Good For President Bush

I'm sure many will dismiss the President's surprise visit to Iraq as a PR stunt, but I'm going to stop being cynical for 5 minutes and give the President credit for a nice gesture. I'm sure the soldiers appreciated it.

UPDATE: Boy did I call that one. Check out John Cole's roundup of some of the more ridiculous commentary from what I still (reluctantly in this case) consider my side of the spectrum. The President of the United States visits our troops on Thanksgiving, and this is the crap that spews from the lefty blogosphere. I'm ashamed.

UPDATE II: I'm through with shame. Now I'm at disgust. It's one thing for the Democratic Underground crowd to fly into hysterics at everything Bush does, just because Bush does it. But to visit one of my old favorites like Matthew Yglesias and have to read this crap from him and his commenters, it really has me second-guessing how much I have in common with them. Has the whole world gone crazy? Am I the only here that gives a shit about the rules? Mark it zero.

UPDATE III: Leave it to Will Baude to try and tell us we're all wrong:

Ramblings on Gay Marriage, the Judiciary, Churches and Constitutional Amendments

Via Howard Bashman, I see that Stuart Taylor has written a column in the National Journal which comes pretty close to explaining where I stand on gay marriage and why:

As a policy matter, gay marriage is an easy call. I'm for it.

The constitutional question is much harder. The main reason is that a decent respect for government by the people should lead courts to defer to popularly enacted laws that embody deeply felt values -- including laws that make no sense to the judges -- unless the laws violate clear constitutional commands or fundamental rights. It is frivolous to claim that the marriage laws of every state and every civilization in the history of the world violate any clear constitutional command. And it is a stretch to claim that they flout fundamental rights.

Read the rest of the article for further discussion, most of which I agree with. The rest of this post will be a lot of rambling about the thoughts that I'm having about various questions raised by this case and resulting conversations.

Powell's Uneasiness With the Death Penalty

I'm down to the short strokes on my paper, but I've just run across a very interesting anecdote about Justice Powell's uneasiness with the majority opinion in Gregg v. Georgia upholding the death penalty. This comes from the biography of Powell written by my law school's dean, John Jeffries:

The backlog on death row was large and growing. Roughly half of these sentences had been imposed under laws that would be upheld. When they were, the executions would begin in earnest. Powell feared a bloodbath and was looking for a way out.

This is hardly unusual. Several of the justices had very mixed feelings on the death penalty, switching their vote multiple times in that decade (Blackmun, White, Stewart). But Powell's proposed solution seems astounding:

Military vs. Civilian Pay

Interesting article in this week's Army Times detailing the 2004 pay charts for the military, and the formula for the annual pay raises:

A 3.7 percent raise is the amount called for under a 1999 law that mandates military raises be set 0.5 percentage point above annual private-sector pay increases as measured by the Employment Cost Index. The Defense Department opposed this pay-raise formula when it was created and passed during the Clinton administration, and still doesn't like it.

Congress approved the ECI-plus-½ pay plan in an attempt to reverse a 16-year trend of military raises that generally were lower than pay hikes for private-sector workers.

By 1999, the gap between military and civilian salaries was estimated at 13.5 percent. Today, the pay gap — the existence of which still is widely disputed — has declined to about 6.4 percent and would drop to about 5.7 percent after the Jan. 1 raises.

Apparently the Pentagon opposes the plan because "some grades, such as junior enlisted members and junior officers, make more than their civilian peers of similar age and education levels."

Now it's not really fair to compare the JAG program to law firms, because the work and lifestyle are so different, but here it is anyhow:

Speaking Past Each Other

Will Baude has a response to my defense of PG and Ampersand, but I still think that he and I (and thus the Clerk and PG/Ampersand) are talking past each other.

First, he reiterates a point that no one disagrees with:

As The Clerk further points out, not only have the VFW not violated anybody's rights, but anybody who tried to make them do otherwise would be violating theirs.

We understand this. That's why no one is arguing that they should be forced to change their message. That's why WE are exercising our First Amendment rights in criticizing their actions. Because that is the proper way to attempt to change the VFW's views on the issues, by showing them that their actions engender disgust or disagreement.

Speaking Past Each Other

Will Baude has a response to my defense of PG and Ampersand, but I still think that he and I (and thus the Clerk and PG/Ampersand) are talking past each other.

First, he reiterates a point that no one disagrees with:

As The Clerk further points out, not only have the VFW not violated anybody's rights, but anybody who tried to make them do otherwise would be violating theirs.

We understand this. That's why no one is arguing that they should be forced to change their message. That's why WE are exercising our First Amendment rights in criticizing their actions. Because that is the proper way to attempt to change the VFW's views on the issues, by showing them that their actions engender disgust or disagreement.

The Light at the End

I finally forced myself to pick a law firm today. The job search, particularly the on-grounds interview process, was the worst thing I ever went through... worse than Army camp, worse than 1L finals (I guess that says a lot about my pampered life). It brought out the absolute worst in a lot of people, some of whom will likely never regain my respect. It took too long, was too opaque, and interfered too much with my long-forgotten role as a student. Still, I met a lot of nice people, saw the insides of a lot of law firms, and had a good deal of success.

A lot of the tangible stuff was pretty fungible between the firms I considered, so as is often the case, intangibles became vital in narrowing things down. The single most frustrating and elusive piece of the puzzle was prestige. It's always been a hard thing to understand, both in its determination and its consequential importance. What does the Vault guide actually measure? Is it relevant that I would never work for the top 5 firms in their prestige rankings? Does that suggest it is measuring something I don't value? Is there a difference in prestige between the 11th and 19th firms? The 19th and 47th? Does anyone else ever care about these things? Will it matter where I summered as a 2L when I look for jobs coming out of the Army in 2010?

Hate to Disagree With Volokh

I do hate to disagree with Volokh, especially on what amount to religious grounds for me, but I think he's wrong here:

I suspect most of us think that a pill (or some other mechanism) that could reduce desire (especially strong desire) for alcohol, drugs, or unhealthy foods would be very good, because it would provide a very valuable, possibly life-saving choice to people.

Well, maybe he's not wrong. Maybe most people would support it. But I wouldn't. Desire is the fundamental human weakness, and it doesn't really matter where it is targeted. But to overcome it through an external source, like a pill, is in my view a tremendous restriction of someone's freedom rather than something that "free[s] them of their physical urges." True freedom comes from facing those urges head-on and defeating them. Now I may be going too far, particularly in cases of addiction. That's not a question I've really grappled with, but insofar as addiction is a disease, I think it should be excluded from the discussion of "desires". In general I do have a problem with this idea of external artificial intervention, and Volokh's main example is of someone who is committed to veganism philosophically but for reasons of desire/taste is unable to follow through. I say it's better for the would-be vegan to learn not to desire the meat than to take a pill that accomplishes the same. I even think it better that he struggle his whole life, falling off the "wagon" on occasion, than to pop a pill and be a vegan the rest of his life. Ease and "happiness" can't really be the only values we're trying to instill, can they?

Michael Newdow

Law.com has a profile of Michael Newdow, the plaintiff/lawyer in the upcoming Pledge of Allegiance case before the Supreme Court:

[I]n the case of Elk Grove Unified School District v. Newdow, No. 02-1624, Newdow's tangled tale remains front and center. In part, that is because his ongoing custody dispute is key to whether Newdow has standing to challenge the Pledge -- an issue the Court has asked the parties to brief and argue. The Court could easily avoid the Pledge issue altogether by viewing the custody matter as too unsettled to grant Newdow standing.

But Newdow has also kept himself at the forefront by insisting, against the advice of many of his natural allies, that he should be the one to stand before the justices and present the case. His motion to argue the case himself is pending before the Court, and his quirky demeanor could lead the justices to appoint someone else to argue for him. In some of his filings, for example, atheist Newdow refers to himself as "Rev. Dr. Michael Newdow" of the oddly named "First Amendmist Church of True Science."

Newdow's solitary persistence has paid off so far. He argued and won before the 9th U.S. Circuit Court of Appeals. At the Supreme Court, Newdow has already picked off one likely opponent -- Justice Antonin Scalia -- by taking the risky step of asking Scalia to recuse. Scalia, who had criticized the Pledge challenge in a speech in January, took himself out of the case. Newdow has a far better chance of winning before an eight-member Court.

He sounds like a very interesting man, if troubled at the very least. I do think it's nice to see the story behind the case, something which often doesn't come across very well. Not many people know that Ernesto Miranda was conviced again even after the Supreme Court threw out his conviction (and that he was murdered ten years later). Or that the couple in Lawrence v. Texas was interracial (only important if you think, as I do, that it might have played a role in them being prosecuted). One of the best books along these lines is Anthony Lewis' Gideon's Trumpet, which I had the pleasure to browse as I did research for my seminar paper. I recommend it, and urge court-watchers to consciously seek the stories behind these cases. Sometimes they are just as instructive as the legal arguments.

Future Guilt

In Leo Katz's "Criminal Law" contribution to the Blackwell Companion to Philosophy of Law and Legal Theory (which comes across like an advertisement for a book he wrote around the same time), he puts forth an interesting hypothetical about causation:

A man who happens to be afflicted with a frequently fatal, sexually transmitted disease, something like AIDS, and who knows that he is afflicted with this disease, nonetheless has intercourse with a woman without first warning her. He infects her, though luckily she never comes down with a full-fledged version of the disease. In addition, however, to infecting her, he also impregnates her. The child that comes of this union also carries the fatal disease and dies within a year of its birth. The question for the court is a simple and basic one: is the defendant guilty of homicide, specifically, has he committed involuntary manslaughter, or perhaps even murder?

Well my first instinct was "yes, of course!"

Market Distortions

While in Chicago yesterday I had lunch with an old fraternity brother who now works in the re-insurance business. We ended up talking quite a bit about tort reform, which led to a broader discussion about government regulation/intervention, and I walked away from the conversation with a lot of questions, and few answers.

One of the things that bothered me most was that, as far as I can tell, he was quite right to bemoan emergency disaster relief granted to those who fail to sufficiently insure their property. His claim was that the end result of such relief is that it lowers the incentive to properly insure in the first place, and that it stunts the market's ability to tell people where they should and should not be living. If the people living in the Mississippi flood plains cannot afford flood insurance because it is so expensive, the market is telling them that they ought not live there. If they continue to do so, they should bear the cost of that choice. Instead, emergency relief forces you and I to bear the cost of their choice.

I countered with the simplistic claim that, even if that logic is correct, our society has evolved to a point where we're unwilling to let those struck by disaster freeze or starve to death, even if they are unwilling or unable to insure. And of course, this led us straight to what I see as the crux of the welfare state debate. By its very nature a welfare system distorts the market. We like this when it prevents people from starving. But the more I thought about it (and this was after reading the Contracts and Tort chapters of Patterson's Companion to Philosophy of Law), the more upset I got that the other big effect of the system is to relieve individuals of responsibility for protecting themselves. Do I sound like a 1994 Republican or what?

Anyhow, it was a very interesting conversation and has left me feeling a bit dazed. I've always struggled to mesh my social libertarianism with my more collectivist economic leanings, and this is just another blow.

Guns and Democrats

I've been following this discussion pretty closely, and think Mark Kleiman has well-summarized the proper reasoning for Democrats re: gun control:

For a Democrat to deliberately fight the culture wars -- as opposed to standing up for principle in ways that cause cultural strain -- is just stupid politics, in addition to being bad manners. And "gun control," as a political issue, is a culture-war issue. Guns are to the People for the American Way as drugs are to the Eagle Forum: a material symbol of everything they hate and fear. And hatred and fear make bad policy.

The "assault weapons" ban, like gun registration, has almost precisly no value in reducing the rate of homicide with firearms. As a quick reaction to the fears of some big-city police departments that they were losing the arms race to the drug dealers, it made a kind of sense, but the banned weapons never accounted for any significant number of murders, and it's not clear that banning them for purchase by people eligible to buy guns is necessary, or even useful, as a way of keeping them out of the hands of bad guys.

...Law-abiding gun owners are not the problem, and there's no reason to pick a quarrel with them.

Amen, Brother Kleiman. This gun-control crap is a black hole for the Democratic Party. It's irrational, it doesn't work, and it's unpopular. The cost-benefit analysis of the party's position is so heinous that it defies explanation. The party should let it go.

Sticking it to Friedman (and all the rest)

Attacking Thomas Friedman hardly seems worth the time it takes, but at least when Brian Leiter does it, he does it right:

Thomas Friedman of the NY Times remains as juvenile as he was the last time I bothered to lambast him (with help from the lovely Karl Kraus: "No ideas and the ability to express them: that's a journalist.").

The problem this time? Friedman seems to think the Saudis care more about nurturing democracy in Iraq than do the Germans or French. Uh huh. I mean DAMN that's a stupid thing to say.

I don't want to be flippant, but it seems to me that one of the more obvious local costs of this Iraq episode has been the tremendous plummet we've seen in the quality of writing and commentary almost across the board. I'm talking about newspapers, political magazines, and especially blogs. Instapundit is only the most obvious example... there are plenty of others (on both sides) who have become increasingly unreadable, and it's been a really sad development. I'm not even talking about civility. I'm talking about intelligence. That's a big reason you won't get much war/peace-blogging from me. I know better than to think I've got an intelligent contribution to make. It'd be nice if Friedman et al had the same realization.

UPDATE: I'd like exhibit A in this trial on the stupidity of current Iraq dialogue to be the constant analogies between WWII occupations and present-day Iraq ("Oh look at all the resistance that was put up," "Look at how multilateral it was back then, and don't forget the Marshall Plan," "Back then it took 5 years, have some patience"; see this post and its comments for examples). Let me just lay out a few mild, uncontroversial statistics and see how they compare...

WWII: War started by German and Japanese aggression, US resists entrance until territory is attacked, 6 years of total warfare, 3 years of bombing German cities, 1 year of bombing Japanese cities (including 2 nuclear detonations), 7 million dead Germans, 2 million dead Japanese, total defeat and unconditional surrender of the German and Japanese governments.

Iraq: War started by US under preemption doctrine, 4 weeks of warfare, 4 weeks of bombing, under 10,000 Iraqi deaths, Iraqi military seems to disappear into thin air, Iraqi leaders go into hiding.

That ought to be enough. The statistics speaking for themselves, I hereby declare a moratorium on any further analogies between the occupations of Japan and Germany and the occupation of Iraq, either in support of or criticism of our current operations. The differences in the situations are so vast that any such analogy is henceforth considered per se inapt.

Solum's Legal Theory Primer

Larry Solum has another entry in his excellent "Legal Theory Lexicon" series; this time he discusses utilitarianism.

For those who've missed some of these brilliant primers, check out his Legal Theory Lexicon archive for previous posts on The Prisoner's Dilemma, The Veil of Ignorance, Holdings, The Reasonable Person, Hypotheticals, The Coase Theorem (why oh why didn't he write this a year ago?) and the Ex Ante/Ex Post distinction.

Gay Bishop Consecrated

I think this is fantastic. I'll tell you what I like best about it: it was not court-ordered. I may think the Boy Scouts (et al) are wrong to exclude gays (in fact I do), but I would much prefer to see internal pressures rather than injunctive relief resulting in the first openly gay man accepted as a scoutmaster.

Kudos to the General Convention for having the foresight to approve this and the courage to follow through.

iTunes fun and Apple Temptations

One of the things I did to procrastinate from my mountains of schoolwork was to add album artwork to all of my MP3s in iTunes. That program is truly a marvel of ease and convenience (particularly since I have an iPod and had to suffer through using Musicmatch Jukebox to add songs to it), and has me wondering what other gems the Apple world has to offer. I've never before been tempted to cross over into that world, but now that I've gotten used to having two computers (laptop for schoolwork and desktop for gaming, etc), it seems like I could pretty easily make the transition to having an Apple laptop, since I woudn't have to worry about games and other programs not working (since I'd be using the desktop PC for those anyway).

Those Powerbooks sure are nice.

The Legacy of Lochner

Nathan Newman has another spirited response to David Bernstein's defense of Lochner. I happen to think it just plain stupid for Justice Janice Brown to have defended Lochner, in the same way that it would be stupid to criticize Brown v. Board of Education, or to argue that women shouldn't be protected by the 14th Amendment (here's looking at you, Judge Bork). The position you'd be taking is so hopelessly lost to the power of conventional wisdom that you're practically handing your opponents the rope with which to hang you.

Circuit Court Misconduct

Via Sebastian Holsclaw I see that Congressional Republicans are investigating 6th Circuit Chief Judge Boyce Martin for alleged misconduct in the Grutter affirmative action case. The details are complicated, but it basically amounts to an allegation that the Chief Judge inserted himself improperly into a 3-judge panel hearing motions on the case, and then violated procedural norms in order to prevent two conservative judges from sitting on the en banc panel (and thus potentially making it a 6-5 decision striking down Michigan Law's affirmative action plan, instead of the actual 5-4 decision upholding the policy).

I don't know enough about the procedures of the 6th Circuit to make an informed judgment, but I do remember reading the concurrences and dissents in the 6th Circuit decision (288 F.3d 732), and they reflect an unusually (I hope) large amount of intra-court hostility, and a rare public airing of dirty laundry. The first strike was a "Procedural Appendix" to the dissenting opinion of Judge Danny Boggs.

I think it is important to note that Boggs is no stranger to accusing his fellow judges of procedural misconduct; in that case he called a senior judge a liar and accused him of "virtually criminal" actions. In the Grutter case, his accusations were only marginally less strident: