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Archive for June, 2006

What Can Democrats Do To Win The ‘South’? Maybe Nothing.

[ 0 ] June 22, 2006 |

Thomas Schaller has an article in the American Prospect about a forum he participated in at Yearly Kos with Dave “Mudcat” Saunders, a political consultant specializing in how Democrats can appeal to voters in the South. Schaller makes the point that if we talk about problems the Democrats are having we’re talking about white southerners in the rural Deep South; Democrats do better than fine among black voters in the south, and can be competitive in urban and suburban areas. The ‘South’ that Democrats can’t win is the overwhelmingly Republican white Southern vote.

So how do we change this? Schaller says maybe we don’t. Maybe we put together coalitions of the more urban voters and the minority voters that we can win — voters in the Southern states, ever if they aren’t the cultural picture one has of the ‘South’, and maybe the conservative white voters will come along based on our performance in office. Paycheck issues help everyone out, after all. But trying to shape the Democratic party in the cultural mode of conservative Southern whites doesn’t seem terribly likely to get us anyplace. (also at Unfogged.)


Give It Up. It’s Over.

[ 0 ] June 22, 2006 |

Maha says all that needs to be said in re: the ridiculous touts of “new” WMD discoveries by various Republican operatives:

I keep reading, and find that this is not a new discovery, but an account of some stuff found in Iraq since May 2004. And it wasn’t exactly “500 chemical weapons,” as Fox News reported, but 500 chemical weapons shells. These shells contained old, degraded mustard OR sarin “nerve agents” dating from before the Gulf War, but for some reason nobody was interested enough to analyze the stuff to find out for sure what it was. The declassified document detailing the “discovery” — released by our old pal John Negroponte, note — is artfully vague about how much toxin was actually contained in the shells and what condition the toxin was in. Or even exactly what it was.

You really can smell the stench of desparation from Europe.

Two Final Notes On Hudson

[ 0 ] June 22, 2006 |

Radley Balko’s post about Scalia’s Orwellian citations made me think of two points I neglected in my previous post on the subject:

  • Scalia’s causal logic is, indeed, bizarre–the fact that the procedural decisions of the Warren Court led to a decline in civil liberties abuses is cited as an argument…for gutting the procedural protections provided by the judiciary! For this reason, I think it’s wrong when people say that the exclusionary rule provides no protection to the innocent. This is true with respect to the victim who has already been wronged, but it’s not true looking forward at preventing future abuses. The point of the exclusionary rule is not to throw out lots of reliable evidence per se, but to create incentives that stop police from conducting illegal searches in the first place. This professionalization of the police force benefits all citizens, not just accused criminals looking to get sprung on a “technicality.”
  • It’s also worth noting that (as I think Balko as said elsewhere) that replacing clear, uniform rules with the whim of individual justices about what constitutes due process is bad for police as well as for defendants. As William O. Douglas said long ago (“we cannot in fairness free the state courts from that command and yet excoriate them for flouting the “decencies of civilized conduct” when they admit the evidence. That is to make the rule turn not on the Constitution but on the idiosyncrasies of the judges who sit here.”) to make decisions about the constitutionality of searches turn on the unarticulable whims of Felix Frankfurter or whatever judge is hearing the case is odious because police officers have no idea what’s legal and what isn’t, which discourages the development of internal procedures that prevent abuses before they happen, which is the most important thing. (Warren, who was, after all, a former prosecutor emphasized this in Miranda.) This unpredictability, in other words, isn’t just bad for the rights of defendants–after all, some state and local judges will have unarticulable libertarian biases–but bad for legitimate police work as well.

Because nothing says "customer service" like USPS….

[ 0 ] June 21, 2006 |

The Securities and Exchange Commission has proposed a new protocol that would allow companies to make proxy materials — large, thick stacks of paper — available to investors on the internet instead of mailing individual packets to thousands of shareholders.

AAO Weblog points out that one “consumer advocate” fears that such a plan would harm the individual investor who somehow failed to receive the electronic notification that the materials were available.

That consumer advocate?

The United States Postal Service.

How Does Something Like This Happen?

[ 0 ] June 21, 2006 |

I’m late with this, as usual — everyone’s probably already seen Yglesias’s pointer to the Washington Post’s review of Ron Suskind’s new book: The One Percent Doctrine. I’m just going to quote a big chunk of the review, describing Suskind’s reporting of how we tortured a crazy man because admitting he didn’t know anything useful would have embarrassed the President, and then acted as if the stories he made up under torture were useful information:

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries “in the voice of three people: Hani 1, Hani 2, and Hani 3” — a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail “what people ate, or wore, or trifling things they said.” Dan Coleman, then the FBI’s top al-Qaeda analyst, told a senior bureau official, “This guy is insane, certifiable, split personality.”…

Which brings us back to the unbalanced Abu Zubaydah. “I said he was important,” Bush reportedly told Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” “No sir, Mr. President,” Tenet replied. Bush “was fixated on how to get Zubaydah to tell us the truth,” Suskind writes, and he asked one briefer, “Do some of these harsh methods really work?” Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, “thousands of uniformed men and women raced in a panic to each . . . target.” And so, Suskind writes, “the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered.”

It would be nice if this story were untrue. I wish I had some reason not to believe it. (also at Unfogged.)

Commodity or icon?

[ 0 ] June 21, 2006 |

(In light of a new development in the case, Scott’s encouraged me to recycle something I once posted on my own blog. ‘Coz … it’s new to you ….)

With no discussion, the Eleventh Circuit has affirmed a district court’s holding that the “Hooters Girl” is the product for sale, and not a signifier of origin.

The case is described in this article:

‘Functionality’ of Hooters Girls at Issue in IP Appeal

Judges on the 11th U.S. Circuit Court of Appeals will take a close look at the short-shorts and tight tank tops of the “Hooters Girls” to determine whether the restaurant servers’ scant outfits deserve trade dress protection.

Last December, a U.S. District Court judge in Orlando, Fla., ruled that the “Hooters Girl” persona is “primarily functional” and therefore is not entitled to trade dress protection. U.S. District Judge Anne C. Conway found that the “Hooters Girl” was “the very essence of Hooters’ business,” whose “predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies.”

Hooters of America Inc. had brought claims of trade dress infringement and dilution and unfair competition against Ker’s Winghouse, a Florida restaurant chain in which the decor and the waitstaff’s wardrobe seemed too familiar to Hooters executives. Ker’s Winghouse restaurants — named after founder, president and former Dallas Cowboys lineman Crawford Ker — feature the “Winghouse Girls.” According to their respective Web sites, there are over 375 Hooters restaurants in 46 states and several foreign countries, whereas there are 17 Ker’s Winghouse restaurants, all in Florida except for one in Texas.

See, here’s the legal issue. Once upon a time, there was only the concept of trademark — which was just, literally, a unique “mark” you placed on your goods to indicate its origin. It’s sole purpose was to show who created the product.

And then companies started to get creative with their marks. Instead of just having, say, the Apple logo, or the Penguin of Penguin Books, Tiffany’s claimed a trademark on the distinctive coloring of its boxes. Harley-Davidson claimed a trademark on the distinctive sound of its engine. But in order to claim trademark protection for these things, they had to show that Tiffany Blue or the Harley-Davidson engine sound were more than decorative, and more than the natural byproduct of a functioning engine — they had to actually signify origin.

(I don’t know anything about engines, but Tiffany’s, I know. And they’re right — if you see a jewelry box with that color blue, you don’t need to see the Tiffany name; you know where that box came from.)

So then the concept of “trade dress” came along. That was the idea that sometimes a trademark goes beyond a mark, or a color, or a sound — the entire visual design and packaging may serve the same purpose, namely, to signify origin. The shape of a Coca-Cola bottle, for example, has trade dress protection; if you saw that bottle in silhouette, without the Coke icon, you’d likely be able to identify it as Coke.

The problem is that the more you extend the concept of trademarks, the more you’re likely to overlap with the actual functional parts of the business. I mean, if Burger King came along and claimed “trade dress” protection for the idea of a restaurant with a counter where you place your order, a lighted up board listing menu choices, and computerized cash registers, it would pretty much knock out anyone who wanted to set up a competing fastfood chain. And it would be wrong, because these aspects of the design of a Burger King restaurant don’t exist to signify source so much as they exist because they are a functional and efficient way for Burger King to do business.

Which brings us to Hooters, who apparently has competition (I, of course, have no first-hand experience with any of this). The competing chain, Winghouse, dresses its servers in black tanks and running shorts, instead of the Hooters white tanks and orange shorts. But otherwise, Winghouse is pretty much, well, Hooters.

So Hooters sued, claiming that busty waitresses in tanks and shorts constitutes a signifier of origin. It’s more than people just happen to know that Hooters puts out such a product/service — people actually recognize these things as a trademark. In other words, the shape of the Hooters girl is just like the shape of the Coke bottle.

Which has Winghouse arguing that these are not signifiers of origin; these are functional aspects of Hooters business. Busty women in tank tops are what Hooters actually sells; they are not a design that solely communicates to the public the source of the product.

The trial judge agreed with Winghouse, writing:

Although the parties and this Court recognize that elements of trade dress must be considered in toto, the overwhelmingly predominant feature of Hooters’ trade dress is the Hooters Girl. As the Plaintiffs themselves have said, “The Hooters Girls are Hooters. They are not simply a marketing tool; they are the essence of the business.” In other words, without the Hooters Girl, there would be no Hooters. And what distinguishes the Hooters Girl from other sports bar and grill servers is her distinctive uniform, consisting of a white tank top shirt prominently featuring the Hooters name and “owl” logo across her chest, and orange nylon running shorts. Although Hooters Girls occasionally wear black uniforms, as a matter of law, those uniforms are not distinctive….

The Hooters Girl is not entitled to trade dress protection because the evidence establishes to a legal certainty that the Hooters Girl is primarily functional. As Hooters has represented to state and federal regulatory agencies investigating complaints of discrimination, the Hooters Girl is not a marketing tool. Rather, Hooters has admitted that the Hooters Girl’s predominant function is to provide vicarious sexual recreation, to titillate, entice, and arouse male customers’ fantasies. She is the very essence of Hooters’ business. This essential functionality disqualifies the Hooters Girl from trade dress protection.

347 F. Supp. 2d 1256 (M.D. Fla. 2004).

Aha! Hoist on their petard. See, awhile back Hooters was sued by the EEOC for sex discrimination. The lawsuit was settled, but when Hooters defended its policy of hiring only women of a certain … um .. shape, it argued that it needed to engage in such practices because the actual product it was selling was sexual titillation.

Hooters is allowed to change its tune now, but the trial court looked to Hooters’s arguments in the past as evidence of what Hooters’s core “product” actually is.

Hooters, of course, has a different view:

Hooters argued that there are numerous alternative ways of using scantily clad women to sell food, other than having waitresses wear tight tank tops and short nylon running shorts. “We didn’t have any problem with him putting girls in cheerleader outfits with the pom-poms,” said Hill, alluding to Ker’s football past.

But, Hooters has now lost its case, and we have an answer to the puzzle: women in tank tops are products, not symbols. Good to know.


[ 0 ] June 20, 2006 |

This is easily the best thing that Jonah Goldberg has ever written. The highlights:

What was once Kinsley’s contrarian instinct has been dogmatized into official corporate policy. Weisberg has admitted as much in interviews. Freelancers especially seem to have figured out how to get through Slate’s editorial defenses: Pitch a story, any story, that’s counterintuitive, and someone on the receiving end will say “brilliant!”

Let it be said, lest Slate readers are confused on this point: Contrarianness is a great and good thing—when driven by reason and facts. But contrarianness for its own sake is often the very definition of asininity. Mavericks who break from the herd to point out hard truths can be heroes. Mavericks who break out from the herd just to get noticed are pretty annoying. If the emperor has no clothes, by all means say so. If he doesn’t, saying otherwise for the sake of saying so is not only a tiresome shtick, it also reduces your credibility.

Slate’s editorial voice is not Olympian by any means. It’s more like that of an Ivy League kid who can skip class and still get an A on the test.

Right. I still check Slate with reasonable regularity, but the schtick is pretty transparent and pretty old. Saletan, Weisberg, Kaus, and Dickerson all seem to be pretty much the same guy, although Kaus is clearly the ugliest personality. As Goldberg notes, though, what sets Kaus apart isn’t so much his project as his ineptitude in carrying out that project.

Second verse, same as the first

[ 0 ] June 20, 2006 |

This article by Stuart Taylor is a marvelous example of how conservatives either cannot — or willfully refuse to — understand the dynamics of racism.

The article offers the traditional, tried-and-true argument that affirmative action policies at law firms end up hurting minorities because the ones who get hired are less competent, end up with bad assignments and worse training, and ultimately leave the firm. It is nominally based on one researcher’s conclusions that such dynamics occur and, without reading the data, I can’t offer a substantive critique of the numbers and research methods. But parts of the article — and, apparently, the research on which it is based — are laughable:

Numerous surveys of young black lawyers in large firms show that “within a couple of years of starting associate jobs, many blacks and Hispanics have been largely relegated to routine, unchallenging work and deprived of most benefits of training, mentorship, and partner contact,” Sander reports. Most minority lawyers do more “grunt work” than whites, have less contact with partners, report “frustration and a sense of failure,” and leave within the first few years.

Why? Surveys belie the views of some analysts that minority law students are less interested in corporate law firms than whites, Sander reports. Rather, the most plausible explanation is that although firms make collective decisions to use hiring preferences, the individual partners who dole out plum assignments have “an overwhelming incentive” to choose those perceived to be most able and “to shun those whom the attorney thinks for any reason may not be up to the job.”

Surveys show that a significant minority of young black and Hispanic lawyers in large firms perceive themselves to be victims of old-fashioned racial hostility on the job, Sander explains. But does this reflect reality? It’s worth noting that 20 percent of entering black law students in one large survey thought they had been victims of discrimination in the admissions process — and that this was quite obviously the opposite of the truth.

Why would the same firms that use aggressive racial preferences to bring in minorities then turn around and discriminate against them? And why, if the firms are racist, are there virtually no complaints of discrimination in pay, hours of work or overt treatment?

It’s also telling that young blacks at firms with fewer than 50 lawyers — firms that do not use large racial preferences, the data show — report far, far fewer problems. There is no reason to suppose that these firms are more enlightened. The most plausible explanation, Sander shows, is that they hire minority lawyers who are well qualified for their jobs and whose work shows it.

To be sure, some big-firm partners may well be twisted by racial animus, Sander says. But probably not very many. And it would not be hard for minority associates to find out who those partners are and avoid them.

I love this. Let’s break down his arguments.

First, racism doesn’t exist because assigning partners have an incentive to not be racist. (I’d also add, clearly, racism doesn’t exist anywhere in society because people who hire other people always have a strong incentive to hire the best workers, no? Hey, we just solved racism! Cool!)

Second, there can’t be racism at a law firm because it would be irrational for a firm to actively encourage minority hiring and then treat its new hires with hostility.

Third, “proof” exists because small firms, which by nature have fewer hiring preferences, have fewer problems than large ones.

Fourth, minority associates – you know, your first or second or third year associate with all that marvelous power and authority over the senior partners at the firm – can just avoid the racist ones.

Of course, all of these arguments share a common thread: They all assume that whenever anyone charges “racism,” they’re talking about overt, KKK style bigotry, complete with blackface and use of the N-word. But no one is arguing that this is the form of racism that exists in law firms. Rather, the argument is that law firms are cliquish organizations in which work and mentoring relationships are doled out based on personal idiosyncrasies and social relationships. And that means that all the unconscious racism can fly free — people just happen to make friends with other people who are just like themselves, and suddenly minority hires find themselves without mentors and without the best work.

And I honestly can’t fathom whether writers like Taylor really don’t understand this, or whether they intentionally keep trotting out the same old straw men in order to keep a “debate” going.

(via Tax Prof Blog)

Forward Thinking

[ 0 ] June 20, 2006 |

If I were a terrorist, and I thought that an amnesty for former insurgents would probably damage the insurgency and help stabilize the Iraqi state, then something I might do is kidnap a couple of American soldiers and torture them to death in the hope of provoking an emotional response.


The Case Against the Case Against Roe

[ 0 ] June 20, 2006 |

I have an article in the print edition of the latest American Prospect, which examines and–I humbly submit–thoroughly demolishes the “pro-choice” anti-Roe arguments that are so prevalent among liberal pundits these days, looking at both arguments about the impact on reproductive rights and the political effects. At the current time, it’s subscribers-only, but you’ll note that you can get immediate access by coughing up a mere 15 bucks, which also nets you 11 more issues. Plus, there’s a whole package on reproductive freedom in the issue, and this includes an article by Helena Silverstein, whose terrific work about the on-the-ground impact of parental notification statutes I’ve discussed previously. So I hope you’ll consider subscribing or picking up the issue when it hits the newsstands. In the meantime, to whet your appetite (or enrage you enough to look at the article so you can attack me properly in comments), I give you the conclusion:

Ultimately, to call these contrarian arguments “pro-choice” is a non sequitur. They’re only compelling if the value of protecting a woman’s right to choose is accorded almost no weight.

Indeed, what is finally most intolerable about the new anti-Roe consensus is just this willingness to throw the rights of others under the bus while patting oneself on the back for making noble compromises. It is certainly easy for men living in blue state urban centers — who know that no woman in their family or social circle will ever be denied a safe abortion — to casually dismiss the importance of the rights of poor women in the two dozen states at high risk of banning or severely restricting access to abortion in a post-Roe world. The legislative “compromises” celebrated by the contrarians involve sacrificing the rights of those women and allowing legislators to severely restrict abortion without paying a significant political price. This is an outcome that should not be acceptable to any progressive. Core rights are not a field where expediency should trump principle, and a moment like this is no time for elite commentators — if they really do support reproductive rights — to waste ink on cute debating games.

A Craptastic Travel Day

[ 0 ] June 20, 2006 |

All was going well until I got to Chicago. O’Hare is a nasty airport; too crowded, too noisy, way too hot, poorly laid out. I did manage to get my flight destination switched from Louisville to Cincy (for reasons too complicated to explain, I was flying back into Louisville, while my car was in Cincy and my apartment in Lexington), although I couldn’t get on the early flight and had to settle for the 6:45. Whatever; better than dropping $80 on a rental car in Louisville.

But then the thunderstorms hit Cleveland, and like a butterfly flapping its wings and creating a tsunami, my day went to hell. Flight delayed to 8:10, then to 9:30. Four hours in O’Hare turns into seven. Then the bastards lose my luggage. Since I have cleverly left my car keys in my checked luggage (note to self: this is a terrible idea) I am stuck in Cincinnati for another day.

I hope my cats don’t starve.

UPDATE: I am still waiting for my luggage, which has been located in Louisville. The baggage handling guy in Louisville (and I’m paraphrasing the nice lady at United Delayed Baggage) apparently has other priorities, and since United doesn’t fly from Louisville to Cincy, they’ll either have to put it on another carrier or send it back to Chicago and thence to Cincy.


It’s All Relative

[ 0 ] June 19, 2006 |

One good thing about food allergy illnesses as compared to food poisoning: the former is excruciatingly unpleasant for about 3 hours and then you’re more or less free to resume some semblance of a vacation, whereas the latter is bad for days. (The First [and Second, and Third…] Vomit In Paris was a landmark, however, for being the first issue I’ve ever had with Indian food. Frankly, I don’t even understand where the nuts were (and certainly the waiter was playing dumb)–the palaak paneer? The side of basmati? The Chai? What kind of sane person puts nuts in any of those foods? Christ, even in Seattle–where if I recall correctly they would offer to put pesto into your Coke–they would never dream of putting nuts in that.)

In happier news, I sure am happy to see Charles Pierce with a regular blogging gig.

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