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Archive for June, 2008

Friday Cat (Power) Blogging

[ 14 ] June 27, 2008 |


Upper Galilee is Lovely this Time of Year…

[ 24 ] June 27, 2008 |

So, I have received no small number of questions and e-mails in response to this post; here is a short explanation.

On Sunday afternoon, Davida and I rented a car and left Jerusalem for Ken Bahula, a bed and breakfast near Rosh Pinna. We arrived without incident, got settled, and began to make plans for visiting the various attractions of Galilee and the Golan; I was particularly interested in the various military fortifications (from 1099 to 1973) in both areas, while Davida was more focused on visiting some of the ancient synagogues around the Sea. We got up on Monday morning, but shortly before breakfast Davida fell ill. I won’t go into the details, but about 45 minutes later she, myself, and Eveline (the proprietress of Ken Bahula) were speeding towards the hospital at Sieff, about 10 miles away.

Much screaming and unpleasantness ensued, before painkillers were finally administered, a bed was found, and we began our first hand encounter with the Israeli health care system. Since the hospital “has had a bad experience” with American insurance companies, all expenses were up front, out of pocket. I don’t blame the Israelis so much as the Americans, and I don’t doubt that the bad experience was genuine, but it’s kind of a shock to have to suddenly put $1800 on the credit card that you swore you would never, ever, ever use again except for emergencies. In any case, Davida was eventually moved to a room, which she shared with a very nice young Druze woman; we assume she was nice, anyway, because she didn’t speak English and we don’t speak either Arabic or Hebrew. Indeed, the latter turned out to be rather a problem, because we found that the hospital at Sieff is staffed disproportionately by recent Russian immigrants, who have impressive medical skills but meager English language capability. As you can imagine, the situation was, at times, trying; it was very hard to figure out what was going on, and even harder to communicate what we needed. Eveline, our B&B host, was indispensable, translating when necessary and in general making things happen.

Davida stayed in the hospital Monday night, and I returned to the B&B to make various phone calls and send various e-mails. When I went back the next morning Davida was better, but not great, and went back and forth all day long. We learned from a doctor who spoke English that Davida might not be able to fly for a week, or even a month, which meant that our Thursday morning flight back to the US would have to be cancelled. That done, we considered our options, which included an extended stay somewhere in Tel Aviv, where we had some friends.

The situation had changed for the better on Wednesday morning, as Davida was discharged under instructions to take it easy for a couple of days, and come back in about a week for a check up. This is where we currently stand; we are still in Ken Bahula, are taking advantage of the extra days to do some (low key) sightseeing, and don’t know when we’ll be able to fly back to the United States. The situation was complicated by the fact that the wireless at Ken Bahula was broken for several days, which meant that we had to walk down the street and… borrow someone else’s wireless. As the area is beset by a large number of loose dogs, this resulted, on more than one occasion, in canine confrontation. Now that the wireless is repaired, we’re returning to semi-normality, given the situation.

All in all, things are okay. The hospital at Sieff was quite good, and we hope (!!) that our insurance company will present us with no difficulties in terms of reimbursement. If we had been uninsured, or if we hadn’t had a lot of free credit card space, things would have been a lot more difficult. As I suggested, the host and hostess of Ken Bahula has been of enormous help, and I heartily recommend the B&B to anyone who’s traveling in the area. Of course, we don’t know when we’ll be coming back, and Israel ain’t cheap, so it’s fair to say that not everything is hunky dory. Fortunately, Davida is doing much better, with the concern now regarding the effect of the plane ride rather than any enduring discomfort.

Will update when we have new information.

Oh, Glorious Day!

[ 8 ] June 27, 2008 |

After having to fight hungry dogs (quite literally) to maintain an internet connection for the last several days, we finally have reliable service. Normal blogging to resume shortly.

Supreme Court Facilitates the "Tort Reform" Bait And Switch

[ 22 ] June 26, 2008 |

Yesterday, many conservatives managed to work themselves into a lather about a plausible interpretation of the Constitution with exceptionally few real-world consequences. I noticed much less outrage about the Court’s opinion in Exxon Shipping v. Baker, which read the justice’s public policy preferences into the law with considerably less textual support in order to protect poor, defenseless Exxon in the light of the Exxon Valdez spill. (Four justices held that the corporation was not liable at all.)

The majority argues that the potentially arbitrary nature of punitive verdicts requires a fairly strict upper limit, with punitive damages virtually never permitted to exceed a 1-1 ratio with compensatory damages damages. However, the fact that punitive damages will vary to some degree is an inevitable consequence of the American system of relying on torts rather than regulation to create disincentives for corporate behavior. Limiting punitive damages with an arbitrary upper end — even in what, as even the usually sympathetic Breyer notes, were quite unusual circumstances — makes punitive damages a highly ineffective means of constraining bad behavior. That would be fine if people who agreed with the majority wanted to move to a more European-style regulation-based system, but needless to say that won’t happen.

The key to the case is that Scalia and Thomas, who haven’t joined past attempts to find limits on punitive damages in the constitutional text (and still disagree with these holdings), joined this time, presumably because of the majority’s reliance on maritime law. In dissent, however, Stevens points out quite compellingly that the limits on compensatory damages in maritime law make arbitrary upper bounds on punitive damages even less appropriate.

Court Finds Individual Right to Bear Arms

[ 15 ] June 26, 2008 |

The only real suspense about D.C. v. Heller was 1)how exactly the right to bear arms was defined and 2)what the lineup would be. The D.C. gun ban was clearly doomed. Scalia writing the lead opinion made a broader coalition less likely, and indeed the Court split 5-4, along typical ideological lines. And yet, based on a quick scan, Scalia’s opinion wasn’t exceptionally broad — while striking down the D.C. ban it emphasized that the reasonable regulation of gun ownership was permissible.

Stevens’s lengthy and detailed dissent, meanwhile, immediately conceded that the Second Amendment conferred an “individual” right in some sense, but argued that text and history compelled the conclusion that — given the constitutionally stated purposes of the right the D.C. gun ban was a reasonable restriction of the right. Breyer’s dissent, as you might expect, was more pragmatic, focusing on what he claims to be the reasonableness of the ban.

More on the decision later.

Pick Him, John!

Louisiana Governor Bobby Jindal, who has been mentioned as a short-list candidate for McCain’s veep slot, reacted swiftly to the Supreme Court’s decision in Kennedy yesterday…by signing a bill to castrate all sex offenders.


I don’t think there’s any doubt that this is unconstitutional. But whatever the result of the sure-to-come challenge, this makes him an even more appealing choice for McCain’s veep. An exorcist who wants to go sterilization crazy? Bring him on.


[ 23 ] June 26, 2008 |


A new book from Stanford University Press called Agnotology: The Making and Unmaking of Ignorance proposes that . . . we need rigorous and careful thinking about the structure and function and typology of cluelessness. The editors, Robert N. Proctor and Londa Schiebinger, are both professors of history of science at Stanford University. Their volume is a collection of papers by various scholars, rather than a systematic treatment of its (perhaps inexhaustible) subject. But the field of agnotology seems to cohere around a simple, if challenging, point: Ignorance, like knowledge, is both socially produced and socially productive.

Ignorance is not simply a veil between the knower and the unknown. It is an active – indeed vigorous – force in the world. Ignorance is strength; ignorance is bliss. There is big money in knowing how to change the subject – by claiming the need for “more research” into whether tobacco contains carcinogens, for example, or whether the powerful jaws of dinosaurs once helped Adam and Eve to crack open coconuts.

The “more research” cliche is of course familiar to anyone in a field that claims to be even remotely empirical. There, obviously, the premise is that more research leads cumulatively to more sophisticated, better knowledge. In my introductory social science seminar, though, a fair number of students recognize — or at least think they recognize — that boilerplate, end-of-article nods to “more research” are just another species of bullshit, the sort of thing one offers up instead of a conclusive argument. Since I don’t really work in a field that relies on these rhetorical moves, I don’t feel too invested in defending them, but I usually try at least to contrast their (usually) sincerely curious spirit with the impulse behind the mendacious calls to “teach the controversy” where no such controversy actually exists.

In completely unrelated news, one of the chapters is titled “Coming to Understand: Orgasm and the Epistemology of Ignorance.”

I just don’t even know how I can add to that.

Major League Chutzpah Of The Week

[ 94 ] June 26, 2008 |

Mr. Ralph Nader — in a good position to speak on such issues, having earned 0% of the votes of African American women in 2000 while successfully achieving his goal of handing the election to George W. Bush and all — lectures Barack Obama for “talking white.” Uh-huh.

I can’t resist quoting Mike Tomasky:

Third, and most of all, I kept noticing in 2000 that most of the people who lectured me on how corrupt Gore was and how Nader was the courageous choice were people for whom the outcome of the election, on a personal level, didn’t really matter. Some were young people, whose idealism is to be admired but who were by and large demographically insulated from some of the harsher realities of American life. But most were older, white, left bourgeoisie, tenured and cocooned in the carapace of self-righteous satisfaction, whose own lives wouldn’t change much one way or the other no matter which party won. In fact, if anything, Bush’s elevation was good for them personally, because they wouldn’t suffer directly from federal budget cuts and were probably in a bracket that benefited from his tax cuts (as was I, but at least I had the sense to vote against my own interests). Among people who were directly affected by which candidate won, Nader was seen as the ornament of frippery that he was. I promise you, you could not have gone to the corner of Lenox Avenue and 145th Street in October of 2000 and found four Nader voters. And at that intersection and the many others in America like it, by my lights, the moral case for Nader crumbles to dust.

On Giles

In the hubbub over Kennedy & Exxon today, little attention has been paid to Giles v. California, a case on which I worked (for the record, my SCOTUS record is now 1-0).

In an opinion by Justice Scalia, the Court today held 6-3 that a criminal defendant does not forfeit his Sixth Amendment right to confront the witnesses against him simply because he has killed the witness or otherwise kept her away unless he did so in order to prevent her from testifying.

The facts (in short) were as follows: Giles shot his former girlfriend, Brenda Avie. About a month before he shot her, they had an altercation, after which she called the police. At Giles’s murder trial, the state introduced the police report (from the month before) to prove that Giles killed Avie. Giles objected because he did not have an opportunity to cross examine Avie. The report came in under a state law that said that a person forfeited his confrontation right not only by witness tampering, but by any action that prevents a person from testifying, even if there was no legal proceeding happening at the time the defendant took the action that later kept the witness away. More traditionally, and under the Federal Rules of Evidence, a defendant forfeits his confrontation right only by keeping away a person who is already a witness.

The Court today struck down California’s law and insured that defendants get sufficient protection of their confrontation rights. But the oral argument and the written opinions set up a dichotomy that appears time and again in my work: when issues of women’s rights clash with issues of defendants’ rights, what is the progressive feminist to do? Here, the protection of defendants’ rights may make it more difficult to prosecute domestic violence cases. But any other rule would virtually gut the confrontation clause — a bedrock protection for vulnerable defendants.

In this case, I’m willing to put the extra burden on prosecutors of figuring out how to prove their DV cases in a way that does not threaten the confrontation right. Which – strangely for me – means I am more aligned with the conservatives on the Court than the more liberals.

The Eighth Amendment and Sexual Assault

[ 18 ] June 25, 2008 |

Today’s decision in Kennedy v. Louisiana is a fairly typical Eighth Amendment case. The relevant textual language — “nor cruel and unusual punishments inflicted” — can evidently accommodate multiple outcomes in any case sufficiently interesting to get to the Supreme Court, and this case is no exception. The Court’s four more liberal members and the moderate conservative found that the Eight Amendment categorically bars the death penalty for cases of sexual assault “where the crime did not result, and was not intended to result, in death of the victim.” The Court’s four doctrinaire conservatives dissented.

One interesting aspect of Alito’s opinion, however, is the particular way in which he made his argument. One could imagine an argument to the effect that the text of the Eighth Amendment as originally understood did not prohibit the death penalty for the rape of a child. This would be true, but given what kinds of punishments would be permitted by an originalist analysis would prove too much, and indeed even Scalia has said that cruel and unusual punishment is an area where he is a “faint-hearted” originalist who would not actually hold flogging for minor property theft to be constitutional. Instead, Alito takes on Kennedy’s standard analysis of whether there is a national consensus against the death penalty for the sexual assault of children. Here, Kennedy’s case is pretty strong, given that the few states with such statutes are clear outliers (this is roughly the same number of states that didn’t provide lawyers for criminal defendants at the time of Gideon). Alito attempts to explain this away:

…dicta in this Court’s decision in Coker v. Georgia, 433 U. S. 584 (1977) , has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators—regardless of their own values and those of their constituents—from supporting the enactment of such legislation.

The claim that legislators would have been prevented from pursuing laws they strongly favored because of mere dicta in an opinion is, however, highly implausible. In the wake of Furman, for example, some people (including the Chief Justice) believed that the death penalty was effectively abolished although only 2 of the 5 majority justices held the death penalty categorically unconstitutional — but this didn’t stop a majority of states from quickly passing new death penalty statutes despite little knowledge of whether such laws would be upheld. In the case of abortion, legislators have passed laws that were clearly unconstitutional under contemporary doctrine, such as the federal Partial Birth Abortion Ban Act, the states that have passed abortion bans after Roe, and the states that continued to pass abortion restrictions after Akron. Alito’s claim that mere dicta intimidated states into not passing legislation they otherwise preferred and that Supreme Court precedent did not explicitly prohibit is highly implausible, and (if one accepts the standard being applied) Kennedy’s assessment is much more credible. If the Court’s opinion in Coker ran counter to strong sentiment, we would have expected a significant number of legislatures to immediately test the boundaries of the Court’s opinion; needless to say, this didn’t happen.

Alito also makes an argument that there is no reason to assume that murderers achieve a unique level of moral depravity, which on its face is more reasonable:

Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

Fair enough as far as it goes. However, there’s another way of approaching this: to question whether the death penalty should be applicable in cases of felony murder. A categorical prohibition on the death penalty for people who did not intend to cause the death (or their personal actions could not foreseeably have caused) of another person seems the better way of resolving the conflict to me.

A Meme Expands

[ 0 ] June 25, 2008 |

djw — who thankfully encouraged me to a see a rare screening of L’Eau Froide at a tiny theater in Seattle — will be especially happy with this addition…

Court Rules Against Death Penalty for Sexual Assault

[ 0 ] June 25, 2008 |

In a 5-4 opinion written by Kennedy, the Court has ruled that the Eight Amendment makes the death penalty unconstitutional in cases where the defendant did not intend to cause death. More when I have a chance to fully read the opinion.

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