merry Christmas’ (a condition, by the way, that he asserted was worse than anything that was happening in Iraq), the hairy man excused himself and left the table. As he gathered what chips he had left, he told us that he was on his way to the sort of ‘sensual’ show that you just couldn't get in his back home in his little Baptist town.

- 2006

Crow's Feet

2009-11-22T13:00:00.000-08:00

The autumn sun falls softly
On the drops of morning dew,
Yet naught but the virgin page listens
As I script sweet thoughts of you.

But where once I wrote:
Of your hair,
And your eyes,
Of your skin,
And your scent,
And your grasping thighs;
Where once I parsed you bare upon the page,
Temperance has intertwined with age,
Resignation has since strangled rage,
And I seek solace instead in the ragged familiar.

And gone too is my goddess
(If ever she truly were),
Gone too is my goddess – banished into memory;
O memory! That boneyard of the child's lies.

Gone too is my goddess
(If ever she truly were)
But she is, and shall remain, unmourned
For idle idolatry has been supplanted by essence,
And I find my solace in you,
My beautiful, ragged familiar.

Ω < 1

2009-11-22T12:56:00.001-08:00

Peering back from the icy edge of time,
I find myself: A blink of a blink of a blink of an eye;

I am infinitesimal:
Nearer an ant than an atom,
Nearer an atom than a god;

And I am infinite:
From Gaia's arms I rise, a spark from the ancient fire,
And back into her arms I fall, cold and spent and weary,
To do it all again in some other permutation.

And so it has gone and so it shall go
Until the ancient fire is extinguished,
And only ash and dust remain.

Maureen O'Hara

2009-11-22T12:28:00.000-08:00

Once more my bonnie lass lets loose
The arrows of her tongue.
Once more those barbéd darts dig in
To enemies far flung.

But if her fury's hot as fire,
Her passion's hotter still.
And she'd have killed so many men,
That is, if looks could kill.

So say your piece to other men,
But hold your peace to me:
For through Hell’s fire, and her own too,
My bonnie lass is she.

Terabithia

2009-11-22T12:21:00.001-08:00

Along the threads of time and space,
There is a far-off, magic place
About the length and breadth of Mars,
A verdant isle amongst the stars.

A place we’ve been in both our dreams,
A place where all is as it seems:
Where the air is clear, and the water too,
Where the sole inhabitants are me and you.
And since we’ve met in this happy land,
We’ve danced in time to a secret band;
We’ve rolled down gentle, grassy knolls;
We’ve bared our bodies and our souls.
Yes, we’ve seen and done so many things,
In this place where all is as it seems,
In this place we’ve been in both our dreams.

And there I travel when’er I sleep
And when I wake, for it I weep.
For in this place we are apart,
And when you left, you stole my heart.
So if, here and now, it cannot be
Then I’ll close my eyes, and sleep to dream.

Daedala

2009-11-22T12:00:00.000-08:00

Spread your wings, my love, and soar across the sea
To a new, old world that waits
To embrace you,
And to be embraced by you.
Taste, see, smell, hear, touch
Things that, yesterday, were but dreams
Things that, tomorrow, will be but memories.

Yes, spread your wings, my love, and soar across the sea,
And know that when you grow weary,
You shall find me waiting,
Your rock, your cove,
Your shelter in the night.

Know that when you grow weary
You need but spread your wings, my love, and soar across the sea once more
To a new, old love who waits
To embrace you,
And to be embraced by you.

Open Letter to Boalt Hall Students, Faculty, and Administration

2009-11-18T13:22:00.000-08:00

18 November 2009

To Dean Edley, Dean Hirshek, the Boalt administration, and my fellow Boalt students:

On the eve of the end of my second to last semester at Boalt, I would like to give you a few of the thoughts that I’ve had about where Boalt is, and where Boalt seems to be going. I realize that you probably feel beleaguered right now, trapped as you are between a populace that values higher education (but only so long as it does not come with higher taxes); a legislature that is constitutionally unable and temperamentally unwilling to make the sorts of politically unpopular decisions that would give the UC adequate funding; a board of regents that shows little empathy for the debt load of future lawyers (since, of course, we will all be rich, big firm lawyers someday); and a student body that shows little empathy for the fact that you are in the midst of this quandary.

But if you are in a bad place, you should recognize that we, your constituents, are as well. The least that you can do is to really listen to our concerns. (And I should emphasize that listening does not mean trying to mollify us with slick, PowerPoint presentations, and leaving barely enough time for even a few questions.) Although I cannot speak for other students, I hereby present you with my concerns:

I. Tuition Increases

While I have been at Boalt, I have witnessed two extraordinary developments. First, our US News ranking has jumped from eighth to sixth; second, our tuition has jumped from $27,000 to over $36,000. [FN1. When I tell alumni about the latter devolpment, they reminisce to a period (in the not too distant past) when Boalt was a highly respected school that charged barely more than $10,000 per year.] I do not believe for a moment that these two developments are uncorrelated, and I congratulate you for increasing our school’s prestige.

However, there is a significant difference between these two accomplishments: The first has been (at least thus far) completely intangible to me. Perhaps I am incorrect, but I would imagine that Boalt has not been more successful in placing students in jobs since it ascended two positions in the rankings; rather, I would imagine that quite the opposite is true. Although at least some of this may be attributed to a bad job market, I believe that at least some of it must also be attributed to the fact that – for many employers, at least – a law school’s ranking cohort is much more important than a law school’s actual rank. If my hypothesis is correct, then barring some miraculous jump into the top three (which, let's be honest, is just not going to happen), I simply cannot believe that placing school ranking uber alles will ever bear the sweet fruits of significantly improved employment prospects. (I welcome any evidence to the contrary.)

Contrarily, the second change has been incredibly tangible to me, and it will be even more tangible to the members of the classes that graduate behind me. Simply put, the debt load that you have asked us to shoulder is immense. Had the fee changes been more than a footnote in our offer packets, one might at least argue that our decisions were fully informed. [FN2. In fact, one might argue that this was a surprising provision, and that it was artfully buried in a prolix document.] Given the uproar of the past week, it should be obvious to you that at least some students felt blindsided by the fee increases, much as I did two short years ago.

And for me at least, one of the motivating factors in my decision to attend Boalt instead of Chicago or NYU – both of which admitted me, and both of which were ranked ahead of Boalt at the time that I made my decision – was the inherent scholarship that was built into in-state tuition. Had I realized that this price differential would evaporate like a mirage on the desert landscape, I may have come to a different decision. Although there are undoubtedly students who base their decisions on US News rankings and US News rankings alone, I would imagine that there are many more who, like me, look at other factors as well; at the very least, you have probably lost those who were looking for a high ROI.

But we bargain shoppers may not be the only students that you lose as you walk this tightrope between private and public education. The tradeoff between these forms of education has traditionally been between costs and services; at private schools, students have paid more, but in return, they have enjoyed smaller classes and received more valuable and personalized career placement and counseling. (Viewed another way, private schools have been K strategists, while public schools have been r strategists.) Contrarily (and somewhat mystifyingly), it seems as though Boalt has settled on offering its students the worst of both worlds, inasmuch as we have coupled the high costs of private school tuition to large public school class sizes and lackluster public school career services.

Turning to the latter for a moment, I have noticed that Boalt is excellent at placing students who have mostly HHs and Hs, but that Boalt is pretty poor at placing students who have an unhealthy dose of Ps. (More on grades and rankings later.) Perhaps this is merely the reality of placement at even the most coddling private schools, but I cannot help but feel that the school could not do more for what really amounts to the majority of its students.

In my own dealings with the CDO, I have essentially been referred to Martindale-Hubbard’s, and told to find my own way through the world of small and midsized firms. I do not say this to denigrate the CDO staff. They are caring people, but they are also seriously overburdened; there are few of them and lots of us, and they simply do not have the time to help 720 people find jobs. Rather, I say this to point out the obvious: If students are going to pay private school prices, they will expect to receive private school services. The students are upholding their half of this arrangement. The time has come for you to uphold yours.

In sum, if we are to be treated as a private school by the state, then you need to push for us to be a private school in every meaning of the word. If we are not to enjoy the benefits of public funding, then let us also shed the burdens of public missions (which you spoke of so eloquently two winters ago) and mandates (such as, for example, our participation in UCRP). One of the first principles that Mel Eisenberg taught us in 1L Contracts was that, in order for a contract to be binding, both sides must provide consideration. What consideration has the state given us? We have seen how much non-binding promises are worth in practice, and we expect much more: Much more from you, and much more from them.

II. Grades and Rankings

As schizophrenic as our tuition policy has been, I believe that our grading and ranking policies have been even more so – an opinion that may be shared, if the ranking policy meetings of this past week are any indication. However, from what I have seen of the proposals that were floated at the meetings, these would be nothing more than temporary, unhappy fixes; bandages, on an open wound. The time for bandages has passed; we need a transfusion of new ideas.

School lore tells us that our grading system was designed to eliminate (or at least reduce) competition between students, on the belief that this would foster a collaborative, relaxed environment. That was great in theory. However, our grading system seems to be predicated on two principles: First, all Boalt students are equal, and should be so recognized; Second, some Boalt students are more equal than others, and should be so recognized. These principles are pretty obviously mutually exclusive; until one of them prevails, we will continue to have a policy that accomplishes neither underlying consideration very well.

Furthermore, as implemented, our HH/H/P system is at best incoherent and at worst harmful. Employers inculcated on a 4.0 system do not quite know what to make of our grading system (how many times have I explained it during job interviews?). Many of them (quite naturally) view our grades on an A/B/C scale. A quick review of the grade curves at other law schools shows that this is probably not true; most law schools that give traditional grades have median GPAs at or higher than a B average. [FN3. http://en.wikipedia.org/wiki/List_of_law_school_GPA_curves.] I imagine that our own curve would be no different were it based on a 4.0 scale; that is, the vast majority of Ps would likely fall within the B range. This is a problem, because, in the eyes of employers, there is a huge difference between a P, which is the lowest grade on our scale, and a B, which is much higher than an F, a D, and a C.

Thus I present three modest proposals, one predicated on the idea that Boalt students are and should be equal, one on the idea that Boalt students are and should be inequal, and one on the current, inconsistent belief that both statements are somehow true (but which I believe would serve us better than the current system):

A. Boalt Students are Equal
If US News rankings are truly the only thing that matters to employers, then employers will continue to hire out of Boalt, irrespective of the grading system that we use. Thus, the easiest way to fix our system would be to simply switch to a true P/F system. The fear inherent to such a system is of course that students will have no incentive to work hard in class. I have three answers to that:

First, students will still work hard because they are who they are. Most obviously, if we are here, then we are overachievers in any objective sense of the word. As a case in point, the two classes that I have worked hardest in – LRW/WOA and Criminal Trial Practice – were P/F classes that – gasp – taught me actual legal skills. I imagine that many students had similar experiences. (Tangentially, these were the two classes that were actually useful to me in summer employment.) Furthermore, many of us are very intellectually curious, and would research an area of the law that we found interesting merely because we found it interesting.

Second, students will still work hard because they are risk averse. Assuming that professors were actually willing to fail significantly underachieving students, professors would have within their own hands the ability to ensure that students take their courses seriously.

Third, so what if students don’t work as hard? I (and, I would imagine, most of my classmates) have learned far more about the law and legal practice from summer employment than from all but the two aforementioned law school classes. In fact, given that most classes are taught using very broad principles of law that minimize the importance of statutory and administrative law, much of what we learn is not going to be of much use in legal practice anyway. Because of this, taking useless, traditional classes less seriously may be a good thing, inasmuch as a strict P/F system would allow students to select ungraded skills classes and externships without fear of penalty come OCIP. Although this might be a sea change in legal education, I tend to believe that law schools - even the good ones - should prepare students for practice. Otherwise, they are merely expensive hoops that one must jump through.

B. Some Boalt Students are More Equal Than Others
If we really want to reward hard work and differentiate between those who really understand a class and those who do not, then let us switch to a traditional grading system. This would allow employers that care about grades to select students based on something more than their unfamiliarity with our grading system.

Furthermore, if we really want to emphasize individual performance, we could use a 4.0 scale, but on an absolute rather than relative (i.e. curve-based) scale. As it stands, the system grades students not on their actual performance on exams, but on their performance compared to other students. Thus, one might - along with 60% of one's classmates - accurately summarize 98% of the issues on a given test, but still walk away with a P. Given that a high P is no better than a low P, that student might as well have merely coasted through the class.

Such a system would also mitigate (what I perceive to be the) inherent arbitrariness of law school grading. As it stands, I cannot articulate the difference between a high P and a low H, or between a high H and a low HH. I doubt that many professors would be able to either, and I suspect that, in practice, many of them fall back on the Potter Steward standard. Given the legal academy’s distaste for individualized standards of review (how many times have I been dinged or dismissed in class for suggesting that judges may be influenced by things besides artificial doctrines?), it is somewhat surprising and ironic that the standard of review that the academy uses in evaluating which of its students are worthy of high-paying jobs and prestigious clerkships – the one standard over which it exercises any real control – is perhaps arbitrary and capricious.

By emphasizing transparent core competencies from the first session of class, professors would instead be able to evaluate students against objective standards, rather than by the students' comparative abilities to spot and analyze the professors’ pet issues.

C. Plus ça change, plus c’est la même chose.
The (perhaps unhappy) intermediate solution would be to retain certain facets of the current system while abolishing others. The most obvious solution of this ilk would be to simply eliminate the grade of H. Such a solution would allow the faculty to continue to recognize the truly outstanding (who truly do put in insane hours studying), while still allowing for a more egalitarian, less competitive, and less inherently differential system for everyone else.

In some ways, I believe that this solution would make a lot of sense. Without getting into my grades, I can tell you that I have a pretty strong understanding of the difference between a HH and everything else (a lot of work), but a much weaker understanding of the difference between an H and a P; to wit, I have received good grades in classes that I did not take particularly seriously, and bad grades (at least to employers) in classes that I tried really hard in. What was the difference? I still don’t know, and I would venture that many Boalt students (and at least a few professors) would not know either. [FN4. Were I to summarize my grades, I would say that there is a very strong and positive correlation between the amount of time that I had to take the test and the grade that I received. What does this say about me? I have no idea. Perhaps it says that I am not good at thinking on my feet, although I would argue that the judges at two internal negotiations competition and one outside negotiations competition might disagree. Perhaps it merely says that I am a better writer when I have time to think through a problem. If so, then I am not worried about how I will perform as a lawyer, but I am certainly worried about having that opportunity in this job market.]

Perhaps this is merely sour grapes on my part, but if I overattribute the role that luck plays in grades, then I am sure that there are at least a few lucky students who overattribute the role that skill plays.

III. Conclusion

Given your (lack of) response to the protests of my class several years ago, I do not seriously expect anything to change at Boalt, either because of today’s strike or next week’s town hall meeting. Perhaps I am cynical, but it seems that the only other changes that have occurred since I began at Boalt concerned the school’s name (a $25,000+ move that mostly only alienated alumni), and the paper towel dispensers in the expensive new bathrooms (which, in their new and improved form, never work well, and often don’t work at all). The ability to prove me wrong, to prove that this administration is not deaf to its constituents, or, at the very least, to provide compelling reasons why these constituents should be satisfied with having the worst of all worlds for both funding and grading, lies in your hands and your hands alone.

Sincerely,

C
Class of 2010

On the (lack of) Strategery in Football: Reflections of the Pats/Colts

2009-11-15T20:44:00.000-08:00

Pop quiz: You are up by six points, your opponents (who possess a potent offense) are within four yards of the end zone, there is 1:30 left in the game, you have no timeouts, and you have one of the best QB/WR combinations in football. What do you do?

If you are an idiot or a football coach (but perhaps I repeat myself), you challenge every yard, thereby allowing your opponent to score with 13 seconds left in the game, thereby also taking away any possibility that you might have had to win the game.

If you are anyone with even a mild ability to think strategically, you let them walk into the end zone, and give yourself 1:30 to get up the field and into field goal range.

Why don't coaches get it?

Four Thoughts from Admin . . .

2009-11-13T12:38:00.000-08:00

. . . two relating to law, one to policy, and one to human nature.

1. The whole conversation in admin law about the disparate treatment of issues of law and fact seems to me to be somewhat pointless. Given that - at least in most cases - the law depends on facts, facts depend on the law, and courts get to decide whether a specific case is primarily about the law or facts, the notion that the issues themselves act (or should act) as a jurisdictional gatekeeper is somewhat ridiculous to me.

However, from the perspective of institutionalist power politics, this distinction does make a lot of sense: Whit it, the courts have a built-in mechanism that allows courts to refuse to decide the cases that they don't want to decide, and that also does not force them to refuse to decide the cases that they do want to decide. Why? Because courts are - at least in large part - the arbiters of what is law and what is fact. Here, as with many of the ingenious decisions since (at least) Marbury, the courts have shown public restraint and humility while privately retaining the greater power. Augustus would have been proud.

2. State Farm was a fascinating case. There, the Court found inadequate process to essentially decide a matter of substance. Why? My best guess is that the Court felt that the NHTSA was abrogating the spirit of its enabling statute, inasmuch as the agency was rescinding a rule that pretty clearly would have increased highway safety.

(I do, however, take issue with the point in class that the insurance companies were on the side of the rule because the rule would have led to fewer deaths; rather, I am inclined to believe that the insurance companies took the side that they did because, if enacted, the rule would have led to fewer serious albeit non-fatal injuries, which I have to imagine are more costly than deaths. Of course, this is a minor quibble, and Bamberger's meta-point - that insurance company support lent credence to side favoring the enactment of the rule - is pretty clearly beyond reproach.)

Also, Rehnquist's partial dissent rightly noted that the true (albeit hidden) purpose behind the rescission of the rule was likely the change in presidential administrations (from a Carter appointee to a Reagan appointee). Likely correct. However, as came up in class, the political realm was not addressed by the NHTSA in its statement of basis and purpose, and it seems to me that if one accepts that political goals are a legitimate rationale for rule alterations in executive agencies, one must at least force the agencies to acknowledge as much in their statements of basis and purpose. Why? Because one of the principles behind political action is political accountability. If the Reagan administration wanted to sow the policy wind with politics, then it ought to have reaped whatever whirlwind resulted, favorable or otherwise.

3. I finally got a law professor to acknowledge a definition of policy that would make the UCLA SPA proud. Bamberger asked me a question in which he conflated policy and political considerations. (This is a treatment common in law school, where, as I have whined before, policy is often treated as political thought experiments rather than empirical social science.) I kind of pushed him on it (in, I must admit, a fairly obnoxious way), saying that I considered the technocratic side of they agency's action to be policy-based, and the underlying deregulatory principles to be political. He subsequently used policy and politics in the way that I understand them. Even though this undoubtedly seems like (and is) a meaningless victory, one of the major problems that I have with the law is the minuscule value that it places on empirical research. I do not find the idea of policy-based decisions to be frightening; I do find the idea of thought experiment-based decisions to be terribly frightening.

4. When people say that they are sorry to interrupt, they very rarely refrain from interrupting. One suspects that if they were truly sorry about interrupting, then they would refrain from doing it in the first place.

Reflections on Cal Supremes Day

2009-11-09T10:57:00.000-08:00

The Cal Supremes recently visited my school to answer students' questions and to hear cases (perhaps not in that order of importance). As an incidental member of my school's Board of Advocates, I was asked to submit questions for consideration. This was not something that I really wanted to do, since there was at least a chance that my submission would be selected, and I would thus be forced to get up early and read my question in front of the court. Furthermore, I had no real desire to ask the sort of innocuous question that I perceived that the court would want to answer.

I thus perceived that I had two options. I could either ignore the request (which was actually phrased more like a directive) and risk the wrath of the woman who is going to reimburse the costs of my trip to Boise, or I could draw upon Holmes's collective wisdom of the ages and obey the letter if not the spirit of the request by submitting questions that (I perceived) the court would not want to answer. I settled on the latter option, and concocted a a few questions, all of which were meant to conjure up the recent Prop. 8 decision:

1. Given the passions and prejudices of the age, do you believe that the Plessy court has been judged unfairly by the court of history.

2. Given our constitutional structure, do courts have a legitimate countermajoritarian role?

3. Are there any fundamental rights that are so fundamental that a simple majority of voters would be unable to alter or excise them?

I also came up two that I did not submit:

4. How can a right be fundamental in 2008 but not fundamental in 2009?

5. While you were deciding Prop 8, how many of you were visited by the ghost of recalled justices past?

Of course, the best laid plan of mice and men often go awry, and mine was no different. Thus, I found myself standing in front of the justices (left leg atremble), asking them whether or not courts have a legitimate countermajoritarian role. Justice Kennard answered.

Given how smart she is, I have a hard time believing that she didn't see through the question, and so I was not surprised that the answer that she gave me was facially unsatisfying. Basically, she said, courts should not act against the will of the people unless they are acting as guarantors of constitutional rights, which she described as the enduring will of the people. So far, banal if eloquent. However, she also laid out the criteria that courts are supposed to use to determine whether the particular case falls within the latter circumstances: In essence, she said that you must have an unpopular minority group coupled with the denial of a fundamental right. Nothing about these equal protection criteria struck me as being particularly controversial until I thought about it later and realized that the way that she laid out the argument exactly matched the way that the court had decided the Marriage Cases (the decision that struck down CA's ban on gay marriage before the passage of Prop. 8.)

Disfavored minority? It may be begging the question to call the passage of Prop. 8 evidence that gays are disfavored, but that does not mean that the inference is incorrect.

Denial of a fundamental right? Given my own views of marriage as a less than sacred institution, I would certainly not think of it as a fundamental right, but the Cal Supremes did exactly that in the Marriage Cases.

All of this left me scratching my head. Was she hinting that she believed that the decision that she voted for mere months ago was wrong? I have no real answer, but I was drawn back to the immediate aftermath of the passage of the proposition, in which she alone wanted the case to proceed through trial and intermediate appellate review.

It occurred to me that there might be a there there.

Given 1: Trial and intermediate appeal would take place in SF.

Given 2: Trial and intermediate appeal would take a significant amount of time, especially given the significance of the case.

Given 3: Chief Justice George and Justice Moreno both stand retention election in 2010.

Conclusion: Justice Kennard might have wanted to stall for time. Assuming that she truly believes that gays should be allowed to marry, allowing the case to proceed through trial and appeals might have taken longer than the two years between the 2008 and 2010 elections to have come and gone. In that case, much of the political pressure on George (who was already hearing rumblings from conservatives about the impact that this decision would have on his retention chances) might have been mitigated. As it was, once George voted to uphold the proposition, there could be no majority on the issue, and thus any vote to uphold would have been symbolic and politically damaging.

I acknowledge that this is speculative at best and fictive at worst, but it is the only way that I can reconcile the two decisions.

(One of my fellow students, who actually knows Justice Kennard, believes that the decision can be completely explained by her belief in the democratic process. This might be right, but J. Kennard has an MPA; that should make her even more cynical than your typical lawyer.)

Query

2009-09-21T09:53:00.000-07:00

Why is it that airlines won't play good movies that have violence or sex, which may offend a small segment of their customer base, but will play movies like Ghosts of Girlfriends Past, which offend everyone?

About Frackin' Time

2009-09-18T11:35:00.000-07:00

Obama finally undid what Bush should never have done in the first place (a consequence, perhaps, of Bush's hero worship of Reagan?). As I mentioned in an earlier post, we had very little to gain from deploying a system that (everyone knows) doesn't really work. We had even less to gain when the only obvious inference that could be drawn was that we were trying to isolate Russia (and thus peeve it), and doubleplus even less to gain when we actually did isolate (and thus peeve) it.

(Russia, in addition to being a player in energy, has a crapload of nukes. We would like to reduce the number of nukes and increase the security for the remaining nukes. Thus, even if Russia is no longer a superpower, it is at least a country that we should have no real desire to needlessly peeve. Plus it produces good vodka and beautiful (if crazy) women.)

But perhaps this was the inevitable consequence of a half neocon, half realist foreign policy in which we idealistically backed nascent Eastern European democracies (no matter how democratic) against big, bad Russia (no matter how big or how bad).

Funny Haha!

2009-09-11T09:21:00.000-07:00

Lindsey Graham not quite clapping during Obama's speech.

This reminds me a lot of when I was in NROTC and we'd go to a Navy base for some reason or another. Our khaki uniforms and insignia looked - at least from a distance - like officers' uniforms, and sailors would often start to salute us right before they got a better look at our insignia. When that happened, most of them would adjust their covers (Navy for hats) or run their fingers through their hair. Always amusing.

Observations - 7/28

2009-07-28T09:10:00.000-07:00

1. We are now going to sell arms to Iraq.
Three thoughts: First, I suppose that this has been inevitable since the invasion; if we didn't sell them weapons, France, China, or Russia would. Second, this might be more lucrative than whatever oil contracts we end up with. Third, what could go wrong?

2. Apparently, certain members of the Senate Judiciary were worried about the potential for foreign opinions to impact our own.
If I didn't know that most of those senators went to law school, I certainly wouldn't suspect it. How exactly do they think that law is made. If there is no binding case on point, then judges look to outside opinions. (In fact, SC case law - especially early SC case law - is rife with citations to the King's/Queen's Bench.) Given that the SC has no binding case authority to work with, why should the "collective wisdom" of non-American judges be summarily dismissed (especially for points of basic legal philosophy)? Red herring!

No Excuse

2009-07-22T08:09:00.001-07:00

Future historians, look no further: Here is the legacy of the Governator.

What the hell is happening to my state? First we can't pass a budget, and now we pass a budget that looks like this? Really? This is the best we can do? What are we trying to say? College, living, and paved roads should only be for those who can afford them?

Come next election, voters would do well to remember the reasons for this: Prop. 13 shifted almost all revenue gathering and distribution to the state, and the supermajority requirement has allowed the Legislature's small contingent of Republicans to block all bills that would generate the necessary funds.

Two Random Policy Thoughts

2009-07-13T08:49:00.000-07:00

1. (Dis-)Credit Suisse
According to NPR, the IRS is suing UBS to gain access to its list of nearly 50,000 American clients who possess bank accounts with its Swiss subsidiary. The IRS is (of course) interested because many of these Americans have presumably established these accounts as tax shelters. UBS claims that it cannot release the list because doing so would violate Swiss law, a claim that the Swiss government supports (surprise!). This is intolerable. Although Switzerland - as a sovereign nation - is certainly entitled to craft the laws that it desires, it should not be entitled to craft laws that help American citizens evade federal taxes. The US government should retaliate against both the Swiss government and UBS for this infringement on our sovereignty. For example, it seems to me that if UBS will not comply with US laws, there is no reason that it should be allowed to profit from its American subsidiary.

2. Mark Kleiman's Policy Window???
Having eviscerated public education, our esteemed governor has now turned his claws toward something that might actually get elderly voters' attention: The prison system. Schwarzenegger has called for the early release of low-risk offenders. Bill Bratton said that he does not categorically oppose this idea, but that he does oppose it in the for that it would take, since there are no programs in place to make these offenders less likely to recidivate. This sounds like exactly the window that Mark Kleiman has been looking for, since the pilot program he has been touting is designed for exactly this situation (and will save a lot of money - if it works - to boot).

Random Foreign Policy Thoughts

2009-07-07T08:34:00.000-07:00

1. The U.S. should invite Russia to join NATO. Yes, I'm serious. Since 1991, NATO has been struggling to find a mission, although it seems that George W. Bush never really got the memo on that one, as he made made the expansion of NATO to Russia's borders one of the cornerstones of his European policy (along with missile defense - another bit of bear baiting).

Ironically, Russian annoyance at our policy was very likely responsible - at least in part - for last year's war between Russia and Georgia, and to be fair to Russia, this annoyance may be at least partially justified. If the situations had been reversed and Russia had offered Warsaw Pact admission to Canada and Mexico, we would probably be about as thrilled as Russia currently is. (If you don't believe me, ask Arthur Zimmermann.)

Thus, assuming that better relations with the world's other nuclear superpower are a good thing, I think that we actually have a lot to gain from Russian membership in NATO. Philosophical and political unanimity have never been requirements for NATO membership (to wit, France is a member), and there is no good reason (at least in today's world) that we should welcome a military attack against Russia (nor - for that matter - that we should necessarily expect one). In fact, the US and Russia presently share significant defense interests: Russia wants Iran and North Korea to possess nuclear weapons about as much as we do. We should parlay these interests into better overall relations with Russia. Inviting Russia to join NATO (thereby assuring Russia that NATO is not an anti-Russia club) is one way to do this.

(Getting rid of our Eastern European ABM installations - which serve no real purpose in the event of anything but very limited launches - is another way to warm relations; in fact, since ABM is useless against real attacks, we might even consider sharing our technology with Russia, as NK and Iran are even more immediate threats to Russian cities than they are to American cities.)

2. The times, they are a changin' (in China, at least). The riots in Western China have demonstrated a few interesting propositions. First, according to NPR, the government is allowing peaceful demonstrations by the Uighur minority in the wake of violent riots. This would have been unthinkable twenty years ago. Second, the government has been relatively open to foreign coverage of the demonstrations, although the police have been less so. This open rift between the civilian government and the police would have been much less likely in the past as well. Interesting times.

Follow Up Questions: On Body Counts and Subprime Bonds

2009-06-26T04:46:00.000-07:00

Listening to NPR on Sunday, I heard two stories joined by process rather than substance. In both instances, NPR did an amazing job of digging up stories on important issues, but in both instances, NPR also failed to ask a fundamentally important follow up question.

In the first instance, NPR reported on the military's decision to publish enemy body counts as evidence that we are "winning" in Afghanistan. This is in and of itself highly interesting, but the NPR reporter never bothered to make the obvious analogy to Vietnam, where similar statistics were recorded and published as evidence of success in what turned out to be a losing effort. (Of course, the real losers were the very people whose deaths constituted the body count.)

If NPR had drawn this parallel, then it might have asked a couple of tough questions. First, does the creation of a body count metric carry with it any perverse incentives? I think that the answer to this is an obvious and resounding yes, as body counts rarely bode well for innocents caught in the wrong place. In other words, I do not think that body counts are particularly useful unless one has a reliable method of sorting friends from enemies; a talent by the way that American forces have not always been so good at. In the best cases, this ambiguity lead to an inaccurate methodology; in the worst cases, it may lead to outright murder.

Second, how exactly do body counts show success unless they are placed within some larger context? I mean this: Killing ten insurgents is inherently meaningful if there are only ten insurgents. It is not so meaningful if there are ten thousand. It is even less meaningful if there are ten million. Furthermore, the context through which the body counts were initially instituted (a dispute over the efficacy of bombings that killed a number of civilians) may make the counts even more useless, as we may have very well created more terrorists than we killed.

In the second, less macabre example, NPR was interviewing people who had something to do with the subprime crash. One interview stood out for NPR's failure to ask a tough question. In interviewing a woman who had sold the subprime bonds, NPR asked her if she had known at the time that she was doing something wrong. She replied that she had. The next question out of the reporter's mouth should have been something akin to: "Then why did you do it?" Although the answer would have been easy enough to predict (greed, peer pressure, etc.), it is still an answer that should have been sought. Instead, the reporter let her off the hook and moved on to another subject.

I bring this up by way of a recent conversation that I had with my dad, when we agreed (unusually) that the toughest interviewer in the media is Jon Stewart. My dad attributes this to Stewart's intellectual chops. I disagree Although I think that Stewart is pretty smart, I think that there are plenty of reporters who are just as smart who don't ask these questions, and I think that the reason that they don't ask these questions is pretty simple: They're afraid of getting the sort reputations that will essentially shut them out of further interviews. We saw a lot of this with the Bush White House, where reporters who asked tough questions would be summarily disinvited from Air Force One, and I believe that this is a real problem that the media needs to fix.

Fuzzy Logic from the Banking Industry

2009-06-18T21:23:00.000-07:00

Apparently the rumors of my [website's] death were greatly exaggerated (which is weird since I started them). Content as I have been to bask in the warm glow of the Eleventh Amendment, I felt no real urge to begin writing again. (Well, it might have had to do with the fact that by basking I really mean researching and writing.) That is, I felt no real urge until I listened to NPR yesterday and heard the banks' argument against Obama's reform plan.

You see, bankers believe that the creation of a consumer protection agency that tells potential debtors that their mortgages will "explode" will be detrimental to the lending market. Why? Because these warnings will stifle banks' ability to be creative and give loans to people with bad credit.

(Editor's Translation: it will prevent us from making the kind of loans that just completely fucked up the economy.)

Yes, they really said this. No, I'm not making this up.

The Death of the University of California

2009-06-15T20:36:00.001-07:00

From the UC Berkeley Chancellor:

Dear Campus Colleagues:

As you are undoubtedly aware, California's financial crisis has worsened severely in recent weeks; this means that the likelihood of unprecedented cuts in State funding of the University has risen dramatically. UC Berkeley is facing the most difficult financial situation that we have ever encountered in our university careers.

We know that you have been hearing rumors about a number of potential actions designed to reduce costs not only at Berkeley but across the system. We want to lay out the financial context for you, tell you what we think may happen, and let you know our leadership strategy for the Berkeley campus as we manage through these difficult times.

Today, we find ourselves facing stark new realities.

Six weeks ago, UC Berkeley faced a $67.2 million budget gap for 2009-10. That anticipated shortfall has now grown to $145 million. Here is how we have been working to address the anticipated shortfall.

* The recently-enacted 9.3% student fee increases and other revenue-enhancement measures that become effective July 1, have reduced the $145 million gap by $30 million.

* In addition, through the work of many of you, our cost-saving measures introduced in 2008-2009 have further reduced the gap by another $15 million.

* That leaves us, at present, with a $100 million remaining gap for the academic year 2009-2010. We are hopeful that this gap will not grow further as the State finalizes its budget, but we must assume that this is our working target as we plan for the coming year.

* The possible loss of the Cal Grants program, as proposed by the Governor, is not included in the above totals. These grants total $47 million annually to the UC Berkeley campus. They cover fees for a large number of our undergraduates. The loss of Cal Grants would not only disadvantage those students; it would fundamentally subvert our social imperative to provide broad social access to the excellence at UC Berkeley. The Joint Legislative Budget Conference Committee has proposed protecting student awards for 2009-2010 grants, but that is not 100 percent certain.

* Federal stimulus funds are beginning to trickle in, but are not designed to cover existing core operations.

UC Berkeley, of course, is not alone in facing these challenges. Private universities have suffered major declines in their endowments while public universities nationwide have experienced severe cuts in State support.

This basically means that we are now facing a reduction of our baseline budget that will likely continue, and may even deepen, over multiple years. These unprecedented developments require us to examine the underlying assumptions that guide us in delivering and supporting the University's mission of teaching and learning, research and scholarship, and public service.

For UC Berkeley, this much is certain: all of us---students, faculty, staff, and senior administrators---will be required to sacrifice as we navigate our way through this crisis. At the same time, it is essential that we work together to address the formidable challenges ahead of us.

Our budget planning scenarios, which had earlier anticipated an average of 8% permanent budget cuts to all campus units for the coming fiscal year, will now likely be at a campus-wide average of 20%. While some units will need to spread the cuts over two years, the campus average cut must be at least 12% in 2009-2010. The remainder must be taken by 2010-2011.

These cuts will not be uniform "across-the-board"; units that are core to the teaching and research missions will be given somewhat lesser cuts than the others, and, within the teaching-and-research realms, units with higher capacity will be asked to take larger cuts than those with lower capacity. This is the only rational approach in a campus like ours if we are to preserve our depth and breadth of academic excellence---our principal competitive advantage.

Clearly cuts of this magnitude will require all areas of our campus to sacrifice considerably, and to make changes in their core operations. We will need to reduce our workforce significantly and this will be painful and difficult. To accomplish this, we will also need to make changes to our core operations and the way we do our work. All of these efforts will take time to achieve.

Over the summer, managers will work with their units to make difficult but necessary decisions about reductions in our workforce, while determining which services we can eliminate or curtail. Naturally, all policies and procedures will be followed, and we will work to treat our people with the respect and dignity they deserve under these very difficult circumstances. We are sensitive to the impact of staffing reductions on the workload of remaining staff and are seeking ways to streamline our business processes.

As each unit or department works to meet our new budget number, many specifics remain unclear, requiring approval by the Office of the President and the Regents for system-wide implementation. We would like to inform you of those things that are likely or certain to occur in 2009-2010.

What We Know for Sure

* It is, unfortunately, certain that, during 2009-2010, efforts to implement permanent budget cuts at all UC campuses will result in the elimination of many staff positions.

* It is certain that, during 2009-2010, there will be a near-total freeze in new faculty hiring at UC Berkeley.

* It is certain that, during 2009-2010, a staff hiring freeze at UC Berkeley will remain in effect.

* It is also certain that there will be no faculty or staff early-retirement programs at UC campuses on the order of the VERIP of the 1990s.

What is Likely to Happen

* It is highly likely that, through temporary furloughs and/or pay cuts, faculty, staff, and senior administrators at all UC campuses will see their wages reduced by about 8 percent (with potentially a lower rate for our lowest paid workers); it remains uncertain whether pension calculations will be affected by this reduction.

* It is highly likely that, at some point during the 2009-2010 academic year, faculty, staff, and senior administrators at all UC campuses will begin contributing to the UC pension fund.

* It is quite possible that the health-care premiums paid by faculty, staff, and senior administrators at all UC campuses will increase significantly.

Our first and foremost goal is to preserve the academic excellence of Berkeley. To that end, let us be clear as to what we will not entertain during this crisis.

* We are not discussing or considering layoffs of Senate faculty members, tenured or untenured.

* We are not discussing or considering making Senate faculty promotion decisions contingent on available funding.

* We will not sacrifice Berkeley's commitment to breadth and depth of academic excellence.

* We will not allow the budgetary crisis to subvert either the delivery of our teaching mission or the support infrastructure for research.

* We will not sacrifice our commitment to social access: low-income students who have earned a place at Berkeley must be capable of affording a UC Berkeley education.

* We will not flag in our commitment to recruit to Berkeley the best graduate students in all fields.

* We will not abandon our efforts to train and promote a highly skilled and diverse workforce.

These are the guiding principles that will be in the forefront of our activities as we entertain difficult choices.

As we progress through this budgetary crisis, we are also looking forward to the longer term prospects and we are taking measures to reduce the size and cost of our enterprise by streamlining work. For example, we have begun implementing a multi-year plan to streamline administrative processes in IT, Human Resources, procurement, business services, student advising, research administration, and other areas. Many of these improvements will involve centralized and automated systems that will reduce our dependence on a patchwork of decentralized, labor-intensive operations.

Over time, a combination of layoffs, retirements and normal attrition will result in a smaller workforce that will bring our staff and faculty payroll closer to alignment with State funding, while maintaining high-quality services. Toward these ends, we have already made substantial investments in systems such as the Human Capital Management (HCM) systems, the Berkeley Financial System (BFS), and an upgrade to ePro, our procurement system.

We are also working with the Office of the President on ways to cut costs by adopting system-wide (UC) administrative systems and reducing prices through system-wide procurement of some goods and services. Locally, we are consolidating the administration of contracts and grants and are merging back-office functions of both academic and non-academic units.

We are actively engaged and working closely with the Academic Senate and a faculty subgroup that has been formed specifically to examine budget reduction measures. We anticipate evaluating all options around hiring, retention practices, and strategies to defend the breadth and depth of academic excellence for which UC Berkeley is renowned.

We are implementing an entire suite of revenue-enhancement measures: full recovery of the central administrative costs associated with our self-sufficient auxiliary enterprises; negotiation of a higher federal overhead rate for campus research; expansion of the reach and earnings potential of University Extension and Summer Sessions; and, of course, intensified private fund-raising. We are also restructuring campus debt to reduce those costs over the near term.

In the external realm, University leaders are advocating aggressively, making sure that legislators, the public, and UC's closest constituents understand the value of our mission, employees, and students.

We pledge to redouble our efforts to strengthen UC Berkeley's long and rich tradition of combining access and excellence. Throughout the State, country, and even the world, Berkeley remains the standard by which all other universities are judged when it comes to the combination of comprehensive academic excellence and deep commitment to a public mission. We will not shy away from our commitment to either of these lofty goals.

Through shared sacrifice by students, staff, faculty, and senior administrators, and through renewed efforts to reduce over time the cost of delivering instruction, research, and administrative services on campus, we will emerge from this crisis more focused and more efficient, but equally excellent and accessible. UC Berkeley has been an outstanding institution for 141 years and it will still be outstanding 141 years from now. We look forward to working with you toward these ends.

What happens next?

We are acutely aware that the economic situation makes this a difficult time, professionally and personally, for many of you. Change of this magnitude will be difficult. We have asked our Human Resources area to assist in a number of ways, specifically by supporting managers and employees as we work through this difficult time. We understand that clear information on campus actions and resources to help you is essential. We ask that managers and supervisors please take time to go though this message with your employees. We renew our commitment to bring you that information as we learn it, via e-mails and on our Budget Central website: newscenter.berkeley.edu/budget. We hope that you will watch the site for budget news as it develops, and we thank you for your continued commitment and dedication to this unique institution.

Yours sincerely,

Robert J. Birgeneau
Chancellor

George W. Breslauer
Executive Vice Chancellor and Provost

CA High Speed Rail - An Egregiously Modest Proposal

2009-06-06T13:56:00.000-07:00

From the LA Times: It looks like Cali will finally get high speed rail.

Awesome, but for one point: the trip (LA-SF) is supposed to take two hours forty minutes. 2:40? Really? I'm pulling out the BS card on this one.

LA and SF are 300 miles apart. For that trip to take almost three hours, the train would need to travel at a speed of a little more than 100 mph. This, incidentally, is how fast the East Coast's Acela travels. This is also a problem.

The East Coast, one must remember, is a collection of Lilliputian states, most of which would fit neatly into San Bernardino County with room to spare for dumping dead bodies and shooting jackalopes. (In fact, you could combine Massachusetts, Connecticut, and Rhode Island, and still be able to do this.) So while a train that travels 120 miles an hour is fine for travel between Hobbiton and the Brandywine Bridge (and yes, I am mixing my metaphors), it just won't work on the West Coast.

Nor should it have to. A quick glance at a list of foreign high speed trains will tell you that most of them would be able to make the LA-SF trip in fewer than two hours. (Well, it would have to be more than a quick glance, I suppose, since most of the speeds are in kph; thus I will translate for you.) In fact, the list of countries with trains that could make the trip in that time includes: Belgium, China, France, Germany, Italy, Japan, South Korea, Spain, Taiwan, and the UK. You would think that at least one of those countries would lend us (or at least sell us) some of the fairy dust that use to get their trains to go faster than the Acela's wimpy 125 mph.

Because if we do this the wrong way and create three hour trip, no one will ride the bloody thing. In fact, it will be like the LA rail system: a nice idea doomed to failure by completely inept planning. Then again, when one reads this proposal, one wonders if that isn't exactly the point.

Natural Growth: Netanyahu for Lebensraum?

2009-06-06T09:25:00.000-07:00

On my way to work on either Wednesday or Thursday, I heard a piece on Obama's trip to Israel, his call for an end to West Bank settlement, and the Israeli response to his request.

In short, Netanyahu said that the official Israeli policy will be to continue to allow "the natural growth" of these settlements by allowing family members of existing settlers to move to the settlements; in other, less euphemistic words, Netanyahu told Obama to piss off. This position is troubling for both US-Israeli and Israeli-Palestinian relations.

This suggests to me that despite official assurances to the contrary, many within the Israeli government really couldn't care less about securing peace, as building up these settlements is a non-starter at the negotiation table - especially since the Israelis are (rightly) never going to agree to a unified state. Do they really mean to suggest that they believe that the status quo is preferable to them? Okay.

What they need to be made aware of - and what I think Obama's emphasis on "American interests" in his speech should make clear to them - is that they do not have a blank check from the US government. Of course, Obama's words are nothing more than rhetoric if he cannot secure enough votes to back them up with action. For while Israel may of course ignore the American position on the issue, it should not be rewarded for doing so; this is a strings attached relationship, and Obama needs to either pull or cut those strings.

All of that said, I think that Obama gets it, and I would be very surprised if that speech was the end of the story. As I mentioned in an earlier post, the fact that Biden got up in front of AIPAC and told them that Israel must change its policies suggests to me that this administration is going to take a different tack. It's about time.

Oh, Thank God!

2009-06-05T16:22:00.000-07:00

On the way home from work, I heard an NPR review that lauded Away We Go. This was a problem. Since the first time that I saw a preview for this movie, I was absolutely convinced that this movie would be two hours of self-satisfied hipster annoyance. (Of course, given John Krasinski's beard and the fact that Dave Eggers wrote the movie, I am not sure that I could have arrived at another conclusion.)

Could I have been wrong? Were my hipster antennae so out of tune that I horribly misjudged it? Was I becoming senile? For a moment, I thought that the answer to these questions was yes. Then I remembered that NPR is precisely the place where one would hear a positive review of a movie celebrating all things hipsterish. Having remembered this, I checked Metacritic on the matter.

I am happy to report that the sky is not falling.

Roe Woe

2009-06-05T06:35:00.000-07:00

From the LA Times: An interesting article on the life of a doctor who performs abortions; and another interesting article on the youth orientation of the anti-abortion movement.

The first article paints a portrait of a deeply moral person who gave up epidemiology (his first choice) and chose to perform abortions instead out of a strong sense of compassion and civic duty.

The second article reinforces many of my own thoughts about the movements themselves - the self-righteousness of many within the anti-abortion movement; the failure of the pro-choice movement to acknowledge that, at best, this choice is between a bad choice and a worse choice.

Both are interesting articles and worth reading.

California Lags Even More

2009-06-04T06:25:00.000-07:00

Yesterday, the governor of New Hampshire signed a bill legitimating gay marriage.

New Hampshire is known for: 1) Daniel Webster (I think that he got into a fight with the devil or something); 2) Dartmouth (I am told that it's the Ivy's answer to USC, albeit with much tougher admission standards); and 3) being next to Vermont (the state where East Coast hippies go to buy ice cream). To the best of my knowledge, New Hampshire isn't known for being especially liberal; that is to say, it's no California (unlike Iowa, which also has gay marriage, but is known to be the Berkeley of the Midwest). Yet New Hampshire now allows gays the same rights as everyone else, while California doesn't.

Isn't it time for us to lead the way again?

Tips From the Blind to the One Eyed, Part I

2009-06-03T19:30:00.000-07:00

After spending nearly two full weeks working for an appellate judge this summer, I have decided that I am more than qualified to offer some advice on how to write a brief. Thus I present the first part in the series.

Tip 1: Make sure to bold at least every other sentence.
Some might tell you that this is a bad strategy; that if you need to put sentences in bold or italics in order to show that they actually have a point or are important to your side's argument, you should probably leave out the sentences that aren't bolded or italicized since they are merely wasting the reader's time. However, this is wrong. Your prose is beautiful, the word processor loves you, and you are obviously going to win.

Tip 2: Don't cite statutes or cases.
Appellate judges don't actually pay attention to insignificant things like statutory authority and precedent. They would much rather listen to your normative view of law and society, and see no problem in using your rants as citations in their opinions. And if you happen to encounter one of those rare birds who does care about these things, you can be sure that he won't merely rule on the issues before him and will instead devote countless hours to examining these issues on his own.

Tip 3: Don't bother with the pleadings.
Contrary to popular belief, judges don't want you to submit a complaint that makes sense. They understand that it takes some thought and effort to match facts to allegations; you know, to do your job. Because of this, they don't mind sorting through a strange brew of allegations and facts, and divine from them the actual meaning of your case. True, you might occasionally encounter a cranky judge who dismisses your case because it doesn't actually make sense, but this only really matters if the statute of limitations has expired and you've inadvertently exposed yourself to a malpractice suit. (Don't worry too much about this though; any client who doesn't know enough to hire a competent lawyer probably also doesn't know enough to sue you.)

What World Am I Living In???

2009-06-03T19:14:00.000-07:00

I feel as though I've stepped through the looking glass and into an alternate reality:

First Ted Olsen agreed to represent one of the plaintiffs in the federal gay marriage case.

Really?

Then Dick Cheney came out in favor of a state-by-state gay marriage.

Really??

Now Rush Limbaugh has come out in favor of Sonia Sotomayor's nomination.

Really???

REALLY???????????????????????

I am not quite sure what to make of this. Limbaugh says that it's because Sotomayor is Catholic and has no established position on abortion, but I have a hard time believing that Obama either doesn't care about this issue or would do a poor job vetting it. Does Limbaugh know something that the rest of us don't? Is this perhaps reverse psychology: Does Limbaugh think that he can kill her candidacy with kindness? Has Limbaugh finally progressed through denial and anger into acceptance?

Or has Rush Limbaugh merely grown a goatee and given theoretical physicists proof of the multiverse?

Duh!

2009-06-03T07:16:00.000-07:00

From the LA Times: "Doctor's Slaying a Setback for Common Ground on Abortion."

Yes, murder does tend to have that effect. However, the two sides should use this as an opportunity to move forward and find that common ground. Idiots like Bill O'Reilly don't do anything to help this, so groups that really do believe in a per se right to life need to repudiate people like O'Reilly. This means unqualified showings of sorrow and reflection.

When Wishing Isn't Enough

2009-06-02T06:34:00.000-07:00

In the wake of this, I think it important to note that the alternative to safe, legal, and rare would probably not be the kumbayah world that many anti-abortion activists may envision (in which abortion disappears, birds sing, and we live in Technicolor yet again), but rather something more like this (in which abortions still exist, but are done in back alleys with coat hangers and poisonous concoctions).

As Robert H. Jackson noted (albeit on a different topic), decisions are never difficult when they are between rights and wrongs; they are difficult only when they are between two competing rights. The problem in this debate is that neither side really believes that they are arguing for one fundamental right and against another, and this may be why we see such a startling lack of empathy from both sides on this issue. (That said, I haven't heard of any pro-abortion activists murdering conservative ministers). But this is not an intractable problem; rather, it is a problem that can be solved through more effective communication.

Maybe I am wrong about this. Maybe these activists believe that a woman's decision to have an abortion nullifies her right to life (following as it does her decision to have sex for a purpose other than procreation); for that matter, maybe they really do believe that women have an attenuated set of rights, and should content themselves to cook, clean, bear children, and shut up. Maybe, but I think it far more likely that many of these activists are well meaning people who really do believe in a fundamental, universal right to life.

If I am correct, then the way to win the debate is to stop badgering and start co-opting. We should use their own values to win their hearts and minds for at least a limited form of abortion. After all, according to their own values, it should be imperative for them to abandon the goal of making abortion completely illegal in favor of a goal that would also protect a woman's right to life. (Part of me wonders whether the leaders of this movement don't already realize this; if so, then clinging to complete illegality could be a bargaining strategy.) But in order for this to happen, we must first convince them that the choice is never truly going to be between abortion and not abortion, but rather between safe abortions and unsafe abortions.

Using Success To to Set Up Failure?

2009-05-30T09:47:00.000-07:00

From the NYT: Apparently, conservatives are drawing unfounded conclusions from Obama and Sotomayor.

I am trying to synthesize the comments from John Cornyn and Gary Marx, and the only conclusion that I am able to reach is that they believe that Obama's election and Sotomayor's nomination are proof that racism and discrimination no longer exist.

There are myriad reasons why this is an idiotic position to take: First, although I make no claim to be a statistician, I do seem to recall that my grad school stats instructors said something about the dangers of using anecdotal evidence to arrive at sweeping policy conclusions.

A few quick facts about our population:

1. Whites make up about 69% of the US population.

2. Asian-Americans make up 3.6% of the US population.

3. Jewish-Americans make up about 2.2% of the US population.

A few quick facts about our government:

1. The House of Representatives has 435 members. 332 are white. When Asian-Americans and Jewish-Americans (so-called Model Minorities) are added, this number swells to 367.

2. The Senate has 100 members. 81 are white. When Asian-Americans and Jewish-Americans are added, this number becomes 97.

3. The Supreme Court has 9 members. Currently, 6 are white. Adding in Jewish-Americans, this number becomes 8.

4. The lower federal courts have about 3,500 judges. More than 90% are white, Asian-American, and Jewish-American.

I don't bring this up because I am convinced that white, Asian, and Jewish government officials and judges make worse decisions than minority officials or judges. Rather, I bring it up because I am convinced that it is inherently ridiculous to draw conclusions about the success of diversity programs from a few success stories (no matter how awesome the people and the achievements might be).

In this case, given the numbers involved, I think that it is safe to say that Obama and Sotomayor are the exceptions rather than the rule; in other words, they are outliers. To use their legacies as justification for ending diversity programs would be cynical and might help to ensure that their success stories remain unique. This would be wrong.

Brazil

2009-05-29T18:49:00.000-07:00

In addition to being one of the better dystopian films (think 1984 with a pleasant soundtrack), Terry Gilliam's Brazil contains one of the more interesting examinations of terrorism and torture in the bureaucratic state. (What happens when normal people do bad things because regulations tell them to?)

Highly recommended.

Zasloff's Too Modest Proposal: Applying Windows Vista Logic to the Initiative Process

2009-05-29T07:15:00.000-07:00

From the RBC: Jonathan Zasloff's counterfactual Proposition 8. I couldn't disagree more.

Zasloff thinks that this would have allowed voters to think more seriously about what they were doing while also avoiding the deleterious effects of striking down 8 per se; namely, "telling millions of voters that their votes don't count." But is telling millions of voters that their votes don't count a bad thing?

It would be glib and wrong to give an unqualified yes, but it would be equally glib and moronic to give an unqualified no. The point of judicial review over the initiative process is to protect the minority against the whims of the majority. Thus, the problem with Zasloff's proposal (and for that matter, the Cal Supremes' decision) comes down to the fact that - as Zasloff concedes in the very language of the proposal - this was a fundamental right. (Given that - and despite the assurances of the Supremes and the opponents of gay marriage to the contrary - marriages and civil unions do create distinct legal rights in at least a few circumstances, the fundamental right that was stripped was not marriage but rather equal protection under the law; this is not a trivial right.)

With a few grudging exceptions (e.g. prisoners), voters should probably never be able to strip a minority group of any fundamental right, and voters should certainly not be able to strip a group of due process or equal protection rights. (I would argue that this prohibition should be true whether the fundamental right is stripped through amendment or revision, although greater deference should probably be given to policies that emerge from the far more stringent revision process.) What Zasloff proposes is thus not a deterrent against this form of tyranny so much as it is an invitation for tyranny through informed consent:

Do you want to strip left-handed Gingers of their right to adopt?
- Yes

Are you sure?
- Yes

Are you really sure?
- Yes

Congratulations, left-handed Gingers may no longer adopt children!

Zasloff's logic would allow all sorts of constitutional abuses - so long as voters really, really want them - and would shift the role of the court away from protector of rights (at least, as 8 showed us, when it chooses to be one) and toward protector of processes. This may work for business law, but it shouldn't be the paradigm for con law.

Good Op-Ed

2009-05-28T18:13:00.000-07:00

From The National Republic: An op-ed about gay marriage by Jonathan Chait.

This is pretty good stuff.

Strange Bedfellows

2009-05-27T21:39:00.000-07:00

This from the LA Times: In the aftermath of the Cal Supremes' decision to uphold 8, Ted Olsen is representing a gay couple that is trying to overturn 8 through the federal courts.

Ted Olsen was of course Bush II's solicitor general from 2001 to 2004, and Olsen is not noted for being especially liberal. When asked about his participation in the suit, Olsen has said that he believes that gay marriage is about fundamental issues of equality, and because of this, should be decided (in favor of gay marriage) by the federal courts.

I hope that this is true. (A cynical opponent of gay marriage might consider taking the issue to the federal courts while the composition of the Supreme Court still favors its prohibition.)

Not So Much

2009-05-26T20:12:00.000-07:00

From the LA Times: The Cal Supremes uphold Prop. 8.

Am I surprised by the decision? Not really. Although the fact that the court labeled marriage a "basic civil right" in the Marriage Cases implied to me that there was a pretty strong legal argument for rejecting Prop. 8 as a constitutional revision, our high court has often deferred to the sometimes idiotic desires of California's electorate. (The amendment referendum is a well-meaning but flawed vestige of the Progressive era, when it was meant to provide an end-run around a state legislature that was widely thought to be corrupt). Here of course, it has allowed two percent of voters to strip a minority population of a right that - just a single year ago - Chief Justice Ronald M. George held to be basic. Where is George's conscience now?

But if I am not surprised by the decision, then I am at least disgusted by it, and I am particularly disgusted by the 6-1 split. (Bravo to Moreno, the lone dissent, whose position very likely cost him whatever chance he had for a future federal appellate judgeship.) Although - given the language of the Marriage Cases decision, the closeness of the vote on the proposition, and the amount of time left on their terms - I cannot begin to explain why the vote turned out as it did, I can only hope (from a moral standpoint) that the three who defected actually believed the language of the opinion, which did not seem to think that the proposition will cost gays any substantive rights.

Of course this position is simply not true - the justices are lawyers who presumably know the laws of evidence, which in turn means that they know that the rules allow for spousal immunity but not partner immunity - but even if the position were true, the fact is that Prop. 8 strips our state's constitution of one of the fundamental ideals of American jurisprudence: that all shall enjoy the equal protection of the law. By allowing this bigoted proposition to stand, the California Supreme Court has in essence approved the creation of distinct classes of legal relationships for straights and gays. In doing so, the six members of this court have overlooked the fundamental lesson from Brown: Separate is inherently unequal.

What a sad day for civil rights.

A Big Day For Civil Rights(?)

2009-05-25T18:29:00.000-07:00

The Cal Supremes have said that they will rule on Prop. 8 tomorrow. I have made my own thoughts on this pretty clear, but I think that it bears repeating that gay rights may well be the civil rights struggle for my own generation. I hope that we will be one step closer to the resolution of this struggle tomorrow, but I think that it is safe to say that there will be a lot of unhappy people no matter the outcome.

Not Exactly Surprising

2009-05-25T17:58:00.001-07:00

From the LA Times: North Korea successfully tested a nuclear weapon. A few thoughts:

1. Good thing we're stuck in Iraq.

2. That said, I'm not really that worried about this. I could be wrong, but I have always viewed North Korean nukes as hedges against American (and Chinese) aggression. In other words, I don't think that Seoul or Tokyo are in any real danger (although I wouldn't be particularly thrilled if I were in either city).

3. It's not a horrible thing to not be able to invade a country. Forcing both sides to come to the table and bargain without the Sword of Damocles hanging over the head of only one does wonders for actual negotiation.

Memorial Day?

2009-05-25T10:55:00.000-07:00

Given that: 1) we are supposed to spend Memorial Day honoring our war dead; 2) at least some wars have been mistakes; 3) all wars have been tragedies writ large, it is a shame that some television stations (e.g. AMC) use Memorial Day to play their stock of old war movies. These movies tend to both tell only one side of the story and glorify war (e.g. The Battle of the Bulge, The Longest Day). No, I am not sure that playing jingoistic war movies is the best way to honor these men and women, most of whom (I presume) would have preferred not to to have the privilege of being an excuse for department store sales and barbecues.

But if we are to spend this day televising and watching war movies, then we might at least play the sorts of movies that would diminish the propensity for future sacrifice. To name just a few:

Paths of Glory
All Quiet on the Western Front
La Grande Illusion
Letters From Iwo Jima
The Battle of Algiers
Joyeux Noel
Oh! What a Lovely War

The Perils of Facebook

2009-05-24T07:57:00.000-07:00

From the LA Times.

It finally happened. A young political candidate learned what many of us have either known intuitively or been instructed about by our schools: DON'T POST INCRIMINATING PICTURES ON FACEBOOK! THEY WILL COME BACK TO HAUNT YOU!

The reporter (who seems slightly more than slightly peeved, given that she has a daughter in this fight), misses the point that appearance is reality.

New Diplomatic Paradigm?

2009-05-24T07:43:00.001-07:00

From the LA Times: Apparently some are peeved by HRC's open approach to diplomacy.

Although I would concede that there are probably occasions in which it is preferable to conceal at least some information, these circumstances necessarily occur only when there is information to conceal. It seems to me that Clinton's critics get it wrong here, inasmuch as she only divulges information that is known to both parties. Given our increasingly close economic relationship with China, it is certainly no mystery to Beijing that we are willing to work with them, whether or not they make concessions on human rights. Ditto Islamabad's knowledge of its own policies vis-a-vis Al Qa'ida.

Whatever her reasons for doing so (maybe something to do with 2012?), I think that her candor is generally a good thing as it allows her to bypass the chaff in order to deal with issues that actually matter.

Noonan . . . Noonan!

2009-05-24T07:39:00.001-07:00

From the LA Times: Tim Rutten's piece on John Noonan's speech at Notre Dame.

Noonan, who is on the faculty of my law school, offers advice that seems to me to be a theologically grounded take on Robert Jackson's famous adage that law is difficult not when it is a battle between one right and one wrong, but between two competing rights.

Terminator The Franchise Already

2009-05-23T22:13:00.000-07:00

Just got back from seeing Terminator Salvation. Given my general enjoyment of things nerdy, I wanted to like this movie. Given my general disdain for stupid movies, I should have listened to (most of) the critics and stayed home.

On a very general level, this movie did not feel right. The flashback scenes in Ts I and II showed a nightmarish landscape shrouded by what seemed like perpetual night, where armies of robots trod inexorably forward over cities paved with bone. In TS, although the end of humanity is certainly

As has been noted by critics ad nauseum, Sam Worthington is awesome as Marcus Wright (action hero much?) in this movie; he is in fact probably the only real reason to see it, as his cool intensity reminds me of Matt Damon in, well, pretty much every movie that Matt Damon has been in. (Come to think of it, the idea of an icy, programmed, ass-kicking ubermensch in search of his identity is not terribly far divorced from Bourne.)

Bale, on the other hand, basically does an impersonation of his impersonation of Kevin Conroy (which, oddly enough, comes across as a raspy Keanu Reeves). Bale is good at this impersonation, but it is an impersonation that is far more believable in a loner like Batman than in a leader like John Connor. (And by the way, he might just be the world's worst commando leader, since pretty much every member of his team that set out on a mission with him was killed post haste.)

But it was not Bale's one trick pony acting that did this movie in; rather, it was completely idiotic and illogical writing. Consider (and be thou warned that these are spoilers):

1. Throughout the movie, the strength of Marcus's heart come up on at least three occasions. At the end of the movie, in a twist of plot that was about as contrived as Padme's death by way of broken heart, Connor's heart is failing. In a moment that I saw coming a mile away (yet somehow believed that the writers would not be so brazen as to actually do), Marcus offers his heart to save Connor's life. Really. (And it followed some pretty obvious Christian imagery at the beginning of the movie, when previous life Marcus, about to be executed for killing three people (including his own brother), is strapped to a table and rotated into a position that looks like - you guessed it - a crucifix.)

2. For some reason, SkyNet is aware that Kyle Reese is John Connor's daddy, so it places Reese as the primary target on its hit list. This is of course the granddaddy of all granddaddy paradoxes, inasmuch as John Connor would not exist but for Kyle Reese's fling with Sarah Connor, but Kyle Reese would not have had this fling with Sarah but for John ordering him back in time to protect her. This is of course not the creation of the writers of Terminator Salvation, but rather a millstone that they needed to bear. (And think about how much better a movie Terminator would have been if Kyle Reese had changed history by hooking up with Sarah.) Given this paradox, rather than using Reese to lure Connor into a trap, SkyNet would have just killed Reese the moment that it laid . . . err . . . eyes on him. This would have killed Connor as well, and since it makes complete sense to me that, but for John Connor, every other human would have simply rolled over and allowed the machines to kill them, this would in turn have won the war for the machines. Or not.

3. This is kind of a minor point, but it points to the difficulty that I had in suspending disbelief: Kyle Reese is a true child of the resistance (he looks about twenty), yet he somehow knows not only how to drive, but to drive off-road and on windy, mountain roads? The first time that I drove after I got my permit, my mom took me onto Palos Verdes Dr. East. This street basically consists of a series of switchbacks that make their way up and over the Palos Verdes Peninsula. By the time that I finally got to the end of the street, I was completely drained (and I of course did not have terminators shooting at me). This was just one of those things that was hard to swallow.

The crappy plot is really unfortunate because this movie is really trying to tackle a weightier issue than did the other three movies in the franchise: By focusing on Marcus (although apparently and unfortunately less so than before Christian Bale mandated that the role of John Connor be expanded), the movie is really getting to the heart of what it means to be human (or really, what it means to consciously exist). A better film might have added something to this debate or raised interesting questions, but TS never really cleared the hurdle of dumb summer popcorn flick. (For more interesting examinations of this topic, see Blade Runner and BSG.)

Georgia On My Mind

2009-05-23T17:32:00.000-07:00

Really? Still? How are the schools okay with this?

Would You Rather Be Right Or Alive, or: Whose side is he on?

2009-05-22T09:37:00.000-07:00

From the LA Times: Here is P.Z. Myers' response to Charlotte Allen's recent op-ed attacking atheism. Sadly and predictably, Myers' response is as strident as Allen's original piece was, and he seems to take glee in living up to every one of the criticisms that she leveled against atheists. This is troubling.

It is troubling because most people in this country - indeed, in this world - have at least some of the beliefs that Myers ridicules. (And if current scientific research is to be believed, religiosity is hardwired into most humans' brains; in other words, these beliefs ain't goin' nowhere.)

However, as Myers at least bothers to note, these beliefs are not uniform - they range from the belief that every word of the Bible should be taken literally to the belief in some sort of cosmic tinkerer that, as Myers puts it, "does no more than tickle[] the occasional subatomic particle when no one is looking." In other words, from fundamentalism to "spirituality".

To treat this diversity as a difference without a distinction is at best stupid and at worst counterproductive (assuming of course that Myers desires and intends to do more than merely ridicule the pious). Why? Because it really doesn't (and shouldn't) matter to me (or any other atheist) whether my friends and neighbors harbor what Myers terms "a bizarre collection of antiquated superstitions." That is, it shouldn't matter until those beliefs begin to affect us - a point that Myers makes in the last sentence of his diatribe but works against throughout the rest of his essay.

And where do these beliefs really affect us? Is it when Obama evinces piety during his speeches? Was it when we were forced to recite (or at least pretend to recite) "under God" in the Pledge of Allegiance in sixth grade? Is it every time we use currency molded with the phrase "In God We Trust"? Is it when our friends get married and we have to choose between honoring our friendship or validating our own disbeliefs? Are any of these really so offensive that we are willing to wage kulturkampf over them? I hope not.

No, these beliefs truly affect us only inasmuch as they create bad policy decisions (e.g. stem cell research). This should be the real battleground for us, and the good news here is that the people with "lukewarm" religious beliefs generally favor secular approaches to these sorts of policy issues. The bad news is that this is not the war that Myers is waging.

He is not giving up the middle ground, he is not allowing people to believe what they believe so long as they don't hurt anyone else (religious Pareto efficiency?), and he isn't even willing to acknowledge that there are some things that are simply beyond the purview of his knowledge. Rather, he is forcing people into a binary decision. (Does he really think that he will win a referendum on god? Really?)

If this is truly Myers' aim, he needs to be shouted down - not by people like Charlotte Allen, but by fellow atheists who would rather fight the real battles and win on substantive policy issues.

Thoughts on the Laker Game

2009-05-21T20:55:00.001-07:00

Let me preface this by saying that I care very little about basketball or the Lakers.

That said, that was quite possibly the worst officiating that I have ever seen. There was absolutely no consistency to the calls that the refs made, to the point that this game will be an exemplar for those who believe that the league and the refs conspire to draw out the lengths of playoff series and fix certain matchups.

Heckuva Job, Cheney(ie)!

2009-05-21T09:36:00.000-07:00

I am thoroughly convinced that there is a significant, positive, causal relationship between Cheney's mouth being open and popular support for Obama.

In the same sentence, he criticizes Obama for both retaining the same interrogation methods that he (Cheney) was instrumental in creating and allowing to come to light exactly what those methods are. Unbelievable! Well, actually, after eight years of similar self-serving statements by Bush, Cheney, et al, I suppose that it shouldn't be.

Further Thoughts/Clarifications

2009-05-18T18:24:00.000-07:00

To expand on and clarify a point that I made earlier today, I find it interesting that the real debate is not about whether or not there is a god (there can be no real debate on this, since, in the absence of evidence, neither side can offer more than conjecture) but is rather about whether or not humanity ought behave as though there is a Biblical god. This is a slight distinction, but it is not a distinction without a difference. Because of this difference, there is actually room for debate on this point.

And I Thought That Atheism Was Unpopular

2009-05-18T12:01:00.000-07:00

From the LA Times: Another op-ed on atheists.

As an incredibly bright person pointed out in response to a nearly incoherent, rambling rant that I wrote a few weeks ago, the debate between believers and nonbelievers might be intractable as both sides are in some senses incapable of empathy on this particular issue: From my own experiences, I know that my friends and family members who have deep feelings of belief cannot say why they have these feelings; they just have them. And I know that - at least for myself - my own atheism (or at least scientific agnosticism) feels just as natural and deeply rooted. How can one begin to reconcile two truths that are so self-evident to their adherents?

(Tangentially, I am frustrated by the manner in which both sides discuss proof. Nonbelievers - many of whom harbor devout belief in the scientific method - should know better than to even engage in this debate: They know very well that this hypothesis cannot be tested, which in turn means that it can never be disproven. Similarly, believers should not continue to equate an inability to disprove a proposition with proof of that same proposition - nor for that matter should they take as proof axioms that rely on other untestable assumptions.)

Interestingly, both sides often turn the debate from one of faith to one of religion, and here, unfortunately, both sides have an interest in creating a false dichotomy: Religion is either evil or good - it is never merely a tool which may be used for beneficial or detrimental ends. The problem with this dichotomy is that it allows both sides to be correct, which in turn allows them to keep talking past each other. (And of course, all of this assumes that there needs to be or should be a dialogue between believers and non-believers. Does either side really have anything to gain from this?)

For many believers who care to engage in the conversation, religion is - at least in the course of their own experiences - a wonderful aspect of their lives. Religion gives them strength and tranquility as well as a sense of community, and it has of course never inspired them toward acts of violence or hatred. They can acknowledge intellectually that religion has been used as a basis for such acts, but they view these acts as isolated abuses of religion and faith. (That said, I think it worth mentioning that I have several atheistic friends who grew up in rather severe churches; for them, religion did not provide them with the experiences described above, but rather highly oppressed childhoods.)

For many nonbelievers, these violent acts represent the true danger of faith and are historical inevitabilities rather than anomalies, as they perceive that religion often labels as "others" those who believe in other gods (and - of course - those who believe in no gods at all). Because nonbelievers do not experience the personal benefits of religion, it is no wonder that they are often unable to relate to these highly personalized stories and must dwell instead on the mass acts of inhumanity that religion has sanctioned.

But the biggest problem with this debate is that it the opposing sides must approach it from disparate starting points and toward disparate conclusions. Believers - many of whom may be genetically predisposed toward religiosity - find meaning and purpose through their faith. Nonbelievers - many of whom may be similarly genetically predisposed toward nonbelief - either find meaning through their lives or believe - as I do - there is no underlying meaning or purpose to life; that it is a happy accident that lasts for - at least in cosmological terms - a blink of a blink of an eye. I am not sure that these worldviews can be reconciled.

That said, the way out is most likely through tolerance rather than debate and attempts at conversion. As the writer of the op-ed correctly notes, many nonbelievers - and I include myself - at least occasionally lapse into feelings of smug intellectual superiority when we compare themselves to believers. Because metaphysics can - by definition - be neither proven nor disproven, this is a ridiculous position for us to take, as it is based entirely on our own faith and inference rather than on the very reason and empiricism that we espouse. (However, by that rationale, such feelings against Flat Earthers may be intellectually justified.) Thus, logic suggests that the correct course of action is to disengage from debates about metaphysics (save when metaphysics begin to have a real impact on our daily lives) and instead devote our energies to answering those questions that are answerable.

Why Are Prosecutors Opposed To DNA Testing?

2009-05-18T10:19:00.000-07:00

Mark Kleiman of the RBC comments here on this NY Times article.

Although I share his obvious disgust for such opposition, and although I agree with his implied conclusion that DNA testing ought to be mandatory to remediate wrongful convictions, I strongly disagree with his implied assertion that state prosecutors oppose DNA testing because they aren't committed to justice.

In fact, I think that this argument sells a lot of state prosecutors short and discounts the role that the advocacy bias plays in their opposition to testing: From their standpoint, if they go to trial, then they believe that the defendants are guilty; if they convince twelve people that the defendants are guilty, then the defendants really are guilty; if the defendants really are guilty, why force already overburdened prosecutors to retry perfectly good convictions in already overbooked courtrooms in front of already overburdened judges?

Although I do not agree with this logic, I do at least understand where it comes from, and why people who otherwise spend their entire professional lives pursuing justice could subscribe to it.

(One point that Kleiman does not make- but that I think is worth making even though it may refute my own argument - is that a lot of the people who have been set free through DNA evidence were not exactly model citizens before they were convicted; because of this, prosecutors might believe that - at least in those cases - they were guilty of something and should not be set free.)

Welcome Back, Kotter!

2009-05-17T20:49:00.000-07:00

Welcome back, welcome back, welcome back!

. . . and one more thought on Spock.

2009-05-17T15:43:00.001-07:00

Spock might just be the most interesting character on Star Trek:

He spends most of his early life trying to master his emotions, but he is unable to succeed in this until the end of his life when he realizes that he must first acknowledge and embrace them. This struggle is hinted at throughout the series but is not made really explicit until ST IV and is not really played up until the latest movie. In a sense, this makes Spock's story as close as ST gets to the monomyth.

Thoughts on Star Trek

2009-05-16T18:29:00.001-07:00

After what seemed like an eternity (it was after all, a day more than a full week), I finally saw Star Trek, and as is my wont, I thought that I would share my thoughts on the movie.

First, I was amused to see that the Midwestern lobby - today famous for promoting ethanol and generous farm subsidies - is still going strong in Star Trek's version of the 23rd century, as one of the iconic images of the movie is that of the Enterprise being constructed in the middle of Iowa. (I suppose that the very fact that so many acres of arable land are being put to this use also implies that there is no Malthusian population crash in Star Trek's future. GMO? The Eugenics Wars?)

Second, I had very mixed feelings about the portrayal of one James Tiberius Kirk. To begin with, Chris Pine did an amazing job. He captured Shatner's portrayal without delving into camp, which - given a) Shatner's actual talent in TOS (considerable); and b) the extent to which that talent has been supplanted in the public consciousness by bad SNL skits (also considerable) - was no mean feat.

That said, the characterization of Kirk seemed to draw more from Shatner's portrayal of Denny Crane than from his portrayal of James T. Kirk. Although TOS Kirk always had swagger, and although he was always something of a womanizer, he was never reckless. In fact, Kirk was in many ways akin to James Bond, inasmuch as these overt characteristics masked their true cool and calculating natures - no, Kirk was never so much a risk taker as he was a risk analyst. (In gambling terms, Kirk was a poker player.)

But the Kirk of this movie is reckless and irrational (in gambling terms, a roulette player): as the movie says, he leaps before he looks, and it is only through the grace of good fortune that he almost always lands on his feet. This unfortunately channels just a bit of Episode I Anakin (who blows up the droid control ship by randomly pressing an unfamiliar cockpit button at just the right time), but where Episode I had a watered-down version of the Force to fall back upon, Star Trek has no similar deus ex machina explanation, and one is left with the impression that Kirk is probably the last person whom you would want in command of a starship.

(Or - to put it in terms that Trekkers can better identify with - this Kirk is the id-driven half from "The Enemy Within" with nary an appearance of his super-ego counterpart. A transporter accident with this Kirk would be frightening indeed.)

Third, the rest of the characters were okay, but none of the actors - with the possible exceptions of Zoe Saldana and John Cho - really seemed to do much but ape the original portrayers. Then again, this may have been less the fault of the actors than the writers, as none of the characters save Kirk and Spock were given much screen time. This is of course in keeping with the highest traditions of TOS and the movies, and in that sense it was forgivable (although it might have been one instance where a break from tradition was warranted, as this was supposed to be a reboot.)

Where it was unforgivable was in the short shrift it gave to McCoy, who is completely under-utilized. (Well, except for a few shots in which he utters semi-topical catchphrases from TOS.) Then again, that may have been less a product of planning than of frenetic pacing, as this was one of the few movies that I have seen in the past several years that left me wanting more.

Fourth, the plot of the movie is pretty standard Star Trek fare, inasmuch as it involves time travel (something that you pick up on within the first few minutes if you are paying attention, and have spelled out for you an hour in if you are not) and pissed-off aliens (in this case blue collar Romulans, who apparently do not share their social superiors' predilection for grooming and football shoulder pads). The plot works as long as you don't think too hard about it, and perhaps its most welcome feature is its willingness to depart from canon (undoubtedly intended to provide precedent for future departures in movies and/or television series to come) without magically restoring the status quo before the credits roll. How welcome that would have been in any other Star Trek iteration!

Fifth, as with any good reboot, this movie had its share of inside references, some of which were obvious and some of which were not. Some of the ones that I found more entertaining were:

1. Redshirt
In one scene, Kirk, Sulu, and a third member of the crew don spacesuits to skydive on to Vulcan. The third guy's suit - unlike those of Kirk and Sulu - is red. Needless to say, he dies a very quick death.

2. Picard Maneuver
In one scene, Kirk is called to answer for a certain disciplinary violation at Starfleet Academy. His accuser rises to confront him, and as his accuser rises, he tugs his shirt down. Assuming that this was intentional (and I have to believe that it was), this was a clear reference to "The Picard Maneuver." (See the background information at the of the linked page.)

3. Vasquez Rocks
Arena (the TOS episode with the rubber-suited lizard captain) was filmed here (as was part of Bill and Ted's Bogus Journey). In this movie, it is used in the scenes shot on Vulcan.

4. The Wrath of Khan
There were several homages to The Wrath of Khan. First, the movie included a scene where the villain used a Ceti eel. As in TWOK, this took place almost immediately after the villain shared with his victim the pain that he felt from losing his wife. (Of course, where Khan was fixated on Kirk, Nero is fixated on Spock.)

Second, the scene where the Enterprise rises from the dust of Saturn to come up behind the Romulan vessel is nearly identical to the shot of the Enterprise coming up behind the Reliant in the Mutara Nebula.

5. Star Trek IV
A subtle homage to ST IV occurs in the scene in which Spock rationalizes revealing to Scotty a formula that Scotty will come up with at some point in the future through essentially the same logic that Scotty uses to rationalize similar behavior in ST IV. This of course creates a time travel paradox, as it is likely that Spock first learned this from Scotty, who now first learned this from Spock. (A paradox that only Multiverse Theory can resolve; how fortunate that this is the path that Abrams seems to have settled on.)

6. The Undiscovered Country
Probably the most obvious reference here was the establishing shot of the ice planet that Kirk ends up on, which was very similar to the establishing shot of Rura Penthe in ST VI. This of course followed one of the dumber turns of the plot. (Spock wold have sent him to an almost certain death rather than simply place him in the brig? Really? I understand that this is supposed to be a nod to "Where No Man Has Gone Before," but the situations were not analogous, and this is completely out of character for Spock.)

7. Music
Although I was told that the movie contained several references to Star Trek themes past, I didn't pick too many of these up save for a few obvious references to TOS and one to ST II. That said, I did catch auditory glimpses of "Moonlight Sonata" and Philip Glass throughout.

Sixth, this was a very good movie, and the slight lapses that I mention do not detract all that much from the experience. To be sure, it is not quite as good a Star Trek movie as II or VI were, but it might be a better action movie; I highly recommend it.

Thus, I leave you with an entertaining nod to The Wrath of Khan.

Kleiman's Take on Pelosi

2009-05-16T17:45:00.000-07:00

From the RBC: Mark Kleiman's take on Pelosi. I think that his argument makes a lot of sense inasmuch as, assuming Wilkerson is correct, Bush et al should be prosecuted for war crimes.

On the other hand, Congress is supposed to act as a check on the executive branch, so the Pelosi question is not academic. If she knew what the executive was up to but chose to do nothing, then she essentially abandoned her duties, and the fact that she couldn't be prosecuted for speaking up implies to me that she did so for political reasons. That is not acceptale.

"You Can't Have It Both Ways"

2009-05-14T11:17:00.000-07:00

From the NYT: Coverage of Pelosi's press conference. Apparently Pelosi claims that the CIA misled her and Republicans claim that her knowledge of waterboarding makes her complicit in it. As John Boehner put it: "You can't have it both ways." Indeed you can't.

Thus, any debate about this needs needs to include a discussion of what culpability, if any, Pelosi has for her silence, which she attributes to the fact that disclosing the information would have been illegal. I am not sure that this argument really holds water, as, so long as her disclosure took place on the floor of the House, it would have been protected by Article I's Speech or Debate Clause. Thus, I find it far more likely that she was afraid of politics rather than legal proceedings, which makes her silence all the more troubling. (Of course, even if she really did believe that disclosure was legally impossible, assuming that she found waterboarding to be morally reprehensible, she had a clear moral duty to disclose irrespective of the legal consequences.)

But if Democrats can't have it both ways, then neither, Mr. Boehner, can Republicans. Because no matter what Pelosi knew or didn't know about waterboarding, and matter what Pelosi didn't do that she could or should have done, the fact remains that Nancy Pelosi did not order the waterboarding, and Nancy Pelosi did not do the waterboarding. I don't know exactly who did the latter, but I KNOW who did the former, and they were ALL Republicans. Where are Mr. Boehner's attacks on them? The world wonders.

A Sign of the (Declining) Times

2009-05-14T10:44:00.000-07:00

This was on the front page of the LA Times' website.

Really? Golly, it's reassuring to know that this is one of the ten most important things that has happened thus far today.

Voting Wrongs?

2009-05-13T18:12:00.000-07:00

From the NYT: An op-ed about the Court's apparent willingness to strike down the Voting Rights Act.

My responses:

1) To the districts that this affects: the best way to be treated like an adult is to first act like one. Your embarrassment at being "punished" for trying to disenfranchise fellow citizens is not a good argument for getting rid of the Act.

2) I seriously doubt that the Act will be overturned. I am not sure that this is a battle that federalists really want to wage, as it does not play very well in the court of national opinion.

3) If the Court does strike the Act down, it will probably only be struck down in parts.

4) Some of the provisions probably should be struck down. (Read the Act before deciding that I'm completely crazy.)

5) Even if I'm wrong and the Act is both completely legitimate and completely struck down, this will be a very short-lived change, especially if Obama (or any other liberal) wins in 2012: Nino and Kennedy aren't getting any younger, and Thomas isn't smoking fewer cigarettes.

Not That Crazy

2009-05-13T17:48:00.000-07:00

From the LA Times: Schwarzenegger has proposed selling various state properties to help close the budget deficit. San Quentin was among them.

For those not from the Bay Area, San Quentin sits on a parcel of land on the San Rafael side of the Richmond-San Rafael Bridge. Selling it might not be a bad idea.

The prison sits on bayfront property in Marin County. In other words, the land that it sits on would, but for the prison, be very, very expensive. Because of this, it could likely be sold for far more than the cost of a larger parcel in the parts of California where the rest of our prisons are (i.e. BFE). Further, the absence of the prison would allow adjoining property to be developed, which would in turn generate more tax revenue for the state.

The prison was constructed in the 19th century. I would imagine that this means that the design is more dangerous for both the inmates and guards, especially since the prison holds nearly twice as many people as it was designed to hold. A newer facility would alleviate both of these problems.

Light Summer Reading

2009-05-12T12:45:00.000-07:00

After a very long semester, I am finally finished. My friends - my very, very bright, insightful friends - told me that it would be much easier to just take the final in legal ethics. My brain - my very, very stubborn, irrational brain - told me that it would be much more fun and intellectually fulfilling to write the paper.

Thus, for any masochists or insomniacs who might be reading this, I humbly present my parvum opus: 25 pages (not counting endnotes) of hyperbole and non sequitur on the ethics of legal role ethics.. Although I don't seriously expect anyone to read it (save poor, poor Pat Hanlon, who doesn't really have a choice since he has to grade it), anyone who wishes to may do so, and I certainly welcome any comments.

Gods I Hate to Agree With the Pope

2009-05-11T09:10:00.000-07:00

From the LA Times.

Since Benedict took office, I have found myself at odds with pretty much every policy that he has favored (especially his ridiculous and, to my mind, absolutely sociopathic rejection of condoms). That said, he is right about Palestine. (A message that, interestingly, Biden shared when he address AIPAC a few weeks ago.)

Of course, I am not sure that the will of the leader of the church that - at least as a matter of official policy - turned a blind eye to the Shoah and subsequently helped many Nazis escape to South America (and which, for that matter, did not even excommunicate Hitler) really means all that much to Israelis. For that matter, the will of this particular leader, who has taken steps to beatify Pius XII (who, as pope during WWII, was responsible for the Church's inaction), and who lifted the excommunication of a Holocaust denying bishop, may carry even less weight in Israel.

That said, hopefully the Israelis will not let the identity of the messenger color their views of the message. (And while I am at it, in other acts of wishful thinking, hopefully my dad will finally win the lottery and pay for the rest of law school, allowing me to finally achieve my dream of becoming the most overeducated Starbucks barista/amateur beach volleyball player.)

Iranian-American Relations: An Encouraging Sign

2009-05-11T08:47:00.000-07:00

This from the LA Times: An Iranian appeals court trimmed Roxana Saberi's sentence from eight years in prison to a two year suspended sentence.

On a fundamental level, this is obviously great news, as this was realistically very likely the best outcome that Saberi could have hoped for, given the internal forces that shape Iranian politics and "justice." (Of course, lest we get on our high horse about the corrupting influence that politics have on justice in foreign countries, let us not forget what happened to former-Governor Don Siegelman in our own just a few years ago.)

From a legal standpoint, the decision was interesting, because the appellate judge ruled on a question of procedure rather than substance. In the US, judges often do this because there has been a procedural violation (duh!), but they also often do this when they want to reach a certain outcome, believe that the merits of the case justify reaching that decision, but don't want to reach that outcome for any one of a number of reasons.

(Sometimes this is because the case seems like an outlier and the judge doesn't want to establish a precedent that may be applied to run-of-the-mill cases; sometimes this is because a particular outcome on the merits may elicit an outcry from the legal academy, which tends to dislike unpredictability; and at least sometimes this may be because a judge believes - and probably more often in state courts, which I suspect are less immune to political pressure than tenured federal courts - that reaching a decision on the merits will be politically damaging. Of course, all of these justifications have in common the desire to leave the Emperor's new clothes in place. I wonder whether it is substantially similar in Iran, where the costs of political dissent may be even higher.)

At the very least, this seems like a substantive win for both Obama and Ahmadinejad, inasmuch as they will be able to work toward our common interests without needing to deal with this particular thorn. If this is right, then it is almost by definition a substantive loss for anti-American interests in Iran.

I Just Don't Get How Newspapers Are Hemorraghing Money!

2009-05-09T23:16:00.000-07:00

This from CNN: Apparently Rupert Murdoch is considering moving toward a subscription model for online newspaper content.

I find this terribly interesting and, coupled with the losses that so many of these papers are posting, incredibly bizarre. Why? Because to the best of my knowledge, newspapers have always made their money on advertisements, and subscriptions have never done much more than cover the costs of printing and delivery. (I could be wrong about this, and I welcome - no, implore - comment from anyone who knows more about the newspaper business than I do. Sarah, I'm talking to you.)

If I am right about this, it makes absolutely no sense to me that the internet should spell disaster for newspapers. In fact, I would expect the internet to provide the foundations for an entire renaissance of the newspaper for several reasons.

First, the internet allows newspapers to reach far more people. This is true both geographically, inasmuch as most papers are now available anywhere one can find an internet connection, and demographically, inasmuch as the internet provides a medium in which one may combine the depth of traditional newspaper reporting with the timeliness and vivid imagery of television reporting. Together, this should mean more readers, which in turn should mean more advertising revenue.

Second, the internet allows news websites to segment their readers. Installing a simple registration gate - as most of these sites already have done - allows the sites to know basic demographic and geographic data about their readers. In turn, this should allow the sites to display advertisements that are far more likely to be pertinent to each reader than the untargeted advertisements that appear on the pages of newspapers. (This technology is already used by Facebook and Google.) This should thus drive up advertising revenue, as targeted advertisements should be far more valuable to the companies doing the advertising.

Third, the internet allows news sites to post advertisements that can lead to immediate sales. Whereas the function of a print advertisement is to inform the reader of something that will happen, an internet advertisement can (and of course does) take the reader to the company's website, where he or she might complete the purchase immediately. This too should drive up advertising revenue (unless of course the actual metrics that digital advertisements produce imply that print advertisements were fundamentally overpriced), as I would imagine that most companies are relatively indifferent to whether purchases are made through brick and mortar or online stores. (In fact, I would imagine that this increases the pool of potential advertisers, as a store is no longer almost prerequisite to newspaper advertising; this should also increase the price that advertisers are willing to pay for one of a finite number of advertising slots.)

For these three reasons, I simply cannot figure out how newspapers are losing money right now. Because the changes to the advertising structure seem to benefit them, the only conclusion that I can reach is that the companies are so invested in and attached to the print paradigm that they are unable to see the potential for advertising revenue in the new medium. That is unfortunate, but I am confident that this will in the end merely clear the brush for the first great wave of internet newspaper entrepreneurs.

(Tangentially, I also wonder how long it will take for the first major paper to go completely digital.)

***UPDATE***

As I was driving back from a volleyball tournament on Sunday afternoon, NPR was covering precisely this story. I am not sure that the coverage told me anything that I didn't already know, but it did reinforce my belief that newspapers really don't know what to do with the internet: The manager of the Dallas Morning News said that the number of page hits that they receive each day indicates that they are harnessing the technology properly, but he also said that they are barely making any money; this implies to me that they are not, at least inasmuch as they are unable to translate technology into advertising revenue.

Pelosi's Political Kobayashi Maru

2009-05-08T09:04:00.000-07:00

This from the LA Times.

Pop quiz: is it worse: a) to be in a position of power and not actually know about something bad that you should have known about; or b) to be in that same position, know about something bad, and choose not to say or do anything about it?

That is the question that Nancy Pelosi and other representatives face vis-a-vis CIA interrogations. Apparently they either knew that the CIA was planning to waterboard or they knew that the CIA had waterboarded. So far, Pelosi has opted to go with option a. I am not sure that there is a meaningful distinction between the options, but I hope for her sake that she is not lying; something tells me that if she did know about the waterboarding, someone at the CIA knows that she knew, and that someone will make sure that this ends up on the front page of the WaPo anyway. (Well, that or the CIA will see a massive increase in its (classified) budget and a massive decrease in Congressional oversight.)

Wrong!

2009-05-08T08:50:00.001-07:00

From the LA Times: An article discussing the Manny situation.

The article is pure genius! What are the Dodgers going to do without Manny, what ever will they do? Take for example their first home loss of the season yesterday: Obviously Manny was to blame.

This sort of writing and thinking drives me crazy. Are the Dodgers a worse team without Manny? Yes, of course they are. But did Manny's absence have anything to do with the Dodgers loss yesterday? Of course not. The Dodgers scored nine runs through the course of the game (six in the first inning alone) and still couldn't win the game. Hitting wasn't their problem; pitching was. Get it right.

Souter Flips the Bird!

2009-05-07T11:08:00.001-07:00

From the NYT: an article about replacing Souter.

Especially entertaining: an excerpt from Souter's resignation letter (at the bottom of the page). Of course, his letter is a bit disingenuous, since Souter could have retired at 65 or 66 with full benefits; the fact that he did not probably means that there was more to his continued service than money, but it is still an entertaining passage from the man who once remarked that he had "the world's best job in the world's worst city."

Occam's Frozen Rope

2009-05-07T10:53:00.000-07:00

A letter writer to SI's Baseball Mailbag asked whether losing teams are more likely to complete triple plays (three outs on a single play; the rarest defensive feat in baseball). Ted Keith, the proprietor of this feature, noted that - at least in the past decade - the record of teams that have completed a triple play is 12 wins and 19 losses.

Why? It's pretty simple to me. In order to complete a triple play, three factors need to be present: First, there must be no outs in the inning; second, at least two players must be on base; third, the batter needs to hit the ball fairly hard.

An inference so obvious it hurts: the team that hits into the triple play is putting a lot of men on base and hitting the ball hard. Unless this is an isolated inning, this means that the team is scoring a lot of runs, which in turn means that the team is more likely to win.

Something to be Learned from the Saudis?

2009-05-07T10:41:00.001-07:00

This from the LA Times: Saudi Arabia is holding an inner beauty contest.

I would be interested in seeing something like that in the US, although I could do without the focus on dogmatic religious answers. (To be fair, I wouldn't really have a problem with answers grounded in religious beliefs, so long as those beliefs appears to be the product of thought rather than recitation.) As a somewhat intelligent male human, I am often struck by how odd and irrational attraction to physical beauty is when it comes at the expense of intellectual incompatibility. Thus, it would be interesting to me to watch (or listen to???) an intellectual beauty contest.

What Price Relative Success?

2009-05-07T10:28:00.000-07:00

Bad news from GM today: Apparently it lost more than $6B in the first quarter of FY 09. In contrast, Ford lost "only" $1B in the first quarter of its fiscal year. Although from an absolute sense both had terrible quarters, the price of Ford's shares rose on the news of GM's misfortune. Although this may be mere correlation, it sure feels like causation.

If this is true, I have a hard time understanding this. If Ford is hemorrhaging money to the tune of $1B dollars per quarter, this should be a frightening thing to investors; the mere fact that Ford is a better investment than GM does not mean that it's a good investment. So why the rush to Ford? I understand that Ford is not taking government loans, and I understand that this should send a powerful message to investors about Ford's management's perception of its true financial security, but oddly enough, when Ford initially announced that it would not take government loans, the price of its shares went down. Compare that to the price of GM's shares, which rose when its management announced that it would take government loans a few months ago.

Again, why? I have a couple of thoughts on that, though I am not sure that I believe any of them. First, it could be that savvy investors don't really see a problem with huge losses (at least up to a certain point). If this is true, then Ford may be gaming its numbers to produce tax benefits, but may be in no real danger (or at least, investors more savvy than I may not perceive that it is in any real danger) of financial implosion.

Second, it could be that many of these investors perceive that there is a need for - or simply want to invest in - domestic automakers. In this case, the fact that Ford is relatively better off than GM means that it is likely to be the last man standing. A slightly different and deeper hypothesis along these lines would be that with Chrysler effectively done and GM very likely to be done, Ford, as the last automaker standing, will simply not be allowed to fail, no matter the cost.

I wonder whether this is true. Thoughts?

Good News For Believers in Sensical Foreign Policy

2009-05-07T10:19:00.000-07:00

From the LA Times: Apparently the director of Alabama's port authority is in favor of normalizing relations with Cuba. Although the article points out that support for thawed relations with Cuba is by no means unanimous, it also points out that support is growing amongst Republicans who are in charge of economic activities in the Gulf states.

This is good news; with the support for sanctions quickly and quietly paring down to only the ideologically extreme, normalized relations seem to be inevitable and not too distant. I am not sure that this will have any huge economic impact, but from a symbolic standpoint, ending an idiotic, fifty year long feud with a neighboring country has to be a good thing.

Think Twice About This One, Joaquin

2009-05-06T18:50:00.000-07:00

Memo to the drug cartels: This would be a very bad idea for you. Don't believe me? Ask the pirates whether I'm right about this one.

Savage!

2009-05-05T16:45:00.000-07:00

From the LA Times: Michael Savage was banned from entering Britain as an inducer of hate.

Savage appeared on Talk of the Nation today to discuss this. Because Talk of the Nation is, as the name implies, a talk show, guests often field questions from callers. In this case, the first caller stated that if Savage mentioned Jews and Christians as often as he mentions Muslims, he would have been fired long ago. Before he could finish his (admittedly sharp) question, Savage interrupted the caller and said that the caller was a pajama-wearing inhabitant of a mental hospital. Savage then told Neal Conan that he had better things to do than listen to this and hung up on the the program.

Ironically, the second caller said that she believes that Savage performs a public service because he presents a point of view that many people do not share. Yes, and luckily for Savage and his ratings-dependent advertising revenue, she is apparently more tolerant of opposing viewpoints than he is.

***UPDATE***

Here is a transcript of the call.

(Half-)Baked Fish

2009-05-05T10:30:00.000-07:00

I am not quite sure what to make of Stanley Fish's review (???) of Terry Eagleton's book about relgion for several reasons: First, it is more rehash than critical review; second, I am thus not sure exactly what the point is, or, for that matter, if there actually is a point other than that contained in the last sentence; third, I am not sure that this is saying anything new, since scientists typically do not attempt to explain that which cannot be scientifically tested (although cosmological theories may be an exception to this, with the important caveat that they are hypotheses based on current scientific understandings that have been rigorously tested); and fourth, the examples that Eagleton uses to explain his points are incredibly biased.

I will focus this rant on the third and fourth points. The fact that science does not attempt to explain things that are beyond its abilities to explain is categorically not a vice. Rather, this sort of epistemological humility is precisely what religion lacks. Do Eagleton and Fish truly propose that the correct answer to an unknown question is not to admit the limitations to your own knowledge, but rather to simply pull something out of . . . thin air? Well, Fish is a law professor, and given law's proud history of pulling things out of . . . thin air . . . and then pretending like those things are universal truths, perhaps this is not so far-fetched.

But I have to admit that I am still lost on this point. Why is it so difficult for us to concede that we may not have an explanation for everything, or at least that we don't yet have an explanation for everything? Would it really be that devastating to learn that there is no real point to existence; that we truly are the descendants of simple cells that mutualistically banded together, and proved to be just a bit better at it than like bands of cells?

In fact, it is liberating to me to think that this is true, for if there is no point to life other than to live, then there is no pressure to be anything but a person who enjoys life. Is this such a bad fate? In fact, the underlying premise of their argument is Straussian: If you create a secular culture, you risk the culture falling to pieces when people stop giving a shit. I don't find this risk to be unacceptable, inasmuch as I think that the very issues that they cite reflect not a culture of live and let live, but rather a culture where the dogma of market economics replaces the dogma of religion.

But this may mischaracterize the real issue, inasmuch as I think that the logical conclusion of the realization that nothing much matters is to turn away from dogmas of all varieties. If church attendance doesn't matter, neither do gold-plated toilet seats. In fact, the entire culture of Mammon seems to me to be less in opposition to the culture of God than either Eagleton or Fish would admit (e.g. Protestant work ethic; Ken Lay's weekly church attendance, etc.), unless of course by religion they truly mean a culture of religious asceticism, although I sort of doubt this. No, the opposite of caring is not caring about something else, but rather apathy.

Moving on to the issue of the examples that they cite, I am not sure how they do this with a straight face. Colonialism wasn't a product of religion? Really? Tell that to the Chumash whose hands the Spanish lopped off in the name of God; tell that to the Aztecs, the Mayans, and the Filipinos, who each had some interesting (and by interesting I mean violent and bloodthirsty) religious practices of their own. But this is not to say that they are completely without their points.

First, I happily concede that progress is not and should not be a value in and of itself. In many instances, it has simply brought new and more inventive ways for humans to destroy themselves and their surroundings. However, any intellectually honest argument must demonstrate that religion is somehow less objectionable in this matter. They do not do this, except to say that religion is not perfect, but that this imperfection should be excused because religion at least tries to answer (and by answer they mean make up answers to) deeper questions. In other words, we might have blood on our hands, but at least we care. This is hardly compelling.

Second, Fish does have a point about Dawkins, et al. They should not try to convert those who wish to believe in god, and their dogmatic approach to atheism is 180 degrees off of one of the true joys of athesim, which is of course freedom from dogma. Of course, neither should those who believe in god try to force their beliefs down our throats, and I daresay that there are far more of the latter than the former. But of course neither Fish nor Eagleton bother to consider just how annoying schoolyard missionaries might be to nonbelievers.

I am not going to reward this disorganized rant with a real conclusion, but I do think it merely fitting to point out that Eagleton and Fish seem to suffer from the paranoia of the masses: One billboard advertising an atheist support group goes up in Texas (compared to the myriad that advertise Jesus), one mall hoists a sign saying 'Happy Holidays' rather than 'Merry Christmas', two writers publish books and articles explaining their own atheism (compare sales of The God Delusion to sales of the Bible), and all of a sudden the devout are under siege. This in a country where atheists are only slightly less loathed than gays? Come on.

Red Dawn Post Redux

2009-05-05T08:29:00.000-07:00

This from today's LA Times: Apparently a Georgian tank battalion mutinied immediately before NATO exercises in Georgia. Although the tank battalion was soon surrounded, Georgian officials allege that their neighbors to the north may have been behind it. Maybe.

It is awfully embarrassing to show your allies that you have do not control over your military, but this cuts both ways. Given Russia's general annoyance with NATO's expansion into pretty much every European state but Russia, it certainly gives the Russians a strong incentive to make Georgia look bad. This is particularly true since the exercises were very likely held in Georgia because of the recent conflict between Russia and Georgia. In other words, these exercises were meant to be a show of force that would also serve to familiarize NATO forces with Georgian terrain.

Of course, these same circumstances give Georgia a strong incentive to attribute this to Russia, since this would shift the fault away from their army's command and control or working conditions.

Some Things Just Aren't Funny

2009-05-05T08:14:00.001-07:00

(Warning: the first link is extremely graphic!)

I know that the history of civilization is a history of cruelty, that there are far greater horrors that humans inflict against other humans each and every day, and that there is little real difference between this and the slaughterhouses that furnish me with hamburgers, but for some reason - maybe it is the completely barbaric and anachronistic way that it is performed, or maybe it is the fact that seals, so graceful in the water, are so helpless on land - seal clubbing really makes me pessimistic about humanity.

Apparently I am not the only person to feel this way, as the EU just passed a bill banning the sale of Canadian seal products in Europe. A couple of thoughts on that:

1. Who were the forty-nine people who voted against it?

2. This will of course not mean the end of the seal slaughter, because the mere fact that seal products will be illegal does not mean that seal products will not be available.

3. Thus, people caught with seal products should not be fined or imprisoned, but they should be forced to watch videos of seal clubbing.

4. Maybe I should become a vegetarian.

An Ear to the Ground and a Finger to the Wind; or A Study in Political Responsiveness

2009-05-04T23:57:00.000-07:00

Cause and effect. Isn't it amazing how a front page story detailing the disparate impacts of race and class on a police investigation will light a fire under the mayor's ass? Of course, it shouldn't come to this, but kudos to the LA Times for covering it. Hopefully this is a sign of better things to come.

Interestingly, Southland, which has done a worthy job of entertaining me since BSG ended, tackled an eerily similar issue in last week's episode.

(By the by, this show is very savvy about LA: When a resident of South LA asked one of the cops where he lives, he said that he lives in Castaic, any Angeleno knows that this is pretty accurate. When a detective encountered a newspaper reporter, the reporter told the detective that the newspaper didn't have a budget for in-depth reporting; this hits close to home for anyone who's followed the decline of the LA Times.)

Dubious

2009-04-30T21:32:00.000-07:00

According to Killers frontman Brandon Flowers, the reason that the Killers have not enjoyed greater critical and commercial success in the US is that Americans are still stuck on Led Zeppelin and Nirvana. Thus, Flowers aims to "knock them off their pedestal."

No, Brandon, the reason that you have not enjoyed greater critical and commercial success is that you haven't made a good album since Hot Fuss. Contrast that to Led Zeppelin and Nirvana. Neither of those bands released a bad album that I am aware of.

Surprise, Surprise

2009-04-30T20:44:00.000-07:00

From today's LA Times: Yet another reason for conservatives to hate Bush I's first Supreme Court appointment.

I guess he'll finally get to go back to New Hampshire for good. I wonder if this will be Harold Koh. Something tells me that it won't be John Yoo.

Sacred Cows

2009-04-30T12:41:00.000-07:00

This from today's LA Times.

This article raises three important issues:

First, the Shoah should not be sacred. The ADL does no favors to Israel or the Jewish community in the US when the very invocation of the Shoah raises protests. Yes, the Shoah was awful. My grandfather was in camps, my grandmother was in hiding, and I will never know many of the relatives that I might otherwise have known (supposing of course that in the absence of the Shoah, my Polish Jewish grandfather and my Belgian Jewish grandmother would have met and moved to the US anyway). That said, there have been very many other awful things that have gone in the world, many of which involved deliberate genocide. It does not make the Shoah any less awful to compare it to other such events, nor does it make those who make these comparisons inherently anti-Semitic.

Second, all of that said, the professor's framing of this issue was pretty stupid; not because Israel has been a good little country in Gaza, but rather because he has allowed his opponents to shift the debate away from what Israel is actually doing and toward the semantics of the description. If the professor wants to seriously address Gaza in his class, then the last thing that he should do is frame it in a way that will close the minds of the very students that he is trying to reach. For those of us who believe that Israel needs to treat the Palestinians better, we should try to articulate our beliefs in a way that acknowledges (but does not apologize for or use as an excuse) Israel's difficult position and uses reason rather than bombast.

Third, we as a community that is - for better and worse - tied to Israel must debate the morality of Israel's actions. By debate I do not mean repeating Israel's talking points and self-seving justifications; I do mean that we must take a real look at what Israel has done and is doing to Palestinians - especially when Israel is doing bad things. The danger of not looking at Israel's actions critically is that we risk becoming apologists - if we are not already there - and apologism, the willingness to fall lock-step behind Israel - right or wrong - is the first step down a dark road that we don't want to go down.

Further, it is important that we realize and acknowledge: 1) that one may condemn Palestinian atrocities without excusing Israeli atrocities; and 2) that whether or not Israel had a right to exist in 1948, and whether or not it has the right to exist now, the fact is that the creation of Israel imposed a significant hardship on the people who already lived there. Such hardship may not excuse Palestinian violence, but it goes a long way toward explaining Palestinian anger. This anger is legitimate, and the fact that there has not been a systematic genocide does not mean that Palestinians cannot feel toward Israelis an anger that is similar to the anger that many Jews have felt toward Germans.

Thus, the major tragedy of this article lies in the fact that both sides are talking past each other. That said, my advice to any college student who cannot handle a different and controversial point of view - who is unwilling to think critically about the issues, but is content to merely stand back and cry wolf - is short and sweet: Grow up!

***Update***

In general, I think that hyperbolic rhetoric favors the defending party, and if I were a complete apologist for Israel, I would welcome a comparison to the Shoah. I would use this to demonstrate what Gaza is and what Gaza is not.

Reflections on Rich's Column on the Bush White House

2009-04-29T09:26:00.000-07:00

Frank Rich's recent NYT column: "The Banality of Bush White House Evil"

Rich (or the NYT editors) of course named this column after Hanna Arendt's famous book on the Eichmann trial, Eichmann in Jerusalem: A Report on the Banality of Evil. This book, which greatly impacted me when I read it for a grad school ethics class, paints a portrait of Eichmann that I suspect is dissatisfying to many. Arendt's portrayal of Eichmann is furthermore consistent with the impressions that Leon Goldensohn recorded following his interviews with the Nazi leadership at Nuremberg.

In both of these accounts, the Nazis are not cackling Disney villains, Buffalo Bill-like psychopaths, or for that matter even particularly bloodthirsty or overtly anti-Semitic. They are merely people (some of whom were even quite intelligent and well spoken) who had committed barbarous acts. The implication, in other words, is that they were people just like you and me. (There, but for the grace of God, go I.)

This of course is a problem, because none of us want to believe that we are capable of such atrocious acts, and it is precisely this theme that Rich discusses in his column. It is also - incidentally - the theme of a paper that I am writing for my law school ethics class, in which I argue that the primary evil of our legal system is that it relies on role ethics and a strongly adversarial system.

But we cannot find a way out through the paths of ignorance and denial, because if we insist on portraying these people as caricatures rather than reflections of their circumstances and societies, we completely miss the point; a point that was serendipitously made a few weeks ago by Martin Shapiro in his response to a lecture by Frank Easterbrook. Shapiro's closing words were: "Judges will do what judges want to do, so take care in choosing who your judges are."

This I feel is the real (albeit unpopular) takeaway from Nuremberg. "Evil" (and I place it in quotation marks because I think that to do otherwise is to ignore the banality of it) was mostly perpetrated by people who did not think that what they are doing was right, but were similarly unsure that what they are doing was wrong. Because of this, we must take care that we choose an ethical and legal regime that leaves no doubt that immoral orders must be disobeyed, and that leaves no room for the claim that an actor "was just following orders." But for the grace of such a system, there go you and I.

One down . . .

2009-04-28T11:57:00.000-07:00

Democrats are now one end to frivolous litigation away from a filibuster-proof majority, as Sen. Arlen Specter just switched parties.

Al Franken's seat really, really matters now. Time to get him seated.

Misguidedly Harmless or Idiotic (I'm Not Yet Sure Which)

2009-04-27T20:56:00.000-07:00

What a waste of time and energy. Why don't they devote their time trying to stop something that is actually sad, such as FGM?

At the risk of getting embarrassingly personal, I speak with some knowledge when I say that "male genital mutilation" is a complete non-issue. Seriously. Who even thought this up? I can't imagine sitting around, thinking about all of the problems that exist in the world, or for that matter even within our own country, and settling on male circumcision as my topic of choice.

AIDS?

Is that still around? Isn't Magic still alive?

Cancer?

Passe.

Drugs?

Nancy Reagan's on it.

Wait! I've got it! Circumcision! Male circumcision!

Male circumcision?

Yes, male circumcision!

Does it hurt?

For a moment.

Does it cause any lasting injury?

Not that I know of.

Sexual dysfunction?

No, not really.

Disease?

No, it's actually more hygienic.

Well, what's wrong with it then?

I dunno. It just don't seem right.